Image Credits: Indiatimes
Introduction: The Diverging Roads of Feminism and Tradition
Women had always been considered inferior or “weak”, due to perceived biological differences. They had been relegated to inferior subjects and considered to have low mental faculties and delicate constitutions. Aristotle had famously argued for the inferiority of womankind and their socio-political subjugation. Thus, one can say that this movement was a much-needed intervention in this highly sexist society. Feminism aims to create an equal society for all genders, and the upliftment of women. It essentially means the social, political and economic equality of both sexes.
On the other hand, tradition is an inherited, established, or customary pattern of thought, action, or behaviour (such as a religious practice or a social custom). It is essentially the cultural continuity in social attitudes, customs, and institutions. It is often argued that it is this tradition that is the main perpetrator of sexism and patriarchy, but this reasoning may be flawed due to the heavily restrictive definition ascribed to “tradition”. Tradition has been used as a leading argument in many controversial issues, such as the reversal of Roe v. Wade and the Indian Supreme Court’s refusal to grant marriage rights to the LGBTQ+ community etc. There has been a reliance on conventions to dispute many radical feminist thoughts, but it is also true that feminists were unable to make lasting changes due to the complete withdrawal from traditions. Tradition may also be used to push forth the idea of equality. The meaning and interpretations of tradition are “two-fold” and can be used in a variety of different ways to substantiate the argument for feminism.
Feminist Thought on Tradition
First, we must understand the current status of tradition in the feminist thought. It has been realised that the more “radical” feminism is, the more ubiquitous the subjugation and oppression of the past are considered, and thus drastic changes are needed to repudiate its traditions. There has been considerable feminist hostility towards tradition as it has often represented mainstream patriarchy, however, it must be understood that the process of change is the ever-evolving version of the past. It is not a strict linear approach from a specific period. Feminists cannot make clear changes to the identities they have rejected. The tussle between tradition and change lies in need with the familiar. Feminist thought has often failed to understand that society has an inherent tendency to initially oppose anything unfamiliar or unconventional. Progress made on future and distant ideals rather than identification with the past creates conflict. Katharine T. Barlett states that it would help to create connections from the past, rather than taking high leaps towards the future completely disconnecting from the oppressive. Feminist identities interact with ideals and principles that are so entrenched in gender and sexuality formed through the ongoing syntheses of old and new. Thus, we must liberally communicate with tradition to allow a forum for the interpretation and synthesis of old conventions to innovations.
Interpretation of Tradition as a “Living” Instrument
Tradition confers some legitimizing power on the past and can also constrain its use in terms of interpretation. Legal traditions are upheld by higher courts as precedents in legal scenarios. These precedents hold significant legal weight, and lower courts are obliged to follow them. However, higher courts have the power to enhance them by practising judicial activism, considering the dynamic social, economic, and legal landscape of society.
The Court has often used tradition to refer to social norms and conventions to evaluate the government’s acts and their consistency with them. Often, they are considered barriers to authority. Due to their workings in the common law structure, leave area for innovation and change, while tradition is unchanging and rigid. Oliver Wendell Holmes has applauded the common law's great responsiveness to changing conditions while deriding the inflexibility, purposelessness, and irrationality of the "merely historical”. However, this criticism has shaped its opinion on a mistaken concept of tradition. Employing a restricting and mechanical concept of tradition, as generally done by the courts recently, makes for a poor prospect for the feminist approach, leading to the current hostility.
Expansive and liberal utilization of tradition can be an effective means of empowering individual rights. In the USA, Griswold v. Connecticut established the constitutional right of married individuals to make personal decisions about birth control, free from state interference. The court reasoned that the societal value placed on the institution of marriage and the spousal relationship demands that married individuals be granted the freedom to make their own choices concerning contraception. The case was pivotal in shaping the legal landscape surrounding reproductive rights in the US, setting a precedent for the recognition of individual autonomy in intimate personal matters. While the Court used its authority to overturn intrusive state legislation in the "penumbra" of more explicit privacy rights, however the Court was protecting in Griswold a "way of life" that valued highly the privacy and sexual intimacy of a married couple. This way of life was worthy of protection not because it could be placed in a particular location or time, but rather because it could not. It was "older than the Bill of Rights . . . older than our political parties, . . . older than our school system."
In Moore v. City of East Cleveland, the zoning ordinance was invalidated by the Court for excluding a grandmother and her two grandchildren from a single-family-only residential district. As in Griswold, there was no constitutional language or precedent supporting the specific right defined by the Moore plurality. The source of the right, rather, was the historical fact that millions of citizens have grown up in extended families of "uncles, aunts, cousins and especially grandparents," and that "the accumulated wisdom of civilization, gained over the centuries and honored throughout our history . . . [supports such a large] conception of the family. "
Both of these judgements have derived heavily from natural law concepts of tradition, through an organic dimension. They represented an amalgamation of natural law and conventions to base a judgement in consonance with cultural norms. This line of cases supports the proposition that a tradition upon which a due process claim could be based does not need to be identical to the claim at issue, fixed at one particular point in the past and continuing unbroken to the present. The tradition is, thus, a norm that has endured in different iterations, and a reasoned claim against the state actions which claim to control its citizens, most importantly women. In these cases, the issues of contraception and family planning are discussed in a permissive manner and can make an effective case for the feminist argument. Even if the societal traditions are patriarchal, their interpretation in a liberal manner may not be so.
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Conclusion: Tradition as a Way of Progress
As earlier elucidated, an extreme departure from convention creates unfamiliarity and thus, it is highly improbable to make significant and lasting changes within the society. Thus, tradition must also hold an important stake when a discussion of feminist discourse takes place. The previous examples show a way of incorporating tradition as an ally in improving lives. Radical and sudden change may be needed at times, but considerable and lasting change requires strong foundations to fall back on. We need to incorporate such methods of thinking in the Indian feminist discourse, especially since it is a society rooted in tradition and culture. In the case of India, women have traditionally been subjugated and held inferior by the patriarchal systems that have prevailed. However, they have also been put on a pedestal and considered “sacred” in many religions. As Indian feminists break newer grounds of barriers and continue this journey for equal rights, we must also tackle this dilemma. There is an ever-present dichotomy within Indian culture. Indian feminists, hence, must identify these norms which can support their feminist argument. Of course, some cultures are so rotten and irredeemable, that they have to be completely done away with to achieve the feminist goal. It is also true that any support for tradition legitimates a source that arches against the interests of outsider individuals and groups against whom hatred and mistrust exist. Thus, there is difficulty to change. Women often find themselves as part of this category, especially if they are not the archetype “cis-gender upper caste woman” in India. But in cases where there is dispensability of tradition in accomplishing change, there are ways to mobilise these gender identities. The certitude of a tradition being bad underpins the necessity of contrasting between the bad and the good, rather than considering all traditions as oppressive. This position helps us clearly understand the course of action in the Indian cultural scenario. So, by embracing the imperfections of the identities that have been imposed on us, we must find constant ways to evolve and advance them towards the gender-justice ideals we individually determine.
By Vasatika Saraswat
Vasatika Saraswat is a second year BA.LLB law student at Jindal Global Law School. She is interested in writing about feminism, international law and legal traditions.
References
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