Feminist Critiques on the Theory of Rights in the Jurisdiction: Towards Gender Equality

This paper examines whether ‘rights’, as a legal subject,is gendered. I argue that the term ‘rights’, which denotes a claim, power, liberty, immunity, choice and interest does not discriminate against anyone, or specifically, women. However, it depends on the application of the term as a product of laws, as to whether it is impartial or biased, kind or cruel. For Smart (1989), rights languages, if properly defined and employed, would empower women as rights could be claimed by everyone irrespective of gender; they could also be extended to claim gender equality and they could construct laws as the centre of political campaigns. Proper definition of ‘rights’ is particularly important for an analysis of how could rights inform equality. One of the most important aspects of ‘rights’ talk’ to explore is feminists’ perceptions of rights, such as those of Charlesworth (1994) on male-biased rights, of Kingdom (1991) on correlative rights and duties, and of Kiss (1997) who proposed to construct an affluent understanding of rights to ensure that people understand rights and that they work for gender justice. Generally, rights have been criticised by cultural feminists as too abstract and impersonal, reflecting and endorsing a selfish and atomistic vision of human nature and an excessively conflictual view of social life (FoxGenovese, 1991).I examine whether the feminist and Islamic human rights discourses share similar principles justifying human rights.I argue that it is important to understand rights as a positive instrument, provided that the term ‘rights’ is refined to a non-gendered product of laws which consider collective interest. I argue that the feminist and Islamic human rights discourses on subject and object of rights and rights’ coverage share similar principles justifying human rights.