「女権論」覚書(一)

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Not only from the sociological viewpoint, but also from the legal viewpoint, there have been quite many arguments about "Women's Rights", which have brought forth so-called Feminism, Philanthropism, Women's Liberation and so on. The aim of this paper is merely to abstract and introduce a book titled "Women's Rights" by Anna Coote and Tess Gill, published in 1977, through which one can realize a certain tendency of the problems or issues concerning "Women's Rights" in recent Britain and can compare them with those of ours in Japan. As regards the inferior position of married women in English Law, W. Blackstone in 1765 had made it clear that 'By marriage the very being or legal existence of woman is suspended, or at least is incorporated and consolidated into that of her husband, under whose wing, protection and cover she performs everything.' And, in short, 'Husband wife are one and that is he.' This well-known but somewhat infamous epigram can be called "one-body-in-law theory". Even though this sort of theory may have encouraged the man who considers the Husband-Wife relation as the Master-Servant relation, it couldn't be acceptable, at least, for the woman who doesn't recognize herself as a servent in her family. M. Wollstonecraft in 1792, for example, criticised this kind of unreasonable or irrational discrimination between man and woman and asserted "A vindication of the rights of woman" in which she mentioned 'woman's self-dependence' and 'female suffrage' in England. After three-quarters century, in 1869, J.S. Mill still said, "She is not self-dependent; she is not taught self-dependence; her destiny is to receive everything from others, and why should what is good enough for her be bad for the poor?" He might have simply an idea the sole way to liberate women should be to cultivate women and to abolish the legal subjection of women. Perhaps, in his views, women were yet only an object to educate or a chattle to domesticate as well as the poor to tame. But, it is an important point, in my opinion, wheter he did think of women themselves as the very part of the poor or not. Anyhow, the inequality between men and women is, I think, not the cause but the effect of the economic oppression of women. Woman, as F. Engels described, remains excluded from public production and cannot earn anything; and when she wishes to take part in public industry and her living independently, she is not in a position to fulfil her family duties....Today in the great majority of cases, the man has to be the earner, the bread-winner of the family...and this gives him a dominating position which requires no special legal privileges. In the family, he is the bourgeois; the wife represents the proletariat....the peculiar character of man's domination over woman in the modern family, and necessity, as well as the manner, of establishing real social equality between the two, will be brought out into full relief only when both are completely equal before the law. It will then become evident that the first premise for the emancipation of women is the reintroduction of the entire female sex into public industry; and that this again demands that the quality possessed by the individual family of being the economic unit of society be abolished. Here in the said book, the brilliant authors said as follows: Some progress has been made since the beginning of the nineteenth century, but there is still a long way to go. Perhaps the most significant advance made recently is that more and more women have become aware of their oppression and of the need to fight for their right (p. 19). Do these words put surely in mind of the mottoes written by Prof. Jhering in "Der Kampf fur Rechts"? And how about "Women's Rights" in Japan? This should be the last question to inquire. This paper is just one of the preliminary notes for this inquiry.
1982-10-30

著者

関彌一郎
法学教室

「女権論」覚書(一)

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