LEGAL REFORM
‘Marrying is like dying', wrote the English writer Margaret Oliphant (1827— 97) in 1856, ‘as distinct, as irrevocable, as complete.'15 This is a pithy statement which still speaks across the generations to radical feminists.
Oliphant’s comparison between marriage and death was not intended as a criticism of the law; indeed, she believed that woman’s legal subordination within marriage was necessary for the strength of society. However, Oliphant’s turn of phrase encapsulates why women’s legal and civil status was one of the first campaigning issues for European feminists and why it was central to both the perception of woman’s role and the reality of her experience. Across Europe, women’s legal position was lamentable.In the 1850s, English middle-class women mounted a sustained critique of the law. In 1854, Barbara Leigh-Smith (1827—91), better known as Barbara Bodichon following her marriage, wrote a plain guide to the laws of England concerning women, spelling out the consequences of their subordinate legal status in respect of marriage, divorce, property and child custody.16 Her plain speaking, her measured and unemotional statement of facts, drew support. In addition, the more sympathetic and stable political climate in England — in contrast with that in France and even Germany and Italy — helped Leigh Smith’s Married Women’s Property Committee, established to campaign for reform of the married women’s property laws, to be taken seriously. In France, it was not until the establishment of the Third Republic in 1871 that appeals for legal reform could be seriously entertained. Decades of political turmoil in that country had retarded the women’s rights movement. It was argued that any concessions to women would simply destabilise the hard- won republican regime. And even then, when the republican and feminist Leon Richer (1824—1911) published his critique of the Civil Code, La Femme Libre in 1877, in which he described the legal status of women as servitude, he still met with intransigence.
In the newly unified states, moves to implement a unified law code offered women like Anna Maria Mozzoni (1837— c.1920) in Italy and Hedwig Dohm in Germany the opportunity to make a case for an improvement in women’s civil rights. Both Mozzoni and Dohm adopted a similar stance: woman’s role as wife and mother was no reason to preclude her from civil and political rights. Legal equality to these feminists was a fundamental right; in Mozzoni’s words, ‘[natural] rights are not based on social roles’, just as, in her view, they were not based on intelligence, or strength or good health or physical make-up.17 Similarly, Hedwig Dohm rejected arguments based on difference and the protection of woman by man: ‘Men, they say, represent women. When did women ever give men the right to represent them?’18 The First International Congress on Women’s Rights was held in Paris in 1878, organised by Leon Richer and Maria Der- aismes (1828—94), and attracted both French and international participants.The Congress restated the position of those who advocated women's equality on the basis of the Enlightenment concept of individual rights, resolving that ‘in every country where woman is made inferior, the entire body of civil legislation be revised in the direction of the most absolute and complete equality between the two sexes.'19 Amongst its demands were the legalisation of divorce, the recognition of equal inheritance rights, and the abolition of the morals police on the grounds that there was only one morality.
Feminist legal campaigns had mixed results. The lengthy list of reforms implemented across Europe points to some success. In England, women benefited from the Divorce Act of 1857 (despite its inbuilt inequality) and the Married Women's Property Acts of 1878 and 1882. In Italy the new Italian civil code of 1865 was more generous to married women in respect of property rights. In France, women were granted the right to open an independent bank account in 1881, in 1893 single and separated women were recognised as legal subjects in their own right, in 1884 divorce was reintroduced after its abolition in 1816, and in 1907 women were permitted to do what they wished with their own earnings.
In Denmark and Sweden, single adult women were granted legal emancipation in 1857 and 1872, respectively. Conversely, in those states with no organised feminist movement such as Spain, there was no legal reform until after 1918. Moreover, we must recognise that reform did not mean equality. In terms of both civil rights and political rights, woman's alleged different nature continued to be used to justify their legal subordination.‘The stronger the emphasis on the difference between the sexes, the clearer the need for the specific representation of women', wrote the German feminist Hedwig Dohm in 1873.20 Dohm and her intellectual ‘sister', the young Frenchwoman Hubertine Auclert, argued that if women had political influence they would have the power to change the laws on issues that affected them such as child custody, marriage and divorce. For these radical feminists, political rights were the key to women's emancipation including legal emancipation. But there were others who disagreed with this position. In France, Auclert was pitted against those who believed the stability of the Republic to be more important than the rights of women. If women were given the vote, it was argued, they would invariably support the forces of conservatism on the grounds of their tendency to be influenced by the church, and thereby postpone further liberal reforms for many years to come. In Germany, Hedwig Dohm was on the margins of the organised women's movement which sought to raise the status of women within the family. The Allgemeine Deutsche Frauenvereine (General German Women's Association) increasingly used difference as a bargaining counter with the government and especially in its campaign to influence the formation of the new civil code. However, feminists’ efforts to ameliorate the status of women as wives and mothers were not necessarily at the expense of claims for more fundamental individual rights. Their claim to citizenship was based on the rights of mothers as moral guardians which permitted their entry into the public sphere.
Thus maternalism (or relationalism) and individualism were not necessarily in conflict and were never entirely analytically distinct. In some respects, the disagreement between the two was more about strategy than about fundamental philosophy, as Jenny Hirsch (1829—1902), one of the first feminist activists in Germany, made clear in her criticism of Dohm’s approach in 1873:she throws down the gauntlet to existing institutions, ridiculing the errors and prejudices that we also recognise, which have often hampered us and filled us with rage, but which cannot be abolished in this way [female enfranchisement]; rather it causes them to become ever more entrenched and obdurate. Meanwhile she looks down pityingly at those virtuous German women ‘who are struggling to recommend a few improvements in girls’ schools...’ Indeed, honoured Madam, these are truly small and modest beginnings... Does it not also require some courage, some self-denial, and some endurance to work doggedly and quietly...21
Dohm and Hirsch were working towards the same objectives but they approached their targets from different positions. Both strategies had their relative strengths. In respect of legal reforms in Germany, Dohm was proved right. The lawmakers ignored feminist campaigners whose arguments for civil equality had rested upon women’s roles as wives and mothers. Although some concessions were made in the realm of women’s ability to pursue a trade or a court case, these rights were severely restricted by those of the husband in respect of his wife’s property and her person so that the legal status of the married woman was largely unaltered under the new German Civil Code of 1900.
By the end of the century it was recognised by most feminists across Europe that little further headway would be made in respect of legal reform without the vote. ‘Is it to be wondered at that little respect is paid to women when the law classes them with regard to their political status... with criminals, paupers and lunatics?’, exclaimed a supporter of the British suffrage campaign in 1913.22 Feminists understood that the private sphere could not be distinguished from decisions made in the public sphere. In Britain and Germany in particular, issues such as domestic violence, incest, child custody and prostitution were all addressed head on by feminists who realised that the laws affecting women in these areas were man-made. Laws that permitted husbands to beat their wives, and that allowed men to exploit women for sexual gratification, were made by all-male parliaments. For many feminists, then, it was their engagement with legal issues that convinced them that female suffrage was the answer to the subordination of women.