NVELES DE CALIDAD

The theoretical perspective underpinning this research is based on and draws from the feminist legal theory and the universal theory of human rights. Together, they underpin the argument of this thesis that cultural, traditional and religious beliefs and practices in Nigeria impede the understanding of domestic violence, encourage the behaviour, and hinder the enacting of domestic violence and other

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emancipatory human rights laws. In addition, they guide this thesis’s appraisal of the efficacy of law in transforming peoples’ perceptions and attitudes toward domestic violence. The feminist’s conception of domestic violence is relevant to understanding the inequalities in gender relationship in many ethnic groups’ culture, religion and tradition in Nigeria. Furthermore, it provides the basis for investigating the role of these intersections; namely, culture, tradition, religion and the legal system and how they create and sustain gender discrimination. Feminists theory also points to how the law could be incorporated to ensure gender equality. In support of the foregoing, Juergens posits that ‘Feminist Jurisprudence argues that we must look at the norms embedded in our legal system and rethink the law’.40 _{Sharmani illustrates the intricate nature and role of law in societal}

engineering, noting that:

Law is an instrument that can be used in the pursuit of gender justice. But it is equally an obstacle to the achievement of greater gender equality. The legal arena is, then, both a site of oppression and an important means of social transformation.41

She further expounds on the interrelationship between law and feminist jurisprudence:

Feminist legal scholarship has drawn attention to the nuanced interplay between legal reforms and feminist activism, and strategies, tactics, and struggles that animate the use of the law to create, contest, or challenge social meanings and practices.42

The second theory used to guide the argument of this thesis is the universal theory of human rights. The universal theory of human rights advances the notion that human rights ought to be universal, and that every person is entitled to the respect of his/her human dignity irrespective of gender, race, ethnicity, religion and culture. In addition, the universal human rights theory will form the basis for the discussion on cultural relativism, which rejects the notion of universal application

40 _{Ann Juergens, ‘Feminist Jurisprudence: Why Law Must Consider Women's Perspectives’ (1991)}

Faculty Scholarship Paper, Mitchell Hamline School of Law 31 <http://open.mitchellhamline.edu/facsch/111> accessed 2 July 2017.

41 _{Mulki AL Sharmani (ed), Feminist Activism, Women's Rights, and Legal Reform (ed, Zed Books 2013)}

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of human rights. Relativists believe that ‘each society should formulate their own human rights standards in their context’.43 Hence, according to Ghafournia, ‘[human rights] is socially constructed and should not be imposed to other contexts’.44 _{Thus, the universal theory of human rights will guide the discussion}

on the universalism and cultural relativism debate on the application international human rights treaties and laws to achieve gender equality.This is essential in the context of challenging, reforming and/or jettisoning cultural, traditional and religious beliefs and practices that infringe on peoples’ human rights in Nigeria. Furthermore, it will aid the discussion on the role that culture, and religion play in impeding the passing of human rights laws in Nigeria and its implications in tackling social issues such as domestic violence. The discussion will focus on two structures of the universal human rights project, horizontal and vertical, as expounded by Walter.45 _{She contended that:}

The horizontal dimension is about the different ways one can approach the topic “human rights” from different disciplines. It is threefold, consisting of the moral question about its normative ideals, the political endorsement of a concrete conception of human rights and its legal implementation (including the actual enforcement on the ground). The vertical dimension adds a second layer to the horizontal dimension by asking for the scope of application of human rights in different cultures. It consequently is concerned with the fundamental question whether human rights are universal or particularistic.46

In the next section, I will engage in the discussion of feminism and feminist legal theory, which will include a brief overview of the three waves of feminism. The discussion will also seek to explain the feminist view on domestic violence as an expression of gender inequality embedded in many socio-cultural and religious practices that encourage the practice. Feminist theory as used in this framework is

43 _{Katiuzhinsky, Anna and David Okech, ‘Human Rights, Cultural Practices, and State Policies:}

Implications for Global Social Work Practices and Policy’ (2012) 10 (11) International Journal of Social Welfare 1.

44 _{Nafiseh Ghafournia, ‘Culture, Domestic Violence and Intersectionality: Beyond the Dilemma of}

Cultural Relativism and Universalism’ (2014) 11 (2) International Journal of Critical Cultural Studies 23.

45 _{Linda Walter, ‘Theories of Universal Human Rights and the Individual’s Perspective’ (2014) 25}

IAPSS Political Science Journal 120.

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not confined to the quest for women’s emancipation alone but includes a broader and more inclusive view of what feminism seeks to achieve: ‘the objective of feminism is to advance gender equality, not a particular gender…47 _{Hence, the}

feminist ideal advanced in this framework is the quest for a society where no one’s life (male or female), opportunities and status in society is determined by their gender identity.48