Jurisprudence - Feminist Legal Theory - Notes PDF

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Feminist Legal Theory Feminist legal theory, or feminist jurisprudence, is based on the assertion that the law has been fundamental in women's historical subordination. The unifying theme of feminist legal theory is that society, and the legal system in particular, is patriarchal—dominated by men and actively subjugating women. A patriarchy is a social system in which men hold primary power and predominate in roles of political leadership, moral authority, social privilege and control of property. Feminist theory holds that jurisprudence itself has been conceived along masculine lines of thought and is a reflection of dominant masculine culture. Therefore, the project of feminist legal theory is twofold. i.

First, feminist jurisprudence seeks to explain ways in which the law has played a role in women's subordination.

ii.

Second, feminist legal theory is dedicated to changing women's status through a reworking of the law and its approach to gender.

A number of 'tactics' have been employed by feminist legal theorists to illustrate the inequality present in the legal culture. Feminist scholars have focused on the prevalence of rape and the treatment of rape victims as an example of how women are kept in subjugation—an issue largely overlooked by the legal system. Robin West argues that 'women's injuries are not often recognized and compensated as injuries by the legal culture just as their work is not recognized and compensated by the market culture'. There has been a general dismissal of women's gender-specific suffering as consensual (sexual harassment), deserved or private (domestic abuse), natural (childbirth), or even non-existent (pornography), to name a few. In Pakistan, for example, the impossibly high evidential burden for proving rape or the existing legal right to conjugation of a man is indicative of how the legal culture is strictly biased towards women's gender-specific suffering. Furthermore, feminist scholars have leveled criticisms at the method by which traditional jurisprudence scholars have arrived at prevailing positions and the validity of these positions. The assertion is that these perspectives are narrow and biased because the writers are 'embedded' with the masculine mode of thought and the very construction of legal discourse is therefore 'a product of patriarchal relations at the root of our society' (Bottomley). This is reflected in Western patriarchal 'dualism', a view that organizes the world by dividing it into opposed pairs: reason and emotion, light and darkness, enlightenment and ignorance, male and female. Within dualistic relationship between man and woman, women have generally been regarded as the inferior of the two—irrational, emotional, unreliable and confined to the sphere of family life, while men are their binary opposites. Catharine Mackinnon, a feminist scholar, claims that the foundation of jurisprudence is defined from the masculine perspective and is therefore predisposed to considering issues that have most concerned men, and women are denied full involvement in society.

It is therefore important to examine how the law fails to take into account the experience and values that seem more typical of women than of men, or how existing legal standards and concepts might disadvantage women: this is called “asking the woman question”. This can be done through consciousness-raising and practical thinking—framing theory in real experiences and integrating the personal into the abstract. Asking questions such as 'does this actually help women', 'if not, how may it be corrected', and 'what difference would it make'? This is also known as feminist subject-positioning, which black feminist law professor Patricia Walker believed was the best way to conceive feminist jurisprudence. Some approaches to feminist jurisprudence that we will be covering are: (i) (ii) (iii) (iv)

The liberal equality model (liberal feminism); The sexual difference model (cultural feminist); The dominance model (radical feminist); and The postmodern or anti-essentialist model.

Each model provides a distinct view of the legal mechanisms that contribute to women's subordination, and each offers a distinct method for changing legal approaches to gender.

The Liberal Equality Model Liberal feminism is historically the most influential and recognizable form of feminism. It is also the form of feminism which is most straightforwardly applicable to law. Essentially, the liberal view is grounded in the rule of law: that all people, irrespective of gender, sex, color or ethnicity, should be equal before the law. This is used to demonstrate how women are not, in fact, equal to men before the law but ought to be treated the same (sameness approach). The liberal view sees the differences between gender as legally irrelevant: justice should be impartial and women ought to be given the same rights and entitlements as men. The general view of the liberal feminists is that subordination of women is caused by social and legal barriers that block or preclude their access to public sphere of politics and economics. Liberal feminism tends to adopt an individualist model of human beings, a model which many radical, socialist, and postmodern feminists have found deeply problematic (Wendell). Liberal feminism takes the position that women and men have equal capabilities for rational thought and action, and that therefore any statusbased discrimination premised on the assumption that women are less capable or rational than men is irrational and unfairly discriminatory. Therefore, liberal feminists believe that female subordination is rooted in customary and legal constraints and they strive for sexual equality via political and legal reform. This argument, or variations upon it, has resulted in a great deal of legal reform: a first wave of reforms removed legally entrenched obstacles to equality such as the inability of married women to own property, to vote, to practice professions, or serve as parliamentarians; a second (and ongoing) wave of reforms prohibited various non-legal obstacles to equality such as discriminatory employment practices. While these reforms minimized legal status-based discrimination and some other overt forms of discrimination, they clearly did not result in the elimination of sex-based exploitation, or in substantive equality between women and men. Liberal feminism is difficult to apply in cases where there is no man as a comparison point—such as in the cases of pregnancy, and also in relation to problems that mostly women face, like domestic and sexual violence. The realization that formal sex-neutral rules are an insufficient basis for equality has led liberal feminism to promote policies such as affirmative action and special employment provisions (for instance, maternity leave). These developments represent a class or status-based departure from the traditional liberal emphasis upon the abstract individual. Liberal feminism has a continuing role in analyzing and critiquing the various sources of inequality. Criticisms However, critics of liberal feminist legal theory and 'sameness' view these movements as requiring women to conform to the standards and laws created by the exercise of masculine modes of thought—in effect, to be treated equally, women had to be more like men (Catharine Mackinnon), which disregards the significance of the traditional role of women. What did this mean for issues peculiar to women, such as rape, pregnancy, abortion and sexual violence, for which men had little to no context? For example, if

the law is blind to gender then women shouldn't be given maternity leave since men are not either. Therefore, should women not have children or is this result simply the cost of equality? In a society predominantly defined by male standards, critics of liberal feminism claim that the common ground for equality is the point at which men were already standing—requiring women to change. Moreover, equal treatment of socially unequal individuals does not result in ‘real’ equality and in many cases only exaggerate the disparities. As MacKinnon has argued, under gender-neutral rule, men in effect ‘get preferred because society advantages them before they get into account, and law is prohibited from taking that preference into account because that would mean taking gender into account’. Critics have also argued that the individualist assumptions of liberal feminist legal theory make it difficult to see the ways in which underlying social structures and values disadvantage women. Liberal feminism focuses on the individual, discrediting the importance of the community. Catharine Mackinnon, and other critics, view liberalism and feminism as incompatible because liberalism offers women a 'piece of the pie as currently and poisonously baked.' Other critics such as black feminists and postcolonial feminists assert that mainstream liberal feminism reflects only the values of middle-class white women and has largely ignored women of different races, cultures or classes. The Difference Model/Cultural Feminism Cultural feminism (‘different voice’ feminism) reverses the focus of liberal feminism—it is concerned with women’s differences from men. It argues that important task for feminism is not to assimilate women into patriarchy, and prove that women are similar to men and can function like men and meet male norms, but to change institutions to reflect and accommodate values that they see as women’s— nurturing virtues, such as love, empathy, patience and concern. Liberal feminism has been critiqued for its assumption that the goal of feminism ought to be simple equality with men: this objective, it is argued, adopts culturally male standards and values as normative and universal, and fails to explore alternatives to the liberal model. ‘Difference’ feminism or cultural feminism aims to ascribe to women certain ‘essence’ or essential character. Carol Gilligan argues that women are not the same as men, but instead they simply reason differently and have their own moral codes—to be precise, the feminine mode. This is an “ethic of care” concerned with preventing harm, caring for the needs of others, and seeking to preserve and develop relationships—an interpersonal focus. This can be contrasted with the masculine mode, derived from research done by developmental psychologist Lawrence Kohlberg, involving objective and unemotional thinking of justice to the exclusion of other moral values, such as caring. This is the ethic of justice; a legalistic way of thinking that emphasizes impartiality and rationality when solving a moral dilemma. It is argued that the ethic of care would be repressed and undervalued under 'liberalism'; women crave intimacy rather than the separation and autonomy that are the main values in liberal feminist legal theory. According to cultural feminists, gender equality cannot be achieved if the benchmark for such

equality is the masculine figure. The difference model emphasizes the significance of gender differences and holds that these differences should not be obscured by the law, but should be taken into account by it. Only by taking into account differences can the law provide adequate remedies for women’s situation, which is in fact distinct from that of men. Difference feminism is not necessarily theoretically distinct from radical feminism, though that may depend on where the source of gender difference is said to lie – whether in biology or social and institutional power. Difference feminism sees the distinction between men and women as fundamental and based in biology. Criticisms Gilligan's critics have argued that extolling 'female' characteristics in an attempt to gain greater rights is ineffective as it emphasizes the very characteristics of women that have historically barred them from achieving equality with men. For example, in the form of protective laws. Joan Williams has critiqued cultural feminists for ‘providing a respectable academic language in which to dignify traditional stereotypes.’ Furthermore, according to Carol Smart, 'feminine virtues' that are given such a low status in a patriarchal structure are praised by Gilligan as being the opposite of patriarchal values. Perhaps Gilligan's assertion that women are inclined to the interpersonal and emotional, and not objective and impersonal thinking, does not do women credit, especially as it attempts to attribute to women, as a whole. specific qualities, asserting they are somehow all the same and interconnected, when in fact they are individuals—each with their own identity. Kristen Ghodsee notes several forms of criticism coming from women of color and women of developing countries, who believe that "the idea of a global sisterhood erases important differences in power and access to resources among women of varying races, ethnicities, and nationalities. Perpetuating the “essentialist” idea that women are 'of this kind and not this kind' may only enhance gender-based discrimination as it justifies the dualistic view that men and women are somehow binary opposites. Furthermore, the idea that women are 'caring' and value relationships is almost a regression to the traditional female gender-role, which is what radical feminist MacKinnon asserts in her criticism of Gilligan. She argues that women may care more than men because that construction of women suits patriarchal values developed by men. The dangers of cultural feminism to which critics have pointed are the possibility of transforming differences seen as a value, to differences which perpetuate bias and discrimination. For example, labour laws that preclude different types of woman’s work on the grounds of the need to protect them, or in legal reasoning which justifies ‘unequal treatment’ on the basis of women’s inherent differences even when that means perpetrating women’s subordinate position. The Dominance Model/Radical Feminism

Radical feminism does not see the issue of gender equality as an issue of difference and sameness but rather as issues of domination of women by men. Catherine MacKinnon, probably the most influential legal feminist of contemporary area, criticizes both liberal and cultural feminism. She claims that both standards (which she calls ‘difference’ approach) embrace ‘maleness’ as a norm: Concealed is the substantive way in which man has become the measure of all things. Under the sameness standard, women are measured according to our correspondence with man, our equality is judged by our proximity to his measure. Under the difference standard, we are measured according to our lack of correspondence with him, our womanhood judged by our distance from his measure. MacKinnon sees the equality question not as a question of sameness, but as a question of distribution of power, and the gender question not as a question of difference, but as question of male supremacy and female subordination. Her ‘dominance approach’ is therefore not concerned with formal (legal) equality; rather its test is whether laws and practices in question perpetuate subordination of women. As such, it aims at ‘substantive equality’. The dominance model rejects liberal feminism and views the legal system as a mechanism for the perpetuation of male dominance. Significantly, liberal feminism does not involve a fundamental critique of the state or of the institution of law, seeing inequality as the result of irrational discrimination rather than systemic and structural. The neutrality of the law is not called into question by liberal feminism : law and the pursuit of legal reforms are seen as legitimate and justified methods of achieving social change (cf. Thornton, ‘Feminism’). In contrast, radical feminism has a more broad-ranging and arguably fundamental analysis of the relationship of gender and power. It thus joins certain strands of critical legal theory, which also consider the potential for law to act as an instrument for domination. Radical feminists see the source of women's oppression as not merely unfair discrimination practiced by some individuals against other individuals, but rather as institutional and systemic. The institutions of law and state reflect and reinforce male power, and cannot therefore be regarded as a neutral means of resolving inequalities. Radical feminists are therefore skeptical of whether law reform can result in meaningful change. As such, it was important to discover, value, and empower a distinctive women's consciousness and knowledge. This would lead to political interventions grounded in identity as a woman, or an ‘identity politics’. In the account of dominance proposed by Catherine MacKinnon, sexuality is central to the dominance. MacKinnon argues that women's sexuality is socially constructed by male dominance and the sexual domination of women by men is a primary source of the general social subordination of women. MacKinnon sees the “sameness” and “difference” approaches as trying to make women live up to standards set by men. She argues that our present situation and modes of thought are inescapably imbued with masculine modes of thought, and everything women want or think is a product of what the patriarchal structure needs them to think.

MacKinnon argued that gender was not about sameness or difference, but rather it was about power: gender is a hierarchy or difference in power in which ‘male’ is the privileged term and ‘female’ is the oppressed term. This hierarchy is reproduced in and reinforced by institutions which take maleassociated standards and values as the norm. The practical goal of radical feminism is to challenge subordination, a task which involves not merely identifying inequality and discrimination, but understanding and critiquing the fundamental structures, values, and mechanisms of exclusion which support it. Interestingly, MacKinnon did not completely reject law reform as a means of change, employing explicitly reformist tactics in an effort to control pornography. The radical feminist approach is an essential corrective to the liberal assumption of the neutrality or at least neutral capability of law. Law is gendered and participates in the production of gendered subjects. Criticisms Her theory of sexuality has been widely attacked as one dimensional, as was her representation of women (almost exclusively) as victims. The Anti-Essentialist Model/Intersectionalism/Postmodernism ‘Essentialism’ refers to the assumption that there is an essential women's experience which is the basis for feminist knowledge – that is, the assumption that all women share essentially the same or a similar experience of oppression, whatever their race, sexuality, or ethnicity. ‘Essentialism’ can also be taken to refer to the idea that gender is the essential or basic form of oppression, and that other forms of social exclusion are secondary. There is a certain logic to such assertions – they are based on the idea that whatever class, race, or social grouping is under observation, the women will generally be less privileged and less powerful within that group. However, postmodern feminism does not represent a single theory. Postmodern feminists do not believe in a single theory or a single ‘truth,’ and are particularly opposed to creation of any ‘Grand Theory.’ As the critics of essentialism have observed, the experience of women cannot be generalized across different classes, races, or ethnicities, and many women experience ‘intersecting’ sources of disempowerment and exclusion: in such cases gender is not necessarily more fundamental than race nor is it necessarily comparable in the consequences it generates. The earliest and most significant internal critique of the feminist preoccupation with gender as the fundamental form of oppression came from those who, by reason of their race or ethnicity, were marginalized both within feminism and within the broader society. Anti-essentialist and intersectionalist critiques have objected to the idea that there can be any universal women’s voice. Mainstream feminism has also been criticized for its preoccupation with the concerns of white middle-class heterosexual women, for its blindness to white privilege, and for its failure to recognize that structural discrimination, violence, and social exclusi...