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Legal theory is often best understood through its application to particular issues or problems in law and society. Choose ONE area of contemporary societal concern and outline possible approaches and solutions to the issue through the application of legal theoretical standpoints taught during the module.

Legal theory is often best understood through its application to particular issues or problems in law and society. Choose ONE area of contemporary societal concern and outline possible approaches and solutions to the issue through the application of legal theoretical standpoints taught during the module.

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An essay for the 2011 Undergraduate Awards (Ireland) Competition by Aoife McNamara. Originally submitted for Law at Queen University Belfast, with lecturer Mark Flear in the category of Law
An essay for the 2011 Undergraduate Awards (Ireland) Competition by Aoife McNamara. Originally submitted for Law at Queen University Belfast, with lecturer Mark Flear in the category of Law

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Published by: Undergraduate Awards on Aug 31, 2012
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03/30/2014

 
Q5.
Critical Legal Studies (CLS) emerged due to antipathy with the dogma of traditional legal jurisprudence and the codified laws it produced. CLS aims tochallenge the prevailing legal orthodoxy of society; it repudiates the thoughtthat law is based on equality or neutrality. It developed a broadly left-wingcritique of the doctrines of law. CLS paved the way for specialist theories toemerge, such as Feminist Critical Legal Theory and Critical Race Theory(CRT). Critical legal theories in general aim to confront the status quo and tooffer alternative reasoning and solutions to a legal or societal issue. Thispaper explores the societal issue of domestic abuse of ethnic minorities inparticular forced marriage, through an Intersectional approach taking intoaccount both feminist and CRT perspectives.
Feminist Perspective
Despite the progress made by CLS in challenging the law, feminists “werecritical of the blindness of the CLS to the gendered nature of the law’spower.”
1
While CLS rejected the traditional jurisprudence, feminists believedthat it failed to address the subjection of women in society. Feminist CriticalLegal Theorists aimed to confront the fundamental patriarchy in the legalsystem.Feminists share the common goal of challenging existing distributions of power in our society. There are various different types of feminist legaltheories, scoping liberal and radical perspectives. Their commonality is their agreement that our legal system is phallocentric, yet shrouded in gender neutral language. It is believed that law is “abstract, elevated, pervasive, [and]institutionalises the power of the men over women.”
2
Feminists strive for gender equality, through challenging the legal system and legal practiseswhich have excluded women. Each group of feminists pinpoints a differentreason as to why women are subordinated but the essence of their argumentis the same, patriarchy is rife in the legal system.
1
C. Douzinas & A. Gearey
Critical Jurisprudence the Political Philosophy of Justice
(1
st
edn HartPublishing, Oxford and Portland Oregon 2005) 283.
2
C. MacKinnon,
Towards a Feminist Jurisprudence
(Harvard University Press, Cambridge Mass andLondon 1989) 238.
 
1
 
Feminists also share the belief that all women are different, therefore theexperience of women cannot be essentialised. However one area of the lawwhich feminists agree is a universal and an “essential” experience is domesticviolence or abuse. Whilst it is clear that domestic violence is a universalproblem, I believe that essentialist principles deny the female her individualexperience. Further, I believe that in the UK the domestic abuse within ethnicminority communities is very different in its causes, nature, and consequencesfrom that experienced by the white majority. In particular those forms of abusewhich are linked to the concept of “honour”; these include so called “honour”killings, forced marriages, and enforced restrictions on the behaviours of women. Essentialist principles may exclude ethnic minorities from“mainstream” feminism, and changes in the law. Therefore by using CRT toolssuch as legal storytelling society can better understand the difficulties facedby a woman from an ethnic background.In order to critically assess the laws’ approach to domestic abuse of ethnicminorities it is important to explore mainstream domestic abuse and feministsapproaches to the issue. Feminists believe gender based violence concernstraditional patriarchal attitudes of male ownership, control and dominance.
3 
Radical feminists believe that domestic violence propagates women assubordinates and men as dominators.
4
From a Marxist feminist perspectivewomen are like the proletariat, subordinated by the elite, which is in this casemale. Whatever the perspective, feminists agree that domestic violence issymptomatic of women’s subjugation in society.Law does not exist in a vacuum,
5
it arises from society and is influenced bythe views of the law makers, who are in most circumstances, male, white andsocio-economically privileged. “It is this culture, way of life, attitude, andnormative behaviour that combine to form the prevailing ‘neutrality’ of the
3
H.Barnett
Introduction to Feminist Jurisprudence
(1
st
edn Cavendish Publishing, London 2005) 256.
4
Ibid 257.
5
H.Barnett
Introduction to Feminist Jurisprudence
(1
st
edn Cavendish Publishing, London 2005) 258.
2
 
law.”
6
 The law is never truly neutral as it influenced by the perspectives of thelaw makers.Law and society traditionally placed women as inferior, or in a subordinateposition to men. Women were confined to the private sphere; traditionally themale’s role in society was in the public sphere. Women’s role in the privatesphere contributes to the idea that somehow violence within the home is aprivate, family matter, which is none of the law’s concern.
7
However, now thatwomen have an increased public role, attitudes have evolved somewhat andthere have been many changes in domestic violence laws, such as thecriminality of martial rape. In spite of this, most of the changes in the lawaffect the white majority and involve western forms of domestic abuse.
An Issue of Contemporary Societal Concern: Forced Marriage
Forced marriage is a culturally specific abuse experienced most frequently bywomen of the Muslim faith, from the Middle East, the Indian Sub-continentand North Africa, specifically women from black, minority and ethnic (BME)communities.
8
It should be noted that forced marriage is different fromarranged marriage. An arranged marriage can be an integral part of somereligious and cultural customs. However, I feel that it should be recognisedthat where a British woman of an ethnic background does not want toparticipate in a marriage then there should be appropriate protections affordedto her.Her Majesty’s Court Service describes a forced marriage as “a marriage thattakes place without the full and free consent of both parties.”
9
Historicallywomen in the UK have been allowed to choose to marry whomever they want,however with the influx of immigrants the face of marriage in the UK haschanged. It is important for feminists and the law makers to tread the fine line
6
R. Wacks
Understanding Jurisprudence: An Introduction to Legal Theory 
(1
st
edn Oxford UniversityPress, Oxford) 322.
7
Ibid 258.
8
 
S. Anitha & A. Gill ‘Coercion, Consent and the Forced Marriage Debate in the UK’ FLS (2009) 17,165–184. I am employing Anitha & Gill’s abbreviation for ease of expression, not as a generalisation of thewomen who experience these forms of abuse.
9
Her Majesty’s Court Service FL701 Forced Marriages Protection Orders:
3

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