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February 2006 George D. Pappas, Esq. International Center for Legal Studies
PART I The best general introduction to the study of so-called Feminist Jurisprudence is your University of London Subject guide. You are quite fortunate to have in one single source, a short and detailed summary of the assumptions underlining rational liberalism, and various features of Feminist Jurisprudence.
Even reading the Subject Guide, you will quickly discover that in challenging traditional male dominated jurisprudence, that the very term “Feminist Jurisprudence” is open to various hues and interpretations since no one consensus has emerged as to what “Feminist Jurisprudence” is; however, I will submit that there is greater consensus when it comes to the grounds of criticism about “traditional jurisprudence,” the institution of marriage and the myth vividly described within law’s claim to “neutrality”. While the latter criticisms are easier to discern, don’t be mislead into believing that just because ‘female” writers per se are critical of the same thing that this necessarily translates into the same definition of who they are or whether even the dualism of “woman” versus “men” represents a unity of opinion - it doesn’t.
feminist jurisprudence concentrates on the inherent inequities fostered by the methodology of traditional jurisprudence. Criticism of Male Dominated Jurisprudence What is meant by “traditional jurisprudence” and how feminist jurisprudence criticizes this will demonstrate that it is the law that helps to crystallize existing gender inequities inherent in society. Feminists see the law as the prime source for perpetuating pre-existing gender based inequities.Your first task in the studying Feminist Jurisprudence is to broadly start with the main criticism of what traditional jurisprudence purports to be and how various feminists’ writers have questioned or attacked those assumptions. the very notion of 2 . legal positivism. Traditional jurisprudence can be summed up as the neutrality of law. especially within the framework of capitalism. but rather. In short. In fact. is not so much that woman have been in a “radically different” relation to the law compared to men. Your next stage of learning must incorporate a sufficient survey of the leading feminist writers together with an understanding of what their points of view are. Once you master these two elements of the subject. Such neutrality seeks no connection with respect to social or political contexts. in particular. you’ll be better able to handle most questions that the examiners will throw at you.
Traditional jurisprudence thus emphasizes the “rule of law”.” Hans Kelsen’s “Pure Thoery of Law. If this truth could apply to any legal system. whilst the “rule of law” could be viewed as a universal. objective scientific methods sought to disassemble itself from normative issues of “right and wrong.” 1989). not of men. 3 . legal positivists sought to discern the truth of the legal system.. In expressing law’s validity as epistemological postulates.” 1986) and Catherine MacKinnon (“Toward a Feminist Theory of the State. The Grundnorm) or H. In a break away form divine law.” and positivists infer.e. identify law’s neutrality as the very mechanism that perpetuates injustices against woman. ultimate rule of recognition represented paradigms set up to create universal conceptual standards to establish what is termed “legal validity”. The law’s “a-contextual” nature is a product of the scientific revolution’s use of objective methodologies. Men are arbitrary and inconsistent. Professor Nicola Lacey (London School of Economics) describes law’s neutrality as a source of perpetuating inequities along sexual patterns. a contextual standard that could be blindly applied to all society in whatever setting.neutrality seeks to strip away whatever humanizing forces are at play in society in its quest for an objective and universal standard of law. Some feminists such as Margo Stubbs (“Feminism & Legal Positivism. Feminist jurisprudence sees major defects in traditional jurisprudence’s use of the neutrality of law.L Hart’s (“The “Concept of Law”).” expressed through his “basic norm” (i. then laws could be enacted more “objectively. more fairly.
Sourcebook on Feminist Jurisprudence. are questioned for their narrow framework of command.” (The Sexual Contract. The parties come to the bargaining table in unequal positions. Pateman. yet.Feminist writers criticize the inherent methodological framework used by such legal positivists as Austin. but for its contribution to producing sexual injustices against woman. “Legal positivism is fundamental to the constitution of legal thought. why lawyers tend not to question the nature and purpose of law but take it as a given. pg. Hart and Kelsen. then the law’s treatment of citizens as equal – as in contract law – applies the law unfairly. traditional command theorist like John Austin. the law of contract treats both parties as equal.340 Hilaire Barnett). obedience. For example. It also helps to explain why the law comes to assume the status of objectivity and why judges become the seekers of truth. for example. but in the workplaces of civil society. if woman are already in an unequal position to men. “The story of the original contract shows how sexual difference gives rise to a patriarchal division of labour. 1997) Law describing itself seems nothing more than pure exercises in abstraction devoid of not only the social and political context underlying any legal system. It is a key reason why lawyers come to accept the official version of law as legal theory. Feminist writers are also critical of legal positivism for it’s reliance on discovering law’s nature as the key to understanding law. 4 . Feminist writers such as Carole Pateman argue that traditional jurisprudence treats citizenship as patriarchal constructed in the masculine image.” (Hilaire Barnett. not only in the conjugal home between the (house) wife and her husband. and sanction as the essence of the law. As such.
by implication. If you follow my shift in perspective from gender as difference to gender as dominance. we simply cannot afford to keep it at the 5 . The difference approach tries to map reality. especially within the capitalist context. gender changes from a distinction that is presumptively valid to a detriment that is presumptively suspect. is why these writers fail to establish similar arguments for woman under socialist regimes.. sees feminist jurisprudence as transcending the positivist conceptual framework of both liberal legalism (e.. the rule of law) and Marxist (e. Feminist jurisprudence seeks to make the connection between Hilarie Barnett’s “woman question” and “the law”. the legitimacy of sexual subordination.g. an organic social relation that is actively involved in mediating and controlling the tensions engendered in class-structured society.Catherine MacKinnon sees maleness as the organizing form of what is accepted as “normal. “.” (pg.. 230 supra.” MacKinnon is very critical of most forms of equality legislation for being vehicles of making woman as men. What is not clear.” “I have argued that it simply incorrect to ‘dismiss’ the law from feminist scholastic and strategic enquiry as some ‘inert’ mechanism for giving effect to ‘male’ interests It is . MacKinnon) Margot Stubbs. I believe that a reorientation of the “feminist” approach to law is long overdue for as it is politically central to patriarchal domination.seeing sex equality questions as matters of reasonable or unreasonable classification is part of the way male dominance is expressed in law. and why inequities based on race and ethnicity are not dealt with by the “woman question. rather. sex discrimination stops being a question of morality and start being a question of politics. C. law as reflection of the bourgeoisie class that is the capitalist superstructure). “The law’ is intimately involved in structuring every aspect of woman’s lives. It stands at the very centre of the legitimacy of the capitalist State and. however.g. rather than searching for true equality. In the dominance approach. All of these feminist writers agree that the law plays a key role in cementing inequitable sexual relationships. the dominance approach tries to challenge and change it.
Specifically. etc. Matsuda takes aim at Rawl’s premise. legal positivism has been stripped of much value when abstractions are based on premises that assume existing power relations along sexual lines. Expanded gender 6 . according to Hilare Barnett (“On Feminist Jurisprudence”). does Rawls consider the principles on which society and laws should be based. fulfilling a plan. for example. Only by stripping people of their individuality. Feminist and Legal Positivism (1986) 3 Australian Journal of Law and Society at 63. Essentially. whilst overlooking the possibility that non-self interested pleasures by woman value seeing others succeed without an quid pro quo. perpetuates existing sexual inequities.” Matsuda sees Rawl’s premise as a partial reflection of the original state. As such. On a methodological level.penumbra of our political project. Rawl’s postulates abstraction to ‘pure reason’ in man’s original state. Self respect for Rawls focus’ on achievement. where participants are ignorant of their self-interest. Matsuda is critical of the need to increase our awareness of these gender perspectives. Unearthing contextual omissions within traditional jurisprudence has exposed the need to “sexualize” law. The rule of law.” (Margot Stubbs. By incorporating female perspectives one can achieve greater contextual – relational premises with respect to gender differences.) Traditional jurisprudence has also come under attack with the publication of John Rawl’s “Theory of Justice.” in 1972. Yet writers such as Mari Matuda criticize Rawls for avoiding real earthly issues. Feminist jurisprudence has greatly enhanced our ability to deconstruct many of the sexual difference issues implicit within male dominant jurisprudence. Rawls calls this a “veil of ignorance”. such as his assumption concerning self-respect under the “veil of ignorance. desires.
marriage. feminist legal writers should also be cognizant of the roles played by race. Only by incorporating female views beyond the Anglo-American matrix will feminists’ influence reach the broad based foundation necessary for cultural richness vital to any new paradigm shift away from traditional jurisprudence. at least in terms of how these forces affect the empirical basis of our laws and legal system. and divorce. national origin. domestic violence. religion. 7 . While highlighting the serious misconceptions and flaws in traditional jurisprudence. feminists must not fall into similar paradigm confinements authored only by white.based perspectives of law can improve absurd assumptions about how woman think. At the same time. middle class. Anglo-American woman. behave or are treated by the law in situations such as rape.
(Rape. employment. (b) Criticism of Objective Jurisprudence: Bottomley: Traditional jurisprudence as objective science. father/daughter incest. Woman’s Injuries: (a) Woman’s Suffering: West (1987): Woman’s suffering for one reason or another is outside the scope of legal redress. and instead seeks to emphasize that “all scholars must recognize the embedded ness of their own assumptions within a specific historical context. 1990): “Woman have seen as the irrational.PART II CRITICISMS OF TRADITIONAL JURISPRUDENCE: Male dominated or truly gender neutral? A survey of various Feminist theories 1. domestic violence and pornography). Bottomley is critical of this “objective” standard depicted within law. (c) Forms of Dualism Question by Feminism: (Olsen. the emotional and the unreliable and confined to the 8 .
and develop impartial and universal criteria. stated.private sphere of the family while the male – the rational – enters the world of politics and law. she focused on Womans “relational bias” where such bias focuses on “interpersonal recognition. 9 . You may wish to note your subject guide on this.” (c ) The “Woman Question” : Carol Gilligan (1982): The potentiality for an alternative (i. but instead. but Kohlberg’s scheme sees the cognitive basis of moral reasoning as a developing ability to take elements out of a particular situation and the particular acts of a person. woaman “will always appear irrational. Koohlberg dehumanizes social context. other than man dominated) woman’s perspective has been systematically ignored. Gilligan argues that woman “Can never reach the highest” level of Koghberg’s stage – pure reason abstraction.e.” ( d ) MacKinnon (1987): Maleness as an organizing form of legality: The claim is that “maleness” is the organizing form of what is accepted as the “normal” and that most forms of equality legislation are not vehicles for a true equality between men and woman but rely upon making woman “as men. “ Gilligan takes aim at Khlberg’s theory of stages of moral reasoning.” MacKinnon (1987). As such. to abstract from experienced context so as to create formal qualities. stripping away the flesh of human activity and conflict to develop sterile universal truths about “man”.. Otherwise.
( e) Woman of ethnic minorities: Patrica J. Current events portray this reality in the Middle East where notion of “free press” are clashing with “religious sanctity”. If there ever was a terms that correctly depicted events. The blood of this debate is not academic. however. “It was the French Revolution which made freedom of nations and the freedom of individuals into real and central issues in the politics not only of Europe. Williams “I am interested in the way in which legal language flattens and confines in absolutes the complexity of meaning inherent in any given problem. Western (US and EU) Democracy. seems to have bypassed their very existence as participants in society. With this sweep of political change. E. According to Arbalster (1984).” The position of woman within the context of the French Revolution.g. and political liberalism. but gruesome and real. Western Thought. Muslim vs. but of a wider world. the term real politic is the one. I am trying to challenge the usual limits of commercial discourse by using an intentionally double-voiced and relational.” THE FRENCH REVOLUTION: A Critical point? The French revolution has led a charge of global change that seeks to flatten cultural differences in the name of political liberalism. Muslim vs. centuries of social organization and practices have been tested to a degree never seen. Divorce and Inheritance Laws 10 . rather than a traditionally black-letter. vocabulary..
Liberal Feminism We will finally conclude this lecture with a brief look at what is called the “Woman Question. Patriarch 2. You need to have a reasonable grasp of these strands within the Feminist Jurisprudence context as your examiner will expect you to support any essay arguments with such authorities. such as: 1.” 11 . we will review some of the following major strands. For example.Part III The next part of our lecture will review the various labels or strands of Feminist thought. Various “labels” have developed to capture the spectrum of Feminist criticism regarding male centered Jurisprudence. Feminism and Critical Legal Studies 3.
namely. Perhaps there is hope yet. The issue here is not religion. In fact. medicine or religion. “The Father. the Son and the Holy Ghost” are completely in the image of man. In religion. marriage and in legal epistemology. we have already seen how male jurisprudence has dominated the dualism between “man” vs. have argued that the Catholic Church’s attempt to completely dishonor and discredit Mary Madeline as not only Jesus’ Wife. Whether it law. since the ghost may yet be a woman! Recent writings such as “Woman in the Bible”. the “male” is deemed the center of the universe. Patriarchy revolves around man – women don’t matter. men dominate the structure upon which these disciplines or movements are defined. “woman”. a simple look at one of Christianity most famous lines. during the 19th in both England and the US. Woman are subordinate or non-existent in the law’s application. not the other disciples. The male dominated church has done every thing in its power to remove Mary from their religious texts and condemn her as a whore to scorn into eternity. Recognizing woman in any role of power or influence within the context of the holy bible was (and some will argue still is) not going to be allowed by the Church. in matters of divorce.PATRIARCHY Under this heading. 12 . they gave up their property rights and were legally obligated to submit to their husbands wish for sexual intercourse virtually on demand. who first saw Jesus upon his resurrection. they legally gave up their right to contract. So in a nutshell. When woman married. woman were considered ”chattel” or property. but as a woman with extraordinary intellect and commercial savvy. It was Mary. For example. “Who wrote the Gospels” and others. but raw power and control.
liberal feminism will seek to obtain “equal” rights for woman in relation to men. but non idealistic. The Feminist school is critical of CLE in this respect because the former attempts to identify relational issues. Specifically. however. that vision is often cast in universal or abstractive ideals. they both challenged the claim that law is neutral.FEMINISM AND CRITICAL LEGAL STUDIES Both the Feminist school and the Critical Legal Studies School (CLE) share a common criticism of the law. Radical Feminism To appreciate what Radical Feminism is you need to understand why they are seen as radical. In does not matter to Liberal Feminist whether woman are attempting to be more 13 . They assert that the claim to laws neutrality is nothing more than a guise to entrench established males interests and power. The latter is seen to embrace notions of what the ideal society should be like for woman. between the Feminism and CLE. For example. and as such. woman have been on the short end of the law down through the ages. real issues that are not only defined. however. Liberal Feminism seeks to obtain “rights” for woman within the existing legal system. Feminists embrace a view that attempts to challenge the existing legal status by focusing on what kind of institutions and laws would be necessary to redress the imbalance against woman in society. In a nutshell. Radical in this context means “as compared to” Liberal Feminism. There are differences.
pornography.like men. Radical Feminists believe. woman who perform household work are given respect and value by Radical Feminists. provides a basis for change that can address these private lives of despair. they assert that the liberal approach to woman does not come close to fostering an empathy for the world in which woman live. A Patriarchic legal system 14 . For example. Liberal Feminists seeks to establish broader notions: notions in the abstract. Radical Feminist want people to empathize with the plight of woman. Seeing and empathizing with the plight of what it means to be a woman. and domestic violence. Again. Radical Feminism does not totally discard liberal feminism. The latter can be seen in employment areas where due to pure physical differences. in terms of woman. but tangible enough for people to see.” Radical Feminists seek to address the private lives of woman. By private we mean issues that deal with rape. it is just that they want people to understand that simply asking for “equality” of rights is not necessary the answer. Radical Feminists also seek to show how Patriarchy overlooks the value of woman and their contributions to family and society. nor are they attempting to highlight fundamental inherent differences between men and woman that would preclude actual equality. woman are different form men. oppression and violence. Liberal Feminists who focus on “equality” of rights do on a level that is above the private lives of many woman. However. and actually perpetuates a legal system that is already embedded with male dominated assumptions to find solutions for “woman. Radical Feminists seek to humanize woman in way that brings to the forefront issues of a private nature that are not only real.
not isolation. especially as it relates to Liberal Feminism. The last point I wish to make about Radical Feminism. A fetus produced as a result of incest or rape. However. Radical Feminism attacks assumption like this by stressing that woman seek cooperation. is the question of “individualism” and “separateness. not isolation. so they too can live independent and separate lives. in part. not antagonistic. not promotion of rights per se to achieve so call impendent freedom. This is also seen as a form “of freedom” by Liberal Feminists and liberal thinkers in general.” Liberal Feminist's focus on obtaining equal right for woman. Mill. unlike men. Woman by nature then are cooperative. that woman are expected to perform this “natural role. but equal in terms of wanting to protect their own self interest. woman seek consensus. yet we have a legal system that simply assumes (and did for a very long time in child custody cases). but as a right to combat an invasion into her body in the form of a fetus.virtually discounts the value of “woman” work. Woman seek “unification” with others. Child rearing is also highlighted as another area that woman deal with on a daily basis. Radical Feminists want to cast away this assumption by stressing that woman. The law of contract for example sees separate partners who each come to the table not only as equal in power. in particular.” Abortion is strongly supported by Radical Feminist not only as a right of choice. inherent or are inherently “different” from men in that they actually seek not to be isolated. but to be part of a community.S. especially such writers as J. 15 .
Copyright © 2006 International Center for Legal Studies 16 . Thank you.I hope the above analysis and survey of Feminist Jurisprudence will allow you to define traditional jurisprudence and how Feminists writers dismantle male dominated legal systems and theories.
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