Feminism

Question 3

Critically evaluate the House of Lords judgment in R v R (rape: marital exemption) (1992) from a radical feminist
perspective.
General remarks
This question was generally answered well. Students demonstrated engagement with the scholarly texts and aimed
to relate them to the question. In their
introductions, it was open to students to set out how they approached the question
and to clearly set out the structure they used to answer this. So some students focused almost exclusively on radical
feminism, while others spent more time explaining all the different orientations in legal feminism before focusing
more specifically and, for the majority of their answer, on radical feminism. With the case concerning rape and
marriage, there were many opportunities for students to discuss issues argued by feminists to be of great
importance, including the institution of marriage, what exactly consent to intercourse means, the inequality of men
and women, women’s liberation and bodily integrity and respect.

Law cases, reports and other references the examiners would expect you to use The case R v R and some other case
law referred to within its judgment. However, a detailed analysis of this other case law was not required. Any of the
relevant materials from Chapter 15 of the module guide.

Common errors
Unfortunately, there were quite a few students who seemed to provide ‘model answers’ listing different types of
feminisms and without adequate analysis linking
these to marriage and women’s position within it, consent and radical feminists’
scholarly work. Such answers are to be avoided. Lists of different types of feminism are descriptive and fail to show
the engagement, reflection and analysis required at this level of study.

A good answer to this question would…

show an in depth knowledge of radical feminism and of MacKinnon’s work in particular. They would relate this to the
set case and the issues of consent, bodily
integrity, and autonomy, individual rights, and the meaning of marriage, and sex
within it. Many answers achieved high marks and students are to be commended
for their engagement with the materials, showing passion and interest in the subject matter.

Poor answers to this question…

gave outlines to feminist legal theories and or boldly made assertions in a journalistic fashion or stated the basic
facts of the case with a paragraph about
women’s rights in somewhat general terms.
==

Question 6

‘The best feminist critique of law is that provided by radical feminism.’ Discuss.
General remarks
Students were not permitted to answer this question and Q3. Students needed to clarify and define radical feminism
in law. This can be done by explaining what it is by reference to the other feminist legal theories: these can therefore
be explained
and discussed in answers. However, emphasis must rest on radical feminism,
focusing on the ways law ignores or fails to address the concerns of oppression, dominance, power, patriarchy; and
the problems with the structure of law that sustain this dominance, etc. all according to radical feminists working in
law.

Law cases, reports and other references the examiners would expect you to use Any of the relevant resources from
Chapter 15 of the module guide; particular focus on MacKinnon’s work from Toward a feminist theory of the state
and similar; more recent additions to the guide from The Ashgate research companion to feminist
legal theory.

Common errors
Failure to engage with the materials other than mechanically describing different feminist theories with some
emphasis on radical feminism was a common error.

A good answer to this question would…

consider in depth MacKinnon’s position that when law is most neutral, objective and impartial, it is most male. They
could also have analysed MacKinnon’s comparison
between sexism and patriarchy with work and Marxism. They would take a position at the outset and try to
consistently and coherently argue it throughout their answer
backed up by the many authorities referred to in the module guide. Examples were
also provided in a blog on the VLE and reference could be made to these.

Poor answers to this question…

listed different feminist theories, sometimes inaccurately with incorrect attribution and failed to focus on answering
the question asked.
==
Question 3

Critically evaluate the House of Lords judgment in R v R (rape: marital exemption) (1992) from a radical feminist
perspective.
General remarks
This question was generally answered well. Students demonstrated engagement with the scholarly texts and aimed
to relate them to the question. In their introductions, it was open to students to set out how they approached the
question
and to clearly set out the structure they used to answer this. So some students
focused almost exclusively on radical feminism, while others spent more time explaining all the different orientations
in legal feminism before focusing more specifically and, for the majority of their answer, on radical feminism. With
the case concerning rape and marriage, there were many opportunities for students to discuss issues argued by
feminists to be of great importance, including the institution of marriage, what exactly consent to intercourse
means, the inequality of men and women, women’s liberation and bodily integrity and respect.

Law cases, reports and other references the examiners would expect you to use The case R v R and some other case
law referred to within its judgment. However, a detailed analysis of this other case law was not required. Any of the
relevant materials from Chapter 15 of the module guide and particularly the work of Catharine MacKinnon.

Common errors
Unfortunately, there were quite a few students who seemed to provide ‘model answers’ listing different types of
feminisms and without adequate analysis linking these to marriage and women’s position within it, consent and
radical feminists’
scholarly work. Such answers are to be avoided. Lists of different types of feminism
are descriptive and fail to show the engagement, reflection and analysis required at this level of study.

A good answer to this question would…

show an in depth knowledge of radical feminism and of MacKinnon’s work in particular. They would relate this to the
set case and the issues of consent, bodily
integrity, and autonomy, individual rights, and the meaning of marriage, and sex
within it. Many answers achieved high marks and students are to be commended
for their engagement with the materials, showing passion and interest in the subject matter.

Poor answers to this question…

gave outlines to feminist legal theories and or boldly made assertions in a journalistic fashion or stated the basic
facts of the case with a paragraph about
women’s rights in somewhat general terms.
==
Question 6

‘Feminist legal theories offer good critiques of the liberal legal system but do not offer a satisfactory alternative.’
Discuss.
General remarks
Students were not permitted to answer this question and Q3. Students needed to demonstrate their knowledge of
different feminist theories as well as the points they
may have in common in criticising the liberal legal system. Students needed to evaluate these theories, not list them,
to show if any of these theories provide an
alternative theory to the liberal legal system. There needed to be explanation
therefore of liberal feminism, of radical feminism, of the ethic of care or cultural feminism, black critical race
feminism and postmodern feminism. There are good readings in the The Ashgate research companion to feminist
legal theory referred to in the Chapter 15 of the module guide. All of the points students make need to be backed up
by evidence with proper accreditation to the theorists or critics.

Law cases, reports and other references the examiners would expect you to use Any of the relevant resources from
Chapter 15 of the module guide; particular focus on MacKinnon’s work from Toward a feminist theory of the state
and similar; more recent additions to the guide from The Ashgate research companion to feminist.
legal theory.

Common errors
A common error was to demonstrate a somewhat mechanical description of different feminist theories. It was also
necessary to explain what the liberal legal
system means or is and some students did not sufficiently do this or missed this
altogether.

A good answer to this question would…

take a position in the introduction and argue it throughout, while also setting out knowledge of all the arguments.
For example, some students argued that the only feminist legal theory to offer a strong alternative was radical
feminism (N.B. you do
not have to present this view). Having set out all the relevant feminist critiques as
mentioned above, they then proceeded to argue that radical feminism and MacKinnon’s work in particular
presented a different way forward for law by explaining its focus on how law ignores or fails to address the concerns
of oppression, dominance, power, patriarchy and the problems with the structure of
law which sustain this dominance, etc. but that law could be used as a tool to demolish the ‘master’s house’ (A.
Lorde).

Poor answers to this question…

listed different feminist theories, sometimes inaccurately with incorrect attribution and failed to focus on answering
the question asked.

Student extract
Feminism advocates for the equality of women, in which there has to be no discrimination at all in the law. Even
though there are different waves thus radical, liberal, cultural feminism, they all want the same things but they
advocate for it differently…

Despite there being Acts like Sex Discrimination Act, Equal Pay Act, women are still prejudiced by the legal system.
The legal system despite having all these laws which purports [sic] to be universal and for all, in actual fact [they] are
not. The law does not seem to work fairly in private areas like…issues of domestic violence…

Mary Wollstonecraft advocates for the personhood of women, she believes that women should be able to make
their own decision in order for them to have the independence and value…

Comments on extract
A low First was awarded for this answer from both examiners.

From this extract, representing different parts of the essay, it can be seen that the student explains some of the
complex yet general points of feminist legal theory: for example equality. The answer provided a detailed analysis of
many relevant scholars’ work – here we see mention of Wollstonecraft, a classic liberal position presenting an
immanent internal critique of the liberal legal system. It also uses as an example some relevant legislation, in this
instance the Equal Pay Act.
==
Question 11

‘Sexuality is to feminism what work is to Marxism: that which is most one's own, yet most taken away.’ (Catherine
MacKinnon)
Discuss.
General remarks
Students would have been expected to be familiar with this quotation, which they should have taken as a prompt to
discuss feminist theories of law. The question,
however, required more than listing these strands. It asked candidates to explain why and how sexuality is so central
to feminism approaching it from the perspective
of the various strands of feminist legal theory, with which students are familiar

Law cases, reports and other references the examiners would expect you to use
Margaret Davies’ ‘Unity and diversity in feminist legal theory’ provides a useful resource on feminist legal theory.
Students were at liberty to draw on any of the resources of Chapter 11 of the subject guide depending on the angle
from which
they chose to approach the question.
Common errors
Once again, model answers abounded here. Uncritically and unreflectively listing strands of feminist jurisprudence
without relating them to the question simply does
not suffice. Use of examples of application of FLT are welcome but this needs to be done in a relevant and relatively
sophisticated way.

A good answer to this question would…

explore what the quotation means. In what way is sexuality so central to feminism? What is MacKinnon’s point
about alienation from one’s sexuality? How might this
alienation happen and how is the law complicit in it? Is there any way in which the law might help to reverse the
situation? Excellent students would use MacKinnon’s
dictum to criticise liberal FLTs for believing that gender difference can be addressed
through equal treatment by the law. They might also consider the risk of and in essentialising gender. Students who
made more of the parallel between Marx/labour and feminism/gender were appropriately rewarded.

Poor answers to this question…

give rough outlines of FLT strands without addressing the question.

Student extract
Feminist legal theory is working for emancipation of women in a society driven by patriarchy (male dominance).
Feminists claim that women are

treated with oppression in all sphere of life be it private, public, social, political etc.

To achieve emancipation for women they suggest deconstruction and reconstruction of important concepts like
power, domination etc. They claim that legal system are designed to accommodate men and that they does not
account for women perspective and so does not compensate harm suffered by women.

Feminists employ what they call tactics by highlight the issues of women. Firstly they highlight injury suffered by
women because of their status of subject to male domination. Injuries include but not limited to rape, sexual abuse,
genital mutilation, honour killing etc. Example of Mukhtara Mai, Malala Yousafzai and saving faces are standout and
highlights the wide gap that exist between two sexes. Injuries are also highlighted for consciousness awareness and
realising the plight of women and standing up for rights.

Comments on extract
What the extract does poorly: The grammar and syntax in the extract are rather poor. It also tends to be rather
repetitive; it raises the same point several times. In terms of substance, given that this is the introduction to the
answer, one would have
expected that a link be drawn to the question specifically. It therefore lacks focus.
The two examples, welcome as they may be, should have been discussed to a higher degree of sophistication and
integrated better with the theory. Finally, the extract does not draw the link of feminism to law sufficiently.

What the extract does well: It identifies some basic tenets of feminist legal theory as well as some strategies of
subversion of patriarchy. Thus it gives the reader a sense of what is to follow in the answer.
==
Question 11
‘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.’ (Margaret
Davies)
Discuss.
General remarks
The question does not invite a general discussion of feminist legal theory; students were expected to focus on radical
feminism (although criticism from other strands of
feminist legal theory could have been employed).

Law cases, reports and other references the examiners would expect you to use
Margaret Davies’ ‘Unity and diversity in feminist legal theory’ (from where the quotation was drawn), provides a
useful overview of feminist legal theory. The resources on radical feminism in Chapter 15 of the subject guide could
have been
used depending on the tack that each candidate took on the question.

Common errors
Too many students regurgitated stock answers/surveys of feminist legal theories.

A good answer to this question would…

discuss the main tenets of radical feminism and why they are inconsistent with the liberal approach to law reform
from a feminist perspective. By way of critique,
excellent students will raise the suspicion of essentialism. Examples would have
been very welcome but they would have had to be examples of the ways in which male domination is structurally
organised through the law and the state.

Poor answers to this question…

would provide unreflective, memorised surveys of feminist legal theory, which do a disservice both to feminist legal
theory and to students.
==

‘Of all the strands in feminist legal theory the liberal one is best equipped to make concrete suggestions for legal
reform.’

Discuss.

General remarks
You should be familiar with the various strands of feminist legal theory. The question, however, requires more than
listing these strands. It asks specifically whether liberal FLT is well-placed to instigate legal reform, which will redress
injustices against women, without departing from basic feminist tenets.

Law cases, reports and other references the examiners would expect you to use
Davies, M. ‘Unity and diversity in feminist legal theory’ (2007) 2(4) Philosophy Compass 650–64 offers a helpful
account of strands and debates in feminist legal theory. On liberal feminism, the work of Nicola Lacey is still relevant.
The more
radical FLT writers (such as McKinnon and Dworkin) could be used to argue against
liberal feminism.
Common errors
Model answers were far too common again here. To repeat, one might (only might) get enough right to pass by
using a model answer but one will certainly not get a good mark. Use of examples of application of FLT are welcome
but this needs to be
done in a relevant and relatively sophisticated way. It is not enough simply to
mention some facts or a case name.

A good answer to this question would…

Although the question requires you to individuate liberal FLT and distinguish it from other strands, this would not
suffice. You have to show why liberal FLT may be well- placed to provide the conditions for law reform. Excellent
answers would raise
objections grounded in other FLT strands.

Poor answers to this question…

gave rough outlines of FLT strands without addressing the question.

Student extract
The central issue which every feminist group deals with is women’s rights
and oppression. Liberal feminism advocates towards the sameness approach between men and women, like equality
in every single aspect. In a phenomenal case at Illinois, a woman was prevented from entering the
Illinois bar for she was a woman. Liberal feminists strongly detest to this idea
that men should be treated superior to women. Their stand was something like if men smoke, we should smoke too;
if men do not carry babies, we will not as well. However, the problem with the concept of liberal feminism is that
there is still a notion of coming up to the latter to conform to the qualities of men –there is no essential factor that
connotes women are human beings. Even in this school of feminism, although they speak of equality, in some way or
the other way they take men to be the threshold. This is not what feminism broadly wants to achieve.

Comment on extract
There are some problems in this extract. For one, at times the writing style makes the answer difficult to follow.
There are also some substantive issues. For instance,
it is not the case that liberal feminists argue ‘if men do not carry babies, we will not
as well’. In fact, it’s hard to understand what this means. A more sophisticated outline of what liberal feminism is
about and how it tries to achieve substantive equality would have been welcome. There are certain things that the
extract does well though. Most importantly, it highlights one possible problem with liberal feminism, namely that it
might not be entirely clear on what it is that it demands equality to. This idea is quite well put in the final two
sentences of the extract. The answer received a good mark.
==
Question 11

‘Feminist legal theory is bedevilled by internal disagreements between feminist legal theorists. As a result, feminist
legal theory has forgotten to take up a common front against the exploitation of women by contemporary legal
systems.’

Discuss.

General remarks
As most candidates know, it is common to distinguish between different strands in feminist legal theory. What are
the differences between these strands? Are they bridgeable? Is it possible to speak of feminist legal theory, even as
an aspiration, as
a homogeneous theoretical strand revolving around the aim of redressing the
injustice against women?

Law cases, reports and other references the examiners would expect you to use
Which literature to use depends on the angle which you decide to take. Davies, M.
‘Unity and diversity in feminist legal theory’ gives a useful guide to the state of feminist legal theory.

Common errors
Once again, regurgitating the same model answer without relating it to the question. Why is, say, the case of
Ahluwalia relevant to what you are required to talk about in
this context? Or, if one is going to differentiate between radical and liberal feminism for example, one must also
show why the difference is so fundamental.

A good answer to this question would…

describe why feminist legal theorists disagree with each other, and evaluate this disagreement metatheoretically. Is
such internal disagreement a strength or a
weakness of feminist legal theory? Ought legal theorists to take into account the
potential political impact of their theories – and thus perhaps temper their internal disagreements for political
purposes – or is this not a justifiable approach to the doing of theory? Good answers would articulate the bases for
disagreement. Excellent answers would discuss the metatheoretical issues.

Poor answers to this question…

simply listed one theory after another, without taking into account where the different theories disagree.
==
Question 10

‘If feminist legal theory necessarily entails a conception of women as essentially different from men, then it ought to
be rejected without further ado.’

Discuss.

General remarks
The question refers to one specific criticism of feminist legal theory. Namely, that it relies too much on an
essentialism regarding gender which draws an unbridgeable division and also makes legal regulation all but
impossible.

Law cases, reports and other references the Examiners would expect you to use
All textbooks as well as the subject guide provide outlines of various strands of feminist legal theory. Some of the
thinkers, to whose work you could refer, include
Lacey, Gilligan, Williams, Dworkin, MacKinnon.

Common errors
Many candidates ignored the question and only provided outlines of the three strands of feminist legal theory
singled out in the subject guide.
A good answer to this question would…
discuss whether some versions of feminist legal theory are guilty of essentialising women; why this is a problem;
how alternative versions of feminist legal theory try to steer clear of essentialism. Excellent answers would make a
foray into
intersectionality.

Poor answers to this question…

would only list different kinds of feminist legal theory without relating them to the question. They would also
oversimplify and reproduce misunderstandings of
feminist arguments as arguments of ‘man-haters’ and the like.

Question 11
What is the most useful conception of rights? General remarks
An open-ended question, which allowed candidates to select the theory of rights
which they think best captures what rights are and what they ought to be.

Law cases, reports and other references the Examiners would expect you to use
Hohfeld, Raz, Penner, MacCormick.

Common errors
There was a little confusion over this question. Many candidates failed to see that it refers to the theories of rights
and instead talked about Dworkin’s rights thesis,
Marxism, feminism and other unrelated issues.

A good answer to this question would…

At the very least, candidates should be able to display an understanding of the will/interest theories of rights and/or
the Hohfeldian account of rights. Good scripts might discuss the distinction between explanatory and normative
theories of rights.
They should also offer a defence of their preferred conception of rights and a
critique of its competitors.

Poor answers to this question…

misunderstand the question altogether by misreading to what it refers to.
==
Question 11

‘Feminist legal theories may offer compelling critiques of law but they fail to offer adequate insights that can act as a
foundation for legal reform.’

Discuss.

General remarks
What the question asks is whether feminist legal theory has more than only critical potential (i.e. whether it is
possible to revise the law in light of feminism without
having either to revise it completely or to do away with the very idea of law in the
first place).
Law cases, reports and other references the Examiners would expect you to use
All textbooks as well as the subject guide provide outlines of various strands of
feminist legal theory. Some of the thinkers to whose work candidates could refer include Lacey, Gilligan, Williams,
Dworkin and MacKinnon.

Common errors
Too many candidates simply outline liberal, cultural and radical feminism (some also include intersectional
approaches to feminism too) without relating all this
specifically to the question. Many candidates also referred to real world examples
(which is generally commendable) but failed to apply theoretical points.

A good answer to this question would…

outline what it is that makes a legal theory ‘feminist’. It would then outline the distinctions between various feminist
legal theories and discuss whether their
critiques of the law are indeed compelling as the question suggests. In discussing whether feminist legal theory is of
any practical consequence the answer should
display a deeper understanding of the various strands of feminist legal theory (e.g.
the different institutional structures presupposed by, say, liberal and radical feminist legal theories) rather than
simply providing examples without a theoretical background.

Poor answers to this question…

would only list different kinds of feminist legal theory without relating them to the question. They would also
oversimplify and reproduce misunderstandings of
feminist arguments as arguments of ‘man-haters’ and the like.

Student extract
A good starting point would be the tactics given by feminists in order to establish a feasible post-patriarchal society.
One such compelling argument is the recognition of essentialism, which prescribes the notion of internal
differences in men and women, both psychologically and physiologically.
Here reproductive health rights could be established in such a way that protects the bodily integrity of women. The
concept of essentialism itself is a sufficient ground for law reform in areas such as abortionp, surrogacy and genital
reproductive rights. In countries like Sri Lanka abortion is such a contentious area that recourse is never available to
a rape victim, who gets
pregnant as a result of the criminalised act. The law does not recognize the violation of her bodily integrity. They are
indirectly allowing by not allowing her to terminate the pregnancy.

Comment on extract
This is what this extract does well: it correctly identifies the aim of feminism to move to a post-patriarchal form of
legal regulation; it identifies one key feminist argument
that has to do with the essential differences between men and women; it moves
from that to argue that in light of these differences, the law ought to be adjusted and such an adjustment will not be
an affront to the principle of equality or the rule of
law; it uses a real world example to illustrate the point.

The answer could be improved by: a more critical discussion of essentialism as a foundational feminist argument; a
more detailed discussion of the example so as fully to apply the theoretical insight.

The answer earned a 2:1 mark.

==
Question 6

Critically discuss whether feminist legal theory inescapably relies on an essentialist understanding of gender.

General remarks
This question concerns the way feminists conceive of gender. If the feminist critique of liberal law consists in
questioning the foundational assumptions of freedom and equality that purportedly underpin liberal law, does this
commit feminists to the view that there are essential differences between genders? And, if so, is this to commit a
similar fallacy as liberal thinkers?

Common errors
Failing to appreciate what an essentialist understanding of gender concerned.

A good answer to this question would…

identify what an ‘essentialist’ perspective on gender involved, and then discuss why it might undermine (or, perhaps,
strengthen), different feminist views. This was an occasion to contrast liberal, radical, cultural and post-modern
feminist views.

Poor answers to this question…

provided an overview of feminist theory without addressing the issue of essentialism.
==
Question 6

How, if at all, do men differ from women in a way that the law should regard as relevant?

General remarks
This question could be well answered by any candidate who attempted Sample examination question 4 on p.261 of
the subject guide, which it closely tracks. This is a question in which candidates may quite reasonably consider the
various strands
of feminism, for each might answer the question differently.

Common errors
The most common error was to take the question to ask for a review of various laws which can plausibly be claimed
to be sexist.

A good answer to this question would…

first of all, identify some differences between men and women which might plausibly give rise to different legal
treatment. Good or excellent answers might well consider the sex/gender distinction, and discuss the socially
constructed nature of the latter (and thus the possibility that, with different social constructions we might overcome
the worst aspect of gender differentiation). Candidates who have read Fine, C.

Delusions of gender: the real science behind sex differences (London: Icon Books,
2011), listed in the Recent developments, could bring her views to bear on this issue. Good or excellent answers
could also draw upon the laws concerning rape, pornography and pregnancy, to illuminate the idea that the law
could relevantly take into account the disparate impact of these laws on women. There is much scope in this
question for candidates to show a deep and subtle understanding of feminist legal theory.

Poor answers to this question…

simply avoided the question and recited a prepared summary of the different
‘feminisms’: liberal, radical, etc.
==
Question 12
Should the law regulate sexual preferences? General remarks
An open-ended question, which allows candidates to be creative and exercise their
critical faculties. They can obviously use Chapter 14 of the subject guide (Liberalism and law) but they can also draw
on other parts of the course (e.g. natural law; feminism).

Common errors
To regard the question as one about feminist theory and nothing else.

A good answer to this question would…

display a good grasp of the theory the candidate employs to tackle the question, as well as an awareness of the
arguments against their preferred theoretical framework. For example, this was a good opportunity to consider
liberalism alongside feminist critiques of liberalism.

Poor answers to this question…

failed to grasp clearly that the question was about the regulation of sexual preferences.
==
Question 10

‘The thing that most clearly differentiates the various feminist theories of law is the extent to which they regard the
female body as the focal location of male oppression and female subordination.’

Discuss.

General remarks
This question relates specifically to the passage on page 211 of the subject guide,
‘Tactic 1 Highlighting women’s injuries and actual harm’ but also to the wider issue about what constitutes the most
prevalent, or pervasive, or significant forms of sexist discrimination.

Common errors
A significant number of candidates failed to interpret the question well, or at all. See
‘Poor answers to this question’, below.

A good answer to this question would…

See that this question does not just focus upon so-called ‘radical’ feminism, with its emphasis on the sexual and re-
productive, and so ‘body-centred’ in that sense; but also on some aspects of ‘cultural feminism’, for which the
embodied and physically
connected aspects of women’s experience provide a central point of theoretical
departure.

Good or excellent answers will reveal thought about what the question is getting at. Recent developments can be
addressed here, in particular MacKinnon’s pointed responses to ‘post-modern’ critiques of her work, and to Fine’s
criticism of recent claims about the genetically determined cognitive psychological differences between genders.

Poor answers to this question…

Only weakly related the question to the normal shopping list of ‘liberal’, ‘radical’,
‘cultural’, ‘post-modern’ feminisms, without really addressing the quotation. It is well past time for candidates
answering questions on feminism to realise that trotting out the same rote run-through of the different ‘brands’ of
feminism is a losing strategy.
==
Section B
Question 4
„Critical Race Theory and feminist legal theory share the same fundamental insight: the laws that define political
community always create a class of the
excluded or marginalised. The critical moment comes when the excluded and
marginalised challenge the laws that subordinate them.‟
Discuss with reference to:
a) Critical Race Theory OR b) feminist legal theory OR c) both of the above.
General remarks
Whether one approaches this question through Critical Race Theory (CRT) or feminism, the starting point would be
to agree with both parts of the statement for discussion, although someone critical of one or both these traditions
might want to quibble over the word ‘insight’, perhaps preferring ‘perspective’; political community can be seen as
founded on laws that exclude or marginalise people on either the basis of race or gender.

Common errors
There were no common errors.

A good answer to this question…

Would have elaborated the distinction between exclusion and marginalisation, and focused on the latter. The
problem that concerns modern critical thinkers is not so much the exclusion from community, as the inclusion on
limited terms. This can be studied in relation to both apartheid legal systems that distinguish between rights for
‘whites’ and lesser rights for ‘non-whites’ or the way in which women arguably suffer
from supposedly gender neutral legal categories. In relation to the second part of the statement, both forms of
critical thought are also indeed concerned with the plasticity of law, and the extent to which laws can be changed to
accommodate the interests of women or ethnic minorities. These points could be developed through a brief
engagement with anti-discrimination law, or the attempts by feminist scholars to create new kinds of rights.

Poor answers to this question

Gave memorised essays on CRT or feminist legal theory.
==
Question 4

„Critical Race Theory and feminist legal theory both suggest that social and economic marginalisation cannot be
countered through law. What is necessary is a movement for political change.‟
Discuss with reference to:
a) Critical Race Theory OR b) feminist legal theory OR c) both of the above.
General remarks
A very straightforward question. There are certainly currents within both feminism and Critical Race Theory (CRT)
that would come to the conclusion expressed in the quotation, but the statement is almost certainly too broad to
adequately describe either feminism or CRT. Both ‘movements’ are characterised by lively debates
about ‘when to litigate and when to march’.
Common errors
There were no common errors in interpreting the question.

A good answer to this question…

Would have offered some comments on how feminists or CRT scholars identify the factors that allow courts to
effectively provide remedies that make a difference to social and economic marginalisation; a debate that could be
focused around the champions and opponents of anti-discrimination law and strategies. Also to be discussed would
be those scholars who hold the law to be a failure, and press the need for political change.

Poor answers to this question…

provided a great deal of memorised essay going through the different approaches of CRT scholars or the different
‘schools’ of feminism without bringing any of this material to bear on the question.
==
Question 12
„All sorts of legal theories, such as Marxist legal theories or feminist legal
theories to take but two examples, would make no sense at all unless the
central claim of legal positivism is true.‟
Discuss.
General remarks
All candidates should have realised that Marxist and feminist theories of law largely concern the criticism of positive
law, and that the quote points out that these theories seem to make sense only because the law does not inherently
have some sort of moral merit, but is a social institution which can oppress just as much as it can foster the interests
of its subjects. The question is, then, does this provide support for legal positivists?

Common errors
There were no very common errors, but some candidates did misunderstand the question to the extent of thinking a
summary of feminist and Marxist legal theories was required.

A good answer to this question…

Would have been clear about what the central claim of legal positivism is (that the validity of a law is not determined
by its merits). Very good or excellent answers would have considered the sort of reply Dworkin or Finnis might make.

Poor answers to this question…

Were unclear about what legal positivists hold, being unspecific about ‘connections’
or the lack thereof between law and morality.
==
Question 7
“Law is no more than power.”
Discuss with reference to feminist legal theory or to critical race theory or to both.
Perhaps surprisingly, this question was generally not answered very well. The vast majority of the candidates who
chose the question answered with reference to feminist legal theory, and far too many of those answers simply
repeated the same old ‘liberal, radical, difference/cultural, post-modernist’ run-down of the different feminist
perspectives. What the question required, however, was for an answer to isolate those claims of feminism which
relate the law to a system of power, and how that system of power is maintained, etc. For example, a good answer
might examine how different feminist accounts of law explain constructions of gender which tend to advantage
men rather than women. Similarly, an answer focussing on CRT might engage with the arguments about the
nature of the construction of race and how this interrelates with supposedly ‘colour blind’ rules to perpetuate racist
institutions. Answers of both kinds might futhermore have interrogated the truth of the statement. Is the law really
no more than power? Is, for example, legal reasoning just a charade? Does the law never provide any tools of
resistance for the oppressed?
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Question 7
“The point of criticism is to see through legal ideology to reality.”
Discuss with reference to feminist legal theory or to critical race theory or to both.

This question required an understanding of the concept of ideology and a candidate that has understood the
debates in feminist legal theory or CRT should have that understanding. Feminist or CRT arguments both address
the ideology of law that blinds indviduals to the reality of sexism or racism; the systematic denigration of ‘lesser’
forms of being. Both schools have attempted to develop intellectual and critical resources that show how law either
blinds us to these realities, say with a posture of ‘equal rights’, or perhaps, positively contributes to the maintenance
of sexism and racism.
Very few candidates answered with reference to CRT, but there were many answers with reference to feminist legal
theory. Unfortunately far too many of these were stock answers avoiding the matter of ideology.
==
Question 6
‘Feminism reminds legal theory that there is no neutral standpoint, and no objective knowledge. Claims to truth or
authority always are underpinned by power; and power is inevitably that of men over women.’
Discuss.

As with answers to the last question, answers divided into those which made a serious attempt to address the
question, and those which were simple regurgitations of prepared essays on feminism. An answer to this question
would draw on material covered in activity 15.1 and there is simply no scope in the question for submitting a rote
essay rehearsing the development of different forms of feminist thinking. The question can be broken down into the
claims that there is no objective knowledge, and that this is so because knowledge reflects power relations. It
would be wise to agree generally with the statement. Feminists do argue that claims to objective knowledge
obscure the realities of gendered power. The discussion of the five tactics in section 15.1 of the subject guide
provides good material to build the answer, as would a close examination of MacKinnon’s work, which makes the
claim that objectivity is gendered
(and male) and reflects inequalities in power central to her theory.
==
Question 6
‘Feminist theory of law is so compelling because it has developed the ability to criticise and update itself.’
Discuss.

Many candidates provided good answers to this question, although too many took it as simply an opportunity to
give an overview of the different strands of feminist thought. An answer to this question could draw plentifully on
the material in sections 15.2, 3 and 4 of the subject guide. Whether or not a candidate agreed with the statement –
no candidate needs to find feminist theory of law compelling – it is undoubtedly true that the development of
feminist thought, in particular the development of different strands, has often been precipitated by criticism of
prior feminist analyses. For this reason, some good answers reviewed the conventional story of the development of
feminist thought (from liberal to radical and black/ethnic minority feminisms) to show how radical and
black/minority feminisms were critical of the assumptions made by the earlier liberal feminists. Does this make
feminism compelling? The quote suggests that it has become a tradition, with the resilience to question itself and
adapt its insights to new realities.
==
‘Feminist theory aims not to promote the feminine, but to undermine masculinist ideology; indeed, notions of
femininity are only the oppressive opposite of the dominant masculinity.’

Discuss.
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Discuss whether feminist legal theory is still relevant.
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‘Liberal feminism tends to adopt an individualist model of human beings, a model which many radical,
socialist, and postmodern feminists have found deeply problematic.’ (Margaret Davies).

Discuss.
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