Philosophy of Law

Zara Janniere

620130965

#13 Critically discusses the feminist legal theory attacks on traditional jurisprudence.

Feminist Legal Theory and Its Role in the Creation of a New Jurisprudence

The patriarchy and masculine preferential biases have found a way to foist their way into

seemingly every institution in society systematically and law and jurisprudence are no exceptions

to that. Patriarchy is an analytical concept referring to a system of political, social, and economic

relations and institutions structured around the gender inequality of socially defined men and

women (Nash, 2009). Gender, as we know it today, is socially constructed through the male lens

and perpetuates male dominance without any modern biological support. In other words, what

we know to be the differences between men and women are heavily based on fallacy and for the

most part, cannot be legitimated via the use of genealogy. What makes these asinine

differentiations of gender so insidious is their use of it to formulate almost all the structures we

rely on for security, such as the law. The pervasive nature of the patriarchy makes it inescapable

without active and intentional working against it. Feminist legal theorists acknowledge this

systematic marginalization and make it their duty to rectify this inequality that impacts all

marginalized groups negatively by attacking traditional jurisprudence that was born out of

discrimination and perpetuates the marginalization of minority groups.

Burchard defines American feminist jurisprudence as “the study of the construction and

workings of the law from perspectives which foreground the implications of the law for women

and women’s lives.” Feminist legal theorists set out to dissect traditional jurisprudence and bring

to light all the laws that were made for a society that reflects patriarchal ideologies and upholds

male dominance that harm women and their livelihoods. The basis of feminist jurisprudence is

the decentralization of men and the highlighting of the experiences of women. The goal is to

create a reality where equality has been achieved and everyone is treated fairly and justly

defended in the court of law regardless of their gender (and race). The work of Feminist legal

theorists is important because of how disguised the gendered implications of seemingly

indifferent laws and practices can be. The behavioural differences between men and women have

been aggressively ingrained in our socialization so it is hard for us to pick up on social norms

and laws that have been created out of that. All feminist legal theorists have the shared goal of

creating a level playing ground between men and women, there are three major approaches or

lenses that are employed in doing so. These are the liberal, difference and radical feminism.

Liberal feminist legal theorists assert that women are deserving of, at the very least, the liberal

promises of law in a liberal regime. The promise of legitimate equality and impartiality in

jurisprudence, like cases, are treated alike. In addition, the promise of a spectrum of individual

autonomy. Liberal feminists argue that women are not anatomically different from men in their

abilities and should therefore be thought of accordingly. Women should not be barred from

decisions made about their bodies, limited in the careers that can be pursued, inhibited from

ownership of estates, forced to hand over their autonomy in marriage, barred from voting or

discriminated against in the workplace on an erroneous basis of gender differences. They assert
that women and men can share the same desires, needs and limitations and should therefore be

presented with the same protection and liberty to pursue as they desire.

The consequences of the longstanding discrimination and marginalization that women have

faced over the centuries have however consequently created lasting real-life situational

differences between women and men that make it what seems impossible to treat them equally

without disadvantaging women in doing so. With this realization arises the difference or cultural

feminist approach to jurisprudence that takes into consideration all the differences between men

and women that may have been created as a result of the inequality that has existed for so long

and continues to exist today. The equal splitting of financial obligations to offspring following a

divorce is more likely to pauperize the woman with a limited earning potential under patriarchal

norms. The option of marriage in a society that discriminates against women being employed is

coerced in nature no matter how “equally” liberated women are in that decision-making.

Unreflective general equality at this point would hurt women more than it would help them in

our journey to creating a jurisprudence that is no longer harmful to women.

Difference legal feminists call for a more intentional prompt to equality by considering the

situational and anatomical differences between men and women in the call for action, instead of

placing an unrealistic veil of equality over disproportionately advantaged parties. The basis of

their argument, similar to liberal feminists, is the belief that women are deserving of legitimate

equality and individual autonomy. Difference feminists however advocate for an assessment of

what equality will look like in attaining this shared goal. Not only filling in the blanks when

opportunities are missing but also considering and filling in the holes that were created by those
withheld opportunities that are now available so that women are not harmed when utilizing these

new opportunities and advantages. This looks like assessing advantage-specific requirements and

inherited roles following a divorce before splitting assets or the disproportionate earning

potential of partners in the decision-making of court-agreed child support. These nuances must

be contemplated in law-making to create a level playing ground under the socially created men

and women that exist today.

Difference feminist legal theorists also make it a point to explicate the inconspicuous attacks on

the safety of women that are not directly a result of men but rather the patriarchal laws that exist

that reflect the ideology that women are property. These laws create social norms that harm

women in their day-to-day lives, like catcalling, sexual assault, sexual harassment in the

workplace, rape and the list can go on. These norms being unchallenged by law foster the dogma

that women are responsible for protecting themselves from the inherent harm they invite onto

themselves by merely existing in a patriarchal society. Difference theorist maintains their

argument that jurisprudence should manifest itself as protection against these acts of harm

against women by creating laws that limit the opportunities for these events to take place. This

can look like making it impossible for a rapist to claim rights to a child that was created as a

result of their crime, placing legal consequences for sexual harassment in the workplace,

criminalizing the social norm of catcalling similar to the fining for use of indecent language.

Radical Feminist legal theory separates itself from and expostulates both liberal and different

feminism. Radical feminists believe that it is asinine of liberal feminists to allude to the existence

of any sort of equality between men and women and it is a distraction for difference feminists to
explore all the ways women are disadvantaged by the law. Radical feminists asseverate that the

one true enemy of women is the patriarchy that enslaves women within the patriarchal society

and the law is merely a tool utilized by it to uphold such a state of being and the law should be

instead utilized in the opposite manner to empower women. They reject the approach or lens of

demarginalizing women and embrace the concept of empowering women in an attempt to

deteriorate the patriarchy until its eventual collapse.

Radical legal feminists prioritise the focus on the patriarchy and its influences on the culture that

is then legitimized through law and perpetuated through the standards of institutions (West,

2005). The first step is acknowledging the power the patriarchy holds to disempower women

through the crimes make against women. The cultural impact it has on the contortion of the

minds of women makes it hard for them to even realize when they are being harmed, abused,

disadvantaged, harassed and influenced. Radical feminists opine that knowledge of this dilemma

is what can lead to advocating for legal changes and cultural shifts in the direction of

empowering women.

Ruth Bader Ginsburg is an example of the good that can be done as a consequence of placing

women in positions of power. Bader Ginsburg merely exists in the position that she has, causing

a shift in how women conceptualize themselves and how others conceptualize them. Ginsburg

made it possible with her assistance to the cause, for women to apply for mortgages and credit

cards without the cosign of a male through the passing of the equal credit opportunity act.

Ginsburg advocated for the autonomy of women over their bodies with her vote to keep Roe vs

Wade. The recent overturn of Roe vs Wade has shown us the importance of having a woman that
advocates for the rights of other women in a position of power. Her vote in the case Obergefell

vs Hodges resulted in the granting of an equal opportunity for queer women and other members

of the LGBTQ community to access marriage regardless of their sexuality.

We can draw quite a few examples of the way this has impacted a change in traditional

jurisprudence already. The most talked about and arguably most impactful is the passing by

congress in the early twentieth century of the nineteenth amendment granting women the right to

vote. This followed the long operational efforts of feminist legal theorists in the trot to woman

suffrage starting decades prior in the mid-nineteenth century. The male-only voting laws that

existed prior were based on the unsound arguments of men being inherently more logical than

women. We now know this law to be a systematic method of upholding the status quo that

existed then and still exists today.

In conclusion, the feminist legal theory asserts that traditional jurisprudence was born out of

patriarchal, racist, ableist, misogynistic and capitalist ideologies and used as a tool to uphold the

status quo that still exists today. Feminist legal theorists aspire to dismantle traditional

jurisprudence by explicating the law and attacking all laws that harm women as well as

advocating for laws that provide women with the protection, impartiality and autonomy they

deserve and have been promised. Although segregated into different sects of liberal, difference

and radical feminists, all feminist legal theorists share the same goal of completely reforming

jurisprudence by attacking traditional jurisprudence and creating a modern jurisprudence that no

longer reflects the harmful ideologies of yesterday but rather the inclusive doctrine of today that

serves and protects all.

Resources
 West, Robin. L (2005) Feminist Legal Theory

Retrieved from

https://www.encyclopedia.com/humanities/encyclopedias-almanacs-transcripts-and-maps/

feminist-legal-theory

Burchard, Melissa (N/A) Feminist Jurisprudence

Retrieved from

https://iep.utm.edu/jurisfem/

Sohngen, Tess (2017) 11 Ridiculous, Sexist Laws That Still Exist in the US

Retrieved from

https://www.globalcitizen.org/en/content/sexist-laws-in-the-us-in-2017/

Smith, Patricia (2017) Feminists Philosophy of Law

Retrieved from

https://plato.stanford.edu/entries/feminism-law/#HumRig

Nash, C.J (2009) Patriarchy in International

Retrieved from Encyclopedia of Human Geography

https://www.sciencedirect.com/topics/social-sciences/patriarchy