Course:Law3020/2014WT1/Group F/Feminist Jurisprudence

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Feminist Jurisprudence

Feminism does not offer a univocal world view. Like legal realism, feminist theories of law form a cluster of related views rather than a single school of thought. Its approach to law concentrates on the experiences of women individually and collectively within particular contexts, giving particular focus to the ares of law affecting women. However, there are two tenets generally espoused by all feminists, regardless of their methodological approach. The first of these theses is that the current global order is premised on a patriarchal structure in which men systemically and systematically dominate women. While this patriarchal structure may appear natural it is actually socially constructed. The second common tenet espoused by feminist theorists is that patriarchy ought to be eliminated because it is morally unjustified and negatively affects women. Jurisprudentially, feminists attempt to understand how patriarchal legal structures affect women and how this can be changed to achieve to sex equality. Part of this feminist approach to jurisprudence involves challenging present legal structures as social constructs and falsehoods that contribute to the invisibility of sex and gender inequality.

Law as a Patriarchal Institution

Smith’s article explains multiple theoretical approaches to feminist jurisprudence and the common core that underlies these approaches. According to Smith, feminist jurisprudence is the analysis and critique of law as a patriarchal institution. This is the common thread running throughout each theoretical approach.

The first of the approaches addressed by Smith is classic liberal feminism. Liberal feminists associated women’s rights and social change with equality. Inspired by the writings of J.S. Mill, they argued that given the premise of individual liberty and moral equality, men and women should be treated equally and granted participation in political, educational and economic life. Building on classical liberal feminism, modern liberal feminists directed their focus towards family issues, addressing the socialization of children, reorganization of family life, stereotypes and reformation of state institutions.

Departing from liberal approaches to feminism, radical feminists posit that patriarchal oppression of women is a result of socially constructed gender roles. According to the radical approach, a solution to patriarchal oppression rests in a reappraisal or elimination of current gender constructs. Disregarding universal feminist approaches, postmodern feminism relies on deconstruction to critique systems of thought such as law. This approach argues that the root of patriarchal oppression is patriarchy’s reliance on a single truth in developing social constructs such as law. Another theory addressed by Smith, which contradicts previous feminist theories, is relational feminism. This approach addresses patriarchal oppression from the premise that men and women are fundamentally different and experience different moral development. Appreciation and recognition of the differences between men and women is more effective at overcoming patriarchy's deleterious effects than is equality and assimilation. Underlying each of these theories is the pervasiveness of patriarchy. Because the standard of measure in society is male, law reflects a patriarchal world view. And ‘because law is a somewhat selective, delayed action mirror, feminist jurisprudence is concerned with correcting the current lag.'

Law as Male Power

Catharine Mackinnon

According to Catharine MacKinnon, law perpetuates oppression of females because of its institutionalization of male power and supremacy. Male-centric jurisprudence has resulted from this institutionalization of male power and supremacy. According to the current social order, the male position is the proper relationship between life and law. While the law is formally equal, Mackinnon argues that ‘...the law guaranteeing sex equality requires, in an unequal society, that before one can be equal legally, one must be equal socially.’ Society’s current sex inequality calls for society to change in order for it to meaningfully recognize sex equality in law.

Application to A.C. v Manitoba

While Smith articulates multiple feminist approaches to jurisprudence, she notes the consistencies shared by each approach. One of these commonalities is that the law reflects a patriarchal world view and that patriarchy must be overcome in order to prevent oppression of women. Because the law is currently lagging and must correct the present male standard of measure, Smith would approach this case outside of a patriarchal context.

Smith would argue that a youth under 16 needs protection from the familial and religious patriarchy espoused by her parents to ensure that her religious decisions are autonomous and not influenced by the patriarchal standard. Were Smith adjudicating this case, she would have upheld s. 25 of the Manitoba Child and Family Services Act but, like Justice Abella in the majority decision, would have placed some caveats on the Act’s interpretation. Smith would likely approve of a court authorization of a medical decision were it made from a non-patriarchal starting point that was truly in the best interests of the child and took into account the wishes of the mother and medical professionals who were female or approached medicine from a feminist framework of practice.

A feminist approach to jurisprudence, according to Smith, determines how legal structures can be changed to contribute to sex equality. Through this approach, Smith would look to social science evidence and academic commentary in order to qualify what characteristics demonstrate decision making competence and entitle adolescent decision making autonomy. However, Smith would engage social science evidence that approached adolescent autonomy with regard to the impact of patriarchy on that autonomy and the role of oppression on adolescent female decision making.

In contrast, Mackinnon takes a more radical approach to feminist jurisprudence than Smith. She sees the male point of view as the standard and argues law upholds male dominance and subordination of women.

Mackinnon might approach this case from the perspective that AC’s decision to avoid blood transfusions on religious grounds was influenced by upbringing in a patriarchal home that practices a patriarchal religion. According to her, ‘...the social power of men over women extends through laws that purport to protect women as part of the community.’ Mackinnon would likely view the legislation in question as purporting to protect the interests of the child but possibly neglecting the social power of the child’s father over the mother and child and the influence of medical professionals who are primarily male or fail to consider a feminist approach. Because of this Mackinnon would suggest legislation alternative to the Act that accounted for the role patriarchy plays in influencing adolescent decision making and the impact of patriarchy on the decisions of medical professionals.

Recognizing that rights often protect the patriarchal status quo, Mackinnon would likely reject the approach taken by the dissent in this case. Because rights often further oppression of women, Mackinnon would likely find that allowing the Charter to strike down this legislation would give unfair weight to patriarchal influence on adolescent medical decision making.