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

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Feminist Jurisprudence

Feminist Legal Theory is very much like the Theory of Legal Realism. It is concerned with action of legal actors, and is not concerned with an abstract view of the law. It has been described as the "new legal realism". The experience of women is unique to the individual, there is no abstract legal power that governs their lives.

Common Core

Feminist legal scholars understand that patriarchy is a real force in the world. Traditionally in this system men have been the dominant actors. This is not to say that all men are aware of this system. Nevertheless, the social system, which covers the whole world, and includes the law is effected by it. This system is fundamentally damaging to women. Feminist theorists argue that the area of law provides a real world depiction of this patriarchal system at play. Based on this level of visibility, it is a viable area to make a challenge to the current system.

Overview of Feminist Theory from Patricia Smith

Patricia Smith provides us with a very helpful insight into the different variations of feminist theory.

1) Liberal Feminism

Feminism in its most classic form. Starts with the premise that there is nothing fundamentally wrong with the core ideas in our legal structure. The issue is that the subordination of women stems from "blocks" to access the full potential of public spheres. Therefore, the route to equality comes by removing these "blocks". Legal feminism recognizes that a great deal of these blocks have been removed, in part thanks to various Charter litigation.

Modern Liberal Feminism

This theory does not concur with traditional liberal feminism. The reality for most women is that removing legal "blocks" does not translate into equal access. Modern Liberal Feminists recognize that even if you're able to remove the blocks women still deal with the very real social problems of informal discrimination.

Application to the case Mrs. E v Eve

In applying this to our case, we will take a look at the basis for the eugenics movement, and the courts recognition for its abolishment. While the case itself was decided on the basis that the parens patrie doctrine does not apply to third parties, the underlying issue of female autonomy was prevalent.
The liberal feminist would see the abolishment the eugenics movements as a removal of one a "block" that prevented equality to women in the public sphere. The goal of liberal feminism is to facilitate a transformation of law that is "gender blind".
In applying the case to modern legal feminism, the removal of this "block" would not have, in it of itself, been sufficient to suggest equality. In looking at the social problem of informal discrimination, a modern liberal feminist would recognize that despite the law recognizing the autonomy of women, there are still social norms that prevent equality. In this case the court was concerned with the ability for a mother to raise a child, at no point was the fathers involvement discussed. The onus was put squarely on the mother and her abilities.

2) Radical Feminism

As opposed to the liberal feminists who believe the patriarchal system can be corrected, the radical perspective believes that it needs to be completely re-built. The come to this conclusion by focusing on the social construction of gender. That gender itself is a performance, and is something that we decide to adhere to based on the social perspective.

MacKinnon's Radical Feminism

MacKinnon takes a closer look at the radical feminist perspective. That the law is the "site and cloak of force". It is in law where the power of that patriarchal structure is both upheld and enforced. Law is the hammer that maintains the level of oppression, and it does so under a "cloak". Under this cloak, society at large would not be able to realize that these oppressive practices are even taking place.
The law itself legitimizes male domination, and makes it invisible to the world. That the theories of law that suggest it is based on the principals of fairness and justice are just a guise to continue with their oppressive agenda. MacKinnon suggest that in order to change this there needs to be two fundamental changes: 1) Women need to really claim their concrete reality, and to not be embarrassed about it. The things that make a women's experience different have been devalued, and in order to counter that they need to establish the reality of their experience. 2) Need to recognize exactly how women's rights are being undermined. MacKinnon believes that rights themselves are an illusion. The notion of rights keeps society happy, when in reality they are being used to accomplish all the detrimental impacts on women. Examples include: pornography as being described as a freedom of speech, that privacy rights encourage domestic violence and child abuse, and right involved with child custody gives the man power of women even after a relationship has ended.
Ultimately, the question is whether or not a practice participates in the subordination of women? In coming to this conclusion, we must be ever vigilant of the "cloak" of male domination in Law.

Application to the case Mrs. E v Eve

It could be argued that the court ultimately adhered to MacKinnon's performance of gender analysis. Eve's ability to perform as a mother was in conjunction with her performance as a women, and its question was to whether she was capable of maintaining this performance.
The court also looked at the women's right over the autonomy of the body. This courts recognition of a eugenics movement as no longer be acceptable in most cases could be a recognition of the change in law that MacKinnon strives for. That ultimately, the practice of eugenics was in itself a performance of subordination towards disadvantaged groups, like women. In that sense, perhaps the court recognizes this subordination, and is attempting to alleviate it.

3) Marxist Feminism

This theory involves the collision of both Marxist and Feminist principals. That the capitalists own the means of production. They buy labour from the proletariat at a discount, and keep the remainder for themselves. This principal is the engine that drives the world. Women in this context are confined to the private sphere, and it is the man who is being exploited. The private work role traditionally held by women is not recognized, and their only contribution to the "engine" is their ability to continue to provide adequate labour through their means of reproduction.

Application to the case Mrs. E v Eve

This case may suggest that the traditional roles of women in the capitalist system are no longer applicable. The recognition of the courts towards the right to autonomy of the body overpowers the need to ensure that they are contributing to a capable proletariat work force. In this case, the court found that Eve, despite the possibility of not being capable of preparing her child for adequate involvement in the labour force, was still within her rights to have that child. The right to autonomy of the body outweighed the issue of the capitalist role for women to maintain a capable proletariat mass.

4) Post Modernist Feminism

This theory is based in the rejection of any form of universal meta-theory (Marxism for example). It acts as a sort of anti-theory. Says we need to look at and respect the experience of individual women as those experiences are formed by their life in the patriarchy. That women, are different from the "reasonable person" and this needs to be addressed. The key for Post Modern Feminists is to not only recognize this difference, but embrace it. Women are the "other", and there needs to be a demand to recognize this "otherness".

Application to the case Mrs. E v Eve

The courts in this case are respecting the Defendant's right to have a child, or at the very least recognizing that third parties do not have say in whether the government should seek to intervene. They are embracing the women's position in society. In coming to a decision in regards to the capabilities of a mother, each women must be looked at individually. The circumstances, and qualities of each women are examined on an individual basis.

5) Relational Feminism

This theory is based on the premise that in reality women cannot act freely. Their actions are based and constrained by their various relationships. Trying to make changes that allow for women to act free of oppression is an impossibility. Instead, the theoretical notion of legality needs to change to reflect women's lives. By reflecting on the lives of women, the system itself can make the changes necessary to allow for the equal treatment of women.

Application to the case Mrs. E v Eve

The court in this case may have a reflected a change in the system that relational feminists call for. In a fully patriarchal system where the "father" needs to keep watch over a community, and women in particular is not adhered to by the court. Instead, the court adheres to a new social philosophy where the autonomy of women over their bodies takes precedent.