Course:Law3020/2014WT1/Group S/Feminist Jurisprudence
One thing that all feminists have in common is their view on the world. They believe that the world as we know it and have known it is structured by patriarchy. What is patriarchy? Patriarchy is the systematic domination of women by men. Feminists believe that men, being dominant figures in the social world, have made rules and structured society in a way to ensure that they keep this dominant role. Being, and staying, in this dominant role allows men to exercise power over others, including women. The patriarchal system is so pervasive that men and women do not even realize that they are part of it. No one realizes that men have put themselves in a position of power and do what it takes to stay there.
Feminists believe that a patriarchal system is bad, not only for them, but for society as a whole. By looking through the lens of feminist jurisprudence you can see the effects of patriarchy on men and women and determine how things should be changed to make society better as a whole.
Patricia Smith – Feminist Theories
Patricia Smith is a well known feminist. She has written many articles relating to the topic and voiced her concerns regarding patriarchy. In her article, “Law as a Patriarchal Institution,” she outlined different types of feminist views. These views include: classical liberal feminism, modern liberal feminism, radical feminism, Marxist feminism, postmodernist feminism, and relational feminism.
Liberal feminism is the mainstream ideology surrounding feminism. Liberal feminists believe that there is nothing fundamentally wrong with core legal ideas. They believe that what is wrong is that the subordination of women has created blocks which keeps them in a private sphere and does not allow them to advance in the public sphere.
Classic Liberal Feminism
The core idea of classic liberal feminism is that subordination of women causes “blocks” to access to success in public spheres. The public sphere includes political and economic opportunities. Liberal feminists believe that the root to equality is removing these blocks will equality. By doing this, women will have an equal opportunity to pursue opportunities in the public sphere, which will lead to equality in general. Removal of “blocks” will also lead to a gender blind law which would all for equal treatment of men and women.
Classic liberal feminists believe that removing the blocks would be an ideal way to fix the inequalities faced by women and cure the problem of patriarchy. As already mentioned, all feminists believe that the removal of the patriarchal system will be better for society as a whole.
Modern liberal feminism
Modern Liberal Feminism, on the other hand, believe that you need to take into account the reality of each woman’s life. They believe that simply removing “blocks” will not make all women equal to males. This theory recognizes the significance of informal discrimination (stereotypes) and the requirement for re-organisation of domestic life to provide realistic, attainable opportunities for public participation. Modern liberal feminists recognize the reality of differences in the lives of many females. These differences must be acknowledged and provided for, beyond formal equality, to provide meaningful, accessible, equality. The informal discrimination that women face must be addressed.
A modern liberal feminist would argue that just by removing blocks, substantive equality is not being reached. While the rules and laws of society may say that Granovsky should not be discriminated against, this is not the case. He is being discriminated against because of physical disability.
Radical means “by the root.” This is a good way to define radical feminism. Radical feminists believe that the idea that patriarchy is so deeply rooted in society, so pervasive, that more fundamental changes are needed in the basic structures of society. Radical feminists would not agree with the views of liberal feminists. Instead, radical feminists would argue that the system cannot be fixed and that it needs to be scrapped and a new one must be started.
Radical feminists focus on the social construction of gender within patriarchy. They believe that it is impossible to understand what femaleness is without dismantling patriarchy. There are major biological differences between all people. Everyone has a different mix of genes/hormones that places everyone on a spectrum. This is biological. However, at some point, people make a decision on what “gender” a person wants to be. Radical feminists, however, believe that people who make decisions to be a certain “gender” do not actually know what it is like to be that gender because of the world around us. We do not know who a man would be and how he would act unless he was performing certain acts that “a man is supposed to do,” is the current system that we live in. This system, however, is based on patriarchal thoughts. Radical feminists believe that to truly know the “roles” that genders should actually play, the entire system should be “blown up.”
As already mention, radical feminists believe that the entire system is flawed. Since the CPP was created by men, a feminist would argue that the program is created by mens sensibility of fairness and doesn’t take into account people who are injured. A radical feminist would argue that by blowing up the whole system society as a whole would benefit. Even if women are included in the creation of the program, patriarchy is so ingrained in our society that the program it would still be flawed.
Radical feminists would also argue that the Charter is framed by a point of view that is flawed. Even if women are well educated and understand the flaws in the CPP, the Charter was created by men and the laws of the charter and the rights enshrined in there inevitably give men more rights.
Marxism is an ideology that is all about power and one group enriching themselves by exploiting another group. For example, the upper class owns the means of production. The average worker, on the other hand, does not own any means of production. He/she only has labor to sell. This labour is bought by someone in the upper class who uses it, with their means of production, to create goods to sell to others. The labour which is bought by the upper class is bought at a discount in order for the upper class to make a profit. Marxists believe that this system is what drives the world.
Marxist feminists believe that oppression of women a function of the capitalist system and its de-valuing of the “private” domestic sphere as economically useless. This “private” domestic sphere includes child bearing and rearing and other home-based work. This “private” work is useless because it makes no profit for the capitalist and so exists outside the system.
In the case at hand, Granovsky would be undervalues because he has less to contribute to society due to his disability. While men, in today’s society, would essentially be the labourers, Granovsky is not a labourer because of his disability. His labour cannot be exploited by the upper class because he cannot work. While he can contribute some money to the economy, he cannot contribute the full amount. He is stuck in limbo. He is not fully disabled, so he does not qualify as part of the CPP scheme. Because of this he does not receive benefits and does not earn an income because he cannot work. This, in turn, leads to him not being able to contribute to the local economy by spending money. Someone who is totally disabled, on the other hand, receives benefits from the CPP. This allows them to contribute to society and become part of the social machine. This ties in with law and economics theories.
Postmodernist feminism is basically an “anti-theory.” It provides us with a perspective. The theory says that people need to respect the experience of individual women as these experiences are formed through their position in a patriarchal system. Unless women make an effort to look like the “reasonable person” they are considered the “other” because they are different. Postmodernist feminists say that this idea should be embraced. Being the “other” is a good thing and should be accepted. Society needs to respond to the “otherness” which creates tangible problems in the lives of women. Postmodernist feminists believe that there is no single solution to the problems that women face. The individual needs of each woman needs to be considered in order to fix her problem.
Granovsky is a prime example of this theory. As described earlier, he is in the cracks, in limbo, and no Meta theory can be used to define the problems that he faces or a solution to his problem. A Meta theory is not sufficient because it leaves people out unfairly. A postmodernist feminist would argue that, in this case, the surrounding circumstances must be considered in order to find a solution for Granovsky.
There is no such thing as full autonomy for a woman because she has to take into consideration of the real world around her, such as her relationships. Relational autonomy considers the real lives of women and what is actually going on.
Relational Feminism takes into consider the relations that women have. Reacting to the relations in their lives is not a problem for women; women need relations. The fact that women are embedded in relations needs to be recognized. Society needs to recognize that women make decisions based on their relations. The legal world needs to change and look more like a world that recognizes these relations.
Women’s “ethics of justice” haven’t been integrated into the CPP program. Men, who created the CPP, have, on the other hand, integrated their “ethics of justice” into the CPP. These men are more interested in following the program to the exact provision. Women, however, might find it more just to give Granovksy some limited amount, instead of denying him fully.
MacKinnon - "Law as Male Power"
MacKinnon is radical feminist. She believes that law is the “site and cloak of force.” This is a popular metaphor that MacKinnon uses. She believes that law is the place where power is enforced and/or implemented. At the same time, the language of law acts like a cloak of that force because we talk about principles of law. Men are pretending that they are finding fairness and justice and how wonderful law is. What they are actually doing is that they are implementing a power structure through these laws. This structure ensures that men keep the power to themselves.
She would argue that law makes male domination invisible and legitimate by adopting the “male point of view” and articulating it as both natural and right. What is the “male point of view”? Examples include: scope of judicial review, norms of judicial restraint, precedent, public/private distinction, standing, and the “reasonable person.” These are all abstract mechanisms that the law uses to pretend it is doing one thing, while it is doing something else.
MacKinnon believes that law is a male creation, as created by the powerful in society. She argues that there are no positive laws permitting male domination of women need to exist. There are no laws because they are not needed, as there is nothing to stop to stop domination. The social system and legal system are all about enabling male domination. Special laws are not needed that allow for male domination. She believes that what society actually needs are laws that prevent male domination form occurring.
MacKinnon’s idea of change has two steps. First, she believes that women need to own up to their differences. They need to accept that they are different from men. She believes that these differences do not devalue women. Women need to stop being embarrassed about what they lack in the public sphere, and brag about what they do in the private sphere. The second step is recognizing male power over women embodied as individual rights in law.
MacKinnon would argue that the court doesn't recognize the feminist perspective. She would say that Dworkin’s neutral principles are inherent rights belonging to men. He thinks rights are good. MacKinnon would respond by saying that men are afraid of using feminist theory because they are afraid of losing rights. Men in power know that they have these rights so they specifically adopt their own power as a right.
Best Path Towards Change?
Postmodernist feminism is seemingly the best way to approach to change. Embracing otherness is more indicative of the society we live in, especially in Canada. This approach may bump its head into "law as efficiency" as the case by case analysis may lead to inefficiencies (as stare decisis would have to be de-emphasized) but compared to other theories, it may be the most palatable to men. Ironically, while women have a lot more power than they used to, men are just as crucial in dismantling the patriarchy as women are as they are the ones who currently hold the tools and power required to better the lot of all disadvantaged people. Postmodernist feminism seems the least "offensive" or "radical" to outside male observers and is thereby much more likely to gain acceptance in both conservative male and female spheres. Rather than treating Granovsky like another cog in the machine, he might be able to find a more equitable remedy if postmodern feminsim was more succinctly integrated into our legal systems
- Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto: Pearson Education Canada, 2002) at 140.
- Ibid at 141-142.
- Ibid at 142.
- Ibid at 142.
- Ibid at 142.
- Ibid at 143.
- Ibid at 143.
- Ibid at 144.
- Ibid at 150.
- Ibid at 150-151.
- Ibid at 152.
- Ibid at 154.
- Ibid at 155-157.
Table of Contents
|Created by Cole Rodocker,Tajinder Rathor,Nick Rogic,Toby Davis|
|Legal Perspectives||Legal Philosophers|
|1||Natural Law||Thomas Aquinas|
|2||Legal Positivism||[John Austin,HLA Hart, Jeremy Bentham,Joseph Raz]|
|3||Separation Theory||[HLA Hart & Lon Fuller]|
|4||System of Rights||Ronald Dworkin|
|5||Liberty and Paternalism||[John Stuart Mill & Gerald Dworkin]|
|6||Law as Efficiency||Susan Dimock|
|7||Feminist Jurisprudence||Patricia Smith & Catharine A. Mackinnon|
|[Professor Margaret Hall]|