Course:Law3020/2014WT1/Group U/Feminist Jurisprudence
Introduction to Feminism
Feminism is an especially diverse theory that is comprised of various perspectives, including liberal feminism, radical feminism, Marxist feminism, postmodern feminism, and relational feminism. Although each feminist perspective holds different ideologies, there is a principle that all feminist theorists agree on. All feminists believe that “the world is, in fact, patriarchal” in which “human societies have always been organized in a hierarchical structure that subordinates women to men”. Feminism rejects abstract, universal principles such as those offered by Ronald Dworkin as well as proponents of the law and economics theory. Rather feminist theory "typically concentrates on the specific, concrete, lived experiences of women in all their particularity and contextual detail". They would assert that it is through this lens in which the law must be scrutinized under. While the main focus of feminist theory is on the subordination of men over women, many would extend this theory to include the general oppression of minorities and the powerless by this patriarchal structure.
The Focus on Radical Feminism
As mentioned, feminism is a broad umbrella that encompasses multiple different perspectives. In this analysis, radical feminism through the perspective of Catherine A. MacKinnon will be focused on due to its greater relevance to Trinity Western University v. British Columbia College of Teachers. The following is the assessment on how Catherine A. MacKinnon would decide the case as well as a dialogue between her particular theory and Ronald Dworkin's system of rights.
Application of Radical Feminism to the case
Trinity Western University argued before the Supreme Court of Canada that their “Community Standards”, which are entirely religiously motivated, “do not give rise to a risk of discrimination or the perception within the public that those students will discriminate when employed with in the public educational system”. The court endorsed that reasoning and determined that the British Columbia College of Teachers was wrong to reject their application of their educational program on the basis of potential discrimination. The radical feminist response to this ruling would be as follows.
Catharine A. MacKinnon, a radical feminist, believes that the law is in a place in the patriarchal social structure where that patriarchal power is enforced and implemented. She believes that the law acts like a cloak which veils the reinforcement of patriarchy. In essence, she believes that courts are merely pretending that their rulings are just while they are, on the contrary, simply perpetuating the oppression of minorities via this patriarchal structure. In fact, most feminist theorists would agree that these abstract principles are mere fictions and are just fabricated for the purpose of maintaining patriarchy. She would assert that these institutions have oppressed groups for such a long time that it has eventually been perceived to be natural. MacKinnon disagrees with the pronouncements of Ronald Dworkin who asserts that law are based on fundamental ideas of justice and fairness that seek to deter future harm to the community. Dworkin would therefore view the court's decision as one which yields a fair result on the grounds that the potential for discrimination does not override the Constitutionally guaranteed right of freedom of religion. She would respond by stating that such laws merely appear to be neutral and fair but, as indicative by this ruling, they are used to oppress a subordinate class of people. To elaborate, she would claim that the law and our legal system values these abstract views of rights and justice over the real lives of people who are directly impacted by such decisions. Our case is exemplary. The court expressly states that “the Community Standards creates unfavorable differential treatment since it would probably prevent homosexual students and faculty from applying” however, they assert that that is not sufficient to deny the school accreditation for their teaching program. Therefore, a vulnerable and already oppressed group was denied protection under the law in favor of a constitutionally guaranteed competing interest of freedom of religion. She would assert that it is these exact rulings that appear to be fair and just that are perpetuating the oppression of such minority groups.
Feminist theorists would assert that this patriarchal cloud is not just looming over the legal system. Rather, they would claim that the law is part of this bigger system which is comprised of various other institutions and ideologies, such as religion. They would assert that religion is in itself another patriarchal mechanism in which women and other groups have been oppressed by. This is evident based on the content of the religiously motivated "Community Standards". The ruling of this case would not surprise feminist theorists. In their perspective, the law and religion allowed the perpetuation and maintenance of power of a superior group over a subordinate class.
- Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law, (Toronto; Prentice Hall, 2002). .
- Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31,  1 SCR 772 at page 795.
- Ibid at para 34