Course:Law3020/2014WT1/Group X/Feminist Jurisprudence
One of the central theses of the feminist perspective is the presence of the patriarchy as a system that dominates women and produces legal and social barriers, leaving the public sphere to be governed by the perspective of men. The appearance of the patriarchy is not only inherently bad for women, but is perpetuated by the systems in society.
According to the liberal feminist perspective, equal opportunity is the solution to the subordination of women. In EB v Order of the Oblates, vicarious liability is a block to individual autonomy in the public sphere since it shifts the responsibility for an individual’s conduct to their employer, who is in a position of dominance over them. Liberal feminism seeks to grant autonomy for women by removing these blocks to the public sphere and granting equal opportunities, as well as promoting law that does not discriminate individuals for their gender. A liberal feminist would support the holding of the majority, who did not assign vicarious liability for fear of removing excessive individual autonomy and opportunity from society. The rule from Bazley v Curry that was applied to this decision required a “Strong Connection” between what the employer was asking the employee to do and the wrongful conduct. According to the liberal feminist perspective, the block was the strong connection that protected the Oblates over the victim who clearly had unequal status and rights in this situation.
Under the lens of Radical feminism, the rule applied in EB v Order of the Oblates would be seen as a product of a deeply rooted patriarchal power. In order to remedy this, they would suggest a complete dismantling of rule and perspective that privileges the more powerful Order of the Oblates over the victim who suffered his harm as a result of the power structure ingrained into the environment of the residential school.
A Marxist Feminist would see value in vicarious liability, because it protects the weaker individual. They would likely agree with the minority decision in EB v Order of the Oblates because they would support a lower threshold to protect one with a relatively low amount of power against the larger structure of the residential school. Much like they consider the oppression of women to be a result of a capitalist society, the oppression of the victim in this case is a result of his economically weak position.
The Post-Modernist Feminist would see the victim as an “other” under the power of the state through the residential school system. This other was wrongly treat under the patriarchal system that created the residential schools. These feminists would likely support the abolition of residential school systems as well as vicarious liability as a solution to harm caused in society. Instead, a Post-Modern Feminist would support an individual approach to each unique circumstance. This individual approach would be more effective as it responds to the reality of each victim.
A Relational Feminist response sees men and women as having a different moral perspective. The dominant moral perspective in place was created by men, which was an ethic of justice. However, the system would benefit from incorporating the ethics of care, which emphasizes the perspective of women and the creation of safe relationships. The system must change to suit the people, as opposed to the system refusing to change for those who have suffered. In EB v Order of the Oblates, there was a breach of what was supposed to be a healthy, positive relationship with the children of the residential school. The victim in this case who suffered a breach should be compensated for his injury in the eyes of a Relational Feminist, who would agree with the dissent in lowering the threshold of the Bazley test to suit the needs of the victim.
Catharine MacKinnon believes in the idea of radical feminism and law is the site of and cloak of force. She believes that the characteristics that are perceived as good about the law such as neutrality, impartialness, are actually the things that make the law impenetrable and invisible.
She would perceive the result of this case as indicative of a male-created law that does not effectively serve justice. The “cloak” of male dominance must be prevented in this way. The male point of view would be prevalent in the creation as well as the continuing upholding of the idea of vicarious liability. The idea of allowing individuals to not be liable for something done in the course of their watch would continue the reality of having positive laws that permit male domination over women. The idea that the emotional duress someone is put through is not not an issue of concern enforces the patriarchal structure.
MacKinnon, along with the different feminist perspectives above believe in the impact of the male perspective upon the justice system and its failure to adequately promote the equality of women through laws. They have numerous different views as to the solution to rectify the problem at hand but all believe that changes are necessary in what has been and continues to a male dominated legal system. Whether the changes involve a recognizing of the private sphere or the protection of the weaker individual, the one commonality that resides through all branches of feminism is the need for change