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

Feminism Jurisprudence

Feminism is an especially diverse theory that is comprised of various perspectives. There is one main 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”. While the main focus of feminist theories 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.

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” (Para 12). 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, stating that laws merely appear to be neutral and fair but, as indicative by this ruling, they are used to oppress 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” (para 34) 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 is another patriarchal mechanism in which women and other groups have been oppressed by, which 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.