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

The root of feminist theory is the idea of systemic patriarchy that infiltrates every level and area of society. Despite theoretical differences in various branches of the subject, feminists agree that patriarchy is unnatural, avoidable, and ultimately at the core of structural inequalities between men and women. The study of feminist jurisprudence is the critical examination and deconstruction of the legal system and its actors in order to surpass hegemonic sex inequalities and create a legal system without a patriarchal bias. This is a particularly challenging undertaking given the subtlety of patriarchal discourse and the reliance of the legal system on judgments of the past; while women are not as marginalized in Western society as they once were, feminist jurisprudence seeks to current even the most inconspicuous inequalities (Dimock 149).

As Catharine MacKinnon notes in Toward a Feminist Theory of State, the objective standard as it is applied to law and jurisprudence is a vessel for male domination over women in all areas of society. As MacKinnon puts it, “law becomes legitimate and social dominance becomes invisible. Liberal legalism is thus a medium for making male dominance both invisible and legitimate by adopting the male point of view in law at the same time as it enforces that view on society” (Dimock 150). This does not mean that explicit laws exist that perpetuate the male domination of women; rather patriarchy exists at the core of the legal system because traditional law makers were men (the powerful) who created systems without the lived experiences of women.

In order to create true equality in law, MacKinnon proposes two steps. First, we must acknowledge the fact that the law is currently not understood substantively from women’s perspective, and it is impossible to change that which is purported to not exist. The reality that women face with respect to inequality (for example, domestic violence, salary discrepancies, rape, denial or reproductive freedom, and sexual harassment to name a few) must be faced head on as systematic and ingrained in our political and legal institutions. Second, we must acknowledge that individual rights in law mask patriarchal norms (for example, domestic violence is perpetuated under the guise of privacy rights). As MacKinnon puts it, “the legitimacy of existing law is based on force at women’s expense. Women have never consented to its rule – suggesting that the system’s legitimacy needs repair that women are in a position to provide” (Dimock 157). Once these issues are acknowledged and fleshed out, the abstract nature of the law can shift toward a substantive view that incorporates authority without dominance.

On the surface, Cuthbertson v Rasouli involves a dispute over the definition of ‘treatment’ and withdrawal of life support in the HCCA, and whether life support can be removed without the consent of the SDM if expert medical opinion deems it to be without benefit. However, a feminist theorist would recognize the patriarchal underpinnings of the statutory scheme that governs consent to treatment.

As the SDM and wife of Mr. Rasouli, Ms. Salasel is in the best position to make decisions regarding his treatment (and the potential removal of the treatment). The HCCA mandates that the SDM cannot give consent or refuse consent to medical treatment without taking into account certain considerations, such as the medical condition, well being, values, and wishes of the patient (s. 21(2)). For Ms. Salasel, a major consideration involved the religious inclinations of her husband; as a devout Shia Muslim, Mr. Rasouli values life and would want to be kept on life support without the interference of doctors. Further, Ms. Salasel sought the professional opinion of a neurologist who detected increased levels of consciousness in the brain of Mr. Rasouli. Doctors can only discontinue treatment notwithstanding the wishes of the patient or family if they have fully considered other options and find no acceptable alternatives.

However, believing that treatment is futile, the Appellants wish to override the autonomy of Ms. Salasel as the SDM and remove Mr. Rasouli’s life support without her consent by claiming that treatment as governed by the HCCA does not include withdrawal of treatment, thus removing the statutory barrier to withdrawal of life support. MacKinnon would agree that the existing statutes are already mired in systemic patriarchal norms, thus the governing force that legitimizes these laws already does so by excluding the female perspective from the very statute that is supposed to apply to each citizen equally. The challenge of the Appellants to the authority of someone who is clearly best suited to making a sensitive and life-altering decision by subverting the statute and manipulating the common law system further illustrates that the patriarchal-ingrained law allows for the more powerful to override the decisions of those without power. MacKinnon would argue that in order to create true equality in law, the reality of hegemonic power structures in the legal system must be acknowledged and challenged. However, with respect to MacKinnon’s second step, the autonomy and rights of individuals must be respected in order to lend legitimacy to the decisions of substitute decision makers. At the same time, MacKinnon would agree that it is important to acknowledge that on some level, all individual rights mask patriarchal norms simply by virtue of being rooted in a patriarchal climate.