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

Feminist Jurisprudence

Feminist Legal Theory is very much like the Theory of Legal Realism. Essentially it is concerned with action of legal actors, and is not concerned with an abstract view of the law. It has been described as the "new legal realism". The experience of women is unique to the individual, there is no abstract legal power that governs their lives.

Common Core

Feminist legal scholars understand that patriarchy is a real force in the world. Traditionally in this system. men have been the dominant actors. This is not to say that all men are aware of this system. Nevertheless, the social system, which covers the whole world, and includes the law. It is this system that is fundamentally damaging to women. Feminist theorist argue that the area of law provides a real world depiction of this patriarchal system at play. Based on this level of visibility, it is a viable area to make a challenge to the current system.

Overview of Feminist Theory from Patricia Smith

Patricia Smith provides us with a very helpful insight into the different variations of feminist theory.

1) Liberal Feminism

Feminism in its most classic form. Starts with the premise that there is nothing fundamentally wrong with the core ideas in our legal structure. The issue is that the subordination of women cause "blocks" to access the full potential of public spheres. Therefore, the route to equality comes by removing these "blocks". Legal feminism recognizes that a great deal of these blocks have been removed, in part thanks to various Charter challenges.

Modern Liberal Feminism

This theory does not concur with traditional liberal feminism. That the reality for most women is that simple removing legal blocks is not going to translate into equal access. Modern Liberal Feminists recognize that even if your able to remove the blocks, women will still have to deal with the very real social problem of informal discrimination.

Application to the case Mrs. E v Eve

In applying this to our case, we will take a look at the basis for the eugenics movement, and the courts recognition for its abolishment. While the case itself was decided on the basis that the parens patrie doctrine does not apply to third parties, the underlying issue of female autonomy was prevalent.
The liberal feminist would see the abolishment the eugenics movements as a removal of one a "block" that prevented equality to women in the public sphere. The goal of liberal feminism is to facilitate a transformation of law that is "gender blind".
In applying the case to modern legal feminism, the removal of this "block" would not have, in it of itself, been sufficient to suggest equality. In looking at the social problem of informal discrimination, a modern liberal feminist would recognize that despite the law recognizing the autonomy of women, there are still social norms that prevent equality. In this case the court was concerned with the ability for a mother to raise a child, at no point was the fathers involvement discussed. The onus was put squarely on the mother and her abilities.