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

Conversation between Feminists and Other Theorists

Feminist theory intersects with legal realism and reacts against other legal theorists’ perspectives. Feminist and realist theories work in similar manners; they combine related views as opposed to focussing on a single school of thought and they unravel a number of core, traditional values. These two theories have also come together to reject universality and to focus on the concrete. In essence, feminist theories focus on the specific over the universal and the concrete over the abstract which distinguishes them from other theories, such as Law and Economics, and other theorists, such as Ronald Dworkin. In addition, feminism departs from other legal theories in regards to their focus on the lived experiences of women, which concerns evaluating how the law impacts women specifically. Feminist theories challenge core, traditional legal values that are featured in other legal theories to demonstrate inequality between men and women. For example, Dworkin advances that principles, which are a prominent aspect of the law, are based on fundamental ideas of justice and fairness. MacKinnon would call attention to the fact that on its face this notion supports equality, but in reality it is sustaining and strengthening male domination. Feminists would also reject Hart’s position that law is separate from morality and would take the position that this separation serves the interests of the powerful in our society who are comprised of men.

Feminist Jurisprudence: Law as a Patriarchal Institution

There are many facets to feminist jurisprudence. The underlying principle shared between the various schools of thought is that one live in a patriarchal system that is inherently detrimental to women. It is argued that the world is structured upon women as being systemically and systematically subordinate to men. The key feature of this patriarchal system is that in order to maintain power, there must be an exertion of power over something. This view is universal in application to social reality and it is a lens through which one see how women are influenced by patriarchy and are even a part of maintaining their own systemic domination by men. Law is one area that can be viewed through this lens. This theoretical approach to law demands rethinking the neutrality and objectivity of the body or structure of law. It calls into question traditional legal values including the separation of law from politics and from morality, the ideal of the rule of law and the model of judicial reasoning as logical deduction.

This challenging and relatively new concept of law as a patriarchal institution can be better

Liberal Feminism

Forming one of the earliest writings on feminist thought, there are two branches within this theory: classic and modern. The classic approach is founded on the principle that the domination of women is effectively served through blocking their entrance into the public spheres of economics and politics. Proponents of this branch suggest that removing blockades to equal participation universally would provide equal opportunity for all. For modern liberal feminists, however, this approach resulted in a “double day” for women, which meant increased responsibilities in the public sphere along with the traditional responsibilities of the private sphere (ie. for the home and family). They argue that ultimately while the solution is equal opportunity for women, society needs to be restructured to accommodate women in the workforce, stereotypes need to be removed and family life needs to reflect these structural changes.

Radical Feminism

Arguing that simply reorganizing society would be insufficient, radical feminists propose a more fundamental change needs to take place. Gender needs to be deconstructed to understand how one currently view females and female-ness. It is not clear how this can be achieved. It is suggested that the promotion of androgyny (gender-neutral) would be a solution to patriarchy, while others are not confident this approach would give value to what are believed to be inherently female aspects of life, such as childbearing. Ultimately, it is believed that women will continue to be systemically subordinated and will continue to behave in ways that result in their own subordination until the root of the issue - the construction of gender - is dismantled.

Marxist Feminism

Stemming from Marxist and socialist theories, this line of feminism does not follow the radical approach on the construction of gender. Instead, it is argued that the introduction of capitalism, private property, and exploitation of the less-economically powerful ultimately leads to the oppression of women. This theory does not address gender issues that persist where women do occupy the public sphere, such as women facing prejudice in the workplace merely because they are women. Overall, Marxist feminists support the idea of increasing the value of the female- dominated private sphere by having a socialist system that reduces class exploitation and therefore the economic dependence and marginalization of women.

Postmodernist Feminism (French Feminism)

A slightly more ambiguous approach to the issue of subordination of women is a collection of thoughts termed postmodern feminism. In rejecting traditional theories, postmodern feminists situate women as the “other” within the patriarchal system, creating a dichotomous relationship between men and women. Also unique amongst the various feminist theories, is that postmodernists believe that not all women experience oppression in the same way. It follows that it is a male construct to believe there is a single answer to oppression and, therefore, no universal solution actually exists. This approach is useful because, similar to radical feminism, it focuses on dismantling what are believed to be social “truths”, which are mere reflections of patriarchal structures, such as the law.

Relational Feminism

This final school of thought is more narrow in scope than postmodernist feminism. It focuses on the strengths formed in the socialization of women within a patriarchal system. It is argued that women develop differently from men: men represent the ethics of principles, rules and rights while women represent the ethics of care. Relational feminism argues the way to effect positive change is to promote women’s ability to contribute equally valuable but different ethics to the public sphere. This is where change must take place for women to complying with male-centered standards and patriarchal institutions.

One objection to relational feminism is that it furthers the idea of having a dichotomous relationship between men and women and that women can be categorically the same in nature (ie. that all women are inherently caring). This could be viewed as a patriarchal way of thinking that seeks to paint all women with the same brush. It furthers the idea of gender “norms” and behaviours that can lead to stereotypes about women being unequal or weaker than men.

Despite the different branches, across all feminist theories it is uniformly agreed upon that the patriarchal system individuals live in systemically subordinates women. According to feminist thought, the rejection of patriarchy is important because it is a structure that does not reflect the fair and equal treatment of women.

Catherine MacKinnon: Law as Male Power

Liberal feminist Catharine MacKinnon is one proponent of the idea that feminist theory of law is an essential and fundamentally different approach. She contends that the law is the “site and cloak of force” in that it legitimizes the male-created world we live in without visibly doing so. Male standards are so deeply rooted in the legal system they provide the basis for the law’s highest standards. Without the contribution of women to the structure of law, male standards will continue to be upheld. Therefore, MacKinnon argues, positive law to enforce inequality and domination of women is not even necessary for perpetuation of this systemic subordination.

MacKinnon suggests an approach to acquire women's equality through law reform. The first step requires making a claim of women as being subordinated by social and political institutions. This would be illustrated through examples including the allocation of less desirable work to women, unequal pay, and demonstrating how women are forced into conditions which lead to prostitution. Secondly, there would need to be legal recognition of male power over women within the realm of individual rights. For example, this unequal distribution of power exists in privacy rights, which allow common forms of domestic abuse against women. Based on these two suggestions, MacKinnon recommends that going forward the law ask the question of whether a certain legal practice or 'norm' can be viewed as upholding the subordination of women.

• Note: The above information is based off of content from pages 139-159 of Dimock's Classic Readings and Canadian Cases in the Philosophy of Law (see "Bibliography" for more details)

Application

Feminist theory addresses the problems in societal institutions from the view that they are an inherent result of the patriarchal system. Despite the the rule of law, for instance, there are still problems with illegal drug use and a host of related illegal activities. Various aspects of Catharine MacKinnon’s work, “Law as Male Power”, are illuminated in PHS.

In PHS, by looking at one of the appellant’s claiming a violation of her s.7 Charter rights, the effects of patriarchy can be recognized. Ms. Tomic, having been born addicted to speed, tells her story of resorting to prostitution to support her addiction (PHS at para. 23). She wanted to keep Insite open in order to provide herself with the psychological and emotional support needed to deal with her addiction. An addiction and the activities that have become associated with it in this case are a result of what the court classified as an illness (at para. 27). Ms. Tomic's involvement in the sex trade exemplifies a way in which women are systemically subordinated by men. MacKinnon would contend that the law is a patriarchal institution that reinforces male domination over women. She argues that there is no need for positive laws permitting men to dominate women because male domination is already implicit and legitimized by the legal system. MacKinnon argues that denigrating entertainment, such as prostitution, is presented as a way for women to exercise their freedom of speech, but in reality labeling it as a “freedom” is a way to reframe it in a language of rights that legitimizes this domination of women. The court recognizes the impact of a legal system that has failed to protect victims of this systemic subordination when it states, "Applied to Insite, the impugned provisions of the "CDSA" did not accord with the principles of fundamental justice because they arbitrarily prohibited the management of addiction and its associated risks" (at para. 31). Prostitution, which in itself is not an illegal act, is an example of the associated risks or form of denigrating entertainment, which are supported by legal rights rhetoric. Further, the court notes that the lack of protection afforded to clients, such as Ms. Tomic, is not cured by positive law, such as s.56 "because the Minister's discretion to grant exemptions was unfettered" (at para. 31). There is a power imbalance that the law itself fails to correct. Without finding an infringement on her s.7 Charter right, Ms. Tomic would not be able to seek assistance from the law for her security and the risks associated with her illness. As a woman in a patriarchal society, in which a rights-based claim ranks amongst the most valued and protected by law, Ms. Tomic is disadvantaged by law at the most basic levels.

Similar to prostitution, the most frequent forms of genderized abuse are predominantly out of the law’s reach. Systemic abuse of women by men (eg. rape, domestic violence, pornography, etc.) most often take place in the essentially unregulated private sphere. Again, this emphasizes the focus of the law on privacy rights as opposed to the protection of women in the places where there is most likely to be abuse against them. MacKinnon’s theory can be supported by the fact that the sex trade industry is female-dominated. Where true equality lies, women would have equal access to purchase sex from men, which is arguably not the case.

PHS examines the positive effects that Insite has had on individuals along with the adverse impact that discontinuing Insite’s services would have on them. In general, a feminist theorist would approach this case by focusing on the lived experiences of the specific women in the DTES. The court looks specifically at Ms. Tomic, noting that she began using drugs at around age 19 (now 43 years old), has turned to sex work to support her addiction at times, and that Insite has played a major role in keeping her on her path to recovery (at para. 26). The court also points out that “injection drug users are a historically marginalized population” who share common themes such as past experiences of abuse and addiction (at paras. 7 and 10). The court’s consideration of the perspectives of Ms. Tomic along with the broader marginalized group of drug addicts that she is a part of, is in line with the feminists’ abandonment of the universal and general.

PHS, in part, concerns a s. 7 Charter challenge, which is raised in regards to different individuals including a male and female client of the facility. A classic liberal feminist would see the Charter as a gender blind law that removes blocks that prevent the equal distribution of power between men and women. However, a modern liberal feminist would say that simply removing legal blocks in the abovementioned manner is not going to suddenly result in equality. The court speaks of s. 7 as applying to “everyone” and they consider the s. 7 rights of the staff of Insite, of the drug users in the DTES and, more specifically, of Ms. Tomic. The court’s recognition of the Charter applying equally to broad categories of individuals is more in line with classic liberal feminism than it is with modern liberal feminism.

The court in PHS examines the Minister of Health’s discretion to grant exemptions from the application of the CDSA and ultimately determines that his refusal to grant an exemption in this case is contrary to the principles of fundamental justice (at para. 31). MacKinnon views law as a creation of the powerful (male) members of society and she advances that social and legal systems center around male domination. This notion is illustrated in PHS; the Minister, who is a male, is in a power of position and is exercising his discretion over a marginalized group. The court views his refusal to grant an exemption as an abuse of his power, demonstrated by the following excerpt:

The Minister made a decision not to extend the exemption from the application of the federal drug laws to Insite. The effect of that decision, but for the trial judge’s interim order, would have been to prevent injection drug users from accessing the health services offered by Insite, threatening the health and indeed the lives of the potential clients. The Minister’s decision thus engages the claimants’ s. 7 interests and constitutes a limit on their s. 7 rights. Based on the information available to the Minister, this limit is not in accordance with the principles of fundamental justice. It is arbitrary, undermining the very purposes of the "CDSA", which include public health and safety. It is also grossly disproportionate: the potential denial of health services and the correlative increase in the risk of death and disease to injection drug users outweigh any benefit that might be derived from maintaining an absolute prohibition on possession of illegal drugs on Insite’s premises (at para. 136).

The court’s order that the Minister grant an exemption to Insite under s. 56 of the CDSA would be approved of by MacKinnon because it is rejecting and correcting the domination of marginalized members of society by the powerful.

Navigate to Other Legal Theories

Theory	Philosopher
Natural Law	Thomas Aquinas
Positivism	John Austin
Separation Thesis	Hart Fuller
System of Rights	Ronald Dworkin
Liberty & Paternalism	John Stuart Mill Gerald Dworkin
Law As Efficiency	Adam Smith
Feminist Jurisprudence	Catharine MacKinnon