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

Feminism: Introduction

Feminist theories of law break into different bundles of views rather than a single school of thought such as legal realism. This is based on the belief that women have many different social realities and experience things differently. Feminism concentrates on concrete and real experiences had by women in society, it is a practical theory rather one that is strictly philosophical.

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However, even though the theories differ in various ways, they all extend from two main premises:

1. The world we know of today has been structured by patriarchy and the dominance of men over women.
2. Patriarchy is bad for women, it is morally unjust, and ought to be eliminated
   

Feminist theory expresses that laws created and sustained by strong patriarchy in society and therefore often, “[challenge] the central tenets of traditional jurisprudence,” rejecting “meta theories” as fictions created by patriarchy that feed evil needs.

Patricia Smith: Law as a Patriarchal Institution

Feminist Jurisprudence and Natural Law

Feminist jurisprudence is described by Catharine MacKinnon as “the analysis of law from the perspective of all women." The main objective of feminism is to analyze the legal system and its effect through the experiences of women. However its important to understand that this is not a definition, as it is false to think women have one perspective. The premise which is agreed upon is that society is molded from patriarchy and that it is bad for women; so therefore the best way to define feminist jurisprudence is “the analysis and critique of law as a patriarchal institution."

Feminist Theories

Feminism has a diverse approach to understanding society and law along with possible solutions. The main theories of feminism are as follows: Liberal feminism, Radical feminism, Marxist feminism, Postmodern feminism and Relational Feminism

Liberal Feminism

The central view of liberal feminism is that women are kept as subordinates to men in society and that such a dynamic is created by social barriers to women socially, politically, economically. Liberal feminism explains that if women were to be treated equally then social barriers would subside; being treated equally would pertain to every situation of life. Law should be “gender blind” and there should be no restraints or assistance on the basis of sex. A solution for liberal feminists is the removal of all social barriers, where equal opportunity is held for both men and women in the political, economic and social spheres. Modern liberal feminism foresees the establishment of equal opportunity to involve elimination of discrimination and stereotypes. A reorganization of gender spheres where realistic opportunities are made public for women is necessary. Responsibilities, such as motherhood, must be acknowledged as worthy in society to be able to fall within the same sphere of male responsibilities and establish equality.

Radical Feminism

Radical feminism focuses mostly on gender roles as social construct, a fiction made by men in the patriarchal system. Patriarchy is described as a tool by which men dominate women, by creating social constructs of the appropriate roles of male and females in society. The most dominant idea is that patriarchy is so deeply rooted into our society, permeating in all aspect of our lives, that it must be taken apart. The general roles of men and women are said to be a fiction created by patriarchs, which are ingrained in youth through socialization. The only solution would be to reconstruct the idea of gender in order to create equality. Some radical theorist such as Adrienne Rich and Mary O’Brian have concentrated on the role of women as mothers and child bearers; they argue that women should be either relieved of this responsibility or to have sole control over it.

Marxist Feminism

Marxist feminism doesn't believe construction of gender is the main issue and that oppression of women is actually from the effects of Capitalism. Capitalism created concepts of private property and subsequently divided the world into the public and private spheres. Women were then put into the non-economic private sphere where their responsibilities became to bear children and take care of the home. This devalued female labour in the market and their labour was seen as having no value for the advancement of society. Since women were seen as being unable to create a profit, they were seen to be useless and of no economic benefit. The solution presented by the Marxist feminist is to change the economic system, uproot the system of capitalism through revolution, so that women will no longer be economically dependent, marginalized, and exploited.

Postmodern French Feminism

Postmodern (French) Feminism rejects the idea of a one step solution to the problem of patriarchy and suppression of women. They express that the approach that a single answers exists to be a typically male approach and, according to Postmodern Feminism, there cannot exist a single strategy. The focus should rather be on the concrete, lived experience of women’s lives. This theory views the juxtaposition of women as “the other” as a positive distinction. It is not to be thought of as being marginalized or objectified but rather women can be celebrated as being the other while also join the male value system.

Relational Feminism

Rational Feminism explains that women and men go through different moral development by socialization forces. Males are socialized under the idea of ethics and justice, where principles and rights are concentrated and abstract (144). Whereas women are socialized under ethics and care, where the focus is on concrete relationships, concern for others and responsibility for others. However, relational feminism does not see this difference in socialization as a bad thing. Women do not need to assimilate with the male system; rather, society must see the value in the female perspective and legitimize it as valued. Therefore, institutions must change to reflect and accommodate the values and virtues of women, such as sympathy, patience and concern.

Law as a Male Power: Catherine Mackinnon

Catherine Mackinnon, a radical feminist, states that law itself creates the system where power is enforced and implemented. Mackinnon argues that law is the hammer of oppression while also acting as source for neutrality and equality. Her famous metaphor for this relationship is that law is the “site and cloak of force.” Law is the force which legitimizes the system of oppression by being masked as neutral and equal when in reality it stems from the same patriarchal system which has perpetuated subordination. The law immunizes the male point of view in concepts such as the rule of law, precedent, the reasonable person and norms of judicial restraints and prohibits a challenge to these concepts, by cloaking them as sources of equality.

Mackinnon argues positive laws which establish legal equity for women are not the solution to end oppression. It is the entire social and legal system which perpetuates the inequality and the only way to fight against the cloak of the law is for women to demand actual equality. Women should own their reality and not be ashamed of the work that is done in the private sphere. Women must stand up, speak up, and fight against degradation of women in society. Furthermore, women must be cognizant that male dominance is often embodied in individual rights. Activities which degrade women in society are hidden under the concept of individual rights; so that it becomes unnatural and frowned upon to question them. For example the sexualization of women in pornography or music videos is often protected under the concept of freedom of expression and speech. Violence in the home is hidden under the concept of freedom to privacy. MacKinnon asserts these societal concepts must be recognized and confronted. The question which needs to be asked on a case by case analysis is “does a practice participate in the subordination of women or not?” Concepts such as the objectivity and neutrality of the law as 'cloak' must be remembered and applied to such a critical analysis in order to break through the system of male domination.

Application to Geffen v Goodman Estates

Catherine Mackinnon would point to equity as an example of a system of laws which are cloaked by the presumption of fairness and equality. She might assert equity as being a legal device which continues to maintain and perpetuate male dominance and subordination of women. Equity veils the system of social and legal dominance as something that is natural and fair. It makes it hard for subordinated members of society to stand up and question the legal system because once the law or particular case is vetted through the system of equitable court then it can no longer be said to be unequal when in reality and its operation it is.

In regards to the presumption of undue influence at the case at hand, Mackinnon and along with other feminist theorists would highlight that minority groups, such as women, will usually experience undue influence from male counterparts in their lives. Although the recognition of this force in private relationship seems be positive recognition of women as oppressed, its application in reality is perpetuating the system of male dominance. By putting the onus of proof on the party seeking protection the legal principle sets up a further blockade for the disadvantaged.

Furthermore, the fact that the presumption of undue influence is often rebutted by presence of independent legal advice demonstrates the failure of the principle to take account of the longstanding system of oppression. Feminist theorist might say that even if a party has sought out legal advice this does not alone erase the pressures of dominance which have been put upon them from the social and legal system. The pressure put onto women and other minorities to assimilate to the system maintained by patriarchy cannot be simply negated by seeking legal advice which is in itself yet another field of male dominance. We saw this play out in Geffen v Goodman Estates, where the presumption of undue influence was rebutted by the fact that Tzina sought legal advice. The court did not take into account the individual circumstance as a mentally ill women who had depended on her male siblings her whole life. It is in such situations where Mackinnon and other feminist theorists argue that male dominance is engrained in our entire legal and social system, self sustained, and able to perpetuate through all aspects of the legal system.

On the other hand, feminist theorists could conclude the doctrine of undue influence is a tool by which minorities such as women can be protected from the patriarchal force in society. By establishing a presumption of undue influence, subordinate members of society have the opportunity to push back against the oppression against them. The Post Modern Feminists would be supportive of this theory because the ability to rebut the presumption provides for the opportunity to examine the real life experiences of each person individually in the case, rather than presenting a general solution. Furthermore, Liberal Feminists could be in support as the presumption provides women with the opportunity to highlight how they are being suppressed and treated unfairly, this could be a step towards building the gender blind hopes of the Liberal Feminists.