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

Feminist Jurisprudence

The feminist theory focuses on women as a traditionally silenced subject of the law. But it does involve a number of related viewpoints, rather than one single theory. But the common theme of all of the different theories is that world around us is structured by patriarchy, which is the “systematic and systemic domination of women by men.” Feminism argues that patriarchy seems to be normal, but is actually socially constructed and that people within this system maintain this system. There are certain central tenets of the traditional legal system that feminism looks to challenge. These values result in making the inequality between men and women legitimate and concealed. These tenets are:

• The neutrality of law
• The ideal of the rule of law
• The model of judicial reasoning as logical deduction
• The separation of law from politics
• The separation of law from morality

As mentioned earlier, there are a number of different viewpoints of feminism that include liberal feminism, radical feminism, Marxist feminism, postmodern feminism, postmodern feminism and relational feminism.

Liberal feminism main belief is that the subordination of women prevents access for women to have success in the public sphere, and by removing these obstructions, it would lead to equality. Radical feminism believes that the entire system needs to be reconstructed in order to better help the oppressed. Marxist feminism sees the oppression of women being a result of the capitalist system, since it treats the ‘private domestic sphere’ (child rearing, home based work) as useless since it does not benefit the economy. Postmodern feminism embrace’s the female position of being an ‘other’ within the patriarchal system, and claims that it should be celebrated, while stating that there is no single solution to the issue of oppression. Lastly, relational feminism seeks to establish a different moral perspective from that of men’s, and that the public sphere must change to incorporate this.

Catherine MacKinnon

Catherine MacKinnon believes that law and society are about power, and that law is about the dominance of men over women. Law is a male creation, since it was created by the powerful in society to benefit the powerful. She claims that laws are social artifacts, and that they make female domination by men invisible. This invisibility is a result of law adopting the ‘male point of view’, making it appear as both natural and right, leading to the legitimacy of the domination of women. MacKinnon contests that positive laws allowing for male domination do not exist, because they do not have to. Since there is nothing within the law, or outside of it, preventing male dominance. It will always appear to be natural. MacKinnon believes two steps need to be taken in order for women for women to change the relationship between men and women. The first being that they must demonstrate women’s actual reality for what it is; a political and social institution. This reality is things such as unequal pay, allocation to disrespected work, targets of physical and sexual violence, and denial of reproductive control. The second step is to recognize that male power over women is being embodied as individual rights within law. Only by taking these two steps can we hope to rid the law and our society of the ingrained domination of men over women.