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

Feminist Jurisprudence

Mackinnon's Approach

Like legal realism, feminist theories of law form a cluster of related views rather than a single school of thought. However, Catharine MacKinnon advanced that the central focus of feminism is to represent a woman’s side of things. It is important to note that there is no single perspective of women. In general, there is no sole solution to the oppression of women; oppression is not singular. As such, feminists focus on perspectives and experiences of women, generally, and on broader issues of importance such as equal protection.

Catharine MacKinnon

Patricia Smith, a feminist theorist, contends that the nature of women has been formulated through the male eye. She argues that men have determined the interests and abilities of women. Her theory is founded in law as a patriarchal institution. This line of thought is grounded in the domination of men over women. Subordination of women is perpetuated through this institution and creates legal and social barriers in the public sphere. Patricia argued that patriarchy is so pervasive that it structures our thoughts, attitudes, assumptions and basic institutions.

Catharine A MacKinnon views law as a male power. To her, society is a construction of male supremacy. The male standpoint dominates civil society. She purports that sex inequality is the true name for women’s social status and condition as subservient to that of men. Women are sexually objectified through violence, rape, and pornography. It is through these mediums, in particular pornography, which sets the public standard for the treatment of women.

Early liberal feminists tended to be very individualist. They argued for equal rights and equal freedom. Feminists from this era believed that all human beings are moral equals and as such law should be gender blind. Taken together, whether classical or modern, liberal feminists believe the solution to female oppression is to provide equal opportunity.

Radical feminists focused on the domination of men over women through the social construction of gender within the patriarchal institution. The solution to female oppression, through the eyes of a radical feminist, is to reverse the institutional structures of domination.

Application to Case

In Alberta v Elder Advocates of Alberta Society the question presented to feminist jurisprudence is whether the relationship between the nursing home residents and Alberta Government is sufficient to raise a fiduciary duty.

In this context, the separation of powers, which operates within Canada, can be viewed much like the patriarchy institution; with the legislature taking on the role of “men” and society, the role of women. Much like the patriarchal institution the legislature has the supreme authority to create law. Through law, members of the legislature advance personal thoughts and beliefs onto society.

Radical feminists believe the solution to oppression is the reverse of the patriarchal institution. Arguably this is already at play in Canadian society. Although the legislature yields control over society, it is the members of society that elect these representatives. To an extent, the solution proposed by radical feminists has been undertaken and accounted for.

Liberal feminists argued that no special assistance or restrictions should be granted on the basis of sex. With relation to the equivalent patriarchal system operating in Canada, a liberal feminist would purport that nursing home residents (if sex is substituted with age), though vulnerable, should not be given special assistance. As such, the unjust enrichment claim, to a liberal feminist, would fail. If all are to be treated equal under the law, no preferential treatment should be imposed. Therefore, irrespective of their vulnerable status, since society is subject to arbitrary charges, elders are too. The legislature, in the “male” role, should have freedom to set the accommodation charges that are under dispute.

Feminist Jurisprudence edited by Patricia Smith

Carol Gilligan, a relational feminist, hypothesized that men and women are not fundamentally similar, rather, men and women undergo different moral development. If we transpose the legislature with the attitude of men, then the legislature concentrates on abstract rules, principles and rights. Society, taking the moral attitude of women, is concerned for others and responsibility. To award a fiduciary duty would be an intersection of these opposites.

The court was left to decide whether the Alberta government, by right, owed a fiduciary duty to the nursing home residents. The court held that the vulnerability of this group did not arise from their relationship with Alberta. While there is concern for the elderly, social construct did not dominate or exacerbate this group. It is a fact of life that as we age, we become more vulnerable and dependant on others. Again, this aligns with the ideals of liberal feminism. In addition, the claim was based primarily to setting accommodation charges, not the charges themselves. It was not for the court to determine how the government sets accommodation rates. To do so would overstep the boundary of the judiciary; and detract from the efficiency of the Canadian separation of powers, patriarchal institution.

It is relevant to note that at the time of this decision, four of the Supreme Court Justices were women. Madam Chief Justice McLachlin wrote the majority, unanimous decision. Four women felt that no fiduciary duty was owed to the nursing home residents. It was undisputed that the requirements to establish such a duty were not met. The court held that although the financial situation of this group may be affected by inflated rates, that alone is not a supportable cause of action. The threshold would be too low. To impose a duty would produce adverse effects. Deciding how to implement medical care requires constant balancing of competing interest groups. To impose a fiduciary duty to one group would detract from the Crown’s ability to meet its public obligations. Arguably, liberal feminists would have viewed the recognition of a fiduciary duty as awarding special treatment. Taken together, with women on the bench, male norms are being challenged. Women in the Supreme Court of Canada hold significant power and authority. Catharine MacKinnon claimed that law perpetuates silencing women. Such a proposition cannot be true with women on the bench. Women now hold a substantive role in the participation and design of laws. Their voices are being heard loud and clear.

References:

JURISPRUDENCE

Alberta v Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 SCR 261.

SECONDARY MATERIAL

Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law, (Toronto; Pearson Education Canada, 2002) ch 6

Links to further treatments of the case:

Legal Perspectives		Philosophers
	Natural Law	Thomas Aquinas
	Legal Positivism	John Austin, HLA Hart, Jeremy Bentham, and Joseph Raz
	Separation Theory	HLA Hart and Ron Fuller
	System of Rights	Ronald Dworkin
	Liberty and Paternalism	John Stuart Mill and Gerald Dworkin
	Law and Economics	Susan Dimock
	Feminist Jurisprudence	Patricia Smith and Catharine Mackinnon
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