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.

2) Radical Feminism

As opposed to the liberal feminists who believe the patriarchal system can be correct, the radical perspective believes that it needs to be completely re-built. The come to this conclusion by focusing on the social construction of gender itself. That gender itself is a performance, it is something that we decide to adhere to based on the social perspective.

MacKinnon's Radical Feminism

MacKinnon takes a closer look at the radical feminist perspective. That the law is the "site and cloak of force". It is in law where the power of that patriarchal structure is both upheld and enforced. Law is the hammer that maintains the level of oppression, and it does so under a "cloak". Under this cloak, society at large would not be able to realize that these oppresive practices are even taking place.
The law itself legitimizes male domination, and makes it invisible to the world. That the theories of law that suggest it is based on the principals of fairness and justice are just a guise to continue with their oppressive agenda. MacKinnon suggest that in order to change this there needs to be two fundamental changes: 1) Women need to really claim there concrete reality, and to stop being embarrassed about it. The things that make a women's experience different have been devalued, and in order to counter that they need to establish the reality of their experience. 2) Need to recognize exactly how women's rights are being undermined. MacKinnon believes that rights themselves are an illusion. The notion of rights keeps society happy, when in reality they are being used to accomplish all the detrimental impacts on women. Examples include: pornography as being described as a freedom of speech, that privacy rights encourage domestic violence and child abuse, and right involved with child custody gives the man power of women even after a relationship has ended.
Ultimately, the question is whether or not a practice participate in the subordination of women? In coming to this conclusion, we must be ever vigilant of the "cloak" of male domination in Law.