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

Overview:

Feminist jurisprudence focusses on the interaction between women and the law. Although there are many different theories including liberal feminism, radical feminism, Marxist feminism, post-modern feminism and relational feminism all share one common theme – rejection of the patriarchy. The patriarchy can be described as a social reality in which women are subordinated and men dominate. Although this system pervades our world, the patriarchy is a social construct and can only exist with the support of law and customs. Feminist scholars challenge these “traditional” legal values by arguing that aspects of the law including its neutrality, the rule of law, model for judicial reasoning, separation from politics, and separation from morality are all fictional constructs and that they disadvantage women.

Various Feminist Theories:

Liberal Feminism:

Regarded as the “core of feminism” liberal feminism argues that subordination prevents access to success in the public sphere for women. As women’s roles often operate in the private sphere, this work can go unrecognized or undervalued. Liberal feminists argue that by acknowledging that domestic work is valuable and equally important to what occurs in the public sphere, patriarchal institutions can be overcome.

Radical Feminism:

Challenges liberal feminism by arguing that acknowledgement alone will not significantly change the role of women in society. This theory argues that the patriarchy is so deeply rooted in society that only fundamental reworking of our social institutions can bring about significant change. This theory also focuses on biology’s role in the patriarchy including childbearing responsibilities, sexuality, and violence against women.

Marxist Feminism:

Focuses on the oppression of women under the capitalist system and the devaluation of domestic work.

Postmodern Feminism:

Rejects previous theories and celebrates the role of women outside of the patriarchy. For postmodern feminism there is no singular solution to female oppression as each woman is different.

Relational Feminism:

Celebrates the different moral perspectives women have including morals that place primary value on maintaining and nurturing relationships. For relational feminism these are qualities for the mainstream patriarchal society to embrace and incorporate for the benefit of everyone.

Application to the Case:

Hodgkinson v Simms is a difficult case to view through a feminist theory lens. As the case does not deal with any issues of gender or sexuality, a direct application of many of the theories may not be possible. However, the fiduciary duty described in the case is indirectly applicable to relational feminism. As discussed, this theory encourages an ethics of care that values maintaining and nurturing relationships. The court in this case extended fiduciary duty to cover the relationship between the appellant and respondent. In doing so, the court promotes that beneficial and honest relationships are to be valued and deviance from this should be punished. The relationship between investment adviser and client could be seen as analogous to that of a mother and a child. A fiduciary caretaker protects and nurtures the relationship, with the weaker party's interests continually in mind.

A relational feminist would likely approve of the Supreme Court's decision in Hodgkinson v Simms, and may see it as an effort to inject an ethic of care into the traditionally male-dominated field of business and finance.