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

Introduction to Feminist Jurisprudence

The feminist approach to jurisprudence is both modern and multi-dimensional. The diversity within the theory itself stems from being centred around the "lived experiences of women". No two people are alike, and thus a theory which champions the different perspectives and experiences of all women is inherently complex with many different approaches and ideas.

Despite the existing differences, there are underlying core concepts to the theory of feminist jurisprudence. Two of these fundamental core concepts are; the world as we know it is structured by patriarchy. and that patriarchy is bad for women, morally unjustified, and should be eliminated

Many of the differences among feminist theorists stems from the second concept, and disagreements over how to change the existing status quo of a society structured by patriarch.

Evolution of the Feminist Theory

The Feminist theory evolved throughout history, with different branches to the theory emerging. Often different perspectives within the theory developed in response to the disagreement among feminists over whether men and women are fundamentally the same, or fundamentally different.

The early classic feminist writings are more associated with liberalism and the idea that men and women are equal. The idea of liberal feminism, emerging in the 1960's and 70's was that sex equality could be achieved by removing the existing barriers limiting women's participation in political, social and economic spheres of life.

Feminists following this first wave of classical liberal feminism largely found that removing legal or formal restrictions did not have the intended effect of creating equality for women due to the realities of women. The modern liberal view has found that despite removing formal barriers, informal barriers continue to exist and women continue to face discrimination and stereotypes.

Radical, Marxist and postmodern feminists all approach the concept of feminist in a different way. From the radical perspective that equality can only be achieved by completely changing the way we think about gender, to the Marxist perspective that the way to alleviate the oppression of women is to replace the capitalist system with a socialist system.

Another important trend in feminist thought is that of relational feminism, which approaches the idea of equality from somewhat of a different perspective. Relational feminists believe that men and women are not fundamentally similar and that it is an important aspect of feminism for women to change institutions to reflect values of importance to women, rather than conforming to the male dominated patriarchy.

While this sameness/difference distinction has been important in founding the tenets of different views of feminism, many feminists argue now that there is little place for this debate in the goal of creating sex equality. Indeed some feminists have argued that the issue of difference that matters, but rather that the disadvantages that women face that should be the focus of change.

Response to Feminist Critiques

One critique of feminism is that it can be reduced to the theories that inform it, for example, liberalism. Such critics argue that feminism neglects to bring any new ideas to the theoretical table. A response to this critique has been to acknowledge one of the essential tenets of feminism, the rejection of the patriarchy. The rejection of the patriarchy is an element to the theory that distinguishes it from all the others.

Another critique which arises from this point, is that a theory only concerned with the rejection of the patriarchy is not very interesting or thought provoking Feminists can argue that this idea of the patriarchy is wrong as a rejection of the patriarchy is a revolutionary change. It can even be stated as being a "paradigm shift" in thinking.

A difficulty in categorizing the feminist theory as revolutionary is that the response to revolutionary shifts in thinking is often negative. People respond to revolutionary change by neglecting to take such ideas seriously; they are met by ridicule or even fear.

Because the response to feminism being seen as a revolutionary shift in thinking is often too large for people to grasp, feminists have tended to focus on specific issues that pertain to women rather than the general underlying critique of the patriarchal system. Some of these specific issues include: sexual assault, abortion law,domestic violence, the wage gap and obscenity laws. The case of B.M v British Columbia is a case which raises the specific issue of domestic violence and the recognition of the harm it causes to women.

Toward Feminist Jurisprudence

Catherine MacKinnon

Catherine A. MacKinnon discusses the idea of the law as male power, by examining how a male dominated world has created institutional structures that uphold the exclusion of women in the public sphere, and allow for discrimination and disadvantage to continue to inform the realities of women. She argues, based on the hierarchical structure of society, that the existing social dominance is "invisible", and laws created are held to be legitimate.. She states that "no law gives husbands the right to batter their wives. This has not been necessary, since there is nothing to stop them". This chilling quote strikes to the heart of the feminist theory, which calls for the recognition of the inequalities that exist in regard to the disadvantages women face.

MacKinnon argues that inequality between the sexes exists largely because of the "sex-differential abuses" that women as a gender face, such as sexual abuse. She states that sexual abuse has not been seen as a sexual equality issue because it happens almost exclusively to women, and that womens "relegation to inferiority...is that it is generally not done to men.

In order to change the reality of sex inequality MacKinnon advocates for a recognition of the reality of women in the contexts of sexual assault, domestic battery, sexual harassment, unequal pay etc. This is the first step. She then states the next step is to recognize that men hold power over women in the law, which is illustrated in many ways, such as the defense of mistaken belief of consent in the rape law. She argues that real sex equality law would eliminate the powers of men's right to "access, possess and traffic women and children".. She also argues that civil remedies pertaining to issues regarding sex equality for women under the law should be emphasized.

Application to B.M v British Columbia (Attorney General)

An aspect of the reality of women is that of domestic violence. The fact that the majority upheld the argument that there was no causal link between Constable Andrichuk's negligence and the harm incurred by B.M is an excellent example of how the legal system has excluded the reality that women face of domestic violence. The rules that allowed such decisions to exist perpetuate and uphold sex inequality. It is clear the ultimate concern of the majority in the case of B.M v British Columbia was not the fact that B.M was the victim of harm, as a woman in a vulnerable position. The judgement confirmed the decision within the current acceptable rules of causation in tort law. The majority judgement did not reflect the need to recognize sex equality in the law as a subjective measure based on the realities of women.

The issue of domestic violence has in the past been largely avoided in the law, as it has been seen as being a private matter between domestic partners.While that view has changed in some ways, the law has not gone as far as to establish that police owe a duty of care to protect women from domestic violence. In this case the court neglects to find that police owe a private duty to protect women in such situations.

The very fact that Constable Andrichuk did not conclude the occurrence between B.M and R.K was cause for any alarm, is an issue that from the feminist perspective is representative of the disadvantage that women face on a regular basis. B.M was aggressively harassed on March, 1996 where R.K blocked in her car and then proceeded to follow her around. Her complaint was met by Constable Andrichuck who told her to remain in public places. The response to her complaint illustrates her subordinate position, and lack of power in comparison to that whish R.K held. By deciding not to follow up with B.M's complaint, Andrichuk allowed the inequality of power between the former spouses to continue to dictate how B.M lived her life; She lived in fear, and was ultimately powerless to control her situation.

Interestingly the decision of the court in this case held that Andrichuk was also powerless in this situation. In the decision they held that even if Andrichuk had followed up with the complaint, there was no way to know whether it would have made a difference. R.K may still have become violent towards B.M and her friend and child, as R.K had a "violent and unpredictable nature". Saying there was no causal connection between a threat of violence by a dangerous man and the ultimate harm he caused and the failure of the police to respond, upholds the power of a violent "uncontrollable, unpredictable" man over the woman who perceives the threat of harm.

The majority in this case neglected to look to feminist jurisprudence and the reality of women in making their decision.