Learning about other philosophies and perspectives presents one with a broader understanding of issues not only in the legal realm, but in society as well. Feminist critiques of law are well founded, justified, and raise a number of important issues for discussion. By bringing new points of view to a discipline it raises critical questions previously unconsidered. People see the world as they are trained and conditioned to do so. Feminism offers a unique perspective and essential insight into areas such as law that have been traditionally male dominated. The idea of equity is important. Seeing the person before the gender, seeing individuals for who they are, and recognizing the profound differences between male/female, and man/woman is important. The concept of equity and not equality is tenacious, because it recognizes and accounts for differences between people.
The feminist critique questions objectivity within disciplines such as law because it is done by people (lawyers and judges). The law is not value free, it is shaped by our society and patriarchy plays a pervasive role. Feminism strives to bring gender neutrality to the law and encourages critical critique of jurisprudence. Patricia Smith, contends “feminist jurisprudence is the analysis and critique of law as a patriarchal institution”. Feminist legal theory is comprised of a variety of perspectives, including: liberal, radical, marxist, and postmodern.
Liberal Feminism: considers equality to be of the utmost importance.
Post Modern Feminism: views woman as the “other” and outside the main category. The patriarchal system imposes law on the “other."
Radical Feminism: argues society views women as sex objects which are exploited by the patriarchy.
Marxist Feminism: They consider issues of class and oppression of the people by the capitalist system.
One uniting principle is their universal rejection of the patriarchal organization of society, including patriarchy in the legal system and within the law itself. Moreover, throughout feminist legal theory’s external critiques of legal structures, are challenges to the neutrality of law, impartiality of judges, model of judicial reasoning, and the separation of politics and morality.
The feminist legal scholar Catherine Mackinnon, sees two things unfold when the state incorporates patriarchy “the law becomes legitimate, and social dominance becomes invisible”. Further, she argues that through “legal mediation, male dominance is made to seem a feature of life”. Many feminist scholars believe patriarchy must be dissolved, which Patricia Smith argues would amount to a cultural revolution if patriarchy was indeed rejected. She asserts that “what changes in a cultural revolution is what people think, their basic assumptions about what is normal, when women and men actually think of themselves as equals, the world will have changed”.
Application to the Case
Karen Warren in an article “Surviving Patriarchy” writes that feminist ideals are extremely important in changing patriarchy and creating “healthier, life affirming, cooperative, care-based, non-violent, intentional communities, organized in non dominating ways to ensure that the basic needs of individual and group members are met”. Feminist ideas are applied broadly and generally in this case. The problem faced by the Supreme Court is access to medical care. This restriction is a classic form of patriarchal oppression on society. The creation of a two tiered system is a success to many feminists who would view it as protecting members of society by limiting death, while on the other hand creating an unbalanced two tiered system which flies in the face of equality for liberal feminists.
Health care and access to services is of critical importance to women and is rife with patriarchal control historically. It is important to note differing realities for women because just because women are able to bear children does not mean that doing so is essential to their nature. That said, childbirth is a contentious issue with respect to feminism. Traditionally, women controlled health care with respect to pregnant women. Men were excluded from the practice of midwifery until the 18th century when they began to dominate the practice under the auspices of improving it. This led to the medicalization of childbirth, bringing women to lying hospitals and the development of obstetrics as a discipline.
Women face unique circumstances with respect to men when it comes to health care. Delay of procedures can cause clear risk of damage to physical well being of a woman and this is a principle of fundamental justice. Marxist feminists could consider this judgement to have negative consequences with the creation of a two tiered system that caters to the capitalist system where those with the means have greater access than those without.
Another issue for feminists is the concept of judicial impartiality, the objective of which is fairness and neutrality in the law. Feminists would view this as a misnomer as this concept at its core perpetuates the oppression of patriarchy. This is applied only to further the aims and goals of the white male dominated society. Feminists have a strong critique of the legal system and see it as deeply flawed. The law should give us nightmares… it is practiced by lawyers steeped in patriarchy and blind to prejudices that brings to the treatment of the “others”.
- Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 141.
- Ibid at 150.
- Ibid at 150.
- Ibid at 147.
- Ibid at 148.
- Ibid at 212.
Pages in category "Feminist Jurisprudence"
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