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

Feminist Legal Theory

While feminist theories have developed a great deal over time, there is an underlying presumption that is a core of the theories, and that is that “a patriarchal world is not good for women” (Dimock, Classic Readings and Canadian Cases in the Philosophy of Law at page 141). The ideas of power imbalance and dominance by males in society are the central tenets of feminist ideology. Feminists would reject completely Hart’s thesis of the separation of law from morality, because it further justifies that a law could still be a law that must be obeyed despite the particular law being detrimental to women.What has changed among Feminist theories, and over time, is the belief about how this can be resolved. Earlier theorists simply argued for the treatment of men and women as equal under the law. Over time, the idea of what this equal treatment would actually look like has changed drastically. Here is a brief summary of some of the major feminist positions:

Liberal Feminism: This theory of feminism is most closely connected to Dworkin’s theory, focusing on principles of fairness and justice. From a liberal feminist perspective, what is required to change the legal system is removing blocks that have historically prevented women from having equal success to men. The focus is on ensuring that the law is “blind” to gender, and that the law should simply treat men and women equally.

Radical Feminism: Radical feminism would advocate for an entire overhaul of the patriarchal system. Radical feminists view the structures of society as fundamentally flawed and based on false or socially constructed gender roles.This group would view the idea that law is neutral as a fallacy.

Marxist Feminism: Marxism feminism is similar to radical feminism in that it views the current systems in our society as fundamentally flawed. However a Marxist Theorist would view the source of the flaw as being the Western “Capitalist Society” which perpetuates the idea of wealth as the source of power. A Marxist Feminist would challenge the lack of value placed on tasks such as domestic labour and child rearing

Post-Modern (French) Feminism: The post-modern view focuses on the experiences of the individual as central. This perspective advocates celebrating and acknowledging difference and individuality.

Relational Feminism: Relational feminism acknowledges that women, through socialization, have a different moral perspective from men. Relational feminism looks at the most effective way of creating change as integrating the moral perspective of women into the structures of the current system.

Feminist Theory and Canada v Bedford

Generally under a feminist analysis, prostitution would be seen as one of the most harmful and degrading activities to women in a patriarchal society. There are a number of feminist theories though which would still view the decision in Bedford as problematic.

A Liberal Feminist would say that due to the reality of potential harm to sex trade workers resulting from the impugned provisions, that striking down the provisions is long overdue, and that The Court should have taken the opportunity to strike down the provisions in its previous Reference on Prostitution. The decision is an acknowledgement that the provisions in place did not actually protect the security of sex-trade workers, and was making the situation for those women depending on this livelihood more difficult. This would be a “block” to those women dependent on an income from prostitution which would not affect men in the same way, and therefore a Liberal Feminist would support that block being removed.

A Radical Feminist feminist would disagree with the Liberal Feminist position. This group might argue that any attempt by parliament to implement laws regulating prostitution are problematic, as they are an acknowledgement that prostitution and exploitation of women will continue in our society. This can be seen from paragraph 5 of the decision:

“However, prostitution itself is not illegal. It is not against the law to exchange sex for money. Under the existing regime, Parliament has confined lawful prostitution to two categories: street prostitution and “out-calls” — where the prostitute goes out and meets the client at a designated location, such as the client’s home. This reflects a policy choice on Parliament’s part. Parliament is not precluded from imposing limits on where and how prostitution may be conducted, as long as it does so in a way that does not infringe the constitutional rights of prostitutes.” (Canada (Attorney General) v. Bedford 2013 SCC 72 at para 5.

From a radical feminist perspective by striking down the provisions temporarily parliament is simply allowed more time to figure out a way to regulate the sex-trade industry. In this way our patriarchal system is perpetuated.

Like the radical feminist position, a Marxist Feminist would be critical of the fact that the decision is an acknowledgement of the fact that prostitution is accepted in our society. The Marxist concern would be focused on the fact that prostitution only exists because of the nature of the capitalist system. Very few women would be likely to engage in prostitution if it did not produce a significant income. Further, there would be no clients if it weren’t for the excess of wealth that is accumulated through capitalism.

A Post-Modern Feminist would be more likely to be supportive of the decision of the court because the decision is in fact based on the experiences of individual women The decision will hopefully (through future provisions) allow those women who might wish to engage in the sex-trade greater autonomy and greater personal choice.

Relational Feminists would also view the decision as problematic. The decision is still rooted within the moral perspective of a legal system dominated by males. One view, reflected in the following article is that the provisions should have been challenged under section 15 of the Charter as unequal treatment of a group:

Elizabeth Picket, “Supreme Court of Canada removes laws criminalizing prostitution: What’s next?” The Feminist Current, (20 December, 2013) online: http://feministcurrent.com/8441/supreme-court-of-canada-removes-laws-criminalizing-prostitution-bedford-elizabeth-pickett/

In conclusion, while feminists generally would agree that the provisions as they existed were problematic, there is a wide range of views as to how this should be resolved. The dialogue is likely to continue as new provisions are drafted by Parliament. A final point on which feminist theorists would likely agree is that the voice of women, and sex trade workers must be included in the discussion moving forward.