Course:Law3020/2014WT1/Group D/Feminist Jurisprudence
The underlying core of the feminist jurisprudence theory relies on the premise that the world is structured by patriarchy, which is the systematic and systemic domination of women by men (140). Therefore, viewing the law through the lens of feminist jurisprudence entails critiquing the patriarchal despotism of the system.
This analysis and critique thereby focuses on a variety of issues affecting women such as equal protection laws, discrimination in education, hiring, promotion and various patriarchal biases in law. The feminist jurisprudence contains many different theories such as:
Subordination of women is achieved by the blocking of paths leading to success in public spheres. Liberal feminism argues for a “gender blind law”, where there no special treatment afforded to individuals based on gender.
Focuses on the social construction of gender within patriarchy. Radical feminism purports that the actual idea of femininity cannot be deciphered until the norms underlying patriarchy are dismantled. According to Radical feminism, patriarchy is deeply rooted in society and fundamental changes to the basic structures, such as the socialization of the young, are direly needed to uproot patriarchy.
This theory, much like its predecessor, argues that oppression of women is a byproduct of capitalism and its characterization of the “private” domestic sphere (child bearing and rearing) as economically defunct principles.
Postmodern feminism is critical in nature and utilizes the techniques of deconstruction to showcase the underlying and internal contradictions of patriarchal systems. Under this theory, the “otherness” of women is embraced as a distinctive and separate entity that does not need to be evaluated by standards of patriarchy.
This theory reverses the focus of some earlier theories, such as the call for equal rights for women. A staunch proponent of this theory, Carol Gilligan, hypothesizes that men and women are fundamentally different. As a result of these differences men are more abstract and women are more so concerned with relationships and responsibilities. Therefore, the role of women is to create a niche that is separate from the typical male standard.
Nevertheless, there is a fundamental premise that guides all theories and that is the rejection of patriarchy. In essence, the critique of law under feminist jurisprudence is based on assumptions and perspectives of a group that is outside the patriarchal structure of the law. From this perspective, male supremacist jurisprudence erects and furthers standards within law and society that cater to a male point of view(150).
The power balance within society is predominantly shifted to male centered views reflecting the norms present within institutions that become the status quo. Due to this imbalance within society and its institutions women are not permitted fully to comprehend what sex equality would look like, because inequality is the standard women have primarily lived with.
Case Study: Eldridge v B.C.
In the Eldridge case, Justice La Forest contended that an omission to provide sign language interpreters for deaf individuals in a medical context violated the basic tenets of section 15(1) rights. Viewing this case under a feminist jurisprudence, one can extrapolate the undertones of inequality that women face on a daily basis and apply it to other vulnerable groups such as deaf individuals, who face inequality on the basis of their physical disability.
As part of his judgment, Justice La Forest engages in the history of how physically disabled individuals in Canada have undergone exclusion and marginalization (56). He cites examples of how persons with disabilities have faced discrimination in the work force and have been subjected to degrading stereotypes. A prevailing view of physically disabled individuals as flawed individuals within society has accorded them with substandard treatment that contradicts the “equal concern, respect and consideration” aspect within Section 15(1) of the Charter.
Additionally, disabled individuals have to cater to the norms of able-bodied individuals that dominate every aspect of society. As a result, disabled persons, in comparison to non-disabled individuals, have less education, are more likely to falls outside of the labour market, face higher unemployment rates and receive lower pay when employed (56).
Proponents of feminist jurisprudence would agree with the judgment delivered by Justice La Forest since his reasoning favors the plight of a vulnerable group. Historically, women have also faced systematic oppression by patriarchal institutions, remnants of which still continue to exist. Advocates of this theory, such as Catherine A. Mackinnin, would further argue that women recognize inequality because they have lived it and therefore they know what removing those barriers to equality would be like.
Feminist methodology states that equality must be understood and defined on women’s own terms and in accordance with their concrete experiences (154). Similarly, in this case the higher courts viewed the situation through the historical and present day experiences of the deaf individuals and determined that there was an infringement on their section 15(1) rights.