Course:Law3020/2014WT1/Group E/Feminist Jurisprudence
Feminist Jurisprudence
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The feminist theory focuses on women as a traditionally silenced subject of the law. But it does involve a number of related viewpoints, rather than one single theory. But the common theme of all of the different theories is that world around us is structured by patriarchy, which is the “systematic and systemic domination of women by men.” Feminism argues that patriarchy seems to be normal, but is actually socially constructed and that people within this system maintain this system. They reject any universalist abstract theory such as the idea of law as efficiency (see Law and Economics). Instead, it is preferred to focus on lived experiences, and specific examples of women and all of the contextual details that surround their lives.
There are certain central tenets of the traditional legal system that feminism looks to challenge. These values result in making the inequality between men and women legitimate and concealed. These tenets are:
- The neutrality of law
- The ideal of the rule of law
- The model of judicial reasoning as logical deduction
- The separation of law from politics
- The separation of law from morality
As mentioned earlier, there are a number of different viewpoints of feminism that include liberal feminism, radical feminism, Marxist feminism, postmodern feminism, postmodern feminism and relational feminism.
Liberal Feminism
Liberal feminism main belief is that the subordination of women prevents access for women to have success in the public sphere, and by removing these obstructions, it would lead to equality The belief is that there should be no blocks or privileges for certain groups. Instead the law should be gender neutral, or "blind". There is also a branch of liberal feminism known as modern liberal feminism. The goal of modern liberal feminism is to provide realistic opportunities for public participation for women. It also requires the recognition of the differences between men and women's lives, and that these differences should be accounted for. Things such acknowledging as motherhood responsibility would lead to a better, more accessible form of equality, beyond its standard form.
Radical Feminism
Radical feminism believes that the entire system needs to be reconstructed in order to better help the oppressed. Radical feminists examine how gender is constructed within society which is ruled by patriarchy. The only true way to understand what it is to be a female is to dismantle patriarchy. They see patriarchy being so deeply rooted in society, and look to things such as socializing young children on their genders through things like the colours blue and pink. This establishes a fundamental idea of what it is to be male or female. Rather than adhering to this socializing nature of patriarchy, radical feminists focus on the biological realities of being a woman. A few examples they provide is no longer viewing the responsibility of bearing and raising a child as a specific female task, but instead it should be a shared one. Another is that women should have control over their choice to reproduce. One final claim by this group is that once the current system is changed in order to better serve the oppressed groups, men will benefit from the new system as well.
Marxist Feminism
Marxist feminism sees the oppression of women being a result of the capitalist system, since it treats the ‘private domestic sphere’ (child rearing, home based work) as useless since it does not benefit the economy. They also adopt some of the ideas put forward by the radical feminists.
Post-Modern Feminism
Postmodern feminism embrace’s the female position of being an ‘other’ within the patriarchal system, and claims that it should be celebrated, while stating that there is no single solution to the issue of oppression. There are a number of different solutions, but they all need to take into consideration the actual lives women, rather than treating them as an abstract category.
Relational Feminism
Relational feminism seeks to establish a different moral perspective from that of men’s, and that the public sphere must change to incorporate this. Since women are socialized different than men, it results in two different perspectives and understandings of morality. This female perspective has an "ethics of care" that values maintaining and nurturing relationships above all else. What needs to occur is that the current public sphere needs to incorporate this "ethics of care", instead of assimilating women's moral perspective to more closely resemble that of men's. They also believe that there needs to be focus placed on the differences between these moral values of men and women. This female perspective should not be evaluated with male standards of the current system.
Catherine MacKinnon
Catherine MacKinnon believes that law and society are about power, and that law is about the dominance of men over women. Law is a male creation, since it was created by the powerful in society to benefit the powerful. She claims that laws are social artifacts, and that they make female domination by men invisible. This invisibility is a result of law adopting the ‘male point of view’, making it appear as both natural and right, leading to the legitimacy of the domination of women. MacKinnon contests that positive laws allowing for male domination do not exist, because they do not have to. Since there is nothing within the law, or outside of it, preventing male dominance. It will always appear to be natural. MacKinnon believes two steps need to be taken in order for women for women to change the relationship between men and women. The first being that they must demonstrate women’s actual reality for what it is; a political and social institution. This reality is things such as unequal pay, allocation to disrespected work, targets of physical and sexual violence, and denial of reproductive control. The second step is to recognize that male power over women is being embodied as individual rights within law. Only by taking these two steps can we hope to rid the law and our society of the ingrained domination of men over women.
Application to K.L.B. v. B.C.
Limitation Act
It would appear that the feminist theory would find that while the Limitation Act appears to be neutral, it actually operates as a tool of oppression. Feminism would find that the Act was implemented to preserve and protect male dominance in society, by preventing victims of wrongdoings (which is often members of vulnerable groups, such as women), to make claims against them. As a result this maintains women as the traditionally silenced subjects of the law. Ultimately Feminism would find that Limitations Act is used by the male dominated society as a block to limit the success of female claimants.
Children Protection Act
The feminist theory would likely find that there is both a positive and negative aspect to this Act. The positive aspect is that it requires the male dominant government to protect a vulnerable group, and at times holds them accountable for their failure to do so. However, there is potentially a more negative aspect to the Act as well. It would appear potentially that the Act attempt to bring to light the failures and or inabilities of parents (with a focus on the mothers) to take care of their children, and presents the male dominant government as the hero figure, saving the day.
Decision of the Court
The feminists theory would not have supported the decision in this case. The use of the Limitation Act to block any action by the appellants would be seen as the system of patriarchy continuing to keep an oppressed group from gaining any power. In this case, the oppressed group is children. As MacKinnon might have looked at it, the Limitation Act is seen as a legitimate act within the legal system. This legitimacy disguises the use of force being applied to this dominated group. This judicial restraint, in a sense, is continuing to enforce a power structure of domination. But all of this looks natural, as it is the norm and the domination becomes invisible. MacKinnon would have held the government liable for the abuses suffered by these children.
Unlike the other theories such as natural law, and legal positivism, feminism is not concerned with whether the laws are valid and therefore applicable. In contrast feminism is concerned with the effect the laws, and resulting judgment on vulnerable groups such as women and children. Further, while paternalism, and law and economics are concerned with