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

Feminist Jurisprudence

Feminism does not offer a univocal world view. Its approach to law concentrates on the experiences of women individually and collectively within particular contexts. However, there are two tenets generally espoused by all feminists, regardless of their methodological approach. The first of these theses is that the current global order is premised on a patriarchal structure in which men systemically and systematically dominate women. The second commonly held assertion of feminist thought is that patriarchy ought to be eliminated because it is morally unjustified and negatively affects women. Jurisprudentially, feminists attempt to understand how legal structures are based on patriarchy and how this can be changed to contribute to sex equality.

Patricia Smith: Law as a Patriarchal Institution

Smith’s article briefly outlines multiple approaches to feminism and the ways that these approaches conceive jurisprudence. According to Smith, feminist jurisprudence is the analysis and critique of law as a patriarchal institution.

Classical Liberal Approach

Liberal feminists associated women’s rights and social change with equality. Inspired by the writings of J.S. Mill, liberal feminists argued that given the premise of individual liberty and moral equality, men and women should be treated equally and granted participation in political, educational and economic life.

Modern Liberal Approach

Approaching feminism from a paradigm similar to classical liberal feminism, namely that equality for men and women will reverse oppression; modern liberal feminists directed their focus towards family issues. This school of thought addressed socialization of children, reorganization of family life, stereotypes and reforming state institutions.

Radical Approach

Radical approaches to feminism posit that oppression of women through patriarchy results from socially constructed gender roles and suggest that a solution to this oppression rests with a reappraisal or elimination of current gender constructs.

Postmodern Approach

Postmodern, or French, feminism is a critical approach to feminism that relies on deconstruction to critique systems of thought such as law. The postmodern approach argues that the root of patriarchal oppression is a patriarchy’s offering of one answer or single truth in response to complex problems. However, postmodern feminists don’t offer a single response to the oppression of women and their deconstructionist tendencies can fosters scepticism.

Relational Approach

Relational feminists approach patriarchal oppression from the premise that men and women are fundamentally different and experience different moral development. As such, appreciation and recognition of the differences between men and women should be sought rather than seeking bare equality and assimilation.

The Pervasiveness of Patriarchy

Smith argues that the standard of measure in society is male. Because of this, law reflects a patriarchal world view. And ‘because law is a somewhat selective, delayed action mirror, feminist jurisprudence is concerned with correcting the current lag.

Catherine MacKinnon: Law as Male Power

According to MacKinnon, law perpetuates oppression of females because of its institutionalization of male power and supremacy. Male-centric jurisprudence has followed and thus the male position is that which the proper relationship between life and law is. While the law is formally equal, MacKinnon argues that ‘...the law guaranteeing sex equality requires, in an unequal society, that before one can be equal legally, one must be equal socially.’ Society’s sex inequality means that society must be changed in order for sex equality to be meaningfully recognized in law.

Application to A.C. v Manitoba

Patricia Smith

While Smith articulates multiple feminist approaches to jurisprudence, she notes the consistencies shared by each approach. One of these commonalities is that the law reflects a patriarchal world view and that patriarchy must be overcome in order to prevent oppression of women. Because the law is currently lagging and must correct the present male standard of measure, Smith would approach AC v. Manitoba outside of a patriarchal context. Smith would argue that a youth under 16 needs protection from the familial and religious patriarchy espoused by her parents to ensure that her religious decisions are autonomous and not influenced by the patriarchal standard. Were Smith adjudicating this case, I think she would have upheld section 25 of the Manitoba Child and Family Services Act, but, like Justice Abella in the actual decision, would have placed some caveats on the act’s interpretation. I think Smith would approve of a court authorization of a medical decision were it made from a non-patriarchal starting point that was truly in the best interests of the child and took into account the wishes of the mother and medical professionals who were female or approached medicine from a feminist framework of practice. A feminist approach to jurisprudence, according to Smith, determines how legal structures can be changed to contribute to sex equality. Through this approach, Smith would look to social science evidence and academic commentary in order to qualify what characteristics demonstrate decision making competence and entitle adolescent decision making autonomy. However, Smith would engage social science evidence that approached adolescent autonomy with regard to the impact of patriarchy on that autonomy and the role of oppression on adolescent female decision making.

Catherine MacKinnon

MacKinnon takes a more radical approach to feminist jurisprudence than Smith does and I believe this would reflect in her decision was she adjudicating AC v. Manitoba. Because MacKinnon sees the male point of view as the standard, she argues law upholds male dominance and subordination of women. MacKinnon might approach this case from the perspective that AC’s decision to avoid blood transfusions on religious grounds was influenced by upbringing in a patriarchal home that practices a patriarchal religion. According to MacKinnon, ‘...the social power of men over women extends through laws that purport to protect women as part of the community.’ MacKinnon would likely view the legislation in question as purporting to protect the interests of the child but possibly neglecting the social power of the child’s father over the mother and child and the influence of medical professionals who are primarily male or fail to consider a feminist approach. Because of this MacKinnon would suggest legislation alternative to the Manitoba Child and Family Services Act that accounted for the role patriarchy plays in influencing adolescent decision making and the impact of patriarchy on the decisions of medical professionals.