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

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Introduction to Feminist Jurisprudence

The feminist approach to jurisprudence is both modern and multi-dimensional. The diversity within the theory itself stems from being centred around the "lived experiences of women"[1]. No two people are alike, and thus a theory which champions the different perspectives and experiences of all women is inherently complex with many different approaches and ideas.

Despite the differences that exist there are underlying concepts which are core to the theory of feminist jurisprudence. [2] Two of these fundamental core concepts are; the world as we know it is structured by patriarchy.[3] and patriarchy is bad for women, it is morally unjustified, and should be eliminated[4]

Many of the differences amongst feminist theorists stems from the second concept, and disagreements over how to change the existing status quo of a society structured by patriarch.

Evolution of the Feminist Theory

The Feminist theory has evolved throughout history and different branches to the theory have emerged. Often different perspectives within the theory have developed in response to the disagreement amongst feminists over whether men and women are fundamentally the same, or fundamentally different.

The early classic feminist writings are more associated with liberalism and the idea that men and women are equal.[5] The idea of liberal feminism, emerging in the 1960's and 70's was that sex equality could be achieved by removing the barriers that existed which limited women's participation in political, social and economic spheres of life.[6]

Feminists following this first wave of classical liberal feminism largely found that removing legal or formal restrictions did not have the intended effect of creating equality for women due to the realities of women. The modern liberal view has found that despite removing formal barriers, informal barriers continue to exist and women continue to face discrimination and unfair stereotypes.

Radical, Marxist and postmodern feminists all approach the concept of feminist in a different way. From the radical perspective that equality can only be achieved by completely changing the way we think about gender, to the Marxist perspective that the way to alleviate the oppression of women is to replace the capitalist system with a socialist system.

Another important trend in feminist thought is that of relational feminism, which approaches the idea of equality from somewhat of a different perspective. Relational feminists believe that men and women are not fundamentally similar and that it is an important aspect of feminism for women to change institutions to reflect values of importance to women, rather than conforming to the male dominated patriarchy. [7]

While this sameness/difference distinction has been important in founding the tenets of different views of feminism, many feminists argue now that there is little place for this debate in the goal of creating sex equality. Indeed some feminists have argued that the issue of difference that matters, but rather that the disadvantages that women face that should be the focus of change. [8]

Response to Feminist Critiques

One critique of feminism is that it can be reduced to the theories that inform it, for example, liberalism. Such critics argue that feminism neglects to bring any new ideas to the theoretical table. A response to this critique has been to acknowledge one of the essential tenets of feminism, the rejection of the patriarchy. [9] The rejection of the patriarchy is an element to the theory that distinguishes it from all the others.

Another critique which arises from this point, is that a theory only concerned with the rejection of the patriarchy is not very interesting or thought provoking [10] Feminists would argue that this idea of the patriarchy is wrong as a rejection of the patriarchy is a revolutionary change.[11] It can even be stated as being a "paradigm shift" in thinking.[12]

A difficulty in categorizing the feminist theory as revolutionary is that the response to revolutionary shiffts in thinking is often negative. People respond to revolutionary change by neglecting to take such ideas seriously. They are met by ridicule or even fear.

As the response to feminism as a revolutionary shift in thinking is often too large for people to grasp, feminists have tended to focus on specific issues that pertain to women rather than the general underlying critique of the patriarchal system.[13] Some of this specific issues include; sexual assault, abortion law,domestic violence, the wage gap and obscenity laws. The case of B.M v British Columbia is a case which raises the specific issue of domestic violence and the recognition of the harm it causes to women.

Toward Feminist Jurisprudence

Catherine A. MacKinnon puts forward the idea that the inequalities that exist in regard to the condition of women must be confronted in order to change them.  She holds that equality of the sexes has largely not occurred due to the differences between men and women’s realities. She believes those differences must be recognized by realizing women’s realities in terms of substantive equality. 

By addressing the issues that face women in particular, legal and social reform can begin to serve the real requirements of women as well as men.

Application to B.M v British Columbia (Attorney General)

An aspect of the reality of women is that of domestic violence. MacKinnon states that experiences of sexual abuse have been “virtually excluded from mainstream doctrine of sex equality because they happen almost exclusively to women as women” . The fact that the majority upheld the argument that there was no causal link between Constable Andrichuk's negligence and the harm incurred by B.M is an excellent example of how the legal system has excluded the reality women face of domestic violence. The rules that allowed such decisions to exist perpetuate and uphold sex inequality.


  1. Dimock at 139
  2. Dimock, 139
  3. Dimock, 140
  4. Dimock, 140
  5. Dimock at 141
  6. Dimock at 142
  7. Ibid at 144
  8. Ibid at 146
  9. Dimock 146
  10. Dimock at 147
  11. Dimock at 147
  12. Dimock at 147
  13. Dimock at 148