Jurisprudence Lecture
Feminist Jurisprudence
February 2006
George D. Pappas, Esq.
International Center for Legal Studies
PART I
The best general introduction to the study of so-called Feminist Jurisprudence is your
University of London Subject guide. You are quite fortunate to have in one single
source, a short and detailed summary of the assumptions underlining rational liberalism,
and various features of Feminist Jurisprudence.
Even reading the Subject Guide, you will quickly discover that in challenging traditional
male dominated jurisprudence, that the very term “Feminist Jurisprudence” is open to
various hues and interpretations since no one consensus has emerged as to what
“Feminist Jurisprudence” is; however, I will submit that there is greater consensus when
it comes to the grounds of criticism about “traditional jurisprudence,” the institution of
marriage and the myth vividly described within law’s claim to “neutrality”. While the
latter criticisms are easier to discern, don’t be mislead into believing that just because
‘female” writers per se are critical of the same thing that this necessarily translates into
the same definition of who they are or whether even the dualism of “woman” versus
“men” represents a unity of opinion - it doesn’t.
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Your first task in the studying Feminist Jurisprudence is to broadly start with the main
criticism of what traditional jurisprudence purports to be and how various feminists’
writers have questioned or attacked those assumptions.
Your next stage of learning must incorporate a sufficient survey of the leading feminist
writers together with an understanding of what their points of view are. Once you master
these two elements of the subject, you’ll be better able to handle most questions that the
examiners will throw at you.
Criticism of Male Dominated Jurisprudence
What is meant by “traditional jurisprudence” and how feminist jurisprudence criticizes
this will demonstrate that it is the law that helps to crystallize existing gender inequities
inherent in society. In short, is not so much that woman have been in a “radically
different” relation to the law compared to men, but rather, feminist jurisprudence
concentrates on the inherent inequities fostered by the methodology of traditional
jurisprudence, in particular, legal positivism. Feminists see the law as the prime source
for perpetuating pre-existing gender based inequities, especially within the framework of
capitalism.
Traditional jurisprudence can be summed up as the neutrality of law. Such neutrality
seeks no connection with respect to social or political contexts. In fact, the very notion of
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neutrality seeks to strip away whatever humanizing forces are at play in society in its
quest for an objective and universal standard of law.
The law’s “a-contextual” nature is a product of the scientific revolution’s use of objective
methodologies. In a break away form divine law, objective scientific methods sought to
disassemble itself from normative issues of “right and wrong.” Hans Kelsen’s “Pure
Thoery of Law,” expressed through his “basic norm” (i.e., The Grundnorm) or H.L Hart’s
(“The “Concept of Law”), ultimate rule of recognition represented paradigms set up to
create universal conceptual standards to establish what is termed “legal validity”.
In expressing law’s validity as epistemological postulates, legal positivists sought to
discern the truth of the legal system. If this truth could apply to any legal system, then
laws could be enacted more “objectively,” and positivists infer, more fairly. Traditional
jurisprudence thus emphasizes the “rule of law”, not of men. Men are arbitrary and
inconsistent, whilst the “rule of law” could be viewed as a universal, a contextual
standard that could be blindly applied to all society in whatever setting.
Feminist jurisprudence sees major defects in traditional jurisprudence’s use of the
neutrality of law. Some feminists such as Margo Stubbs (“Feminism & Legal
Positivism,” 1986) and Catherine MacKinnon (“Toward a Feminist Theory of the State,”
1989), identify law’s neutrality as the very mechanism that perpetuates injustices against
woman. Professor Nicola Lacey (London School of Economics) describes law’s
neutrality as a source of perpetuating inequities along sexual patterns.
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Feminist writers criticize the inherent methodological framework used by such legal
positivists as Austin, Hart and Kelsen. As such, traditional command theorist like John
Austin, for example, are questioned for their narrow framework of command, obedience,
and sanction as the essence of the law. Feminist writers are also critical of legal
positivism for it’s reliance on discovering law’s nature as the key to understanding law.
“Legal positivism is fundamental to the constitution of legal thought. It is a key
reason why lawyers come to accept the official version of law as legal theory,
why lawyers tend not to question the nature and purpose of law but take it as a
given. It also helps to explain why the law comes to assume the status of
objectivity and why judges become the seekers of truth.” (Hilaire Barnett,
Sourcebook on Feminist Jurisprudence, 1997)
Law describing itself seems nothing more than pure exercises in abstraction devoid of not
only the social and political context underlying any legal system, but for its contribution
to producing sexual injustices against woman. For example, if woman are already in an
unequal position to men, then the law’s treatment of citizens as equal – as in contract law
– applies the law unfairly. The parties come to the bargaining table in unequal positions;
yet, the law of contract treats both parties as equal.
Feminist writers such as Carole Pateman argue that traditional jurisprudence treats
citizenship as patriarchal constructed in the masculine image.
“The story of the original contract shows how sexual difference gives rise to a
patriarchal division of labour, not only in the conjugal home between the (house)
wife and her husband, but in the workplaces of civil society.” (The Sexual
Contract, Pateman, pg.340 Hilaire Barnett).
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Catherine MacKinnon sees maleness as the organizing form of what is accepted as
“normal.” MacKinnon is very critical of most forms of equality legislation for being
vehicles of making woman as men, rather than searching for true equality.
“..seeing sex equality questions as matters of reasonable or unreasonable
classification is part of the way male dominance is expressed in law. If you
follow my shift in perspective from gender as difference to gender as dominance,
gender changes from a distinction that is presumptively valid to a detriment that is
presumptively suspect. The difference approach tries to map reality; the
dominance approach tries to challenge and change it. In the dominance approach,
sex discrimination stops being a question of morality and start being a question of
politics.” (pg. 230 supra, C. MacKinnon)
Margot Stubbs, sees feminist jurisprudence as transcending the positivist conceptual
framework of both liberal legalism (e.g., the rule of law) and Marxist (e.g., law as
reflection of the bourgeoisie class that is the capitalist superstructure). Feminist
jurisprudence seeks to make the connection between Hilarie Barnett’s “woman
question” and “the law”.
All of these feminist writers agree that the law plays a key role in cementing inequitable
sexual relationships, especially within the capitalist context. What is not clear, however,
is why these writers fail to establish similar arguments for woman under socialist
regimes, and why inequities based on race and ethnicity are not dealt with by the “woman
question.”
“I have argued that it simply incorrect to ‘dismiss’ the law from feminist scholastic and
strategic enquiry as some ‘inert’ mechanism for giving effect to ‘male’ interests It is ,
rather, an organic social relation that is actively involved in mediating and controlling the
tensions engendered in class-structured society. “The law’ is intimately involved in
structuring every aspect of woman’s lives. It stands at the very centre of the legitimacy
of the capitalist State and, by implication, the legitimacy of sexual subordination. I
believe that a reorientation of the “feminist” approach to law is long overdue for as it is
politically central to patriarchal domination, we simply cannot afford to keep it at the
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penumbra of our political project.” (Margot Stubbs, Feminist and Legal Positivism
(1986) 3 Australian Journal of Law and Society at 63.)
Traditional jurisprudence has also come under attack with the publication of John Rawl’s
“Theory of Justice,” in 1972. Essentially, Rawl’s postulates abstraction to ‘pure reason’
in man’s original state, where participants are ignorant of their self-interest, desires, etc.
Rawls calls this a “veil of ignorance”. Only by stripping people of their individuality,
according to Hilare Barnett (“On Feminist Jurisprudence”), does Rawls consider the
principles on which society and laws should be based. Yet writers such as Mari Matuda
criticize Rawls for avoiding real earthly issues. Specifically, Matsuda takes aim at
Rawl’s premise, such as his assumption concerning self-respect under the “veil of
ignorance.” Matsuda sees Rawl’s premise as a partial reflection of the original state.
Self respect for Rawls focus’ on achievement, fulfilling a plan, whilst overlooking the
possibility that non-self interested pleasures by woman value seeing others succeed
without an quid pro quo. As such, Matsuda is critical of the need to increase our
awareness of these gender perspectives. By incorporating female perspectives one can
achieve greater contextual – relational premises with respect to gender differences.
Feminist jurisprudence has greatly enhanced our ability to deconstruct many of the sexual
difference issues implicit within male dominant jurisprudence. On a methodological
level, legal positivism has been stripped of much value when abstractions are based on
premises that assume existing power relations along sexual lines. The rule of law, for
example, perpetuates existing sexual inequities. Unearthing contextual omissions within
traditional jurisprudence has exposed the need to “sexualize” law. Expanded gender
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based perspectives of law can improve absurd assumptions about how woman think,
behave or are treated by the law in situations such as rape, domestic violence, marriage,
and divorce. At the same time, feminist legal writers should also be cognizant of the
roles played by race, national origin, religion, at least in terms of how these forces affect
the empirical basis of our laws and legal system.
While highlighting the serious misconceptions and flaws in traditional jurisprudence,
feminists must not fall into similar paradigm confinements authored only by white,
middle class, Anglo-American woman. Only by incorporating female views beyond the
Anglo-American matrix will feminists’ influence reach the broad based foundation
necessary for cultural richness vital to any new paradigm shift away from traditional
jurisprudence.
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PART II
CRITICISMS OF TRADITIONAL JURISPRUDENCE: Male dominated or truly
gender neutral? A survey of various Feminist theories
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Woman’s Injuries:
(a) Woman’s Suffering: West (1987): Woman’s suffering for one reason or
another is outside the scope of legal redress. (Rape, employment,
father/daughter incest, domestic violence and pornography).
(b) Criticism of Objective Jurisprudence: Bottomley: Traditional
jurisprudence as objective science. Bottomley is critical of this “objective”
standard depicted within law, and instead seeks to emphasize that “all scholars
must recognize the embedded ness of their own assumptions within a specific
historical context.
(c) Forms of Dualism Question by Feminism: (Olsen, 1990): “Woman have
seen as the irrational, the emotional and the unreliable and confined to the
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private sphere of the family while the male – the rational – enters the world of
politics and law.”
(c ) The “Woman Question” : Carol Gilligan (1982): The potentiality for an
alternative (i.e., other than man dominated) woman’s perspective has been
systematically ignored. “ Gilligan takes aim at Khlberg’s theory of stages of
moral reasoning. You may wish to note your subject guide on this, but
Kohlberg’s scheme sees the cognitive basis of moral reasoning as a
developing ability to take elements out of a particular situation and the
particular acts of a person, to abstract from experienced context so as to create
formal qualities, and develop impartial and universal criteria. Otherwise,
stated, Koohlberg dehumanizes social context, stripping away the flesh of
human activity and conflict to develop sterile universal truths about “man”.
Gilligan argues that woman “Can never reach the highest” level of
Koghberg’s stage – pure reason abstraction, but instead, she focused on
Womans “relational bias” where such bias focuses on “interpersonal
recognition. As such, woaman “will always appear irrational.”
( d ) MacKinnon (1987): Maleness as an organizing form of legality: The
claim is that “maleness” is the organizing form of what is accepted as the
“normal” and that most forms of equality legislation are not vehicles for a true
equality between men and woman but rely upon making woman “as men.”
MacKinnon (1987).
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( e) Woman of ethnic minorities: Patrica J. Williams “I am interested in the
way in which legal language flattens and confines in absolutes the complexity
of meaning inherent in any given problem; I am trying to challenge the usual
limits of commercial discourse by using an intentionally double-voiced and
relational, rather than a traditionally black-letter, vocabulary.”
THE FRENCH REVOLUTION: A Critical point?
The French revolution has led a charge of global change that seeks to flatten
cultural differences in the name of political liberalism. With this sweep of political
change, centuries of social organization and practices have been tested to a degree never
seen. Current events portray this reality in the Middle East where notion of “free press”
are clashing with “religious sanctity”, Muslim vs. Western Thought, Muslim vs. Western
(US and EU) Democracy; The blood of this debate is not academic, but gruesome and
real. If there ever was a terms that correctly depicted events, the term real politic is the
one. According to Arbalster (1984), “It was the French Revolution which made freedom
of nations and the freedom of individuals into real and central issues in the politics not
only of Europe, but of a wider world.”
The position of woman within the context of the French Revolution, and political
liberalism, however, seems to have bypassed their very existence as participants in
society. E.g., Divorce and Inheritance Laws
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Part III
The next part of our lecture will review the various labels or strands of Feminist thought.
You need to have a reasonable grasp of these strands within the Feminist Jurisprudence
context as your examiner will expect you to support any essay arguments with such
authorities.
Various “labels” have developed to capture the spectrum of Feminist criticism regarding
male centered Jurisprudence. For example, we will review some of the following major
strands, such as:
1. Patriarch
2. Feminism and Critical Legal Studies
3. Liberal Feminism
We will finally conclude this lecture with a brief look at what is called the “Woman
Question.”
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PATRIARCHY
Under this heading, the “male” is deemed the center of the universe. Whether it law,
medicine or religion, men dominate the structure upon which these disciplines or
movements are defined. For example, we have already seen how male jurisprudence has
dominated the dualism between “man” vs. “woman”; namely, in matters of divorce,
marriage and in legal epistemology. Woman are subordinate or non-existent in the law’s
application. In fact, during the 19th in both England and the US, woman were considered
”chattel” or property. When woman married, they legally gave up their right to contract;
they gave up their property rights and were legally obligated to submit to their husbands
wish for sexual intercourse virtually on demand. In religion, a simple look at one of
Christianity most famous lines, “The Father, the Son and the Holy Ghost” are completely
in the image of man. Perhaps there is hope yet, since the ghost may yet be a woman!
Recent writings such as “Woman in the Bible”, “Who wrote the Gospels” and others,
have argued that the Catholic Church’s attempt to completely dishonor and discredit
Mary Madeline as not only Jesus’ Wife, but as a woman with extraordinary intellect and
commercial savvy. It was Mary, not the other disciples, who first saw Jesus upon his
resurrection. The male dominated church has done every thing in its power to remove
Mary from their religious texts and condemn her as a whore to scorn into eternity. The
issue here is not religion, but raw power and control. Recognizing woman in any role of
power or influence within the context of the holy bible was (and some will argue still is)
not going to be allowed by the Church. So in a nutshell, Patriarchy revolves around man
– women don’t matter.
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FEMINISM AND CRITICAL LEGAL STUDIES
Both the Feminist school and the Critical Legal Studies School (CLE) share a common
criticism of the law. Specifically, they both challenged the claim that law is neutral;
They assert that the claim to laws neutrality is nothing more than a guise to entrench
established males interests and power, and as such, woman have been on the short end of
the law down through the ages.
There are differences, however, between the Feminism and CLE. The latter is seen to
embrace notions of what the ideal society should be like for woman; however, that vision
is often cast in universal or abstractive ideals. The Feminist school is critical of CLE in
this respect because the former attempts to identify relational issues, real issues that are
not only defined, but non idealistic. Feminists embrace a view that attempts to challenge
the existing legal status by focusing on what kind of institutions and laws would be
necessary to redress the imbalance against woman in society.
Radical Feminism
To appreciate what Radical Feminism is you need to understand why they are seen as
radical. Radical in this context means “as compared to” Liberal Feminism. In a nutshell,
Liberal Feminism seeks to obtain “rights” for woman within the existing legal system.
For example, liberal feminism will seek to obtain “equal” rights for woman in relation to
men. In does not matter to Liberal Feminist whether woman are attempting to be more
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like men, nor are they attempting to highlight fundamental inherent differences between
men and woman that would preclude actual equality. The latter can be seen in
employment areas where due to pure physical differences, woman are different form
men. However, Radical Feminism does not totally discard liberal feminism, it is just that
they want people to understand that simply asking for “equality” of rights is not
necessary the answer, and actually perpetuates a legal system that is already embedded
with male dominated assumptions to find solutions for “woman.”
Radical Feminists seek to address the private lives of woman. By private we mean issues
that deal with rape, pornography, and domestic violence. Liberal Feminists seeks to
establish broader notions: notions in the abstract, in terms of woman. Again, Liberal
Feminists who focus on “equality” of rights do on a level that is above the private lives of
many woman. Radical Feminist want people to empathize with the plight of woman,
they assert that the liberal approach to woman does not come close to fostering an
empathy for the world in which woman live. Radical Feminists seek to humanize woman
in way that brings to the forefront issues of a private nature that are not only real, but
tangible enough for people to see. Seeing and empathizing with the plight of what it
means to be a woman, Radical Feminists believe, provides a basis for change that can
address these private lives of despair, oppression and violence.
Radical Feminists also seek to show how Patriarchy overlooks the value of woman and
their contributions to family and society. For example, woman who perform household
work are given respect and value by Radical Feminists. A Patriarchic legal system
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virtually discounts the value of “woman” work. Child rearing is also highlighted as
another area that woman deal with on a daily basis, yet we have a legal system that
simply assumes (and did for a very long time in child custody cases), that woman are
expected to perform this “natural role.” Abortion is strongly supported by Radical
Feminist not only as a right of choice, but as a right to combat an invasion into her body
in the form of a fetus, in particular, A fetus produced as a result of incest or rape.
The last point I wish to make about Radical Feminism, especially as it relates to Liberal
Feminism, is the question of “individualism” and “separateness.” Liberal Feminist's
focus on obtaining equal right for woman, in part, so they too can live independent and
separate lives. This is also seen as a form “of freedom” by Liberal Feminists and liberal
thinkers in general, especially such writers as J.S. Mill. However, Radical Feminists
want to cast away this assumption by stressing that woman, unlike men, inherent or are
inherently “different” from men in that they actually seek not to be isolated, but to be part
of a community. Woman by nature then are cooperative, not antagonistic. The law of
contract for example sees separate partners who each come to the table not only as equal
in power, but equal in terms of wanting to protect their own self interest. Radical
Feminism attacks assumption like this by stressing that woman seek cooperation, not
isolation; woman seek consensus, not promotion of rights per se to achieve so call
impendent freedom. Woman seek “unification” with others, not isolation.
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I hope the above analysis and survey of Feminist Jurisprudence will allow you to define
traditional jurisprudence and how Feminists writers dismantle male dominated legal
systems and theories.
Thank you.
Copyright © 2006 International Center for Legal Studies
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