The Development of Feminist Jurisprudence



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The Development of Feminist


Jurisprudence



Margaret Thornton*

This paper had its genesis in an invitation to visit Pune, India, to give a presentation on feminist jurisprudence and to suggest how its perspectives might be incorporated into the teaching of law. The paper shows that the development of feminist jurisprudence has had a chequered career in the West over the last two decades. A brief overview of the experience will be presented, which will be shown to differ according to whether one is focussing on research and publication, teaching and the curriculum, or legal practice. The uneven trajectory of social change may help to inform feminist legal debates and the teaching of feminist jurisprudence among those contemplating the inclusion of such material in their law curriculum. I draw particularly on the Australian experience, which bears many similarities with other common law countries.


Introduction: From Practice to Theory


Feminism is not susceptible to a simple definition as it possesses many strands, and feminists themselves differ widely regarding issues of substance and method. Nevertheless, the feminist movement is grounded in the idea that the lives of women and girls should not be determined solely by gender, that women and girls should be able to exercise a modicum of choice in their lives, and that they should be entitled to dignity of the person. Consequently, feminism, inspired by a vision of the way things might be, is preeminently a pragmatic and reformist movement which seeks to make things better for women in all spheres of life. Following on the heels of practice is academic feminism. Critiques of the gendered construction of knowledge have been central to the feminist project in the academy. What has been progressively established in respect of the master discourses of all academic disciplines is that the accounts that have been presented as universal and true are in fact partial because they focus almost exclusively on masculinist knowledge. Therefore, the threshold question of academic feminism has been how can rational claims to universality be made if the experiences and perspectives of women are omitted? Feminist sociologists and anthropologists were in the vanguard in developing critiques of knowledge in the new discipline of Women’s Studies in the 1970s, for the social sciences generally accepted by then that gender was a legitimate category of analysis. At first, the gatekeepers of the academy were prone to dismiss feminist scholarship as “politics”, or not “real” scholarship, but Women’s Studies helped to give feminism a degree of academic respectability, despite the initial struggles.

From the outset, feminist scholarship was very much concerned with praxis, or the interrelationship between theory and practice. The point is illustrated by the ongoing attempts by feminists to draw attention to and disrupt the philosophical and political separation between public and private life. Indeed, one of the early aphorisms of the feminist movement was: “The personal is the political”, which suggested that everything that occurred in the home and had been formerly occluded by the carapace of the private should be a matter of public concern. The feminist gaze on the private sphere has permitted not just a critique of family law and domestic violence, but it has also enabled the exploration of the symbiotic relationship between private and public spheres, that is, the ways in which women’s responsibility for children, the sick and the elderly, as well as their responsibility for housework, has facilitated the participation of men in paid work, in civil society, and public life. While law is less overtly hostile than in the past, the legal academy has continued to be resistant to feminist scholarship because it challenges the well-entrenched liberal myths that the legal person is genderless, that one’s life course is determined by personal choice, and that law has universal applicability. The correlative myths of law’s neutrality, objectivity and non-partisanship are also deep-seated and, indeed, central to cherished legal concepts such as the rule of law and equality before the law. The ideological role of law in maintaining social cohesion and transmitting dominant values has been deeply destabilised by the subversive nature of feminist scholarship.


What is Feminist Jurisprudence?


Jurisprudence does not have a precise denotation but involves manifold ways of theorising about law. In the West, this theorisation has been conducted at a high level of abstraction and has been understood largely as the prerogative of a few highly esteemed men, such as the well known legal positivists, Hart, Kelsen and Dworkin. Feminist jurisprudence, a term coined as recently as 1978,2 has completely disrupted the conventional model of jurisprudence. Informed by the reformist and experiential grounding of feminism, feminist jurisprudence has eschewed the rarefied abstractions of analytical jurisprudence. Indeed, feminist jurisprudence can be loosely understood as encompassing the entire corpus of feminist writing about law. In light of its amplitude, feminist jurisprudence cannot be said to possess a single identifiable theory or perspective, any more than mainstream jurisprudence. Nevertheless, liberal feminism has been the most influential strand and that which is most commonly identified with feminist legal scholarship.

Although initially sceptical, mainstream (masculinist) jurisprudes themselves have more recently been prepared to acknowledge the impact of feminist scholarship, along with other contemporary legal movements, such as Law and Economics, Critical Legal Studies, and Law and Literature.3 In light of the pluralistic and multifaceted nature of feminist jurisprudence, I can do no more than identify some of the main trends in this overview.


Liberal Feminism


Liberal values, rooted in the Eighteenth Century Enlightenment and modernity, include respect for equality, freedom, and autonomy. These values have been conventionally understood as concepts that have meaning only in the public sphere. Because of the traditional assignation of women to the private sphere, the conventional realm of inequality and necessity within Western thought, the relevance of the values of freedom and equality to the lives of many women has remained elusive.4

Despite antipathy from the mainstream, the reformist or practical dimension of legal feminism has been significant in highlighting and endeavouring to remedy gender inequities in rape, domestic violence, homicide, family law, employment law, and so on. Since the 1970s, legal scholars have campaigned for change and written about the gendered anomalies in the law. It made strategic sense to base claims on entitlements to equal rights within the prevailing liberal paradigm, despite the resultant contradictions and ambiguities.5

In setting out to remedy inequitable laws and to effect some semblance of sexual equality in both private and public life two decades ago, legal feminists were keen to assist courts and other key institutions grapple with new ways of seeing things. The focus was on “letting women in”, or accommodating the feminine within existing paradigms. Again, this was a strategic choice, as the desire was to maximise the attainment of justice for women; there was too much to be done to allow attention to be deflected by struggles that activists perceived to be academic and peripheral. For example, there was scant regard for the ways that notions of “sex/gender” (concepts that flow into one another) are socially and historically situated.6 Thus, while feminist legal scholars critiqued certain laws as anomalous and discriminatory, they generally accepted the prevailing liberal form of law, such as the necessity of proving a causal link between an individual complainant, a cognisable harm, and an identifiable wrongdoer. The need for an identifiable wrongdoer in the case of systemic discrimination, for example, may mean that it is impossible for a complainant to grove the necessary causal nexus. The uneasy relationship between the subjective, particular and experiential focus of feminist legal methods and the universality of traditional legal methods already posed practical problem for feminist reformism.7 The need to accept prevailing paradigms inevitably posed a dilemma or blunted the critical edge of feminism.8

A site of contestation for feminist reform also manifested itself in the homogenisation of the category “women”. For women to make out claims of inequality and sex discrimination, it had to be shown that they were in the same or similar circumstances to men, but were treated less favourably because they were women. The limitations and, indeed, absurdity of the formalistic approach became increasingly apparent in the gymnastics necessary to satisfy a requirement of comparability. In one infamous American Supreme court case, the paradigmatic female condition of pregnancy was analogised with the male medical conditions of prostatectomy, haemophilia, circumcision and gout.9 In the absence of comparability, it was reasoned, unfair treatment on the ground of pregnancy did not constitute sex discrimination. Comparisons of this kind induced many feminists to espouse difference, that is, to accept that the category “women” was essentially different from the category “men”, and that gender difference should be celebrated, not disguised. Carol Gilligan’s psychological thesis that women — as a class — speak with a “different voice”10 resonated with the experiences of women in practice, as well as in the legal classroom and the academy.


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