Feminist legal theory

The feminist jurisprudence movement appears to have originated in the United States in the 1970s. In its earlier years it took the form of a considered theoretical response by women jurists and lawyers to a widely held perception of American jurisprudence as the product of an exclusively male ideology which, by its origins and nature, effectively excluded women from significant participation in legal affairs and institutionalised their formal and informal subservience to men.

The growth of the movement was recognised by the Critical Legal Studies Conference of 1983, which included in its programme an examination of the basis of feminist jurisprudence.

Feminist jurisprudence is a body of legal theory and comment associated with jurists who accept the view that the progress of society as a whole requires an intensive, informed struggle against the legal ideologies and practices associated with the patriarchal form of society — a society within which discrimination against, and the consequent oppression of, half of humanity has been created and institutionalised in a variety of forms.

The movement's ideologists argue for the analysis and ultimate rejection of a jurisprudential ideology which serves, objectively, the specific interests of men, whose dominance is assumed and asserted by jurists and legislators alike to be a natural phenomenon. Lorenne Clark's phrase for what the movement is concerned with is the dominance of those who are naturally stronger and freer from the grinding necessities of biological reality.

They call for scholarship that will produce a basic challenge to the fictions and myths propagated largely by male jurists, consciously or unconsciously, and derived solely from a male perspective. In place of a gendered jurisprudence, the movement seeks to build the foundations of a legal theory which will neither exclude nor marginalise the historical experience and the contemporary situation of women.

Professor Patricia Cain, in her essay Feminism and the Limits of Equality of 1990, noted the existence of separate strands of feminist theory at the basis of the contemporary schools. This is the table to reproduce.

| Strand | What it holds | |---|---| | Liberal feminism | Concerns itself largely with equal rights and opportunities and the extension and intensification of constitutional rights for women. It emphasises women as autonomous members of society, and has expressed much sympathy with the need to liberate women from the private domestic sphere so as to expand opportunities in other areas of social endeavour. | | Radical feminism | Stresses the importance of perceiving women as one class dominated by another, with a resulting class struggle. Changes in laws favouring the male class are urgently required if inequalities of power are to be brought to an end; sex equality demands a correctly motivated struggle in which existing law is deliberately used to provide affirmative action — for example, the suppression of pornography, which denigrates women. | | Cultural feminism | Recognises the essentially unique nature of women, which has contributed to their life experience. It welcomes feminist jurisprudence as a method of effecting substantial change in the conditions and cultural patterns of women, and wishes to use the different voices of women, testifying to an understanding of the significance of women's comprehension of relationships and of the essential connectedness of human experience. | | Post-modern feminism | Rejects equality, viewing it as a construct which must be reconstructed. The very idea of a woman's point of view is cast aside as a fiction which in practice merely binds the individual to her identity as a woman. It requires practical solutions to concrete legal situations rather than elegant abstract notions of the nature of law, on the ground that arguing with the upholders of a male-dominated jurisprudence on terms of their own choosing can never be to the advantage of women as a group. |

The movement cites the almost universal prevalence of the myth of women's innate weakness as an example of a sedulously cultivated legend central to the long government of male over female that characterises patriarchy. Two examples come from within the canon of jurisprudence itself, which is why they are worth carrying into an answer:

• Stephen, in Liberty, Equality, Fraternity of 1873, argued against the equality of women, advocating that if marriage is to be permanent, the government of the family must be put by law and by morals in the hands of the husband.
• Dicey's Law of the Constitution of 1885 inveighs against the claim of votes for women, calling it in reality a claim for the absolute political equality of the two sexes, because it ignores the difference of sex which can distinguish one body of human beings from another — meaning that Englishwomen should share the jury box and should sit on the judicial bench.

Mary Daly, in her essay The Spiritual Dimension of Women's Liberation of 1970, argues that the Judaic Christian tradition has been patriarchal down through the millennia, although sometimes modified or disguised; women who strive for emancipation should be aware that brotherhood, even when it attempts to be universal, means a male universalism.

The destruction of patriarchal ideology involves the creation of a new jurisprudence by women who view society, law and legal institutions from their own perspective. A new perspective demands new tasks and a new methodology of jurisprudential investigation. Professor Kathleen Bartlett, in Feminist Legal Methods of 1990, outlines a scheme of enquiry appropriate to the aims of the movement, requiring the organisation of the apprehension of truth: the existing formal methods of legal reasoning — deduction, induction, analogy — are to be used, but supplemented by specific new modes of investigation.

Equality is rarely perceived by feminist jurists as a desirable end in itself. Professor Christine Littleton, in Reconstructing Sexual Equality of 1987, states categorically that equality, which has been the rallying cry of every subordinated group in American society, can no longer be accepted unambivalently by those who have embraced the principles of feminism.

Three worked examples make the point:

• A victory in a campaign for equal pay is not necessarily a blow against patriarchy.
• The admission of women to the marine corps does not affect the fundamental pattern of male domination of society.
• The passing of a Bill making sexual harassment at the place of work an offence is not necessarily a successful assault on the commanding heights of masculine domination.

1. No basis in legal history and practice. The justification for a jurisprudence which totally rejects male-dominated law has been rejected as lacking any such basis.
2. Sectional interests presented as universals. Male and female jurists and practitioners alike have cautioned against this, and have urged the rejection of the divisive nature of a jurisprudence from women's perspective, arguing that a changed society and an appropriate jurisprudence will emerge only from the united activities of men and women.
3. The new perspective may itself distort. The presumption that it will be free from the type of distortion said to characterise the ideology of patriarchy is arguable.
4. Writing off partial reform. There is criticism of the tendency of some prominent theoreticians to write off the intention and effect of legislation which diminishes discrimination against women; a jurisprudence concerned with long-term goals to the exclusion of short-term gains is likely to be ineffectual as a guide for action.

The answer offered to the last criticism is the campaign led by Professor Catherine MacKinnon and the attorney and radical feminist Andrea Dworkin, with the object of making the publication and sale of pornography a violation of women's civil rights — a jurisprudential ideology, it could be claimed, in the service of society as a whole.

• The set-piece — origin, central claim, four strands, method, the critique of equality, the criticisms.
• Against Marxism. The paired question is common: state the Marxist account of the emancipation of women, then the feminist rejection of it as simplistic and, judged by the twentieth century, unsound.
• The trap. Do not write that feminist jurisprudence is a campaign for equality. Three of the four strands treat formal equality as insufficient, and the post-modern strand rejects it outright.