Feminist legal theory

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Feminist legal theory, also known as feminist jurisprudence, is based on the belief that the law has been fundamental in women's historical subordination.^[1] The project of feminist legal theory is twofold. First, feminist jurisprudence seeks to explain ways in which the law played a role in women's former subordinate status. Second, feminist legal theory is dedicated to changing women's status through a rework of the law and its approach to gender.^[1][2]

History

The term feminist jurisprudence was coined in the late 1970s by Ann Scales during the planning process for Celebration 25, a party and conference held in 1978 to celebrate the twenty-fifth anniversary of the first women graduating from Harvard Law School.^[3][2] The term was first published in 1978 in the first issue of the Harvard Women's Law Journal.^[4]

In 1984 Martha Fineman founded the Feminism and Legal Theory Project at the University of Wisconsin Law School to explore the relationships between feminist theory, practice, and law, which has been instrumental in the development of feminist legal theory.^[5]

Main approaches

Some approaches to feminist jurisprudence are:

• the liberal equality model;
• the sexual difference model;
• the dominance model;
• and the postmodern or anti-essentialist model.

Each model provides a distinct view of the legal mechanisms that contribute to women's subordination, and each offers a distinct method for changing legal approaches to gender.

The liberal equality model

The liberal equality model operates from within the liberal legal paradigm and generally embraces liberal values and the rights-based approach to law, though it takes issue with how the liberal framework has operated in practice. This model focuses on ensuring that women are afforded genuine equality including race, sexual orientation, and gender—as opposed to the nominal equality often given them in the traditional liberal framework—and seeks to achieve this either by way of a more thorough application of liberal values to women’s experiences or the revision of liberal categories to take gender into account. For example, when black women are only provided legal relief when the case is against her race or gender.^[6]

The sexual difference model

The difference model emphasizes the significance of gender discrimination and holds that this discrimination should not be obscured by the law, but should be taken into account by it. Only by taking into account differences can the law provide adequate remedies for women’s situation, which is in fact distinct from men’s.^[7] The difference model is in direct opposition to the sameness account which holds that women’s sameness with men should be emphasized. To the sameness feminist, employing women’s differences in an attempt to garner greater rights is ineffectual to that end and places emphasis on the very characteristics of women that have historically precluded them from achieving equality with men.^[7]

The dominance model

The dominance model rejects liberal feminism and views the legal system as a mechanism for the perpetuation of male dominance. It thus joins certain strands of critical legal theory, which also consider the potential for law to act as an instrument for domination. This theory focuses on how male dominate females, but it also talks about other groups being oppressed such as how legal aid is not often offered to the transgender population. Also, any white female would have good legal representation compared to minority groups.^[8]

In the account of dominance proposed by Catharine MacKinnon, sexuality is central to the dominance.^[9] MacKinnon argues that women's sexuality is socially constructed by male dominance and the sexual domination of women by men is a primary source of the general social subordination of women.

The anti-essentialist model

Feminists from the postmodern camp have deconstructed the notions of objectivity and neutrality, claiming that every perspective is socially situated. Anti-essentialist and intersectionalist critiques of feminists have objected to the idea that there can be any universal women’s voice and have criticized feminists, as did Black feminism, for implicitly basing their work on the experiences of white, middle class, heterosexual women. The anti-essentialist and intersectionalist project has been to explore the ways in which race, class, sexual orientation, and other axes of subordination interplay with gender and to uncover the implicit, detrimental assumptions that have often been employed in feminist theory. This model is about dismantling white feminism and First wave feminist and about building on actual equality for all regardless or gender, race, sexual orientation, class, or disability.^[10]

Notable scholars

• Martha Fineman
• Mary Joe Frug
• Catharine MacKinnon
• Mari Matsuda
• Kimberle Crenshaw
• Dean Spade
• Ann Scales

See also

• Critical race theory
• Feminist political theory
• Gender mainstreaming
• Women in law

Notes

References

• Baer, Judith A. Our Lives Before the Law: Constructing a Feminist Jurisprudence. Princeton University Press, 2001.
• Berkeley Journal of Gender Law, Difference, Dominance, Differences: Feminist Theory, Equality, and the Law, 5 Berkeley Women's L.J. 214 (1990). Available at: h p://scholarship.law.berkeley.edu/bglj/vol5/iss1/8
• Cain, Patricia A. “Feminist Jurisprudence: Grounding the Theories.” Berkeley Journal of Gender, Law & Justice, vol. 4, no. 2, Sept. 2013, Accessed 3 Oct. 2017.
• Crenshaw, Kimberle () "Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist eory and Antiracist Politics," University of Chicago Legal Forum: Vol. 1989: Iss. 1, Article 8. Available at: h p://chicagounbound.uchicago.edu/uclf/vol1989/iss1/8
• “Feminism and Legal Theory Project | Emory University School of Law | Atlanta, GA.” Emory University School of Law, law.emory.edu/faculty-and-scholarship/centers/feminism-and-legal-theory-project.html. Accessed 2 Oct. 2017.
• Scales, Ann. Legal feminism: activism, lawyering, and legal theory. New York, New York University Press, 2006.
• Spade, Dean. “BE PROFESSIONAL!” Harvard Journal of Law & Gender, Nov. 2010.
• Warner, J Cali. Proposal: the alignment of oppressed groups as post-Modern development. 2016.

Further reading

• Applications of Feminist Legal Theory: Sex, Violence, Work and Reproduction (Women in the Political Economy), ed. by D. Kelly Weisberg, Temple University Press, 1996, ISBN 1-56639-424-4
• Feminist Legal Theory: An Anti-Essentialist Reader, ed. by Nancy E. Dowd and Michelle S. Jacobs, New York Univ Press, 2003, ISBN 0-8147-1913-9
• Nancy Levit, Robert R. M. Verchick: Feminist Legal Theory: A Primer (Critical America (New York University Paperback)), New York University Press 2006, ISBN 0-8147-5199-7

External links

• "Feminist Jurisprudence". Internet Encyclopedia of Philosophy.
• Feminism and Legal Theory Project