Feminist Legal Theory Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

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Political theories that examine the fundamental structure of the law and have ramifications for the practice and application of the law are known as jurisprudence (Smith 1993, 483). Feminist jurisprudence holds that the law has been written primarily by men and reflects male life patterns and ideologies. Thus, feminist legal theory looks at legal concepts and distinctions and critiques any subordination of women found within such notions. Feminist legal theory is descriptive in that it describes the world, but it is also normative in that it argues for a specific remedy: bringing women’s experiences to light in legal reasoning and challenging patriarchy. As jurisprudence, feminist legal theory is related to critical legal studies and legal realism. Both critical legal studies and legal realism argue that the law is not objective but represents a point of view, and both are focused on solving problems in the world. Likewise, feminist legal theory tries to determine how the law can treat women and men more equally and how to use the law to eliminate women’s subordination to men in different areas of life (the family or the economy, e.g.). Different types of feminist legal theory argue for different ways of solving the problem of inequality, but all feminist legal theories agree that the law is patriarchal, that this patriarchy is neither natural nor inevitable, and that the male norms embedded in the law can and should be corrected.

Liberal/Sameness Approach

Different approaches to feminist legal theory may be most easily understood through the evolution of the question of sex differences under the law. The first phase of feminist legal theory, which arose in the early 1970s, is often called the “sameness” or “equality” phase and was most influenced by core concepts of liberalism such as autonomy, choice, individualism, and the moral equality of all people. In this phase, feminist legal theorists aimed to assimilate women into the existing legal structure rather than change the structure of the law. This is also known as the “formal equality” approach because it argues that the law should not distinguish between the sexes; if the form of the law treats men and women the same by ridding itself of explicit distinctions between the sexes, then equality has been achieved.

Associate justice of the U.S. Supreme Court Ruth Bader Ginsberg is closely associated with this phase of feminist legal theory because she applied the formal equality doctrine to her work with the American Civil Liberties Union’s Women’s Rights Project and took on many cases wherein the law explicitly differentiated between men and women, whether this distinction worked to the benefit of men or women. In fact, many of Ginsberg’s clients were men challenging laws that excluded them from a special privilege granted to women.

The formal equality approach has been successful in changing the way the Supreme Court applies the Fourteenth Amendment’s equal protection clause to sexual discrimination cases. Gender is now considered suspect under this clause, so any law that treats people differently based on their sex is subject to review at the level of intermediate scrutiny. This means it is easier to discriminate legally between men and women than between racial groups (such laws are subject to strict scrutiny), but it is harder than discriminating on the basis of age, for example, as such laws are subject only to rational basis review, the most lenient level of review.

Radical And Cultural/ Difference Approaches

While the sameness/equality doctrine was still being argued, difference (cultural) feminism and dominance (radical) feminism became more prominent in the 1980s. Rather than contending that women are the same as men, this difference approach to feminist legal theory argues that there are important differences between women and men. Building on psychologist Carol Gilligan’s work, In a Different Voice (1982), difference feminists say that while men have an “ethic of justice” that emphasizes abstract rules and rights, women have an “ethic of care” that emphasizes concrete relationships and responsibilities. This relational approach, especially as developed by legal scholar Robin West, focuses on women’s culture and biology, emphasizing women’s connection to others due to mothering and reproductive roles and the physical acts of pregnancy and breast-feeding. According to this view, female virtues should be brought into the law by promoting caretaking and interconnection rather than individualism and empathy rather than detachment. Difference legal scholar Carrie Menkel-Meadow’s work has influenced the rising practice of alternative dispute resolution (mediation), which is premised on cooperation and trust as the basis of legal dealings rather than the adversary system of the courtroom.

The dominance approach to feminist legal theory is most closely associated with American feminist Catharine MacKinnon and radical feminism. MacKinnon argues that rather than being natural distinctions, sex differences are cultural constructions premised on male dominance and female subordination. To treat women and men equally, the law must not support these views. Instead it should recognize that men and women are equally different from each other rather than seeing men as a norm from which women differ. Because men and women are different, they must be treated differently to get equal outcomes. This position is considered radical because it calls for substantive changes in the structure of the law, not formal assimilation of women into men’s laws. Dominance feminism arose in response especially to legal areas in which men and women were clearly different and not similarly situated—for example, domestic violence, rape, and sexual harassment. This approach has been most successful in getting, for example, marital rape and sexual harassment defined as “harms” where formerly these categories or harms did not exist in the law.

Diversity Approach

Beginning in the 1990s, feminist legal theory developed an interconnected set of approaches loosely labeled the “diversity” view. Whereas the difference approach studied women’s differences from men, the diversity views examined women’s differences from each other, arguing that not all women have had the same life experiences. The diversity approach is ant essentialist and more contextual than earlier modes of feminist legal theory, and it is informed by pragmatic feminism, critical race theory, lesbian feminism, postmodern theory, and work on intersectionality. Diversity theory states that there are distinct harms that women experience when they inhabit multiple, overlapping subordinated identity categories. Thus, it contests gender essentialist theories that make women choose whether they want to press claims as women or as Hispanics, for example, rather than as both, as Latinas. Like difference theorists, diversity theorists argue that access to institutions is not sufficient to achieve equality, not only because once women have access to formerly all-male places of employment they might be subject to sexual harassment, for example, but because the kinds of harassment they face will be different depending on their race and sexuality. The diversity approach examines particular problems as they arise and how gender expectations affect specific groups of women differently.

Conclusion

The varying approaches to feminist legal theory are still employed by legal scholars and lawyers addressing questions of patriarchy in the law, although the sameness approach has had the most influence on legal decision making. The other perspectives, such as the difference or diversity approaches, have had more acceptance in law schools and journals but have been less successfully adapted to the actual practice of the law.

Bibliography:

Cain, Patricia. “Feminist Jurisprudence: Grounding the Theories.” Berkeley Women’s Law Journal 4 (1989): 191–214.
Case, Mary Anne. “Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence.” Yale Law Journal 105 (1995): 1–100.
Chamallas, Martha. Introduction to Feminist Legal Theory. 2d ed. New York: Aspen, 2003.
Crenshaw, Kimberle. “Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color.” Stanford Law Review 43 (1993): 1241–1299.
Dowd, Nancy E., and Michelle S. Jacobs, eds. Feminist Legal Theory: An Antiessentialist Reader. New York: New York University Press, 2003.
Franke, Katherine. “The Central Mistake of Sex Discrimination Law:The Disaggregation of Sex from Gender.” University of Pennsylvania Law Review 144 (1995): 1–99.
Harris, Angela P. “Race and Essentialism in Feminist Legal Theory.” Stanford Law Review 42 (1990): 581–616.
MacKinnon, Catharine. Sexual Harassment of Working Women: A Case of Sex Discrimination. New Haven, Conn.:Yale University Press, 1979.
Toward a Feminist Theory of the State. Cambridge, Mass.: Harvard University Press, 1989.
Matsuda, Mari. Where Is Your Body? And Other Essays on Race, Gender and Law. Boston: Beacon, 1996.
Menkel-Meadow, Carrie. “Portia in a Different Voice: Speculations on a Women’s Lawyering Process.” Berkeley Women’s Law Journal 1 (1985): 39–63.
Minnow, Martha. Making All the Difference: Inclusion, Exclusion, and American Law. Ithaca, N.Y.: Cornell University Press, 1991.
Radin, Margaret Jane. “The Pragmatist and the Feminist.” Southern California Law Review 63 (1990): 1699–1726.
Smith, Patricia, ed. Feminist Jurisprudence. Oxford, UK: Oxford University Press, 1993.
West, Robin. “Jurisprudence and Gender.” University of Chicago Law Review 55 (1988): 1–72.
Williams, Joan. “Deconstructing Gender.” Michigan Law Review 87 (1989): 797–845.