Feminist legal theory
Encyclopedia
Feminist legal theory is based on the belief that the law
has been instrumental in women's historical subordination. 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 reworking of the law and its approach to gender
.
founded the Feminism and Legal Theory Project
at the University of Wisconsin Law School
in 1984, to explore the relationships between feminist theory, practice, and law, which has been instrumental in the development of feminist legal theory.
are:
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.
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
—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. Susan Okin (1946–2004), for example, has critiqued liberal approaches to justice.
and holds that these differences 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. 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 (for example, see the protective laws
).
.
In the account of dominance proposed by Catherine MacKinnon, sexuality is central to the dominance. 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.
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.
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
has been instrumental in women's historical subordination. The project of feminist
Feminist theory
Feminist theory is the extension of feminism into theoretical, or philosophical discourse, it aims to understand the nature of gender inequality...
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 reworking of the law and its approach to gender
Gender
Gender is a range of characteristics used to distinguish between males and females, particularly in the cases of men and women and the masculine and feminine attributes assigned to them. Depending on the context, the discriminating characteristics vary from sex to social role to gender identity...
.
History
Martha FinemanMartha Fineman
Martha Albertson Fineman is an internationally renowned law and society scholar and a leading authority in feminist legal theory and family law. She is currently Robert W. Woodruff Professor of Law at Emory University School of Law, having formerly held the Dorothea S. Clarke Professorship of...
founded the Feminism and Legal Theory Project
Feminism and Legal Theory Project
The Feminism and Legal Theory Project is a project aimed at addressing issues relating to women and law, founded by legal theorist Martha Fineman in 1984, and which has pioneered feminist legal theory. The project nurtures scholars from around the world, bringing them together to study and debate a...
at the University of Wisconsin Law School
University of Wisconsin Law School
The University of Wisconsin Law School is the professional school for the study of law at the University of Wisconsin–Madison in Madison, Wisconsin. The law school was founded in 1868.-Facilities:...
in 1984, to explore the relationships between feminist theory, practice, and law, which has been instrumental in the development of feminist legal theory.
Main approaches to feminist legal theory
The four primary approaches to feminist jurisprudenceJurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
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 liberalLiberalism
Liberalism is the belief in the importance of liberty and equal rights. Liberals espouse a wide array of views depending on their understanding of these principles, but generally, liberals support ideas such as constitutionalism, liberal democracy, free and fair elections, human rights,...
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
Gender equality
Gender equality is the goal of the equality of the genders, stemming from a belief in the injustice of myriad forms of gender inequality.- Concept :...
—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. Susan Okin (1946–2004), for example, has critiqued liberal approaches to justice.
The sexual difference model
The difference model emphasizes the significance of gender differencesGender differences
A sex difference is a distinction of biological and/or physiological characteristics associated with either males or females of a species. These can be of several types, including direct and indirect. Direct being the direct result of differences prescribed by the Y-chromosome, and indirect being...
and holds that these differences 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. 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 (for example, see the protective laws
Protective laws
Protective laws were enacted to protect women from certain hazards or difficulties of paid work. These laws had the effect of reducing the employment available to women, saving it for men. These were enacted in many U.S...
).
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 dominationDomination
-Books:* The Domination, an alternate history / science-fiction / alternate reality fictional, by S. M. Stirling.-Music:* Dominant , a diatonic scale step and diatonic function in tonal music theory...
.
In the account of dominance proposed by Catherine MacKinnon, sexuality is central to the dominance. 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 intersectionalistIntersectionality
Intersectionality is a feminist sociological theory first highlighted by Kimberlé Crenshaw . Intersectionality is a methodology of studying "the relationships among multiple dimensions and modalities of social relationships and subject formations"...
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
Black feminism
Black feminism argues that sexism, class oppression, and racism are inextricably bound together. Forms of feminism that strive to overcome sexism and class oppression. The Combahee River Collective argued in 1974 that the liberation of black women entails freedom for all people, since it would...
, 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.
Notable scholars
- Ruth Bader GinsburgRuth Bader GinsburgRuth Joan Bader Ginsburg is an Associate Justice of the Supreme Court of the United States. Ginsburg was appointed by President Bill Clinton and took the oath of office on August 10, 1993. She is the second female justice and the first Jewish female justice.She is generally viewed as belonging to...
- Catharine MacKinnonCatharine MacKinnonCatharine Alice MacKinnon is an American feminist, scholar, lawyer, teacher and activist.- Biography :MacKinnon was born in Minnesota. Her mother is Elizabeth Valentine Davis; her father, George E. MacKinnon was a lawyer, congressman , and judge on the U.S. Court of Appeals for the D.C. Circuit...
- Martha FinemanMartha FinemanMartha Albertson Fineman is an internationally renowned law and society scholar and a leading authority in feminist legal theory and family law. She is currently Robert W. Woodruff Professor of Law at Emory University School of Law, having formerly held the Dorothea S. Clarke Professorship of...
- Mari MatsudaMari MatsudaMari J. Matsuda is an American lawyer, activist, and law professor at the William S. Richardson School of Law. Matsuda returned to Richardson in the fall of 2008...
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 1566394244
- Feminist Legal Theory: An Anti-Essentialist Reader, ed. by Nancy E. Dowd and Michelle S. Jacobs, New York Univ Press, 2003, ISBN 0814719139
- Nancy Levit, Robert R. M. Verchick: Feminist Legal Theory: A Primer (Critical America (New York University Paperback)), New York University Press 2006, ISBN 0814751997