FEMINIST JURISPRUDENCE

DEFINITION OF TERMS

FEMINISM - the theory of the political, economic, and social equality of the sexes

- organized activity on behalf of women's rights and interests

FEMINIST - A person whose beliefs and behaviour are based on feminism.

JURISPRUDENCE - The philosophy or science of law.

- A division or department of law

ETYMOLOGY

The terms "feminism" or "feminist" first appeared in France and the Netherlands in 1872 (as les

féministes), Great Britain in the 1890s, and the United States in 1910. The Oxford English

Dictionary lists 1894 for the first appearance of "feminist" and 1895 for "feminism". The

British Daily News introduced "feminist" to the English language in a report from France. Before

this time, the term more commonly used was "Woman's Rights”, hence Queen Victoria's

description of this "mad, wicked folly of 'Woman's Rights'"

HISTORY

People and activists who discussed or advanced women's equality prior to the existence

of the feminist movement are sometimes labelled protofeminist.  Some scholars, however,

criticize this term's usage. Some argue that it diminishes the importance of earlier contributions

while others argue that feminism does not have a single, linear history as implied by terms such

as protofeminist or postfeminist.

French writer Christine de Pizan (1364 – c. 1430), the author of The Book of the City of

Ladies and Epître au Dieu d'Amour (Epistle to the God of Love) is cited by Simone de

Beauvoir as the first woman to denounce misogyny and write about the relation of the sexes

Other early feminist writers include Heinrich Cornelius Agrippa and Modesta di Pozzo di Forzi,

who worked in the 16th century, and the 17th-century writers Hannah Woolley in England, Juana

Inés de la Cruz in Mexico,[ Marie Le Jars de Gournay, Anne Bradstreet, and François Poullain de

la Barre.
 One of the most important 17th-century feminist writers in the English language

was Margaret Cavendish, Duchess of Newcastle-upon-Tyne.

18th century: the Age of Enlightenment

The Age of Enlightenment was characterized by secular intellectual reasoning and a flowering of

philosophical writing. Many Enlightenment philosophers defended the rights of women,

including Jeremy Bentham (1781), Marquis de Condorcet (1790), and, perhaps most

notably, Mary Wollstonecraft (1792).

Jeremy Bentham

• Bentham spoke for complete equality between sexes including the rights to vote and to

participate in government. He opposed the asymmetrical sexual moral standards between

men and women.

• In his Introduction to the Principles of Morals and Legislation (1781), Bentham strongly

condemned many countries' common practice to deny women's rights due to allegedly

inferior minds.[29] Bentham gave many examples of able female regents.

Marquis de Condorcet

• Nicolas de Condorcet was a mathematician, classical liberal politician, leading French

revolutionary, republican, and Voltairean anti-clericalist. He was also a fierce defender

of human rights, including the equality of women and the abolition of slavery, unusual

for the 1780s. He advocated for women's suffrage in the new government in 1790

with De l'admission des femmes au droit de cité (For the Admission to the Rights of

Citizenship For Women) and an article for Journal de la Société de 1789.

Mary Wollstonecraft

• Perhaps the most cited feminist writer of the time was Mary Wollstonecraft, often

characterized as the first feminist philosopher

• By modern standards her comparison of women to the nobility, the elite of society

(coddled, fragile, and in danger of intellectual and moral sloth) may at first seem dated as

a feminist argument. Wollstonecraft identified the education and upbringing of women as

creating their limited expectations based on a self-image dictated by the male gaze.
 • Wollstonecraft believed that both genders contributed to inequality

Other Relevant Facts

• The feminist political movement began in the nineteenth century with a call for female

suffrage. At a convention in Seneca Falls, New York, in 1848, a group of women and

men drafted and approved the Declaration of Rights and Sentiments.  This document,

modelled on the language and structure of the Declaration of Independence, was a bill of

rights for women, including the right to vote.

• Throughout the late 1800s, feminist leaders Susan b. Anthony and Elizabeth Cady

Stanton were persistent critics of male society's refusal to grant women political and

social equality. In the mid-nineteenth century, many state legislatures passed married

women's separate property acts. These acts gave women the legal right to retain

ownership and control of property they brought into the marriage. 

• The modern feminist movement began in the 1960s. In 1966 Betty n. Friedan, author

of The Feminine Mystique (1963), organized the first meeting of the National

Organization for Women (NOW).

FEMINIST JURISPRUDENCE

Since the 1980s, a substantial amount of challenging and creative legal scholarship has

come to be known as feminist jurisprudence (see Smith, 1993). The character of this scholarship

is quite diverse. Just as it has been noted that there is not one feminism, but many, so there is not

one feminist legal theory, but many. The question is: what is feminist jurisprudence and what

makes it worth attending to? What (if anything) do all these divergent views have in common

that binds them together and distinguishes them from all other theories? (What makes them all

feminist?) Second, what do they tell us about law? (What makes them jurisprudence?) Third,

what is important about this form of legal analysis? Supposing that there is a distinctively

feminist jurisprudence, why is law in need of it? These questions are derived from the major

objections leveled against feminist jurisprudence, namely: (a) It is not “proper” jurisprudence;

(b) it is not distinctively feminist; and (c) it is not philosophically interesting.

Feminist jurisprudence is not a single theory. Feminist jurisprudence is a philosophy of

law based on the political, economic, and social equality of sexes. Katherine Barlett defines it as

‘a family of different perspectives or frameworks used to analyze the actual, and the desirable,

relationship between law and gender.’1 Christine Littleton defines feminist jurisprudence as

including all ‘attempts to explain, critique, and change law on behalf of, and from the perspective

of, women. While this definition contains a problematic notion of essentialism, it points to

feminist jurisprudence’s grounding in women’s experiences, and its goal to transformation of

law. Indeed, feminist legal theory is practice oriented. Carol Smart sees feminist jurisprudence as

Praxis (borrowing the idea from Marx) –‘a combination of theory and practice, constructed

through the development of a methodology which ensures that the insights of theory are reflected

in the politics of action, and that the insights of practice are reflected in theory construction.’2

Feminist jurisprudence is a branch of jurisprudence that examines the relationship

between women and law, including the history of legal and social biases against women, the

elimination of those biases in modern law, and the enhancement of women’s legal rights and

recognition in society (Black Law’s Dictionary).

Feminists believe that history was written from a male point of view and does not reflect

women's role in making history and structuring society. Male-written history has created a bias

in the concepts of human nature, gender potential, and social arrangements. The language, logic,

and structure of the law are male-created and reinforce male values. By presenting male

characteristics as a "norm" and female characteristics as deviation from the "norm" the prevailing

conceptions of law reinforce and perpetuate patriarchal power. Feminists challenge the belief

that the biological make-up of men and women is so different that certain behavior can be

attributed on the basis of sex. Gender, feminists say, is created socially, not biologically. Sex

determines such matters as physical appearance and reproductive capacity, but not

psychological, moral, or social traits.

Though feminists share common commitments to equality between men and women,

feminist jurisprudence is not uniform. There are five major feminist legal theories within
1
Katherine T. Barlett, ‘Perspectives in Feminist Jurisprudence,’ in: Betty Taylor et al (eds), Feminist Jurisprudence,
Women and the Law: Critical Essays, Research Agenda and Bibliography, Littleton: Rothman & Co (1999), pp. 3-
21, at 3.
2
Carol Smart, Feminism and the Power of Law, London: Routledge (1989), at 69.
feminist jurisprudence. Traditional, or liberal, feminism asserts that women are just as rational as

men and therefore should have equal opportunity to make their own choices. Liberal feminists

challenge the assumption of male authority and seek to erase gender based distinctions

recognized by law thus enabling women to compete in the marketplace.

Another school of feminist legal thought, cultural feminists, focuses on the differences

between men and women and celebrates those differences. Following the research of

psychologist Carol Gilligan, this group of thinkers asserts that women emphasize the importance

of relationships, contexts, and reconciliation of conflicting interpersonal positions, whereas men

emphasize abstract principles of rights and logic. The goal of this school is to give equal

recognition to women's moral voice of caring and communal values.

Like the liberal feminist school of thought, radical or dominant feminism focuses on

inequality. It asserts that men, as a class, have dominated women as a class, creating gender

inequality. For radical feminists gender is a question of power. Radical feminists urge us to

abandon traditional approaches that take maleness as their reference point. They argue that

sexual equality must be constructed on the basis of woman's difference from man and not be a

mere accommodation of that difference.

Postmodern feminism does not represent a single theory. Moreover, postmodern

feminists do not believe in a single theory or a single ‘truth,’ and are particularly opposed to

creation of any ‘Grand Theory. Postmodern feminists do not offer single solution to the

oppression of women, first because they don’t believe there is a single solution to anything, and

second, because they to propose the solution would suggest that all women’s experiences are

alike and that women’s oppression is unitary thing. They believe that attacking oppression of

women requires contextual judgment that recognize and accommodate the particularity of human

experience.

Last is the diversity stage. A second thread in the development of feminist legal theory

emerged in the late 20th with a critique of essentialism in existing theories; namely, their ‘false

universalism,’ whereby the use of the unstated norm of the most privileged group of women-

namely, white, middle class, heterosexual women- has the effect of eclipsing nonpriviliged

groups of woman; and ‘gender imperialism’ which accords too much weight to gender

oppression, minimizing the impacts of oppression based on race, class or sexual orientation. At
the same time, as lesbian and gay jurisprudence emerged, lesbian feminists started criticizing

heterosexual assumptions in feminist theories and lack of awareness of gender in gay and lesbian

theories.

Common to different definitions of feminist jurisprudence and to different feminist legal

theories is their focus on gender implications of legal rules and practices (in particular how legal

rules and practices affect women and how law reflects and constructs gender identities),

exposure and critique of patriarchal nature of substance and methods of law, and goal of

transforming both laws’ substance and methods in accordance to feminist goal of rejection of

patriarchy and liberation of women. However, different theorists have not always had the same

ideas on how the transformation should look like and by what means to achieve it. While

theorists of liberal feminism thought that ‘adding women’ into legal consideration and treating

them equally as men could achieve the goals of liberation of women, nowadays, feminist legal

theorists go beyond sameness/difference debate and are also concerned with transformation of

legal logic, legal values, concept of justice.

Through various approaches, feminists have identified gendered components and

gendered implications of seemingly neutral laws and practices. Laws affecting employment,

divorce, reproductive rights, rape, domestic violence, and sexual harassment have all benefited

from the analysis and insight of feminist jurisprudence.

What makes “feminist jurisprudence” jurisprudence?

Since jurisprudence is the analysis of fundamental legal relations, concepts, and

principles, and the feminist legal theory that identifies itself as jurisprudence is, in fact, engaged

in such analysis, the real question is why there should be any objection to classifying it as

jurisprudence? It is claimed that feminist jurisprudence is a contradiction in terms. Jurisprudence,

it is argued, is supposed to be the neutral analysis of universal legal principles, so given that

feminism is self - interested, it produces a self - interested jurisprudence, which is a contradiction

in terms. But this argument is misguided in both of its central premises: (1) it assumes that

feminism is somehow unfairly self - interested, which is false; and (2) it assumes that

jurisprudence is neutral (meaning nonmoral or apolitical), which is also false.

The feminist answer to (1) is that feminist jurisprudence is no more self – interested than

supposedly universal jurisprudence, which, in fact, is patriarchy masquerading as the objective

dedicated to proving that traditional jurisprudence and law are not neutral or universal, but

biased in favor of the dominant culture, at the expense of all others. So this objection to the

legitimacy of feminist jurisprudence relies on denying or ignoring the central claim of feminists

about the nature of jurisprudence and law. Thus, it embodies a fundamental misconception about

the object of feminist jurisprudence, which is not intended to reconstruct legal institutions so as

to favor women. It is intended to reconstruct legal institutions so as not to disfavor women. That

is, it is intended to eliminate bias against women. So, while feminism is self - interested, it is self

- interested in the sense that self - defense is self - interested, which is to be interested in

promoting justice, not privilege. Therefore, the assumption that feminism is illegitimately self -

interested is false.

As to point (2), that jurisprudence is neutral, this objection relies on a particular

interpretation of what counts as jurisprudence. The idea of jurisprudence in common usage today

can be divided into a broad and a narrow sense. Broadly speaking, jurisprudential theories are

political theories which have legal ramifications. For example, liberal, Marxist, and socialist

political theories produce jurisprudential views (that is, legal theories) that follow from and

reflect their implications. When people talk about liberal jurisprudence or socialist jurisprudence

that is what they are talking about. Clearly, this broad sense of jurisprudence does not entail

neutrality in its theories.

Much (although not all) feminist jurisprudence is associated with one or more of these

political theories. Feminist theories often point to the omission of women or the presence of

gender discrimination within the general political theories with which they are associated. And

feminist jurisprudence can be combined with any number of other political views, such as

pragmatism, postmodern critical theory, purely radical, critical race theory, post-colonial

feminism, or critical legal studies. There is no single feminist jurisprudence, no single political

view associated with feminism, and except feminism itself, which is also a political view (the

view that advocates freedom and justice for women). So, all feminist theory is political. Its form

varies depending on the other theories with which it is combined. Yet, all these views fit within

the broad sense of jurisprudence that informs all feminist work.

There is also a narrow, technical sense of jurisprudence, however, which is sometimes

equated with all jurisprudence. Thus, the legitimacy of the broad sense is sometimes questioned,
and that is the ground for denying that feminist jurisprudence is “really” jurisprudence. It does

not fit the narrow sense of jurisprudence. But the narrow sense of jurisprudence – at least in the

form that denies the legitimacy of feminist jurisprudence – is itself open to question.

The narrow sense of jurisprudence has traditionally been concerned with the question:

what is law? Addressing this question, philosophers have focused on the concept of law as such,

on legal concepts and relations, and legal functions, particular legal reasoning. Historically, three

major theories were advanced to deal with these issues.

The oldest, natural law, commonly defined law as a precept of reason promulgated for the

common good by those in authority to do so. Natural law holds, among other things, that there is

a necessary connection between law and morality, such that an immoral law is invalid or not

binding.

The second view, legal positivism, which became predominant in the nineteenth century,

objected to the natural law view as confusing what law is with what law ought to be, and

attempted to construct a value - neutral definition of its own. Positivists today generally define

law as a system of rules promulgated by authorized procedures, recognized as binding by

officials and obeyed by the bulk of the population.

The third theory, legal realism, a twentieth - century development, objected to the natural

law approach as too obscure and metaphysical, and to the positivist approach as too rigid and

abstract. Arguing that law is fundamentally and inescapably political, the realists defined law

roughly as a method of dispute settlement by appeal to the authority of an office, especially a

court; or to put it more succinctly, they claimed that law is what judges say it is. Proponents of

these well - known theories continue to debate the fundamental nature of law and the appropriate

function of jurisprudence to this day.

Given this history we can see that traditional jurisprudence was not always divided, but

has long been divided into two major subcategories: normative and descriptive jurisprudence.

This division was instituted by John Austin, the nineteenth – century positivist who dedicated his

famous lectures to “determining the province of jurisprudence, properly so called.” According to

Austin, the proper domain of jurisprudence was the descriptive analysis of the positive law, its

basic concepts and relations.

jurisprudence, and the two should not be confused, just as law and morality should not be

confused.

The powerful influence of this view can be seen in the official definition of jurisprudence

found today in Black’s Law Dictionary: that science of law which has for its function to ascertain

the principles on which legal rules are based, so as not only to classify those rules in their proper

order … but also to settle the manner in which doubtful cases should be brought under the

appropriate rules. Jurisprudence is more a formal than a material science. It has no direct concern

with questions of moral or political policy, for they fall under the province of ethics and

legislation.

Notice that this definition conveniently settles the long and continuing controversy

between positivists and natural law theorists, by making positivism the only true jurisprudence.

Unfortunately, philosophical questions are not often answered so easily, and presumably those

who find natural law insightful will not have their questions answered by Black’s Law

Dictionary. Nevertheless, the dictionary entry does show the power of positivist influence in

American legal thought, as well as the problematic nature of the approach taken by Austin to

define natural law out of existence. And it is precisely this view which provides the grounding

for the objection that feminism, not being neutral, is contradictory to jurisprudence.

According to Black’s Law Dictionary, natural law theory is not jurisprudence (and legal

realism is not jurisprudence either), so perhaps feminists should not be disturbed if their theory is

not considered to be jurisprudence for the same reasons. But the important point is that Black’s

Law Dictionary, in its attempt to be neutral, is blind to its own bias against all theories but one,

which it assumes by adopting a positivist definition of what qualifies as jurisprudence: hardly a

neutral definition.

What this demonstrates is that given the nature of law as arguably political, jurisprudence

cannot be made neutral in any way and certainly not by stipulative definition, because arguing

and examining the political implications of law – or lack of them – is a central issue of

jurisprudence. So jurisprudence is not and cannot be neutral, and that shows that both the

assumptions that underlie the objection to the legitimacy of feminism as jurisprudence are false.

So feminist jurisprudence is indeed jurisprudence or else natural law is not. This is not to say that
they cannot both be wrong. Positivists can claim that natural law is wrong, but not that it is not

jurisprudence.

What makes feminist jurisprudence feminist?

The great diversity within feminism has led some critics (and even some feminists) to

argue that there is no common feminist perspective. There is no feature that distinguishes

feminist jurisprudence from all other legal philosophy. All feminism is actually reducible, or so it

is argued, to those theories that inform its many facets. Liberal feminism is reducible to

liberalism; postmodern feminism is reducible to postmodernism, and so on. Thus, it is claimed,

feminism provides no new idea, or distinctive theory. It is simply the application of old theories

to the particular problem of women’s oppression.

Furthermore, it is claimed, there is no point of view of all women. Feminism, if it can be

identified as one view, is the view of a few women who are seeking to impose it on everyone

else. The fact is that the majority of the women of the world either disagrees with the views of

feminists, or else never thought about the issues feminists raise. So it is highly problematic for

feminists to represent themselves as speaking for all women.

It is true without question that women are as diverse as human beings can be. Women can be

rich, poor, weak, strong, dominating, passive, upper class, lower class, rational, irrational – the

list could go on indefinitely.

Women are members of every race, religion, nationality, class, or ethnic group. So what

is the supposed perspective of all women that is the putative foundation of feminism? What do

all women have incommon? What do I have in common with the homeless women I walk past in

Grand Central Station, or the invisible ones that I do not see in my hometown? What do college

professors have in common with prostitutes, or drug addicts, society women, or corporate

executives, cashiers, or the lonely invalids who inhabit the nursing homes? How can anyone

presume to speak for all of them? The women of South Africa, Bangladesh, former Yugoslavia,

China, the Brazilian rainforests, and the Australian outback are all women. Can they possibly all

have something in common? When I think of the problem in these terms it reminds me of when I

was trying to figure out exactly what it is that makes human beings human. It turns out that there

is no set of necessary and sufficient conditions that delineates the classification and distinguishes

it from all others. There is no property common to all and only human beings. And I think that is

true about women as well.

human being or a woman. Isolating necessary and sufficient conditions is not the best approach

to solving all problems or answering all questions. So, it is still possible that there is something

we share that makes us all human, even if we cannot say exactly what it is with logical precision.

Similarly, there can be something common to all women that feminism addresses, despite our

profound differences. Even if we are unable to specify it precisely, we can indicate generally

what this is. So what is it? What do all women have in common regardless of race, class,

religion, station, nationality, ethnicity, or background? All women live in a patriarchal world. All

women function within an environment that is patriarchal. It is unavoidable, like the air. We eat,

sleep, and breathe it (as do men). But all women hold a certain position within that world

(despite the qualification of our other differences) because it is precisely the function of

patriarchy to specify that position and preserve it. Thus, all women operate within a worldview

that constitutes a certain picture of reality – a picture that is profoundly and systematically

gendered, even if that picture is beginning, just beginning, to crack and dissolve. That is the

insight of radical feminists, that gender itself is a social construction based on and reflecting

sexism: that is, male dominance and female subordination, male autonomy and female

restriction, and male glorification and female devaluation, all supposedly justified as a result of

natural needs and differences, or the protection of women, or simply as a value - neutral

description of the world.

This theory is not reducible to any other. Of course, this description of patriarchy as

sexism is an oversimplification. One of the problems all feminists face is that any description of

patriarchy will inevitably be an oversimplification because patriarchy is an entire worldview. It is

enormously complex. By comparison, if you asked ten people for a description of, say, the

United States (or any complex entity), you would get ten different descriptions. They could all be

true. They would all be incomplete. No one of them could be the best description for all

purposes. And they could all disagree with one another and still be accurate because they would

differ in focus, purpose, characterization, and so forth. But patriarchy is much more complex

than any single nation or culture. It is an entire worldview, with a million implications and

effects, which has structured reality since the prehistory of human existence without any serious

objection, challenge, or change until the second half of the twentieth century. This is a

profoundly effective world view, as Catherine MacKinnon put it, the most perfect ideology ever
invented. It structures virtually everything that exists in its own image of reality. There is almost

nothing that it does not touch. A comprehensive description of something like that is utterly

impossible. So it is hardly surprising that different feminists provide different descriptions of it

and different approaches to it.

In fact, it would be surprising if that were not the case. It does not follow, however, that

because patriarchy is a complex worldview that cannot be described comprehensively, that there

is no such thing as patriarchy or that women are not subject to it. Patriarchy is the systematic

subordination of women to men, and that is the experience that all women share. The point of

view of all women is the point of view of those who are subordinated on the basis of their sex

regardless of what else may be different about them. Even if some individual personal

relationships deviate from this norm, systematic social organization still conforms to it

everywhere. And even if particular women are in positions of power because of wealth, class, or

accomplishment, they are not real exceptions to the point because they still function in a sexist

world overall. So the one experience common to all women is living in the subordinated half of a

patriarchal world, and the one feature common to all feminism is the rejection of that world

view. The focus and result of this rejection may vary a great deal. Feminists may disagree with

one another about what constitutes a rejection of sexist domination, or about which approach is

likely to improve the condition of women, or is most susceptibleto abuse or misinterpretation.

They may disagree about which element gets to theessence of the problem, or even whether there

is an essence to this problem.

Nevertheless, all feminist theories are intended to liberate women from sexist domination

in one form or another. Sexist domination comes in many forms. It is found in social attitudes

about rape, wife battering, sexual harassment, employment practices, educational expectations,

workplace design, advertising, entertainment, and family responsibilities, to name just a few.

Most of these social attitudes are reflected in law. They are part of the million effects and

implications of patriarchy. And all these effects and implications are the legitimate domain of

feminist theory. Thus, the diversity of feminist theories is in part a reflection of the pervasiveness

of patriarchy and the great variation of its effects.

The diversity is also due to other perspectives on which feminists diverge. That is,

feminists adopt many different approaches to addressing patriarchy. For example, some have

focussed on the global failure of law to adequately address violence against women in the form
of rape, incest, and domestic violence. Others are analysing the disadvantage caused by

hierarchical economic structures, and particularly the division between the family and the

market. Yet others are challenging the value structures associated with traditional male and

female roles, insinuated in law and supposedly justified by religion. Still others are examining

the intersection of gender with other factors of identity and discrimination, such as race,

ethnicity, class, disability, or age. All these approaches are partial and all are needed. Each

addresses some aspect of the pervasiveness of patriarchy. Yet it does not follow that feminist

theories share no common, distinctive feature. To see what makes feminist theories distinctive,

we should compare them not with each other, but with antifeminist or no feminist views. These

differences make clear that what is common to all feminist theories is also what is distinctive

about them.

Consider the debate between Catherine MacKinnon and Phyllis Schlafly over the ERA as an

example of the feminist antifeminist dispute. What was that debate about? It was, at bottom, a

disagreement over whether the traditional roles of men and women should be changed or

preserved. How these traditions are described depends on the point of view. The feminist

describes the effects of these traditional roles and institutions as sexist domination. The

antifeminist describes them as the preservation of family values. The feminist is arguing that

patriarchy should be changed and the antifeminist that it should be preserved. Both agree that

this issue is crucially important.

The nonfeminist theory on the other hand either argues that patriarchy is not important or

simply does not address it. But a feminist generally thinks the implications and effects of

patriarchy are relevant to many more subjects than the nonfeminist recognizes. In fact, a

significant part of the feminist project is to educate the nonfeminist, so to speak, to make clear

the significance of patriarchal influences where they commonly go unrecognized. For example, a

central project of feminists is to make clear that certain institutional structures – such as equal

protection law founded on male norms as the standards of comparison, concepts such as force

and consent in rape law, or policies such as non-interference with family violence as respect for

privacy or family, or judicial review based on the intent of the framers are biased or value laden,

when they are assumed to be neutral. Overall, then, the antifeminist supports patriarchy. The

nonfeminist overlooks or ignores patriarchy. And the feminist opposes patriarchy. The one

feature that defines or identifies a theory as feminist, then, is that it takes the changing of
patriarchy as its central focus. That is precisely what makes feminist jurisprudence feminist,

despite all its variations.

So feminist jurisprudence is jurisprudence because it is the analysis of fundamental legal

relations, concepts, and principles. It is feminist because it examines and opposes patriarchy. But

why is that project central to jurisprudence as a whole, rather than a specialized topic for a small

subgroup? The formulation of the question betrays its answer. The feminist claims that

patriarchy unfairly structures virtually all social arrangements, and is dedicated to reforming that

structure. Anyone who denies the broad significance of that sort of project is like the feudal lord

who denied that the industrial revolution was relevant to him because his fief was in the country.

If you think the claim is narrow, it is because you do not believe it, or perhaps do not understand

it because it is undertaken incrementally and peacefully.

Yet, for the unbeliever, instrumental arguments can also be given. First, law, givenits

nature, tends to preserve the status quo. Law is a system of order intended to provide stability.

That is its value; but that also makes it poorly suited to deal with change, especially broad based,

systemic social change. Second, law naturally embodies the values, attitudes, expectations, and

presumptions of the dominant culture (which it generally represents as universal values and/or

neutral descriptions of facts of nature).This feature makes law badly suited to deal with diversity

in a truly open and equitable manner. Yet in a world of fast paced social change, pressing

pluralism and global diversity these limits are serious.

If law is supposed to promote the general welfare, it must be able to accommodate social

change and cultural diversity better than its current structure and tradition allow. The dominant

culture – those who hold power, make law and public policy, and influence institutional

development – have no stake in solving these problems, and their training, background, and

position militate against their being able to recognize such problems as central, to see them, let

alone deal with them. If law stands for justice, it must be justice for all. But the fact is that law

has been notoriously bad at providing justice for those outside the dominant culture. Blacks,

Native Americans, and Chinese (to mention three of the most infamous examples) as well as all

women did not get the same standard of justice that the founding fathers setup for themselves

and those who were much like them, even as they called it “ justice for all. ” Nor is this

deficiency yet corrected. Our blind spots are still significant. Feminist analysis is one of the best
corrective lenses available today because it speaks from the position of the outsider. This enables

it to be more creative, less tied to the tradition, less blinded by its own prominence.

Feminists have enormous motivation to find ways to accommodate change and diversity

in law, because the feminist program is part of the new development that will otherwise be left

out, and because women are among the legal outsiders who are vying for recognition. In fact,

some feminist work has provided unusually insightful observations about whether norms are

neutral or biased, and about how legal mechanisms might be revised and developed to increase

its flexibility and responsiveness. Feminists are very good gadflies.

For these reasons, feminist jurisprudence is clearly of general interest. It is the only legal

philosophy that currently confronts patriarchy as a central issue. Contrary to the objection that

this is not philosophically interesting, it provides a vantage point for truly creative and insightful

analysis of the most basic structures of law and society. We have hardly begun to explore its

implications.

Reported by :

ALETIN, FAY FIONA

CALDERON, JO RIZZA

MIER, RICHARD

Room EH 308

Philosophy of Law

Thursday : 7:30-8:30 / Saturday 2:30-3:30