Feminist legal theory is a branch of jurisprudence that examines the law through the lens of gender inequality and seeks to address and rectify systemic injustices experienced by women and marginalized genders. It emerged in the latter half of the 20th century as part of the broader feminist moveme...
Feminist Leg
Legal
al Theory
INTRODUCTION
1. Feminist theory has made a vibrant and controversial entry into academic writing in the
field of law. The scholarship in this area has developed into a large body of literature which can defy
organisation in its wide-ranging scope and complexity. Feminist theorising in legal scholarship draws
widely from feminist theory in other disciplines like literature, sociology, etc. It intersects extensively
with other types of critical theory, most notably of critical race theory, and gay and lesbian legal
studies. Domination, emancipation and the meaning of humanity are central ideas. Feminism involves
a project of redefining the relationship between the individual and society.
ORIGIN
2. The origins of feminist jurisprudence can be explained in a number of ways. One
explanation sees it as an offshoot of the critical legal studies movement (C. Menkel-Meadow). A
primary principle of feminist jurisprudence is acceptance of the objective of the abolition of patriarchal
society, in which the dominant schools of jurisprudence ignore or reject the concept of real equality of
men and women. The virtual abolition of patriarchy is, according to Patricia Smith, the political
precondition of a truly ungendered jurisprudence.
FEATURES OF FEMINISM
3. Feminist jurisprudence emerged in the late 1960s and early 1970s with the writing of
Simone de Beauvoir (The Second Sex), Betty Freidan (The Feminine Mystique) and others. The
large number of women studying law - a phenomenon of the late 1960s onwards - also had its
impact, as female students began to question a curriculum which neglected issues of central concern
to women: rape, domestic violence, reproduction, unequal pay, sex discrimination, sexual
harassment.
4. All forms of dualism are questioned by feminism, since women have generally been the
lesser regarded 'other' within sets of dualistically defined relationships. In general, Western
philosophy is seen as constructed out of sets of binary oppositions (including public v private; reason
v emotion; light v darkness; and male v female), one side of which is privileged over the other. Thus
women have been seen as the irrational, the emotional and the unreliable, and confined to the private
sphere of the family while the male - the rational - enters the world of politics and law (Frances
Olsen).
VIEWS OF DIFFERENT FEMINIST SCHOLARS AND SCHOOLS
5. Clare Dalton has written of feminism that it is a range of committed inquiry and activity
dedicated first, to describing women's subordination - exploring its nature and extent; dedicated
second, to asking both how- through what mechanisms, and why-- for what complex and interwoven
reasons - women continue to occupy that position; and dedicated third to change. Like Critical Legal
Studies (CLS), feminist jurisprudence inquiries into the politics of law, but its particular focus is on the
law's role in perpetuating patriarchal hegemony (per H. Wishik).
6. `In a Different Voice' Gilligan, a developmental psychologist, has argued that women's
moral development reflects a focus on responsibility and contextuality, whilst men's relies more
heavily on rights and abstract justice. An 'ethic of justice' is rooted in the value that every one should
be treated the same: an 'ethic of care' rests on the premise of non-violence, that `no one should be
hurt'. To scales the danger of taking Gilligan's insight is to believe that a care-based and rights-based
view are compatible.
7. To Robin West, the failure of modern legal theory lies in its understanding of what it is to
be a human being. Such theory is male because it assumes that individuals are essentially separate
from one another. She argues, to the contrary, that women are connected to other human beings,
especially through the biologically based activities of pregnancy, breast-feeding and hetero-sexual
intercourse. West argues for a feminist jurisprudence that reconstructs legal concepts to take account
of the realities of women's experience.
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