Feminist legal theory
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Feminist legal theory is based on the belief that the law has been fundamental 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.
The term feminist jurisprudence was first employed in a 1978 article by law student Ann Scales. 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.
Main approaches to feminist legal theory
- 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—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 differences 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, can the law which is in existent is sufficient? 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).
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.
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 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.
- Scales, Ann (1978). "Toward a feminist jurisprudence". Indiana Law Journal 56 (2): 375.
- Dean John Campion, Richard D. Hartley, and Gary Rabe, Criminal Courts, p. 27 (Upper Saddle River, NJ: Pearson 2008), ISBN 978-0-13-118979-9.
- 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
- Feminist Jurisprudence entry in the Internet Encyclopedia of Philosophy
- Feminism and Legal Theory Project