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To what extent is feminism a coherent and distinctive approach to legal theory? Feminist jurisprudence is a broad church and reflects different strands of feminist thought but the unifying theme is that society and in particular, the legal system is patriarchal. Thus, feminist legal theorists have maintained their quest for a specifically feminist jurisprudence, aiming to make moral and legal philosophy more receptive to women. The dichotomy between the public and private is very much at the core of feminist legal theory. Notwithstanding the gains in formal equality and legal access to the public realm, feminists have argued that women remain subordinate to men. Catharine Mackinnon, a leading scholar in feminist jurisprudence, claims that the foundations on which jurisprudence lie are profoundly instilled with a masculine perspective, and women are denied full involvement in society. In contrast, there have been competing claims by Carol Gilligan that women are not necessarily considered inferior to men, but instead they simply reason differently. In an attempt to determine how coherent and distinctive a feminist approach to legal theory is, key concepts proposed by the above documented academics amongst others will be explored; the ways in which they have considered sex, sexuality, and gender to comprehend and criticise the legal system and its norms will be investigated.
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Catharine Mackinnon, a law professor and legal scholar, is considered the most influential of all radical feminists theorising in the discipline of law. She contributed largely to the field of feminist jurisprudence in the early 1980’s, providing the theoretical rationality for her later pieces of work. Inequalities between men and women were at the core of her work, and she has continued to support constructive measures that challenge such inequalities. In her 1982 article, Feminism, Marxism, Method, and the State: An Agenda for Theory, Mackinnon constructed a theory of women’s oppression where she recognised sex to be the central issue that constitutes such oppression.
In 1988, Mackinnon took a distinct approach to the issue of gender inequality in her publication entitled Feminism Unmodified, where she revealed a picture of collective oppression at the hands of men. She claimed that pornography demonstrates way in which male dominance is sustained in America’s patriarchal society. Traditionally, pornography has been defended on the grounds of the first amendment’s right to free speech doctrine. According to Mackinnon however, pornography should be outlawed on the basis that it is not an example of speech, but is essentially ‘a violation of civil rights and thus legally actionable sex discrimination’. She claimed that the concept of a freedom to speech simply allowed the more dominant speaker to silence the weaker one, stating ‘the free so-called speech of men silences the free speech of women’. According to Mackinnon, pornography goes beyond its content as it eroticises hierarchy, sexualises inequality, and portrays women to enjoy such abuse, but in reality, women do not enjoy the male dominance and are forced to accept this superiority. She argued that pornography is the clearest example of male dominance, claiming that ‘male power makes authoritative a way of seeing and treating women that when a man looks at a pornographic picture … the viewing is an act of male supremacy’.
Mackinnon’s stance on pornography is consistent with her stance on society, where she considers males to dominate the society and accordingly force women to change their identity. She highlights that pornography essentially ‘hurts men’s capacity to relate to women’ and consequently, men overlook the need for males and females to work together and instead consider it fundamental to have dominance. Mackinnon proposed a legal remedy for the injustices surrounding pornography, suggesting a movement away from the current masculine definition towards one that includes women. She argued for a new legal policy that made ‘visible a conflict of rights between the equality guaranteed to all women andâ€¦the right of the pornographers to make and sell’ such material. Cass Sustein, an American legal scholar, upheld Mackinnon’s claims and stated that pornography could harm women as it enhances the extent of violence against them; accordingly, he proposed that the Government should ‘enact narrowly drawn restrictions on materials that combine sex with violence or coercion’.
Mackinnon’s claims of pornography have garnered criticisms as her approach is considered too extreme. Feminists have claimed that although some women experience the negative effects of pornography, there are nonetheless some women that find it pleasurable, liberating and to some extent, educating. It can also be argued that if pornography were to be banned, it would simply underpin the notion that particular sexual desires between two compliant adults are demeaning and immoral. On the Contrary, if Mackinnon’s work were given serious legal consideration, society would benefit from tougher policies. Although her approach may be radical, her underlying concepts of pornography and its affiliation with the male hierarchy are credible in some aspects to feminist legal theory. Men who approve of pornography and are unable to distinguish how it serves the male dominance, often force women into submissive positions in movies and even society; in this respect, pornography increases men’s need to dominate and tolerates such dominance. Furthermore, Mackinnon’s definition goes as far as to state that pornographic material would be justifiable if it portrayed both sexes evenly, and if this was achieved, the male desire to view pornography would significantly decrease and women could befit the power structure on their own terms.
Mackinnon studied the legal doctrine concerning rape to accentuate the extent of gender inequality within the law and male dominance amongst the sexes. She presented an argument criticising the concept that ‘rape is illegitimate because it is sex to which the victim has not consented’. Mackinnon argued that consent fundamentally failed in two ways: Firstly, women consenting to sex are in effect consenting to be dominated, involving an unacceptable level of domination; Secondly, women that actually consent to sex only do so because they have been taught to enjoy their inferiority. Natasha Walter, a British feminist writer, identified that in Britain, between twenty to forty percent of women claimed that they had been raped, while only three percent of men claimed that they had forced a woman into a sexual act. This suggests Mackinnon’s views on the notion of consent are indeed accurate, and women are not agreeing out of freewill. Consent could be invoked to disguise what had in fact been an act of force, and consent could have been used in trials as a way of legalising such an act.
Furthermore, MacKinnon used ‘the parallel between men’s inability to differentiate between rape and intercourse and the law’s inability to so’ to demonstrate the gender inequality. Considering the difficulties women were challenged with when having to prove rape, Mackinnon construed the legal principles of rape as a creation of male ideology. She stated that ‘rape and intercourse are not separated by any difference between the physical acts or amount of force involved, but only legally, by a standard that centres on the man’s interpretation of the encounter’. A man would only be culpable of rape if he had a guilty intent; accordingly, if he did not consider his act to be anything other than just sex, then under the eyes of the law, it was just sex and the woman had not been violated. Mackinnon fundamentally argued that men used the legal doctrine of rape to hold women in a position of inferiority, and the standard of impartiality in the legal system made it extremely difficult for women to succeed with rape cases. Carol Smart rightly noted that ‘Mackinnon is able to elaborate a complex argument which shows that only from a woman’s point of view is rape an injury’.
Friedrich Engels, a notorious scholar and philosopher that worked closely alongside Karl Marx, adopted a Marxist approach to account for the subordination of women and the patriarchal society, of which Mackinnon overtly critiqued. He argued that women’s status and the division of power between the sexes became an issue after the rise of the family, private property, and the state. According to Engels, the law could not provide a solution for women’s oppression as the root causes of such oppression were social inequities and class power. He claimed that ‘formal legal equality could not bring an end to patriarchal relations, and that paper equality could do little to eradicate inequalities that were embedded in social and economic conditions’. Nevertheless, in his 1972 publication, he upheld that legal equality was still imperative, stating that ‘real social equality between the two, will be brought out into full relief only when both are completely equal before the law’. To Mackinnon, Engels’s theory appeared a characteristic male bias; it was not reasonable that during a time when men accumulated property and made it private, women gave up their ‘economic power and sexual freedom, preferring monogamy in privatised families’.
Traditional liberal legal theory has offered two divergent ways in which women are able to achieve equality, known as the “sameness” approach and the “different” approach. The “sameness” branch of the theory proposes that individuals that are the same ought to be treated the same; women should reason that women are no different from men, and they should therefore have access to what men can access. The “difference” approach suggests individuals that are different ought to be treated differently; women who feel different to men should stress their differences. Mackinnon has overtly opposed the sameness/different debate, claiming that both approaches abide by a male dominance. She has argued that under the “sameness” approach, women were measured according to their correspondence with men; under the “difference” approach, women were judged according to their distance from men.
Despite the sameness/difference debate in feminist discourse, men and women remained in a sex-based hierarchical relationship, and consequently, the neutrality of the law upheld male privileges whilst claiming that legal policy was gender impartial. The “difference” aspect appears complex; if feminists were to command the law to acknowledge the different needs of women, they would be opposed with the impediment that any variation from the neutral rules of law would equate to special treatment; to treat people the same that were in fact different would be breaching the concept of equality. Thus, the sameness/difference axis is flawed as it permits individuals who are different to be subordinated and considered inferior. Moreover, the “sameness” stance suggests that for women to be regarded as equal to men, they should obtain this equality by being like men. It can be argued that this approach is heavily male-biased; the stance promotes a picture of masculinity which women are required to emulate, which in turns gives rise to an anti-women society.
Katherine Bartlett, a renowned A. Kenneth Pye Professor of Law, pioneered three underlying elements that were designed to serve as the foundation for the future development of feminist legal theory. The first of these elements is “Asking the woman question” which ‘is designed to identify the gender implications of rules and practices which might otherwise appear to be neutral or objective’. Bartlett claimed that the legal barriers allied with being a female were so obvious, that the question was more ‘whether the omission was justified by women’s different roles and characteristics’. The question essentially seeks to challenge the particular aspects of existing legal standards that have disadvantaged women. The second element is “Feminist practical reasoning” which ‘combines some aspects of a classic Aristotelian model of practical deliberation with a feminist focus on identifying the perspectives of the excluded’. Bartlett highlighted that although the approach does not always offer a clear-cut means for solving legal conflicts, it does build upon the practical in specific dilemmas caused by human conflicts ‘focusing on the real rather than the abstract’. The final element is “consciousness-raising”, which is ‘an interactive and collaborative process of articulating one’s experiences and making meaning of them with others who also articulate their experiences’. Leslie Bender states that consciousness-raising produces knowledge by exploring the collective experiences of women through a shared telling of individual life events.
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Bartlett’s work appears to be highly credible and offers extensive direction to feminist jurisprudence and legal theory. Bartlett’s concept of “asking the woman question” allows the neutrality of the law to be questioned, and expose areas that may disadvantage women. By acquiring an answer and knowledge form this question, feminists can demand for an application of legal rules that no longer sustain the subordination of women. Furthermore, the voices and experiences of women must be heard in order to establish a climate for change, and consciousness-raising allows just this. It provides an opportunity for women to express their opinions, other experiences can be shared which may have otherwise remained unspoken. It has however been claimed that consciousness-raising alone will not eliminate male domination, but it is an important gateway and first-step which provokes wider institutional changes, particularly when challenging the law.
According to Mackinnon, the method of consciousness-raising is utterly fundamental to feminism, claiming that it comes to know different things as politics essentially in a different way. Mackinnon accentuates that feminist consciousness-raising is the ‘collective critical reconstruction of the meaning of women’s social experience, as women live through it’ and it is therefore paramount to the progression of feminist theory. Mackinnon’s classification of consciousness-raising has drawn great criticisms. Ruth Colker claimed that ‘we can only engage in consciousness raising with a limited number of people; thus, we can never be fully exposed to all the possibilities for ourselves’. Anne Bottomley et al similarly state that consciousness raising cannot be the only methodology, arguing that ‘if we are right that patriarchy is constituted in more than the sum of individual lives, then the response to it must be more than the sum of articulated individual experience’.
Carol Gilligan, an American feminist and developmental psychologist, presented a complete ‘new angle to the argument that law is male’. Gilligan based her work upon the notion of difference feminism. In her 1982 publication, In A Different Voice, she theorised that men and women tackle moral problems in a different manner to each other, and consequently she defined two ethics. It is important to note that she did not claim that the two forms of reasoning strictly related to gender, nor did she affirm that all men or all women speak in the moral voices stated. According to Gilligan, men embraced an ethic of justice, making decisions in a legalistic way using impartial principles, ‘they presume that the autonomy of individuals is paramount value and employ a rule-like mechanism to decide among the “rights” of those individuals’. Alternatively, Gilligan claimed that women maintain an ethic of care wherein preventing harm and taking care of others is crucial, and they seek to preserve relationships involved in situations. She primarily reasoned that women could gain personal autonomy once they looked past this ethic of care. Many of Gilligan’s critics have posed the question of whether valuing female characteristics and classing them as positive ‘will really change consequences and harms of perpetuating gender-based discrimination’.
As a developmental psychologist, Gilligan embarked upon her work by studying how boys and girls reason differently, as opposed to the underlying factors for why they reason so differently. This aspect of Gilligan’s work has been subject to immense criticism. Catharine Mackinnon disregards the concept of difference, stating that ‘Women value care because men have valued us according to the care we give them. Women think in relational terms because our existence is defined in relation to (men)’. Similarly, Carol Smart has argued that ‘using terms like ethic of caring Gilligan inevitably reaffirms that women are naturally caring – even though this may not be their intention’. She further highlights that Gilligan’s account of how women reason could ultimately lead to them being eliminated ‘from the corridors of justice’ as it is an unacceptable mode of reasoning. It seems that both ethics identified by Gilligan are essentially part of one inclusive system, with the ethic of care operating as an essential foundation for the ethic of justice. In addition, it appears that women were held responsible to both ethics, and as the two ethics often conflicted, women were frequently in a moral double bind. Although her work has been influential in the discipline of psychology as it has helped to include girls and women in studies and theories, its value to feminist jurisprudence should be questioned, as it appears to offer little direction with feminist legal theory.
Luce Irigaray, a leading author in contemporary French feminism, has been dynamically engaged in the feminist movement in Italy. In her publication, entitled Democracy Begins Between Two, she offered arguments for the formation of sex-based legal rights, stating that the ‘necessity of sexed rights thus belongs in the wider sphere of juridical reform’. She based her theory of sexed rights on the idea of differences between men and women. According to Irigaray, women are ‘different but equal’, and therefore the notion of equality is flawed as it enforces a standard that presumes sameness between both sexes, as opposed to an adjustment of women’s specific skills and abilities. She claims that gender and sexual identity has been embodied with a masculine perspective, and unsexed rights of traditional liberal values are heavily influenced by a masculine perception of human needs. The beliefs and needs of a woman were dismissed due to the lack of respect for females, a lack of respect for feminine genealogy, and a lack a of respect for women in a social or civil life.
Irigaray highlighted the importance of women determining a sexuality that is not centred upon serving the male, and appealed for a radical re-examination of the relationship between sex and democracy. She theorised that if individuals were to be considered wholly democratic, then primarily a complete recognition must be granted to both sexes that contributes to the functioning of a society. This recognition ‘is founded on two different identities, proof that we are living men and living women and not individuals in the abstract, impersonal, rather like robots or strange beings beyond the reach of death’. Irigaray’s work raised some strong, justifiable arguments. Gender equality cannot be achieved if the yardstick for such equality is the masculine figure. Furthermore, to attain gender equality, some elemental philosophical conceptions, predominantly sexed rights, require thorough reconsideration. It is fundamental to implement sex-based rights; society must, at a legal level, implement specific civil rights assuring women of a distinct civil identity, equivalent to such that is benefited by men.
Many feminists have criticised the concept of a private, non-political sphere where state intervention is utterly unacceptable. A key aspect to this debate is the potentially unfavourable consequences on a women’s career if she opts to start a family, which then results in her financial dependence on the male. Feminist Susan Okin highlighted the issue of unequal distribution of unpaid domestic labour between males and females, claiming the problem should be ‘given greater public recognition’. In her publication, The Disorder of Women: Democracy, Feminism, and Political Theory, Carole Pateman stated that injustices, which occurred within the private realm, could only be confronted by political actions. In Towards a Feminist Theory of the State, Mackinnon argued that the right to privacy essentially emphasised the division between public and private, which ‘keeps the private beyond public redress and depoliticises women’s subjection within it’. Mackinnon held that the traditional liberal division between the public and private spheres enhanced male dominance, and that ‘the legal concept of privacy can and has shielded the place of battery, marital rape, and women’s exploited labour’. She argues the private sphere is a place where the law disregards such injustices, and rather than resolve them, legal principles perpetuate them.
These feminists are seeking for amendments of the public/private distinction, where a woman’s individual right to privacy is not considered only within the context of her involvement with the family, but is given overall greater concern. They were not necessarily criticising the public/private distinction, or the necessity for boundaries of state intervention, but were rather aiming to redefine specific aspects, i.e. childcare, in an attempt to amplify their importance in liberal political theory. If acknowledgment is given to those family responsibilities of a woman, then there must be a change in cultural practices in addition to a political reconsideration. This is could ultimately lead to greater consideration being given to private and public constituents of the family, and traditional gender roles associated with the family could be amended, consistent with the liberal appreciation of privacy and equality. From this angle, feminism can be beneficial to liberalism, as it demonstrates to individuals that the private sphere is not clear of political involvement.
Feminist jurisprudence has proved to be a highly contentious area of legal studies; nonetheless, its rapid evolution, and legal enhancement within society makes it one with considerable weight. Feminists such as MacKinnon have incessantly argued that men have more power than women do and consequently, male power perpetuates male dominance. Although contemporary society may not embrace the changes Mackinnon has proposed, and her critics have deemed her theories as excessively radical, her underlying claims are still worthwhile. She was deliberately provocative in proving that the American male power structure dominates women and must be changed. Establishing sexual equity in this power structure would be a key step in the struggle for gender equality within society. Bartlett’s feminist methodologies can be employed as a measuring rod to illustrate how, and the extent to which, the law favours males and excludes women, and in this respect, his work offers great assistance to feminists striving for gender-based legal equality. Irrespective of such debates and competing arguments, feminist jurisprudence has made enormous strides over the years. It has succeeded in pushing the boundaries of law and legal language, to the extent where the law now recognises that women were previously in a radically different social relation to the law than men. It essentially highlighted that women’s experiences and expectations were not adequately acknowledged by the definitions of law which traditional jurisprudence offered, and thus, it is reasonable to argue that feminism has offered a highly distinctive and coherent approach to legal theory.
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