Tuesday, 8 March 2011

An Introduction To Feminist Jurisprudence and The 'Equality' Debate

It's International Women's Day 2011, and I'd like to use today to talk about feminist jurisprudence and the equality debate.

The four main strands of feminist jurisprudence

1. Liberal Feminism: Liberal feminism is not a strand of feminism so much as it is liberalism applied to women. Liberal feminists believe that laws, rights and freedoms should apply in the same way to men and women. It is associated with ideas of formal equality and equality of opportunity.

2. Radical feminism: Radical feminists believe that sex differences (i.e. differences between men and women) are more important than any other personal identity (i.e. social class, race or ethnicity). They embrace the idea of an essential sex difference and seek to explore repressed aspects of women's culture, values etc. Catherine Mackinnon is commonly associated with radical feminism. She has argued that the law in general, and traditional legal theory, is 'male' and that legal reasoning enforces men's domination over women. She wishes to invert this. Radical feminists believe that the rule of law and the values of gender neutrality, objectivity and formal equality mask the fact that they will always disadvantage women - i.e. the law on provocation as a defence to murder is shaped around male experiences of violence, not female (this can be a major problem, especially in relation to cases where a woman has been subject to domestic violence and kills her partner). Radical feminists argue for changes in the law and special treatment to deal with the inequalities of power, especially with regards to pornography, sexual harrassment and rape.

3. Post Modern Feminism: Post modern feminists engage with the philosophical rejection of grand theories, such as those within traditional jurisprudence. They are instead concerned with multiple identities and subjectivities. Post modern feminists are interested in the socio-legal construction of legal subjects and the categories of sex and gender, masculinity and feminity. Post modern feminists are concerned with the law's role in constructing, underpinning and maintaining sex and gender. They are interested in discourse and deconstruction - i.e. taking apart how theories are constructed and developed.

4. Cultural Feminism: (a.k.a. Difference Feminism) Cultural feminism shares many commonalities with post modern feminism. Their focus is on the celebration of women's difference. They wish to move beyond standard 'rule of law' values, such as gender neutrality and formal equality (unlike liberal feminists), and are concerned with questioning the very idea of gender neutrality. Like post modern feminists, cultural feminists are also concerned with the construction of the legal subject (i.e. is it useful to have equality in respect of familial relationships, or should we use a different approach based on the different experiences of men's and women's - and other women's - lives?). Cultural feminists are also interested in the way that they law may implicitly reflect a male point of view, for example in the law of provocation, rape, or the 'reasonable man' test. They are also interested in the effect of the constitution of the legal subject as male (e.g. the 'reasonable man' - if judges can't imagine women unless stripped of their gender, we need to address this). Cultural feminists are also interested in critiquing legal methods and values as male, and argue for a contextualised approach to the law.

Criticisms of liberal and radical feminism

1. Liberal Feminism: Liberal feminism has been described as 'too individualistic' - it ignores structural and systemic patterns of exclusion and disadvantage which contribute to women's subordination. For example, a woman might be unable to make partner in a law firm because she is unable to take clients out for late night drinks - liberal feminists would explain this away as the product of individual choice. Liberal feminism has also been criticised for ignoring the extent to which social and political institutions (i.e. the family) shape individual preferences, attitudes and choice - it relies on a pre-social conception of the individual. It may also be criticised because it rests on liberal conceptions of freedom (i.e. freedom from unnecessary intervention by the state) and fails to take into account positive provision of goods and services, such as childcare.

Radical feminists have questioned liberal feminist's assertion that legal subjects can be constructed as gender-neutral - because women have been defined as 'different' by men, they say that equality arguments cannot succeed in obtaining justice for women. Post modern feminists have criticised liberal feminism's attempt to assimilate women to a standard set for men, by men - why should women aspire to a male norm, especially if we don't even know if the norm is right for men? Liberal feminism has also been critiqued by cultural feminists because the equality of rights approach fails to take account of the social, economic and cultural context, and the relationships between the individual and others which may harm their abilities to exercise their rights. Instead, liberal feminism focuses on the assumption of an individual asserting their rights against the competing and conflicting rights of others.

The final criticism of liberal feminism (and possibly the most important) is that it relies on the liberal political view of a distinction between the public and private spheres - if women are more commonly associated with the private sphere, they are not inside the public sphere of state intervention. For example, the problems of rape and domestic violence were very late to come on to the political agenda for this reason.

2. Radical feminism: Radical feminism may be criticised because it assumes a commonality of experience shared between all women regardless of differences (class, ethnicity, sexuality, disability etc.). Those who cannot identify with the common feeling may feel excluded. Also, some women have more access to 'male power' than others - a middle class woman will have more access to the legal process than a working class woman. Radical feminists see male power and dominance as near-perfect because of it's institutionalisation through law, etc. If this is the case, how can women ever transcend it? They have also been criticised for denying women's subjectivity and ability to speak about their experiences if they don't tie with radical feminism. Again, the final criticism of radical feminism is also possibly the most important one - radical feminists aim to replace male grand theory with female grand theory, but this will lead to falling in to similar traps of exclusion and marginalisation - is it worth replacing one abstract of law with another?

Achieving legal equality

At the end of the nineteenth century, women were (in legal terms) non-persons. Recognition of their status as people was a necessary step before women could claim entitlement to legal rights and equality. Cases such as Chorlton v Lings (1868) and Jex-Blake v Senatus of Edinburgh University (1873) raised the question of whether women could necessarily participate in public life (by gaining the vote and graduating from university, respectively) as opposed to just the private sphere. After the Representation of the People Act 1918, the Sex Disqualification (Removal) Act 1919 set the comparator as the male norm, and set the precedent for anti-discrimination legislation to come.

Questions raised about the notion of legal equality

Firstly, having secured recognition as legal persons, might it be better to focus on women's differences from men? Women are still not equal to men - even after the removal of legal discrimination. Secondly - does equipping women for equal rights to use against the conflicting rights of others still allow for recognition of women's relationships, or is it too individualistic? Finally, does the law constuct an 'ideal' woman, against whom all women are judged? (i.e. 'Superwomen' who 'have it all')

Problems with the notion of equality

There are three types of equality we may consider:
  1. Equality of treatment
  2. Equality of opportunity
  3. Equality of consequences
No maternity provision in the workplace would be a result of (1) equality of treatment. However, women are more likely to be primary care-givers, this would mean a lack of (2) equality of opportunity for women. One result of this if that men and women do not share (3) equality of consequences when having children. Equality-based legislation has been ineffective in providing equal consequences in the workplace.

There are also two different meanings of the word 'equality' that we may consider. Firstly, there is material/factual equality - that is to say, that two things/people are the same/interchangeable. The problems with this definition are that no two people are ever the same, and that women are designated different roles and functions to men and tradtionally have been viewed as materially different. Assumptions about gender differences are still made.

The second meaning we may consider is moral equality - that is to say that two people are intrinsically worth the same. The problems with this are that sexes and nationalities have historically been viewed as materially different. Again, assumptions are still made. Also, the standard of comparator is the male norm. Similar treatment is only justified if men and women are the same in respect of the quality under consideration. Women are not competing on the same basis because of social norms which require women to be primarily responsible for the domestic sphere. If the experience is not shared by men (i.e. pregnancy), it is impossible for equal treatment to be attained.

Carol Gilligan

Carol Gilligan is a psychologist who offers a feminist perspective and critique of equal rights discourse. Her approach aims to identify women's 'different voice' in articulating moral choices. In her 1982 book, 'In a Different Voice', she studied boy's and girl's patterns of reasoning when asked about hypothetical examples of stealing. She found that boys tended to reason in terms of autonomy, individualised justice and rights (known as the 'ethics of justice' approach - the approach most commonly associated with the law's reasoning), and girls tended to focus on relationships and sustaining them (the 'ethics of care' approach). She argues that society values the masculine model (prioritising competing and conflicting 'rights') and undervalues the feminine model (which is contextual, narrative and focuses on relationships and responsibilities). Cultural feminists use Gilligan's work to argue that material changes should be made in the law to support women-valued relationships.

Problems with Gilligan's theory

Firstly, Gilligan makes generalisations based on sex alone, and her results come from quite a narrow experiment, meaning it lacks ecological validity (i.e. we cannot be sure the results she found represent the wider population). Also, women's focus on the 'ethics of care' might only be because it's the only role they are traditionally valued for. Finally, Gilligan's focus on the 'ethics of care' can risk greater subordination and entrenching of stereotypes.

Implications of Gilligan's theory for the law

Law is premised on heirarchies and abstract rules and principles. It values abstract principles such as 'justice', 'rights' and 'objectivity' (the 'ethics of justice' approach). It can be argued that they law pays too little attention to responsibilities arising from concrete relationships - especially those of dependency (the 'ethics of care' approach). Gilligan emphasises the importance for the law to recognise the responsibilities that arise through the assumption of relationships.

That concludes my introduction to feminist jurisprudence and the equality debate. Please feel free to leave any questions or comments below - let's get a discussion going!

And happy International Women's Day!


  1. Question - as a law student yourself, which approach to female law do you think would most benefit women in general?

    As an english student (and therefore someone vastly underqualified to comment on these issues) my main problem with Gilligan's approach is that each case would have to be minutely investigated and weighed with specific reference to all the individual contexts arising from it.

    While I absoulutely agree that something needs to be done about the male-biased abstract of law - just look at the conviction rates for rape cases in the UK, as I think you mentioned - I don't think Gilligan's got the right idea of how to solve it.

    Also, in a related but unacademic point, the constant stereotype of women as the caring, nurturing, relationship-biased sex really gets on my nerves.

    PS - been reading your blog for a while - love it.

  2. I agree with you, Gilligan's theories don't appeal to me, and the characterisation of all women as caring and nurturing is overly simplistic at best, and downright offensive at worst.

    I'm afraid I don't have any real answers for your questions. I would consider myself a post modern feminist, but unfortunately the only ideology that seems capable of achieving anything concrete is liberal feminism, which is dissatisfying for so many reasons, as I discussed.

    To achieve any real headway with the ideal representation of women in law would require the tearing down of the entire legislative system and re-building it from scratch from a feminist point of view (and when I use the word 'feminist' here, I use it to mean 'in a way that ensures women, men and trans people are treated fairly in law, and without predjudice') - unfortunately, I can't see that happening.

    Perhaps it is just our fate to be caught in the Catch-22 situation of being un-equal 'equals'.


  3. You can probably change your /pessimism to /realism.

    That's the key appeal Gilligan's theory to me; her approach is gentler, changing the Justice System's approach to women on a steady, case by case basis, and therefore sounds more plausible.

    Still, I agree with you - tear the whole thing down and start again. I suppose a way of doing this might be to write a British Constitition and Bill of Rights to mirror the American ones - women's rights could be written right into the new constitution.

    I suppose this marks me down as a liberal feminist, then.

  4. As a) an interested newbie to this debate b) male and c) not a law student (asking not baiting!):

    Other than the specific examples of rape and provocation, are there systemic inequalities in the legal process? What are they?

    How much of the problems are really changeable in the courts alone? For example, the issues of who juries believe in rape trials/male definitions of consent comes at least in part from their perceptions, which are taken from the wider social context. You can change the law or the legal process all you want, but those perceptions will still influence them.

    I guess I'm really asking: can the problems of gender and the law be solved before they're solved in society?

  5. Is postmodern feminism involved with female oppression in developing countries like India? can it do anything to raise the women's status there? Inspite of having good jobs, even modern women are treated as doormats and have no access even to their own hardearned money.