Jurisprudence Lecture

Feminist Jurisprudence

February 2006
George D. Pappas, Esq.
International Center for Legal Studies

PART I

The best general introduction to the study of so-called Feminist Jurisprudence is your

University of London Subject guide. You are quite fortunate to have in one single

source, a short and detailed summary of the assumptions underlining rational liberalism,

and various features of Feminist Jurisprudence.

Even reading the Subject Guide, you will quickly discover that in challenging traditional

male dominated jurisprudence, that the very term “Feminist Jurisprudence” is open to

various hues and interpretations since no one consensus has emerged as to what

“Feminist Jurisprudence” is; however, I will submit that there is greater consensus when

it comes to the grounds of criticism about “traditional jurisprudence,” the institution of

marriage and the myth vividly described within law’s claim to “neutrality”. While the

latter criticisms are easier to discern, don’t be mislead into believing that just because

‘female” writers per se are critical of the same thing that this necessarily translates into

the same definition of who they are or whether even the dualism of “woman” versus

“men” represents a unity of opinion - it doesn’t.

1
Your first task in the studying Feminist Jurisprudence is to broadly start with the main

criticism of what traditional jurisprudence purports to be and how various feminists’

writers have questioned or attacked those assumptions.

Your next stage of learning must incorporate a sufficient survey of the leading feminist

writers together with an understanding of what their points of view are. Once you master

these two elements of the subject, you’ll be better able to handle most questions that the

examiners will throw at you.

Criticism of Male Dominated Jurisprudence

What is meant by “traditional jurisprudence” and how feminist jurisprudence criticizes

this will demonstrate that it is the law that helps to crystallize existing gender inequities

inherent in society. In short, is not so much that woman have been in a “radically

different” relation to the law compared to men, but rather, feminist jurisprudence

concentrates on the inherent inequities fostered by the methodology of traditional

jurisprudence, in particular, legal positivism. Feminists see the law as the prime source

for perpetuating pre-existing gender based inequities, especially within the framework of

capitalism.

Traditional jurisprudence can be summed up as the neutrality of law. Such neutrality

seeks no connection with respect to social or political contexts. In fact, the very notion of

2
neutrality seeks to strip away whatever humanizing forces are at play in society in its

quest for an objective and universal standard of law.

The law’s “a-contextual” nature is a product of the scientific revolution’s use of objective

methodologies. In a break away form divine law, objective scientific methods sought to

disassemble itself from normative issues of “right and wrong.” Hans Kelsen’s “Pure

Thoery of Law,” expressed through his “basic norm” (i.e., The Grundnorm) or H.L Hart’s

(“The “Concept of Law”), ultimate rule of recognition represented paradigms set up to

create universal conceptual standards to establish what is termed “legal validity”.

In expressing law’s validity as epistemological postulates, legal positivists sought to

discern the truth of the legal system. If this truth could apply to any legal system, then

laws could be enacted more “objectively,” and positivists infer, more fairly. Traditional

jurisprudence thus emphasizes the “rule of law”, not of men. Men are arbitrary and

inconsistent, whilst the “rule of law” could be viewed as a universal, a contextual

standard that could be blindly applied to all society in whatever setting.

Feminist jurisprudence sees major defects in traditional jurisprudence’s use of the

neutrality of law. Some feminists such as Margo Stubbs (“Feminism & Legal

Positivism,” 1986) and Catherine MacKinnon (“Toward a Feminist Theory of the State,”

1989), identify law’s neutrality as the very mechanism that perpetuates injustices against

woman. Professor Nicola Lacey (London School of Economics) describes law’s

neutrality as a source of perpetuating inequities along sexual patterns.

3
Feminist writers criticize the inherent methodological framework used by such legal

positivists as Austin, Hart and Kelsen. As such, traditional command theorist like John

Austin, for example, are questioned for their narrow framework of command, obedience,

and sanction as the essence of the law. Feminist writers are also critical of legal

positivism for it’s reliance on discovering law’s nature as the key to understanding law.

“Legal positivism is fundamental to the constitution of legal thought. It is a key

reason why lawyers come to accept the official version of law as legal theory,
why lawyers tend not to question the nature and purpose of law but take it as a
given. It also helps to explain why the law comes to assume the status of
objectivity and why judges become the seekers of truth.” (Hilaire Barnett,
Sourcebook on Feminist Jurisprudence, 1997)

Law describing itself seems nothing more than pure exercises in abstraction devoid of not

only the social and political context underlying any legal system, but for its contribution

to producing sexual injustices against woman. For example, if woman are already in an

unequal position to men, then the law’s treatment of citizens as equal – as in contract law

– applies the law unfairly. The parties come to the bargaining table in unequal positions;

yet, the law of contract treats both parties as equal.

Feminist writers such as Carole Pateman argue that traditional jurisprudence treats

citizenship as patriarchal constructed in the masculine image.

“The story of the original contract shows how sexual difference gives rise to a
patriarchal division of labour, not only in the conjugal home between the (house)
wife and her husband, but in the workplaces of civil society.” (The Sexual
Contract, Pateman, pg.340 Hilaire Barnett).

4
Catherine MacKinnon sees maleness as the organizing form of what is accepted as

“normal.” MacKinnon is very critical of most forms of equality legislation for being

vehicles of making woman as men, rather than searching for true equality.

“..seeing sex equality questions as matters of reasonable or unreasonable

classification is part of the way male dominance is expressed in law. If you
follow my shift in perspective from gender as difference to gender as dominance,
gender changes from a distinction that is presumptively valid to a detriment that is
presumptively suspect. The difference approach tries to map reality; the
dominance approach tries to challenge and change it. In the dominance approach,
sex discrimination stops being a question of morality and start being a question of
politics.” (pg. 230 supra, C. MacKinnon)

Margot Stubbs, sees feminist jurisprudence as transcending the positivist conceptual

framework of both liberal legalism (e.g., the rule of law) and Marxist (e.g., law as

reflection of the bourgeoisie class that is the capitalist superstructure). Feminist

jurisprudence seeks to make the connection between Hilarie Barnett’s “woman

question” and “the law”.

All of these feminist writers agree that the law plays a key role in cementing inequitable

sexual relationships, especially within the capitalist context. What is not clear, however,

is why these writers fail to establish similar arguments for woman under socialist

regimes, and why inequities based on race and ethnicity are not dealt with by the “woman

question.”

“I have argued that it simply incorrect to ‘dismiss’ the law from feminist scholastic and
strategic enquiry as some ‘inert’ mechanism for giving effect to ‘male’ interests It is ,
rather, an organic social relation that is actively involved in mediating and controlling the
tensions engendered in class-structured society. “The law’ is intimately involved in
structuring every aspect of woman’s lives. It stands at the very centre of the legitimacy
of the capitalist State and, by implication, the legitimacy of sexual subordination. I
believe that a reorientation of the “feminist” approach to law is long overdue for as it is
politically central to patriarchal domination, we simply cannot afford to keep it at the

5
penumbra of our political project.” (Margot Stubbs, Feminist and Legal Positivism
(1986) 3 Australian Journal of Law and Society at 63.)

Traditional jurisprudence has also come under attack with the publication of John Rawl’s

“Theory of Justice,” in 1972. Essentially, Rawl’s postulates abstraction to ‘pure reason’

in man’s original state, where participants are ignorant of their self-interest, desires, etc.

Rawls calls this a “veil of ignorance”. Only by stripping people of their individuality,

according to Hilare Barnett (“On Feminist Jurisprudence”), does Rawls consider the

principles on which society and laws should be based. Yet writers such as Mari Matuda

criticize Rawls for avoiding real earthly issues. Specifically, Matsuda takes aim at

Rawl’s premise, such as his assumption concerning self-respect under the “veil of

ignorance.” Matsuda sees Rawl’s premise as a partial reflection of the original state.

Self respect for Rawls focus’ on achievement, fulfilling a plan, whilst overlooking the

possibility that non-self interested pleasures by woman value seeing others succeed

without an quid pro quo. As such, Matsuda is critical of the need to increase our

awareness of these gender perspectives. By incorporating female perspectives one can

achieve greater contextual – relational premises with respect to gender differences.

Feminist jurisprudence has greatly enhanced our ability to deconstruct many of the sexual

difference issues implicit within male dominant jurisprudence. On a methodological

level, legal positivism has been stripped of much value when abstractions are based on

premises that assume existing power relations along sexual lines. The rule of law, for

example, perpetuates existing sexual inequities. Unearthing contextual omissions within

traditional jurisprudence has exposed the need to “sexualize” law. Expanded gender

6
based perspectives of law can improve absurd assumptions about how woman think,

behave or are treated by the law in situations such as rape, domestic violence, marriage,

and divorce. At the same time, feminist legal writers should also be cognizant of the

roles played by race, national origin, religion, at least in terms of how these forces affect

the empirical basis of our laws and legal system.

While highlighting the serious misconceptions and flaws in traditional jurisprudence,

feminists must not fall into similar paradigm confinements authored only by white,

middle class, Anglo-American woman. Only by incorporating female views beyond the

Anglo-American matrix will feminists’ influence reach the broad based foundation

necessary for cultural richness vital to any new paradigm shift away from traditional

jurisprudence.

7
PART II

CRITICISMS OF TRADITIONAL JURISPRUDENCE: Male dominated or truly

gender neutral? A survey of various Feminist theories

1. Woman’s Injuries:

(a) Woman’s Suffering: West (1987): Woman’s suffering for one reason or

another is outside the scope of legal redress. (Rape, employment,

father/daughter incest, domestic violence and pornography).

(b) Criticism of Objective Jurisprudence: Bottomley: Traditional

jurisprudence as objective science. Bottomley is critical of this “objective”

standard depicted within law, and instead seeks to emphasize that “all scholars

must recognize the embedded ness of their own assumptions within a specific

historical context.

(c) Forms of Dualism Question by Feminism: (Olsen, 1990): “Woman have

seen as the irrational, the emotional and the unreliable and confined to the

8
private sphere of the family while the male – the rational – enters the world of

politics and law.”

(c ) The “Woman Question” : Carol Gilligan (1982): The potentiality for an

alternative (i.e., other than man dominated) woman’s perspective has been

systematically ignored. “ Gilligan takes aim at Khlberg’s theory of stages of

moral reasoning. You may wish to note your subject guide on this, but

Kohlberg’s scheme sees the cognitive basis of moral reasoning as a

developing ability to take elements out of a particular situation and the

particular acts of a person, to abstract from experienced context so as to create

formal qualities, and develop impartial and universal criteria. Otherwise,

stated, Koohlberg dehumanizes social context, stripping away the flesh of

human activity and conflict to develop sterile universal truths about “man”.

Gilligan argues that woman “Can never reach the highest” level of

Koghberg’s stage – pure reason abstraction, but instead, she focused on

Womans “relational bias” where such bias focuses on “interpersonal

recognition. As such, woaman “will always appear irrational.”

( d ) MacKinnon (1987): Maleness as an organizing form of legality: The

claim is that “maleness” is the organizing form of what is accepted as the

“normal” and that most forms of equality legislation are not vehicles for a true

equality between men and woman but rely upon making woman “as men.”

MacKinnon (1987).

9
 ( e) Woman of ethnic minorities: Patrica J. Williams “I am interested in the

way in which legal language flattens and confines in absolutes the complexity

of meaning inherent in any given problem; I am trying to challenge the usual

limits of commercial discourse by using an intentionally double-voiced and

relational, rather than a traditionally black-letter, vocabulary.”

THE FRENCH REVOLUTION: A Critical point?

The French revolution has led a charge of global change that seeks to flatten

cultural differences in the name of political liberalism. With this sweep of political

change, centuries of social organization and practices have been tested to a degree never

seen. Current events portray this reality in the Middle East where notion of “free press”

are clashing with “religious sanctity”, Muslim vs. Western Thought, Muslim vs. Western

(US and EU) Democracy; The blood of this debate is not academic, but gruesome and

real. If there ever was a terms that correctly depicted events, the term real politic is the

one. According to Arbalster (1984), “It was the French Revolution which made freedom

of nations and the freedom of individuals into real and central issues in the politics not

only of Europe, but of a wider world.”

The position of woman within the context of the French Revolution, and political

liberalism, however, seems to have bypassed their very existence as participants in

society. E.g., Divorce and Inheritance Laws

10
Part III

The next part of our lecture will review the various labels or strands of Feminist thought.

You need to have a reasonable grasp of these strands within the Feminist Jurisprudence

context as your examiner will expect you to support any essay arguments with such

authorities.

Various “labels” have developed to capture the spectrum of Feminist criticism regarding

male centered Jurisprudence. For example, we will review some of the following major

strands, such as:

1. Patriarch

2. Feminism and Critical Legal Studies

3. Liberal Feminism

We will finally conclude this lecture with a brief look at what is called the “Woman

Question.”

11
PATRIARCHY

Under this heading, the “male” is deemed the center of the universe. Whether it law,

medicine or religion, men dominate the structure upon which these disciplines or

movements are defined. For example, we have already seen how male jurisprudence has

dominated the dualism between “man” vs. “woman”; namely, in matters of divorce,

marriage and in legal epistemology. Woman are subordinate or non-existent in the law’s

application. In fact, during the 19th in both England and the US, woman were considered

”chattel” or property. When woman married, they legally gave up their right to contract;

they gave up their property rights and were legally obligated to submit to their husbands

wish for sexual intercourse virtually on demand. In religion, a simple look at one of

Christianity most famous lines, “The Father, the Son and the Holy Ghost” are completely

in the image of man. Perhaps there is hope yet, since the ghost may yet be a woman!

Recent writings such as “Woman in the Bible”, “Who wrote the Gospels” and others,

have argued that the Catholic Church’s attempt to completely dishonor and discredit

Mary Madeline as not only Jesus’ Wife, but as a woman with extraordinary intellect and

commercial savvy. It was Mary, not the other disciples, who first saw Jesus upon his

resurrection. The male dominated church has done every thing in its power to remove

Mary from their religious texts and condemn her as a whore to scorn into eternity. The

issue here is not religion, but raw power and control. Recognizing woman in any role of

power or influence within the context of the holy bible was (and some will argue still is)

not going to be allowed by the Church. So in a nutshell, Patriarchy revolves around man

– women don’t matter.

12
FEMINISM AND CRITICAL LEGAL STUDIES

Both the Feminist school and the Critical Legal Studies School (CLE) share a common

criticism of the law. Specifically, they both challenged the claim that law is neutral;

They assert that the claim to laws neutrality is nothing more than a guise to entrench

established males interests and power, and as such, woman have been on the short end of

the law down through the ages.

There are differences, however, between the Feminism and CLE. The latter is seen to

embrace notions of what the ideal society should be like for woman; however, that vision

is often cast in universal or abstractive ideals. The Feminist school is critical of CLE in

this respect because the former attempts to identify relational issues, real issues that are

not only defined, but non idealistic. Feminists embrace a view that attempts to challenge

the existing legal status by focusing on what kind of institutions and laws would be

necessary to redress the imbalance against woman in society.

Radical Feminism

To appreciate what Radical Feminism is you need to understand why they are seen as

radical. Radical in this context means “as compared to” Liberal Feminism. In a nutshell,

Liberal Feminism seeks to obtain “rights” for woman within the existing legal system.

For example, liberal feminism will seek to obtain “equal” rights for woman in relation to

men. In does not matter to Liberal Feminist whether woman are attempting to be more

13
like men, nor are they attempting to highlight fundamental inherent differences between

men and woman that would preclude actual equality. The latter can be seen in

employment areas where due to pure physical differences, woman are different form

men. However, Radical Feminism does not totally discard liberal feminism, it is just that

they want people to understand that simply asking for “equality” of rights is not

necessary the answer, and actually perpetuates a legal system that is already embedded

with male dominated assumptions to find solutions for “woman.”

Radical Feminists seek to address the private lives of woman. By private we mean issues

that deal with rape, pornography, and domestic violence. Liberal Feminists seeks to

establish broader notions: notions in the abstract, in terms of woman. Again, Liberal

Feminists who focus on “equality” of rights do on a level that is above the private lives of

many woman. Radical Feminist want people to empathize with the plight of woman,

they assert that the liberal approach to woman does not come close to fostering an

empathy for the world in which woman live. Radical Feminists seek to humanize woman

in way that brings to the forefront issues of a private nature that are not only real, but

tangible enough for people to see. Seeing and empathizing with the plight of what it

means to be a woman, Radical Feminists believe, provides a basis for change that can

address these private lives of despair, oppression and violence.

Radical Feminists also seek to show how Patriarchy overlooks the value of woman and

their contributions to family and society. For example, woman who perform household

work are given respect and value by Radical Feminists. A Patriarchic legal system

14
virtually discounts the value of “woman” work. Child rearing is also highlighted as

another area that woman deal with on a daily basis, yet we have a legal system that

simply assumes (and did for a very long time in child custody cases), that woman are

expected to perform this “natural role.” Abortion is strongly supported by Radical

Feminist not only as a right of choice, but as a right to combat an invasion into her body

in the form of a fetus, in particular, A fetus produced as a result of incest or rape.

The last point I wish to make about Radical Feminism, especially as it relates to Liberal

Feminism, is the question of “individualism” and “separateness.” Liberal Feminist's

focus on obtaining equal right for woman, in part, so they too can live independent and

separate lives. This is also seen as a form “of freedom” by Liberal Feminists and liberal

thinkers in general, especially such writers as J.S. Mill. However, Radical Feminists

want to cast away this assumption by stressing that woman, unlike men, inherent or are

inherently “different” from men in that they actually seek not to be isolated, but to be part

of a community. Woman by nature then are cooperative, not antagonistic. The law of

contract for example sees separate partners who each come to the table not only as equal

in power, but equal in terms of wanting to protect their own self interest. Radical

Feminism attacks assumption like this by stressing that woman seek cooperation, not

isolation; woman seek consensus, not promotion of rights per se to achieve so call

impendent freedom. Woman seek “unification” with others, not isolation.

15
I hope the above analysis and survey of Feminist Jurisprudence will allow you to define

traditional jurisprudence and how Feminists writers dismantle male dominated legal

systems and theories.

Thank you.

Copyright © 2006 International Center for Legal Studies

16