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Lecture #13 Monday, January 7, 2013.docx

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HIST 3234
Frank Marchese

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AP HUMA 1825 Lecture #13 Monday, January 7, 2013 Today: Feminist Jurisprudence **Completing first segment of the course Three segments: 1) Theoretical question: “What is law and what is the relationship of law and morality?” a. Law is justice and stands in the closest conceptional relationship to morality as coming from a transcendent being b. Dworkin: law as integrity (Especially the way judges and his interpretive model of adjudication applied law as integrity) This week’s article: **We have the whole article but the extract captures her argument** - Engender o Male engendering offspring o Has archaic meaning of a female conceiving or bearing offspring o Definition: To bring about or produce something - Gender o Refers both to men and women alike - This article is about difference o How we understand and conceptualize what makes us different from each other and what makes us the same as each other o Will help us understand what difference, difference makes in legal judgement and how we treat each other o About engendering justice and considering what makes us alike, different, and how we can conceptualize difference so as to engender justice Feminist jurisprudence - A modern kind of legal theory th st - In the 20 and 21 century there have been different kinds of legal theory, predominantly 3: 1) Thrust in legal theory - To consider law as ideology o Called “critical legal theorists” see law as reflecting the beliefs, the hegemonic beliefs of those in power o They conceptualize law as channelling and legitimizing the powerful and the interests and values of the powerful 2) The school of law as Economics - Richard Posener (A proponent of this understanding of law) o These people see law as a tool for wealth maximization in society AP HUMA 1825 Lecture #13 Monday, January 7, 2013 o They believe that the rules of law (of contract law/property law) should be constructed so as to maximize social wealth o **Dworkin greatly agrees with law as efficiency 3) Feminist Jurisprudence - Sees law as patriarchy - Look at everything we’ve read – all written by men or written from a man’s perspective - Starting in the 1960-1970’s women began speaking and writing books in their own words o Started to be known as feminist jurisprudence - - Impossible to give a definition to feminist jurisprudence since there is a great variety between women o If we believe, by feminism, a belief in equality or gender equity, then there are very many men who are feminist as well who believe in equality for women as well as men and who believe in gender equity - What equality means, however, how we go about treating people as equals, and what we mean by gender equity (Which means treating people differently to achieve equality), and what equity means, these are highly contested concepts, and many differences and disagreements arise between and among feminists (Men or women) o What equality means and what equity means are hugely contested controversial and controverted issues o Very many disputes but there is one thing that one can say about feminism (constitutes a common core of feminist jurisprudence – has both a descriptive and normative component): Descriptive part: Law as patriarchy As simply a factual and historical matters, all feminists, men and women, accept as a fact and as a historical fact that the world as we know it for a large part and the world as we have known it is structured by patriarchy. What does that mean?  It means that society has been organized in a hierarchal manner, where men, as a historical fact, occupy the dominant position, in social, economic and political arenas. And women, in those arenas, occupy a subordinate position. In all areas of society, feminist research has shown and continues to show that men systematically are in dominant, hegemonic positions, in those domains of society (i.e. business, economics etc.).  The fact that patriarchy infuses the entire legal system is a dominant fact for men and women (***Only talking about the Anglo-American system)  i.e. honour killings in our own country  Patriarchal societal structures, including law, are predominantly male AP HUMA 1825 Lecture #13 Monday, January 7, 2013 o Feminists describe and analyze these patriarchal society structures, including law, as “not ordained by biology or nature, but as human constructs.”  They are the result of human thoughts and ideas about men and women, and feminists say that these thoughts and ideas are neither natural nor biological, nor not subject to change. They challenge the belief that gender is created biologically and they say it is created socially. That belief is summed up when they say “One is born a female, one becomes a woman.”  Biology, femaleness, determines physical appearance and reproductive capacity, but gender is a social construct, and it is a construct that has been historically largely determined by men - Over the course of history, men have determined the place, role, and function of women in life and in law - The fact that it is male views of women in society and law that have been determined by men (They are biased, and favour men) is completely understandable Normative part: Law as patriarchy that needs to be changed - Says that patriarchy is bad for women, morally unjustified and unjustifiable. And it ought to be eliminated - Feminist jurisprudence theorists seek to establish a different kind of social organization. One where patriarchy is not in the dominant and privileged position. - It is feminist jurisprudence, which seeks to replace patriarchy with structures that promote the political/social/economic equality of women. It seeks to replace uniquely male formulated ideas about the nature/interests/values of women o Seems to replace those ideas that come from women themselves (Who speak in their own voices) Methodology of feminist theorists - Feminism has avoided adding abstract principles - Methodology concentrates on the particular – the concrete, lived experiences of individual and groups of women. In all their particularity and contextual detail, this research has been instrumental and determinative of legal outcomes (As will be seen next week – a case of domestic abuse) o **the case would not have been possible without the research of feminists of battered-wife syndrome AP HUMA 1825 Lecture #13 Monday, January 7, 2013 The legal status of women before Feminist Jurisprudence (Anglo-American law) - For most of history ad well into the 20 century, women were considered in law as the possessions of their fathers and then, if and when they married, they were considered the chatters of their husbands o Chatter status: women’s employment opportunities outside the home were severely restricted, as were their education opportunities o Couldn’t own any form of property in their won name o Could not vote o Could not serve on juries o Their husbands had the right to chastise them (they could punish them physically, provided they did not beat their spouses with a stick any thicker than their thumb and did not permanently injure them) (that’s where we get the expression “rule of thumb” - Legal system: the chatter status of women meant they were denied the status of personhood (in law) o I.e. like the fetus today (Fetus is not considered human by those who are pro-abortion_ - Canada – 1929 person’s case o Considered 5 Alberta women. One of the women wanted to become a senator (Emily). Because of the British North American Act, only men were persons under that act entitled to hold public office. She asked the government to ask to consider the question if women were persons under the BNA act to the Supreme court  The answer: a unanimous NO and therefore were ineligible could not be acquainted to serve in public roles. o The case went to Britain to the Privy council in London, England (The final court of appeal at that time (until 1949))  They reversed the
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