Law and Society Week 2 –Feminist Legal Theory- January 14.docx
Week 2 – January 14, 2014
Feminist Legal Theory
Readings – Olsen The Sex of Law p.73103 & Smart The Power of Law p.425
What is Feminism?
Feminism is a collection of movements and ideologies aimed at defining, establishing and defending equal political, economic and social political rights for
Seeks to expose and dismantle structures of discrimination and oppression of women in society. There is no one singular feminism and there are different
approaches and perspectives to feminism, and on how we can achieve liberation of women and dismantle these sources of oppression.
History of the Feminist movement Large and diverse social movement
Roots in struggles for women’s suffrage (right to vote) (1 wave movement early feminists) includes the right to be equal in politics.
1960’s civil rights movement: Women’s Liberation (2 wave) these feminists are more critical and state that these women feminists are upper class and
come from different backgrounds and don’t represent all rdmen. They were interested in different types of rights economically and racially.
1990’s present: critical feminisms (i.e postcolonial) (3 wave) these feminists have criticized the second wave saying that they are still coming from white,
middle class values and not taking into consideration women from the third world or transgender women.
Olsen The Sex of Law
She demonstrates that in liberal thought there is a dualism, when we think of liberal we think of reasoning and objectivity and posetivism, these
things are good and their opposites are not seen as good in law and society. She says that these dualisms are associated with masculine
characteristics and we assume that being masculine is contstructed out of these positive dualisms and women are characteriszed by the negative
dualisms like irrational, emotions etc. It causes us to view men in the public sphere with better roles in society and women in the private spheres
with negative dualisms.
Draws our attention to opposing pairs in classical liberal thought
Rational / Irrational
Active / Passive
Thought / Feeling
Reason / Emotion
Culture / Nature
Objective / Subjective
These Dualisms are sexualized and hierarchies and genderized
law is associated with masculine characteristics: objectivity, rationality and principledness
the dualism identifies men with the public sphere outside of the home while women in the private
these are deeply inscribed in our systems of thought.
Olsen demonstrates that these dualisms and languages we use in legal discourse are the same things we apply in gender discourse in society.
Feminist legal theory
Seeks to explains ways in which the law plays a role in women’s subordination and is dedicated to reworking the law and its approach to gender.
Feminist Critical Legal Theory
Liberal feminism Advocates for a formal equality in the legal system. Formative equality is providing the same treatment to everyone while substantive equality provides
further equality for people who are disadvantaged recognizes difference. The root cause in women subordination is form discrimination. This is because
women do not have the same access to opportunities that men have because they are discriminated through law. In order to change this we need to reform
the system and challenge discriminatory laws. To do this liberal feminists highly regard the Charter. S.15 has to deal with equality rights and gender and is a
principle that says we need to make decisions to ensure gender equality.
Liberal feminism advocates for formal equality. To change discrimination or actions we need to move beyond the law. Liberal feminism is also criticized
because it still adheres to structural problems and to change discrimination we need to move beyond the same activities. They feel that this form of feminism
is just following the same methods and not really making new changes. Formal equality is just treating everyone the same and continuing the norms of
feminism but substantive equality would make changes for different individual feminist issues.
Analysis of the problem: Discrimination
inequality is produced by culture and not nature
infringed equality of opportunity
Promote formal equality in the legal system
Challenge discriminatory laws
Significant use of charter litigation (ss.1528)
Problematics of liberal feminist approach to legal reform
belief in the claims that law is rational objective and principled i.e reinforces male characteristics
genderneutral or sex blind approach to law
about equal opportunity of access to social institutions rather than agitating for social change
what of larger systematic ?
treat everyone the same
no disctinctions based on difference.
A broader view of equality
– Recognizes that patterns of disadvantage and oppression exist in society
– Considers social context to make sure that laws and policies promote full participation
We can speak of a traditional radical feminism in the 60’s that states that the root cause of subordination is patriarchy and male supremacy that are in our
social relationships and the legal system. This feminism advocates a structural change, you can use the law but you need to change the structure to achieve
substantive equality. Early radical feminists are like liberal feminists and assumed that many women have social and biological differences this doesnt mean
that there is a hierarchy but because of these differences we need to make sure that they are accommodated. An example would be that women are the
ones that give birth and labour policies that deal with maternity law is a form of accommodation and without this it ensures discrimination. Doesn’t put
women on a higher level but accepts their differences and provides substantial equality for them.
Analysis of the problem: Patriarchy
Women’s oppression is rooted in societal structured of partriarchy and male supremacy
Assumes women and men have essential social and biological differences
Approach: Structural change
Assumes women share common characteristics and experiences.
Problematics Radical Feminism
An intervention of sexists dualisms whereby the feminine is privleged over the masculine Some argue that litigation cannot lead to social changes because In upholding the relying on the paradigm of the law the paradigm of patriarchy is upheld
Based on white middle class and heterosexual assumptions and ignores the complexities diversity and nuances of women’s experiences ex. Women of
we need to take into consideration other types of women that do not fit into the main category of women to provide full equality to all.
They feel the law isn’t perfect but It is a space in which you can utilize liberation and challenge discrimination.
Critical feminist legal theory
Extends some of the critiques made by radical feminism they feel that Women’s subordination is rooted in patriarchy but attempts to move beyond its
Analysis of the problem
law is often ideologically oppressive to women
but law is not male per se law has no essence or immutable nature) and is not simple rational
rather, law is complex and contradictory
an example of contradictory law that is irrational is that there is still legislation that says we need gender equality.
Or that we find reasons and acceptions for certain laws that may be discriminatory under s.1
rejects dualisms to provide clearer analysis of problems of gender equality
and account for intersectional subjectivity.
Intersectionality – is a term that gives the idea of multiple oppressions that intersect and affect each other.
Feminist critical legal theory – laws complexity
in addition rational and objective the law is also irrational, subjective and contradictory.
Proposes a strategy of critique that pays attention to: need for legal reforms and attention to need for structural changes.
Carol Smart on law
Law presents itself as a body of knowledge and a unified intent, theory and practice.
This performance of unity if what gives law its power a focauldian notion
However law constitutes a plurality of principles knowledge’s and events.
The law is contradictory there is no one perspective and the way we approach it …
The reality is that this is not how the law functions its not unified, its contradictory and the way we approach the law can change the reasons and
decisions. Foucault says that the legal power is not the only place where power operates and Carol agrees with Foucault that there are other
powers just as important as legal power but legal power is expanding and is more power and if we don’t pay attention to its power we are
undermining its ability to cause oppression towards women.
Her article codifies truth and when something happens in court a narrative is derived and the only way society will think something is true is if the
court accepts it as true. The law can pick and choose what they want to incorporate into their decisions that will affect the rest of society.
Smart challenges Foucault
Is the power of law juridical power really diminishing as Foucault claims? Smart is not convinced by this approach she agrees that there are other
forms of power but she thinks that legal power is expanding and more powerful then before. In litigation there are rules and policies for everything
and in this sense she thinks that law is more powerful then before and if we don’t ac…
Isn’t our everyday lives becoming more legalized? Is law being colonized by other knowledge’s or is it colonizing (i.e. Extending influence and domain)
Or to what extent is law both colonizing and colonized?
Law is powerful because
It makes a claim that it is just
Its judgments seek and find truth
It disqualified other nonlegal knowledge’s as secondary
Some knowledge’s are made legal and are more important and other are excluded or disregarded
Think of sexual assault trial what knowledge’s and experiences are considered legally relevant? In this sense the law doesn’t help women it
creates a narrative on behaviour.
Sees law as failing to transform the quality of women’s lives
Sees feminist struggles as engaging with law on its own terms
Ceding to law the very power that law…
Carols Critical Approach To Law