Feminist legal theories and types of it


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Feminist legal theories and types of it

  1. 1. FEMINIST LEGAL THEORIES There are many strands of feminist thought – Davies identifies 5: liberal, radical, cultural, Black, lesbian and postmodern. Wacks identifies 8. Despite this, the central idea of feminism is that society is organised by men in a way that privileges men and operates to disadvantage women. Feminism legal theory began around 1980, but feminism itself started much earlier. Liberal feminism  Outgrowth of the Women’s Liberation movement of the late 1960s  Focuses on establishing equal rights to men in liberal societies  Assumes the underlying principles of liberal theory are essential correct  However, when these ideas are put into practice, the equality which should be guaranteed by liberal principles does not actually apply to women  Women should aspire to (and the system should allow them to) liberal goals such as right to own property, right to be educated, to work etc.  Liberal feminism is a partial critique (as opposed to total critiques like radical feminism) – not an abstract theory itself Radical Feminism  deals with the very foundations of social organisations (hence the word ‘radical)  seeks to expose a fundamental flaw in the liberal strand of thought  The core proposition of radical feminism is that oppression on the basis of sex is the most fundamental source of inequality in society – all institutions are dominated by males and operate to benefit men and lead to a systematic subordination of women  Not only in public, but exists in private sphere as well – rape and domestic violence  Seeks a radical transformation of the rltnship between the sexes – legislative reform is not enough Radical feminism and Marxism Similarities  Both describes how power arises, how it operates in society and how it is distributed unequally between the relevant groups – Marxism: the Bourgeoisie oppresses the proletariats; radical feminism: men oppress women  Both support the idea that preferences of the dominant group and its ideology are often accepted unquestioningly as normal and natural, thus, the proletariats and women suffer from false consciousness. Radical feminism seeks to achieve ‘consciousness raising’ Differences  Marxists claim that feminism words to the advantage of the ruling class, it undermines the need to create changes by deflecting effort away from the important (economic and class) aspects  Feminism counterclaims that Marxism is a male-defined theory which addresses issues of gender only in passing and that the changes which Marxism seeks could be achieved without alteration to the oppression of women  Feminism is ‘post Marxian’, it recognised the failure of Marxism to address the problems of male- dominated social structures Radical feminism and pornography  pornography is a prime example of the mechanisms wihin society which perpetuate patriarchal values and male dominance  pornography institutionalises inequality, creating bigotry and aggression and desensitising men to sexual violence  women are used as a means to the end of male pleasure  exploiting women as sex objects for profit  a political practice which arises from the exercise of power by those with power against the powerless 1
  2. 2. Compare Dworkin’s view of pornography to MacKinnon’s view of pornography (diagram):  for radical feminists like MacKinnon, porn is not an abstract phenomenon divorced from actual behaviour, but a real threat to women’s safety Cultural Feminism  argues that there is a distinct feminine way of approaching moral and legal dilemmas that is quite different from the way in which established legal theory and practice approaches them  Using the example of Heinz’s Problem to illustrate the differences in male and female moral development, psychologist Gilligan argued that male moral reasoning focuses on abstract questions of rights and justice (e.g. using abstract entities like A and B in legal problems), and the underlying imperative is to protect rights against interference. On the other hand, women’s approach to moral problems tends to focus more on issues of responsibility and seeing a moral dilemma in its context – more empathetic, the desire to recognise and alleviate the trouble of the world  Using abstract entities like A and B when solving legal problems saves time, but it depersonalises the individuals involved in the scenario – this is an example of male moral reasoning  Differences in the sexes to cultural feminists is positive rather than a negative – favours the use of mediation to resolve disputes, rather than the traditional adversarial mode in litigation; increasing the representation of women on the bench Other feminisms Postmodern feminism  focuses on the diversity and individual nature of women’s experiences, emphasising the myriad different experiences which women have Black feminism 2
  3. 3.  argues that feminism is generally based on the experiences and insights of privileged white females – treats oppression on the basis of gender as the fundamental form of oppression, whereas race is also important Pragmatic feminism  concerned with how discrimination and oppression actually occur in social and institutional practices, often from a historical perspective, rather than adopting any single theoretical position – likes any form of analysis that contributes to ‘fixing things’ CRITICAL RESPONSES TO FEMINISM  radical feminism’s argument that women are the subject of false consciousness seems to contradict the emphasis which is placed on women’s own experience, suggesting that feminists ‘know’ better  some forms of feminism, particularly radical and cultural feminism, are seen as essentialising woman – that is, they assume that there is a single or uniform female nature (stereotyping)  some forms of feminism work from white middle class assumptions about gender in society, and ignore or marginalise the experience of women from other groups  liberal feminism ‘buys into’ the system, and uses a male standard as the benchmark for women 3