Feminism in legal theory Flashcards
What are the two characteristics of feminist legal theory?
A belief that society and law is patriarchal…
and that law is constantly maintaining and reinforcing patriarchy.
That power and meaning of sex and gender is a product not of nature, but of culture. Therefore, gender relations can be changed through the modification of powerful social institutions such as law.
What does Carol Gilligan argue?
She reports that males and females have distinctly different psychological profiles.
Females have an ‘ethics of care’ and are more focused on personal relationships.
Men have ‘ethics of rights’ and sees ethical issues in more abstract terms.
Since the law clearly embodies an ethics of rights, it may systematically silence the voice of those who speak in language of relationships.
How is the feminist perspective of law’s reinforcement of patriarchy consistent with Dworkin’s model of interpretation?
According to Dworkin’s theory of adjudicative integrity, judges in hard cases have to find a constructive interpretation of the law that best fits what has come before and is coherent with the principles and legal practices of their community.
In this way, if patriarchal attitudes are already ingrained in the community, then any judge’s constructive interpretation of the law will necessarily take these attitudes into account, and therefore, further perpetuate them in law
How does the law perpetuate patriarchy?
- Law sees rationality and logic as the main form of veracity.
But psychology shows that intuition, emotions, and personal reflection are also valid sources of knowledge. If women are more attuned to these sources of knowledge given their ‘ethics of care’ psychology profile, then law’s focus on rationality is incomplete.
- Law may tend to define the “reasonable person” standard from the perspective and experiences of a generally privileged male (since that is what most judges are). This does not take into account the female perspective.
- Simply teaching law as a system of abstract norms and rules misses the way law perpetuates gender subordination into society, because law is not merely what is written on paper, but is what people do.
What does Nicola Lacey argue?
The way way in which legal rules distribute social welfare benefits or allocate custody of children reflects judgements about the right way to live; it expresses assumptions about “normality”
These “normalizing” assumptions have a pervasive power which also structures the administration of laws (e.g. of social welfare benefits and policing policies).
What are the differences between men and women?
- Difference in values
- Difference in ways of seeing the world
- Differences in responding to other people
- Difference in responding to problems
- Difference in ways of speaking.
But Catharine MacKinnon has argued that most of the differences that my appear between men and women are simply socially constructed differences that have no objective basis.
What are examples of institutional structures that promote patriarchy?
Equal protection law founded on male norms as standards of comparison.
Concepts like force and consent in rape law
Noninterference with family violence as a respect for privacy or family
Judicial review based on the intent of the framers.
What is liberal feminism?
A school of feminist legal thought that is committed to gender neutrality and equality.
Focused on law as an instrument.
What is difference feminism?
A school of feminist legal thought that recognises inherent differences between men and women, and seeks to achieve a more complex idea of equality which accomodates women values.
Focused on law’s symbolic and dynamic aspects, not merely it’s use as a tool.
