Feminist Legal Theory Flashcards
What did Nancy Fraser say?
Less injustice if the law provided for women through: - Recognition - Redistribution - Representation
deconstruction
- a lot of our thinking is based on dichotomies - one side is more valued the other
- often mapped onto feminist and masculine qualities
- desconstruction is to prevent us from thinking in these terms - we can be both e.g. rationality/irrationality
Gender and sex are social constructed
- SImmone de Beauvoir: ‘one is not born but one becomes a woman’
- sex - biological/ gender - cultural
- biology is not a destiny
- Judith Butler: sex is also social constructed e.g. those that are intersex and some cultures recognise other sexes
Feminist critique of rights?
- rights usually protect civil and political activities
- ECHR is to do with men’s relations with the state e.g. freedom of speech
- does not include women’s concerns e.g. reproductive freedom, rights to education
- women often lose out in the hierarchy of rights e.g. R v A: right to fair trial is seen as more important than a right to privacy
Formal v substantive equality?
- formal equality = all are treated the same
- substantial equality = recognises and accommodates differences
- e.g. pregnancy
Victimhood/agency?
- women are often portrayed as victims at the price of your autonomy
- if you fight back, you are no longer seen as a victim - impossible to be portrayed as both
- e.g. the problem of prositution
Is there value in rewriting the judgments even if the FJ came to the same conclusion?
Yes - value for the future, shows the difference in the feminist thought process
what was a slogan of second wave feminism?
“The personal is political”: underscored the connections between personal experience and larger social and political structures
What three ways did Smart think we could gender the law?
Law is sexist: differencing between men and women to disadvantage women Law is male: most lawmakers and lawyers are male Law as gendered: fluid notion of a gendered subject position which is not fixed by either biological, psychological or social determinate to sex
Feminist practical reasoning
- takes the classic Aristotle mode of practical deliberation with a feminist focus
- thinking about the law in a way that is realistic, looking at context and how it is working in people’s lives
- offers a fuller analysis
The masculine legal subject?
the male point of view as the standard for objectivity, neutrality, universality and the women’s perspective is the opposite of this
What does FLT do?
Look at the social realities of women’s lives and asks questions about the nature and operation of law from that perspective.
Intersectionality
- accounting for differencing among women
- Kimberle Crenshaw commented that law takes an essentialist view of women - white, straight, middle-class women
- Patricia Hill Collins: interlocking oppression - argued that cultural patterns of oppression are not only interrelated but bound together and influenced by the intersectional systems of society
Royal Bank of Scotland v Etridge
Sexual transmitted debt: Auchmuty endorsed the test in the HoL, that there should always be a presumption of influence on all cohabiting couples but criticised the reasoning, she thought there should be more emphasis on the housewife and power imbalance that business efficacy
What early feminist campaigns were there to change the law?
Caroline Norton: campaigned for women to keep their own earnings Suffragettes Made in Dagenham: went on strike for equal pay
Sandland
suggests a need to resist an overly pessimistic reading of legal reforms- that they always ultimately fail to shift the maleness of law and simply reconfigure it. He argues that there is no one, essential reading or meaning of any given reform, and that one may acknowledge, for example, that a reform has symbolic value regardless of its ‘success’ in achieving material change.
What did Smart say about ‘law is sexist’?
Misinterprets the question and assumes that if women were treated as equals there would be no inequality, which would not be the case
positionality
- understanding that we have our own perspectives
- understand that knowledge is linked to our own perspectives
- do not have to accept other people’s truths as your own
- Bartlett: ‘resists attempts at classifications as essentialist on the one hand or relativist on the other’
What did Smart say about law as the technology of gender?
it entrenches and creates the ideas of what a woman should be - men as breadwinners and women as mothers
What type of feminist was McKinnon?
Radical
Strengths of FLJ
- emphasises that feminism is not monolithic
- judgments are never final and can offer a lively debate between feminists with different ideas
- engage with law on their own terrain expressing its important role in women’s lives and shows the possibilities of FLJ in the real world
- FLJ fulfils ‘Smart’s injunction not to accept feminism as powerless in the face of law but to exercise collective agency to promote and encourage legal change’
What themes are there in FLT?
- The private/public divide
- Feminist critique of rights
- The masculine legal subject
- Victimhood/agency
- The ethic of care
- Formal v Substantive equality
- Gender and sex as socially and legally constructed
- Intersectionality
What FLM were used in R v A?
asking the women question, feminist practical reasoning (looking at the context of the legislation), deconstruction (does not have to be a conflict of rights)
the separation thesis
Robin West: ‘the separation thesis’ = human beings are separate from other human beings but this does not apply to women as they are “connected to life and to other human beings” through four “critical material experiences:” menstruation, heterosexual penetration, pregnancy, and breastfeeding - conventional law fails “to protect and nurture the connections that sustain and enlarge women’s lives” and “to intervene in those private and intimate “connections” that damage and injure” women
R v A
Admission of evidence of rape complainant’s sexual history - the private right to a fair trial was seen as more important that privacy. Lord Clyde limits female experiences to cultural stereotypes e.g. women are likely to lie about rape and uses the language of chastity etc. McGlynn (FJ) argued that sexual history evidence is ‘often of little relevant’
Royal Bank of Scotland v Etridge methods?
feminist practical reasoning, putting women at the centre
asking the women question
- a set of questions ‘designed to identify the gender implications of rules and practices that might otherwise appear neutral or objective’ or male
- suggests how this may be corrected
- the bias from this question comes from the fact we are in patriarchy
Three stages of looking at the law?
Critique, pragmatism, caution.
Feminist legal methods
- Katharine T Bartlett: looked at different feminist legal methods:
- asking the women question
- feminist practical reasoning
- conscious raising
- deconstruction
- positionality
The ethic of care?
- Carol Gilligan: american psychologist who worked with kohlberg on his stages of moral development and argued that they were male-oriented - ethic of justice
- developed the ethic of care - ‘a different feminist voice’ - women develop differently to men - try to keep everyone connected and happy
- ‘take your foot off our throats and you will see what language we speak in’
- biological reductionist approach
Feminist legal judgments
puts feminism into context - uses the same material, facts and constraints as judges to make a feminist judgment to provide justice and demystify the judging process
MacKinnon quotes?
‘Rape is defined as according to what men think violate women and that is the same as what they think of as the sine qua non of sex’ ‘When we ask whether, rape, sexual harassment and pornography are questions of violence or questions of sexuality it helps to ask to who?’
The private/public divide?
- public seen as important - men’s domain
- private seen as unimportant - women’s domain
- e.g. took a long time for law to intervene with DV
- e.g rape with marriage was only a crime in 1991
Criticism of McKinnon?
Essentialist, out-dated, monolithic
conscious raising
- Particularly popular with second-wave feminism – very patriarchal society
- Articulating your experiences together as women to create knowledge through shared experiences – a lot of the things that women thought were their own fault turned out to be a structural, societal problems e.g. Sexual harassment and barriers to jobs
- Bearing witness to the patriarchy in a small group or on a wider scale
- Primary purpose is as a meta-analysis – provides a substructure for other feminist legal methods
what did MacKinnon say about rape?
The crime of rape is instinctually male centres around penetration and the court often defines lack of consent as violence. However for women the harm is usually in the psychological effect of rape - about sex and violence
What did Catharine MacKinnon say about the law?
Law is written and embodies a male perspective even when it is trying to solve women’s problems
Sally Shelden
- identified differences between the law’s views of male and female reproductive bodies
- strong/weak dichotomy reflected in the law
What did Mossman say?
Looked at the cases of French and Persons where the judges applied to same legal method and came to different conclusions so the law must not be neutral and objective
Criticism of Smart?
- Deborah Rhode: as a post-modernist Smart is ‘left in the awkward position of maintaining that gender oppression exists while challenging their capacity to document it’
- Bartlett: feminists need to deconstruct and construct the law and Smart only deconstructs
Bartlett: feminist methods
‘feminist methods are an end in themselves’
What did Smart say about law as a gendering strategy?
It continually constitutes its subjects and in doing so it disqualifies other types of knowledge
‘the idea of women is so far removed from real women’
‘women is not simply a patriarchal ideal’
