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.
