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WS 2270 > Week #3: Generations of Feminist Legal Theory > Flashcards

Week #3: Generations of Feminist Legal Theory Flashcards

1
Q

What are the elements of the Canadian legal system?

A

Supreme court
Common law tradition
Civil law systems

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2
Q

What is the role of the supreme court

A

set the precedence for all other tribunals, cannot be appealed, decision is final

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3
Q

What is common law tradition

A

judges have the power, discretion to create precedence that must be followed. Quebec is the excetion

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4
Q

What are civil law systems

A

judges do not have authority outside parliament, legislation to make their own law or decision

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5
Q

What is the relationship of courts in different provinces

A

-What happens in one province in Canada, does not apply to other provinces, unless it is in
the Supreme Courts.

-Decisions and precedents set in the Supreme Court of Canada apply to
the entire country

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6
Q

Can supreme court change it’s precedence

A
  • The Supreme Court does not need to always follow the precedence of the Supreme Court
    – Brookes and Bliss. The Supreme Court decided that Bliss was not a correct decision, and it is
    able to set a new precedent.
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7
Q

How many judges are there in supreme court?

A
  • 9 judges in the Supreme Court – they need to have a certain number from each province.
  • The judges do not need to be unanimous in decisions
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8
Q

What are the four decisions courts make

A

majority, concurring, dissenting, judiciary

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9
Q

what is a majority decision

A

binding, legal force, the decision that sets the precedent

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10
Q

what is a concurring decision

A
  • the vote reaches the majority and they agree with the majority, but
    their reasoning for voting that way is for different reasons
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11
Q

what is a dissenting decision?

A
  • they count against the majority, they disagree, and make it fiercely
    known. The majority takes legal effect, however the dissent can be cited in other cases.
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12
Q

what is a judiciary decision?

A
  • (judge-made law) and legislature (parliament, written in the book).
  • Legislature is
    usually written to put into code what is decided by the judiciary
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13
Q

Explain Bliss v. Attorney General of Canada

A

1979
- Pregnant woman, fired during pregnancy. Wanted to claim unemployment insurance
benefit – however was not eligible due to pregnancy (only eligible to pregnancy).
- Had not worked long enough, therefore was not eligible for pregnancy benefits

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14
Q

what did bliss argue

A

sex discrimination

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15
Q

what was the result of bliss

A

lost at the SCC

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16
Q

what was the courts opinion of bliss

A

Any issues that arise from being pregnant do not arise from being a woman,
but because you are pregnant. Decided by nature, not by the courts

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17
Q

Explain Brooks

A

v. Canada Safeway
1989
- Pregnant woman and colleagues
- Discrimination. Insurance plan was broader for temporary disability compared to pregnancy
and related health complications.
- Differences in percentage of income able to be claimed, length of time that can be claimed.
- Two people could have the same injury, yet the one that was caused during pregnancy would receive less money (60% instead of 67%)

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18
Q

What was the results of Brooks?

A
  • Supreme Court reversed precedence of Bliss, Brookes won the Supreme Court claim.
  • The Insurance Act was updated
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19
Q

Explain Symes

A

v. Canada 1993
- Self employed lawyer, had been deducting childcare expenses as business expenses
- Child care expenses fit the definition of a business expense – essential expenses that must
be spent in order to carry out her job, and bring in income
- Provided plenty of evidence to suggest that women carry a significantly greater burden to
care for their children than her male colleagues.
- Court says that this social burden does not
equate to childcare and therefore she lost (although dissent)
find more resources at oneclass.com
find more resources at oneclass.com
- Issues lay in who she was being compared to: comparison to male businessman, or
compared to the average female co-worker. In all unfair treatment cases, the group of people that are being compared is an important point

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20
Q

What are the waves of feminism?

A

First, Second, Third

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21
Q

Explain first wave feminism

A
  • 1790s - 1950s. Focused on women’s suffrage, similarity to men
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22
Q

Explain second wave feminism

A

1960s - 1980s.
Focused on differences between men and women,
reproductive issues and private body, divorce law, women in the workplace.
- Women of colour, lesbians, those who did not fit the general mould began to splinter off

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23
Q

what was the focus of first wave feminism

A

De jure inequality

- inequalities that were incorporated into the law eg. the inability to vote

24
Q

What was the inequality focus of second wave feminism?

A

De facto inequalities – those inequalities that were not written explicitly into law, but were
present in society, and the effects of written law

25
Q

Explain third wave feminism

A

1990s to the present. -
Anti-essentialist, intersectional, various different causes
coming together for social justice (disability rights, gay rights movements, classism, racism,
womens rights etc).

26
Q

what is the focus of third wave feminism

A

International focus – more women worldwide. The identity, micro-politics of what is
appropriate in the every day

27
Q

what is 3rd wave feminisms view of the law?

A
  • Law is resistant to change, takes time and pressure to change, law is a stabilising force. One reason for the lag
28
Q

what are organic intellectuals

A
  • those who bring with them with a built in, subjective perspective.
  • The reason for the lag between social and movement and law: students and the ones who grow up in the age take some time to become apart of system (students, professors, lawyers
    etc. ).
29
Q

What does Chamallas write

A

Three generations of feminist theory

30
Q

what is a generation

A

periods of intensive development in the fireld

31
Q

what does each generation do

A

respond to, and criticise its immediate predecessor

-each new strand of feminism is never completely replaced by newer approaches - foundational

32
Q

what are the generations

A

generation o equality, difference and of complex identities

33
Q

what is the dominant generation

A

throughout all generations equality thinking has dominated in courts and legislatures

34
Q

what is the generation of equality

A
  • emphasis on women’s similarity to men
  • dismantling the intricate system of sex-based legal distinctions - establish purportedly to protect women
  • argued that such protection was harmful as it restricted women’s lives to the home and family
35
Q

what are the feminisms that arose through the generation of equality?

A

liberal feminism

36
Q

explain liberal feminism

A
  • commitment to individual autonomy, equal freedoms for men and
    women.
  • Arguments do not challenge standards, rules or structures themselves, but focus on equal
    access
  • Did not require legal reform, but only needed incremental changes and expansion to make
    room for women
  • feminists described themselves as “women’s rights advocates”, “egalitarians” or “women’s liberationists”
37
Q

Explain the generation of difference

A

1980s
- Feminisation of poverty, gender gap in politics, “the social ceiling”, working mother’s “second shift”
- Questioning the idea that gender was irrelevant and the ideal of a gender-blind society
- Emphasised ways that men and women were different, but did not accept differences as
biological, inherent or inalterable
- Rather than requiring women to act more like men to achieve equality, the standards and
norms needed changing
- Based on women’s distinctive needs
- Issues involved pregnancy, sexual violence inc. rape, sexual harassment, prostitution,
pornography
- Less practically orientated than previous generation

38
Q

Explain dominance feminism

A
  • emphasised difference in power between men and women
  • Argued that concepts such as privacy, objectivity, individual rights did little to increase
    women’s power
  • Called for transformation of law to remove class-wide denomination of women
  • Legal system failed to protect women’s bodily integrity
  • Drew links between portrayals of women as sex objects and widespread sexual violence and sex discrimination
39
Q

Explain cultural feminism

A
  • recognize and celebrate women’s differences from men
  • Also called relational feminism
  • Articulate the ways women often tended to approach problems, view the world, construct
    identity.
    -women’s have a different voice, perspective
  • Concern for human relationships, caring, nurturing, empathy, connection
  • Liberal feminists tended to de-emphasis the mothering role, cultural feminists looked for
    ways this role could be supported
40
Q

explain jurisprudence

A

the legal system, the theory or philosophy of law
 Generation of differences brought new offerings on sexuality, sexual violence. Introduced
dual strategies to offer distinctively feminist course offerings but also incorporate into
mainstream

41
Q

what are the big three strands of feminism

A

cultural, dominance and liberal called the big three

42
Q

explain the generation of complex identities

A

-1990’s
- women are a divers groupe
- WOC and lesbians felt left out of feminist analysis emphasized dangers of essentialism
- Emerged from premise that live experiences differ between women based on race, class,
ethnicity, physical disability, immigration status, sexual orientation
- Feminists became used to the idea that they are likely to disagree with each other,
coalitions are necessary to produce legal reform

43
Q

What are feminisms in the generation of complex identities?

A
  • intersectional, autonomy, sex-positive,-post-modern
44
Q

explain intersectional feminism

A
  • avoiding the reduction of people’s experience to only one aspect of personal identity or form of oppression
  • treating oppression in discrete boxes tended to obscure how other forms of discrimination may be mutually reinforcing
45
Q

explain autonomy feminism

A
  • complex nature of personal identity, presented women simultaneously as both victims of oppression and agents of their own destiny
  • the focus on sexual violence in the previous generation, feminism had become fixated on victimization, did not properly account for women’s ability to make choices, resist, contribute to cultural meaning attached to gender in society
46
Q

explain sex-positive feminism

A

sought to reclaim sex as being pleasurable for women, distance themselves from accounts depicting sex as dangerous for women

47
Q

explain post-modern feminism

A
  • shift attention of scholars away from hierarchies (men-women to
    women-women). Target sex-based categories themselves, particularly the notion that only
    two sexes exist and are opposite
  • Understanding how individuals are condition to perform their gender in binary ways, socially
    constructed boundaries between the sexes
  • Objective for many postmodernists – resist the binary, address stigmatization of individuals who do not or will not conform
48
Q

what are the new three strands of feminism

A

intersectional, autonomy, post-modern

49
Q

what is the enemies list for legal feminists

A
  • difference, subordination, devaluation - familiar enemies of equality
    essentialism, victimization, normalization - appeared as third generation feminist legal theories tried to become more inclusive
50
Q

explain difference enemy

A

– refers to disparate or differential treatment of the sexes. Commonly associated
with formal sex-based or gender-based legal classifications.
- Liberal feminists highly suspicious of any scheme that provides/ed a different set of rules for
men and women

51
Q

explain subordination enemy

A

-measures injustice by whether a practice or policy
serves to deepen power disparities between men and women. Closely linked to dominance
feminism.
- Does not compare individual, but rather male domains and female domains
- Aimed at eliminating systematic patterns that produce structures of gender inequality

52
Q

explain devaluation

A
  • the cultural assignment of a lower value to an entire group of people due to the cognitive association of particular activities eg. women in nursing, caretaking, etc.
  • can operate to construct a hierarchy, disadvantage individual members of priveleged groups eg. a male as a caretaker
53
Q

explain essentialism

A
  • the tendency to presume commonalities among all women.

- sweeping statements and generalisation

54
Q

explain victimization

A
  • objectification of women, perpetually vulnerable to violence or exploitation,
    lacking capacity for pleasure, self-direction, self-determination
55
Q

explain normalization

A
  • discourses that privilege certain socially acceptable or normal practices or
    ideas, marginalising or discrediting those that do not fit the normal eg. marriage, caretaking,
    heterosexuality
  • Has the potential to backfire and reinforce, rather than subvert dominant ideologies
56
Q

what are developments inf feminism

A
  • global feminist movement, expansion of scholarly articles to focus on ideas originating outside the US

WS 2270 (5 decks)

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