lOMoAR cPSD| 4157981

Feminist Legal Theory

Introduction: The nature of feminism

• In the early years, various feminist movements were concerned primarily

with winning equality, emancipation and the articulation of specific
freedoms for women.

• In later years, feminists have emphasised the transformation of society at

a psychological, cultural, ideological and legal level in order to enable
women to reach their full potential and so to contribute positively towards
the creation of a fuller, richer human society.

• Primarily, feminism has been concerned with clarifying the nature of

society as a patriarchy.
o an arrangement which is dominated by men and which is set up in a
way that oppresses women;
o allowing for their systematic exploitation for the benefit of men.
o All the institutions of society are seen as being traditionally controlled
by men; and
o the cultural and ideological values which they promote are
regarded as being essentially male values.

• Feminists continuous struggle to ward off this stigma of male domination

by:
o promoting awareness of its existence; and
o identifying ways in which it can be neutralized.
 lOMoAR cPSD| 4157981

• The law is the focus and it is seen as a device/vehicle which has been
specifically created and tailored for the purposes of hurting women's
interests, whilst defending men’s excesses at the same time.

Sexism and law

• Sexism as perceived is the belief that women are (in some ways at least)
inferior to men, whilst sexism in practice (either sociologically or in the
legal system) is the treatment of women less favourably than men for no
other reason than that they are women.
 lOMoAR cPSD| 4157981

• In a sexist society, the law, being a social institution, will reflect sexist
attitudes in the various rules it contains. Until the reforms of the nineteenth
century, the legal status of married women in England was regarded as
being submerged in that of their husband's; in consequence, they were, for
example, unable to hold legal title to property. It was not until the early
twentieth century (due to the suffragette movement) that women were
legally entitled to vote, and not until the last decades of the twentieth
century, laws were enacted to address discrimination on the basis of sex in
employment.

• Feminist theorists deny that legal doctrine is objective and neutral,

and because law is often presented as an outlook reflective of the
dominant sex.

• They state that basic structural concepts of the law, such as rights, and
the way in which legal disputes are resolved, may represent a
'masculine' conception of justice and injustice, and 'masculine'
techniques for the resolution of disputes.

• There seems to be a belief in society that, in some ways, women and men
just are different, for example with respect to their biological
reproductive capabilities, physical attributes and innate characteristics. So
because of this, that this requires them to be treated differently.

• The first maxim of justice is 'treat like cases alike, and different cases
differently, and so if men and women differ in significant ways, this must
justify different treatment – this discrimination is vehemently objected to
by feminists.

Sex and gender

• Feminist legal theorists distinguish between sex and gender. Sex refers to
the biological attribute of being female or male. Gender, on the other
hand, refers to the much broader distinction between the feminine
and the masculine; gender is what gives us female and male stereotypes.

2
 lOMoAR cPSD| 4157981

• While all women are female, women are not equally feminine. Feminine
characteristics are those which women typically, and more to the
point, 'appropriately' display: characteristics such as sensitivity,
emotion, and modesty. Similarly, all men are male, but some men are
more 'masculine' than others, displaying strength, leadership, stolidness,
rationality, and so on.

• Sexism operates to make it seem that there is natural objective

connection between femaleness and femininity and maleness and
masculinity. This allows feminists to show that there are some women are
treated unfavourably because they fail to meet the stereotypical
behaviour expected of them.

• This was what Margret Thatcher faced in the Conservative party before
she ascended to being the Prime Minister of UK from 1979 -1990 earning her
the description of ‘Iron Lady’. To a certain extent this was also inherent in
Theresa may during her premiership from June 2016 till July 2019.

Feminist legal theory and practice

• Feminist theory of law is concerned with a kind of oppression: the oppression
of women. Law is their primary focus, in particular, legal issues such as the
law's treatment of rape victims and offenders, the resolution of custody
disputes, the regulation of pornography, the employment law treatment of
pregnancy and other aspects of reproduction affected by the law.

• They suggest an agenda for legal reform, pointing out an injustice and that
it needs to be rectified. (similar to Marx’s camera obscura).

• One of the achievements in feminist legal theory has been that by

'naming' behaviours from a feminist theoretical perspective, attitudes
towards those behaviours have significantly altered within the law and
more broadly in society.
• Terms such as 'date rape, 'domestic violence', and 'sexual harassment',
have put a name to existing, but dimly perceived, wrongs to women and
have also brought them into the broader public consciousness.

3
 lOMoAR cPSD| 4157981

• According to Andrea Dworkin and Catharine MacKinnon, there is no

such thing as consensual sex. They claim that male–female sexual
intercourse has meaning for both men and women as a manifestation of
masculine power and female submission in which the idea of consent is
inessential—a rather difficult point to grasp.

• The primary question is this: Is every sexual act without consent (actual
or implied) and that every female is coerced into submission to male
domination during intercourse? If reproduction is the primary aim, then
how can this argument of Andrea Dworkin and Catharine MacKinnon
hold water?

• Can’t a married woman at one juncture say that I want a child? How would this be
achieved if consent is inessential? Is every reproductive act without
consent? What’s the solution? Invitro fertilization? This is the inherent criticism to this
myopic notion by radical feminists.

• Feminist legal theories can be classified primarily into liberal, radical,

cultural/ difference feminist theory.

4
 lOMoAR cPSD| 4157981

Liberal feminism

• Liberal feminism is the 'original' template for feminism. The basic premise of
liberal feminism is that women and men are equal. Equal how? The argument
is that, women, just as men, have lives which are of value; women just like
men deserve equal concern and respect; each woman's life counts just as
much as each man's life.

• According to this argument, it is wrong to discriminate against women

in life’s opportunities, restricting them, for example, to lives as wives or
mothers in the home and placing barriers to their entering various careers
– country bumpkin syndrome.

5
 lOMoAR cPSD| 4157981

• Nor is it acceptable to deny them a role in the public life of

their communities or nations; in particular, denying them the right to vote
or hold office is completely unacceptable.

• Liberalism is the dominant political outlook of the Western world in

the modern age (though Asians have also caught on unless saddled down by
archaic religious tenets).

• At the core of liberalism is the picture of the individual, in particular a

female, as a rights-bearer, i.e. as someone who has certain inalienable
and inviolable rights, such as the right to life, to freedom of expression, to
freedom of association, to property, and so on. This is premised on the idea
that the lives of individuals are the only genuine object of value, which
the law and state must respect.

• Liberal feminists have endeavoured to destroy various myths about

women's inadequacies and in this respect they have been quite
successful.

• The criticism of liberal feminism is that it is founded upon the equality of

individuals, on each person's right to equal treatment under the law and
by the State.

• Liberalism requires laws, therefore, to be sex-blind. There can be laws

however which discriminate other disadvantaged groups like minorities
not premised on sex, and how can those law be then justified? Not all people
are equally situated, equally capable of exercising their rights, and
this is false.

• According to Lord Bingham in 2006 ‘Rule of Law’ he states that individuals within
the state must be treated equally unless objective criteria justify
differentiation. Are being male and female objective criteria
for differentiation?

6
 lOMoAR cPSD| 4157981

• Another criticism of liberal feminism is the way in which it regards human

social relationships as a matter of choice, of the exercise of the
freedom of association. They see each individual is autonomous, free
from constraints imposed by others in being the 'author' of his own life.

• Critics insist that social connections within the family and the community
are constitutive of a person's identity, not simply a matter of 'consumer
choice'.

• To counter this, liberal feminists distinguish a public realm and private

realm. The public ream comprises the arena of employment, trade, and
politics, in which a person deals with other individuals protected by his or
her legal rights. The private realm relates to love, family, friendship, which
operates according to a different logic, and where it would be
inappropriate for the law or the State to intrude.

• 'Domestic' violence was for a long time regarded as something which was
not really the business of the police or the law. This outlook fails to
appreciate the way in which deeply ingrained sexism in private affairs,
such as roles in the family, can significantly impair the exercise of rights
in the public realm – so the rights bearer can be emasculated by the variables
in private life. Men do not, in most instances, have similar dilemmas.

• To treat men and women equally is to treat them the same. The criticism
is that liberalism gives women equal rights only so long as they act like
men; they can be seen to compete equally on the level playing field of the
market-place only so long as the differences between men and women
are ignored.

• For example in reproductive capability, a woman's choice to 'have

children' means something vastly different from a man's 'choice' to do
'the same' in the context of employment.

7
 lOMoAR cPSD| 4157981

• Because of this, critics argue that the only fair and just thing to do would
be not to treat men and women in exactly the same way. Though there
is a reason to treat men and women differently, it is not a ground for
treating them unequally. Thus in order to achieve genuine equality, equal
treatment, under the law need not mean identical treatment.

The Ethic of Care

• This approach argues that there are genuine, somehow relevant, differences
between men and women, which should be celebrated. Women have their own
moral perceptions which are either more valid, or at least as valid, as men’s.

• Much of this work comes from a development of the work of Carol Gilligan (a
psychologist), who identified two distinct moral codes that correspond to
gender when she carried out research on various groups of
girls/boys/men/women. Her work provides counter-arguments to previous
research by Lawrence Kohlberg, who identified five stages of moral
development with impartial thought being the highest. His research appears to
show that women never got higher than stage 3. On the basis of her new
findings, Gilligan then argues in her book In a different voice (1982) for a re-
evaluation of the feminine.

8
 lOMoAR cPSD| 4157981

9
• The two moral codes or voices are:

o Feminine mode based on caring – the maintenance of relationships, a

web of communications and networks; concern for the particular needs
of others in their particular contexts. This is the ethic of care. Gilligan
(1982, p.23) argued that women placed greater emphasis on context and
the concrete effects of their decisions on other people:

o Masculine mode: objective, impartial, impersonal, unemotional, thinking

of obligations, justice, rights and rules. That is, the generally idealised
form of the legal and political system. This is the ethic of justice.

o Instead of the ethic of care being repressed and undervalued, it was

argued that it ought to be heard together with the male voice which is
historically dominant. The feminine voice is just as rational and
potentially public in scope, it is not just for use in the home, etc.

o Many queried Gilligan’s findings – how could a small sample be

translated into a world view of the way men and women think? Even if
accurate on that front, some are more concerned as to why women may
care more than men and why they appear to value relationships more. Is
it because of the different socialisation processes in boys and girls? Is it
for psychological reasons relating to identification with your primary
carer in early life – usually the mother (i.e. do girls gain their identify by
a connection of similarity with their mothers while boys gain their identity
as a separation or difference from their mothers?)? Or is it because of
women’s biology – are women somehow more connected to other life
because of their reproductive capacity?†

o In legal feminism this is an uncommon stance to take but Robin West’s

work (1987) illustrates it well, arguing that women crave intimacy, and
connection with others, rather than the separation and autonomy that are
one of the main values in liberal legal theory. As such, women are
severely disadvantaged by liberal legal jurisprudence and a feminist
jurisprudence needs to be developed. West has argued that women are
not individuals first because they are not separate from other individuals.
Instead they are connected to other human life, and she specifies
9
 lOMoAR cPSD| 4157981

10
particular recurrent experiences in women’s lives when this happens.
The recommended Further reading for this chapter provides further
insights on this.

Radical feminism

General views of this school

• Radical feminism regards all structures of society, in particular the legal
system, being set up to control, oppress and to facilitate the exploitation
of women by men.

• This is similar to what Marx stated in that the law being the product of
capitalism to maintain the status quo of a class society. Marxists see class
divisions as the central organizing feature of economic and political life.

• The different values which women appear to hold or exhibit are simply their
reaction to a male dominated situation and are not really an expression of
anything intrinsically feminine.

• The apparent neutrality of law and the equality of all persons before it is
thus a myth and a fantasy, promoted by a State which, by appearing to
be liberal, promotes a "false consciousness" amongst women, which
convinces them that they are actually free.
10
 lOMoAR cPSD| 4157981

11

• According to feminists like Catherine Mackinnon, the state can never be

trusted.

• ‘There is no such thing as consensual sex’ which is a phrase associated with

Andrea Dworkin and Catherine Mackinnon. They state that male-female
sexual intercourse has meaning for both men and women as the
manifestation of masculine power and female submission in which the idea
of consent is inessential.

11
 lOMoAR cPSD| 4157981

12

• In terms of feminist practice, that slogan may have been a strategic

disaster, as it opens up the criticism by opponents that feminists are crazy
men hater and believe that all men are rapists.

• One important preoccupation of feminist legal theorists of this school is

therefore ‘consciousness raising', which will lead women everywhere to
become more aware of their oppressed condition and the need
to transform patriarchal society.

• Once this awareness occurs, there may then arise a real female
consciousness, which will lead to a radical and fundamental restructuring
and reorienting of society's basic structures, including the legal system
and the law.

• By allowing women to speak to each other in all women discussion

groups about their own experiences, without their speaking being cut
short or re- interpreted by men, women's consciousness of their own
circumstances would be raised.

• Individual women would then become aware of the objectivity and

be capable of analysing how society oppressed women. They would also
be capable of identifying occasions where sexist attitudes shaped
people's behaviour. In consequence they would be freed of the shackles
of subjective notions ingrained by men and the law and get the real
perspective of oppression by men and in consequence, the vehicle which
suits men’s perspective – the law.

• In general, radical feminists regard the oppression of women, to be

primarily located in men's domination over women in terms of sex and
reproductive rights.

12
 lOMoAR cPSD| 4157981

13

• The radical feminists concentrate on issues such as the regulation

of pornography, the law of rape, the law of marriage, and abortion rights.
According to them, the legal regulation of each of these areas in its
own way has traditionally disempowered women and empowered men.

• Radical feminists have systematically exposed male dominant

perspectives in the general-law from the reconceptualisation of
the defence of provocation to murder (see R v Ahluwalia; R v Thornton)
and to the law regulating abortion (see Roe v Wade)

• Radical feminists champion abortion rights, arguing that the denial of the
right to abortion was a facet of male control of reproduction. (see Evans v
UK).

• They also argue that pornography is the graphic depiction of sexualised

violence against women that normalised the rapist's conception of sexual
desire. They state that the protection of pornography by the right to
freedom of expression shows how the law gives precedence to the
monetary interest of the pornographer over the lives and health of
women. (the Article 10 v Article 8 and 5 HRA argument, contrast Campbell
v MGN)

• In pursuing these inquiries, the legal subjects which have come under
the scrutiny of this feminist legal theory are:
o rape (honest belief in consent DPP v Morgan, Satnam v Kewal – the male
perspective for the defence of consent);
o domestic violence (see Davies v Johnson);
o sexual harassment [Khorsandjian v Bush overruled by Hunter v Canary
Wharf on the proprietary right issue for private nuisance and legislation
under Prevention of Harassment Act 1997) and their
treatment by the law and law enforcement agencies - exemplified by the case of
R v R (1991) (rape within marriage];
o surrogate motherhood, pregnancy and maternity leave
characterised as -analogous to the sick leave of a male employee
[Webb v EMO Cargo (No. 2];

13
 lOMoAR cPSD| 4157981

14

o abortion (Roe v Wade, see also Northern Ireland’s restrictive laws on

abortion)
o pornography - perceived as the "graphic sexually explicit
subordination of wornen';
o different retirement ages and pension entitlements for men and
women -leading to injustice for both men and women in specific
circumstances. (see Garland v BRE Engineering; Macarthys v Smith)

• Furthermore, other traditionally black-letter law subjects have been

opened up to enable the specific experiences of women to be taken into
account. Among these, the laws of tort, contract and property have been
of some interest (See Pettitt v Pettitt for division of matrimonial property amd
the subsequent development of constructive trusts - Lord Denning’s dicta in
Cooke v Head, Hussey v Palmer, see also Stack v Dowden, Jones v Kernott and in
family law Lord Denning’s dicta in Wachtel v Wachtel, see also decisions of
White v White, Cowan v Cowan)

The work of Catherine Mackinnon.

• The main protagonist in radical feminist theory is that of Catharine
MacKinnon. According to her in ‘Towards a Feminist Theory of the State (1989)’,
one view within feminist legal theory is that there are no significant inherent
differences between men and women.

• She says that the only real difference is that of inequality - in all patriarchal
societies, men dominate the lives of women. Furthermore, this idea of male
domination is sexualised, men's power over women is conceived of as a
kind of sexual power.

• According to her, the arena where sexism is most evident is that of sex and
reproduction, for it is there that men are most clearly seen to be 'on
top'— the pun is intended, and MacKinnon herself argues that sexism is
embedded in our language, in particular in language which deals with
sex.

14
 lOMoAR cPSD| 4157981

15

• The central feature of MacKinnon's analysis of rape law is that the law,
adopting the male point of view and unable to draw on women's
perspective, is completely incapable of accommodating
women's experience of rape.

• In particular, the law attempts to draw a line between 'rape' and normal,
permissible, heterosexual sex, making the former illegal and the latter
perfectly acceptable.The language of sex reveals that our
conception is that of the man as active subject, of woman as passive
object; he 'does it' to her, and not vice versa. Man f*#*s woman, subject –
verb – object.

• MacKinnon claims that the categories of male and female are known to
us through what she calls the 'male point of view', which is the sexist point
of view of male domination.

• This view is wrongly perceived as the 'objective' view; men are men
and women are women and their differences are perfectly natural, as
anyone viewing the situation 'objectively' can see.

• According to Mackinnon, convergence of sexuality with violence, is long

used at law to deny the reality of women's violation, is recognised by rape
survivors, with a difference: where the legal system has seen the
intercourse in rape, victims see the rape in intercourse. Instead of asking, what
is the violation of rape, what if we ask, what is the non-violation of intercourse?

• She states that wrong of rape has proven so difficult to articulate

because the unquestionable starting point has been that rape is
definable as distinct from intercourse, when for women it is difficult to
distinguish them under conditions of male dominance.

• MacKinnon states that feminism must see the State as predominantly male.
The State and the law reflect the male point of view and the law does
so especially when it purports to be acting at its most neutral.

15
 lOMoAR cPSD| 4157981

16

• This is so because the State and the law are the supreme manifestation of
power relations in a society, and as regards men and women and
men have the power in law making to suit their perspective. Thus the law
enforces rights which authorise the male experience of the world. For a
woman then, the State simply cannot be trusted.

• According to MacKinnon, pornography violates women's civil rights

by interfering with their right to freedom of expression. The main function of
pornography, which is not the same thing as sexually explicit art or
literature, is the depiction of the sexualised degradation of women, is to
silence women.

• The eroticisation of violence and submission in pornography helps create

an environment in which women are understood to find male force sexually
attractive, where 'no' means 'yes'.

• The main effect, then, of pornography is that it harms women by taking

away their freedom of expression. The battle between pornographers and
women, the victims of pornography – she argues that the expression is
enacted to suit men’s eroticization of the act for commercial benefits which
women are subdued to enact for monetary gains.

Criticism of radical feminism & Mackinnon

• The criticism of radical feminism is that it is ‘pigeon-holes’ women, is
oppositional and utopian. Radical feminists, emphasise sex above all
else, whereas the causes and effects of sexism are much more varied.

• Radical feminism regards sexist oppression as more basic in the structure

of social and political relations than other forms of oppression. For the
radical feminist, it is easier to be 'colour-blind' than 'sex-blind'.

• Radical feminism is utopian character. For many people, it is difficult

to envisage a world in which no real significance would attach to the
distinction between men and women due to biological differences.

16
 lOMoAR cPSD| 4157981

17

• The criticism of MacKinnon's work is that she regards the sex/power

connection as the essential foundation for the male sexist dominance
over women.

• Critics argue that there are other elements of male dominance which
must be brought into the equation of how women are oppressed like views
on intelligence, rational thought and ability to deal with situations where
or areas where physical strength is a pre-requisite.

Cultural/difference feminism
• According to this school of feminism, there are no persons, just men
and women. Equality does not mean sameness.

• For example, to have political equality, it cannot, for it would be impossible

to simply eradicate the differences between men and women, adults
and children, between people of different genetic, cultural, religious,
and ethnic backgrounds.

• In the case of law, cultural/difference feminists argue that the law has failed
to take into account the woman's point of view.

• According to Carol Gilligan, in her 1982 book, In a Different Voice, argued that
boys and girls reason differently to resolve moral dilemmas. Boys tend to
emphasise people's individual entitlements, and generate rules to resolve
conflicts.

• The boys' approach to moral realising is captured by Gilligan with the phrase 'an
ethic of rights'. Girls, on the other hand, seek to resolve moral dilemmas by
emphasising the personal relationships involved, and seek compromises so
that everyone's interests are taken into account; this reflects an 'ethic of care'.

• From this aspect, the critique of the legal system is that it adopts an ethic
of rights, and attention can be drawn as well to competitive/adversarial
'winner takes all' court proceedings that discourage compromise.

17
 lOMoAR cPSD| 4157981

18

• Law is seen to take a masculine approach in its very reasoning. Not only
does this negatively affect the prospects of female lawyers, who more
naturally have a different way of moral reasoning, but it also privileges men
generally, as they are more likely to resolve social conflicts in daily life in the
adversarial manner which law promotes procedurally in litigation.

• According to Robin West's ‘difference’ strand of feminism is called the

connection thesis. According to her, women are actually or potentially
materially connected to other human life and men aren't. She gives an
example of the mother-child bond and the source of identity
and understanding it gives to women.

• According to her, the aim of feminist jurisprudence into make it clear to

legal culture that the masculine understanding of individuals as basically
separate and unconnected simply does not reflect the world as seen by
women, and that in areas of law in which women are most primarily
affected, such as reproductive rights, the woman's perspective must be
made to be heard.

• The main critics of cultural/difference feminism are from the school

of radical feminism. Cultural/difference feminism can also be viewed as
politically conservative, as it to consigns women to those traditional roles
of the caring professions, teachers, nurses, and so on, and motherhood.

• It may simply not be the case that for most women, let alone all, the 'ethic
of care' only describes the way they morally reason and not the situation they
are in, and pigeon-holing them in certain professions is inappropriate.

• There are women who take the confrontational approach or are go

getters – winner take all so its inaccurate to generalise women as being
confined to the etic of care.

18