Feminist legal theory
Feminist legal theory, also known as feminist jurisprudence, is based on the belief that the law has been fundamental in women's historical subordination. The project of feminist legal theory is twofold. First, feminist jurisprudence seeks to explain ways in which the law played a role in women's former subordinate status. Second, feminist legal theory is dedicated to changing women's status through a rework of the law and its approach to gender. It is a critique of American law that was created to change the way women were treated and how judges had applied the law in order to keep women in the same position they had been in for years. The women who worked in this area viewed law as holding women in a lower place in society than men based on gender assumptions, and judges have therefore relied on these assumptions to make their decisions. This movement originated in the 1960s and 1970s with the purpose of achieving equality for women by challenging laws that made distinctions on the basis of sex. It was crucial to allowing women to become their own people through becoming financially independent and having the ability to find real jobs that were not available to them before due to discrimination in employment. However, feminist legal theorists today extend their work beyond overt discrimination by employing a variety of approaches to understand and address how the law contributes to gender inequality.
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The first known use of the term feminist jurisprudence was in the late 1970s by Ann Scales during the planning process for Celebration 25, a party and conference held in 1978 to celebrate the twenty-fifth anniversary of the first women graduating from Harvard Law School. The term was first published in 1978 in the first issue of the Harvard Women's Law Journal. This feminist critique of American law was developed as a reaction to the fact that the legal system was too gender-prioritized and patriarchal.
In 1984 Martha Fineman founded the Feminism and Legal Theory Project at the University of Wisconsin Law School to explore the relationships between feminist theory, practice, and law, which has been instrumental in the development of feminist legal theory.
The foundation of the feminist legal theory was laid by women who challenged the laws that were in place to keep women in their respective places in the home. A driving force of this new movement was the need for women to start becoming financially independent.
Women who were working in law started to focus on this idea more, and started to work on achieving reproductive freedom, stopping gender discrimination in the law and workforce, and stop the allowance of sexual abuse.
- the liberal equality model;
- the sexual difference model;
- the dominance model;
- the anti-essentialist model;
- and the postmodern model.
Each model provides a distinct view of the legal mechanisms that contribute to women's subordination, and each offers a distinct method for changing legal approaches to gender.
The liberal equality model
The liberal equality model operates from within the liberal legal paradigm and generally embraces liberal values and the rights-based approach to law, though it takes issue with how the liberal framework has operated in practice. This model focuses on ensuring that women are afforded genuine equality including race, sexual orientation, and gender—as opposed to the nominal equality often given them in the traditional liberal framework—and seeks to achieve this either by way of a more thorough application of liberal values to women's experiences or the revision of liberal categories to take gender into account. For example, when black women are only provided legal relief when the case is against her race or gender.
The sexual difference model
The difference model emphasizes the significance of gender discrimination and holds that this discrimination should not be obscured by the law, but should be taken into account by it. Only by taking into account differences can the law provide adequate remedies for women's situation, which is in fact distinct from men's. The difference model suggests that differences between women and men puts one sex at a disadvantage; therefore, the law should compensate women and men for their differences and disadvantages. These differences between women and men may be biological or culturally constructed. The difference model is in direct opposition to the sameness account which holds that women's sameness with men should be emphasized. To the sameness feminist, employing women's differences in an attempt to garner greater rights is ineffectual to that end and places emphasis on the very characteristics of women that have historically precluded them from achieving equality with men.
The sameness feminist also argued that there was already special treatment for these so-called "differences" in the law, which is what was oppressing women. The idea of there being differences between the sexes lead to the classical thought that feminist legal theory was trying to get rid of. It forced women to prove that they were like men by comparing their experiences to those of men, all in an attempt to gain legal protection. This all only led to women trying to meet norms that were made by men without questioning why these were accepted as the norm for equality.
The dominance model
The dominance model rejects liberal feminism and views the legal system as a mechanism for the perpetuation of male dominance. Further, dominance theorists reject the difference model because it uses men as the benchmark of equality. While the liberal equality model and difference theory aim to achieve equality for women and men, the dominance model's end goal is to liberate women from men. Dominance theorists understand gender inequality as a result of an imbalance of power between women and men and believe the law contributes to this subordination of women. It thus joins certain strands of critical legal theory, which also consider the potential for law to act as an instrument for domination. This theory focuses on how male dominate females, but it also talks about other groups being oppressed such as how legal aid is not often offered to the transgender population. Also, any white female would have good legal representation compared to minority groups.
In the account of dominance proposed by Catharine MacKinnon, sexuality is central to the dominance. MacKinnon argues that women's sexuality is socially constructed by male dominance and the sexual domination of women by men is a primary source of the general social subordination of women. According to MacKinnon, the legal system perpetuates inequalities between women and men by creating laws about women using a male perspective.
The anti-essentialist model
Anti-essentialist feminist legal theory was created by women of color and lesbians in the 1980s who felt feminist legal theory was excluding their perspectives and experiences. Anti-essentialist and intersectionalist critiques of feminists have objected to the idea that there can be any universal women's voice and have criticized feminists, as did Black feminism, for implicitly basing their work on the experiences of white, middle class, heterosexual women. The anti-essentialist and intersectionalist project has been to explore the ways in which race, class, sexual orientation, and other axes of subordination interplay with gender and to uncover the implicit, detrimental assumptions that have often been employed in feminist theory. This model challenges feminist legal theorists who only address how the law affects heterosexual, middle-class white women. Anti-essentialist feminist legal theory recognizes that the identities of individual women shape their experiences, so the law does not influence all women in the same ways. It is about building actual equality for all regardless or gender, race, sexual orientation, class, or disability.
Mari Matsuda created the term "multiple consciousness" to explain a person's ability to take on the perspective of an oppressed group. Anti-essentialist feminist legal theorists use multiple consciousness to understand how the law is affecting women belonging to groups other than their own.
The postmodern model
Postmodern feminist legal theorists reject the liberal equality idea that women are like men as well as the difference theory idea that women are inherently different from men. This is because they do not believe in singular truths and instead see truths as multiple and based on experience and perspective. Feminists from the postmodern camp use a method known as deconstruction in which they look at laws to find hidden biasses within them. Postmodern feminists use deconstruction to demonstrate that laws should not be unchangeable since they are created by people with biasses and may therefore contribute to female oppression.
Feminist legal theory produced a new idea of using hedonic jurisprudence to show that women's experiences of assault and rape was a product of laws that treated them as less human and gave them fewer rights than men. With this feminist legal theorists argued that given examples were not only a description of possible scenarios but also a sign of events that have actually occurred, relying on them to support statements that the law ignores the interests and disrespects the existence of women.
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