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A philosophy of law based on the political, economic, and social equality of the sexes.
Feminist jurisprudence is a burgeoning school of legal thought that encompasses many theories and approaches to law and legal issues. Each strain of feminist jurisprudence evaluates and critiques the law by examining the relationship between gender, sexuality, power, individual rights, and the judicial system as a whole. As a field of legal scholarship and theory, feminist jurisprudence had its beginnings in the 1960s. By the 1990s it had become an important and vital part of the law, informing many debates on sexual and domestic violence, inequality in the workplace, and gender-based discrimination at all levels of U.S. society.
Feminist jurisprudence intersects with a number of other forms of critical theories, most notably critical race theory and the study of gay and lesbian rights. Moreover, the form of feminist thought that focuses on legal theory draws from feminism in other disciplines, including sociology, political science, history, and literature. Leaders in the feminist jurisprudence camps thus do not focus exclusively upon purely legal aspects of feminism.
A Brief History of Feminism
The feminist political movement began in the nineteenth century with a call for female suffrage. At a convention in Seneca Falls, New York, in 1848, a group of women and men drafted and approved the Declaration of Rights and Sentiments. This document, modeled on the language and structure of the Declaration of Independence, was a bill of rights for women, including the right to vote. Throughout the late 1800s, feminist leaders Susan B. Anthony and Elizabeth Cady Stanton were persistent critics of male society's refusal to grant women political and social equality. In the mid-nineteenth century, many state legislatures passed married women's separate property acts. These acts gave women the legal right to retain ownership and control of property they brought into the marriage. Until these enactments a husband was permitted to control all property, which often led to the squandering of a wife's estate. Finally, when the Nineteenth Amendment to the U.S. Constitution was ratified in 1920, women gained Voting Rights in the United States.
The modern feminist movement began in the 1960s. In 1966 betty n. friedan, author of The Feminine Mystique (1963), organized the first meeting of the national organization for women (NOW). In 1968 NOW staged a protest at the Miss America Pageant. By 1970 Robin Morgan had enough material on feminism to publish a popular anthology, Sisterhood Is Powerful. Women who had become civil rights and antiwar activists in the 1960s soon turned their attention to gender discrimination and inequality. The decision in Roe v. Wade 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), which defined the choice of abortion as a fundamental constitutional right, became a touchstone for feminists who argued that women must have reproductive rights.
To many feminists, Roe v. Wade meant more than the choice to have an abortion. The Court recognized the fundamental right of choice, albeit with limitations, concerning a woman's right to make decisions regarding her body. Maternity, noted the Court, "may force upon the woman a distressful life and future," including psychological, mental, and physical health factors. The holding was a dramatic shift from traditional male-dominated jurisprudence which often sought to protect women in a paternal sense but did not recognize the rights of women to make fundamental choices on matters concerning their own well-being.
Accordingly, feminists have remained staunchly supportive of the Roe v. Wade decision, despite a heated national debate regarding abortion. Nineteen years after Roe, feminists rallied to support the decision when the Supreme Court reconsidered its decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992). Although the Court permitted certain restrictions upon abortions, it held intact the fundamental right of choice announced in Roe.
The 1960s and 1970s also saw a revival in the interest in adopting a constitutional amendment to provide greater protection of women's rights than those in the Fifth and Fourteenth Amendments of the U.S. Constitution. The Equal Rights Amendment, which was originally conceived in the early 1920s, was introduced to the states in 1972. The text of the amendment read: "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex." Supporters of the amendment believed it would overcome weaknesses in federal statutes and judicial interpretations of the Constitution with regard to the protection of women's rights. The proposal eventually failed to garner the necessary votes from three-fourths of the states.
With the rise of the women's movement and a growing percentage of women attending law school, feminist critiques of the law soon emerged. One criticism concerned the way history was written. According to feminists, traditional historians wrote from the male point of view and excluded that of the female. These historians did not inquire into women's role in making history, structuring society, and living their own lives. Feminists point out that male-written history has created a male bias regarding concepts of human nature, gender potential, and social arrangements.
Scholarship in Feminist Jurisprudence
Feminists also criticize mainstream jurisprudence as patriarchal. They say that male-dominated legal doctrine defines and protects men, not women. By discounting gender differences, the prevailing conceptions of law perpetuate patriarchal power. Because men have most of the social, economic, and political power, they use the system to subordinate women in the public spheres of politics and economics as well as in the private spheres of family and sex. The language, logic, and structure of the law are male created, which reinforces male values. Most troubling, these concepts and values are presented as and are widely perceived to be both neutral and objective.
For example, in determining liability in negligence actions, the law crafted the "reasonable man" test. This "man" was a hypothetical creature whose hypothetical action, reaction, or inaction in any situation was the law's standard of reasonable conduct for real people in similar circumstances. The gender-biased term man has been replaced by person in the name for this test, which might seem to resolve the problem. But some feminist legal scholars have argued that a gender-neutral label merely avoids the fact that the test is based on assumptions of what a male would do in a situation. They propose that when an action involves a female, a court should apply a "reasonable woman" test. By doing so, the court would recognize the differences in how males and females react to situations.
Feminists challenge biological determinacy, the belief that the biological makeup of men and women is so different that certain behavior can be attributed on the basis of sex. They believe that biological determinacy curtails women's power and their options in society. They argue that gender is created socially, not biologically. Sex determines matters such as genitalia and reproductive capacity but not psychological, moral, or social traits.
In analyzing the workings of gender in the law, feminist scholars share certain common commitments. Politically, they seek equality between men and women. Analytically, they make gender a category by which to reconstitute legal practices that have excluded women's interests. Methodologically, they use women's experiences to describe the world and to demonstrate the need for change. They rely primarily on an experiential discourse for analyzing gender hierarchy, sexual objectification, and social structures.
Though feminists have much in common, they are not uniform in their approaches. One school of feminist legal thought views women as individual human beings and is based on the desire to promote equal opportunity. Employing the concepts of rationality, rights, and equal opportunity, this school makes arguments similar to those against racial discrimination. It asserts that women are just as rational as men and therefore should have equal opportunity to make their own choices. This school challenges the assumptions of male authority, and it seeks to erase gender-based distinctions recognized in the law, thus enabling women to compete equally in the marketplace. It has caused legislatures and the courts to change many discriminatory laws. Its approach works, proponents argue, because it speaks the language the legal system understands. In addition, this approach attracts nonfeminists who agree that non-sex-specific legal solutions are preferable to sex-specific laws. Ruth bader ginsburg, first as an attorney and later as a justice of the U.S. Supreme Court, has exemplified supporters of this liberal feminist approach.
Another school of feminist legal thought focuses on the differences between men and women and celebrates those differences. Deeply influenced by the research of psychologist Carol Gilligan, this group of feminist thinkers observes that men and women speak in different voices. Women emphasize the importance of relationships, contexts, and reconciliation of conflicting interpersonal positions, whereas men emphasize abstract principles of rights and logic. The objective of this school is to give equal recognition to women's moral voice. Proponents seek changes in the existing conditions so that the law will recognize women-valued relationships such as that between mother and child. In stressing this different voice of caring and communal values, this school of feminism criticizes possessive individualism, which, it is claimed, is integral to the maintenance of women in stereo-typical roles.
Like the liberal feminist school of thought, radical feminism focuses on inequality. But radical feminism views women as a class, not as individual human beings. It asserts that men, as a class, have dominated women, creating gender inequality. This inequality is the consequence of a systematic subordination rather than irrational discrimination. Thus, heterosexuality is a social arrangement in which men are dominant and women submissive. For radical feminists, gender is a question of power. Therefore, this school is not satisfied with creating legal categories that promise equal opportunity and fair treatment. It sees these as false categories that mask the entrenched power of the male-dominant structure. What is needed, argue radical feminists, is an abandonment of traditional approaches that take maleness as their reference point: sexual equality must be constructed on the basis of woman's difference from man, not a mere accommodation of that difference.
Radical feminists have targeted sexual and domestic violence. They view pornography as an instrument of sexual subordination rather than as a creative expression deserving First Amendment protection. In the 1980s law professor catharine a. mackinnon and writer Andrea Dworkin proposed that women be permitted to sue pornographers for damages under civil rights laws. Though their viewpoint has not been accepted by the U.S. courts, their work changed the nature of the debate over pornography.
Current Issues in Feminist Jurisprudence
While the different camps of feminists in legal theory have focused upon different agendas, feminist jurisprudence has changed the way legislators and judges look at issues. By asking the "woman question," feminists have identified gender components and gender implications of laws and practices that are claimed to be neutral. Moreover, this school of thought has brought needed changes in the law to protect certain rights of women that have not been protected adequately in the past.
One of the most pressing issues in women's rights is the protection of women from domestic violence. According to some statistics, as many as four million women per year are the victims of domestic violence, and three out of four will be the victims of domestic violence in their lifetimes. Led by women's groups and other supporters outraged by these numbers, Congress enacted the Violence Against Women Act as Title IV of the violent crime control and law enforcement act of 1994 (Pub. L. No. 103-322, 108 Stat. 1796 [codified as amended in scattered sections of 18 and 42 U.S.C.A.]).
The act provides programs for research and education of judges and judicial staff members geared to enhance their knowledge and awareness of domestic violence and sexual assault. Moreover, it funds police training and shelters for victims of domestic violence, increases penalties for perpetrators of domestic violence and rape, and enhances privacy protection for victims. One of the most controversial aspects of the act was a provision making gender-motivated crimes a violation of federal civil rights law. This provision was struck down as unconstitutional in United States v. Morrison, 529 U.S. 598, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000).
Feminists have remained determined to provide greater protection for women against domestic and other violence. Feminist jurisprudence has also focused on eliminating sexual harassment in the workplace, another issue that has caused a major debate in the United States. Sexual harassment, which includes unwanted sexual advances and requests for sexual favors, as well as verbal and physical conduct of a sexual nature that tends to create hostile or offensive work environment, has been a major issue in women's rights because of the effect it has upon women in the workplace. Persons, usually women, who are the victims of sexual harassment may sue under Title VII of the civil rights act of 1964, 42 U.S.C.A. § 2000e.
Feminist advocates support a broad interpretation of the types of advances that constitute sexual harassment. To many feminists, sexual harassment represents the domination men seek to exert over women and should be strictly prohibited. The issue has caused controversy because in some cases it is difficult to determine whether sexual advances are welcomed or not. Moreover, some cases have arisen because an employer or supervisor has told a dirty joke or displayed a sexually explicit photograph to a female employee. Women's groups maintain that sexual harassment laws should be liberally construed, even in these types of cases.
With most law schools teaching the subject, feminist legal analysis holds a significant place in U.S. law and legal thought. Several prominent U.S. law schools, including those at Yale University and the University of California at Berkeley, produce scholarly journals devoted specifically to feminist legal theory. Commentary by feminist legal analysts is commonplace in U.S. media, and the views of many feminist scholars are sought when new laws are considered and drafted. Although feminists point out that much work remains to ensure equality among men and women, the work of these individuals has sparked revolutionary change in the U.S. legal system.
Becker, Mary, Cynthia G. Bowman, and Morrison Torrey. 1994. Feminist Jurisprudence: Taking Rights Seriously. St. Paul, Minn.: West.
Hayman, Robert L., and Nancy Levit. 1995. Jurisprudence. St. Paul, Minn.: West.
Jackson, Stevi, and Jackie Jones. 1998. Contemporary Feminist Theories. New York: New York Univ. Press.
Taylor, Betty W., et al. 1999. Feminist Jurisprudence, Women and the Law: Critical Essays, Research Agenda, and Bibliography. Littleton, Colo.: Fred B. Rothman.