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Feminism: Notes

A wide ranging jurisprudential topic, drawn from various areas, including law, literature,
society, politics, intermingles widely with CRT, and with gay and lesbian legal studies.
The basic premise: Society has been dominated by men from time immemorial; custom
itself dictated the suppression of women. It fights against the concept of a patriarchal
society.
Main culprit: the white, middle class male
The first printed and established work on Feminism, The second sex, was published in
1949 by Simone De Beauvoir, and her theme was established right at the beginning,
Women are the OTHER sex
Robin West, a cultural feminist,women have stunted lives, even basic biology starts
with the description of a man.
Lucinda Finley: Law, since its inception, has had an objective quality; this objectivity
silences the voice of womanradical feminists say that we are DIFFERENT, NOT
EQUAL, they are against neutrality in Law, they demand full female representation..a
family without a man IS a family!!!
Feminism is not just one concerted movement, it has many different types and
viewpoints, the following are summaries of the similarities between the different theories.
1. Feminist theories point out how the law defines male/female, to the advantage of
the male sex and the subjugation of women.
2. They show why the male/female dichotomy should/should not be reflected in any
area of law.
3. They make examples of real women leading real lives as the basis of their legal
scholarship.
4. they idealise womens self-determination and freedom (drawing upon liberalism
and deciding whether this is a critique of liberalism)
5. Their aim is to bring about social change, (a Marxist tinge here??)
So, main themes are domination, emancipation and the meaning of humanity added to
which is the woman question.
Deconstruction and Reconstruction:
In the 1960s and 70s, the wave of feminism grew to an appreciable degree, and sought to
demolish the man made principles of universality and political and legal theory. The
deconstruction process involved an analysis of classic feminism, and the patriarchal basis
of society; the aim was to remove preconceived ideas, especially of the liberal canon of
political/legal theory.
Typical tactics of Feminist writing:
Highlighting Womens Injuries and Actual Harm, see quote in S guide from Robin
West. Area deals with violence against women, rape, marital problems, and
feminists seek to portray the inadequate understanding of violence, as expressed
in Law and societyRvR, the disparity in the meaning of violence by men and
women.
A critique of the EPISTEMOLOGY of jurisprudence, and of the relationship of
jurisprudence to the wider philosophical themes of Western society.

objective science has been the term used by men to define and assert male
thought feminists say this is biased, not objective, see quote from Bottomley S
guide.
Asking the woman question: Ideals of Western Rationality devalue contextual
female modes of thought, and the emotions that are part and parcel of reason
womens perspectives have been systematically ignored.
Kohlberg came up with a 5 stage theory that separates reason from emotion, and says
that women cannot ascend beyond level 3 because they are irrational. This theory was
attacked by Carol Gilligan, fierce retort she emphasises womens need to care, to
have interpersonal relationships, she criticised Kohlbergs need for formal, impartial
and universal criteria.
Gilligan says that the moral reasoning adopted by women is based on nurturing, care,
compassion v autonomy, etc
Being an adult is based on this, not on strict adherence to principle.
The male standard is a form of false consciousness; Gilligan and MacKinnon are
alike in saying that when women try to adopt male standards they are giving up what
is essential to them, their femininity. Quote MacKinnon from Guide.
Sara you have to explain this one, I have nothing in my note :) All I have is an
analysis of Williams: Diary of a Law Professor: Williams is using her own
experience as a lawyer to highlight the injustices of reification and subject
position. When Kate, the slave girl, is discussed not as a human being but as a
product which may have redhibitory vices, Williams invokes thought on
whether she is stupid or crazy to feel sorry for Kate, and upset that things
could ever have been that way.
The French Revolution: Held to be the birthmark of modern liberal thought.
The freedoms we possess today are the freedoms that the French people got in the 1700s,
liberte, egalite, fraternite.
Anthony Giddens: Claims that we live in a world of massive social transformations. In
the last 2 centuries, we have seen social changes unlike the world has ever seen before,
and at their core lie 2 revolutions, the French in 1789, and the American in 1776. Both
were led by secular ideals of universal liberty and equality.
Anthony Arlblaster: Agrees with Giddens, adds that the 2 revolutions are the basis of
modern liberalism. Without the French Revolution, the liberal and radical ideals of the
Enlightenment would have remained essentially ideas, after the FR, they became
realities with a huge impact on global and political life.
The position of women was ambiguous during the FR, though the following steps were
taken:
1. Creation of divorce Laws: Women could share custody and equal rights relating to
their kids after divorce, but had to obey husband during marriage (the law of 20
Sept 1792). Napoleon Bonaparte: wife has to live with husband and follow him
everywhere.
Flora Tristan: The Rev should have been taken further to encompass the rights of
women as well. See Guide for her voyage to Peru

2. Inheritance Laws changed, boys and girls given equal rights of inheritance during
the FR.
3. Women not granted equal status in Political Affairs: Women confined to home, no
representation, and the old patriarchal views were still followed. The fact that the
Revolution did not change this state of affairs was ignored by both Arlblaster and
Giddens.
Scott and Paterman argue that the FR did sow the seeds of Liberalism, and Lynn
Hunt agrees.
Historical Development of Feminism: See Guide for Enlightenment Feminist Mary
Wollstonecroft.
First Wave: the Suffragette Movement in the early 1900s, they wanted Equality and
the vote based on the sameness principle.
Second Wave: the 1960s and 70s saw the rise of female lawyers and activists, they
began with fighting for equality, but soon other issues arose.
Third Wave: The first wave was in conformity with liberalism, but then the problem
of the male standard arose, and feminists risked returning to the old argument of
natural subjugation, according to Lacey. She proposes a new third wave, of asking
the WOMAN QUESTION, does gender play a role in legal and social Relations, or
vice versa?
FEMINIST VIEWS OF THE STATE
The Liberal view:
To uphold the Rule of Law, to maintain Equality among all. Women demanded the
sameness approach, they wanted the same representation and treatment in every
strata of life, and realised that the law is a vital tool to be used for the reformation and
restructuring of the law itself, to enhance the position of women.
The flaw: Women would have to be like men! They didnt want that, they wanted to
maintain the feminine standard in the law, the way they were going, there was a male
standard being imposed. Womens experiences, childbirth etc were ignored, or were
the subject of bias.
Cultural Feminism:
The ethic of care: Genuine differences exist between men and women, and they
should be celebrated. Womens moral perceptions are as valid and reasonable as
mens.
Carol Gilligan: Criticised Kohlbergs 5 stage theory and she identified 2 conflicting
moral codes
(a) The Feminine Mode: based on caring and nurturing, this is a womans nature, also
called the ethic of care. Interpersonal relationships are just as important as
autonomous, empirical thought. Thus, according to Gilligan, women place great

emphasis on contextual thought, and ion the concrete effects of their decisions on
other people. See quote pg 257 Guide.
(b) Masculine Mode: the ethic of objective and impartial thinking, no room for
emotions... the ethic of justice, according to Kohlberg, justice is rooted in this
form of morality and in these ideals.
Seyla Benhabib: another feminist, disagrees with this, says that interpersonal
experiences should not be undermined.
End Result?? The Masculine Mode needs to incorporate the Feminine, and its importance
needs recognition.
Gilligan has been criticised, but was defended by Robin West, who said that the
disadvantage women face in liberal legal jurisprudence ought to be removed and replaced
with a feminist jurisprudence.
Radical Feminism: can be called rabid feminism Catharine MacKinnon is the main
protagonist, she says that men and women are hierarchically socially constructed to
benefit men and repress women. She has compared Marxism to Feminism, by showing
how women undermine their most important asset, their sexuality, and let it be taken
away from them. This is FALSE CONSCIOUSNESS, and reification. Analogy to
workers in Marxism.
The gender system is a power system; the ideas of difference and equality are outdated.
She has been criticised for portraying women as passive victims, and for trying to create
one feminist standardalso for the sexual invasion theory.
Black and Ethnic Minority Feminists:
Ethnic minorities are ignored even by feminists as a general rule. The Universalism v
Cultural Relativism debate brought in here, most feminists criticised for being Western
Imperialists in mufti.
Marianna Valverde: The difference between a female coffee picker in Brazil and a white
feminist sipping coffee is the picture of modern feminist thought.
Women of colour are usually the hired help in white households.
Some African American Feminists have started to raise their voices, but there is a long
way to go.
Postmodernists and Critical Race theorists have cited Universalism as a degradation of
minority rights; they state the need for a separate sphere of representation.
All these different debates have been criticised because they allegedly weaken the
Feminist Cause. Unity is being compromised.
The Future: The latest studies show that Feminism is in flux again, that the sameness
model is being reborn. Human rights violations and International Law have a part to play
here, and a political as well as a legal solution needs to be found.
Liberal Feminism
Radical Feminism
Cultural Feminism
Not as
Law is rationalised
Ethic of care v Ethic
progressive as
by men, Rhode says
of justice
the others
liberals need to
Women have a
cooperate to make a
Accepts the
different Voice,

rationality and
neutrality of law
as it is
Women are
equal to men
Public issues
matter more. the
vote, pregnancy
etc
Even
pornography is
ok as long as its
consensual
Relationships
viewed as
contractual
Individuality
celebrated, we
are all individual
and autonomous

change
Women are not
equal, they are
better!
Male standards
demolished
Pvt issues were also
important, though
this distinction is
criticised sexual
harassment at home
is private, but on the
street???
Everything from
pornography to
whistling on the
street is anathema to
radicals
Use the state to get
rights
Relationships being
contractual are a
male standard,
relationships are
relationships!!
Individuality itself
should be
celebrated, but not
individual
autonomy, they want
unity

which isnt
appreciated in the
law
By far the most
reasonable attitude
Gilligans points

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