Feminist interventions in the philosophy of law

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Feminist interventions in the philosophy of law concern the examination and reformulation of traditional legal systems in order to better reflect the political, social, and economic concerns of women---which also includes various other minority and ethnic groups. [1] Though it draws heavily from feminist legal theory, feminist interventions in the philosophy of law differs from the more common feminist jurisprudence as it also seeks to explain the justification that a government has in interfering with the lives of its citizenry. [2] Accordingly, then, feminist interventions in legal philosophy specifically addresses the relationship and rationale between a judicial system's exercise of power and its effects on female citizens. While particular views vary greatly, most feminist interventions in the philosophy of law operate under a belief that many contemporary legal systems are predicated on patriarchal notions of masculinity that result in a system of deeply-rooted bias and inequality. [3]

Contents

The rule of law

The rule of law is generally defined as the fundamental principle that both government and its citizens all operate under a system of general and fair rules that are publicly disclosed. [4] In relation to feminism, feminist philosophers of law typically perceive the current iteration of the rule of law as an institution that perpetuates primarily patriarchal norms, or in terms of power relationships that have been primarily been dominated by males. [5] As such, they perceive the current normativity of law as perpetuating male values as the status quo. Though feminists maintain several different positions in terms of how to address these issues, it is almost universally agreed that these patriarchal structures cannot be properly challenged until their underlying biases are fully exposed. [6]

Role of intervention by ideology

As in traditional feminist jurisprudence, feminists hold several competing philosophical positions in regards to ways the law should work to better accommodate women.

Cultural feminism

Cultural feminists contend that the solution to attaining legal equality must come from procedural reform that embraces the differences between men and women. [1] The challenge here derives from acknowledging various differences between men and women without further reinforcing gender stereotypes or promoting sexist practices. [7] As such, the government must intervene insofar as it promotes laws that embrace only the immutable differences between the sexes—such as pregnancy—with the ultimate goal being equal recognition to women's moral voice of caring and communal values. [8] Specifically, whereas women emphasize the importance of relationships and reconciliation of conflicting positions, men emphasize more abstract principles such as rights and logic. [8] Thus, cultural feminists see their intervention into law as a means to achieve balance and reconciliation between the two.

Liberal feminism

Liberal feminists believe women and men possess the same rational capabilities and have no fundamental differences in capability; therefore, they assert that women should have equal opportunity as men to the extent that some liberal feminists believe there should be no legal distinctions between men or women. [8] Accordingly, the law's role, according to the liberal feminist, should strive for the utmost equality between men and women. This is because liberal feminists believe that women have long been denied the same bodily autonomy that has been enjoyed by their male counterparts. [9] Such issues manifest themselves in the form of the debate on whether or not the law ought to legally recognize industries like prostitution as a legitimate entity. [10]

Another noteworthy area in law where parity is specifically desired is in the "standards of reasonableness" that are used in criminal, contract, and tort law, which liberal feminists argue are predicated on masculine assumptions of what is "reasonable". [11] Thus, liberal feminists seek to articulate how this masculine norm accordingly affects those aspects of law in regards to judging women or other feminine groups as "reasonable" in trial.

Furthermore, liberal feminists also place a particular value on intersectionality theories. [12] The primary reason for this growing movement is that keeping categories such as race and sex separate often made such persons "invisible" by making it more difficult to exact equality for persons who were oppressed for their gender, race, or class. [13]

Dominant feminism

Dominant, or radical, feminists maintain that there are differences between men and women, but these differences do not derive from innate differences between men and women; rather, such differences come as a result of women being subjugated by men in larger society. [8] As such, it is not merely enough to embrace the differences between men and women: sexual equality under the rule of law must be established upon a female paradigm that cannot simply be an addition to the current paradigm of masculinity. [14] In terms of philosophical interventions, dominant feminists contend that a systemic reevaluation must take place within any legal system that operates to subjugate women. Moreover, the law must be constructed in such a way that it does not work to a disparate effect of either sex. [15]

Types of intervention in the United States

Bodily autonomy

Feminist interventions concerning women's issues of bodily autonomy cover a wide range of legal topics, such as abortion, prostitution, and rape.

Abortion

Several American legal feminists have expressed approval of the Supreme Court's 1973 decision in Roe v. Wade , which guaranteed the right to have an abortion in the United States. Lucinda Peach, for example, argued in her 2002 essay that controlling one's own body was a necessary condition for any other freedom. [16] Other scholars, though generally accepting of the Court's decision, have nevertheless argued that the Court's opinion was based upon "paternalistic attitudes" regarding women. [17]

Yet, other feminist legal commentators have acknowledged the difficulties associated with the legalization of abortion in the United States. For example, certain feminists concerned with the rights of the disabled argue that abortion decisions that are based on inadequate or biased information about disabilities are inherently problematic. [1] Likewise, certain feminists of color are more concerned with whether some abortion policies themselves are racially biased, implicitly or even explicitly. [18] Some scholars have even gone as far as to suggest that Roe v. Wade "was not a victory for women but a victory for the medical profession; it gave physicians, not women, the right to make abortion decisions." [19]

Prostitution

Some legal feminists have argued that markets which cater specifically to sexual services should be banned by the state. This is because such markets are viewed as exploitative of marginalized classes of people and pose numerous risks to its workers. [20] In her essay published in 2010, Debrah Satz argued that feminist interventions in the law should be opposed to the legalization of prostitution, as prostitution often employs people from stigmatized or disempowered social classes, fails to create conditions for informed consent, endangers the health of its participants, and reinforces invidious stereotypes about women or other groups. [21] Similarly, Carole Pateman has argued that, because people's bodies and sexual capacities are an integral part of their identity, the woman who works as a prostitute sells her womanhood and, consequently, her very self. [22]

Martha Nussbaum—who is a Professor of Law and Ethics at the University of Chicago—has devoted several of her publications to explaining why the social stigma associated with sex work is irrational. As she believes it, feminists should oppose the stigmatization of sex work, rather than oppose sex work for its contribution to the stigmatization of women. [23] Furthermore, Nussbaum speculated that the problems associated with prostitution are reflective of many other social practices, and that these social practices are not inherent to prostitution but are often a function of the prostitute's working conditions and treatment by others. [23]

Related Research Articles

Feminism is a range of socio-political movements and ideologies that aim to define and establish the political, economic, personal, and social equality of the sexes. Feminism holds the position that societies prioritize the male point of view and that women are treated unjustly in these societies. Efforts to change this include fighting against gender stereotypes and improving educational, professional, and interpersonal opportunities and outcomes for women.

Radical feminism is a perspective within feminism that calls for a radical re-ordering of society in which male supremacy is eliminated in all social and economic contexts, while recognizing that women's experiences are also affected by other social divisions such as in race, class, and sexual orientation. The ideology and movement emerged in the 1960s.

Difference feminism is a term developed during the equality-versus-difference debate in American feminism to describe the view that men and women are different, but that no value judgment can be placed upon them and both sexes have equal moral status as persons.

Liberal feminism, also called mainstream feminism, is a main branch of feminism defined by its focus on achieving gender equality through political and legal reform within the framework of liberal democracy and informed by a human rights perspective. It is often considered culturally progressive and economically center-right to center-left. As the oldest of the "Big Three" schools of feminist thought, liberal feminism has its roots in 19th century first-wave feminism seeking recognition of women as equal citizens, focusing particularly on women's suffrage and access to education, the effort associated with 19th century liberalism and progressivism. Liberal feminism "works within the structure of mainstream society to integrate women into that structure." Liberal feminism places great emphasis on the public world, especially laws, political institutions, education and working life, and considers the denial of equal legal and political rights as the main obstacle to equality. As such liberal feminists have worked to bring women into the political mainstream. Liberal feminism is inclusive and socially progressive, while broadly supporting existing institutions of power in liberal democratic societies, and is associated with centrism and reformism. Liberal feminism tends to be adopted by white middle-class women who do not disagree with the current social structure; Zhang and Rios found that liberal feminism with its focus on equality is viewed as the dominant and "default" form of feminism. Liberal feminism actively supports men's involvement in feminism and both women and men have always been active participants in the movement; progressive men had an important role alongside women in the struggle for equal political rights since the movement was launched in the 19th century.

<span class="mw-page-title-main">Catharine A. MacKinnon</span> American feminist scholar and legal activist

Catharine Alice MacKinnon is an American feminist legal scholar, activist, and author. She is the Elizabeth A. Long Professor of Law at the University of Michigan Law School, where she has been tenured since 1990, and the James Barr Ames Visiting Professor of Law at Harvard Law School. From 2008 to 2012, she was the special gender adviser to the Prosecutor of the International Criminal Court.

Feminist legal theory, also known as feminist jurisprudence, is based on the belief that the law has been fundamental in women's historical subordination. Feminist jurisprudence the philosophy of law is based on the political, economic, and social inequality of the sexes and feminist legal theory is the encompassment of law and theory connected.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. Feminist legal theory was directly created to recognize and combat the legal system built primarily by the and for male intentions, often forgetting important components and experiences women and marginalized communities face. The law perpetuates a male valued system at the expense of female values. Through making sure all people have access to participate in legal systems as professionals to combating cases in constitutional and discriminatory law, feminist legal theory is utilized for it all.

Susan Moller Okin was a liberal feminist political philosopher and author.

Drucilla Cornell, was an American philosopher and feminist theorist, whose work has been influential in political and legal philosophy, ethics, deconstruction, critical theory, and feminism. Cornell was an emerita Professor of Political Science, Comparative Literature and Women's & Gender Studies at Rutgers University the State University of New Jersey; Professor Extraordinaire at the University of Pretoria, South Africa; and a visiting professor at Birkbeck College, University of London. She also taught for many years on the law faculties of the University of Pennsylvania and of Cardozo Law School of Yeshiva University.

Martha Albertson Fineman is an American jurist, legal theorist and political philosopher. She is Robert W. Woodruff Professor of Law at Emory University School of Law. Fineman was previously the first holder of the Dorothea S. Clarke Professor of Feminist Jurisprudence at Cornell Law School. She held the Maurice T. Moore Professorship at Columbia Law School.

Equity feminism is a form of liberal feminism that advocates the state's equal treatment of women and men without challenging inequalities perpetuated by employers, educational and religious institutions, and other elements of society. The concept has been discussed since the 1980s. Equity feminism has been defined and classified as a kind of classically liberal or libertarian feminism, in contrast with social feminism, difference feminism, gender feminism, and equality feminism.

Feminist views on pornography range from total condemnation of the medium as an inherent form of violence against women to an embracing of some forms as a medium of feminist expression. This debate reflects larger concerns surrounding feminist views on sexuality, and is closely related to those on prostitution, BDSM, and other issues. Pornography has been one of the most divisive issues in feminism, particularly in Anglophone (English-speaking) countries. This division was exemplified in the feminist sex wars of the 1980s, which pitted anti-pornography activists against pro-pornography ones.

Feminism is one theory of the political, economic, and social equality of the sexes, even though many feminist movements and ideologies differ on exactly which claims and strategies are vital and justifiable to achieve equality.

Feminist political theory is an area of philosophy that focuses on understanding and critiquing the way political philosophy is usually construed and on articulating how political theory might be reconstructed in a way that advances feminist concerns. Feminist political theory combines aspects of both feminist theory and political theory in order to take a feminist approach to traditional questions within political philosophy.

<i>Toward a Feminist Theory of the State</i> 1989 book by Catharine MacKinnon

Toward a Feminist Theory of the State is a 1989 book about feminist political theory by the legal scholar Catharine MacKinnon.

<span class="mw-page-title-main">Ann C. Scales</span> American lawyer

Ann C. Scales was an American lawyer, activist, and law professor at the University of Denver Sturm College of Law from 2003 to 2012, where she taught in constitutional law, sexual orientation and the law, civil procedure and torts.

Feminist views on sexuality widely vary. Many feminists, particularly radical feminists, are highly critical of what they see as sexual objectification and sexual exploitation in the media and society. Radical feminists are often opposed to the sex industry, including opposition to prostitution and pornography. Other feminists define themselves as sex-positive feminists and believe that a wide variety of expressions of female sexuality can be empowering to women when they are freely chosen. Some feminists support efforts to reform the sex industry to become less sexist, such as the feminist pornography movement.

Laurie J. Shrage is an American political and moral philosopher whose analysis of the agendas for social change advanced by gender and sexual dissidents has been influential.

Janet Elizabeth Halley is an American legal scholar who is the Eli Goldston Professor of Law at Harvard Law School. Her work is influenced by critical legal studies, legal realism and postmodernism.

Linda McClain is the Robert B. Kent Professor of Law at Boston University School of Law, and was previously the Rivkin Radler Distinguished Professor of Law at Hofstra Law School. McClain's work focuses on family law, sex equality, and feminist legal theory. McClain has written extensively on topics related to family, gender, and constitutional issues.

<span class="mw-page-title-main">Feminist views on the sex industry</span>

Feminist perspectives on sex markets vary widely, depending on the type of feminism being applied. The sex market is defined as the system of supply and demand which is generated by the existence of sex work as a commodity. The sex market can further be segregated into the direct sex market, which mainly applies to prostitution, and the indirect sex market, which applies to sexual businesses which provide services such as lap dancing. The final component of the sex market lies in the production and selling of pornography. With the distinctions between feminist perspectives, there are many documented instances from feminist authors of both explicit and implied feminist standpoints that provide coverage on the sex market in regards to both "autonomous" and "non-autonomous" sex trades. The quotations are added since some feminist ideologies believe the commodification of women's bodies is never autonomous and therefore subversive or misleading by terminology.

References

  1. 1 2 3 Francis, Leslie; Smith, Patricia (2017). Zalta, Edward N. (ed.). The Stanford Encyclopedia of Philosophy (Winter 2017 ed.). Metaphysics Research Lab, Stanford University.
  2. ↑ Moseley, Alexander. "Interventionism". Internet Encyclopedia of Philosophy.
  3. ↑ Bartlett, Katharine (1990). "Feminist Legal Methods". Harvard Law Review. 103 (4): 829–88. doi:10.2307/1341478. JSTOR   1341478.
  4. ↑ "the definition of rule of law". Dictionary.com. Retrieved 2018-05-14.
  5. ↑ Smith, P., 2005. “Four Themes in Feminist Legal Theory: Difference, Dominance, Domesticity & Denial,” in M. Golding and W. Edmundson, Philosophy of Law & Legal Theory, Oxford: Blackwell Publishing, pp. 90–104.
  6. ↑ Mackinnon, Catharine. "Toward a Feminist Theory of the State," Women's Rights Law Reporter vol. 12, no. 3 (Fall 1990): p. 205-208.
  7. ↑ Minow, M., 1991. Making All the Difference: Inclusion, Exclusion & American Law, Cambridge: Harvard University Press.
  8. 1 2 3 4 “Feminist Jurisprudence.” LII / Legal Information Institute, Cornell Law School, 16 Mar. 2018, www.law.cornell.edu/wex/feminist_jurisprudence.
  9. ↑ Rhode, D. and C. Sanger (eds.), 2005. Gender and Rights, New York: International Library of Essays on Rights.
  10. ↑ Dempsey, M.M., 2010. “Sex Trafficking and Criminalization: In Defense of Feminist Abolitionism,” University of Pennsylvania Law Review, 158: 1729–1778
  11. ↑ Chamallas, M. and J. Wriggins, 2010. The Measure of Injury: Race, Gender, and Tort Law, New York: New York University Press.
  12. ↑ Crenshaw, K., with N. Gotanda, G. Peller and K. Thomas (eds.), 1996. Critical Race Theory: Key Writing that Formed the Movement, New York: New Press
  13. ↑ Haslanger, S., 2012. Resisting Reality, New York: Oxford University Press.
  14. ↑ MacKinnon, C. A. 1987. Feminism Unmodified. Cambridge, Mass.: Harvard University Press.
  15. ↑ Baer, J. A. 1999. Our Lives before the Law: Constructing a Feminist Jurisprudence. Princeton, NJ: Princeton: University Press.
  16. ↑ Peach, L., 2002. Religious Lawmaking in a Secular State, New York: Oxford University Press.
  17. ↑ Appleton, S.F., 2011. “Reproduction and Regret,” Yale Journal of Law & Feminism, 23: 255–333.
  18. ↑ Francis, L.P. (ed.), 2017. The Oxford Handbook of Reproductive Ethics, Oxford: Oxford University Press.
  19. ↑ Petchesky RP, New York, Longman, 1984. 404 p. (Longman Series in Feminist Theory)
  20. ↑ Shrage, Laurie, "Feminist Perspectives on Sex Markets", The Stanford Encyclopedia of Philosophy (Fall 2016 Edition), Edward N. Zalta (ed.),
  21. ↑ Satz, D., 2010, Why Some Things Should Not Be for Sale: The Moral Limits of Markets, New York: Oxford University Press.
  22. ↑ Pateman, C., 1988, The Sexual Contract, Stanford, CA: Stanford University Press.
  23. 1 2 Nussbaum, M., 1999, Sex and Social Justice, Oxford: Oxford University Press.
  24. 1 2 Harvard Law School (2014-06-23). "Faculty Profiles | Harvard Law School". Hls.harvard.edu. Retrieved 2022-05-03.
  25. 1 2 "Martha Albertson Fineman | Emory University School of Law | Atlanta, GA".
  26. ↑ Polikoff, Nancy D. (2000). "Why Lesbians and Gay Men Should Read Martha Fineman". The Journal of Gender, Social Policy & the Law. 9 (1): 167–176.
  27. ↑ "Kim Lane Scheppele".
  28. ↑ "Hungary's Viktor Orban, the cunning leader who would keep refugees out of Europe | CBC News".
  29. ↑ Scheppele, K. L. 2004. The reasonable woman. Pp. 456–460 in Philosophy of Law, 7th edn., ed. J. Feinberg and J. Coleman. Belmont, Calif.: Wadsworth/Thomson Learning; originally published 1991.
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