FEMINIST LEGAL THEORY
Feminist legal theory is another intellectual movement of considerable significance and impact. It is concerned with issues that are central to a broader intellectual and political feminist movement: sex-based equality at the work place, reproductive rights, domestic violence, sexual harassment, sexual preferences, and rape, just to mention a few (Chamallas, 2012; Levit and Verchick, 2016). It draws from the experiences of women and from critical perspectives developed in other disciplines in analyzing the relationship between law and gender (Greenberg et al., 2008; Heinzelman, 2010). Unlike critical legal studies, which started in elite law schools and were inspired predominantly by notions of what may be considered contemporary Marxism, feminist legal theory emerged against the backdrop of mass political movements that arose to confront political backlashes for women (Rhode, 1991). These backlashes included the defeat of the Equal Rights Amendment, setbacks in abortion rights, same-sex marriage obstacles, continued sexual subordination and exploitation in the profession of law, and the general prevalence of sexism in most walks of life.
A dominant tendency in feminist legal theory is to regard men and patriarchy as the major source of women’s inequality and other problems (Lorber, 2009; Wing, 2003). Society is viewed as basically patriarchal, organized and dominated by men, and, as a result, not very hospitable to women. Not surprisingly, proponents of the theory consider it one of the most crucial challenges to contemporary law and legal institutions.
There are at least three predominant, although by no means mutually exclusive, themes in feminist legal literature (Moran, 2006). The first deals with women’s struggle for equality in a male-dominated legal profession and in the broader society. Feminists challenge legal claims of fairness and the impartiality of law in dealing with women (Grana, 2009). The argument is that law historically helped men maintain their own power and to keep women in their place.
In the second broad theme of feminist legal scholarship, the argument of male bias is extended to include practically every feature of law. The law, according to this theme, is a reflection of a typical male culture, a masculine way of doing things. Law, therefore, is corrupted for women by its inherent masculinity. The task feminists face is to come up with a completely new law for women. Such law should be devoid of norms and characteristics that reinforce male prerogatives and female powerlessness about gender roles and private intentions. For example, the male legal culture dismisses or trivializes many problems that women face, such as sexual harassment and date rape (Horvath and Brown, 2009).
The third dominant theme challenges the very concepts law invokes to support its contention that it is a just and fair institution. Contrary to professed notions, law is not value-neutral, objective, rational, dispassionate, and consistent. This is because law defines those concepts in a typically masculine way, ignoring or devaluing the qualities associated with the experience of women. Essentially, the problem is that law claims to be neutral in relation to the sexes (and other social categories); yet, the very way it argues for its neutrality is gender-biased. The particular style of maleness can best be illustrated by the concept of “rational person,” a mythical legal subject who is coherent, rational, acts on his free will, and in ordinary circumstances can be held fully accountable for his actions (Naffine, 1990).
Feminists rely on feminist legal methods to advance their arguments (Jarviluoma et al., 2003; Kleinman, 2007). They contend that without understanding feminist methods, law will not be perceived as legitimate or “correct.” These methods, although not unique to feminists, seek to reveal features of a legal concern that more traditional approaches tend to ignore or suppress. There are three such basic methods (Bartlett, 1991).
One method asks the woman question, which is designed to probe into the gender implications of a social practice or rule. Asking the woman question compensates for law’s failure to take into account experiences and values that are more typical of women than of men. Nowadays, feminists ask the woman question in many areas of the law. In the case of rape, they ask why the defense of consent deals with the perspective of the defendant and what he “reasonably” thought the woman wanted rather than the point of view of the woman and what she “reasonably” thought she conveyed to the defendant. The woman question asks why pregnancy is virtually the only medical condition excluded from state employee disability plans, why women cannot be prison guards on the same terms as men, and why conflict between family and work responsibilities is considered a private matter for women to resolve rather than a public concern involving the restructuring of the workplace. Essentially, the woman question shows how the predicament of women reflects the organization of society rather than the inherent characteristics of women.
Another method, feminist practical reasoning, deals with features not usually reflected in legal doctrine. The underlying assumption is that women approach the reasoning process differently from men, that women are more sensitive to situation and context, and that they tend to resist universal generalizations and principles. An example is minors’ access to abortion. The notion of family autonomy seems to justify the legal requirement that a minor obtain parental consent before abortion. The young woman is immature, and parents are best suited to help her to decide whether or not to terminate her pregnancy. However, the often tragic and wrenching circumstances under which a minor may want to avoid notifying a parent about a pregnancy or abortion demonstrate the practical difficulties of the matter. Often, minors are traumatized by their parents’ knowledge of their pregnancy. Women may be compelled to continue their pregnancy and subsequently give up the child for adoption, which is contrary to their intentions. Or they may be subjected to various forms of parental rejection or manipulation. Feminist practical reasoning challenges the legitimacy of the norms of those who claim to speak on behalf of the community, and they seek to identify perspectives not represented in the dominant monolithic male culture.
A third method, consciousness-raising, provides an opportunity to test the validity of legal principles through personal experiences of those who have been affected by those principles. The idea is to explore common experiences and patterns that come about from shared recollection of life events. It enables feminists to draw insights from their own experiences and those of other women and to use these newly formed insights to challenge dominant versions of social reality. In consciousness-raising sessions, women share their experiences publicly as victims of marital rape, pornography, sexual harassment on the job, or other forms of oppression or exclusion based on sexual orientation (Lloyd et al., 2010; Williams, 2004), in an attempt to alter public perception of the meaning to women of practices that the dominant male culture considers harmless or flattering.
Critics of feminist legal theory make at least three arguments. First, not all men benefit equally from legal sexism. In particular, low-income men, men of color, and gay and bisexual men have historically not enjoyed the legal rights and benefits that middle- and upper-class men have enjoyed (Cante, 2010; Keen and Goldberg, 1998). Second, feminist legal theorists have not been consistent regarding whether women should be treated the same as men, or instead women receive special treatment because of basic sex differences (Williams, 1991). Third, in calling attention to rape and sexual assault, sexual harassment, and other problems women face, feminist legal theory has sometimes gone too far in depicting women as utterly helpless and defenseless (Badinter, 2006). Despite these criticisms, feminist legal theory represents an important intellectual movement challenging traditional legal doctrine, and it has paved the way for truly significant victories for women in the legal arena during the past few decades (Chamallas, 2012; Levit and Verchick, 2016).