feminist jurisprudence: an overview

Feminist jurisprudence is a philosophy of law based on the political, economic, and social equality of sexes. As a field of legal scholarship, feminist jurisprudence began in 1960s. It now holds a significant place in U.S. law and legal thought and influences many debates on sexual and domestic violence, inequality in the workplace, and gender based discrimination. Through various approaches, feminists have identified gendered components and gendered implications of seemingly neutral laws and practices. Laws affecting employment, divorce, reproductive rights, rape, domestic violence, and sexual harassment have all benefited from the analysis and insight of feminist jurisprudence.

Feminists believe that history was written from a male point of view and does not reflect women's role in making history and structuring society. Male-written history has created a bias in the concepts of human nature, gender potential, and social arrangements. The language, logic, and structure of the law are male created and reinforce male values. By presenting male's characteristics as a "norm" and females characteristics as deviation from the "norm" the prevailing conceptions of law reinforce and perpetuate patriarchal power. Feminists challenge the belief that the biological make-up of men and women is so different that certain behavior can be attributed on the basis of sex. Gender, feminists say, is created socially, not biologically. Sex determines such matters as physical appearance and reproductive capacity, but not psychological, moral, or social traits.

Though feminists share common commitments to equality between men and women, feminist jurisprudence is not uniform. There are three major schools of thought within feminist jurisprudence. Traditional, or liberal, feminism asserts that women are just as rational as men and therefore should have equal opportunity to make their own choices. Liberal feminists challenge the assumption of male authority and seek to erase gender based distinctions recognized by law thus enabling women to compete in the marketplace.

Another school of feminist legal thought, cultural feminists, focuses on the differences between men and women and celebrates those differences. Following the research of psychologist Carol Gilligan, this group of thinkers asserts that women emphasize the importance of relationships, contexts, and reconciliation of conflicting interpersonal positions,whereas men emphasize abstract principles of rights and logic. The goal of this school is to give equal recognition to women's moral voice of caring and communal values.

Like the liberal feminist school of thought, radical or dominant feminism focuses on inequality. It asserts that men, as a class, have dominated women as a class, creating gender inequality. For radical feminists gender is a question of power. Radical feminists urge us to abandon traditional approaches that take maleness as their reference point. They argue that sexual equality must be constructed on the basis of woman's difference from man and not be a mere accommodation of that difference.

menu of sources

Federal Material

U.S. Constitution:

• 19th Amendment (http://www.law.cornell.edu/constitution/constitution.amendmentxix.html)
• 14th Amendment (http://www.law.cornell.edu/constitution/constitution.amendmentxiv.html)
• Proposed Equal Rights Amendment (Not Ratified) (http://www.equalrightsamendment.org/overview.htm)

Federal Judicial Decisions

• U.S. Supreme Court:
  • Recent Women's Rights Decisions (http://supct.law.cornell.edu/supct/search/index.html?query=((women+or+woman)+and+rights)+or+abortion)
  • Roe v. Wade (http://www.law.cornell.edu/supct-cgi/get-us-cite/410+113)
  • Other Landmark Decisions Concerning Gender (http://www.law.cornell.edu/supct/search/index.html?query=gender&scope=onlyhistoric)

Other References

Key Internet Sources

• A list of Feminist Resources on the Web (http://www.feminist.com/resources/)
• Women's Studies (http://sunsite.unc.edu/cheryb/women/otherprogs.html)
• Herspace - Law (http://www.herspace.com/)
• History of the ACLU and Women's Rights (http://www.aclu.org/womensrights/gen/13150res20020312.html)

Useful Offnet (or Subscription - $) Sources

• Good Starting Point in Print:
• Martha Minow, Making All the Difference (Cornell, 1990).
• Patricia Williams, The Alchemy of Race and Rights (Harvard, 1991)
• LII Downloads (http://www.law.cornell.edu/disks96.html)

other topics

Category: Legal Theory