During the course of my Law degree, I studied Sex, Gender and Law, Reproduction Law, Family Law and Jurisprudence. All of these units touched upon themes central to Feminist Legal Studies (FLS). FLS can be complicated. That’s why I’ve written this summary to help you navigate FemLegal with ease!
Feminist Legal Theory (FLT)
FLT is a combination of:
Why does sex/gender not feature in traditional jurisprudence?
Traditionally, jurists have argued that gender is irrelevant to the study of jurisprudence. This (arguably flawed) approach is primarily due to a misplaced focus on three principles: neutrality, rationality and objectivity.
FLT – Key Problems with the Law:
1. Legal liberalism does not work.
A key component of legal liberalism is the notion that individuals should be free from state inference. As identified by feminist legal scholars, this is problematic for many women who are victims of domestic abuse. In essence, the legal liberalist model does not work for the most vulnerable in society because it assumes that everyone interacts on a level playing field. This is often not the case for women in an abusive relationship. State intervention is necessary to prevent this violence occurring in the first place and to empower victims.
2. The ‘public’ and ‘private’ sphere dichotomy enables oppression.
Our legal system is premised on the idea that the law should seldom interfere in the private sphere. Consequently, the law often fails to intervene in matters such as domestic or child abuse. This is becoming increasingly problematic due to the shrinking of the public sphere. Without making this too political, the ideology of a “small State” aligns with right-wing politics, which tends to focus on attaining a minimalist public sphere (often leading to minimal funding for public services). Unfortunately, this leads to the needs of many women’s being overlooked by the law.
3. The law is premised on the idea that everyone possesses individual autonomy and is responsible for their own actions. This is often not the case.
The law’s perception of autonomy is unrealistic. Not only are people of all genders subject to human frailty, meaning that it is likely they will need caring for by other individuals at some point in their lives, but this concept of autonomy is inherently masculine and fails to reflect women’s experiences.
Two factors render women less legally ‘autonomous’ than men. Firstly, the physical differences between men and women can make women more vulnerable to violence and unable to just ‘walk away’ from violent relationships. Secondly, unfortunately women are still more likely than men to find themselves financially dependent on their partner. This is because more often than not the man assumes the role of the breadwinner whilst the women remains the primary caregiver. This can make them vulnerable to coercive control and economic abuse. Combined, these factors render women less “autonomous” than men.
Cumulatively, these three factors ensure that the law is a blunt tool for many women.
Equality: Formal or Substantive?
Underpinning FLT is the central theme of equality. However, many feminists disagree on how to achieve this.
Formal Equality: Treating everybody in the same manner, no matter what. Liberal Feminists often support this method of achieving equality between men and women. They believe that sexual difference is irrelevant to legal doctrine.
Substantive Equality: Recognising the differences individuals possess and catering to those differences. This may mean prioritising some groups above others (e.g. prioritising the specific needs of women).
The Key Debate: Sameness or Difference?
Similarly, feminist legal scholars vary in their approach to achieving justice for women:
Which do you think is most convincing?
A common pitfall of feminist legal theory is gender essentialism.
Gender essentialism is where women are talked about as one homogenous group. The problem with this, is that other prejudices such as race, class, sexuality, disability etc. are often ignored.
This is where intersectional theory comes in. Kimberle Crenshaw describes intersectionality as analogous to traffic at an intersection. If an accident occurs, the cause of that accident may be from cars travelling in numerous directions. Similarly, if a black woman faces injustice, this may be due to sex discrimination or race discrimination or both. Thus, it is important to take a holistic approach to feminist legal studies.
And there you have it – a short summary of FLT and some of the themes it aims to address! Thanks for reading :)