18
Feminist Jurisprudence
PATRICIA SMITH
Since the 1980s, a substantial amount of challenging and creative legal scholarship
has come to be known as feminist jurisprudence (see Smith, 1993). The character of
this scholarship is quite diverse. Just as it has been noted that there is not one feminism,
but many, so there is not one feminist legal theory, but many. The question is: what
is feminist jurisprudence and what makes it worth attending to? What (if anything)
do all these divergent views have in common that binds them together and distinguishes them from all other theories? (What makes them all feminist?) Second, what
do they tell us about law? (What makes them jurisprudence?) Third, what is important
about this form of legal analysis? Supposing that there is a distinctively feminist
jurisprudence, why is law in need of it? These questions are derived from the major
objections leveled against feminist jurisprudence, namely: (a) it is not “proper” jurisprudence; (b) it is not distinctively feminist; and (c) it is not philosophically interesting.
These objections challenge the very existence or legitimacy of feminist jurisprudence
as a philosophical discipline. So it is worth considering each question (or objection)
separately.
What makes “feminist jurisprudence” jurisprudence? Since jurisprudence is the
analysis of fundamental legal relations, concepts, and principles, and the feminist legal
theory that identifies itself as jurisprudence is, in fact, engaged in such analysis, the
real question is why there should be any objection to classifying it as jurisprudence? It
is claimed that feminist jurisprudence is a contradiction in terms. Jurisprudence, it is
argued, is supposed to be the neutral analysis of universal legal principles, so given that
feminism is self-interested, it produces a self-interested jurisprudence, which is a contradiction in terms. But this argument is misguided in both of its central premises: (1)
it assumes that feminism is somehow unfairly self-interested, which is false; and (2) it
assumes that jurisprudence is neutral (meaning nonmoral or apolitical), which is also
false.
The feminist answer to (1) is that feminist jurisprudence is no more self-interested
than supposedly universal jurisprudence, which, in fact, is patriarchy masquerading
as the objective analysis of neutral legal principles and concepts. In fact, much feminist
jurisprudence is dedicated to proving that traditional jurisprudence and law are not
neutral or universal, but biased in favor of the dominant culture, at the expense of all
others (see Smith, 1993; Estrich, 2001; MacKinnon, 2006). So this objection to the
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legitimacy of feminist jurisprudence relies on denying or ignoring the central claim of
feminists about the nature of jurisprudence and law. Thus, it embodies a fundamental
misconception about the object of feminist jurisprudence, which is not intended to
reconstruct legal institutions so as to favor women. It is intended to reconstruct legal
institutions so as not to disfavor women. That is, it is intended to eliminate bias against
women. So, while feminism is self-interested, it is self-interested in the sense that selfdefense is self-interested, which is to be interested in promoting justice, not privilege.
Therefore, the assumption that feminism is illegitimately self-interested is false.
As to point (2), that jurisprudence is neutral, this objection relies on a particular
interpretation of what counts as jurisprudence. The idea of jurisprudence in common
usage today can be divided into a broad and a narrow sense. Broadly speaking, jurisprudential theories are political theories which have legal ramifications. For example,
liberal, Marxist, and socialist political theories spawn jurisprudential views (that is,
legal theories) that follow from and reflect their implications. When people talk about
liberal jurisprudence or socialist jurisprudence, that is what they are talking about.
Clearly, this broad sense of jurisprudence does not entail neutrality in its theories. Quite
the contrary.
Much (although not all) feminist jurisprudence is associated with one or more of
these political theories. For example, liberal feminists since Mary Wollstonecraft have
always argued that liberal values should be applied equally to women as in Baer (2004).
Socialist feminists argue that socialist principles should be used to alleviate the oppression of sexism as in Jaggar (1983). Feminist theories often point to the omission of
women or the presence of gender discrimination within the general political theories
with which they are associated. And feminist jurisprudence can be combined with any
number of other political views, such as pragmatism (Williams, 2001), postmodern
critical theory (Cornell, 2007), purely radical (MacKinnon, 1989, 2006), critical race
theory (Crenshaw et al., 1996), post-Colonial feminism (Mirza, 2006), or critical legal
studies (Minow, 1991; Rhode, 1997). There is no single feminist jurisprudence, no
single political view associated with feminism, except feminism itself, which is also a
political view (the view that advocates freedom and justice for women). So, all feminist
theory is political. Its form varies depending on the other theories with which it is
combined. Yet, all these views fit within the broad sense of jurisprudence that informs
all feminist work.
There is also a narrow, technical sense of jurisprudence, however, which is sometimes equated with all jurisprudence. Thus, the legitimacy of the broad sense is sometimes questioned, and that is the ground for denying that feminist jurisprudence is
“really” jurisprudence. It does not fit the narrow sense of jurisprudence. But the narrow
sense of jurisprudence – at least in the form that denies the legitimacy of feminist jurisprudence – is itself open to question.
The narrow sense of jurisprudence has traditionally been concerned with the
question: what is law? Addressing this question, philosophers have focussed on the
concept of law as such, on legal concepts and relations, and legal functions, particularly
legal reasoning. Historically, three major theories were advanced to deal with these
issues.
The oldest, natural law, commonly defined law as a precept of reason promulgated
for the common good by those in authority to do so. Natural law holds, among other
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things, that there is a necessary connection between law and morality, such that an
immoral law is invalid or not binding.
The second view, legal positivism, which became predominant in the nineteenth
century, objected to the natural law view as confusing what law is with what law ought
to be, and attempted to construct a value-neutral definition of its own. Positivists today
generally define law as a system of rules promulgated by authorized procedures, recognized as binding by officials and obeyed by the bulk of the population.
The third theory, legal realism, a twentieth-century development, objected to the
natural law approach as too obscure and metaphysical, and to the positivist approach
as too rigid and abstract. Arguing that law is fundamentally and inescapably political,
the realists defined law roughly as a method of dispute settlement by appeal to the
authority of an office, especially a court; or to put it more succinctly, they claimed that
law is what judges say it is. Proponents of these well-known theories continue to debate
the fundamental nature of law and the appropriate function of jurisprudence to this
day.
Given this history we can see that traditional jurisprudence was not always divided,
but has long been divided into two major subcategories: normative and descriptive
jurisprudence. This division was instituted by John Austin, the nineteenth-century
positivist who dedicated his famous lectures to “determining the province of jurisprudence, properly so called.” According to Austin, the proper domain of jurisprudence
was the descriptive analysis of the positive law, its basic concepts and relations.
Normative analysis of law, he thought, was the proper domain of legislation, not jurisprudence, and the two should not be confused, just as law and morality should not be
confused.
The powerful influence of this view can be seen in the official definition of jurisprudence found today in Black’s Law Dictionary:
that science of law which has for its function to ascertain the principles on which legal
rules are based, so as not only to classify those rules in their proper order … but also
to settle the manner in which doubtful cases should be brought under the appropriate
rules. Jurisprudence is more a formal than a material science. It has no direct concern with
questions of moral or political policy, for they fall under the province of ethics and
legislation.
Notice that this definition conveniently settles the long and continuing controversy
between positivists and natural law theorists, by making positivism the only true jurisprudence. Unfortunately, philosophical questions are not often answered so easily, and
presumably those who find natural law insightful will not have their questions answered
by Black’s Law Dictionary. Nevertheless, the dictionary entry does show the power of
positivist influence in American legal thought, as well as the problematic nature of the
approach taken by Austin to define natural law out of existence. And it is precisely this
view which provides the grounding for the objection that feminism, not being neutral,
is contradictory to jurisprudence.
According to Black’s Law Dictionary, natural law theory is not jurisprudence (and
legal realism is not jurisprudence either), so perhaps feminists should not be disturbed
if their theory is not considered to be jurisprudence for the same reasons. But the impor-
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tant point is that Black’s Law Dictionary, in its attempt to be neutral, is blind to its own
bias against all theories but one, which it assumes by adopting a positivist definition of
what qualifies as jurisprudence: hardly a neutral definition.
What this demonstrates is that given the nature of law as arguably political, jurisprudence cannot be made neutral in any way and certainly not by stipulative definition, because arguing and examining the political implications of law – or lack of them
– is a central issue of jurisprudence. So jurisprudence is not and cannot be neutral, and
that shows that both the assumptions that underlie the objection to the legitimacy of
feminism as jurisprudence are false. So feminist jurisprudence is indeed jurisprudence
or else natural law is not. This is not to say that they cannot both be wrong. Positivists
can claim that natural law is wrong, but not that it is not jurisprudence. Similarly,
feminist detractors.
The more difficult question is what makes feminist jurisprudence feminist? The great
diversity within feminism has led some critics (and even some feminists) to argue that
there is no common feminist perspective. There is no feature that distinguishes feminist
jurisprudence from all other legal philosophy. All feminism is actually reducible, or so
it is argued, to those theories that inform its many facets. Liberal feminism is reducible
to liberalism; postmodern feminism is reducible to postmodernism, and so on. Thus, it
is claimed, feminism provides no new idea, or distinctive theory. It is simply the application of old theories to the particular problem of women’s oppression.
Furthermore, it is claimed, there is no point of view of all women. Feminism, if it can
be identified as one view, is the view of a few women who are seeking to impose it on
everyone else. The fact is that the majority of the women of the world either disagree
with the views of feminists, or else never thought about the issues feminists raise. So it
is highly problematic for feminists to represent themselves as speaking for all women.
These are serious charges.
It is true without question that women are as diverse as human beings can be.
Women can be rich, poor, weak, strong, dominating, passive, upper class, lower class,
rational, irrational – the list could go on indefinitely. Women are members of every
race, religion, nationality, class, or ethnic group. So what is the supposed perspective
of all women that is the putative foundation of feminism? What do all women have in
common?
What do I have in common with the homeless women I walk past in Grand Central
Station, or the invisible ones that I do not see in my hometown? What do college professors have in common with prostitutes, or drug addicts, society women, or corporate
executives, cashiers, or the lonely invalids who inhabit the nursing homes? How can
anyone presume to speak for all of them? The women of South Africa, Bangladesh,
former Yugoslavia, China, the Brazilian rainforests, and the Australian outback are all
women. Can they possibly all have something in common?
When I think of the problem in these terms it reminds me of when I was trying to
figure out exactly what it is that makes human beings human. It turns out that there
is no set of necessary and sufficient conditions that delineates the classification and
distinguishes it from all others. There is no property common to all and only human
beings. And I think that is true about women as well.
Nevertheless, it is not reasonable to conclude that therefore there is no such thing
as a human being or a woman. Isolating necessary and sufficient conditions is not the
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best approach to solving all problems or answering all questions. So, it is still possible
that there is something we share that makes us all human, even if we cannot say
exactly what it is with logical precision. Similarly, there can be something common to
all women that feminism addresses, despite our profound differences. Even if we are
unable to specify it precisely, we can indicate generally what this is.
So what is it? What do all women have in common regardless of race, class, religion,
station, nationality, ethnicity, or background? All women live in a patriarchal world.
All women function within an environment that is patriarchal. It is unavoidable, like
the air. We eat, sleep, and breathe it (as do men). But all women hold a certain position
within that world (despite the qualification of our other differences) because it is precisely the function of patriarchy to specify that position and preserve it. Thus, all
women operate within a worldview that constitutes a certain picture of reality – a
picture that is profoundly and systematically gendered, even if that picture is beginning, just beginning, to crack and dissolve. That is the insight of radical feminists,
that gender itself is a social construction based on and reflecting sexism: that is, male
dominance and female subordination, male autonomy and female restriction, and
male glorification and female devaluation, all supposedly justified as a result of natural
needs and differences, or the protection of women, or simply as a value-neutral description of the world (see MacKinnon, 1989, 2006). This theory is not reducible to any
other.
Of course, this description of patriarchy as sexism is an oversimplification. One of
the problems all feminists face is that any description of patriarchy will inevitably be
an oversimplification because patriarchy is an entire worldview. It is enormously
complex. By comparison, if you asked ten people for a description of, say, the United
States (or any complex entity), you would get ten different descriptions. They could all
be true. They would all be incomplete. No one of them could be the best description
for all purposes. And they could all disagree with one another and still be accurate
because they would differ in focus, purpose, characterization, and so forth. But patriarchy is much more complex than any single nation or culture. It is an entire worldview, with a million implications and effects, which has structured reality since the
prehistory of human existence without any serious objection, challenge, or change
until the second half of the twentieth century. This is a profoundly effective worldview,
as Catherine MacKinnon put it, the most perfect ideology ever invented. It structures
virtually everything that exists in its own image of reality. There is almost nothing
that it does not touch. A comprehensive description of something like that is utterly
impossible. So it is hardly surprising that different feminists provide different descriptions of it and different approaches to it. In fact, it would be surprising if that were not
the case.
It does not follow, however, that because patriarchy is a complex worldview that
cannot be described comprehensively, that there is no such thing as patriarchy or that
women are not subject to it. Patriarchy is the systematic subordination of women to
men, and that is the experience that all women share. The point of view of all women
is the point of view of those who are subordinated on the basis of their sex regardless
of what else may be different about them. Even if some individual personal relationships
deviate from this norm, systematic social organization still conforms to it everywhere.
And even if particular women are in positions of power because of wealth, class, or
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accomplishment, they are not real exceptions to the point because they still function
in a sexist world overall.
So the one experience common to all women is living in the subordinated half of a
patriarchal world, and the one feature common to all feminism is the rejection of that
worldview. The focus and result of this rejection may vary a great deal. Feminists may
disagree with one another about what constitutes a rejection of sexist domination, or
about which approach is likely to improve the condition of women, or is most susceptible to abuse or misinterpretation. They may disagree about which element gets to the
essence of the problem, or even whether there is an essence to this problem. Nevertheless,
all feminist theories are intended to liberate women from sexist domination in one form
or another.
Sexist domination comes in many forms. It is found in social attitudes about
rape, wife battering, sexual harassment, employment practices, educational expectations, workplace design, advertising, entertainment, and family responsibilities, to
name just a few. Most of these social attitudes are reflected in law. They are part of
the million effects and implications of patriarchy. And all these effects and implications
are the legitimate domain of feminist theory. Thus, the diversity of feminist theories
is in part a reflection of the pervasiveness of patriarchy and the great variation of its
effects.
The diversity is also due to other perspectives on which feminists diverge. That is,
feminists adopt many different approaches to addressing patriarchy. For example, some
have focussed on the global failure of law to adequately address violence against women
in the form of rape, incest, and domestic violence (see, e.g., Schneider, 2000; Estrich,
2001; Manderson, 2003; Husseini, 2007). Others are analyzing the disadvantage
caused by hierarchical economic structures, and particularly the division between the
family and the market (see, e.g., Olsen, 1983; Williams, 2001; Fineman, 2004; McClain,
2006). Yet others are challenging the value structures associated with traditional male
and female roles, insinuated in law and supposedly justified by religion (e.g., Peach,
2002; Reed, & Pollitt, 2002; Mirza, 2006). Still others are examining the intersection
of gender with other factors of identity and discrimination, such as race, ethnicity,
class, disability, or age (see Crenshaw, 1989; Crenshaw et al., 1996; Roberts, 2002;
Nussbaum, 2006). All these approaches are partial and all are needed. Each addresses
some aspect of the pervasiveness of patriarchy.
Yet it does not follow that feminist theories share no common, distinctive feature.
To see what makes feminist theories distinctive, we should compare them not with each
other, but with antifeminist or nonfeminist views. These differences make clear that
what is common to all feminist theories is also what is distinctive about them.
Consider the debate between Catherine MacKinnon and Phyllis Schlafly over the
ERA as an example of the feminist antifeminist dispute (see MacKinnon, 1989). What
was that debate about? It was, at bottom, a disagreement over whether the traditional
roles of men and women should be changed or preserved. How these traditions are
described depends on the point of view. The feminist describes the effects of these traditional roles and institutions as sexist domination. The antifeminist describes them as
the preservation of family values. The feminist is arguing that patriarchy should be
changed and the antifeminist that it should be preserved. Both agree that this issue is
crucially important.
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The nonfeminist theory on the other hand either argues that patriarchy is not
important or simply does not address it. But a feminist generally thinks the implications
and effects of patriarchy are relevant to many more subjects than the nonfeminist
recognizes. In fact, a significant part of the feminist project is to educate the nonfeminist, so to speak, to make clear the significance of patriarchal influences where they
commonly go unrecognized. For example, a central project of feminists is to make clear
that certain institutional structures – such as equal protection law founded on male
norms as the standards of comparison (see Allen, 2005 or Fineman and Dougherty,
2005), concepts such as force and consent in rape law (Estrich, 2001), or policies such
as noninterference with family violence as respect for privacy or family (Schneider,
2000; Husseini, 2007), or judicial review based on the intent of the framers (Minow,
1991) are biased or value laden, when they are assumed to be neutral.
Overall, then, the antifeminist supports patriarchy. The nonfeminist overlooks or
ignores patriarchy. And the feminist opposes patriarchy. The one feature that defines
or identifies a theory as feminist, then, is that it takes the changing of patriarchy as its
central focus. That is precisely what makes feminist jurisprudence feminist, despite all
its variations.
So feminist jurisprudence is jurisprudence because it is the analysis of fundamental
legal relations, concepts, and principles. It is feminist because it examines and opposes
patriarchy. But why is that project central to jurisprudence as a whole, rather than a
specialized topic for a small subgroup? The formulation of the question betrays its
answer. The feminist claims that patriarchy unfairly structures virtually all social
arrangements, and is dedicated to reforming that structure. Anyone who denies the
broad significance of that sort of project is like the feudal lord who denied that the
industrial revolution was relevant to him because his fief was in the country. If you
think the claim is narrow, it is because you do not believe it, or perhaps do not understand it because it is undertaken incrementally and peacefully.
Yet, for the unbeliever, instrumental arguments can also be given. First, law, given
its nature, tends to preserve the status quo. Law is a system of order intended to provide
stability. That is its value; but that also makes it poorly suited to deal with change,
especially broad based, systemic social change. Second, law naturally embodies the
values, attitudes, expectations, and presumptions of the dominant culture (which it
generally represents as universal values and/or neutral descriptions of facts of nature).
This feature makes law badly suited to deal with diversity in a truly open and equitable
manner. Yet in a world of fast paced social change, pressing pluralism and global diversity these limits are serious.
If law is supposed to promote the general welfare, it must be able to accommodate
social change and cultural diversity better than its current structure and tradition
allow. The dominant culture – those who hold power, make law and public policy, and
influence institutional development – have no stake in solving these problems, and
their training, background, and position militate against their being able to recognize
such problems as central, to see them, let alone deal with them.
If law stands for justice, it must be justice for all. But the fact is that law has been
notoriously bad at providing justice for those outside the dominant culture. Blacks,
Native Americans, and Chinese (to mention three of the most infamous examples) as
well as all women did not get the same standard of justice that the founding fathers set
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up for themselves and those who were much like them, even as they called it “justice
for all.” Nor is this deficiency yet corrected. Our blind spots are still significant. Feminist
analysis is one of the best corrective lenses available today because it speaks from the
position of the outsider. This enables it to be more creative, less tied to the tradition,
less blinded by its own prominence.
Feminists have enormous motivation to find ways to accommodate change and
diversity in law, because the feminist program is part of the new development that will
otherwise be left out, and because women are among the legal outsiders who are vying
for recognition. In fact, some feminist work has provided unusually insightful observations about whether norms are neutral or biased, and about how legal mechanisms
might be revised and developed to increase its flexibility and responsiveness. Feminists
are very good gadflies.
For these reasons, feminist jurisprudence is clearly of general interest. It is the only
legal philosophy that currently confronts patriarchy as a central issue. Contrary to the
objection that this is not philosophically interesting, it provides a vantage point for truly
creative and insightful analysis of the most basic structures of law and society. We have
hardly begun to explore its implications.
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