Feminist jurisprudence

The diversity of feminist philosophy and theory is represented in feminist jurisprudence, but two models of feminist jurisprudence predominate: the parity model, according to which women should be given legal parity with men; and the transformative model, which proposes the transformation of male legal categories and concepts to address women’s experiences. The parity model has also been identified by the terms ‘the male monopoly of law’, or ‘law as male bias’. The transformative model has sometimes been equated with feminist jurisprudence per se, sometimes more specifically with US feminist jurisprudence. The two models differ primarily in their response to the claim of liberal jurisprudence – a claim made by law itself – that law is a neutral, rational and fair institution which defends individual liberty and treats people equally. The models also differ over the analysis of rights, and over the place of feminist jurisprudence in the legal curriculum. Both models have been subjected to a subversionist critique of any form of feminist jurisprudence. The parity model supports the values of liberal jurisprudence as imputed to law, but identifies a discrepancy between those liberal values and legal practice, such that women are not accorded parity with men. It follows either that law must be persuaded to apply these standards more rigorously in the case of women or that liberal values must be revised to recognize gender as a source of social injustice. The objective is to give women genuine, as opposed to nominal, equal rights or, where their special social situation demands it, special rights. On this model, courses in feminist jurisprudence comprise what have come to be known as ‘women and law’ studies which generally promote the visibility of women in jurisprudence. These studies may include documentation of law’s discrimination against women, analyses of law’s male bias against women, and reviews of all liberal jurisprudence which omits reference to gender. The transformative model also notes the discrepancy between the liberal values imputed to law and law’s treatment of women but recognizes the limitations of attempting to close the gap between liberal jurisprudence and legal practice either by making law apply liberal principles more scrupulously in the area of gender or by revising liberal principles. Instead, feminists working with this model argue that liberal jurisprudence can make no impact on law’s treatment of women so long as legal categories, such as crime or family law, and legal concepts, such as provocation or marriage, embody male norms and accordingly fail to address women’s experiences. It follows that such legal categories and concepts must be transformed to address women’s social position and experiences. In so far as rights discourse embodies male norms, it too must be transformed. On this view, courses in feminist jurisprudence comprise the transformation of broad legal categories and specific legal concepts so that they engage with the reality of women’s lives. The subversionist critique seeks to undermine both the parity model and the transformative model. This critique questions the value of feminist jurisprudence for feminist politics. The reason given is that to work within the paradigm of jurisprudence is to legitimate the strategy of recourse to law as the proper means of solving social problems, the very strategy which both the parity model and the transformative model have exposed as inadequate. The subversionist critique recommends instead that feminists subvert the paradigm of jurisprudence, if necessary by abstaining from engagement with it. The use of rights discourse becomes a tactical calculation, and the inclusion of feminist jurisprudence in the law curriculum is a dubious strategy for feminists. The subversionist critique has been criticized in its turn for undervaluing the achievements of liberal legal systems and liberal jurisprudence.