Can feminism be thought of as a theory of law or, otherwise, fundamental in some way?

As previously mentioned feminist legal theories are a contemporary concept, for this reason a “radical new methodology in legal theory” is required in order to encompass the new issues raised by feminism as a legal theory. Such a new methodology could be found in the ‘critical legal theory’ method, as it would be able to incorporate feminist views such as the theory that a “male-orientated appreciation of law emphasises individualism and ‘rights’ at the expense of ‘female’ emphases upon interaction and cooperation.” This approach is however, solely a theoretical one, and as such it does not entirely cover the needs of feminism, insofar as “feminism is only partially and peripherally concerned with academic theorising,” the major part of the work of feminism is to promote the “dissatisfactions of a wide spectrum of women,” which highlight the general inequality felt by women in regards to legal and social equality.

Therefore critical legal studies, instead of acting as a definition, are rather a useful means of indicating the “explicit and implicit male orientation of law and legal administration and the resulting disadvantage and marginalisation often suffered by women.” This has led to the recognition of three fundamental elements which personify a feminist legal theory. “These are:

1. asking the ‘woman question’, i.e. the extent of the presence and recognition of women’s experience in law;
2. feminist practical reasoning, meaning a reasoning which proceeds from context and values difference and the experience of the unempowered; and
3. consciousness raising, meaning an exploration of the collective experience of women through a sharing of individual experiences.” 

These three elements, outlined above by Katherine T. Bartlett, are designed to act as the source for future feminist legal theory development, particularly in respect of women’s outlook upon law with the intention of improving women’s legal position in the future “development or redevelopment of law.” 

The legal evolution, or, redevelopment, mentioned above is one in which women strive to see a revolution from an “inherently ‘male’ legal mindset implicitly discriminating against women because it is framed in terms of male experience which does not necessarily relate to that of women.” That is to say, that in numerous situations women are expected to mirror full-time, long-term and unionised male workers, when in reality women digress from this norm insofar as their working patterns tend to be far more interrupted and part-time. From this a clear paradox is produced, as feminists while thriving to be treated as the males equal simultaneously require a variant from this norm in order to account for their differing responsibilities. This attitude is stressed distinctly by the remarks of Joanne Conaghan and Louise Chudleigh, when they say, “labour law both embodies and conceals the gender division of labour and, by focusing exclusively on the world of paid work, ignores the differing responsibilities [of] … men and women.” 

Such inadequacies within the legal system are numerous and ironically even legal structures that aim to eradicate gender discrimination can be seen to be based upon analogies created from “irrelevant, and sometimes outdated, male experience.” An unmistakable example of this is the treatment of maternity leave as analogous to the sick leave of their male counterpart. This is coupled by the notion that parenting is predominantly the female’s role, which is highlighted by the “very limited provisions for paternity leave.” The underlying problem here is that, in order to be treated fairly and without any prejudice women are required to meet a norm set by existing male experiences which by there very nature do not create a balanced equality, and thus “existing legal standards and concepts disadvantage women” as they merely incorporate women into existing male-orientated legal structures, rather than recreating the legal structures so as to be established upon male and female requirements.

The above mentioned relationship between female legal theory and critical legal studies creates a clear enhancement, in regards to political knowledge and understanding of feminists legal argument, and consequently for the female legal theory. The noticeable thing to emphasise from this is the “disadvantaging effect of concealed and frequently unrealised bias in a legal order which has for the most part developed from male rather than female experience,” and has therefore produced a rather lopsided legal system in favour of men. This prejudice has now been identified, thanks to the relationship between critical legal studies and feminist legal theory, this identification can be perceived as a significant legal stepping stone towards a legal system that not only incorporates females, but is instead founded upon female and male experiences resulting in an equality which is not merely all encompassing in terms of a male perspective, but rather an equality that is derived from the experiences of both genders.

Strongly contrasting the accommodating nature of critical legal studies in relation to female legal theories, are those theories of law and society created by Karl Marx and Friedrich Engels. Their creation, Marxism, a derivative of a much older proposition by Immanuel Kant that stated that, “every thesis has a contrary antithesis” and that eventual resolution of these two contradictory perspectives, through revolution, would end up creating an ‘absolute understanding’. This led to Marx placing specific importance upon an economic foundation from which all things within society, both social and political, are merely ‘superstructure.’ It is for this reason that Marxism has been described as being a distinctly materialistic theory. A strong contrast can be seen between the feminist legal theory, which bases its social beliefs at the apex of its legal structure, and the Marxist theory which states that “social understanding is seen as an ideological perception of the economic relations existing at a given time which will change as the underlying economic relationships alter.” Here it is clear that a Marxist approach would place very little emphasis upon the social question of gender inequality, but would instead focus upon an economic foundation with the speculation that if a high enough proportion of society feel a need to increase gender equality then a revolution would take place. For Marxism social revolution appears to be the basis for the theory to develop. It would therefore appear to be a theory that shows little appreciation for social needs, such as those displayed by the female legal theory.

For feminists to advance their legal theory through a Marxist approach, the attitude of socialist feminists, as discussed above, would have to be adopted. That is to say that the “bourgeois family must be restructured to end ‘domestic slavery’ in favour of some collective means of carrying out housework and childcare. The key to this goal, in turn, is a socialist revolution that creates a state-centred economy operating to meet the needs of all. Such a basic transformation of society requires that women and men pursue their personal liberation together, rather than individually, as liberal feminists maintain.” This once again highlights the idea of a union between both genders, encompassing experiences from both so as to enable females not only to be incorporated into an existing legal structure but instead to recreate a legal structure based upon the needs and experiences of both genders.

A legal theory that promotes the liberating philosophy required in order to create a society able to accept the alterations needed to adequately unify both genders in a legal sense is the ‘postmodern’ legal theory. This theory, commonly portrayed as a “recipe for relativism,” also displays the characteristics needed in order to force “individuals to confront and change the rigid contexts and structures (including laws) within which they have arbitrarily confined themselves.” In this sense it is the ideal method for women to promote and execute the installation of their female legal theory. As it would not only tolerate an amendment in the law to integrate women into existing law, but more than this it would allow them to “change the rigid contexts and structures” mentioned above, which have prevented the advancement of gender equality within the legal structure.

However, postmodernism also raises some problems in relation to feminist jurisprudence. Hilaire Barnett states that “there must be developed critiques … which reject the universalist, foundationalist, philosophical and political understanding offered by modernism…and in its place there exists diversity, plurality, competing rationalities, competing perspectives and uncertainty as to the potentiality of theory.” In general, here she is saying that women must resist generalising their condition within society, and instead focus upon the “multiplicity of subjectivities, identities, which inhere in the individual.” 

Overall, I believe feminism to be undoubtedly ‘fundamental in some way.’ The critical legal theory discussed above shows how society has failed to display mutuality, not only towards women as members of society but towards men and women, through an “improper discriminatory selectivity, generate alienation and, ultimately, disfunctionality in the working of a legal order.” This inequality has led to the recognition of three fundamental elements which personify a feminist legal theory. Resistance is however, met by a Marxist legal theory, which displays very little appreciation of gender issues. However, a feminist theory could be adopted through the Marxist ‘bourgeois’ revolutionary approach, which would see both genders uniting in a revolution to change the pre-adopted norms of society. This idea of changing preconceived rules and laws within society would allow a feminist legal theory to develop, an idea given weight to by the postmodern legal theory, which also places special emphasis upon withdrawing from a united generalisation of women and instead focusing upon them as individuals. Therefore, I would argue that ‘feminism’ can be thought of as a theory of law, albeit not on the same scale as other theories previously mentioned, such as Marxism. But it’s rapid evolution and recent political and legal enhancement within society makes it a theory with considerable weight, and certainly a theory ‘fundamental in some way.’

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