Both the strength and weakness of a feminist perspective in legal research is its capacity for reflexivity. Explain and critically assess this statement.

RESEARCH METHODS

BOTH THE STRENGTH AND WEAKNESS OF A FEMINIST PERSPECTIVE IN LEGAL RESEARCH IS ITS CAPACITY FOR REFLEXIVITY. EXPLAIN AND CRITICALLY ASSESS THIS STATEMENT, ILLUSTRATING YOUR ARGUMENT WITH APPROPRIATE EXAMPLES.

During the recent decades a wide feminist approach can be discerned in the legal system. Feminists are criticizing law and they are trying to alter things by proposing new ways of dealing with legal matters. They believe that by releasing their thoughts into our sociopolitical environment they will bring people somewhat closer to creating a legal system in which the interests of all persons are indeed regarded with equal respect and consideration. However many times a feminist legal point of view tends to be self-contradictory, in the way that it supports the reformation of an idea at first by suggesting equality for instance, but on the other hand it seems to annul its own arguments. A feminist view often implies that women want to replace the dominant male party in law, and act exactly like it.

Therefore, a question is emerging: What is the feminist jurisprudence? Equal rights or neo-paternalism? Feminist activism has also had a major impact on many areas of the law, including rape, self-defence, domestic violence, and such new legal categories as sexual harassment. However, the ideology of legal feminism today goes far beyond the original and widely supported goal of equal treatment for both sexes. The new agenda is to redistribute power from the "dominant class" (men) to the "subordinate class" (women), and such key concepts of Western jurisprudence as judicial neutrality and individual rights are declared. Courts should resist efforts to limit individual rights just to protect women as a class, and reaffirm the fundamental principle in harmony with the classical liberal origins of the movement for women's rights: equality before the law regardless of gender.

Carol Smart expresses the idea that "feminist socio-legal theory faces another difficulty in as much as the tension that has always existed around the issue of whether to try to ”use” law for “women” has taken on a new shape. This tension traditionally used to take the form of an assertion that law, being an epiphenomenal effect of patriarchy, could hardly be used to dismantle the said patriarchy. Attractive and concise as this may sound, we now recognize that is both an oversimplification and a route to despair, given that considering everything as an effect of a monolithic patriarchy rendered feminism itself little more than a false perception at best, or a device for nourishing patriarchy at worst".

Feminism can be roughly defined as a movement that seeks to enhance the quality of women’s lives by impacting the norms and moves of a society based on male dominance and subsequent female subordination. The means of change in the work place, politically, and domestically. Women have been trying to prove to the male dominant world that they are equal. They can perform and complete any tasks equal, or in some cases better than man. Feminism has changed the definition of men in many ways. In the early and mid 20th century some women were starting to be brave and take a stand for themselves. The beginnings of feminism were starting to take its massive role in society.

One of the major cornerstones of the democratic system we enjoy in Western democracies is the rule of law. Our legal systems are based on principles such as individual rights, equal treatment for all, and objective standards of proof. It is already well-known that “positive action” violates the principle of individual rights in favour of group rights. There is also nowadays a theory, actually a feminist legal theory, which seeks to disembowel the foundations of our legal system, the neutrality of the courts.

The ideology of feminist jurisprudence today goes far beyond dismantling legal barriers which, in the past, may have denied women equal opportunity. Contemporary feminism estimates that the prevailing culture is "patriarchal", i.e. a male-dominated social structure, and the feminist agenda is not equal treatment for both sexes but the redistribution of power from the "dominant class" (men) to the "subordinate class" (women).

Feminists claim one must discard the concepts of judicial fairness and traditional ideas of rights and justice, because these maintain male dominance. These principles must now be replaced by a feminist philosophy and jurisprudence premised on "connections between persons". Law must be used to change the distribution of power; this requires not equal treatment but "an unbalanced approach that adopts the perspective of the less powerful group with the specific goal of fair power sharing among different groups.

You will notice the illogicality of the feminist position. On the one hand they claim that there are no differences between the sexes and that any difference in outcomes is the result of discrimination, and on the other hand they claim that workplace teasing is comprehended differently by men and women. One wonders how academics in tolerate the contradictions in feminist theory. At the same time as feminists claim men and women are the same, they also proclaim that women are different from men because they are better, and if women held the positions of power we would have a more caring and compassionate world.

It is absurd to argue that there are no differences between the sexes but that only men are effective in gaining power and retaining it. However, feminists need to hold both doctrines at the one time: if men and women are different, then the traditional division of sex roles and the traditional family is a natural development. But if men and women are identical, i.e. men as a group are not oppressors, women would lose their claim to disadvantaged victim status, so the paradox is accepted: men and women are identical but all men are oppressors (and usually rapists too) ...

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This brings us back to the legal question - should society and legislation treat men and women as identical or as different? Feminists are not at all fazed by such questions - Alison Jagger, writes in an essay that "feminists should insist on having it both ways, for instance: Feminists should embrace both horns of this dilemma....They should use the elocution of equality in situations where women's interests clearly are being damaged by being treated either differently from or identically with men". To those who, still subscribing to rationality, sorrowfully claim that one cannot have it both ways, that men are either different from or identical to women, but to insist on both is against reason, the feminist angry reply is that rationality or reason is a male construct anyway, or as Ms, Jagger would say "it is preferable to live daily with contradictions". Thus feminism has gotten rid not only of much of our legal system, but of rationality too. Rationality is the foundation of Western civilization, science and development. Feminists are not too much in love with Western civilization anyway, believing that it is little more than a white, male patriarchy, keeping women under oppression. They yearn for a mythical Amazonian Eden where women were warriors and apparently men looked after the babies.

However, there are some women behaving in a completely different manner. For instance some demoralized women, so passive that they are unable to even leave their abusers and seek help at the nearest police station or refuge at a Church shelter. This picture is quite contradictory to the confident, forceful image feminists want women to bring forth.

If logic is regarded as a patriarchal construct, it is hardly surprising that feminism is so full of contradictions. However, most of the women do not want to live in a world based on the assumption that most sexual intercourse is rape and the presumption that most men are guilty. Men are not enemies- men are fathers, husbands, brothers and sons. They are also friends, and far from being involved in a conspiracy to oppress women, men have invented all of the labour-saving devices - washing machines, refrigerators, microwave ovens- that have freed women from hard work and given them, including unfortunately feminists, the time and energy to be involved in such pursuits as jurisprudence and the law.

Without fear of contradiction one can successfully summarize the feminist philosophy, as a progressively forward-looking movement, and as an evolving, large amount of openly pro-feminine theories.

Is feminism a harmful ideology? There is a belief that the two central moral issues to this question are the following: (1) Is it immoral to infringe upon individual liberty (even if some other good can come of it)? (2) Is it immoral to discriminate based on sex (even if there are native differences, which are relevant to the situation)? What makes these clearly moral issues, as opposed to legal, religious, or socio-political issues? These are distinctly moral issues for a few reasons. At first, answers to these questions require normal statements (yes it is immoral, or no it isn't immoral to infringe…) which express value judgements. These statements can not be supported by empirical evidence. In other words, they are not subject to verification by running experiments, or through observation. Secondly, these answers describe standards of human conduct, which apply equally to everyone.

Lastly, these judgements for the most part are not laid down by authoritative bodies. What is the open-minded position concerning the enforcement of morality? The position concerning the enforcement of morals holds freedom as the most important value in cases of victimless crime. The liberal believes that it is cruel and unjust for authoritative bodies to enforce community moral standards for victimless crime because of the necessary restraint it puts on individual civil liberties.

And there is, of course, the normative ethics which is a branch of ethics attempting to clarify how humans should live their lives, and more specifically how to make moral decisions concerning one self and others, according to certain sets of values.

Somebody who believes that feminism is a harmful ideology might argue that complying with feminist's beliefs would produce less happiness than rejecting them. S/he may argue that forcing equality by, for example, requiring fire departments to establish less demanding physical examinations for women, or requiring corporations to exercise gender quotas may cause more discontent.

Taken another step, if a fire-fighter's effectiveness is depending to a certain extent on his physical strength, then would it be so fictional to suggest that without doubt lives will be lost because of the incapability of certain fire-women to carry an unconscious person up from the basement of a burning house? According to this reason, somebody may view feminism as a harmful ideology.

A scholar who deals with feminism seeks primary moral rules of particular acts, and judges their morality by finding which rules produce the most utility. In the issue of whether feminism is a harmful ideology or not, a scholar would find the underlying moral rules on each side of the debate. S/he may feel that the underlying moral rules in feminism are: -One should not infringe upon individual liberty -One should not discriminate based on sex. The scholar may feel that there is more usefulness to be gained by following the first rule. This is a value judgement that may not be held by all scientists who deal with morality, but in this particular point of view, it is the rule that produces the most happiness.

There is also the Kantian view: The Kantian theory of ethics maintains that there is a universal moral principle of duty. The moral duty performed is what is judged, not the consequence of carrying out the duty. For example, a Kantian theorist may believe that stealing is wrong. For him/her, this is a definite imperative to be followed at all times by everyone; even if what is being stolen is a piece of bread to feed a starving child. Kantian theory applied to the question of feminism may produce the view that securing individual freedom is the most important value, and since feminism infringes upon freedom, it is the Kantian's duty to stand up for individual freedom by rejecting feminism. It would be irrelevant to a Kantian that everyone would be happier if feminism was universally adapted. On the other hand, a Kantian may believe that it is one's moral duty to treat everyone as an equal. Additionally, s/he may believe that supporting feminism is standing up for women's freedom. It all depends on how feminism is interpreted.

Another theory is the theory of Natural Law: Natural law theorists believe that morally right acts are ones that are in accordance with nature. The theorist who believes that feminism is a movement to force compliance with the conception that males and females are the same, may feel that there is an implication to ignore native sex differences. S/he may, therefore, find that the feminist movement is immoral. In other words, s/he may believe that there are innate sex differences, and that by enacting laws to match the playing field, feminists are not acting in accordance with nature. (Of course, another natural law theorist may feel that feminism is in accord with nature as far as social advancement goes.)

Apart from that there is the theory of natural rights which holds liberty as the most important moral value. It maintains that every human has an equal right to life, liberty, and honestly acquired property, and that infringements upon those rights are immoral. Consequently, a natural law theorist may take the position that laws created to help women gain entry into male occupations are infringing upon individual liberty by creating quotas, and are discriminating against men by requiring more challenging examinations as in the example of the Fire Department.

At the same time, a natural rights theorist might argue the opposite. S/he might say that as it is, women are not enjoying the same amount of liberty as men are and, consequently are morally justified in enacting laws to force compliance with equality and freedom. S/he must evaluate the two positions with reference to which infringes on liberty the least.

The theories are distinguishable from each other on a basic level in one or two ways; what the theory values (freedom, nature, etc.), and whether it is a consequentialist (utilitarianism) or nonconsequentialist (Kantian theory) theory. In dissecting the two arguments, the result is that by applying the theories the values involved are identified in an easier way. The application also illustrates the complexity of the issues. Utilization of the theories is not nearly enough to come to a conclusion on either point of view. Most of the work in finding an answer to these questions lies in carefully examining every detail in each issue, and mentally following the cause and effects of various conditions. The theories merely give one the tools to make this easier.

Carol Smart indicates that "feminist legal scholarship faces two main tasks at the beginning of the 1990s.The first is to deal with the situation that law is not just a simple set of tools or rules which we can bend into a more favourable shape. Although we have known this for a long time, it is not certain that many things have been done with this knowledge. The desire to be political has been confused with the desire to be practical, and thus law has continued to occupy a theoretical space in our thinking which encourages us to deal with the legalization of everyday life. We must therefore remain critical of this tendency without abandoning law as a site of struggle. The second is to recognize the power of law as a technology of gender, but not to be silenced by this realization. Therefore we should see the power of law as more than that negative sanction that prevents women from acting. Law is also productive of gender difference and identity, yet this law is not impenetrable and unitary".

The issues mentioned are only a portion of the feminists' attempt to renovate the legal system. Their attack on "the masculine voice of rights, autonomy and abstraction" is bound to cause harm in a liberal society. Leslie Bender of the Syracuse University College of Law writes that "the feminine voice can design a tort system that is caring . . . and responsive to others' needs or hurts" instead of "protect[ing] efficiency and profit.″

Mary Jo Frug of the New England School of Law suggested that a woman should not be bound by a contract if her failure to read it before signing stemmed from concern for others' feelings. ("She was acting like a reasonable woman.")

It is often said that today's radical feminists are trying to roll back the clock to an era when fragile women had to be protected from the cruel world and the natural predatory tendencies of men. That is only partly true. What the radical feminists want is the traditional special protections women had in more paternalistic days plus all the rights that they have gained in the quest for equality with men. Their effort to abolish male privilege while preserving and expanding female privilege is likely to create the very reaction feminists fear. Furthermore, most women do not want their brothers, husbands, or sons to live under a legal system that presumes them guilty; nor do they believe that sex is rape, freedom is a male plot, and an abused woman can be her own judge, jury, and executioner.

Yet because a small and speaking minority has been widely perceived as acting on behalf of all women, it has managed, in less than two decades, to achieve spectacular successes. Some of their positions have been embraced by the supreme courts and to some extent by many voters of several countries. They have commitment and time. If their win-loss average continues at its current pace, the day may soon arrive when sexual and political repression to fight sexual and political repression, gender hostility to fight gender hostility, and arbitrary laws to fight arbitrary laws become the order of the day.

The feminist approach enhances women’s jurisprudence with a useful and reflexive perspective to find out ‘what’s going on’ within the social contexts. These make contributions to the design of future legal policies because it is believed that policies that ignore the different life experience of men and women may continue in willfully blind adherence to normal practices. Furthermore, it is suggested that promoting single-sex organisations or women-only leisure institutions may make women feel much safer and more assessable to legal activities.

As Katherine T. Bartlett says: "Feminist legal methods are ends in themselves. Although partial objectivity is possible, it is in-between, and therefore must be continually subject to the effort to reappraise, deconstruct and transform. That effort, and the hope that must underlie it, constitute the optimistic version of feminism. Under this version feminists can find a way of doing law that expresses who they are and who they wish to become.

This is a goal central to feminism: to be engaged, with others, in a critical, transformative process of seeking further partial knowledges from one’s admittedly limited habitat. This goal is the grounding of feminism, a grounding that combines the search for further understandings and sustained criticism toward those understandings."

Bibliography

- Ann Scales, "The Emergence of a Feminist Jurisprudence: An Essay," Yale Law Journal 95 (1986): 1373; Liana Fiol Matta, "On Teaching Feminist Jurisprudence," Revista Juridica de la Universidad de Puerto Rico 57 (1988): 253.

- Fred Strebeigh, "Defining Law on the Feminist Frontier," New York Times Magazine, October 1991; Kenneth Lasson, "Feminist Awry: Excesses in the Pursuit of Rights and Trifles," Journal of Legal Education 42 (1992): 1, 4 n. 1

- Bartlett, K. "Feminist Legal Methods" (1990) 103 Harvard Law Review 829.

- Conaghan, J. "Reassessing the Feminist Theoretical Project in Law" (2000) 27 JLS 351

- Smart, C. "The Woman of Legal Discourse" (1992) 1 Social & Legal Studies 29.

- Martha Chamallas," Feminist Constructions of Objectivity: Multiple Perspectives in Sexual and Racial Harassment Litigation". Texas Journal of Women and the Law, 1 - 1992.

- Alison Jagger, Chairman of the American Philosophical Association's Committee on the Status of Women. "Theoretical Perspectives on Sexual Differences", edited by Deborah L. Rhode, published by Yale University.

- Leslie Bender , quoted in Tamar Lewin, "Feminist Scholars Spurring a Rethinking of Law," New York Times, September 30, 1988, p. B9.

- Wendy McElroy, "The Roots of Individualist Feminism in 19th-Century America" in Freedom, Feminism, and the State, 2d ed., ed. Wendy McElroy (New York: Holmes and Meier 1991).

- Regina Austin and Elizabeth M. Schneider. "Mary Joe Frug’s Postmodern Feminist Legal Manifesto Ten Years Later: Reflections on the State of Feminism Today". New England Law Review Volume 36 Fall 2001 Number 1.

- David L. Faigman, "To Have and Have Not: Assessing the Value of Social Science to the Law as Science and Policy," Emory Law Journal 38 (1989): 1005, 1056.

Ann Scales, "The Emergence of a Feminist Jurisprudence: An Essay," Yale Law Journal 95 (1986): 1373; Liana Fiol Matta, "On Teaching Feminist Jurisprudence," Revista Juridica de la Universidad de Puerto Rico 57 (1988): 253.

Smart, C. "The Woman of Legal Discourse" (1992) 1 Social & Legal Studies 29.

Wendy McElroy, "The Roots of Individualist Feminism in 19th-Century America" in Freedom, Feminism, and the State, 2d ed., ed. Wendy McElroy

Alison Jagger, Chairman of the American Philosophical Association's Committee on the Status of Women. "Theoretical Perspectives on Sexual Differences", edited by Deborah L. Rhode, published by Yale University.

Martha Chamallas, "Feminist Constructions of Objectivity: Multiple Perspectives in Sexual and Racial Harassment Litigation". Texas Journal of Women and the Law, 1 - 1992.

Fred Strebeigh, "Defining Law on the Feminist Frontier," New York Times Magazine, October 1991; Kenneth Lasson, "Feminist Awry: Excesses in the Pursuit of Rights and Trifles," Journal of Legal Education 42 (1992): 1, 4 n. 1

David L. Faigman, "To Have and Have Not: Assessing the Value of Social Science to the Law as Science and Policy," Emory Law Journal 38 (1989): 1005, 1056

Smart, C. "The Woman of Legal Discourse" (1992) 1 Social & Legal Studies 29.

Leslie Bender, quoted in Tamar Lewin, "Feminist Scholars Spurring a Rethinking of Law," New York Times, September 30, 1988, p. B9.

Regina Austin and Elizabeth M. Schneider. "Mary Joe Frug’s Postmodern Feminist Legal Manifesto Ten Years Later: Reflections on the State of Feminism Today". New England Law Review Volume 36 Fall 2001 Number 1.

Wendy McElroy, "The Roots of Individualist Feminism in 19th-Century America" in Freedom, Feminism, and the State, 2d ed., ed. Wendy McElroy (New York: Holmes and Meier 1991).

Bartlett, K. "Feminist Legal Methods" (1990) 103 Harvard Law Review 829.