Feminist legal theory
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Feminist legal theory is based on the belief that the law has been instrumental in women's historical subordination. The project of feminist legal theory is twofold. First, feminist jurisprudence seeks to explain ways in which the law plays a role in women's subordinate status. Second, feminist legal theory is dedicated to changing women's status through a reworking of the law and its approach to gender.
The four primary approaches to feminist jurisprudence are: the liberal equality model, the sexual difference model, the dominance model, and the postmodern or anti-essentialist model. Each model provides a distinct view of the legal mechanisms that contribute to women's subordination, and each offers a distinct method for changing legal approaches to gender.
The liberal equality model operates from within the liberal legal paradigm and generally embraces liberal values and the rights-based approach to law, though it takes issue with how the liberal framework has operated in practice. This model focuses on ensuring that women are afforded genuine equality—as opposed to the nominal equality often given them in the traditional liberal framework—and seeks to achieve this either by way of a more thorough application of liberal values to women’s experiences or the revision of liberal categories to take gender into account. Susan Okin, for example, has critiqued liberal approaches to justice for their complete neglect of gender and its injustice.
The difference model emphasizes the significance of the differences between men and women and holds that these differences should not be obscured by the law, but should be taken into account by it. Only by taking into account differences can the law provide adequate remedies for women’s situation, which is in fact distinct from men’s. The difference model is in direct opposition to the sameness account which holds that women’s sameness to men should be emphasized. To the sameness feminist, employing women’s differences in an attempt to garner greater rights is ineffective and places emphasis on the very characteristics of women that have historically precluded them from achieving equality to men.
The dominance model and its most notable proponent, Catharine MacKinnon, reject liberal feminism and view the legal system as a mechanism for the perpetuation of male dominance. Sexuality is central to MacKinnon’s dominance account. She argues that women’s sexuality is socially constructed by male dominance and that women’s subordination results primarily from the sexual dominance of women by men. A major line of critique of the dominance model is that it leaves no room for women’s agency since women are victims whose lives are fundamentally shaped by male dominance. The difficulty of the dominance model is that it leaves little or no room for women’s genuine autonomy or agency.
Feminists from the postmodern camp have deconstructed the notions of objectivity and neutrality, claiming that every perspective is socially situated. Anti-essentialist and intersectionalist critiques of feminist jurisprudence have objected to the idea that there can be any universal women’s voice and have criticized feminists for implicitly basing their work on the experiences of white, middle class, heterosexual women. The anti-essentialist and intersectionalist project has been to explore the ways in which race, class, sexual orientation, and other axes of subordination interplay with gender and to uncover the implicit, detrimental assumptions that have often been employed in feminist theory.
