Feminist Jurisprudence

To define feminist jurisprudence, it is useful first to consider its component parts. Jurisprudence is the philosophy or theory of the law. Feminism is the belief in-and support of-the political, economic, social, and legal equality of women and men. Feminism rejects patriarchy and gender bias, and is fundamentally results oriented.

Feminist jurisprudence is a feminist analysis of the law that emerged in legal scholarship in the 1960s as a rejection of law's patriarchal bias, its use of men as the “norm,” and its view of women as the “other.” It argues that reform requires more than accommodation and assimilation into existing structures, and imagines the law as if women and men mattered equally. This is no small feat, as there is a long-standing tendency to think of the law as neutral and fair, and to overlook institutional biases that favor males. Catherine MacKinnon, in Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence, argues that [Page 538]male dominance is probably the most persistent and insidious system of power in history.

Law is, among other things, a means of classifying things. Parties to every lawsuit are classified, arguments are classified, and decisions are classified. One reason the law is assumed to be neutral is the fact that legal judgments are phrased, or classified, in such a way as to be applicable in future cases involving other parties. Yet, making laws universally applicable requires making assumptions about people in order to delineate similarities and differences among groups, so that the same law can apply to future parties.

Many feminist legal scholars believe that gender bias is inherent in our assumptions about groups of people, and that genuine objectivity is impossible, and that without objectivity, abstract universality is unworkable. Far from thinking of the law as neutral and fair, many see the patriarchal assumptions that pervade it and believe it to be inherently unfair. While feminist theories differ, they all reject the patriarchal bias inherent in the law. Feminist jurisprudence critiques the law for patriarchal assumptions and gender bias, and attempts to expand it to accommodate women as well as men.

Traditionally, the idea of equality has involved the equal or similar treatment of people. However, most cultures, and the schools of jurisprudence and laws arising from them, have traditionally treated women and men differently. Rights have varied by gender in the areas of marriage, child custody, land ownership, the right to enter into contracts, and myriad others. Attempts have been made to redress these biases, with varying degrees of success, at both the national and international levels. The goal of feminist jurisprudence, nationally and internationally, has been to expand the law to include women's experience.