Both jurisprudence and feminism are complex topics and gather a broad spectrum of concepts, making it challenging to understand and grasp, especially if you are not specialized in legal theory or feminism. Here we will overview both concepts and see how a new branch of feminist legal theory evolved with the feminist movement.
What is jurisprudence?
Jurisprudence also called legal theory, is the theoretical study of the concept of law. Where scholars and researchers are constantly looking into the nature of law:
- What does it mean?
- How does it evolve with time?
- How does it vary from country to country or from different legal systems?
Thus, in order to provide a deeper understanding of the legal reasoning, legal systems and legal institutions, as well as the proper application and role of law in society.
Jurisprudence has a long history that was developed through philosophy and philosophy of law. Each country and culture had philosophers and currents of thought that were constantly defining the concept of law.
From there, different approaches and visions of law have been developed. Until the 18th century, when modern jurisprudence starts being present. Modern jurisprudence differentiates on first principles of natural law, civil law and law of nations. Furthermore, general jurisprudence can be divided into several categories depending on the type of question a philosopher or scholar is seeking to answer by the different theories of jurisprudence.
Like any philosophical subject, jurisprudence has been evolving and changing with society and the influence of history and other subjects. Throughout the history of jurisprudence, three main branches have been formed and keep the debate of legal theory alive:
- Natural law: this branch focuses on a system of law based on the close observation of human nature, which often refers to the inherent rights, conferred by 'God, nature or reasons', rather than by an actor of legislation. This branch of jurisprudence is strongly influenced by Christian thought and scholastic philosophy, which frequently also refers to theories of ethics, politics, civil law and religious morality. Influential authors from this branch are Aristotle, Thomas Aquinas, Lon Fuller and authors from the School of Salamanca.
- Analytic Jurisprudence: the analytical approach was born through modern analytical philosophy. This branch rejects the reasoning of natural law. The most important questions that analytical jurisprudence ask are, 'what is the law? What is the relationship between law and power? And what is the relationship between law and morality?' Authors such as David Hume, Herbert Lionel Aldous Hart are among the most influential writers.
In addition, several currents further developed within the analytical approach, such as sociological jurisprudence, legal positivism and legal realism. - Normative jurisprudence: while analytical jurisprudence asks 'what is law?', normative jurisprudence is closely related to political philosophy and is concerned with the normative or 'evaluative' theories of law. In other words, beyond what is law, what is the goal or purpose of the law? What moral or political theories provide a foundation for the law? How does law properly function? Relevant authors that have developed this branch are Jeremy Bentham, John Stuart Mill, Immanuel Kant and John Rawls.
What is feminism?
Feminism can be an overwhelming concept because it is so diverse and complex.
But it is mostly defined as the belief in social, economic, and political equality of the sexes. Each part of the world manifests different activities and protests on behalf of women's rights and interests.
Feminism has a long history of protest and activism that started in the late 14th and 15th centuries, where we have written proof of the first feminist philosopher of the Western world, Christine de Pisan. Since then, women started questioning their place in public life and society, the power dynamic that favoured men, their rights, liberties and much more. This movement is still alive today all over the world in different ways.
During the Enlightenment, female intellectuals started writing their own reflections and philosophical ideas about womanhood and the inclusivity of women in society. Important authors, such as Olympe de Gouges, published the “Declaration of the Rights of Woman and the [Female] Citizen” in 1791, as a response and critique to the recent text of the French revolutionary Marquis de Lafayette, who failed to include women as equals to men.
Among the authors that shaped feminist history and the debate, Mary Wollstonecraft's A Vindication of the Rights of Woman (1792) is nowadays considered a classic of feminist literature. In her publication, Wollstonecraft calls for women and men to be educated equally.
Since then, feminism and feminists have fought for their place in public life, but in order to achieve this, they had to be present in legal terms as well.
Then, how did feminism integrate jurisprudence?
How did feminist legal theory start?
Feminist jurisprudence is a combination of what we defined as jurisprudence and is described as feminism, this means that it is a philosophy of law based on the political, economical and social equality of sexes.
As a field of legal scholarship and research, feminist jurisprudence began at different times for each country according to the development of the feminist movement. To give you an example, in 1984 Martha Fineman founded the Feminism and Legal Theory Project at the University of Wisconsin Law School to explore the relationship between feminist theory, practice and law, which has been instrumental in the development of feminist legal theory.
Feminists argue that history and jurisprudence were written from a male point of view and do not reflect or include women's role in history, or in society. Since the beginning of the definitions that are used in jurisprudence, such as human nature, use logic, language, and structure that reflect male values only. Thus, the prevailing conceptions of law have been reinforcing and perpetuating patriarchal power.
The feminist movement challenges the belief that men's and women's behaviour can be attributed only on the basis of biological sex. In their discourse, gender is a social construction, thus it is not influenced by the biology of a person. Sex only determines physical appearance, and reproductive capacity, while psychological, moral and social traits are not.
However, achieving equality between men and women has proven to be more challenging, particularly in topics such as reproductive rights, where feminists from different currents and fronts don't always agree.
Because there are multiple types of feminism, there are also various schools of thought within feminist jurisprudence and include but are not limited to the following main approaches.
Traditional feminism
Traditional feminism argues that women are just as rational as men and therefore should have equal opportunities to make their own choices.
Liberal feminism
Liberal feminists challenge the assumption of male authority and seek to erase gender-based distinctions recognized by law, thus enabling women to compete in the marketplace. This approach embraces liberal values and the right-based approach to law.
Sexual difference model
This approach emphasizes the significance of gender discrimination and how it should be taken into account by the law. Rather than claiming sameness between men and women, it recognizes the biological and cultural differences, thus putting women at a disadvantage. This approach has an opposite perspective and point of view from the two prior models, which argues that access must be equal between men and women, but differences must still be recognized to diffract fairness and power struggle including unpaid societal standards like caring for children and the home, rather than feminine characteristics
Radical feminism
Radical feminism also called, dominant feminism is focused on inequality and how the legal system works as a mechanism to perpetuate male dominance. Where men, as a class, have dominated women as a class, thus creating gender inequality. For radical feminists, gender is a question of power and urges us to abandon traditional approaches that take masculinity as a reference point. They argue that sexual equality must be constructed on the basis of women's differences from men, and not be mere accommodation of those differences.
Feminist jurisprudence is a challenging and fascinating topic because it is concerned with topics related to every woman, from violence, reproductive right, work, race and other issues. Feminist legal theory is a subject that still needs further debate and analysis to bring a better justice system at a national and international level. Each current model or approach has brought critical points that need to be addressed and introduce to different laws and articles in order to bring justice to women of all backgrounds. If you are a passionate feminist and are thinking of studying law or philosophy, this is a rich and challenging career.
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