Feminist Jurisprudence

Feminists also criticize mainstream jurisprudence as patriarchal. They say that male-dominated legal doctrine defines and protects men, not women. By discounting gender differences, the prevailing conceptions of law perpetuate patriarchal power. Because men have most of the social, economic, and political power, they use the system to subordinate women in the public spheres of politics and economics as well as in the private spheres of family and sex. The language, logic, and structure of the law are male created, which reinforces male values. Most troubling, these concepts and values are presented as and are widely perceived to be both neutral and objective.

For example, in determining liability in NEGLIGENCE actions, the law crafted the "reasonable man" test. This "man" was a hypothetical creature whose hypothetical action, reaction, or inaction in any situation was the law's standard of reasonable conduct for real people in similar circumstances. The gender-biased term man has been replaced by person in the name for this test, which might seem to resolve the problem. But some feminist legal scholars have argued that a gender-neutral label merely avoids the fact that the test is based on assumptions of what a male would do in a situation. They propose that when an action involves a female, a court should apply a "reasonable woman" test. By doing so, the court would recognize the differences in how males and females react to situations.

Feminists challenge biological determinacy, the belief that the biological makeup of men and women is so different that certain behavior can be attributed on the basis of sex. They believe that biological determinacy curtails women's power and their options in society. They argue that gender is created socially, not biologically. Sex determines matters such as genitalia and reproductive capacity but not psychological, moral, or social traits.

In analyzing the workings of gender in the law, feminist scholars share certain common commitments. Politically, they seek equality between men and women. Analytically, they make gender a category by which to reconstitute legal practices that have excluded women's interests. Methodologically, they use women's experiences to describe the world and to demonstrate the need for change. They rely primarily on an experiential discourse for analyzing gender hierarchy, sexual objectification, and social structures.

Though feminists have much in common, they are not uniform in their approaches. One school of feminist legal thought views women as individual human beings and is based on the desire to promote equal opportunity. Employing the concepts of rationality, rights, and equal opportunity, this school makes arguments similar to those against RACIAL DISCRIMINATION. It asserts that women are just as rational as men and therefore should have equal opportunity to make their own choices. This school challenges the assumptions of male authority, and it seeks to erase gender-based distinctions recognized in the law, thus enabling women to compete equally in the marketplace. It has caused legislatures and the courts to change many discriminatory laws. Its approach works, proponents argue, because it speaks the language the legal system understands. In addition, this approach attracts nonfeminists who agree that non-sex-specific legal solutions are preferable to sex-specific laws. RUTH BADER GINSBURG, first as an attorney and later as a justice of the U.S. Supreme Court, has exemplified supporters of this liberal feminist approach.

Another school of feminist legal thought focuses on the differences between men and women and celebrates those differences. Deeply influenced by the research of psychologist Carol Gilligan, this group of feminist thinkers observes that men and women speak in different voices. Women emphasize the importance of relationships, contexts, and reconciliation of conflicting interpersonal positions, whereas men emphasize abstract principles of rights and logic. The objective of this school is to give equal recognition to women's moral voice. Proponents seek changes in the existing conditions so that the law will recognize women-valued relationships such as that between mother and child. In stressing this different voice of caring and communal values, this school of feminism criticizes possessive individualism, which, it is claimed, is integral to the maintenance of women in stereo-typical roles.

Like the liberal feminist school of thought, radical feminism focuses on inequality. But radical feminism views women as a class, not as individual human beings. It asserts that men, as a class, have dominated women, creating gender inequality. This inequality is the consequence of a systematic subordination rather than irrational discrimination. Thus, heterosexuality is a social arrangement in which men are dominant and women submissive. For radical feminists, gender is a question of power. Therefore, this school is not satisfied with creating legal categories that promise equal opportunity and fair treatment. It sees these as false categories that mask the entrenched power of the male-dominant structure. What is needed, argue radical feminists, is an abandonment of traditional approaches that take maleness as their reference point: sexual equality must be constructed on the basis of woman's difference from man, not a mere accommodation of that difference.

Radical feminists have targeted sexual and domestic violence. They view PORNOGRAPHY as an instrument of sexual subordination rather than as a creative expression deserving FIRST AMENDMENT protection. In the 1980s law professor CATHARINE A. MACKINNON and writer ANDREA DWORKIN proposed that women be permitted to sue pornographers for damages under civil rights laws. Though their viewpoint has not been accepted by the U.S. courts, their work changed the nature of the debate over pornography.