IS FEMINIST LEGAL THEORY ENACTING CHANGE OR IS IT SIMPLY AN EXPLANATION OF THE ROLE THAT LAW HAS PLAYED IN THE SUBORDINATION OF WOMEN?
IS FEMINIST LEGAL THEORY ENACTING CHANGE OR IS IT SIMPLY AN EXPLANATION OF THE ROLE THAT LAW HAS PLAYED IN THE SUBORDINATION OF WOMEN?* Tracy Bowen I Introduction Historical references to feminism can be found as far back as the writings of Plato, and while this writer refrains from suggesting that he is a feminist, he certainly posited that women were entitled to follow the same pursuits as their male counterparts. 1 The origins of contemporary feminist ideology are found in the feminist movements of the 18th to 20th centuries,2 with both Carol Gilligan and Catharine MacKinnon being integral to feminist jurisprudence. 3 A discussion of feminist jurisprudence must naturally recognise that feminist jurisprudence is the law’s equivalent to feminist history 4 and that they are intertwined. However, when quantifying the success of this legal theory one must differentiate between its chronicling of the law’s subordination of women with the real changes enacted by it. Reckoning the changes enacted by feminist jurisprudence presents difficulties given it must be done so within the context of a legal system directed by positivism jurisprudence, which has ‘constrained the development of a feminist critique of law’. 5 Nonetheless by examining the nature of feminist jurisprudence, its influence on legislative changes, women in the legal profession, and examining the ongoing significance of feminist jurisprudence it is hoped that the task of calculating the changes made by feminist jurisprudence are more readily demonstrated to the reader.
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1
Julia Annas, ‘Plato’s Republic and Feminism’ (1976) 51(197) Philosophy 307, 308.
2
Hilaire Barnett, Introduction to Feminist Jurisprudence (Taylor and Francis Group, 1998) 3.
3
Carol Gilligan, In a different voice: psychological theory and women's development (Harvard University Press, 1982); Catharine A MacKinnon, Toward a feminist theory of the state (Harvard University Press, 1989). 4
Judith A Baer, Feminist Theory And The Law, ed Robert E Goodwin (Oxford University Press, 2011) 2.
Margot Stubbs, ‘Feminism and legal positivism. (Australia) (special issue: “feminist legal issues”)’ (1986) 3 Australian Journal of Law and Society 63, 63. 5
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