USQ Law Society Law Review
Tracy Bowen
Winter 2021
of care."’,8 whereas Catharine MacKinnon posits that ‘feminist jurisprudence is an examination of the relationship between law and society from the point of view of all women’.9 What encapsulates ‘the point of view of all women’10 is problematic given the ‘endless variety of women’s experience and the different ways in which law affects our experience’,11 particularly given that feminist jurisprudence law reform has predominately benefitted Caucasian women.12 Feminist jurisprudence serves not only to challenge the fundamentally patriarchal nature of legal systems,13 but also how this legal structure normalises the domination of women.14 While the writer recognises divergences in feminist jurisprudence, rendering generalisations remains feasible;15 one can begin from the position that feminist jurisprudence theorists assume that the law has not treated women with parity, and that changing this position is necessary.16
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QUANTIFYING THE SUCCESS ENACTED BY FEMINIST JURISPRUDENCE
To answer this question within a positivism law environment one is forced to quantify the success of feminist jurisprudence through a patriarchal looking glass. As such, law reform, the role of female judges and the careers of female legal practitioners shall be examined in order to determine not only the success of female jurisprudence but also the necessity of teaching the same in law schools in order to facilitate future change. It should be noted that evaluating feminist jurisprudence through an examination of its effect upon law reform is repugnant to some feminists who consider that law reform should not be key to their campaigns,17 and that Australia’s emphasis on legislation as the central focus of law reform18 perpetuates the positivist fiction of an apolitical judiciary.19 Regardless of the arguments that could be debated regarding the inappropriateness of weighing the success of the changes enacted by feminist jurisprudence within a patriarchally based legal system and society, an assessment must be
8
Ellen C Dubois et al, ‘Feminist Discourse, Moral Values, and the Law - A Conversation’ (1985) 34(1) Buffalo Law Review 11, 47 (Carol Gilligan). 9 Catharine MacKinnon, ‘Developing Feminist Jurisprudence’ (Panel Discussion, 14th National Conference on Women and Law, April 9, 1983), cited in Heather Ruth Wishik, ‘To question everything; the inquiries of feminist jurisprudence’ (1986) 1(1) Berkley Women’s Journal 64, 64. 10 Ibid. 11 Hester Eisenstein and Alice Jardine, The future of difference (Rutgers University Press, 1985) xi. 12 Margaret Thornton, ‘Feminist jurisprudence: illusion or reality?’ (1986) 3 Australian Journal of Law and Society 5, 9 (‘Feminist jurisprudence: illusion or reality?’). 13 Sue Davis, ‘Do women judges speak ‘in a different voice?’ Carol Gilligan, feminist legal theory, and the Ninth Circuit’ (1993) 8 Wisconsin women’s law journal 143, 143. 14 Catharine A MacKinnon, Toward a feminist theory of the state (Harvard University Press, 1989) 238 (‘Toward a feminist theory of the state’). 15 Martha A Fineman, ‘Feminist Legal Theory’ (2015) 13(1) Journal of Gender, Social Policy and the Law 13, 13. 16 Joshua Dressler, ‘Feminist (or “feminist”) reform of self-defence law: some critical reflections’ (2010) 93(4) Marquette Law Review 1475, 1477. 17 Sandra Egger, ‘An Examination of Feminist Contributions to Law Reform’ (1994) 27(1) Australian and New Zealand Journal of Criminology 95, 96. 18 Jude Wallace and John Fiocco, ‘Recent Criticisms of Formalism in Legal Theory and Legal Education’ (1980) 7(3) Adelaide Law Review 309. 19 Thornton, Feminist jurisprudence: illusion or reality? (n 12) 11.
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