Feminist Jurisprudence

Carol Smart is a sociologist who specializes in the areas of feminism, divorce, children of divorced parents, and changing family life (SAGE, 2019). She is currently a professor at the University of Leeds, where she primarily focuses on her Divorce & Separation Study as well as her Transnational Kinship Study (SAGE, 2019). Her academic journey began when she studied sociology as an undergraduate, later on pursuing a master’s degree in criminology, where she completed her education studying socio-legal studies at the University of Sheffield (SAGE, 2019).

In her book, Feminism and the Power of Law, Smart presents a critical approach to existing theories and ideas surrounding feminist jurisprudence. When reading her chapter on “The Quest for a Feminist Jurisprudence”, we can see that there exist fundamental issues with the current legal structure, in which simply adding women to panels of Judges or to a team of lawyers will not suffice in tackling the inherent and systematic issues that prevent women from being regarded as equitable to men. First, the very system the law operates within favors the male logic, which prevents feminist legal scholars and professionals from teaching or implementing their own philosophies and ideas, as it would cause them to fail in their representation of their clients, or would lead to their students failing the LSAT (Smart, 2002). Due to this intrinsic barrier that exists for women within the law, Smart advocates for the deconstruction of the current legal system in order to tap into the realities that women experience in every-day situations, rather than simply referring to theories that only tackle abstractions (Smart, 2002). This idea of deconstruction reminds me of Jacque Derrida’s approach to law, and that in order to seek justice, one must deconstruct the law (Derrida, 1992). This rings true to Smart’s analysis of feminist jurisprudence, as the core issues must be uprooted from the foundations guiding this principle, in order to step away from the patriarchal ways in which society values women. Following this deconstruction, it is not enough to simply squeeze in women’s interests, but instead, feminine jurisprudence must be reconstructed with a better understanding of the context in which law was created.

When critiquing the approaches of Gilligan and MacKinnon, two very prominent feminist scholars in the field of law, Smart notes that while they both recognize that the masculine mode of law is prioritized and that women have been stripped of their rights, they both structure their theories within the existing framework of law, which as I’ve discussed, is flawed and based on the male perspective. It would be counterintuitive to create a space for women within the cage of the patriarchy. When conducting my own research of the two legal scholars, I noticed that they were both white, which was apparent in their ideologies, as they did not include intersectional principles acknowledging underrepresented and marginalized women of different races, ethnicities, religions, or sexualities. Gilligan advocates for remaining within the cage that is the patriarchy through wanting the legal system to recognize the psycho-social development differences between men and women in order to elevate the feminine mode of justice. MacKinnon on the other hand requires women to rediscover their true feminine identity in order to fight against the dangerous force of males, which in her perspective, is a controlling force that restricts women from free thought. This removes any form of agency a woman would have in controlling her destiny, and presumes that all women experience the same feminine identity without taking into perspective the complicated injustices that occur outside the realm of white, heterosexual women.

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References

Derrida, J. (1992). “Force of Law: The Mystical Foundation of Authority” in Cornell, D.,

Rosenfeld, M. and Carlson, D. (eds). Deconstruction and the Possibility of Justice. New York

and London: Routledge, pp. 3-63.

SAGE Publishing. (2019, October 30). Carol Smart. Retrieved from

http://us.sagepub.com/en-us/nam/author/carol-smart.

Smart, C. (2002). Feminism and the Power of Law. London and New York: Routledge.