Later Bloom in the Form of the Various Feminist Theories of Jurisprudence

As my last column published on February 3, 2006 ended, the “Legal Realists” and the “Critical Legal Studies” movement were planting doctrinal seeds that would “later bloom in the form of the various feminist theories of jurisprudence.” This column observes and comments on the emergence and development of these feminist theories of jurisprudence with the caveat that, in doing so within the space available, this writer risks clarity in the interest of brevity. Nonetheless, to paraphrase John F. Kennedy, we may not comprehensively complete this jurisprudential tour de force with the first one hundred words or even in the first five hundred words. But let us begin!

Feminism did not even exist as an organized academic field prior to the 1970’s. It is now indisputably lodged and its influence expanded in the legal academy under the banner of feminist jurisprudence. In fact, feminism has influenced academic legal scholars and judicial thinking – not only about women’s legal rights, but also about the nature of legal reasoning itself.

I said in an earlier column published on December 16, 2005 that the theories or “schools of jurisprudence” that have been, and will be, the subject of my comments in this space “are seldom discussed anywhere except in academic and judicial conferences” and that “readers will seldom, if ever, hear them discussed in courtrooms or law offices.” That is not true of “Feminist Jurisprudence.”

As a result of feminist writers, some of them not lawyers such as Catharine MacKinnon, Andrea Dworkin, Carol Gilligan and Martha Nussbaum, feminist jurisprudence has had an impact on the world outside the University. Some of the most conspicuous examples of that impact are that appellate court judges have been convinced that they should recognize sexual harassment as a legal wrong (a form of sex discrimination) and legislatures (including the Maryland General Assembly) have been persuaded to recognize marital rape as a crime and to make proof of rape and other sexual crimes in a courtroom easier and less traumatic on the female victims.

In addition in Maryland, feminist legal writing heavily influenced the final form and substance of the statute that codified the mixed legal and medical condition known as “Battered Woman Syndrome” in Maryland Code Annotated, Courts and Judicial Proceedings §10-916, as well as the passage and evolution of the Civil Domestic Violence statute.

There are three separate, indeed disparate, feminist jurisprudential philosophies. As I said, limitations of my space and the reader’s time do not permit a detailed description, explanation and analysis of each. However, in their most basic and rudimentary form, they are as follows:

“Liberal Feminist” Jurisprudence and writing posits that the law, whether it is statutory made by the legislators or common law made by appellate court judges, should not legitimate gender differences and distinctions that are by their nature changeable and will, therefore, disappear or are irrelevant to begin with. Liberal Feminist thought fundamentally commands that these transient or irrelevant gender differences should not be the basis for the creation and application of public policies and laws that treat the sexes differently.

Cultural Feminists acknowledge that there are substantial and relevant differences in the male life experience and the female life experience and that the law has, for most of our history, presumed that the male life experience was superior. Cultural Feminists proffer this presumption was never scientifically arrived at and, in fact, has no logical basis or any foundation in the life experience of either of the sexes. Therefore, Cultural Feminist writers suggest that the creation and application of public policy should not be based on this fallacious presumption of male superiority. One conspicuous example of this is the issue of whether Alternative Dispute Resolution (ADR), where a fair resolution of disputes and the preservation of the human relationships are valued, is preferable to litigation, where a premium is put on winning an adversarial proceeding in a formal courtroom setting. Feminist legal writers have suggested that males, because of their life experience, will prefer litigation whereas females will prefer ADR. Whoever the policy makers are will reflect their gender and the associated life experience in developing the dispute resolution structure in their courts and society. Witness the change in recent years.

Notwithstanding the literature on the subject, this male lawyer, judge and legal writer has always preferred ADR over litigation, which I guess is either a comment on my life experience or my feminist sympathies.

“Radical Feminists” write in some instances that the different life experiences of men and women are primarily driven by their physical differences (not exactly a radical assertion) and that primarily women’s physical characteristics mean that their life experience will require them, much more than men, to be physically and emotionally connected, e.g., heterosexual intercourse, breast feeding, mothering, etc., as well as being much more than men afflicted with the expectation, or even the fear of being connected by force or circumstances. The “Radical Feminist” writers then emphasize these physical differences and the divergent lifestyles they dictate will not change. Therefore, they advocate that the institutions and laws of society and its legal culture should change in light of that immutable fact.

Based on this premise, some of the changes that these “Radical Feminists” suggest are that in the workplace the assumption that the worker does not have primary family responsibility should be eliminated and with it the requirements of long hours, uninterrupted workplace attendance, including no pregnancy, willingness to travel and undertake entertainment responsibilities, should be eliminated as a basis for advancement. In addition, in other writings, “Radical Feminist” authors have advocated the elimination of anger as a management tool and the addition of free day care centers.

Both outside and inside the workplace, “Radical Feminist” writers, particularly Leslie Bender, have also advocated changing references in legal literature from “reasonable man” to “reasonable person,” but not just in name. In doing so, they suggest changing our focus from the “male values of efficiency and economics” to the “feminine values of responsibility and care for others.” This, of course, would arguably have a potentially serious economic impact on our society, which will be considered in a future column.

In addition, feminist legal writers, again particularly Leslie Bender, have argued that the legal definitions of “self-defense,” particularly in homicide and assault cases where a battered woman attacks her abuser, should be changed to eliminate the requirement that her actions be in response to an “imminent” threat or fear of bodily harm or death. That requirement these feminist writers assert is based on a “male model” of conduct and fights. It does not reflect the reality of the usual differences in size and strength between men and women, and it does not fairly provide for the woman to have a chance to legally protect herself from her male tormentor’s abuse by attacking him either before he comes after her again or sometime thereafter.

Some of these proposals, which might have been considered “radical” thirty years ago, in fact, have been enacted by the Maryland General Assembly. Some have been incorporated into the common law of this State by our appellate courts. Some are still percolating in law schools and universities. The social and economic costs of all this, particularly as analyzed by those legal academicians and economists, who subscribe to the Law and Economics School of Jurisprudence, will be discussed next time.

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