The Law That Shapes Us: "Contemporary Feminist Jurisprudence"
Law DPhil candidate, Chelsea Wallis, examines contemporary feminist jurisprudence as part of The Law That Shapes Us.
The task of assessing the impact of feminist approaches to the law and to legal institutions is not a simple one. As with many social justice movements, promising developments towards substantive gender equality in some parts of the world are counterbalanced by equally significant regressions elsewhere: the progress made towards securing the rights of women and girls has never advanced in a straight line. Feminist activism and jurisprudence too have evolved in waves, gradually incorporating and eventually recentring the lived realities of the most marginalised at the core of feminist thinking by adopting a dynamic, intersectional perspective on oppression. This article considers the shape that contemporary feminist legal theory and methodology have taken, before exploring key issues in which a feminist lens has been applied to the law. These examples span both the Global North and the Global South, including reproductive autonomy and domestic abuse, as well as sexual harassment and the reverberations of #MeToo upon the criminal law and on defamation.
Contemporary feminist jurisprudence is informed by thinkers as temporally and theoretically diverse as Mary Wollstonecraft and Kimberlé Crenshaw, united by a shared recognition of the barriers which continue to hinder gender equality within changing social, cultural, and political contexts. A key insight from feminist legal analysis is that the entrenched demarcation between public (traditionally masculine) and private (traditionally feminine) spheres continues to pervade the law, explaining how the reluctance to intervene in family life impedes the effective regulation of issues such as domestic abuse or marital rape. As Sandra Fredman explains in Women and the Law, the liberal legalism on which the public/private distinction is premised also ‘renders invisible the value and significance of reproductive labour and ignores the role of the family as one of the chief means of educating and socialising future citizens’ (17).
In the language of human rights, the consequent privileging of negative liberty – civic freedom from interference by the State – over positive duties – which oblige the state to provide for the social and economic rights of its citizens – has an abiding impact on women’s lives, including the unequal burden of domestic labour and the pressure of fulfilling unpaid caring responsibilities.
These impacts are, predictably, felt most keenly by those who lack the resources to advocate for their rights, especially women and families in poverty, a group disproportionately comprised of people already subject to chronic marginalisation on grounds of race, class, migrant status, or disability. As well as adopting an intersectional perspective, feminist legal thinking is thus also concerned with the nexus of capitalism and patriarchy; the project of achieving substantive gender equality is intricately intertwined with the pursuit of social justice more broadly. Consequently, in addition to supplying important theoretical insights, feminist jurisprudence is a praxis and a call to action, as exemplified by grassroots groups such as India’s Gulabi Gang, Australia’s Sisters Inside, and the UK-based Read and Resist! collective. Within the adjacent realm of academic activism, the Feminist Judgments Project, which rewrites the judgements in key cases through a feminist lens, is ‘a political intervention which seeks to challenge the ongoing exclusion of women from legal subjectivity … Rather than accepting our (feminine) invisibility and powerlessness, we have exercised collective agency to attempt to leave a female-gendered mark on the law’ (8).
These themes of collectivisation and solidarity are equally present in feminist empirical work: Oxford DPhil candidate Ellie Whittingdale’s article on becoming a feminist methodologist foregrounds the importance of reciprocity and reflexivity in sociolegal research and within legal spaces themselves.
The emphasis on trusting and valorising women’s voices, and especially those silenced due to intersectional oppression, is central to feminist jurisprudential thought with respect to reproductive autonomy. The traditional conceptualisation of the right to abortion solely in the negative terms of ‘privacy’ – effectively, a woman’s right to abjure interference from the State in determining whether to terminate a pregnancy – fails to appreciate the inherently context-specific social, political and cultural factors which affect the accessibility (and the stigmatisation) of abortion. It is those women who are already underprivileged that will face challenges in actualising their negative liberty. Rather, a positive, feminist approach to abortion regulation places obligations on the state to provide and facilitate access. It is critical that the right to abortion be considered as an equality right in terms of the social reality women face, not only in relation to equality with men in terms of bodily autonomy, but also in relation to the differential privilege experienced across demographics of women within and between cultures. Similarly, the reluctance of the judiciary to hold medical professionals to account in cases of negligent sterilisation resulting in ‘wrongful conception’ demonstrates the same paternalistic and patriarchal attitudes towards women’s bodily autonomy as those exercised in policing abortion access.
The treatment of domestic abuse is also a key site of feminist legal inquiry. Now widely recognised as a human rights issue, domestic abuse is a form of gender-based violence produced by systemic patriarchy and maintained by a legal system designed to regulate the public sphere rather than the private domain. Recent debates over the criminalisation of coercive control have revealed important cracks in the regulatory apparatus: within Australia, a focus on criminalisation, with parallels to the Council of Europe’s Istanbul Convention, risks targeting communities that are already vulnerable to the misuse of police power. In particular, advocates for indigenous communities have contended that policymakers must recognise and address the intergenerational trauma that many Aboriginal women – Australia’s fastest growing incarcerated demographic – have experienced at the hands of police, as these victims risk being disbelieved by authorities and often face pernicious stereotypes when reporting domestic violence. Similar concerns have been raised by migrant Australians and representatives of minority religions. These same themes emerge from Roychowdhury’s study in the radically dissimilar context of West Bengal, where women who seek police assistance confront not only misogynistic prejudice and social alienation, but crippling systemic pressures which disable them from seeking justice. Judicial and police passivity exacerbates discrimination, inevitably privileging those who are strong enough to advocate relentlessly on their own behalf and maligning women who lack this resilience or have fewer social or financial resources.
In the decades since the second-wave feminist movement, both gender-based violence and sexual harassment have been framed as flagship causes in the struggle for women’s social, political and economic equality. Sexual harassment reifies the same patriarchal values and preoccupation with control as in domestic abuse, although it is principally perpetrated in the public sphere. Sexual harassment is not about sex, but about the performativity of masculine dominance. A feminist jurisprudential lens is able to capture the gendered hegemony that underpins both issues; although not all harassment or abuse is perpetrated against women or nonbinary individuals, all its manifestations are nonetheless united by patriarchal values. Moreover, only an intersectional feminist framing is able to excavate the layers of oppression which operate on women of colour, those from poor and under-educated backgrounds, linguistic minorities, non-cis or non-heterosexual women, disabled women, and refugees, among others. The publicity attached to the #MeToo movement has catapulted the issue of sexual harassment in recent years, exposing the gender-based nature of the issue, but the high-profile cases of white, middle-class women have not been matched by the publicity accorded to the less privileged. These issues reflect pervasive social discourses, as MacKinnon comments: ‘#MeToo is cultural, driven principally by forces other than litigation, and is surpassing the law in changing norms and providing relief for human rights violations that the law did not – in some ways in current form could not, although law is embedded in culture and can and will change with it.’
Five years after #MeToo, how far has awareness and support for survivors of sexual harassment and violence progressed? To judge from the vitriolic, prejudiced, and horrifyingly misogynistic responses to the Depp v Heard defamation trial, the task of changing attitudes and understandings of gender-based violence is far from over. As Natasha Stott Despoja writes in her tract On Violence, eliminating the abuse and harassment of women and girls ‘requires a conscious and critical conversation about gender relationships, power, and what builds and changes culture’, situating feminist jurisprudence at the juncture of law, social activism, and academic inquiry. This conversation is a continuing, dynamic enterprise that demands attention and effort from all of us, both within and beyond legal spaces. It requires that we centre the voices of diversely-oppressed women, whose contributions have so often been elided. Equally, it demands that we consider how we enact feminism in our daily lives, our homes, and our workplaces, as well as through our political and judicial will. Yet as feminist jurisprudence evolves and continues to confront the project of dismantling structural, systemic inequality, it also deserves to celebrate the collective resilience emanating from a shared dedication to ending gendered injustice on a global scale.