Feminist Jurisprudence

• Author: Jeffrey Lehman, Shirelle Phelps

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A philosophy of law based on the political, economic, and social equality of the sexes.

Overview

Feminist jurisprudence is a burgeoning school of legal thought that encompasses many theories and approaches to law and legal issues. Each strain of feminist jurisprudence evaluates and critiques the law by examining the relationship between gender, sexuality, power, individual rights, and the judicial system as a whole. As a field of legal scholarship and theory, feminist JURISPRUDENCE had its beginnings in the 1960s. By the 1990s it had become an important and vital part of the law, informing many debates on sexual and DOMESTIC VIOLENCE, inequality in the workplace, and gender-based discrimination at all levels of U.S. society.

Feminist jurisprudence intersects with a number of other forms of critical theories, most notably critical race theory and the study of GAY AND LESBIAN RIGHTS. Moreover, the form of feminist thought that focuses on legal theory draws from feminism in other disciplines, including sociology, political science, history, and literature. Leaders in the feminist jurisprudence camps thus do not focus exclusively upon purely legal aspects of feminism.

A Brief History of Feminism

The feminist political movement began in the nineteenth century with a call for female suffrage. At a convention in Seneca Falls, New York, in 1848, a group of women and men drafted and approved the Declaration of Rights and Sentiments. This document, modeled on the language and structure of the Declaration of Independence, was a bill of rights for women, including the right to vote. Throughout the late 1800s, feminist leaders SUSAN B. ANTHONY and ELIZABETH CADY STANTON were persistent critics of male society's refusal to grant women political and social equality. In the mid-nineteenth

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century, many state legislatures passed married women's separate property acts. These acts gave women the legal right to retain ownership and control of property they brought into the marriage. Until these enactments a husband was permitted to control all property, which often led to the squandering of a wife's estate. Finally, when the NINETEENTH AMENDMENT to the U.S. Constitution was ratified in 1920, women gained VOTING RIGHTS in the United States.

The modern feminist movement began in the 1960s. In 1966 BETTY N. FRIEDAN, author of The Feminine Mystique (1963), organized the first meeting of the NATIONAL ORGANIZATION FOR WOMEN (NOW). In 1968 NOW staged a protest at the Miss America Pageant. By 1970 Robin Morgan had enough material on feminism to publish a popular anthology, Sisterhood Is Powerful. Women who had become CIVIL RIGHTS and antiwar activists in the 1960s soon turned their attention to gender discrimination and inequality. The decision in ROE V. WADE, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), which defined the choice of ABORTION as a fundamental constitutional right, became a touchstone for feminists who argued that women must have reproductive rights.

To many feminists, Roe v. Wade meant more than the choice to have an abortion. The Court recognized the fundamental right of choice, albeit with limitations, concerning a woman's right to make decisions regarding her body. Maternity, noted the Court, "may force upon the woman a distressful life and future," including psychological, mental, and physical health factors. The holding was a dramatic shift from traditional male-dominated jurisprudence which often sought to protect women in a paternal sense but did not recognize the rights of women to make fundamental choices on matters concerning their own well-being.

Accordingly, feminists have remained staunchly supportive of the Roe v. Wade decision, despite a heated national debate regarding abortion. Nineteen years after Roe, feminists rallied to support the decision when the Supreme Court reconsidered its decision in Planned Parenthood of...