How "Feminist Jurisprudence" Works

Anti-feminists have said that sounds like a contradiction in terms.

But Patricia Smith argues it isn’t contradictory. It is a “self-interested” account of jurisprudence, she says. First, what makes her theory feminist is not simply that she is a woman writing about jurisprudence. That’s far too simplistic, and you should be wayyy over that. Consider this. We all operate within a worldview that constitutes a certain “picture of reality” – a picture that is profoundly and systematically gendered.

This worldview is patriarchal. Therefore the jurisprudence it produces is also patriarchal. A feminist jurisprudence is working to combat the patriarchy within jurisprudential theory and beating down its hostilities to real equality, and therefore it is a defense of real jurisprudence from the wild misrepresentations and biases provided by the patriarchal model.

“If law stands for justice,” she argues, “it must be justice for all.”

Her account of jurisprudence is in line with the Marxist account of law as a part of the superstructure, part of the dominant code of society. In a sense, while she’s arguing against the ideological forms of jurisprudence, she is making a claim that is much more similar to natural law theorists, who posit that there is something, justice, to which all law must aspire. If the law is not aspiring to justice, she can make a claim that it is not really law at all.

I agree with this analysis. Patricia Smith’s feminist jurisprudence is a critique of jurisprudence – “patriarchal jurisprudence”, which is redundant now that we’ve spelled it out.

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How "Feminist Jurisprudence" Works

Anti-feminists have said that sounds like a contradiction in terms.

But Patricia Smith argues it isn’t contradictory. It is a “self-interested” account of jurisprudence, she says. First, what makes her theory feminist is not simply that she is a woman writing about jurisprudence. That’s far too simplistic, and you should be wayyy over that. Consider this. We all operate within a worldview that constitutes a certain “picture of reality” – a picture that is profoundly and systematically gendered.

This worldview is patriarchal. Therefore the jurisprudence it produces is also patriarchal. A feminist jurisprudence is working to combat the patriarchy within jurisprudential theory and beating down its hostilities to real equality, and therefore it is a defense of real jurisprudence from the wild misrepresentations and biases provided by the patriarchal model.

“If law stands for justice,” she argues, “it must be justice for all.”

Her account of jurisprudence is in line with the Marxist account of law as a part of the superstructure, part of the dominant code of society. In a sense, while she’s arguing against the ideological forms of jurisprudence, she is making a claim that is much more similar to natural law theorists, who posit that there is something, justice, to which all law must aspire. If the law is not aspiring to justice, she can make a claim that it is not really law at all.

I agree with this analysis. Patricia Smith’s feminist jurisprudence is a critique of jurisprudence – “patriarchal jurisprudence”, which is redundant now that we’ve spelled it out.

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