Feminist Jurisprudence: Law as Patriarchal Institution:
← Older revision
Revision as of 05:17, 25 March 2013
Line 162:
Line 162:
Overall, extending marriage to same sex couples is an economically efficient outcome. It is likely most proponents of the philosophy would consider it a just outcome. Given the strong overtones of rights and freedoms, the court does not use any economic analysis in coming to its decision.
Overall, extending marriage to same sex couples is an economically efficient outcome. It is likely most proponents of the philosophy would consider it a just outcome. Given the strong overtones of rights and freedoms, the court does not use any economic analysis in coming to its decision.
-
== Feminist Jurisprudence: Law as Patriarchal Institution ==
+
By analyzing the ''Same-sex Reference'' through a feminist jurisprudence lens, the decision to extend the definition of marriage to same-sex couples reflects a shift in favour of feminist theory. Feminists would consider marriage a patriarchal institution when viewing it from the historical lived experiences of women. Marriage is just one institution in a society structured around patriarchy. The Supreme Court of Canada decision represents a break from such norms in constructing an alternative conception of marriage. The Court’s departure from the common law definition of marriage between a man and woman represents a victory for same-sex couples but also women more generally, regardless of whether they fit into that group. The reconceptualization of an institution that has long silenced women is a step toward equality for all and one which liberal feminists prefer because it reorganizes social life to provide equality within the current institutions of law and marriage.
-
The
feminist jurisprudence would consider the traditional concept of marriage as a patriarchal institution. The proposed provision purports
to extend the
marital concept to include same-sex couples
.
In the Reference, the court
is
faced
with
the question
of
whether this legislative reform is consistent with the Charter
.
In concluding that it is
, the
court makes reference
to
the values of equality under section 15
of the
Charter
.
This reasoning could be seen as an extension
of the
feminist priority on equality rights. The
court
is further faced with
the
question of whether religious officials remain protected by
the
freedom
of
religion guaranteed by section 2 of the Charter
.
The court suggests that “’frozen concepts’ … [run] contrary
to
one of
the
most fundamental principles
of
Canadian constitutional interpretation: that our Constitution is
a
living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life
.
” These “modern realities” include
the
diversity
of
religious beliefs
and
sexual orientations, as protected by
the
Charter guarantees
. The
issues addressed by the
court
consider
the
diversity
of
subjects who could potentially be impacted
by
the new provisions. This type of focus is consistent with the feminist’s rejection of the Universalist’s abstract notion of human beings as neutral
,
monolithic subjects
.
+
The
Supreme Court suggests that law and our constitution are not “’frozen concepts” but that they are to be interpreted
to extend
to
the
“modern realities” of society
.
This
is
in line
with
feminist’s rejection
of
abstract and grand theories of law and in favour of an approach to law grounded in social realities which reveal inequalities
.
However
,
feminists like Catharine MacKinnon would likely be critical of
the
court’s viewing rights as owing
to
neutral beings that are to be applied evenly without consideration
of the
patriarchal environment in which they operate
.
By failing to recognize how men have dominated women in the institution
of
marriage,
the court
was blind to
the
fact that
the
exclusion
of
same-sex couples stems from this social fact
.
Same-sex couples present a contradiction
to the
status quo and allowing a different conception
of
marriage would be
a
challenge to male domination because it would allow equality generally
.
Feminist theory according to MacKinnon advocates viewing powerful structures in society including law through
the
specific lives
of
people
and
in particular women because gender relationships inform
the
way society is structured in all respects
. The court
, however, continued to view ''Charter'' rights as rights for neutral individuals which allowed them to separate
the
concept
of
inequality
by
de-contextualizing it and therefore
,
sustaining patriarchy
.
-
In the first question, the court addresses the scope of legislative authority of the Parliament. The independent role of the judiciary reflects the separation of powers that governs our system. The latter three questions purport the court to consider pertinent rights guaranteed by the Charter. The feminist jurisprudence would argue that the court’s reasoning ostensibly seeks to ensure equality, religious freedom and the rule of law, but in reality, functions as a vehicle to reinforce the underlying patriarchy of our system as a whole. Under this perspective, the court’s decision is merely a superficial facet or guise that fails to actually address the inherent inequality at the roots of our system. A feminist would view this case as simply one of many illusions of equality and fairness, in order to maintain the “invisibility” and “legitimacy” of the status quo. She would recognize that the questions themselves are grounded in the “male point of view,” from its linguistic articulation to its contextual understanding. In answering the questions, the role of the judge includes interpreting the applicability of the Charter. In light of this, a feminist may approach the issues by interpreting the principles in relation to its impact on women’s experiences. However, she would recognize the compelling saturation of patriarchy in virtually every realm of our existence. Therefore, in order for a decision to truly be meaningful in her view, it would require restructuring the criteria of analysis so that it is not simply an extension of the patriarchy.
+
While the different theorists within the feminist jurisprudence would approach the
case
differently, they would likely yield the same outcome as the one reached by the
Supreme Court of Canada
. Specifically, the liberal feminist would
believe that the ''Same Sex Reference'' was decided correctly because it provides
for
equality within
the
current system
. The Marxist feminist would support the
decision because
same
sex couples within
the
institution of marriage present
a
challenge to men and women having to be constrained
in
their respective public and private spheres of social and
economic
life
. The radical feminist
would agree with the outcome because it can aid in reconstructing a patriarchal institution, however,
would call for more systemic
changes in society
.
Finally, the
relational feminist would
support
the
court’s decision
but
would find
that the court
took
a male
-centred “ethic
of
justice” approach
of
abstract legal principles rather than
the
perspective
of the
“ethic
of
care” required for equality
in the law.
-
+
-
While the different theorists within the feminist jurisprudence would approach the
issues
differently, they would likely yield the same outcome as the one reached by the
court in this case
. Specifically, the liberal feminist would
aim
for
equal opportunity to come to
the
same conclusion; she would refer to the ideal of “gender blind law” in answering the questions re: same sex marriage
. The Marxist feminist would support the same
conclusion by considering its economic implications; he would view
the
decision as
a
positive step toward equality
in
the
economic
system
. The radical feminist would call for
a
more
radical approach: she would emphasize that the answers are merely a response to an existing structure and that equality requires dismantling and reconstruction from the
systemic
roots
.
The
relational feminist would
agree with
the
outcome
but
maintain
that
it is based on an “ethic of justice,” as opposed to a much-needed “ethic of care” in the legal system.
+
-
+
-
Catharine MacKinnon would recognize
the court
's decision as
a
guarantee of sex equality rights. However, she would add that the gender neutrality of the new marital definition is not as important as its role in undermining
male
supremacy. However, she would note that the court’s criteria
of
analysis do not sufficiently detach itself from women’s experience
of
subordination. MacKinnon would reject
the
abstractness
of the
values embodied in sections 1, 2 and 15
of
the Charter, but recognize that they do provide an opportunity – what she refers to as “a crack
in the
wall between
law
and society.” In lieu, she would opt to define concepts such as equality, religious freedom and legislative supremacy in terms of women’s concrete and substantive experiences. She would consider the Charter guarantees in this case as an initial step in “consciousness raising.” A common theme amongst the various theories is the view that the questions in the case are framed within an established scope that denies the opportunity to reflect beyond its patriarchal limitation. In other words, a feminist would come to the same outcome as the court, but she may not appreciate the confinements of the issues themselves
.
+
==Critical Legal Studies and Critical Race Theory TBD==
==Critical Legal Studies and Critical Race Theory TBD==