Tag Archives: feminist jurisprudence

Food for Thought: Feminist Legal Theories and the Construction of Categories

One of the threads that runs through the various schools of feminist legal theory is the idea that law and legal processes play a role in the construction of Women as a category (and as a subjectivity). For liberal feminists, this involves treating women as a group (and thereby creating ‘women’ as a generalizing legal category), rather than as individuals before the law. For radical feminists, the law – like the state – is regarded as malecentric and patriarchal, and it is implicated in the normalization of inequalities based on sexuality and gender. For postmodern feminists like Smart, law is gendered – legal discourse employs, reproduces, and constructs particular gender categories.

For this week’s food for thought question, I would like to explore some examples of the construction of gendered categories / identities / subjectivities through law.

Food for thought:

Select a particular approach to feminist legal theory. Then, write a post that:

  • Opens with a brief overview of the main features and ideas of your chosen theory;
  • Introduces a case study (a legal case, process, statute, etc.), and;
  • Explains, drawing on your chosen theory, how the case study demonstrates the role of law in the construction of a particular (gendered) understanding of women.

Further requirements:

  • You may not select R. v. Kahpeaysewat [2006] as a case study
  • You must engage with Pavlich (2011) and Comack (2006), and, where appropriate, Smart (1992)
  • You must engage with additional sources to describe your case study

Posts prepared in response to this question must be submitted before class on October 28



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Policy and Prejudice

The New York Police Department has implemented a “Stop- and- Frisk” program that allows police officers to stop and search any person who they believe to be participating in criminal activity. The policy allows for very broad discretionary powers by law enforcement officials. The way a person looks alone can determine whether they will become a target of a stop- and- frisk by police. It allows for glaring inequalities that some would say constitute racism. Officers are encouraged by quotas and possible disciplinary action to complete these types of investigations. The intention of this program is to take a proactive approach to crime control. The hope is that these “investigations” will prevent criminals from carrying out their intended illegal activity. It is a policy designed to make the public feel safer on the streets and show that the police are doing something to prevent crime from occurring rather than simply responding to it.

According to the United States Census bureau the racial breakdown in New York City for 2011 was as follows: 71.5% White, 17.5% black, and 18% Hispanic or Latino. Even if we combined the black and Hispanic race numbers, it does not even equal half of the white population. The Stop and Frisk video suggests that in the last decade more than 87% of those stopped were black or Latino. The remaining 13% of those stopped are split up between several racial groups including Caucasian. This suggests that the number of Caucasian people stopped by the stop and frisk initiative is very small. These statistics strongly support and argument towards racial profiling by police.

Over the years the public has seen several small insights into police mentality and subculture relating to race and gender biases. We can draw on examples such as the Rodney King case or the Neil Stonechild inquiry to support these claims. An over representation of a certain ethnic group within the criminal justice system is a very important issue that demands immediate address. These are long-standing issues of policy and practice.

Critical Race Theory examines the relationship between power, race, and law. To be able to understand how race plays a role in this structure, we must first define Critical theory in this context. Critical theory has influenced many philosophers and sociologists because of its broad application potential.  It concerns itself with the critique and modification of society as a whole to correct inequality. It strives to change law from within and raise consciousness. It explains how law can serve to perpetuate hierarchical structures within society.  Similarly, Critical Race Theory is closely tied with the civil rights movement of the 1960’s and promotes social justice and equality with the law. According to Matsuda et al. 1993: 5, critical race theory describes racism

“not as isolated instances of conscious bigoted decision making or prejudiced practice, but as a larger, systemic, structural, and cultural, as deeply psychological and socially engrained” (Pavlich 2011).

Proponents of Critical race theory strive for an overhaul of the criminal justice system and our principles and policies in order to be more sensitive to a critical race perspective.

The stop and frisk program is a good example of a crime control model of law enforcement. Crime control asserts that police should have a very large amount of discretionary power to facilitate increased searches, seizures, and arrests. It focuses on a chain of assumption. We would assume that the accused is guilty based on the investigations of the police and their willingness to bring it to trial. It relies heavily on the determination of factual guilt under the law and leaves little room for circumstances or developing social norms. The idea is that enforcement is the key to controlling crime and the details are less important. The most important thing is results. Another good example in a Canadian context would be the safe streets and Communities act (Bill C-10). The portion of that act that deals with solicitation and panhandling is a good example of how the government is targeting the poor by handing out fines to people who already have no money. As a citizen I was not concerned with “squeegeeing” and panhandling before the government decided to “get tough”. It is an example of policy that creates moral panic and instructs citizens to be concerned with and report undesirable activity because it is now illegal. Critical theorists would argue that this kind of policy is maintaining a hierarchical structure or an “us and them” mentality. It divides society and allows for the continuation of discriminatory practices and laws.

The feminist jurisprudence perspective is relatively simple on this issue. Feminist movements strive to bridge the gap of inequality between men and women. Much has been said about the NYPD stop and frisk program relating to race, but there is no mention of the gender breakdown of these stops. The debate focuses on the disproportionate number of members of minority groups being stopped by the police and makes no note of inequality concerning gender. It is impossible to make any inferences as the the effect of this policy on females without more reported data.

Police quotas are, like in any profession incentives to increase productivity. There is a reason that so many agencies have implemented a quota system. The issue arises when a quota and threat of professional discipline is the sole determining factor in issuing a ticket or stopping an individual on suspicion.  As in anything, the devil is in the details and some policing initiatives are no exception.  The general public has been conditioned to fear crime and poverty by the government and media institutions. When a public panic arises it is up to the police to come up with a new way to cull these fears and restore peaceful order. The main issue with the stop and frisk program is not that it exists,  it is the extremely high level of discretion that comes along with it. When there is discretion, there is inevitably abuse of that discretion.

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