American feminist jurisprudence is the study of the construction and workings of the law from perspectives which foreground the implications of the law for women and women's lives. This study includes law as a theoretical enterprise as well its practical and concrete effects in women's lives. Further, it includes law as an academic discipline, and thus incorporates concerns regarding pedagogy and the influence of teachers. On all these levels, feminist scholars, lawyers, and activists raise questions about the meaning and the impact of law on women's lives. Feminist jurisprudence seeks to analyze and redress more traditional legal theory and practice. It focuses on the ways in which law has been structured (sometimes unwittingly) that deny women's' experiences and needs. Feminist jurisprudence claims that patriarchy (the system of interconnected relations and institutions that oppress women) infuses the legal system and all its workings, and that this is an unacceptable state of affairs. Consequently , feminist jurisprudence is not politically neutral, but a normative approach, as expressed by philosopher Patricia Smith: "[F]eminist jurisprudence challenges basic legal categories and concepts rather than analyzing them as given. Feminist jurisprudence asks what is implied in traditional categories, distinctions, or concepts and rejects them if they imply the subordination of women. In this sense, feminist jurisprudence is normative and claims that traditional jurisprudence and law are implicitly normative as well" (Smith 1993, p. 10). Feminist jurisprudence sees the workings of law as thoroughly permeated by political and moral judgments about the worth of women and how women should be treated. These judgments are not commensurate with women's understandings of themselves, nor even with traditional liberal conceptions of (moral and legal) equality and fairness.
Although feminist jurisprudence revolves around a number of questions and features a diversity of focus and approach, two characteristics are central to it. First is that because the Anglo-American legal tradition is built on liberalism and its tenets, feminist jurisprudence tends to respond to liberalism in some way. The second is the goal of bringing the law and its practitioners to recognize that law as currently constructed does not acknowledge or respond to the needs of women, and must be changed. These two features can be seen in the major debates in current feminist jurisprudence, which range from questions of the proper perspective from which to understand the problems of the law, to questions of legal theory and practice.
Understanding Harm
Perhaps the most difficult question for feminist jurisprudence regarding the issue of harm is that of perspective: who defines and identifies harm in specific cases? Given that law has traditionally worked from a patriarchal perspective, it is perhaps not surprising that identifying harm to women has been problematic. A patriarchal system will benefit from a very stingy recognition of harms against women. Feminist jurisprudence, therefore, must examine the basic question, what is harm? It also must ask, what counts as harm in our legal system, and why? What has been excluded from definitions of harm that women need included, and how can such trends be overturned?
Three types of harm-causing actions that are typically and systematically directed against women have formed the background for discussion about what harm means, and what counts as harm: rape, sexual harassment, and battering. Until fairly recently (for example, before the legislative reform movements of the 1970s), some forms of these actions were not considered actionable offenses under the law. This was largely due to the history of understanding women not as independent and autonomous agents, but as property belonging to men (thus issues of the meaning of property are also crucial to understanding harm). Feminist jurisprudence has challenged this state of affairs. As a result, changes have been made in the laws regarding each of the three categories, although the effectiveness of these changes is widely disputed (see, e.g., Schulhofer 1998 for an excellent review of this law). At the very least, work by feminists has made it possible to speak of these harms by providing a vocabulary for them, by raising awareness about them, and by prosecuting them more frequently and with some success.
Discussions of rape attempt to answer many of the questions that apply to all three types of harm-causing actions. Cases of all three types give rise to similar problems that prevent women from being treated justly: blaming the victim; privileging the point of view of "the" agent, i.e., the male perpetrator; indicting the woman's sexual history while ignoring the man's history, whether sexual or violent. Underlying all these problems are assumptions about gender and agency which encourage the law to place responsibility for their own harm on women rather than on the men who cause it. Women have been believed to be mentally unstable or at least weak-minded, to be scheming and deceptive, and to have an improper motivation for making claims of harm against men. For these reasons, they tend to be seen as untrustworthy witnesses. Because they have been characterized as sexually insatiable and indiscriminate, they tend to be seen as deserving whatever harm they "provoke" from men. Corresponding assumptions about men's rational superiority encourage their being seen as believable witnesses. At the same time, assumptions about men's natural sexual needs are taken as justification for their violations of women. Feminist jurisprudence attempts to respond to these problems as double standards and matters of equality and rights.
Other issues of harm require different responses. Harm-causing actions tend to be defined in terms of external and observable characteristics (levels of force), of intention on the part of the agent (mens rea), and of the consent of the one harmed. Consequently, what is at issue is how law uses these criteria in determining both when harm has occurred and whether it is to be justified or excused. What feminist jurisprudence has found is that women and men frequently differ over the understanding of each of these criteria. But since it is a patriarchal understanding which grounds the law, women's understandings tend not to be given a proper hearing.
In Susan Estrich's discussion of rape (Estrich, 1987, 1987a), she claims that the mens rea criterion can be used to create either too much emphasis on the perpetrator's intention, or too little. In either case, she believes the focus on this criterion makes evident the law's lack of understanding of and concern for the harms women suffer. The law's focus is to not wrongly punish men, which is achieved at the cost of not protecting women.
Further, Estrich argues that the force criterion is understood from a patriarchal perspective: force is seen as a matter of what "boys do in schoolyards." This criterion figures force as a simple matter of the straightforward use of physical strength, or the use of implements of violence. But it ignores the kinds of force that are most frequently used in rape and other types of harm to women, such as psychological coercion. If the courts expect women to resist physical and psychological coercion in the same ways and at the same level that men do, then the courts impose an unreasonable expectation on the "reasonable" woman.
Regarding consent, Estrich explains that the courts have believed that if consent is given, then rape (or other harms) do not occur. This places responsibility on the one who has been harmed to show that she did not, in fact, consent. But patriarchal courts have held that only the strongest and most emphatic expression of non-consent functions as evidence. This means that in many cases, women have been said to have "consented" even though they were physically carried off by men and verbally expressed non-consent (Schulhofer 1998). Non-consent has not been easily proven unless the woman has been severely beaten, or unless a significant weapon (i.e., gun or knife) was used, or death was threatened in a way that convinces the court. Thus what non-consent means for the court has been very different from what women themselves have said about (their) consent.
Robin West (West, 1988) argues along similar lines, claiming that women's social training does not impart the same fundamental values that men's training does. She theorizes that men value separation and autonomy to the point that they would physically fight, desperately, to maintain theirs. But because women value connection and relation most highly, they find it difficult to respond to physical violence with violence of their own. Violence destroys connection and relationship, which is what women are socialized to value most. This makes it difficult for women to respond to rape, and other harms, in a way which convinces masculine courts that they did not consent. Women's definition and identification of these harms is very different from what the courts have so far constructed.
It is difficult to separate out some parts of the reformist or sameness and radical or difference approaches with regard to harm. In general, however, those who argue that current laws can be changed to adequately protect women have reformist or sameness views. Those arguing that the current definitions of harm simply cannot be revised sufficiently have radical or difference views. Thus Estrich, who concludes that we need to treat rape as we treat other kinds of crime which require nonconsent (theft, for example) could be considered a reformist view. Mary Lou Fellows and Bev Balos offer a similar analysis of how women's perception of the harms of date rape can be accommodated in current law. This can be accomplished by the application of the heightened duty of care that exists already in the common law doctrine of confidential relationship. (Fellows and Balos, 1991) West's argument, based on recognizing and responding to fundamental differences between men and women regarding harm, could be seen as a radical or difference view. MacKinnon's analysis of sexual harassment, which focuses on the need for women to be empowered to define the harms against them, represents a dominance view on harms.
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