Gender and the Analytical Jurisprudential Mind
| DOI | http://doi.org/10.1111/1468-2230.12516 |
| Author | Leslie Green |
| Published date | 01 July 2020 |
| Date | 01 July 2020 |
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Modern Law Review
DOI: 10.1111/1468-2230.12516
REVIEW ARTICLE
Gender and the Analytical Jurisprudential Mind
Leslie Green∗
J. Conaghan,Law and Gender, Oxford: Oxford University Press, 2013,
272 pp, hb £81.00.
LAW AND JURISPRUDENCE
What can feminism contribute to the study of law? A lot. Feminist theories take
a special interest in the role of gender in society and, as far as we know, every
society that has a legal system also has a gender hierarchy in which women
are dominated by men.1It would be a miracle if the law was not shaped by
gender norms. In turn, law supports and helps constitute those nor ms: the
doctrine of feme covert that limited marr ied women’s control over property did
not merely reflect background misogyny, it gave it shape and force. Feminist
scholars have explored such issues in many contexts and found their etiology
distressingly similar. This is of academic interest and of practical import: it can
help us understand what it is for women to be disadvantaged by law, the ways
that happens, and the remedies that might be feasible. These are immensely
important contributions to the study of law.
What can feminism contribute to the study of jurisprudence? This is tr ickier.
Of course, if ‘jurisprudence’ means law – as when we use the term to refer to
case law or general principles of law – we already have our answer. But what if
‘jurisprudence’ means the philosophy of law and, in particular, the philosophy
∗Professor of the Philosophy of Law, University of Oxford, and Fellow of Balliol College. Professor
of Law and Distinguished University Fellow, Queen’s University, Kingston, Canada. I thank Chris
Essert, Darryl Robinson, the referees for Modern Law Review and, especially, Denise R´
eaume for
careful criticism of earlier versions of this paper.
1 There are many feminisms, but none fail to give gender a central explanatory, and sometimes
normative, role. For a philosophically informed discussion of feminism in legal analysis, see D.
R´
eaume, ‘What’sDistinctive about Feminist Analysis of Law? A Conceptual Analysis of Women’s
Exclusion from Law’ (1996) 2 Legal Theory 265. For a helpful treatmentof feminism in philosophy
see A. Stone, An Introduction to Feminist Philosophy (Cambridge: Polity, 2007).
C2020 The Author. The Modern Law Review C2020 The Modern Law Review Limited. (2020) 83(4) MLR 893–912
Gender and the Analytical Jurisprudential Mind
of law in the analytic style dominant throughout the Anglophone world and
in many other places as well?
There is plenty of good feminist writing in the normative branches of
jurisprudence that overlap with moral and political philosophy.2Feminists have
tackled issues such as the importance of relationships in morality, free speech and
pornography, and the connection between domestic equality and social justice.
There is no harmony here, but we are familiar with a range of well-articulated
feminist positions.
Suppose, however, we are thinking of what is usually called ‘conceptual’ or
‘descriptive’ jurisprudence.3To assess the relevance of gender here we need to
take the question in two stages. General jurisprudence is audacious in ambition. It
addresses the nature of law as such, anywhere and everywhere. Its central topics
include the existence, identity, and structure of legal systems, the nature of legal
norms, the relationships between law and morality, and the dependence of law
on social facts. In contrast, special jurisprudence is concerned with conceptual
problems about particular kinds of legal systems (eg, common law, civil law or
Sharia law) or particular doctrines within legal systems (eg, property, contract
or family law). General and special jurisprudence differ in level of generality
– but not only in that. They also differ in the evidence base with which
they begin. Law is not itself a technical legal concept; it is part of ordinary
social and political thought, and general jurisprudence begins with ordinar y
(lay) knowledge of law and society. Whether, for example, ‘indigenous law’
or ‘Masonic law’ count as law is not determined by how any particular legal
system regards the rules of indigenous bands or Freemasons’ lodges. Whether
according to Australian law indigenous law is ‘really’ law has no more importance
for general jurisprudence than whether, according to Australian law, German
law is really law. A social order is law if and only if it has enough features of the
core cases of legal systems.4What features those are is not a question that can
be answered by consulting the law of some jurisdiction or other. (Which one
would we pick?) General jurisprudence is a department of political theory. We
2 The literature is vast, but a beginning would have to include: C. Pateman, The Sexual Contract
(Cambridge: Polity Press, 1988); S. Moller Okin, Justice, Gender, and the Family (New York, NY:
Basic Books, 1991); M. Nussbaum, Sex and Social Justice (Oxford: OUP, 1999); C. Calhoun,
Feminism, the Family, and the Politics of the Closet: Lesbian and Gay Displacement (New York, NY:
OUP, 2000).
3 I treat these as rough synonyms. Ronald Dworkinargues that there is no such thing as descr iptive,
conceptual jurisprudence: ‘Hart’s Postscript and the Character of Political Philosophy’ (2004) 24
Oxford Journal of Legal Studies 1. If that weretr ue,all conceptual jur isprudence would be normative
jurisprudence, and feminism would be relevant to it for the reason I givea bove. Dworkin’sthesis
is not relied on in any of the arguments I test here. I examine some of its foundations in L.
Green, ‘Associative Obligations and the State’ in J. Burley (ed), Dworkin and his Critics (Oxford:
Blackwell, 2004) 267-284.
4 If indigenous law or Masonic law do not share enough of these features to count as law, they may
nonetheless be importantly like law for various purposes. The idea that general jurisprudence is
interested only in law sensu stricto, or that it harbours a secret ambition to police the boundaries
around ‘law’, is simply false. Even John Austin knew that many things that are not law ‘are
connected [to law] by ties of resemblance and analogy;with which they are further connected by
the common name of “laws”’. J. Austin, The Province of Jurisprudence Determined W. E. Rumble
(ed) (Cambridge: Cambridge University Press, 1995) 51.
894 C2020 The Author. The Modern Law Review C2020 The Modern Law Review Limited.
(2020) 83(4) MLR 893–912
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