Posts Tagged ‘roundtable discussion’

The title for the first FLF roundtable discussion, “Feminism and Law: Why and How”, lays the topics out pretty clearly. Timing constraints and the inherent fluidity of these kinds of discussions led to more of a “Why and Where” focus, but I think the “How” part flows pretty organically from that. 
In a nutshell, Professor Parkes identified two “Whys” behind feminist critical engagement with the legal system. First, it is important to recognize and identify the biases that are inherent in a system that purports to be objective and neutral. The legitimacy of the legal system rests on these claims, but that does not mean that we should take their truth for granted. The example was given of the ubiquitous “reasonable person” test. Up until very recently, the legal decision-makers in the common law world were overwhelmingly–if not exclusively–white men. Feminism points out and criticizes the tendency across disciplines to treat the white male perspective as “neutral” or “default”, and this critique is no less true in the legal sphere. When we associate one specific social group with a particular mode of thought (i.e. neutrality) we give that group privileged access to it, while also marginalizing or outright silencing viewpoints that may be different but no less valid. Part of the feminist project is to draw attention to and correct these unaddressed biases.
The other “Why” engages law at a more practical level. Law as a form of social organizing force has the power (some power, at any rate) to redress the inequalities identified by the kinds of theoretical excursions mentioned above. Because we live in a society that is ostensibly concerned with equality, the law is at least sympathetic to feminist arguments some of the time, and those arguments can and should be advanced by lawyers with a feminist bent. On the other side of the same coin, we must be vigilant and vigorously oppose political attempts at retrenchment that inevitably arise. 
Moving on to the “Where” discussion that came up, the answer is pretty obvious, but it’s one of those things that may be right in front of you so often that you just forget it’s there. Anyone who has been a wide-eyed First Year knows the feeling that you get after a few weeks or months of classes. Your blinders have been removed and you see that law is everywhere. From the large-scale transactions that make modern life possible, to the interpersonal relationships that make it worthwhile, almost everything we do engages the legal system explicitly or implicitly. And, if law is everywhere, then at least parts of it are going to engage gendered norms that are open to feminist critique.
Professor Parkes came to the discussion with a long list of disciplines and subdisciplines where feminist thought is applicable. We didn’t cover nearly everything, so here are some highlights.
Family Law, of course, came up early. Issues relating to the division of labour within a relationship and the division of property upon marriage breakdown may fail to fully acknowledge the unpaid contributions of a partner (usually female). On the custody and access front, the cultural connection between womanhood and mothering means that there is a strong bias in favour of giving custody to mothers. Related to this is how we approach the question of parental leave; until fairly recently the expectation was that there would be a long maternal leave and that was it. 
Turning to the law of Torts, the issue of limitation periods and their impact on sexual assault or child sexual abuse claims was raised. In Criminal Law we still struggle to balance the right of an accused to full answer and defence with the idea that a victim of a crime such as sexual assault should be able to access the criminal justice system without being unduly revictimized in the trial process. Contract Law, with its focus on agency and autonomy, benefits from a feminist understanding of power relationships. The example given related to surrogacy. Perhaps surprisingly though, the research that has been done in that area shows that, despite concerns of manipulation, coercion, and exploitation, for the most part, the women who agree to be surrogates do so freely and willingly. Nevertheless, the exploration of the question may not have happened at all were it not for that initial feminist question.
This, then, brings us to “How”. Though the point was never explicitly made, everything up to now points in a clear direction, to a fairly simple (conceptually) process: discuss, investigate, act. Groups like the Feminist Legal Forum exist with more or less these exact objectives in mind. We know what to do. Let’s do it.
*Reuben Kellen is a 3rd year student with an interest in any area of law that gives him a chance to hold forth. Having spent time working at the Law Society of Manitoba since the summer after 1st year, he’s seen the best and worst the legal profession has to offer.

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