Published: 13th September, 2016 Last Edited: 7th March, 2017
Brief 215632 In order to answer this question one must first assess and consider the theory of feminist jurisprudence. This will require an in-depth analysis of the theory and the principles of postmodernism. Further, in order to answer this question one must assess the principles that interpose themselves in law, namely the role of sex. Feminist jurisprudence can be said to be a theory that stands out from the classic theories that occupy the thoughts in jurisprudence. Feminism can be defined thus. The idea that man has created law for the sole purpose of restricting female interaction and conduct. Feminist jurisprudence technically responds to the current understanding of legal thought, which arguably is identified with the liberal Anglo-American tradition. Two of the major branches within this sphere of thought are occupied and identified by legal positivism and natural law. These will be examined below in detail. Feminist jurisprudence can therefore be seen to respond to both these classic examples in Anglo-American traditions, and raises and identifies problems about the creation and assumptions of law. The rules of feminist jurisprudence provides that the law must be able to be properly objective and identifiable. This clearly provides that the views must be placed against a set of objective criterion. This further provides that the law must be impartial and not bent into a man’s previous experience and desire to control women. Thus, feminism argues that the law should provide a conceptual basis for equality, rather than control. Equally, the idea of feminism provides that the law should be certain and consistent in order to achieve the overall objective of justice. Within the mainstream thought of feminist jurisprudence the debate is centralised upon the ideas of two conflicting beliefs. These are the school of thought that centres around the reformist tradition against the radical tradition. The reformist school of thought argues that the liberal tradition should be reformed so that man can no longer control women by recourse to the law. Whereas the radical tradition identifies the fact that man has created the law with all it’s inherent problems and failings and fundamentally fails to achieve a just outcome. They further argue that if a legal system is based upon fundamental failings then it can not be restructured and reshaped. Thus, according to feminist jurisprudence the legal system should be departed from and recreated by using traditional feminist beliefs. They further argue that this will allow for strict compliance with justice. However, it is worth noting that this school of thought states that the rights of women must be regarded and advised according to the law. This would imply a certain degree of inconsistency within the framework. This would mean that justice would alter according to the person who is seeking access to the law. In order to fully compare and contrast the basis and importance of feminism it is important to note other classic theories within the sphere of jurisprudence. This is the idea of natural law.
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