Feminist legal theory, also known as feminist jurisprudence, is a field of legal scholarship and activism that analyzes how law contributes to women's subordination and patriarchal power structures. The project of feminist legal theory is twofold. First, feminist jurisprudence seeks to explain how the law plays a role in maintaining women's subordinate status. Feminist legal theory recognizes that the legal system was built primarily by and for patriarchal intentions, often forgetting important experiences women, girls, and marginalized communities face.
Second, feminist legal theory is dedicated to changing women's status through a rework of the law and its approach to gender. It is a critique of American law that was created to change the way women were treated and how judges had applied the law to keep women in the same position they had been in for years. The women who worked in this area studied the law's function in holding women in a lower place in society than men based on gender assumptions (which judges have relied on to make their decisions). This movement originated in the 1960s and 1970s to achieve equality for women by challenging laws that made distinctions based on sex. One example of this sex-based discrimination during these times was the struggles for equal admission and access to their desired education. The women's experiences and persistence to fight for equal access led to low rates of retention and mental health issues, including anxiety disorders. Through their experiences, they were influenced to create new legal theory that fought for their rights and those that came after them in education and broader marginalized communities which led to the creation of the legal scholarship feminist legal theory in the 1970s and 1980s. It was crucial to allowing women to become their own people through becoming financially independent and having the ability to find real jobs that were not available to them before due to discrimination in employment. The foundation of feminist legal theory reflects these second and third-wave feminist struggles. However, feminist legal theorists today extend their work beyond overt discrimination by employing a variety of approaches to understand and address how the law contributes to gender inequality. The term was first published in 1978 in the first issue of the Harvard Women's Law Journal. This feminist critique of American law was developed as a reaction to the fact that the legal system was too gender-prioritized and patriarchal.
The foundation of the feminist legal theory was laid by women who challenged the laws that were in place to keep women in their respective places in the home. A driving force of this new movement was the need for women to start becoming financially independent.
The sexual difference model
The difference model emphasizes the significance of gender discrimination and holds that this discrimination should not be obscured by the law, but should be taken into account by it. Only by taking into account differences can the law provide adequate remedies for women's situation, which is in fact distinct from men's. The difference model suggests that differences between women and men put one sex at a disadvantage; therefore, the law should compensate women and men for their differences and disadvantages. These differences between women and men may be biological or culturally constructed.
In the account of dominance proposed by Catharine MacKinnon, sexuality is central to dominance. MacKinnon argues that women's sexuality is socially constructed by male dominance and the sexual domination of women by men is a primary source of the general social subordination of women. According to MacKinnon, the legal system perpetuates inequalities between women and men by creating laws about women using a male perspective.
Additionally, MacKinnon further applies her dominance model of feminist legal theory to transgender sex equality. She criticizes the libertarian Textual and Literal Approach for exacerbating, rather than eliminating, the discrimination faced by lesbians, gay men, and transgender men and women. MacKinnon argues that the liberal Anti-Stereotyping Approach benefits only those who do not conform to stereotypes and yet meet the dominant standards while offering no help to those who face discrimination based on subordinated stereotypes. She asserts that only by adopting the Substantive Approach, inspired by her dominance model and focusing on the gender hierarchy driven by sexualized misogyny, can intersectionality be properly addressed, ultimately benefiting all women.
The anti-essentialist model
Anti-essentialist feminist legal theory was created by women of color and lesbians in the 1980s who felt feminist legal theory was excluding their perspectives and experiences.
When feminist legal theory practices under an essentialist lens, women of color are often dismissed as they would in historical legal theory. While race is an important factor in feminist legal theory, it can also be misconstrued in a way that silences women of color, furthering racism in a system created to build more access. For this reason, Crenshaw's "Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color" should remain a canonical to this topic to continue to support and challenge the gender essentialism within feminism culture and ideology the marginalized women of color by protection them further in legal implications through support. Feminist legal theory is still evolving to diminish gender and race essentialism to recognize how oppression and privilege work together to create a person's life experiences.
The postmodern model
Postmodern feminist legal theorists reject the liberal equality idea that women are like men as well as the difference theory idea that women are inherently different from men. This is because they do not believe in singular truths and instead see truths as multiple and based on experience and perspective. Feminists from the postmodern camp use a method known as deconstruction in which they look at laws to find hidden biases within them. Postmodern feminists use deconstruction to demonstrate that laws should not be unchangeable since they are created by people with biases and may therefore contribute to female oppression.
Hedonic Jurisprudence
Feminist legal theory produced a new idea of using hedonic jurisprudence to show that women's experiences of assault and rape was a product of laws that treated them as less human and gave them fewer rights than men. With this feminist legal theorists argued that given examples were not only a description of possible scenarios but also a sign of events that have actually occurred, relying on them to support statements that the law ignores the interests and disrespects the existence of women. The most common form of feminist legal reasoning was placing the case within a wider context of the experience of those involved or another wider context, which could involve showing empathy for women involved in cases.