Introduction

I start from the assumption that The Emergence of Feminist Jurisprudence: An Essay by Ann C. Scales (Patricia Smith (ed.), Feminist Jurisprudence, OUP, New York, 1993, 94-109) is representative of the intellectual level of Feminist Jurisprudence. I have not read any other works of Feminist Jurisprudence (as at mid-2004), but I think my assumption is a reasonable one, given the title of the book in which it appears, and given its similarity to the many other Feminist writings that I have read.

It is my experience that what gets published or taught by the education system is decided on the basis of political and economic factors. Since Feminists claim to represent a disadvantaged group (women), and this claim is arguably a foundation-stone of the dominant ideologies of modern Western states, powerful political and economic factors ensure the publication of Feminist writings.

My question, however, relates to the quality of these published writings. Feminist Jurisprudence would not attract my attention if I thought that it was generally ignored. However, it seems clear that a lot of people take it very seriously, and so, if, as happens to be the case, I find that the above-mentioned essay demonstrates intellectual incompetence, that is a matter which I must take seriously.

The Issue

The above essay by Ann Scales relies crucially on a self-contradiction. The issue can be stated quite briefly: On page 99, Scales concludes as follows:

If I am right that the “rights-based” and “care-based” approaches are incompatible, we must make a choice between adjudicative principles.

It will surprise no one that the choice she advocates is the Feminist approach, which she calls the “care-based” approach.

Scales characterises the difference between the two approaches as follows (page 98):

Whereas the male self/other ontology seems to be oppositional, the female version seems to be relational. The female ontology is an alternative theory of differentiation that does not define by negation or require a “life and death struggle” to identify value in the world.... It perceives dichotomization as irrational.

Conclusion

It is clear that Scales, in choosing between the “rights-based” and “care-based” approaches, is in fact adopting the so-called “male”, “oppositional” approach. She has identified value in the Jurisprudence part of the world by using supposedly “irrational” dichotomization to promote the victory of female ontology over male ontology – negating it in a “life and death struggle”.

Feminists like Scales belong in the less challenging environment of the home !

Last Update: 22 January 2005

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