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. She is also described on the Sturm College of Law webpage
http://law.du.edu/index.php/profile/ann-scales
as "among the founders of the field of feminist legal theory."
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
Having stated on page 98 that a Feminist, care-based approach avoids
dichotomization, why does she create a dichotomy between the “rights-based”
and “care-based” approaches on page 99? Having stated
on page 98 that the care-based approach does not define by negation
or require a “life and death struggle” to identify value
in the world, why does she state on page 99 that we must make a choice
between adjudicative principles?
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 !
