Theories of Law and

THEORIES OF LAW AND
SOCIETY
AN INTRODUCTION
INTRODUCTION
 You should be familiar with the following areas:

a) The perspective of sociological jurisprudence on the
relationship between law and other social phenomena
b) The approach of socio-legal studies to the problems of law in
society sociology of law and its treatment of the place of law
in society
c) The Marxist critique of idealist jurisprudence, historical
materialist account of law and the Marxist theory of law and
State.
SOCIOLOGICAL JURISPRUDENCE, SOCIO-
LEGAL STUDIES AND THE SOCIOLOGY OF LAW
 The fields of sociological jurisprudence, socio-legal studies
and the sociology of law are distinct, though related,
approaches to the investigation of the relationship between
law and other social phenomena. The main link between
them is to be found in the belief of scholars, working within
these schools of thought, in the role that a study of the
workings of the various elements of society as a whole, or
specific combinations of them under certain circumstances,
has to play in the understanding of the more specific
operations of the law as a distinct social phenomenon.
SOCIOLOGICAL JURISPRUDENCE, SOCIO-
LEGAL STUDIES AND THE SOCIOLOGY OF LAW
 The particular differences between these schools of

thought are to be found in an analysis of the main social
issues which they seek to investigate and the
approaches which they take in relating studies on the
law to these issues.
Sociological jurisprudence
 Sociological jurisprudence is an intrinsically theoretical approach to
the study of the law and it specifically seeks to understand law as a
particular social phenomenon, in terms of how it comes into
existence, how it operates and the effects that it has on those to
whom it applies.
 To this extent, this school of law is very similar in its approach to the
other analytical schools of thought in jurisprudence, such as
Positivism; its subject matter is the law proper. However, what
distinguishes it from the other schools of jurisprudence is its
methodology.
 Sociological jurisprudence seeks to examine closely the workings of

society in general, in order to find therein the factors which determine
the nature of law. In this regard, it has historically relied on the findings
of the social sciences, such as sociology, as well as other social
disciplines, including historical, political and economic studies, to help it
explain the nature of law.
 Sociological jurisprudence has a long history and can be said to have
emerged from the first time when it was realised that a study of the
various aspects of social life could assist in understanding the nature
and workings of the law.
 Thus, its place in jurisprudential literature can be traced as far back as the
writings of David Hume who, in his Treatise on Human Nature (1740), argued
that law owed its origin not to some quirk of human nature, but to social
convention, and who described law as a developing social institution.
Charles de Montesquieu, in The Spirit of Laws (1748), put forward the view
that law originated in custom, local manners and the physical environment.
He asserted that good laws were those which were in accordance with the
spirit of society.
 Through the years, writers on the nature of society, such as Comte, Marx,
Weber and Durkheim, have contributed to sociological jurisprudence,
putting forward views on how various social phenomena influence the
nature of law.
 The close link between the theoretical study of the law on the one
hand and the independent study of society on the other has meant that
sociological jurisprudence has been closely influenced by
developments in the other social sciences and its views on the nature
of law have been progressively transformed. For this reason, it is
difficult to point to any one proposition as being the central approach of
this school of thought. However, there are certain assumptions which
can be identified as characterising the thinking of almost all
sociological jurists. The following are some of them:
 • Generally, there is a belief amongst sociological jurists that law is only
one of a number of methods of social control. To this extent, it is not
unique in its function and place in society.
 • There is a general rejection of the notion that law is somehow a
closed system of concepts, standards and structures, and that it can
stand on its own in its operation. Because there are certain problems
which the law cannot resolve, it must be seen, therefore, as being
open to modification through the influence of certain social factors.
To this extent, sociological jurists reject what has been called a
‘jurisprudence of concepts’.
 • Sociological jurists tend to place more emphasis on the actual
operation of the law—‘the law in action’—arguing that this is where
the real nature of the law manifests itself, rather than in textbooks and
other elementary sources.
 In discovering the building blocks of the law, sociological
jurists disagree with the approach of the Natural Law school
of thought, which proposes that there are certain sets of
principles which describe absolute values and which then
become, or should be, the basis of all law. Instead, they take
a relativistic approach, which regards law as being the
product of a socially constructed reality.
 The basis of the law is to be found in the ways in which people
regard their situation and their place in society, and how
society in general reacts to the problems confronting it.
 • There is a general interest in utilising the findings of the

sociological sciences in understanding the nature of law
and, therefore, to make law a more effective tool for
social justice. Views differ, however, as to what
constitutes social justice and how best this may be
achieved. The following are some examples of thinkers
who have contributed to sociological jurisprudence:
 Caspar Rudolph Ritter von Jhering (1818–1892): German legal scholar
 Generally credited with being the father of sociological jurisprudence,
Jhering defined law in the following terms:
 Law is the sum of the conditions of social life in the widest sense of the
term, as secured by the power of the State through the means of external
compulsion. Jhering took up the Utilitarian principles of Jeremy Bentham
and used them as a basis for the argument that law existed to serve the
social interest. The law was to be seen as a coercive instrument, which
existed to resolve conflicts which might arise between the interests of
individuals and the interests of society as a whole. In these circumstances,
the common interests of all members of society took precedence over the
interests of particular members. The law could not be applied
mechanically, because it had to operate effectively to ensure social utility.
 Max Weber (1864–1920): German sociologist and economist
 Weber regarded the sociology of law as being central to general sociological
theory. He was the first to try and provide a systematic sociology of law and, in
doing this, he sought to understand the development and workings of Western
capitalist society. Weber engaged in historical and comparative studies of the
major civilisations in the world as he tried to understand two main features of
Western society, that is, capitalism as an institution and rationalism in the legal
order. He saw law as going through three ‘ideal’ stages of development:
 Charismatic
 Where legality arises from charismatic revelation—that is, as a gift of
grace—through ‘law prophets’, who are rulers believed to have
extraordinary personal qualities. The law which they propound is
supported by an administrative apparatus of close aides or ‘disciples’.
 Traditional
 Where charisma may become institutionalised through descent and the
law making powers pass to a successor. Law is then supported by
tradition and inherited status, as in the case of new monarchies.
 Rational
 Where there is a ‘systematic elaboration of law and professionalised
administration of justice by persons who have received their legal training
in a learned and formally logical manner’. In this case, the authority of law
is based on the accepted legitimacy of the lawgivers, rather than on
charisma. There is a rationalised legal order which dominates in an
impersonal fashion.
 According to Weber, the rationality of law in Western societies is a result of
the rationalism of Western culture. Legal rationalism is the product of a
number of factors. Economic forces have played a significant, but not
necessarily a pivotal, role.
 Capitalism provided conditions under which rational legal techniques, once

developed, could spread. Institutions of the capitalist system are predicated
upon calculation and, to this extent, they require a ‘calculable legal system’,
which can be rationally predicted.
 The growth of bureaucracy established a foundation for the systematisation of
the administration of rational law. Legal professionals have also contributed to
rationalisation. Indeed, Weber regarded English lawyers, with their vested
interests in the retention of the anachronistic formalism of the English legal
system, as a major impediment to rationalisation of the law in this country.
 Emile Durkheim (1858–1917): French sociologist
 Durkheim wrote on legal issues, ranging from the criminal process to the law of contract. He
believed that law was the standard by which any society could be evaluated since, as he argued,
law ‘reproduces the principal forms of social solidarity’. He made a distinction between two types of
such social solidarity or cohesion:
 Mechanical solidarity
 To be found in small scale homogeneous societies. Here, he believed, most law would be of a
penal and repressive nature, since the entirety of society would take an interest in criminal activity
and would seek to repress and deter it.
 Organic solidarity
 To be found in more heterogeneous and differentiated societies, where there is a greater division of
labour. In such societies, there is less of a common societal reaction to crime and the law becomes
less repressive and more restitutive.
 Roscoe Pound (1870–1964): American jurist
 Pound set out what may be described as an intrinsically American sociological jurisprudence, in
which he treated of law as an item of social technology, to be utilised in resolving problems of
the satisfaction of competing social claims and the resolution of conflicts in the distribution of
social goods. The various claims and interests can be discovered through an analysis of social
data, including the incidence of legal proceedings and legal proposals. Such claims and
interests exist independently of the law and it is the function of the law to serve and reconcile
them for the good of society as a whole. In this regard, Pound saw society as being static,
cohesive and wholly homogeneous, with its members sharing traditions and values. In this
case, the operation of law would be within an atmosphere of general consensus.
Social Legal Studies
 This is an approach to questions of law and society which has, in recent years, almost completely
overwhelmed the field, which has traditionally been occupied by sociological jurisprudence. Socio-
legal studies, as a discipline, differs from sociological jurisprudence in that it does not have any
specifically theoretical underpinning. Unlike the latter, which seeks to provide an analytical conception
of the idea of law by looking at other social phenomena, the field of socio-legal studies is more
concerned with pragmatic issues of how best to make the law, in its various aspects, work more
effectively to achieve specific goals, usually identified with the idea of the rule of law or some notion of
justice.
 Scholars in socio-legal studies are generally not concerned with explaining the nature of law, its place
in society or in relation to the State. There is a general acceptance of the legal system in its essence as
being a central element of social life, whose position in regard to other social institutions and the State is
essentially unproblematic. They instead advocate the recognition of law in its accepted social context,
emphasising an empirical approach to the problems raised by the operation of the legal system and
reform-oriented research, which looks more to the ‘law in action’ than the ‘law in the books’.
The Sociology Of Law
 This field of legal study has achieved precedence, particularly in the last 35
years. It is different from sociological jurisprudence in its approach to the
question of law and society, both in terms of its ideology and its
methodology. Whereas sociological jurisprudence sought to provide an
understanding of the nature of law through study of certain social
phenomena, the sociology of law seeks to explain the nature of society
from an investigation of the law as a form of social control.
 Sociologists of law are interested in understanding such matters as the
socioeconomic circumstances leading to the emergence of certain laws,
as well as the processes by which those laws are created.
Roberto M Unger, The Nature of Law
and Society- Methodology
 Roberto M Unger’s work on the sociology of law has produced a treatise
which is in the tradition of Max Weber and Emile Durkheim. He revives the
sweeping scope of Weber’s theorising on law and places the development
of rational legal systems within a broad historical and comparative
framework.
 Unger locates his study of law within the scope of the major questions of
general social theory, by investigating the conflicts between:
a) Individual and social interests;
b) Legitimacy and coercion; and
c) The State and society
Roberto M Unger, The Nature of Law and
Society- Methodology
 His goal is to provide an understanding of modern law and society, and his
main thesis is that:
 The development of the rule of law, that is, law that is committed to
general and autonomous legal norms, could take place only when
competing groups struggle for control of the legal system and when there
are universal standards that can justify the law of the State.
 Unger’s underlying claim is that ‘each society reveals through its law the
innermost secrets of the manner in which it holds men together.
 Unger’s analysis emphasises the historical perspective. He examines the
nature of society generally and compares the Western legal tradition with
those of other, different, social systems, such as the Greek, Roman and
ancient Chinese, Indian, Judaic and Islamic civilisations.
 Through this, he distinguishes three types of law which he regards as evolutionary
stages in the development of law in general:
 • Customary/interactional law
 This occurs as:
 …any recurring mode of interaction among individuals and groups, together with
the more or less explicit acknowledgment by these groups and individuals that
such patterns of interaction produce reciprocal expectations of conduct that ought
to be satisfied.
 Customary law is characterised by two main elements:
 (a) factual regularity in behaviour—that is, a regular pattern can be
identified as a matter of fact in the behaviour of people in specific
circumstances;
 (b) normative attitude—that is, people tend to regard certain established
behavioural practices as constituting what is right, in terms of order, for
society and for the world at large.
 Bureaucratic/regulatory law
 This occurs at a stage in a society’s development where the law is: …the
province of centralised rulers and their staffs. It is a law deliberately imposed by
government, rather than spontaneously produced by society.
 This type of law is distinguished from custom by the fact that it is both public and
positive—that is, it ‘consists of explicit rules established and enforced by an
identifiable government’. Its occurrence is always accompanied by the
appearance of a State, which defines the various powers of different social
groups.
 Bureaucratic law is not a universal characteristic of social life, but is limited to
situations where a division between State and society has occurred, and where
specific and explicit ‘prescriptions, prohibitions, or permissions’, directed at
general categories of persons and types of activity, identify some standard of
conduct.
 The legal order/legal system
 At this stage, the law will be: …committed to being general and autonomous, as well as public
and positive.
 The legal order is to be found in modern Western liberal societies. This type of law is
‘substantively autonomous’, in the sense that it does not codify or express any identifiable non-
legal beliefs, that is, economic, political, religious or theological norms. It is ‘institutionally
autonomous’, in that the application of its rules is undertaken by specialised institutions which
are separate from the other institutions of legislation and administration and whose main task is
adjudication. This law is also autonomous in methodological terms, because it has a distinct
way of justifying its acts. Finally, it is autonomous at an occupational level, in that ‘a special
group, the legal profession, defined by its activities, prerogatives and training, manipulates the
rules, staffs the legal institutions and engages in the practice of legal argument
 The evolutionary transformation of law
 Unger proceeds to identify the developments which initiate changes in customary
law leading to bureaucratic law, which, in turn, changes into a legal order that will
eventually lead to what he calls a post-liberal legal order:
 • The change of customary into bureaucratic law is characterised by an extension of
instrumental rules that have no normative quality (State law, governmental
sanctions). This extension of the instrumental rule is dependent upon the recognition
of the consensual basis of law.
 • The development of an autonomous legal order brings about a further extension of
instrumental rules to everybody. Everyone can pursue his personal objectives, as
long as they do not infringe upon those of others. Law sets these limits.
 There are two major conditions for a legal order to develop and continue to exist:
 (a) No social group must occupy a permanently dominant position or have an
inherent right to govern.
 (b) There must be a widespread social belief in what might loosely be called Natural
Law.
 With these conditions in place, then, group pluralism and the belief in higher law,
justified by a transcendent religion, combine to produce a legal order and turn the
minds of men towards the rule of law ideal.
 The law as a social expression
 For Unger, law is indicative of the normative structure of social life.
 There are two competing forms of normative integration:
 • Consensual
 ‘Consensual law expresses the shared values of a group or community and manifests
the stable structure in recurring interactions.’
 • Regulatory
 ‘Regulatory law is instrumental social control by political institutions through positive
and public rules.’ Unger considers autonomous law, that is, law in the legal order, as
both instrumental and consensual.
The Marxist account of law and
society
 The main proponents of Marxist theory were Karl Marx (1818–83),
Friedrich Engels (1820–95) and Vladimir Lenin (1870–1924). The Marxist
school of thought is a comprehensive system of thought, covering, among
other things, the areas of sociology, history, politics and economics.
Specific Marxian writings on law have generally been rather sparse. This
is because of the secondary place that law and other elements of what
Marxists regard as the social superstructure have been allocated in
Marxist theory.
Marxist materialism-The role of material
conditions of production
 The Marxist approach to society is basically materialist, meaning that, from the
Marxist point of view, the material—that is, the physical, economic and
environmental—conditions under which humans live are regarded as being the most
important factors influencing social development. Marxists especially emphasise the
economic factor, arguing that it is the economic relationships which people enter into
when they are engaged in the process of producing the means of sustenance, such
as food, clothing, shelter, etc, which determine all other social relationships. The role
of individual ideas in shaping social development is practically nil, since the ideas
themselves are only a product of the material conditions of social life. Similarly, social
institutions, such as the State, law and other structures, are only part of a
superstructure, which is firmly rooted in, cannot exist apart from and whose character
is ultimately determined by the material conditions of society.
Marxist historical materialism: The historical
development of economic relations of production
 Marxist thought is also characterised by economic determinism, since it is argued that the
development of society from one stage to the next is inevitable, and that it is the changes in
the economic environment, along with changes in the relations of production, which dictate
the rate of social development.
 Marxist ideas on social development thus place much emphasis on the historical stages
through which human society has gone, seeking to demonstrate that the transition from one
stage to another is inevitable, and that such transition is directly linked to a transformation
of the material base of society. This is what constitutes the historical materialist conception
of society and law within the Marxist school of thought. There are supposed to be five main
stages of development—or modes of production—through which societies go through.
 Primitive communalism
 This is the earliest stage of society, when people have just come together to live in specific
communities. The mode of production is characterised by a communal effort in the
production of the means of sustenance, since technology is relatively rudimentary and
there is no distinctive division of labour. The means of production—that is, the main natural
and other resources from which something of value may be extracted, for example, land—
are communally owned, if at all, and everybody gets the full value of the labour which they
put into production, since there are no employers and workers. At this stage, there is little
need for centralised regulation of social or economic activity, and so specific administrative
institutions, such as the State or law, do not exist.
 Social control is through communal morality and social pressure. However, at some point,
certain contradictions start to occur within this society.
 These contradictions arise primarily as a result of the accumulation of personal property. With
the development of the forces of production, such as, for instance, the technological
improvement of the instruments of labour, it becomes possible to produce more and, in this
situation, some persons begin to acquire a surplus of the wealth extracted from the basic
means of production. Inequalities between individuals and groups begin to appear. There is a
division of labour, as people diversify in the search for more rewarding occupations.
 People who have acquired wealth will seek to acquire even more through employing the
labour of others. This is the beginning of the division of society into classes which are primarily
antagonistic towards each other. A section of the community will gradually and inevitably
acquire control of the means of production, whilst the rest are made to work with little or no
reward for their labour.
 Slave mode of production

 The contradictions which arise in primitive communalist society due to changes in the
economic relations of production will inevitably come to a head when the State and
law are strengthened to the extent where the ruling classes can control, not just the
labour of the oppressed classes, but their very lives. It becomes necessary in this case
to institute social arrangements which have the ultimate effect of denying the
oppressed classes their very individuality and humanity, turning them into chattels, at
the disposal of the owners of the means of production. This heralds the advent of the
slave mode of production, where social, political and legal institutions are used
directly to confirm and protect the status quo. Laws in this mode of production have
the specific function of keeping the slaves in check, protecting the interests of the
slave masters and ensuring the continuation of the exploitative relations of
production.
 The State also exists primarily for this purpose. However, it is inevitable that there will be a
class struggle.
 The chained masses cannot remain subservient forever and slave riots will begin to affect
production. Eventually, it will become counterproductive for the ruling classes to maintain the
economic relations of production which underpin the slave mode production. The
contradictions characterising this mode will eventually resolve themselves in a loosening of
the control which the ruling classes have over their slaves, and this paves the way to a newer
and qualitatively different mode of production.
 Feudal mode of production
 In this mode of production, the oppressed classes are still exploited, but they cease to be
the direct property of the ruling classes. They are given relative freedom, and some access
to the means of production, through being allowed certain property. For example, they are
given portions of land to farm. However, they are still tied to the feudal lords, who are still
the ruling class and who still control the means of production. Serfs are attached to the land
and have to hand over a portion of what they produce to the feudal lord. The lord thus gains
the surplus value of the labour of the serfs. There is still a class division in society and the
class struggle continues. The State and law of the feudal mode of production reflect the
existing economic relations of production and are geared towards protecting the interests of
the ruling classes. There are still contradictions which will push society to move on to
another mode of production.
 Capitalist mode of production

 In the capitalist mode of production, the serfs are unshackled from the land and
from their social and political masters. They have relative freedom of movement
and are capable of owning some personal property. However, this freedom serves
simply to enable the oppressed classes to be at liberty to sell their labour for a
wage, which is of less value than the actual value of the labour which they put in.
The ruling classes, now capitalists, have no responsibility for the welfare of the
working classes, since the latter are at liberty to roam around and sell their labour
on the market. Yet, the capitalist class still own the means of production and they
appropriate the surplus value, which is the difference between the actual value of
the labour which the working classes put into production and the value of the
wage which they receive for working.
 Under these circumstances, the working classes— the proletariat—are

naturally antagonistic towards the capitalist class— the bourgeoisie—and
the class struggle continues. As before, the State and law are instruments
by which the ruling classes keep the oppressed classes under control. The
existing exploitative economic relations of production are maintained and
protected through a number of social, economic, political and legal
devices. The fallacy is perpetuated and the working class are persuaded
by various means to accept that all individuals in society are actually free,
that the political system is liberal, democratic and, therefore, one which
looks after the interests of all, and that private property is the highest and
most appropriate expression of each person’s humanity and individuality.
Laws are promulgated which protect personal property, and the courts are
empowered to protect individual rights and liberties.
 However, the only people who have property, rights and liberties worth
protecting are members of the ruling class. The law and State are again
merely the instruments of exploitation, expressing, securing and maintaining
the economic relations of production. Contradictions are at their deepest
in capitalist society and the class struggle reaches a stage where it has to
be resolved in some sort of revolutionary upheaval.
 Socialist mode of production

 The socialist mode of production is brought about through a revolution of the
proletariat, in which they overthrow the bourgeoisie ruling class and establish a
dictatorship of the proletariat. This is a transitional stage, in which the working
class, who are now the ruling class, use the power and institutions of the
bourgeoisie state to transform the capitalist economic relations of production.
Private property is abolished, the means of production are placed under
communal ownership and capitalist institutions are demolished. In the socialist
mode of production, the State and law are fairly strong, since these are the
weapons by which the proletariat will dismantle the bourgeoisie superstructure
and create new relations of production, where those who work get the
appropriate value of their labour.
 Communist mode of production

 The ultimate goal of the dictatorship of the proletariat is to create a classless
society, where there are no inequities in access to the means of production. Such
a classless society is described by the communist mode of production. Because
there are no classes, there will be no class struggle. Because most people are
relatively satisfied, there will be no criminal or other anti-social activities which
characterise the capitalist mode of production. Because the economic relations
of production are not exploitative, there are no contradictions in society. Under
these circumstances, there will neither be a need for the State nor of law.
Therefore, such institutions will wither away. Conflicts between individuals, which
will inevitably arise, will subsequently be resolved through the operation of an
emerging public communist morality and traditions
 Marxist dialectical materialism :The importance of contradiction in the

development of society
 The historical development of society described above is regarded by
Marxist theory as being inevitable. The reason for this is that Marxists regard
irreconcilable contradictions as being inherent in all the modes of
production prior to the establishment of communist society. These
contradictions are a result of the division of society into classes and the
exploitative economic relations of production which arise thereby. The
contradictions are then reflected in the ongoing class struggle.
 The idea of contradictions in the material base of society and their
inevitable resolution through transition to a newer and ‘higher’ mode of
production, with different economic relations of production, leading to
society’s development, is the linchpin of Marxist social and legal theory.
 It is based on the notion of the dialectic, first established by the German

philosopher, Hegel, and later adopted by Karl Marx. Hegel believed that
the basis of all social development was the contradiction between ideas—
between a thesis (established idea) and an antithesis (opposing idea)—
whose resolution would lead to the establishment of a newer and higher
idea—the synthesis—which, in turn, would be challenged by a different
antithesis. Karl Marx adopted the Hegelian dialectic and, as he said,
‘turned it on its head’. Instead of being the motor of social development,
ideas simply became the expression or reflection of such development. The
development itself was based on changes within the material conditions of
social life—particularly the economic relations of production. This material
base underwent changes arising from contradictions within itself and these
had little to do with ideas. In each mode of production was to be found a
thesis, consisting of the established relations of production.
 This would be challenged by an antithesis, comprised of elements of the class

struggle. The result would be a different set of relations of production, which would
herald the dawn of a new mode of production. In all this, the State, law and other
institutions have little influence, except as instruments in the hands of the ruling
class, to be used to protect their own interests. These institutions are neither self-
supporting nor autonomous. They are merely part of a superstructure, a flimsy
covering for the actual factors determining social development.
FEMINIST LEGAL THEORY
 The nature of feminism

 It is difficult to provide a categorical definition of ‘feminism’, in that, as a
movement and as a school of thought, it comprises a variety of distinct
elements. Moreover, in its historical development, it has had different
manifestations at different stages. For example, in the early years, various
movements which may be termed feminist were concerned primarily with
winning equality, emancipation and the articulation of specific freedoms
for women. In later years, feminist socio-political and intellectual discourse
has emphasised the transformation of society at a psychological, cultural,
ideological and legal level, in order to enable women to reach their full
potential and so to contribute positively towards the creation of a fuller,
richer human society.
 Moreover, within these loosely defined parameters, feminist thinkers and

writers tend to hold different positions, influenced variously by their social,
cultural, racial, ethnic, political and class backgrounds. This has led to an
apparent confusion, as it would appear to mainstream legal and other
theorists that the differences between the various feminist thinkers reflects
an inherent and insurmountable fractiousness, which means that they
cannot articulate a unified and structured intellectual point of view.
Feminist thinkers, however, argue that this apparent fractiousness is, in fact,
a strength rather than a weakness, since it allows a fuller expression of many
points of view, which have traditionally been suppressed by the enforced
uniformity of the orthodox socio-political and intellectual tradition. The
problem of identity is, however, acknowledged by feminist thinkers
themselves.
 For example, Rebecca West observed in 1988:
“I myself have never been able to find out precisely what feminism is; I only know that people call me
a feminist whenever I express sentiments that differentiate me from a doormat.”
Primarily, however, feminism has been concerned with clarifying the nature of society as
a patriarchy—that is, as an arrangement which is dominated by men and which is set up
in a way that oppresses women, allowing for their systematic exploitation for the benefit
of men. All the institutions of society are seen as being traditionally controlled by men,
and the cultural and ideological values which they promote are regarded as being
essentially male values. The task of the feminist thinker, writer and practitioner, therefore,
is seen as one of continuous struggle to subvert this male domination by promoting
awareness of its existence, and identifying ways in which it can be neutralised
 The law is a particular target, because it is regarded as a device or an

instrument which has been specifically created and consciously sharpened
for the purposes of hurting women’s interests, whilst defending men’s
excesses at the same time.
 Origins and aims of feminist legal theory
 Feminist legal theory has its roots in the women’s movement as it developed and flourished
in the late 1960s and 1970s. In line with the general feminist approach, therefore, it seeks to:
…analyse the contribution of law in constructing, maintaining, reinforcing and perpetuating
patriarchy, and it looks at ways in which this patriarchy can be undermined and ultimately
eliminated [Freeman, MDA, Introduction to Jurisprudence (1994)].
 In its early stages, the feminist inquiry into the nature of law occurred as an offshoot of the
Critical Legal Studies movement and, to this extent, it was also concerned with providing a
‘basic critique of the inherent logic of the law, the indeterminacy and manipulability of
doctrine, the role of law in legitimating particular social relations, the illegitimate hierarchies
created by law and legal institutions’ (Menkel-Meadow, C [1988] JLE 61).
 The methodology of feminist legal theory
 There are three notable features characterising the feminist investigation into the nature of law:
 • Asking the ‘woman question’
 That is, determining and recognising the experience of women in relation to the law. For KT
Bartlett ([1970] HLR 103), the essential ‘woman question’ is: …how the law fails to take into
account the experiences and values that seem more typical of women than men, for whatever
reason, or how existing legal standards and concepts might disadvantage women.
 • Feminist practical reasoning
Employing a mode of reasoning arising from context, which appreciates the differences
between persons and values the experience of the unempowered.
 • Consciousness raising
Raising individual awareness of the collective experience of women through a sharing of
experiences.
 The focus of feminist legal theory
 According to Heather Wishik ([1987] BWLJ 1), the feminist inquiry into law can be
seen as posing seven particular questions:
a) What have been and what are now all women’s experiences of the life situation’
addressed by the doctrine, process or area of law under examination?
b) What assumptions, descriptions, assertions and/or definitions of experience—
male, female or ostensibly gender neutral—does the law make in this area?
c) What is the area of mismatch, distortion or denial created by the differences
between women’s life experiences and the law’s assumptions or imposed
structures?
 (d) What patriarchal interests are served by the mismatch?
 (e) What reforms have been proposed in this area of law or women’s life situation?
How will these reform proposals, if adopted, affect women both practically and
ideologically?
 (f) In an ideal world, what would this woman’s life situation look like, and what
relationship, if any, would the law have to this future life situation?
 (g) How do we get there from here?
 The subjects of feminist legal theory

 In pursuing these inquiries, many different legal subjects have come under the scrutiny
of feminist legal theory. These have included the following:
a) Rape, domestic violence, sexual harassment and their treatment by the law and law
enforcement agencies—exemplified by the case of R v R (1991) (rape within
marriage);
b) Surrogate motherhood, pregnancy and maternity leave characterised as ‘analogous to
the sick leave of a male employee’;
c) Pornography—perceived as the ‘graphic sexually explicit subordination of women’;
d) Different retirement ages and pension entitlements for men and women—leading to
injustice for both men and women in specific circumstances.
 Furthermore, other traditionally black-letter law subjects have been

opened up to enable the specific experiences of women to be taken into
account. Among these, the laws of tort, contract and property have been
of some interest (see, for example, Cavendish Publishing’s Feminist
Perspectives in Law series).
THE END
SEPTEMBER 2022

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THEORIES OF LAW AND

 You should be familiar with the following areas:

 The particular differences between these schools of

 Sociological jurisprudence seeks to examine closely the workings of

 • There is a general interest in utilising the findings of the

 Capitalism provided conditions under which rational legal techniques, once

 Slave mode of production

 Capitalist mode of production

 Under these circumstances, the working classes— the proletariat—are

 Socialist mode of production

 Communist mode of production

 Marxist dialectical materialism :The importance of contradiction in the

 It is based on the notion of the dialectic, first established by the German

 This would be challenged by an antithesis, comprised of elements of the class

 The nature of feminism

 Moreover, within these loosely defined parameters, feminist thinkers and

 The law is a particular target, because it is regarded as a device or an

 The subjects of feminist legal theory

 Furthermore, other traditionally black-letter law subjects have been

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