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Agenda for a feminist legal curriculum

Published online by Cambridge University Press:  02 January 2018

Rosemary Auchmuty
Rosemary Auchmuty*
Affiliation:
University of Westminster
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Abstract

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This paper contends that a feminist legal curriculum is necessary for legal education, and that it is also necessary for feminism. It argues that feminism is more than simply one of a number of useful critical perspectives, and that it must be located centrally within the law school and the legal curriculum in order to be effective. In accepting that a black-letter training has many merits and that the current core curriculum has value, the paper nevertheless suggests that both require substantive modifications and new critical dimensions. Specifically, to meet its obligations to our students, the legal curriculum needs to incorporate subjects relevant to women's experience, to make space for women's viewpoints and to offer feminist perspectives in every area of law - and these must be compulsory, not optional, additions. Finally, the paper concludes that implementation of such a curriculum is not only desirable, but also possible, and may indeed become a policy imperative as well as a feminist one.

Type
Research Article
Information
Legal Studies , Volume 23 , Issue 3 , September 2003 , pp. 377 - 401
Copyright
Copyright © Society of Legal Scholars 2003

References

1. I suppose I ought to define what I mean by ‘feminism’, but I am not going to do so. This is not because I assume that everyone knows - and everyone agrees - what feminism is, or even because I assume that everyone disagrees, so that a common definition is impossible. It is because I trust that the meaning and scope of feminism will be made apparent in the discussion that follows: for that is, in a sense, what this paper seeks to describe. One of the dangers of setting down one's own potted version of feminism is that it can too easily be seen as prescriptive, thus alienating at the start a good proportion of one's potential sympathisers as well as one's opponents.

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4. We can probably all offer anecdotal evidence of these differences between women and men, while recognising the significant differences among women and among men. I am not concerned with the question of whether these differences are universal or essential (ie inborn); my own view is largely social constructionist. I am simply commenting on an observable though by no means invariable phenomenon.

5. Brien, M O’ and McIntyre, S ‘Patriarchal Hegemony and Legal Education’ (1986) 2 Canadian J Women and Law 81 Google Scholar, reprinted in Olsen, F E (ed) Feminist Legal Theory II: Positioning Feminist Theory Within Law (Aldershot: Dartmouth, 1995) p 31 Google Scholar.

6. Quoted in K C Worden ‘Overshooting the Target: A Feminist Deconstruction of Legal Education’ (1985) 34 Am ULR 1145, reprinted in Olsen, n 5 above, p 45.

7. Law must be the last academic discipline in the UK to cling to the outmoded and unjustified view that the masculine somehow incorporates the feminine. In that it ever did so, it did it selectively, but in any case all research points to the association in people's minds of men alone with ‘he’, not men and women. The use of masculine pronouns enables textbook writers to ignore and obscure situations in which ‘he’ does not stand for ‘she’ and where an inclusive interpretation would render statements misleading or meaningless. Importing the odd ‘she’, on the other hand, obliges the writer to contemplate the possibility of the law's differential impact on women. It is time that legal academics came into line with academics in other disciplines and other countries - and then perhaps the lawmakers would follow suit, as they have done in Australia and the US.

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15. I do not know when the first woman was admitted on to an English law degree course, nor who she was; but Christabel Pankhurst studied at Victoria College (now the University of Manchester) between 1903 and 1906, graduating with a first class honours degree - and she was the only woman law student at the college during that time. See C Pankhurst Unshackled (first published in 1959) (London: Cresset, 1987). Along with other women, Pankhurst tried to become a barrister, but both legal professions blocked the entry of women to their ranks until forced to admit them following the enactment of the Sex Disqualification (Removal) Act 1919. See Lang, E M British Women in the Twentieth Century (London: T Werner Laurie, 1929) ch VIGoogle Scholar; and Franz, N A English Women Enter the Professions (Cincinnati, Ohio: privately printed, 1965) pp 274–277 Google Scholar.

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19. Bottomley and Conaghan, n 16 above, p 1.

20. M Drakopoulou ‘The Ethic of Care, Female Subjectivity and Feminist Legal Scholarship’ (2000) 8 FLS 209.

21. See R Auchmuty ‘When Equality is Not Equity: Homosexual Inclusion in Undue Influence Law’ (2003) 11 FLS, forthcoming.

22. Rich, A ‘Towards a More Feminist Criticism’ in Rich Blood, A, Bread and Poetry: Selected Prose 1979–1985 (London: Virago, 1981) p 92 Google Scholar.

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25. Davies, E ‘Special Systems of Education for Women’ in Spender, D (ed) The Education Papers: Women's Quest for Equality in Britain 1850–1912 (New York and London: Routledge and Kegan Paul, 1987) p 107 Google Scholar. See also Bennett, D Emily Davies and the Liberation of Women (London: Andre Deutsch, 1990)Google Scholar.

26. Pankhurst, n 15 above, p 43.

27. C A MacKinnon in E C DuBois, M C Dunlap, C J Gilligan et al ‘Feminist Discourse, Moral Values, and the Law - a Conversation’ (1985) 34 Buffalo LR 74, reprinted in F E Olsen (ed) Feminist Legal Theory I: Foundations and Outlooks (Aldershot: Dartmouth, 1995) p 206.

28. Patai, D and Koertge, N Professing Feminism: Cautionary Tales from the Strange World of Women's Studies (New York: Basic Books, 1994) p 16 Google Scholar.

29. N Naffine ‘In praise of legal feminism’ (2002) 22 LS 77.

30. Quoted in Patai and Koertge, n 28 above, p 113.

31. Patai and Koertge, n 28 above, p 120.

32. Quoted in McGlynn, n 10 above, p 48; and see Kennedy, H Eve Was Framed: Women and British Justice (London: Vintage Books, 1992)Google Scholar.

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34. Webb, J ‘Ethics for Lawyers or Ethics for Citizens? New Directions for Legal Education’ (1998) 25 JLS 137 CrossRefGoogle Scholar.

35. Brazil, A Schoolgirl Kitty (London & Glasgow: Blackie, [19231) p 165 Google Scholar.

36. E Jenks ‘English Legal Education’ (1935) 101 LQR 152; Franz, n 14 above; A Boon’ History is Past Politics: A Critique of the Legal Skills Movement in England and Wales' (1998) 22 JLS 151. The ‘core curriculum’ itself only became an accepted feature of the LLB following the Report of the Committee on Legal Education (the Ormrod Report) Cmnd 4595, 1971.

37. H W Arthurs ‘The Political Economy of Canadian Legal Education’(1998) 22 JLS 21. ‘Great care must be taken,’ warns Geoffrey Samuel, ‘… before concluding that the so-called foundational subjects rest on any serious educational theory’: G Samuel ‘Comparative law as a core subject’ (2001) 21 LS 446.

38. Indeed, students are not encouraged to do so. A 1993 survey of legal education in the ‘old’ universities found ‘a reluctance … to further liberalise the law degree syllabus by introducing significant numbers of non-legal options into the curriculum’: J Wilson ‘A third survey of universities: legal education in the United Kingdom’ (1993) 13 LS 166.

39. O'Brien and McIntyre, reprinted in Olsen, n 5 above, p 32.

40. A Rich ‘What Does a Woman Need to Know?’ in Rich, n 22 above, p 2.

41. Rich, n 40 above. See M Wollstonecraft A Vindication of the Rights of Woman (London: Joseph Johnson, 1792). There may be other subjects which a competent committee might deem essential for a core curriculum, but the last one I would urge is a foreign language. The archetypal Englishman's expectation that everyone should speak his language is both arrogant and insulting, but it is also limiting. Learning another language is a route into another culture and an appreciation of differences, engendering a more critical view of one's own. Its inclusion will ensure that our undergraduates encounter at least one non-law subject on their course.

42. D Morgan and C Wells ‘Editorial’ (1998) 19 LS 1, 3.

43. N K S Banks’ Pedagogy and ideology: teaching law as if it really matters' (1999) 19 LS 450.

44. Banks, n 43 above, at 464.

45. Criminal Law Revision Committee Working Paper on Sexual Offences (London: HMSO, 1980) p 13.

46. C Manchester, D Salter, P Moodie and B Lynch (London: Sweet & Maxwell, 1996).

47. O'Brien and McIntyre, reprinted in Olsen, n 5 above, p 38.

48. Inseparable from the student's experience of law studies is her experience of the law school itself. Feminist research has identified the two main problems facing women in education as the masculine control of the syllabus and the sexual politics of the institution. Here I can do no more than to direct readers to research on the culture of UK law schools and its effect on students' learning and teachers' teaching. See McGlynn, n 10 above; Collier, n 17 above; and Wells, n 17 above. The clear message which emerges from the literature is that no feminist legal curriculum will succeed without a profound change in the culture, ethos and composition of law schools, which at present imitate all too closely the power relations, the very masculinity, of the law itself.

49. St Joan, J and McElhiney, A B (eds) Beyond Portia: Women, Law, and Literature in the United States (Boston: Northeastern University Press, 1997)Google Scholar; McGlynn, n 10 above, p51.

50. Estrich, S ‘Rape’ in Smith, P (ed) Feminist Jurisprudence (Oxford: Oxford University Preess, 1993) p 158 Google Scholar.

51. Brophy, J and Smart, C (eds) Women in Law: Explorations in Law, Family and Sexuality (London: Routledge and Kegan Paul, 1985) pp 3–4 Google Scholar.

52. J Conaghan, n 12 above, at 357–359.

53. Eg K Green and H Lim’ What is This Thing Called Female Circumcision? Legal Education and Human Rights (1998) 7 SLS 36; N Lacey and C Wells Reconstructing Criminal Law: Text and materials (London: Butterworths, 2nd edn, 1998).

54. Eg A Barlow and C Lind ‘A matter of trust: the allocation of rights in the family home’ (1999) 19 LS 468; G Monti ‘A reasonable woman standard in sexual harassment litigation’ (1999) 19 LS 552.

55. Boon n 36 above, at 169.

56. The Law Society of England and Wales and the General Council of the Bar of England and Wales ‘The Academic Stage of Training for Entry to the Legal Profession. Standards, Content and related Issues: A Consultation’, July 2002.

57. J Scutt’ Strategies for Increasing Awareness within the Law Concerning Sex Bias' in A Thacker (ed) Women and the Law (Geelong: Deakin University Press 1998) p 116.

58. E-M Svensson’ Sex Equality: Changes in Politics, Jurisprudence and Feminist Legal Studies' in K Nousiainen, A Gunnarsson, K Lundstrom and J Niemi-Kiesilainen (eds) Responsible Selves: Women in the Nordic Legal Culture (Aldershot: Ashgate, 2001) p 88.

59. Jenks, n 36 above, at 172.

60. Wilson, n 38 above, at 166.

61. The experience at my own institution is that options have already been cut back to save money, space and staff time, and to ensure that core subjects remain adequately resourced. The trouble is that these are often the socio-legal or critical options chosen by a minority of students.

62. Ker Conway, J A Woman's Education (New York: Vintage Books, 2000) p 63 Google Scholar.

63. Naffine, n 29 above, at 101.

64. Eg A Boon, L Duff and M Shiner’ Career Paths and Choices in a Highly Differentiated Profession: The Position of Newly Qualified Solicitors' (2001) 64 MLR 563. Two of my colleagues at the University of Westminster, Liz Duff and Lisa Webley, are currently working on a study commissioned by the Law Society looking into reasons why women leave the legal profession.