Benjamin Bestgen

It might not surprise readers that the majority of philosophical and legal works (including laws) over the course of human history to date were created by men. The reasons for this are complex and often puzzling, as women make up roughly half of the world’s population.

The idea that men are naturally more resolute, reasonable and therefore better equipped to engage in activities requiring nuanced and dispassionate judgement doesn’t wash. History has certainly not shown that the widespread exclusion of women in the realms of politics, commerce, law or philosophy was beneficial to humanity. Unsound reasoning, bad judgement, poor impulse control, bias and “irrational behaviour” are gender-neutral traits.

Many countries have made considerable progress towards achieving equality between the sexes, although most legal precedent and statutes remain man-made. But in a globalised world, the idea of patriarchy becomes increasingly less plausible (if it ever was). Instead, the law should reflect that men, women and those with non-binary identities shape our societies together, nobody claiming primacy over the other purely on the basis of sexual characteristics or gender-role expectations.

Amongst other things, feminist legal philosophy analyses how and where masculinist norms and attitudes shape laws and legal systems and the effects of this on women and people who do not fall within a classic “male-female” gender identity.

What does that mean?

Equality in law cannot mean “always treating everybody the same”, because in fact not everybody is exactly the same: but law should offer the same rights, opportunities, resources and protections to all while reflecting and accommodating differences if it is fair, necessary and reasonably justifiable to do so.

An example is the debate around pregnancy leave and menstrual leave. These are policies (in some countries laws) which allow women to take paid or unpaid time off work when pregnant or suffering from dysmenorrhea (very painful periods). Critics argue that such rules are unfair because men cannot benefit from this, so women get special treatment over men. Others say such allowances are fine but justify paying women less if they take more absences from work compared to men. In a similar fashion, some argue that pregnancy leave justifies withholding promotions from women if they cannot give their full time and attention to work due to pregnancy or childcare.

But such arguments reflect that the workplace is implicitly structured around male perceptions of “normal” or “special”. If the perception changes to a “human” or “female” perspective, pregnancy or period leaves would not be seen as special or likely incompatible with career-progression. They would be seen as normal because pregnancies and painful periods are factually much more common than absences due to prostate issues or testicular cancer.

Changing perspective

An important feature of feminist philosophy is that it invites people to look at well-established societal expectations, attitudes and behaviours with fresh eyes by describing them from a gender-neutral (human) or female perspective.

In Scotland, legal scholars Sharon Cowan, Chloë Kennedy and Vanessa Munro established the Scottish Feminist Judgments Project, which takes a number of influential historic and recent Scottish legal judgments and rewrites them to see how the decision or reasoning could have been different when employing a feminist or human perspective. Cases include sexual offences, questions of consent to sexual activity, access to education, discrimination, valuations in divorces, administrative justice, directors’ duties, domestic violence, standards of reasonableness and more.

Why should lawyers care?

Professionally, lawyers should care because taking different viewpoints and thinking them through thoroughly is a vital part of what makes lawyers effective. If a feminist approach offers fresh perspectives for looking at a case, new arguments can be made, new resolutions developed, better outcomes achieved, better laws be drafted.

We should care because we all have mothers, sisters, daughters, non-male friends, colleagues, neighbours and partners. In many countries, women still cannot leave the house without a male guarding them, work or travel without male permission, enjoy autonomy over their bodies, leave violent partners, pursue an independent career, education or enjoy a date or evening out without risking harassment and harm. Philosophically this is unjustifiable. Feminist legal philosophers provide extra tools for the law to catch up.

Benjamin Bestgen is a solicitor and notary public (qualified in Scotland). He also holds a Master of Arts degree in philosophy and tutored in practical philosophy and jurisprudence at the Goethe Universität Frankfurt am Main and the University of Edinburgh.