Making the case for mandatory feminist legal education

  • January 16, 2019
  • Grace Cleveland

Note: This is the second part of a two-part article. Read the first part here.

Legal education can and should continue to focus on professional training for the careers that the majority of law students find desirable. Adding a feminist perspective to that primary focus allows for a more sophisticated understanding of the force of law and the power that lawyers and judges wield in shaping it.

As a first step, law schools must acknowledge “certain basic realities as uncontroversial. The fact that we live in a society structured by relations of power that are organized on the intersecting bases of racism, (hetero)sexism, and class exploitation, which are in turn supported by the law, could be one such basic reality.”1 Law schools must model awareness of their complicity with structures of oppression if law students are expected to do the same. Once they have acknowledged this reality, each law school will need to decide the best way to address it.

Some feminist legal scholars argue that the divided, compartmentalized course framework of first-year law can remain untouched if a form of “feminist revisit”2 follows in second year. 2L would then see courses returning to the cases of 1L and asking where women’s perspectives have been left out.  Arguments in favour of this approach posit that the “ties to the traditional curriculum increase the ‘legitimacy’ of the seminar.”3 Critics worry that it limits students to engagement that is, at best, superficial and conservative.4

A different approach for incorporating feminist legal theory and feminist legal methodology (FLT and FLM) is to completely revise the “classical boxes”5 of tort, contract, criminal law, and the like, opting instead to frame the courses around larger concepts such as “money, violence, and work.”6

A more moderate option is to allow law students to meet the FLT requirement in a way similar to how students now meet a writing requirement.  Courses such as family law or jurisprudence that generally touch on FLT could count as credit if the student’s final project sufficiently engages with FLT and FLM. Finally, law schools could choose to maintain traditional FLT courses such as Women and the Law, but make them mandatory instead of elective.

Each option has strengths and weaknesses, but allowing law schools to choose their own approach would facilitate buy-in and would ensure the specific needs of each school are met.

The options for content are as varied as the options for form. In deconstructing traditional doctrines and examining relationships between legal institutions and Canadian society at large, law students can identify not only what is included in the case method system but, crucially, what is left out (ie. unmasking patriarchy).

Consciousness-raising, too, is effective in a classroom: seats can be arranged in a circle and dialogue can be drawn from personal experience. Students can be given space to tell their stories and gain confidence when their contributions are validated and respected instead of silenced and overruled. Professors of FLT courses can create a power-sharing dynamic through group work and experiential learning. The addition of narratives to supplement cases and statutes in the course readings allows for a blending of “affective and intellectual learning.”7 Instead of learning the law as a system of rules and principles, law students are invited to see its very real limitations and to envision innovative solutions. Similarly, the application of contextual or feminist practical reasoning teaches students to find the person in the equation and consider resolutions that help, rather than further harm individuals and communities. After all, “to think well about what ought to matter in law and politics, we must think about what matters to people.”8

A further shift must be made in terms of the skill-set that Canadian law schools aim to teach. While rational reasoning skills are no doubt developed by the case law method, this method fails to help students develop social, cultural, and political awareness. FLT and FLM are better suited to teaching the interpersonal and observational skills that allow for success in working with others. Another skill overlooked by the dominant pedagogical practices within Canadian law schools is creative problem solving. Feminist legal thinking counteracts this through the facilitation of alternative skills including improvisation, teamwork, and emotional intelligence.

Ultimately, the integration of a feminist perspective into the curricula and pedagogy of all law schools can contribute to a new kind of socialization process where knowledge and culture are transformed rather than simply transmitted. Because “the vantage point through which students are exposed to the law is unique,”9 law school is the perfect time to think about the ways that “we always live embedded in law, [and are all] privileged or penalized by legal institutions.”10 What law students learn today may be law tomorrow. If law school is not used as a means of intervention in the acculturation process, then Canadian legal education will continue to contribute to a culture that excuses gender inequality. This alone is enough to justify bringing feminist jurisprudence into the graduation requirements of every Canadian law school and national accreditation program. I cannot say that feminist legal education will eliminate sexism or remedy one of Canada’s largest social problems, but mandatory engagement with FLT and FLM will, at the very least, ensure that graduates are unable to plead ignorance to the unequal effects of law and their role in maintaining oppression.11

Grace Cleveland is an executive member of the Women Lawyers Forum.

 

End Notes

1. Bhandar, supra at 358.

2. Bernstein, supra at 225.

3. Bernstein, supra at 226.

4. See Bhandar, supra at 349; Bernstein supra at 226.

5. Brooks, supra note 36 at 215

6. Ibid.

7. Menkel-Meadow, supra at 80.

8. Sherman J. Clark, “Law School as Liberal Education” (2013) 63:2 J Leg Educ 235 at 240.

9. Bakht et al, supra at 696.

10. Martha T. McCluskey, “Defending and Developing Critical Feminist Theory as Law Leans Rightward” in Martha Albertson Fineman, ed, Transcending the Boundaries of Law: Generations of Feminism and Legal Theory (New York: Routledge, 2011) 352 at 363.

11. This article is limited to an analysis of feminist jurisprudence but the author recognizes that this is one of many forms of outsider jurisprudence for which space must be made in Canadian legal education.