Feminist Philosophy of Law, Legal Positivism, and Non-Ideal Theory

Abstract

Feminist philosophy of law has been shaped by debates between liberal feminists who emphasize non-discrimination and equality of opportunity and more radical feminists who offer a variety of far-reaching criticisms of the law as a structure of patriarchal power. Among philosophers, these debates have taken place largely separately from the debates in philosophy of law over legal positivism and natural law theory: whether law as it is should be distinguished from law as it ought to be. Here, I argue the issues are deeply interconnected and feminist philosophy of law is better aligned with legal positivism. My argument has four steps: a brief methodological note about non-ideal theory, an account of the conceptual separation between law and morality advocated by legal positivists, a sketch of approaches to feminist philosophy of law, and two illustrative examples.

Keywords: Feminist Philosophy of Law, Equality, Non-Discrimination