Feminist Legal Theory and Understandings of Equality: One Step Forward or Two Steps Back?
The University of Sydney Law School
Jenny Jane Morgan
Melbourne Law School
Thomas Jefferson Law Review, Vol. 28, No. 3, 2006
Sydney Law School Research Paper No. 07/41
U of Melbourne Legal Studies Research Paper No. 249
In this discussion we start by exploring two interrelated aspects of understandings of equality. First, we look at the persistence of the understanding in law of equality as meaning only formal equality, that is, the Aristotelian notion of treating people the same, regardless of circumstances. Secondly, we examine the extent to which we have succeeded in reconceptualising some of the harms that happen to women (and other outsiders) as gendered harms, as legal claims predicated upon a recognition of inequality. We then consider why formal equality continues to have such purchase, and discuss ways in which we may continue to engage with equality more fruitfully. We discuss examples from Australia, as well as some from other countries, specifically South Africa and Canada, to illustrate different ways of approaching equality issues. We conclude our discussion with a brief review of developments in jurisdictions that take a more substantive approach to equality issues and consider the extent to which women's social, legal, and economic status have improved in these jurisdictions.
Number of Pages in PDF File: 25
Keywords: equality, formal equality, substantive equality, women's social, legal and economic status, gendered harms
JEL Classification: K10
Date posted: June 20, 2007