Feminist Legal Theory and Understandings of Equality: One Step Forward or Two Steps Back?
25 Pages Posted: 20 Jun 2007
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.
Keywords: equality, formal equality, substantive equality, women's social, legal and economic status, gendered harms
JEL Classification: K10
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