The Studies Of Equality And Difference Theories Under The American Feminist Jurisprudence

The emergence of feminist jurisprudence is an important academic phenomenon in the 20th century. The current feminist jurisprudence theory, affected by the post-modern theories in the 1990s, bears the strong characteristics of anti-mainstream and critical thinking, and therefore it is often regarded as a school of post-modern legal theory. Despite that feminist jurisprudence itself has various schools and disagrees on many issues, it has come to a stage that the voice of feminist jurisprudence cannot be ignored by the legal academic circle, and the feminist jurisprudence must be studied or mentioned in any study of the current Western legal theories, especially post-modern legal theories. Although certain studies and translation work regarding the Western feminist theory have been conducted in China, such study and translation were primarily limited to the theories of philosophy, social science, history, and literature remarks. No works regarding feminist jurisprudence has ever been published in China, and there have been few Ph.D. dissertations which focused on the study of feminist jurisprudence. The few studies of, or introductions to, the feminist jurisprudence scattered in the research work in connection with the Western post-modern legal theories and they have only limited length and the scope of study. None of them is a in-depth study on feminist legal issues. Most importantly, despite of the importance of the study on the post-modern feminist jurisprudence, it is only a phase in the developments of the feminist legal theory, and it cannot represent the entire theoretical body of the feminist legal theory. This paper positioned to study the core issue of the feminist jurisprudence, equality and difference, and it combed through the entire developments of the American feminist jurisprudence, explored its academic origins, indicated the impact of the American feminist jurisprudence on the Western modern legal theories, and complemented and enriched the lack of study regarding the issues of equality and difference in China. The Paper Is Divided into Four Chapters Excluding the Introduction and Conclusion: Chapter One: The American feminist jurisprudence has been divided into three stages from a historical perspective, and this chapter discussed the emergence and the developments of the issues regarding equality and difference in each of these three stages. In conjunction with the classification of various schools in the feminist jurisprudence, this chapter further explored the issues of equality and difference within the mainstream schools of the American feminist jurisprudence and the relevant implications of these issues on the American society and the legal practices. In order to clarify certain unclear issues in the academic circle in China, this chapter also discussed the transition of the American feminist jurisprudence to the post-modern stage and its relationships with liberal legal theory, critical legal studies and post-modern legal theories. Chapter Two: From multiple perspectives such as theory and practice, this chapter compared/contrasted, analyzed, and commented on, four primary schools within the American feminist jurisprudence in connection with each of their views on the issues of equality and difference. Through such comparative study, the chapter indicated that the development of the issues regarding equality and difference in the American feminist jurisprudence is a process of (i) gradually disagreeing on the duality opposition, (ii) extending the meanings of "equality" and "difference", and (iii) attempting to leave the "difference dilemma". The chapter further indicated that in order to resolve the issue with respect to the "difference dilemma" as a result of duality opposition between equality and difference, the various schools of the American feminist jurisprudence have been making efforts to achieve the goals of (i) realizing equality between men and women in legal practice, (ii) the emancipation of women, and (iii) elimination of discrimination and suppression against women.Through such comparative study, the paper showed that the development from one stage to another stage in the American feminist jurisprudence was not simple critic disapproval, but rather a process of disapproval upon another disapproval, and succession and to surpass. Such development reflected (i) the desire of the feminist jurisprudence to evolve its goal from pursuing the equality between men and women to a broader goal of comprehensive equality for human beings; ( ii) the extension from, and the awakening of, the difference between men and women to the difference among women, even the difference among human; (iii) change of focus from women's rights to the rights of all the disadvantaged and marginalized groups; (iv) change from pursuing the nature and truth to the understanding of, and showing of respect to, non-mainstream, difference, different views and different life styles; and (v) change in study methodologies from fixed duality opposition under liberal legal theory to the one used by the post-modernists in terms of its admission of pervasive existence of difference and multiple facets of the world. In general, the American feminist jurisprudence has deepened its theoretical studies and showed a trend of progression as a result of the influence of the post-modern legal theories. Chapter Three: The evolution of the issues regarding equality and difference represents ( i ) the challenge of the American feminist jurisprudence to the traditional Western modern legal theories and (ii) the role that it has played in changing the ways of thinking and legal paradigms of the traditional Western modern legal theories. The development of the American feminist jurisprudence is not only a process of succession, development and surpassion of the Western modern legal theories, it is also a process of disapproving, critiquing and challenging the Western modern legal theories. The feminist jurisprudence began to challenge the Western modern legal theories from the very first day of its emergence, which was deemed to be the mission of the feminist jurisprudence. However, the legal perspectives and depth of feminism to critique the Western modern legal theories varied from one development stage to another. As a school of legal thoughts originated from liberalismand transitioning itself to post-modern stage, the feminist jurisprudence reflects an integrated body which combines (i) the challenge to the Western modern jurisprudence and (ii) modifications to its own theories. This chapter discussed the challenges made by the feminist jurisprudence to the Western legal theories from three primary aspects, i.e., the theory on legal subjects, the objectivity and neutrality of law and legal paradigm. The impact on the Western modern legal theories includes changes in the following three respects: (i) from rights to discourse, (ii) from duality to multiplicity, and (iii) from center to margin. The author not only commented on the creative views presented by the feminist jurisprudence during its challenging the modern legal theories, but also analyzed the loss of certain valuables to the feminist jurisprudence during this criticizing process. Chapter Four: This chapter discussed the enlightenments that the American jurisprudence may have on the Chinese feminist studies. The paths of researches regarding women's issues between China and the U.S. are different, and the theories and practices on women's issues differ in many respects between the two countries. However, the development of China's experience regarding the issues of equality and difference appear to resemble the U.S. experience. The issues regarding (i) which views should be taken on equality vs. difference and (ii) whether women should be specially treated or be treated on a basis of no difference from men require the attention of the Chinese legal circle. The American jurisprudence theories contain many shortcomings. However, many practical and realistic issues raised by the American jurisprudence are worth of being thought and studied upon. Such issues would also complement, or even help to resolve, the existing problems in the Chinese academic circle with respect to gender equality and the emancipation of women. Under the background of the globalization, the Chinese legal study must be compatible with that of the developed countries. The slogans of "men and women should be equal" and "liberalization of women" must be placed in a broader background which is compatible with other countries. The issues regarding equality and difference bear both characteristics of being a nation-...