From Reified Abstractions to Situated Contexts: Feminist Jurisprudence, Paradigm Shift and Legal Change

Abstract

This study addresses the extent to which feminist jurisprudence literature has developed the potential to initiate a legal paradigm shift leading to legal and consequent social change that would alleviate gender inequality. Drawing upon Kuhn's (1970) and Stacey and Thorne's (1985) arguments, I theorized that for a paradigm shift centered upon women and women's experiences to occur, feminist jurisprudence, particularly second- and third-phase feminist jurisprudence, needs to be incorporated into, and accepted by the mainstream. Through quantitative analysis I evaluated, first, the publication and citation patterns and the diffusion of feminist jurisprudence litearature as evidenced in articles published between the years 1983 and 1994 in legal journals assigned impact factors by the Social Science Citation Index. Second, using content analysis, I classified feminist jurisprudence articles published in the subfields of family and penal law --theorized to differ in degree of androcentrism-- according to the three phases of feminist jurisprudence theory. My quantitative analysis showed that the number of feminist jurisprudence articles published in mainstream legal journals is increasing over time. Further, feminist jurisprudence articles published in legal journals with higher impact factors tend to receive larger numbers of citations than articles published in journals with lower impact factors. Finally, although the overall impact factor of journals publishing feminist jurisprudence articles is declining, feminist jurisprudence literature is present among a wide spectrum of legal specializations. My qualitative analysis showed that there was an equivalent number of family and penal law articles which exhibited second- and third-phase characteristics. However, family law articles tended to cover a wider range of topics than penal law articles. Furthermore, family law scholars were more likely than penal law scholars to address issues of differences among women and feminists, thus, exhibiting third-phase characteristics. In constrast, penal law scholars tended to focus upon differences between feminists and non-feminists and the practical difficulties resulting from the structure, organization and practitioners of the criminal justice. Overall, my analysis showed that feminist jurisprudence appears to have developed the potential to initiate a paradigm shift within the legal discipline. However, in addition to feminist theorizing, feminist activism is important for the realization of legal and social changes that will alleviate gender inequality.