Eve and the Forbidden Fruit: Reflections on a Feminist Methodology

Colleen M. Olesen

Abstract


In traditional Western legal analysis, the standard approach to dispute resolution involves evaluating the respective rights in a given conflict, and imposing an ordered settlement with one right as paramount. This method is upheld as an objective process leading to inherent truths. In reality, traditional legal approaches are steeped in subjective and normative selections. The decision-maker infuses the analysis with the values and priorities of a limited segment of the community.

The consequence of this approach has been the entrenchment of legal principles which reflect traditionally male perspectives. For example, the legal approach of characterizing conflicts in terms of competing rights finds its philosophical underpinning in male approaches to reasoning. This focus on competing rights in defining and resolving conflict serves to overlook other perspectives, and ignores the realities of individuals actually before the decision-maker.

In an attempt to address both the individual and collective experience, feminist legal theorists have moved beyond the constraints inherent in liberal legalism. Feminists have critiqued the rights-based approach as one which neglects to address the realities of women.

The difficulties in employing a rights-based approach are evidenced in the Supreme Court of Canada's decision in Re Eve, which concerned the question of contraceptive sterilization of mentally incompetent women. The Court based its decision on the parens patriae jurisdiction. Writing for the unanimous Court, Laforest, J. restricted the exercise of that jurisdiction to exclude the contraceptive sterilization of the mentally incapacitated woman before it. This decision has been hailed by many as a victory for the mentally disabled. However, the author argues that these accolades are short-sighted.


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