Gender and the analytical jurisprudential mind

Because gender norms shape the content and application of the law, feminist scholarship has a lot to contribute to the study of law. Gender is also relevant to several problems in normative jurisprudence, and to some problems in special jurisprudence (the study of concepts in the law). But gender has no relevance to general jurisprudence, for there is no sense in which the concept of law is ‘gendered’, and no answer to leading problems in general jurisprudence depends on any thesis about gender. Yet some scholars, including Joanne Conaghan, argue that gender is pervasively relevant to jurisprudence. She says its relevance has been screened out by three errors that characterize what she calls ‘the analytical jurisprudential mind’: a belief that legal concepts are unchanging, that description is value-neutral, and that empirical evidence is irrelevant to jurisprudence. I show that none of these charges can be sustained. By way of example, I show how analytical methods handle the relationship between sex and gender and the place of sex in the law of marriage. Hostility to analytical methods is likely to be damaging to feminist legal theory, and I urge feminist scholars in law to consider the now-plentiful resources in analytic legal philosophy that treat the topics of interest to them