Encyclopedia of the Philosophy of Law and Social Philosophy

Living Edition
| Editors: Mortimer Sellers, Stephan Kirste

Smith, Patricia

  • Melissa BurchardEmail author
Living reference work entry
DOI: https://doi.org/10.1007/978-94-007-6730-0_307-1

Introduction

Patricia Smith (1956–) is a US philosopher of law whose work has helped to define American feminist legal theory and to clarify certain issues in legal thought and in liberalism more broadly. The majority of her published work can be grouped into three main categories: feminist legal theory, concerns regarding the distinction between acts and omissions, and the intersections between liberalism and both feminism and philosophy of law.

Feminist Legal Theory

In Feminist Jurisprudence (1993b), Smith outlines a picture of feminist thought broadly as a rejection of patriarchy, or pervasive and systematic male/masculinist domination, reflecting the vocabulary and perspectives of 1980s and 1990s liberal feminist understandings. She argues that this rejection of patriarchy is what all versions of feminism and feminist thought share, along with a commitment “to foster open dialogue that allows the expression of diverse views and gives particular attention to eliciting views not usually heard,” as feminism works to “represent the commonality of fundamental values without misrepresenting the plurality of experience” (1993b, p. 8). Rather than accepting traditional legal categories, analyses, and projects, feminist jurisprudence challenges and rejects them when they imply or require the subordination of women. This makes feminist jurisprudence, like feminism generally, a normative project.

In “Four Themes in Feminist Legal Theory: Difference, Dominance, Domesticity, and Denial” (2005), Smith argues that feminist jurisprudence has three particular projects in its examination of law: “first, to identify sources of bias and injustice within it; second, to find ways to use it as a means to promote justice for women in other institutions and social practices, and third, to identify and overcome devices of denial, subversion, and containment that pose barriers to reform” (2005, p. 90). Contributors work on these projects by engaging with the issues identified by the four themes she notes in the title.

The theme of difference raises questions regarding whether it is more advantageous for women that the law treat them as equal to men or as different. This is often a matter of workplace debates, such as whether pregnancy leave for women should be considered a matter of equal treatment or of so-called special treatment, implicating the more general question of whether equal treatment means same or identical treatment. For example, pregnancy benefits are only “special” if it is assumed that the standard for treatment in the workplace is male. As Smith puts it, “the very construction of the debate as a question of either equal or special rights is a false dichotomy that is slanted against women” (2005, p. 92).

The theme of dominance reflects the ongoing commitment to preconceptions about the supposed “naturalness” of social hierarchies which privilege men and subordinate women. Smith’s treatment of this issue focuses on violence against women and the difficulties of finding legal remedies for it when the law is still grounded in beliefs that women should be subordinate to men, and men’s access to women is what law should protect rather than women themselves. Women continue to be inadequately protected by the laws and court procedures in place; review and reform of those laws and procedures is an uphill battle, and there is “clear documentation of the extreme bias that currently presumes male domination as normal life, and the complicity of law in failing to address it” (2005, p. 95). Smith points out that this bias and law’s complicity lead to a tendency on the part of traditional legal scholars and the public to engage in widespread practices of denial regarding the occurrence of and responsibility for violence against women. The task for feminist legal scholarship is to acknowledge and reveal the culture of dominance and intimidation that exists in the legal environment as well as in the society at large, thus making it possible to understand and address its workings in law.

The theme of domesticity reveals a further source of subordination for women which is grounded in economic disadvantage. Smith’s argument here is that the culture’s organizational structure is gendered along traditional lines that present women as nurturing caregivers and homemakers, passive and uninterested in competition, and men as aggressive, competitive, and interested primarily in the impersonal relations of the public sphere, the market, and politics. Thus working/economic life caters to men, who fit the paradigm of the “perfect worker” because they tend to be less encumbered by the demands of relational and home-making work, which is usually provided for them by the women homemakers in their lives (whether those women are also wage-workers or not).

Ultimately, Smith’s conclusion is that feminist jurisprudence is a necessary piece of the overall project of feminism working to show that “the culture of dominance and the culture of domesticity combine to produce the multidimensional subordination of women to men that is accepted as normal life, and the rationalization of difference is used to justify it” (2005, p. 104). Her conclusion is perhaps more radical than one might expect, given her presentation of herself as a moderate liberal (e.g., 1998, p. 10); as she says, “our society is fundamentally unjust. Indeed, it is organized on the basis of injustice” (2005, p. 104).

Distinguishing Acts and Omissions

The most basic issue in legal theory with regard to acts and omissions is how to understand the difference between them. The tendency in both law and ethics is to ascribe responsibility to persons on the basis of what they do and to refrain from such ascriptions when nothing has been done (omission). Smith’s position in general is to argue that although there is a distinction to be made between acts and omissions, that distinction does not do the work that it is often believed to do in legal theory or ethics. In “Omission and Responsibility in Legal Theory” (2003a), Smith explains that acts function in the literature as paradigmatic for ascribing responsibility because they are seen as causes of the states of affairs that someone must be responsible for. But because omissions (not acting) also have consequences, they should be understood as causing those consequences in the same way that (positive) actions do. This puts actions and omissions as such on similar standing with regard to ascriptions of responsibility. If one is reasonably held responsible for the acts one positively undertakes on the basis of what those acts cause (consequences), then one should also be held responsible for the omissions one allows and the consequences that follow from those omissions. Omissions thus can function as causes for which agents can be held responsible in the same way that actions can.

Smith’s analysis is highly attuned to the ways that the law, and legal concepts such as omission, are embedded in the concrete social world rather than simply being abstractions. This makes it possible for her analysis to include, for example, the fact that omissions are not merely “failures to act” but rather are a subcategory of actions; that is, “an omission is always the violation of some norm, standard or rule” (2003a, p. 232). Recognizing how omission functions requires noticing that it is always related to or in regard to some norm or standard of the social world. This recognition of the importance of the social is a strength of Smith’s work that allows her to argue that what is important about omissions is not that “they reflect our separateness or even our autonomy but that they demonstrate our connections – connections that extend our responsibility beyond interventions to the failure to act” (Smith 2003a, p. 240).

Smith shows that the conception of omission as failure to act is misleading because it exaggerates the tendency to associate cause with act and obscures the fact that consequences follow from failures, or encourages disavowal of responsibility for those consequences because they were not “positively caused.” Rather, when the social and normative context of omission is understood, it can be seen that an omission is “a state of affairs brought about by an agent who deviates from a pattern of activity in a way that violates what a reasonable person would expect to be done, specifically by failing to do what is necessary to meet a standard of normal behavior within a context that specifies normal behavior” (Smith 2005, p. 250). Responsibility must therefore be ascribed in cases of omission as well as for acts.

A thornier problem arises with regard to unconscious or unintentional omission. Smith points out here that the language of “refraining” generally used to talk about omission can itself cause difficulties. This is misleading when there is an unconscious omission because to refrain implies something done deliberately, whereas unconscious omission (negligence) is not deliberate: “A legal charge of negligence typically involves a claim that the defendant was not aware of (or attending to) what any reasonable person would have been aware of under the circumstances” (1990, p. 159). This makes the determination of negligence in law a matter of evaluation of context, because what is reasonable is a matter of consensus standards and the expectations of communities. This does not make the determination of unconscious omission simple or obvious, but rather points again to the importance of the social in legal issues. The point is, on Smith’s account, that such determinations cannot be made abstractly but must include the social context the events arise and occur within.

Issues in Liberalism

Smith argues in various publications that the issues explained above are connected to the fact that the liberalism that provides certain grounding values for Western, and especially American, society supports a version of individualism that is drawn too narrowly and atomistically. The values of freedom and autonomy are understood negatively, as enjoining a sphere of noninterference, but not positively, as entitling persons to any aid they might need in order to enjoy those values. Thus she explains that in a country (the USA) that says it reveres motherhood and values and protects children, mothers and children are not considered worthy of or entitled to a standard of living higher than poverty unless they can provide it for themselves or get it from charity (2003b). This is because Americans believe that others are not entitled to anything economically; at least, not if we all have to pay for it. Although the official rhetoric of the United States is that we are all fundamentally equal, the “wind tunnel effect” that works to maintain white and male privilege means that reform, both social and legal, has been and continues to be miniscule on issues that significantly challenge the status quo, such as substantive racial equality (2000).

Smith believes that many issues along these lines can be understood in terms of the problem of affirmative obligation, the idea that our duties are not limited to the universal negative proscriptions associated with noninterference rights. Rather, she argues in depth in Liberalism and Affirmative Obligation (1998) that an adequate conception of (liberal) individualism must be cooperative rather than the traditional atomistic one. Such a conception would recognize that while each individual’s rights must be protected, no individual is self-sufficient, but depends on a wide network of others, and is mutually obligated to contribute to that network in return. Smith elaborates the conception of special positive duties to support her position, showing that such duties are not limited to those that are “natural” (family obligations) or contractual but include large-scale social and political duties as well. Thus a morally and politically adequate liberalism must recognize not only negative rights but also a much larger scope of positive duties than has tended to be assumed. Whereas the violation of duties associated with negative rights has always been seen as wrongful action, a cooperative liberalism must also see the failure to meet positive duties as wrongful omission, for which persons can and should be held equally culpable. In this way, a cooperative model of liberalism can require a greater level of responsibility and positive contribution from (all) its citizens rather than relying only on those whose charitable impulses are strongest, marshalling greater resources for positive action and enabling positive progress on problems such as poverty and inequality.

Conclusion

Smith’s work has helped define the field of feminist philosophy of law. She has illuminated issues of importance to jurisprudence generally as well as to feminists in areas such as the theory of rights, problems of liberalism and law, the distinction between acts and omissions, and equality in the law.

Cross-References

References

  1. Smith P (1989) Recklessness, omission, and responsibility: Some reflections on the moral significance of causation. South J Philos 27(4):569–583CrossRefGoogle Scholar
  2. Smith P (1990) The duty to rescue and the slippery slope problem. Soc Theory Pract 16(1):19–41CrossRefGoogle Scholar
  3. Smith P (1991) The duty to rescue and willful disregard. Soc Theory Pract 17(3):457–468CrossRefGoogle Scholar
  4. Smith P (ed) (1993a) The nature and process of law: an introduction to legal philosophy. Oxford University Press, New YorkGoogle Scholar
  5. Smith P (ed) (1993b) Feminist jurisprudence. Oxford University Press, New YorkGoogle Scholar
  6. Smith P (1993c) Family responsibility and the nature of obligation. In: Meyers DT (ed) Kindred matters: rethinking the philosophy of the family. Cornell University Press, Ithaca/New York, pp 41–58Google Scholar
  7. Smith P (1994) Individualism and social responsibility: reflections on recent work by French and May. Soc Theory Pract 20(3):363–380CrossRefGoogle Scholar
  8. Smith P (1995) Feminist legal critics: The reluctant radicals. In: Caudill DS, Gold SJ (eds) Radical philosophy of law: contemporary challenges to mainstream legal theory and practice. Humanity Books, Amherst, pp 73–87Google Scholar
  9. Smith P (1996) Feminist jurisprudence. In: Patterson DM (ed) A companion to philosophy of law and legal theory. Blackwell, MaldenGoogle Scholar
  10. Smith P (1998) Liberalism and affirmative obligation. Oxford University Press, New YorkGoogle Scholar
  11. Smith P (2000) Persistent problems, illusions of progress, and mechanisms of marginalization. In: Estes Y, Farr AL, Smith P, Smyth C (eds) Marginal groups and mainstream american cultures. University Press of Kansas, Lawrence, pp 96–110Google Scholar
  12. Smith P (2003a) Omission and responsibility in legal theory. Leg Theory 9(3):221–240Google Scholar
  13. Smith P (2003b) The silent constitution: affirmative obligation and the feminization of poverty. In: Schwarzenbach SA, Smith P (eds) Women and the United States constitution: history, interpretation and practice. Columbia University Press, New York, pp 108–124Google Scholar
  14. Smith P (2004a) Intolerance and exploitation: civic vice, legal norms, and cooperative individualism. In: Sistare CT (ed) Civility and its discontents: essays on civic virtue, toleration and cultural fragmentation. University Press of Kansas, Lawrence, pp 59–70Google Scholar
  15. Smith P (2004b) Liberalism as an antidote to stereotyping. In: Baehr AR (ed) Varieties of feminist liberalism. Rowman & Littlefield, Lanham, pp 30–46 of electronic version at ProQuest Ebook Central, https://ebookcentral.proquest.com/lib/unca/detail.action?docID=1249478Google Scholar
  16. Smith P (2005) Four themes in feminist legal theory: difference, dominance, domesticity, and denial. In: Golding MP, Edmundson WA (eds) The blackwell guide to the philosophy of law and legal theory. Blackwell, Malden, pp 90–104Google Scholar
  17. Smith P (2009) Feminist philosophy of law. In: Zalta EN (ed) The stanford encyclopedia of philosophy (Summer 2009 Edition). https://plato.stanford.edu/archives/sum2009/entries/feminism-law/

Copyright information

© Springer Nature B.V. 2019

Authors and Affiliations

  1. 1.Department of PhilosophyUniversity of North Carolina AshevilleAshevilleUSA

Section editors and affiliations

  • Sally Scholz
    • 1
  1. 1.Philosophy DepartmentVillanova UniversityVillanovaUSA