voices of women in law // voix des femmes en droit


Anna McIntosh

This year marks the 90th birthday of Dorothy Smith, one of Canada’s most prominent sociologists. For those who have taken an introductory course in sociological theory, Smith may have been the only Canadian and one of few women to make it onto the syllabus. Despite her significant contributions to sociology, however, her work is less well known outside of this discipline. Smith describes sociology as both explaining the world and being capable of transforming it, two functions with parallels to law. Thus, while this piece focuses on sociology, the relevance of Smith’s insights could be extended to law and/or the study of law.

Smith began her career at Berkeley, where her experience was profoundly marked by being a woman. In the 1960s, almost no women were hired in departments of sociology. Women who were hired received lower salaries and less stable positions, and were not taken as seriously by male colleagues.

Smith experienced a sense of discord as she navigated between her life as a sociologist and her life at home. Her academic field purported to offer a comprehensive set of tools for analyzing and understanding the world. However, when Smith returned home to do housework and spend time with her children, she would find this reality not reflected in the conceptual paradigms of sociology. Smith felt uneasy about “sociology’s claim to be about the world we live in, and, at the same time, its failure to account for or even describe the actual features [women] experience.”¹

Smith explored how sociology excludes women’s experiences. She concluded that the most significant problem was not insufficient numbers of women sociologists or lack of research on women, but a more basic issue with how sociology approaches the world.

Smith noted that sociologists “observe, analyze, explain and examine [the] world as if there were no problem in how it becomes observable to them.”² In other words, they observe the world as if their perceptions revealed an objective state of things, without problematizing how their social role influences their perceptions. Sociologists often appear to assume that they observe the world as objective outsiders, as if positioned behind the clear glass window of a science laboratory, when in fact the image this glass window offers is coloured by the sociologist’s place in society.

Smith argued that rather than describe an objective reality, sociological accounts of the world serve to reflect and reproduce existing social structures. Where knowledge has been developed almost exclusively by men, these accounts of the world reflect men’s points of view and their social realities, while silencing the voices of women.

Building on these reflections, Smith articulated an alternate sociology: instead of claiming to describe the world from a neutral standpoint, sociology should consciously operate from the standpoint of women. Sociology should be a sociology for women. It should seek to explore social structures, as well as the organization of social relationships starting from the everyday experiences of women themselves.

Smith dedicated much of her career developing a methodology for understanding social structures from the bottom up. This approach can be used by women and other marginalized groups to critique and transform society. She called this methodology institutional ethnography.

Institutional ethnography traces the process by which women’s experiences are translated into stories told about women (whether women in general or a specific woman) in institutional contexts. For Smith, women’s “lived actuality” is starkly different from what institutions label as the “facts” or “what actually happened.” Lived actuality is women’s experiences. In contrast, facts are the product of institutional practices such as eliciting information by questions or recording events according to categories and codes. These questions and coding procedures involve male and institutional bias. Thus, institutional accounts present women’s experiences in a way that is actionable, but not necessarily meaningful to the women involved.

Institutional ethnography further explores the ways that institutional accounts of women’s experiences determine how women are treated within systems. Smith’s work investigated how accounts of women within the medical system, the legal system and the educational system trigger rules and procedures for dealing with specific categories of women, such as those who, respectively, suffer from “mental illness”, experience domestic violence, or are single mothers incapable of supporting their child’s education in ways expected of them. These procedures, while sometimes intended to help women, place additional burdens on women and often do them more harm than good.

Wilson and Pence’s study of indigenous women’s experiences with the legal system in the United States³ provides an insightful application of Smith’s institutional ethnography. When indigenous women who are victims of domestic violence contact emergency services, the issues they face are segmented into categories (e.g., police, child protection, chemical dependency, mental health) to be addressed by different agencies. Each of these agencies focuses primarily on treating the woman in a way that meets its own administrative requirements, rather than on understanding her and responding to her needs.

The results are problematic. Different agencies frequently demand contradictory courses of action: a divorce court, a child protection court and a counseling program may impose contradicting structures on the relationship between a woman, her abuser and their children. The narrative and the timing of institutional action often do not reflect women’s interests: a court hearing months after an assault generally fails to attend to deeper contextual causes of the assault or support the woman at the time she needs it most. Furthermore, an agency’s administrative requirements may in fact fail to protect women. For example, when correctional facilities attempt to contact women three times prior to releasing their abuser, this does not translate into actual protection. These calls can be made in quick succession to simply fulfill an administrative obligation, and are often made shortly before the abuser’s release.

Research such as this demonstrates the damage that can be done when women’s experiences and needs do not constitute the starting point for institutional action affecting them. It also creates new opportunities for women and other marginalized groups to advocate for change, and recognize that misdirected institutional action reflects a problem with institutions, rather than with them, personally.

Dorothy Smith’s approach exemplifies courageous and caring thinking. Courageous thinking, because Smith placed her career at the margins by reversing the established ways of understanding in her discipline. Caring thinking, in that Smith strove to redefine the objective of her discipline as giving a voice to, and validating the experiences of, women and other marginalized groups in society.

(1) Dorothy E Smith, The Conceptual Practices of Power: A Feminist Sociology of Knowledge (Boston: Northeastern University Press, 1990) at 27.
(2) Ibid at 16.
(3) Alex Wilson & Ellen Pence, “U.S. Legal Interventions in the Lives of Battered Women: An Indigenous Assessment” in Dorothy E Smith, ed, Institutional Ethnography as Practice (Lanham: Rowman & Littlefield, 2006) 199.

Contours is made possible by funding from the McGill Law Students’ Association / L’Association des étudiant-e-s en droit de McGill. All rights reserved. No part of this publication may be reproduced in whole or in part without permission from the authors.

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