Critique féministe matérialiste du droit civil québécois : le travail « domestique » et les violences sexuées, les « impensés » du droit du logement

This research is a radical and materialist feminist critical theory essay. Its main objective is to denounce the current structure of the right to housing. From a conceptual framework based on materialistic and radical feminism, it aims to highlight the point of view of the class of women in relation to housing. The right to housing is here used in a broad sense and makes reference to housing. Our study focuses on ownership and the rental system. The right to housing has been internationally recognized in human rights texts. It is recognized as the "right to adequate housing." It is not explicitly recognized in Canada or Quebec, despite commitments in this respect on the international stage. A statistical portrait using the criterion of sex highlights the existence of differences between men and women in respect of the satisfying of their right to housing. Women have more difficulty accessing housing, they perform most of the domestic work and care, and they are the principal victims of violence in the home. In the housing system, the experience of women is understood as both an individual and a collective appropriation by the class of men, as rethought by Colette Guillaumin, which focuses on the sexual division of labour and sexual violence. In its present form, the right to housing is based on the appropriation of women's labour and their bodies. We use these two criteria to build a materialistic and radical feminist analysis grid in an aim to analyze the structure of the right to housing, as conceived in civil law. This feminist analysis also permits us to situate state law as a patriarchal practice. This patriarchal practice helps to ensure the maintenance of the housing system, which is comparable to a hegemonic system, as developed by Gramsci. This study sets the right to housing in a neoliberal political context. Neoliberalism is developed as an ideology that imposes market rationality on all state policies. From a method described as meta-theoretical external radically reflexive because it proposes to import conceptual tools that are foreign to the discipline of modern law, we radically rethink the construction of civil law and the institutions governing the right to housing. Data collection is done through a literature search. We examine four civil law institutions in detail: the subject of law, the private/ public dichotomy, mediation of the right to housing through contractual relations and the right of ownership in respect of immovable property, and finally notaries. The feminist analysis of the subject of law emphasizes a paradox. On the one hand, there is the presumed universality of the subject of law, from which flows equality and freedom for all juridical persons. However, we demonstrate how, contrary to the claim of positive law that the subject of law is sex neutral, the subject is always a member of the class of men. On the other hand, we analyze how the law recognizes the sex of the subjects and especially how this sexuality is built on the ideology of naturalism. This male subject model is fundamental to the construction of the right to housing. The feminist analysis highlights the situated nature of the private/public dichotomy. As no area or issue of law is either private or public in and of itself, the process of qualification is an act of power. We demonstrate how civil law creates zones of private law that are basically zones of non-rights for women. The characterization as private also devalues the work performed by this sex class. While the right to housing is a human right, it is nevertheless centered on a contractual relation and a right of ownership. Accordingly, it is important to examine the nature of the consent given by women as a social group, in the context of contracts of sale and rental contracts. The experience of women is not taken into account in the formation of these contracts. Categories that are attached to contracts of sale and rental, such as seller or tenant, represent the point of view of the class of men. Although the condominium’s popularity with the class of women seems to indicate that the winds are changing, we analyze how the predominant rhetoric around it manipulates certain feminist claims, while ignoring the issues of domestic work and violence. Finally, we turn to notaries and reconsider them as organic intellectuals, as developed by Gramsci, for the class of men. This intellectual function highlights how each real estate transaction favours the perpetuation of patriarchal interests, raising the question of the nature of a notary’s duty to advise and act impartially. In light of this analysis, the Civil Code of Québec is considered from a materialistic and radical feminist perspective and becomes a system that institutionalizes the appropriation of women through the right to housing.

Keyphrases: Right to housing, feminism, critical theory of law, civil law, neo-Gramscian theory, sexual division of labor, gendered-based violence