Published on March 13, 2014
Ivana Radacic I. What is Feminism and Feminist Jurisprudence? There is no easy and single answer on what feminism is. Moreover, many modern feminists believe that no single theory can account for all aspects of the domination and oppression of women and some deny the usefulness of general theories, at least the Grand Theory.1 For the purposes of exemplification, I use the description of feminism as provided by Deborah Rhode: “At the substantive level, it implies a commitment to equality between the sexes. At the methodological level, it implies a commitment to gender as a focus of concern and to analytic approaches that reflect women’s concrete experiences. Underlying these commitments are certain core values of broader scope. Any ethical framework adequate to challenge gender subordination must similarly condemn the other patterns of injustice with which it intersects.”2 I choose this definition because it comes closest to my vision of feminism, and because it embraces all aspects of feminism: its goal- which some feminist theorists define as equality between the sexes3 and other more specifically as rejection of patriarchy and liberation of women; its focus of analysis- which some see as gender,4 1 Postmodernism feminism particularly rejects the idea of grand theorizing, which will be discussed later. See, for example Carol Smart, Feminism and the Power of Law, New York: Routledge (1989). 2 Deborah L. Rhode, The “No Problem” Problem: Challenges and Cultural Change, 100 Yale L. J. 1731, 1735-6 (1991). 3 The meaning of equality has, however, been contested by feminist theorists, which I will discuss in subsequent section where I analyse different feminist legal theories. 4 The notion of gender captures the ascribed, social nature of distinctions between women and men, while sex refers to their biological characteristics. 1
and other more specifically as women5 (as devaluated gender identity); method- approaches that reflect women’s experiences;6 and also broader ethical concerns about any kind of oppression and injustices.7 This definition shows that feminism is goal- oriented;8 it is not an abstract theory detached from practice. Feminist theory is informed by practice; it is grounded in the experiences of different women ‘as women.’ At the same time, feminist theory aims to effect and transform the (oppressive) experiences of women. Feminist jurisprudence likewise is not a single theory.9 Katherine Barlett defines it as ‘a family of different perspectives or frameworks used to analyse the actual, and the desirable, relationship between law and gender.’10 Christine Littleton defines feminist 5 Many feminist theories have doubted whether ‘women’ is an adequate analytical category, considering that there is no single ‘woman identity’ and no single ‘woman’s experience.’ Some scholars still believe that common experience of oppression and disadvantage on the basis of gender , as produced by patriarchy, in different women’s lives justifies using the category of ‘women,’ but warn against essentialism. Others believe that it is strategically and practically important to retain the category of women. Still others believe that appropriateness of the category may depend on the context and goals at issue. The problems of essentialism will be discussed when introducing diversity and postmodern feminist theorists. 6 Feminists have criticized the mainstream social sciences’ epistemology and methodology on the grounds of being ‘male’ biased and on the grounds of reflecting distorted picture of social reality. They have particularly attacked the ideas of ‘Truth,’ ‘universality,’ ‘objectivity,’ ‘neutrality,’ ‘abstract reason.’ Although most feminists do not see any particular method as ‘the method, they sees ‘consciousness raising,’ ‘storytelling’ and asking a ‘woman question’ (what are gender implications of rules and practices in question) as valued methods of exploring women experiences left out or misrepresented by ‘mainstream’ epistemology. I will later discuss feminist methodology and attacks on objectivity in more detail, especially as it concern legal methodology. 7 Feminist theorists and practitioners are thus not only interested in gender issues, but also in race, class, sexual orientation etc., especially in how these categories intersect with gender. Many are also interested in broader issues of justice, peace, post-colonialism etc. 8 Thus, feminism is explicitly political and does not claim to be neural. Moreover, feminists do not believe that neutrality exists; rather, they see the construct as a veil behind which to hide the perspective of powerful (white, middle-class, heterosexual male). 9 Feminist legal theory emerged at the last quarter of the 20th century, at the time when feminists challenged other disciplines. Feminism is a part of a critical tradition of jurisprudence that connects to Legal Realist and critical legal studies, as well as to an activist legal tradition grounded in the civil rights movements. Feminist theory has also roots in 19th century women’s movement. 10 Katherine T. Barlett, ‘Perspectives in Feminist Jurisprudence,’ in: Betty Taylor et al (eds), Feminist Jurisprudence, Women and the Law: Critical Essays, Research Agenda and Bibliography, Littleton: Rothman & Co (1999), pp. 3-21, at 3. 2
jurisprudence as including all ‘attempts to explain, critique, and change law on behalf of, and from the perspective of, women.’11 While this definition contains a problematic notion of essentialism, it points to feminist jurisprudence’s grounding in women’s experiences, and its goal to transformation of law. Indeed, feminist legal theory is practice oriented. Carol Smart sees feminist jurisprudence as Praxis (borrowing the idea from Marx) –‘a combination of theory and practice, constructed through the development of a methodology which ensures that the insights of theory are reflected in the politics of action, and that the insights of practice are reflected in theory construction.’12 Common to different definitions of feminist jurisprudence and to different feminist legal theories is their focus on gender implications of legal rules and practices (in particular how legal rules and practices affect women and how law reflects and constructs gender identities), exposure and critique of patriarchal nature of substance and methods of law, and goal of transforming both laws’ substance and methods in accordance to feminist goal of rejection of patriarchy and liberation of women. However, different theorists have not always had the same ideas on how the transformation should look like and by what means to achieve it. While theorists of liberal feminism thought that ‘adding women’ into legal consideration and treating them equally as men could achieve the goals of liberation of women, nowadays, feminist legal theorists go beyond sameness/difference debate and are also concerned with transformation of legal logic, legal values, concept of justice. 11 Christine A. Littleton, ‘Book Review; Feminist Jurisprudence: The Difference Method Makes,’ 41 Stanford Law Review 751 (1989), at 725. 12 Carol Smart, Feminism and the Power of Law, London: Routledge (1989), at 69. 3
Contemporary feminist theories reject the idea of law as a neutral system of regulation and dispute resolution, and attack its concepts of ‘universalism,’ ‘objectivity,’ ‘neutrality,’ ‘rationality.’ Like Legal Realist theorists, they believe that law cannot be defined as a scientific enterprise devoid of moral or political context, independent of social reality. Feminists attack these legal concepts on many grounds. They (all) argue that legal concepts of ‘impartiality’ and ‘objectivity’ are just viewpoints of dominant groups, and therefore hide male bias: ‘if the sexes are unequal, and perspective participates in situation, there is no ungendered reality or ungendered perspective.”13 MacKinnon has in particular attacked objectivity and exposed its gendered nature: “Male dominance is perhaps the most pervasive and tenacious system of power in history, … it is metaphysically nearly perfect. Its point of view is the standard for point-of- viewlessness, its particularity the meaning if universality.”14 Similarly, Margaret Davies has attacked ‘neutrality’ as ‘only a position which is culturally enabled to deny its positionality- it is position which is empowered to know,’15 while Martha Minow has criticized ‘impartiality’ as ‘the guise partiality takes to seal bias against exposure.’16 Mary Jane Mossman has criticized particular legal methods (process of defining boundaries and delimiting legal from political issues, notion of relevance, and 13 Katherine A. MacKinnon, Method and Politics, in: Toward a Feminist Theory of the State, Cambridge: Harvard University Press (1989), at 114. 14 Id. 15 Margaret Davies, Asking the Law Question, at 176-177. 16 Martha Minow, ‘Justice Engendered,’ in: Patricia Smith (ed), Feminist Jurisprudence, New York: Oxford University Press (1993), pp. 217-244, at. 4
selecting precedents) for their propensity to maintain the status quo and exclude new perspectives.17 Martha Minow has criticized ‘unstated assumptions’ that US Supreme court’s judges uses in deciding cases involving ‘difference.’18 She identified the assumptions as: ‘difference is intrinsic, not relational; proceeding from an unstated norm; the observer can see without the perspective; irrelevance of other perspectives, the status quo is natural, uncoerced and good.’19 She has proposed that judges should identify vantage points, learn how to adopt contrasting vantage points and to decide which vantage points to embrace in a certain situation (rather than abdicating responsibility by maintaining the status quo). Many feminist theorists have also argued against values of these concepts and methods, and have attacked the false dichotomy between ‘reason’ and ‘emotion,’ ‘rationality’ and ‘irrationality,’ that law sees as given. They have seen the ‘objectiveness,’ ‘rationality,’ and emotional distance that judges are supposed to inhabit not only as unattainable, but also as not to be aspired. For example, Lynne N. Henderson has called for empathy in judicial reasoning, arguing that legality gives judges a way to escape responsibility,20 and Carrie Menkel-Meadow has called for an inclusion of ‘ethic of care’ in the judicial processes.21 17 Mary Jane Mossman, ‘Feminism and the Legal Method: The Difference it Makes’, 3 Australian Journal of Law and Society 30 (1986). 18 Martha Minow, ‘Justice Engendered,’ in: Patricia Smith (ed), Feminist Jurisprudence, New York: Oxford University Press (1993), pp. 217-244. 19 Id. 20 Lynne N. Henderson, ‘Legality and Empathy,’ in P. Smith (ed) Feminist Jurisprudence, New York: Oxford University Press (1993), 244-282. 21 Carrie Menkel-Meadow, ‘Portia in a Different Voice: Speculations on Women’s Lawyering Process, in: Hilaire Barnett (ed) On Feminist Jurisprudence, London: Cavendish Publishing Limited (1997), pp. 194-196. 5
Postmodern feminists attack legal concepts of ‘objectivity’ and ‘neutrality’ as unattainable and impossible. They claim that there is no objective ‘truth’ and that every perspective, including those that claim objectivity, are socially situated and produced. They also expose law’s discursive powers. Carol Smart, applying Foucault’s theories of knowledge and power to legal arena, discusses how law exercises power by claiming to ‘truth’ (and to possessing a method to establish the ‘truth’): “Law sets itself above knowledges like psychology, sociology or common sense. It claims to have a method to establish the truth of events. The main vehicle for this claim is the legal method…A more ‘public’ version of this claim, however, is the criminal trial which, through the adversial system, is thought to be a secure basis for findings guilt and innocence…If we accept that law, like science, makes a claim to truth and that this is indivisible from the exercise of power, we can see that law exercises power not simply in its material effects (judgements) but also in its ability to disqualify other knowledges and experiences… Law sets itself outside the social order, as if through the application of legal method and rigour, it becomes a thing apart which can in turn reflect upon the world from which it is divorced.”22 Not only does law thus disqualify alternative accounts of social reality- other knowledge (like feminist) and experiences (of unprivileged women and minorities), but it, by the force of its claim to ‘truth,’ authoritatively constructs the meaning of social reality. Rather than proposing alternative legal strategies, Smart proposes ‘decentralizing’ law by thinking of non-legal strategies and discouraging a resort to law. 22 Carol Smart, Feminism and Power of Law, New York: Routledge (1989), at 10-11. 6
Mary Jo Frug similarly discusses the discursive power of law, analysing how law ascribes constructs female body- namely, how law terrorizes, materializes and sexualizes female bodies: “Legal rules permit and sometimes mandate the terrorization of the female body. This occurs by a combination of provisions that inadequately protect women against physical abuse and that encourage women to seek refuge against insecurity….Legal rules permit and sometimes mandate the maternalization of the female body. This occurs by provisions that reward women for singularly assuming responsibilities after childbirth and with those that penalize conduct-such as sexuality or labor market work-that conflicts with mothering…Legal rules permit and sometimes mandate the sexualization of the female body. This occurs through provisions that criminalize individual sexual conduct, such as rules against commercial sex (prostitution) or same-sex practices (homosexuality), and also through rules that legitimate and supports institutions such as pornography, advertising, and entertainment industries which eroticize the female body. Sexualization also occurs -paradoxically- in the application of rules such as rape and sexual harassment laws that are designed to protect women against sex-related injustices. These rules grant or deny women protection by interrogating their sexual promiscuity.”23 She explains how legal discourse explains, rationalizes and renders authoritative these meanings by an appeal to the ‘natural’ differences between the sexes, differences that the rules themselves help to produce. Unlike Smart, she proposes legal reforms as a strategy to deconstruct these meanings. These critiques do not suggest the impossibility of legal processes and the abdication of any rules, or their complete replacement by ‘better, feminist methodology.’ However, they stress the fact that law and its methods are not neutral,24 but political- 23 Mary Jo Frug, Postmodern Legal Feminism, New York: Routlage (1992), pp. 129-130. 24 ‘Method is not neutral; it established the criteria by which one judges the validity of conclusions, and consequently carries with it not simply technical skills but deeper philosophical commitments and implications’. Mary L. Shanley and Victoria Schuck, ‘In Search of Political Woman,’ Social Science Quarterly 55, 1975, 632-644. 7
as is feminist legal theory and its methodology, which feminist do not try to hid, and for which they are so often attacked. These critiques ask for the acknowledgment of materiality of any perspective and readiness to be open to multiple perspectives. They call for sensitivity to the context in legal processes and inclusion of excluded voices. Feminists have also proposed some alternative methods, like consciousness raising25 asking a ‘woman question’26 and legal story telling27 as particularly suitable to elicit women’s experiences. MacKinnon has seen consciousness raising as the feminist methodology, believing that ‘through consciousness raising, women grasp the collective reality of women’s condition from within perspective of that experience, not from outside of it.’28 Most other feminists do not believe in a single method and many have criticized MacKinnon on that account.29 They do not see the processes of legal dispute resolution as the processes of establishing ‘truth,’ but rather as pragmatic solutions of issues at questions, that involve the political choices, and which should therefore acknowledge the politics of the perspective that claims to be neutral; and be open to different perspectives. 25 Consciousness raising first referred to the practice of women’s support groups where women were talking about their experiences, which were extremely common in late 1960s and 1970s. MacKinnon has mostly been responsible for its introduction as a method in legal arena. 26 ‘Woman question’ means asking what gender implications of rules and practices which might otherwise appear to be neural mean. It asks whether, why and how women have been omitted or misrepresented in the legal rule or practice; whether, why and how legal rules and practice perpetuate subordination of women, and how to change rules and practices so to include women’s experiences and not to perpetuate women’s subordination. See Katherine Barlett, ‘Feminist Legal Method’, in: Hilaire Bareltt (ed), Sourcebook on Feminist Jurisprudence. 27 Legal story-telling is a method of telling the story of the outsiders in and outside the courts. See Regina Grwycar and Jenny Morgan, The Hidden Gender of Law, 2nd edition, Sydney: Federation Press, 2002, chapter four, pp. 74-76. 28 Katherine A. MacKinnon, ‘Consciousness Raising,’ in: Toward a Feminist Theory of the State, Cambridge: Harvard University Press (1989), pp. 83-106. 29 Anne Bottomley, Susie Gibson and Belind Meteyard, ‘Dwrokin; which Dworkin? Taking Feminism Seriously’ 14 Journal of Law and Society 47 (1987). 8
II. Feminist Legal Theories As the women’s movements revived in the 1960s and 1970s, inspired by the black rights movement, several waves of feminist legal theory emerged that can be loosely characterized as liberal theory, cultural theory, dominance theory and postmodern theory. 1. Liberal Feminism General view of the liberal feminists is that subordination of women is caused by social and legal barriers that block or preclude their access to public sphere of politics and economics. Liberal feminists demand that liberals follow their own principles of universal human rights and equality and demand equal treatment of women and men, insisting that women are fundamentally similar to men. These theorists argue for law to be gender blind- that there should be no restrictions or special assistance on the grounds of gender. Although now mostly outdated (as a theory, but not completely as a legal strategy), liberal feminists’ insistence on equal treatment has made significant gains to women in the 1960s and 1970s- it had gotten them access to employment, education and politics. However, while equal treatment strategy proved relatively successful in challenging explicitly discriminatory laws and ‘unreasonable classifications,’30 the tactic was less successful in challenging laws where different treatment was justified on the basis of purportedly ‘real’ differences. The rule in difficult to apply in the cases 30 An example of ‘unreasonable classification’ that this rule has attacked was a rule that men are to have preference as estate administrators, as in the US Supreme Court case Reed v. Reed. 9
where there is no man as a comparison point- such as in the cases of pregnancy,31 and also in relation to problems that mostly women face, like domestic and sexual violence. More fundamental problem is the theories’ embracement of ‘male’ standard. Liberal feminists have not challenged legal concepts nor have they sought transformation of law, they only asked for its gender-neutrality. However, if laws reflect only (or mostly) male experiences, making laws gender-neutral does not help women much; it least helps those most disadvantaged women whose life experiences least resemble men’s. Moreover, equal treatment of socially unequal individuals does not result in ‘real’ equality and in many cases only exaggerate the disparities.32 As MacKinnon has argued, under gender-neutral rule, men in effect ‘get preferred because society advantages them before they get into account, and law is prohibited from taking that preference into account because that would mean taking gender into account’.33 2. Cultural Feminism 31 Liberal feminists argue that even in the cases of pregnancy women do not need a special treatment. They analogize pregnancy to other disabilities, and call for its accommodation on the same grounds as other disabilities, being afraid that treating pregnancy specially would produce stigmatization of women. However, in my opinion, it seems that by analogizing pregnancy to other disabilities, liberal feminists themselves stigmatize this ‘ability.’ Debate between liberal and cultural feminists in relation to pregnancy benefits is specific for the US. See, Herma Hill Kay, ‘Equality and Difference: The Case of Pregnancy,’ in P. Smith (ed), Feminist Jurisprudence, New York: Oxford University Press 91993), pp. 27-47. 32 It was soon also realized that equal treatment could bring men even more benefits. As soon as a standard was embraced in law, men had start using it to challenge laws and practices that gave preference to women, such as custody and divorce rules- which has mostly resulted in exasperating women’s disadvantage. 33 Catherine A. MacKinnon, ‘Difference and Dominance: On Sex discrimination’ in: Feminism Unmodified: Discourse on Life and Law, Cambridge: Harvard University Press, pp. 32-36, at 35. 10
Cultural feminism (relational feminism/ ‘different voice’ feminism) reverses the focus of liberal feminism- it is concerned with women’s differences from men. It argues that important task for feminism is not to assimilate women into patriarchy, and prove that women are similar to men and can function like men and meet male norms, but to change institutions to reflect and accommodate values that they see as women’s- nurturing virtues, such as love, empathy, patience and concern. This strand of feminism can be traced to Carol Gilligan’s research on moral development of young girls and boys. In her book In a Different Voice, Carol Gilligan hypnotizes that men and women typically undergo a different moral development.34 She finds that male respondents typically respond to the moral problems with an ‘ethic of justice,’ while her female respondents typically respond with an ‘ethic of care.’ ‘Ethic of justice’ involves abstracting the moral problems from the interpersonal relationship and balancing of rights in hierarchical fashion, while the ‘ethic of care’ represents a relational and contextual approach to moral problems, which values empathy and relationship. Gilligan argues for recognizing the values of both voices, and in particular for not devaluating the ‘ethic of care.’ Feminist legal scholars were quick to apply different voice feminism to legal topics. The resemblance between the ‘ethic of justice’ and dominant legal discourse made Gilligan’s methodology a useful tool to critique the law and to suggest alternative solutions. One of the most important and very controversial examples of cultural feminist arguments in law was Robin West’s article Jurisprudence and Gender.35 In 34 Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development, Cambridge: Harvard University Press. 35 Robin West, ‘Jurisprudence and Gender,’ 55 U. Chi. L. Rev 1 (1988). 11
this article, West claimed that whole modern jurisprudence (liberal and critical) was ‘masculine’ (because it proceeded from a ‘separation thesis’- the belief that individual was first and foremost materially separate and apart from individuals, which, she claimed was not true for women who were materially connected to other individuals, through critical experiences, notably pregnancy and heterosexual penetration) and pleaded for greater volume of feminist scholarship grounded in women’s subjective experience. She was widely criticized for tracing the origins of sexual differences to biology, and for her focus on intercourse and pregnancy, and essentialist notion of women as (heterosexual) mother.36 Other examples of using ideas of a ‘different voice’ in legal discourses include Judith Resnik’s questioning of the abstract ideas of impartiality and detachment of judges,37 Leslie Bedner’s revaluation of tort law,38 Kin Kniports’ revising of evidentiary privileges,39 Carrie Menkel-Meadow’s proposals of reforming of legal processes.40 Cultural feminism has invoked a lot of criticism from different feminist scholars. The most recurring criticism was that the portrait of women painted by cultural feminism too closely resembled the 19th century stereotyped portrait of woman as naturally 36 Black feminists and lesbian feminists in particular have charged West of ‘gender imperialism’. See Angela P. Harris, ‘Race and Essentialism in Feminist Legal Theory,’ 42 Stan. L. Rev. 581 (1990) and Patricia A. Cain, ‘Feminist Jurisprudence: Grounding the Theories,’ 4 Berkley Women’s L.J. 191 (1989-90). 37 Judith Resnik, ‘On the Bias: Feminist Reconsideration of the Aspirations for Our Judges,’ in: Betty Taylor, Sharon Rush & Robert J. Munro (eds), Feminist Jurisprudence, Women and the Law: Critical Essays, Research Agenda, and Bibliography, Littleton: Rothman & Co. (1999), pp. 539-599. 38 Leslie Bender, ‘A Lawyer’s Primer on Feminist Theory and Tort, 38 J. Legal Educ. 3 (1988). 39 Kit Kniports, ‘Evidence Engendered,’ 1991 U. of Ill. L. Rev. 413 (1991). 40 Carrie Menkel-Meadow, ‘Portia in a Different Voice: Speculations on Women’s Lawyering Process, in: Hilaire Barnett (ed) On Feminist Jurisprudence, London: Cavendish Publishing Limited (1997), pp. 194-196. 12
emotional, domestic and nurturing, and that it slides comfortably with socio- biologism.41 Joan Williams has, for example, critiqued cultural feminists for ‘providing a respectable academic language in which to dignify traditional stereotypes.’42 MacKinnon has questioned the authenticity of a woman’s voice in conditions of male domination,43 and warned against celebrating difference: ‘For women to affirm difference, where difference means dominance, as it does with gender, means to affirm the qualities and characteristics of powerlessness.’44 The dangers of cultural feminism to which critics pointed to – possibility of transforming differences seen as a value to differences which perpetuate bias and discrimination- can be seen in practice, in for example, labour laws that preclude different types of woman’s work on the grounds of the need to protect them, or in legal reasoning which justifies ‘unequal treatment’ on the basis of women’s inherent differences even when that means perpetrating women’s subordinate position.45 3. Radical Feminism (Dominance Feminism) Radical feminism does not see the issue of gender equality as an issue of difference and sameness but rather as issues of domination of women by men. The author of 41 Carol Smart, Feminism and the Power of Law (1989). 42 Joan Williams, ‘Deconstructing Gender, in: Hilaire Barnett (ed) Sourcebook on Feminist Jurisprudence, London: Cavendish Publishing Limited (1997), pp. 268-275. 43 Catherine A. MacKinnon, ‘Difference and Dominance: On Sex discrimination’ in: Feminism Unmodified: Discourse on Life and Law, Cambridge: Harvard University Press, pp. 32-36, at 45. 44 Id at 39. 45 For example, Croatian Labour Law prohibits the night work of women in industry and night work of women under ground, under water or in mines, because of their ‘specific physio-psychological characteristics.’ The case which exemplifies dangers of cultural feminism, in which arguments of cultural feminists were used (which portrayed women as less aggressive, less risk taking etc) to justify the denying women jobs as commission sales representative is US case EEOC v. Sears, Roebuck & Co. 13
‘dominance approach’ is Catherine MacKinnon, probably the most influential legal feminist of contemporary area. MacKinnon criticises both liberal and cultural feminism and Aristotelian formula of equality that they invoke (‘treat likes alike, and unlikes unlike’).46 She claims that both standards (which she calls ‘difference’ approach) embrace ‘maleness’ as a norm: ‘Concealed is the substantive way in which man has become the measure of all things. Under the sameness standard, women are measured according to our correspondence with man, our equality judged by our proximity to his measure. Under the difference standard, we are measured according to our lack of correspondence with him, our womanhood judged by our distance from his measure… Approaching sex discrimination in this way- as if sex questions are difference questions and equality questions are sameness questions- provides two ways for the law to hold women to male standard and call that sex equality.’47 She sees equality question not as a question of sameness, but as a question of distribution of power, and gender question not as a question of difference but as question of male supremacy and female subordination. Her ‘dominance approach’ is therefore not concerned with the Aristotelian formula of formal equality; rather its test is whether laws and practices in question perpetuate subordination of women. As such, it aims at ‘substantive equality.’ 46 She also explains how this formula is ill-suited in the issues of gender discrimination, as ‘gender is socially constructed as difference epistemologically’, saying, ‘A built-in tension exists between the concept of equality, which presupposes sameness, and this concept of sex, which presupposes difference.’ Catherine A. MacKinnon, ‘Difference and Dominance: On Sex discrimination’ in: Feminism Unmodified : Discourse on Life and Law, Cambridge: Harvard University Press, pp. 32-36, at 33. 47 She however, also recognizes some of the values that approaches have: securing access to women to everything they were excluded, while also valuing what they were allowed to become or what they have developed. 14
The dominance approach centres on most sex-differential abuses of women- namely violence against women (she specifically focuses on sexual harassment48 , rape,49 domestic violence against women and children, prostitution, pornography50 ), that liberal and cultural feminism could not confront by its standards. MacKinnon sees appropriation of women’s sexuality by man as central instrument of male dominance. Her theory of sexuality has been widely attacked as one dimensional, as was her representation of women (almost exclusively) as victims. Lesbian feminists in particular warned feminist not to base their positions on the experiences of heterosexual women alone.51 While her view of sexuality as an instrument of male dominance might have been over-exaggerated, I think that her connection between sexuality and gender inequality is justified, and that present social construction of sexuality does reflect and at the same time help maintain gender inequality. Gender inequality is, among other things, dependent on men’s control over women’s sexuality, and law plays significant role in maintaining gender inequality through its regulation of women’s sexuality. 48 MacKinon is responsible for making sexual harassment recognized as a legal category. 49 She attacked the element of ‘consent’ (which has traditionally been evaluated from the point of view of rapist rather than form woman’s point of view) as an instrument of male dominance in law. 50 MacKinon saw pornography as one of the central means of social construction of sexuality and therefore of men’s domination over women. Together with Andrea Dworkin she drafted anti- pornography ordinances in Minneapolis and Indianapolis, which were ultimately rules out as unconstitutional. Many feminists were not persuaded by this view of pornography, claiming that sex and sexual fantasy might be experienced as liberating for some women, and feared that censorship might prove worse for women, and they actively objected to this censorship. Lesbian feminists in particular warned feminist not to base their positions on the experiences of heterosexual women alone. 51 Patricia A. Cain, Feminist Jurisprudence: Grounding the Theories, 4 Berkley Women’s L.J. 191 (1989-1990) 15
Many feminists have been exploring the connection between sexuality, gender and law. As noted above, Mary Jo Frug has discussed how legal control of women’s sexuality construct meaning of their bodies and their gender identities,52 and Carol Smart has shown rape laws and rape cases construct meaning of heterosexual intercourse and women’s sexuality.53 Lesbian feminist have in particular analysed the role of ‘heterosexism’ – ‘pervasive cultural presumption and prescription of heterosexual relationships’ in construction of gender and maintaining gender inequality.’54 4. Postmodern Feminism Postmodern feminism does not represent a single theory. Moreover, postmodern feminists do not believe in a single theory or a single ‘truth,’ and are particularly opposed to creation of any ‘Grand Theory.’ Often following Derrida, many postmodern feminist use techniques of deconstruction to expose internal contradictions of apparently coherent system of thoughts. This has been a useful method of debunking patriarchal structures of law. Other postmodern feminists, following Lacan, are interested in reinterpreting traditional Freudian psychoanalysis, with all its implications for biological determinism and subordination of women. Postmodern feminist oppose any essentialism and deny that categorical, abstract theories derived through reason and assumptions about human nature can serve as the foundation of knowledge. Postmodern feminists also reject dominant view of a (legal) 52 Mary Jo Frug, Postmodern Legal Feminism (1992). 53 Carol Smart, Feminism and the Power of Law (1989) 54 Sylvia A. Law. Homosexuality and the Social Meaning of Gender, Wis. L. Rev 187, (1988), at 195. 16
subject as autonomous, rational, self-interested, and free-willed individual. Rather, as Katherine Barlett writes, they see individual as ‘”constituted” from multiple institutional and ideological forces that, in various ways, overlap, intersect and even contradict each-other.’55 They also see the dichotomy of victim and oppressor a false one (as any other dichotomy). For example, Patricia Williams has explored the instability of personal identity by reflecting on her own complex personal identity in which one part of herself dispossesses the other.56 Mary Jo Frug57 and Carol Smart58 have stressed the importance of language-in particular legal discourse- in the construction of both personal identity and power in the society. This postmodern view of self accords with the view of diversity stage theorists. Postmodern feminists do not offer single solution to the oppression of women, first because they don’t believe there is a single solution to anything, and second, because they to propose the solution would suggest that all women’s experiences are alike and that women’s oppression is unitary thing. They believe that attacking oppression of women requires contextual judgment that recognize and accommodate the particularity of human experience. The main objection to postmodern feminism, particularly to those views associated with deconstruction, has been that it tends to be better in destroying theories than 55 Katherine T. Barlett, Gender Law, 1 Duke J. of Gender l. & Pol’y 1 (1994), at 14. 56 Patricia Williams, The Alchemy of Race and Rights: Diary of a Law Professor. 57 Mary Jo Frug, Postmodern Legal Feminism. 58 Carol Smart, Feminism and the Power of Law. 17
building them, which many see as not useful to feminism in a long run. Also, as postmodern feminist are highly sceptical to the category of ‘women’ as a basis of grounding theory or political action, many feminists have attacked postmodern feminists as precluding political action and reaching the goal of ending women’s oppression. 5. Diversity Stage A second thread in the development of feminist legal theory emerged in the late 20th with a critique of essentialism in existing theories; namely, their ‘false universalism,’ whereby the use of the unstated norm of the most privileged group of women- namely, white, middle class, heterosexual women- has the effect of eclipsing nonpriviliged groups of woman; and ‘gender imperialism’ which accords too much weight to gender oppression, minimizing the impacts of oppression based on race, class or sexual orientation.59 The critiques started with Black feminists exposing race essentialism in feminist theories and lack of gender consciousness in critical race theories. Kimberle Crenshaw criticized ‘false universality’ in the standard feminist analysis of separate sphere ideology,60 and Angela Harris criticized gender essentialism in the theories of MacKinnon and West.61 Crenshaw, transposing work of Elisabeth Spelman to the legal arena, has created a theory of intersectionally, which would explicitly recognize 59 See Katherine Barlet, Gender Law, 1 Duke J. of Gender L. & Pol’y 1 (1994). 60 Kimberle Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics,’ 1989 U. of Chi. Legal Forum 139. 61 Angela Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581 (1990). 18
distinctive harms sometimes experienced by women of colour and acknowledge the interlocking nature of the two systems of oppression.62 Mary Masuda has developed a theory of ‘multiple consciousness’- the ability to approach the world simultaneously from several different vantage point,’63 and Martha Minow has developed a relational approach to differences.64 At the same time, as lesbian and gay jurisprudence emerged, lesbian feminists started criticizing heterosexual assumptions in feminist theories and lack of awareness of gender in gay and lesbian theories. For example, Patricia Cain has criticized heterosexist structure of West’s Jurisprudence and Gender article, and MacKinnon’s theory of sexuality’s false universalisation.65 Finally, with increasing globalization and growth of human rights discourses, American dominance in feminist theory and colonial thinking started to be challenged. ‘Third World’ feminists have been particularly critical of Western feminist theories and their dominance in feminist thinking.66 III. Do the multiplicity of feminist theories and their disagreement on main issues and legal strategies render (legal) feminism and its goals problematic? 62 Kimberle Crenshaw, ‘Race, Gender and Sexual Harassment,’ 65 Cal. L. Rev. 1467 (1992). Her critique had practical implications for US antidiscrimination law. 63 Mari J. Matsuda, ‘When the First Quail Calls: Multiple Consciousness as Jurisprudential Method’ 11Women’s Rts. L. Rep. 7 (1992). 64 Martha Minow, Making all the Difference: Inclusion, Exclusion and American Law (1990). She has argued that differences should be seen relational rather than intrinsic, and that instead of objectivity we should look at different perspectives, especially at perspectives of those mostly affected. 65 Patricia A. Cain, ‘Feminist Jurisprudence: Grounding the Theories,’ 4 Berkley Women’s L.J. 191 (1989-90). 66 See Hilary Charlesworth and Christine Chinkin, Boundaries of International law: A Feminist Analysis, at 46-48. 19
I tend to agree with posmodern feminists that no single theory can account for all forms of oppression and experiences of different women. I also don’t think that any legal strategy should be seen as the strategy that could be implied in every situation of gender discrimination and gender inequality. Human experience is a way too complicated to be accounted for by a single theory or its injustices to be remedied by a single solution. Moreover, theories and actions that claim to ‘truth’ tend to be oppressive toward different accounts of human experiences, and I see this tendency as anti-ethical to feminism. However, I don’t see this fact as too problematic (or inherent to feminism). I agree with Patricia Smith who claims: “We don’t need a final unified vision of society and gender to argue against oppression, disadvantage, domination, and discrimination. We do not need to know beforehand the nature of good society or ideal person so long as we know what prevents a society from being minimally good or prevents individual from realizing the basic potentials of personhood. We do not need an ultimate vision when we have not yet met threshold conditions for minimally just society. The commitment to foster open dialogue that allows the expression of diverse views and gives particular attention to eliciting views not usually heard is a unifying thread among feminists that attempt and represent the commonality of fundamental values without misrepresenting the plurality of experience.”67 follow the proceedings or analyze their transcripts. 67 Patricia Smith, Introduction: Feminist Jurisprudence and the Nature of Law, in: P. Smith 9ed) Feminist Jurisprudence (1993), at 8. 20
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Starting in the 1970s, the enrollment of women in law schools changed from a small number to a growing percentage, leaping from 6,682 out of a total of ...
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Feminist philosophy of law identifies the pervasive influence of patriarchy on legal structures, demonstrates its effects on the material condition of ...
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