Davies, M - Unity and diversity in femenist kegak theiry (2007 ) PDF

Preview

Summary

Davies, M - Unity and diversity in femenist kegak theiry (2007 )...

Description

Philosophy Compass Explore this journal > Volume 2, Issue 4 July 2007 Pages 650–664

Unity and Diversity in Feminist Legal Theory Authors 

Margaret Davies

1. 1.    

First published: 14 June 2007Full publication history DOI: 10.1111/j.1747-9991.2007.00091.xView/save citation Cited by: 1 article

Abstract Feminist legal theory has undergone some significant changes over the past thirty years. This article provides an introductory overview of feminist legal theory, from liberal and radical feminism through to postmodernism. It outlines some of the major current issues within feminist legal thought, notably debates surrounding culture and religion, the relationship of sex and sexuality scholarship to feminist research, and the position of women within transitional societies.

1. The Rise of Feminist Legal Theory What is the condition and character of feminist legal theory in the contemporary context? Where has feminist legal theory been and where is it going? This article provides an introductory overview of feminist legal theory's thirty-year history, as well as an evaluation of its present condition and some of the debates currently preoccupying feminist legal scholars. I will focus upon several trends or themes: first, the diversification of feminist legal theory to the extent that it is no longer possible to identify a handful of characteristic theoretical positions (liberal, radical, postmodern, etc.); second, the increasingly global character of feminist legal theory,

promoted both by feminist international lawyers, and by the expanding terrain of transnational, cross-disciplinary, scholarship; third, repeated anxiety about the relationship between feminist theory and practice, in a context where theory can appear disconnected from women's lives. HISTORICAL BACKGROUND

To begin with, what is meant by the term ‘feminist legal theory’? Clearly feminist interest in law has existed for far longer than thirty years. So why limit the term to the past thirty years, when feminist critique of law-governed areas of social life has been prevalent for well over a century, and even longer in relation to some issues and jurisdictions? The reason is perhaps arbitrary, a consequence not of substance but of disciplinary boundaries combined with male dominance of the legal academy. Like legal theory, which refers to internal or immanent theoretical approaches to law, the term ‘feminist legal theory’ is usually taken to mean a critique of law generated internally to legal scholarship by feminist lawyers. This did not, and could not, emerge in a very substantial manner until after the major formal obstacles to women's equality were removed by legislation and women began to participate on a more equal basis in male dominated areas of employment such as law and the legal academy. Thus, it was not until a critical mass of women with feminist consciousness had secure employment within the legal academy that the internally generated feminist critique of law could fully develop (Thornton, Dissonance and Distrust 119). Other factors have also played a part in the development of feminist legal theory. With some notable exceptions, legal

scholarship generally responds very cautiously to broad intellectual trends and fashions. By the end of the nineteenth century, legal theory had embraced the scientific model, at least its ideology, if not its methodology (Davies 113–65). A broad scientism was reflected in most approaches to legal knowledge, emphasizing a descriptive account of law as an object of knowledge. Early to mid-twentieth-century legal theory, especially the ‘legal realist’ movement in the United States, flirted briefly but enthusiastically with philosophical pragmatism, resulting in a fracturing of the veneer of legal objectivity and neutrality. The realists refused to accept the neutrality and stability of core legal concepts or institutions: the law was composed of real people – human judges, lawyers, legislators, and officials – making decisions informed by their political and social contexts. The opening for legal critique created by legal realism narrowed briefly between the late 1940s and the late 1960s, during which time the themes of formalism, objectivism, and the separation of law from political imperatives dominated. In the 1970s, however, the landscape of legal theory changed fundamentally, with the advent of a short-lived ‘critical legal studies movement’ followed by a more longlasting range of critical approaches to law, of which feminist legal theory is one. Since the late 1970s such critical approaches have gained enormously in strength and popularity, and despite the sheer difficulty of defining and containing them intellectually, there is little sign of abatement in legal critique. Of course, this should not be taken to suggest that feminist legal theory has been readily

and universally accepted: at least until the mid-1990s feminists often struggled to have their research recognized at all, and it is still undoubtedly the case that more conservative legal scholars regard feminist legal theory as defined by a political ‘interest-group’ rather than a fully serious academic activity (Thornton, Dissonance and Distrust 119– 29). Within this setting, as I will explain in the next section, feminist legal theory has followed the trajectory of other critical approaches to law in its transition from a relatively straightforward set of theoretical positions to a more diverse, contradictory, and internally contested field of scholarly activity. In this sense, feminist legal theory also follows the intellectual patterns of general feminist thought. ‘THEORY’ AND PRACTICE

A second introductory point relates to the ‘theoretical’ credentials and agenda of feminist legal theory. Feminist legal thought is often ‘applied’ theory because it uses theory to critique a practical area of activity – law and policy. However, like other forms of feminism, legal feminist thought exists on a continuum from intensely and self-consciously theoretical work, to more practical and activist forms of scholarship. In the context of law, feminism has found many outlets for purely theoretical critique, as well as a very practical critique of laws and policies based on an understanding of the everyday experiences of women in interacting with law. Thus, feminist legal theory has analyzed the operation of gendered patterns of thought and practice in virtually every area of law, whether family law, contract or constitutional law, as well as highlighting the more mundane

instantiations of discriminatory thinking, such as cases of judicial sexism. In many cases (again, in common with other forms of feminism) the theory/practice distinction has been explicitly questioned by feminist legal scholars: feminist practice needs to be theorized and reflective in order to ensure political interventions are well-targeted, while feminist theory generally has the ‘applied’ aim of transforming social and cultural consciousness (hooks, ‘Theory as Liberatory Practice’). At the same time, much of what counts as ‘theory’ in a scholarly context has been defined by the male traditions within each discipline, meaning that feminist theory needs to be self-reflective about its intellectual underpinnings (Conaghan, ‘Book Review’; Wise and Stanley). Since the early 1990s, some feminist legal scholars have argued that academic feminism has lost sight of practice (hooks, ‘Theory as Liberatory Practice’; MacKinnon, ‘From Practice to Theory’) and in particular that the ‘theoretical’ agenda has become too distant from the practical concerns of law reform or of directed normative projects for improving the material experiences of women (Conaghan, ‘Reassessing the Feminist Theoretical Project’ 352–6). Given the highly theoretical nature of much feminist legal scholarship and the current scholarly preference for overtly theoretical work, this is a controversy which seems likely to continue.

2. Feminist Metanarratives of Law Several fundamental theoretical questions have traditionally framed the ways in which feminist thought is classified. Are women and men essentially the same or

essentially different (Bacchi)? What personal characteristics are attributable to biological sex and what characteristics are attributable to socially constructed gender? Or, is all sexual difference structural and based in power, rather than biology or mere social expectations (Dworkin; Barrett). What social and political consequences flow from the different feminist approaches to gender (Jaggar)? Feminist thought of the 1970s and 1980s was defined by a categorization of feminism into several distinct types – notably liberal, difference-based, radical, Marxist, and socialist (Jaggar). This taxonomy was adopted by many feminist legal theorists, although Marxist and socialist feminisms have not been especially prominent in the Australian and US legal academies (reflecting, perhaps, a general avoidance of materialism in legal theory). Early feminist legal theory was therefore often classified as essentially liberal, difference-based, or radical, though in some quarters there was also an early appreciation of the difficulties of classifying feminist approaches to law (Lacey, ‘Feminist Legal Theory’ 384). This section provides a very brief overview of these three approaches to legal feminism. Although this is a rather outdated scholarly landscape, it nonetheless provides the foundation for an understanding of later scholarship. LIBERAL FEMINISM IN LEGAL THEORY

Liberal feminism is historically the most influential and recognizable form of feminism. It is also the form of feminism which is most straightforwardly applicable to law. Essentially, liberal feminism argues that the basic beliefs of political liberalism – that human beings are

rational and autonomous and ought to be treated equally – apply to women as well as to men (see generally Jaggar 27ff; Wendell). Liberal feminism tends to adopt an individualist model of human beings, a model which many radical, socialist, and postmodern feminists have found deeply problematic (cf. Wendell). Liberal feminism took (and still takes) the position that women and men have equal capabilities for rational thought and action, and that therefore any status-based discrimination premised on the assumption that women are less capable or rational than men, is irrational and unfairly discriminatory. This argument, or variations upon it, has resulted in a great deal of legal reform: a first wave of reforms removed legally entrenched obstacles to equality such as the inability of married women to own property, to vote, to practice professions, or serve as parliamentarians; a second (and ongoing) wave of reforms prohibited various nonlegal obstacles to equality such as discriminatory employment practices. While these reforms minimized legal status-based discrimination and some other overt forms of discrimination, they clearly did not result in the elimination of sex-based exploitation, or in substantive equality between women and men. The realization that formal sex-neutral norms are an insufficient basis for equality has led liberal feminism to promote policies such as affirmative action and special employment provisions (for instance, maternity leave). These developments represent a class or status-based departure from the traditional liberal emphasis upon the abstract individual, leading Andrea Jaggar to comment that ‘liberal feminism contains contradictions that threaten ultimately to shatter

its own philosophical foundations’ (28). Despite these internal contradictions, liberal feminism has a continuing role in analyzing and critiquing the various sources of inequality. RADICAL FEMINISM

Significantly, liberal feminism does not involve a fundamental critique of the state or of the institution of law, seeing inequality as the result of irrational discrimination rather than systemic and structural. The neutrality of the law is not called into question by liberal feminism: law and the pursuit of legal reforms are seen as legitimate and justified methods of achieving social change (cf. Thornton, ‘Feminism’). In contrast, radical feminism has a more broad-ranging and arguably fundamental analysis of the relationship of gender and power. Radical feminists see the source of women's oppression as not merely unfair discrimination practiced by some individuals against other individuals, but rather as institutional and systemic. The institutions of law and state reflect and reinforce male power, and cannot therefore be regarded as a neutral means of resolving inequalities. Many feminists who emphasize the structural foundations for inequality, whether socialist or radical, have therefore been skeptical of whether law reform can result in meaningful change. This is a controversy which continues to be central for legal feminists (Thornton, ‘Feminism’; Armstrong). The focus upon the social and institutional structures of male power is reflected in the language of radical feminism which, rather than ‘discrimination’, tends to speak of ‘male dominance’, ‘patriarchy’, and ‘women's oppression’. Given that existing institutions, knowledge, and normality are fundamentally structured as male, radical feminism

argued that, in the first place, it was important to discover, value, and empower a distinctive women's consciousness and knowledge. This would lead to political interventions grounded in identity as a woman, or an ‘identity politics’. The ‘radical’ strand of general feminist thought is remarkably diverse: in terms of feminist legal theory it is Catharine MacKinnon more than anybody else whose work has epitomized the application of radical feminist theory to law. MacKinnon called her brand of feminism ‘unmodified’, since (she claimed) it was not framed by theories such as Marxism or liberalism which are already gendered in their analysis or values (‘Feminism’ 639–40). MacKinnon argued that gender was not about sameness or difference, but rather it was about power: gender is a hierarchy or difference in power in which ‘male’ is the privileged term and ‘female’ is the oppressed term (Feminism Unmodified 51). This hierarchy is reproduced in and reinforced by institutions which take male-associated standards and values as the norm. The practical goal of radical feminism is to challenge subordination, a task which involves not merely identifying inequality and discrimination, but understanding and critiquing the fundamental structures, values, and mechanisms of exclusion which support it. Interestingly, MacKinnon did not completely reject law reform as a means of change, employing explicitly reformist tactics in an effort to control pornography (see Heath 51–5). As I will outline shortly, the radical feminist approach to law has been strongly criticized on several grounds. However, the lasting contribution it has made is an essential corrective to the liberal assumption of the

neutrality or at least neutral capability of law. Law is gendered and participates in the production of gendered subjects: feminist scholarship from the early 1980s has sought to uncover the multitude of ways in which this gendering occurs, and how it produces oppressive legal outcomes (Conaghan, ‘Reassessing the Feminist Theoretical Project’ 359). Radical feminism was certainly not alone in its analysis of the integration of law with social distributions of power, but it was the first critical approach to law to apply such insights forcefully in the context of gender. DIFFERENCE FEMINISM

Radical feminists also critiqued the liberal assumption that the goal of feminism ought to be simple equality with men: this objective, they argued, adopted culturally male standards and values as normative and universal, and failed to explore alternatives to the liberal model of the rational and autonomous legal entity. ‘Difference’ feminism is a third strand of feminist legal theory which aims to address this failure in the liberal world view. Difference feminism is not necessarily theoretically distinct from radical feminism, though that may depend on where the source of gender difference is said to lie – whether in biology or social and institutional power. One reason for distinguishing radical feminism from difference feminism is essentially that radical feminism emphasizes subordination and the means of challenging it, whereas difference feminism examines alternative non-gendered or more usually distinctively female or feminine normative values.

Much difference feminism is influenced by the work of the psychologist Carol Gilligan whose experimental work indicated that male and female subjects held different ethical worldviews. The male ethics tended towards the clear application of rules, whereas the female ethics was more ‘relational’ and based upon an ‘ethic of care’, that is, informed by the relationships between people rather than by abstract principles. Neither approach was seen by Gilligan as ethically superior – clearly each has its advantages. However, Gilligan's analysis gave strength to the feminist critique that law tends to value a maleoriented approach to ethics and justice. Feminist legal theorists thus began to explore ways in which the ‘feminine’ or female-associated concepts of ethics and justice might be acknowledged in legal processes. This was seen not only as a way of redressing the male bias inherent in abstract legal standards, but also as a way of improving the operation of law generally so that it was more grounded in everyday relationships (West). Without going into detail, it is easy to see that the notion of a different moral voice associated with women is very controversial. For instance, does it tend to reinforce rather than challenge gender difference? Is an ‘ethic of care’ the consequence of a social condition of subordination, rather than gender? Can the concept be extended beyond gender? And is ‘care’ defensible as a general moral standard regardless of gender? (See generally Tronto.)

3. Critiques of Essentialism In line with scholarly trends in most disciplines of the humanities and social sciences, a more pluralistic

understanding of feminist legal theory has emerged over the past fifteen years. While the theoretical approaches I have described continue to be influential, this influence tends to occur in localized contexts where defined theoretical views can provide strategic arguments for a particular perspective or action. Such theories can no longer be understood as providing a general understanding of gender-based oppression, but are each rather one part of a more complex picture: theoretical approaches apply differently in different contexts, and theories overlap in their explanatory power, rather than provide an allencompassing and monistic explanation. This theoretical pluralism has grown from critiques internal to feminism and feminist legal theory, and more generally from an increasingly broad and diverse scholarly context. Clearly the postmodern critique of ‘metanarratives’, or grand theoretical explanations, especially in relation to social phenomena, has also played an important part. (It may of course be questioned whether ‘postmodernism’ has driven the theoretical dissolution or whether it simply names a trend or ‘condition’ already existent within postwar scholarship.) RACE AND FEMINISM

The earliest and most significant internal critique of the feminist preoccupation with gender as the fundamental form of oppression came from those who, by reason of their race or ethnicity, were marginalized both within feminism and within the broader society. Black feminists in the United States in particular argued that the core feminist narratives failed to recognize race as a factor in the oppression of women, or – where it was acknowledged

– was seen as secondary to the primary oppressive structures of gender (King; hooks, Ain't I a Woman?). Mainstream feminism was criticized for its elitism, for its preoccupation with the concerns of middle-class heterosexual women, for its blindness to white privilege, and for its failure to...