Selves, Persons, Individuals

Philosophical Perspectives on Women and Legal Obligations

Janice Richardson

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351901185
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

Whilst feminist philosophy has frequently engaged with political theory, this original book instead considers legal theory and the practical operation of law. The work considers some of the contested meanings of what it is to be a self, a person or an individual in relation to the law of obligations. The discussion still impacts upon political theory as it concerns the way in which the question of what it is to be a woman has been defined within recent feminist theory. In order to overcome what appears to be a block in feminist legal theory, the book draws together areas of philosophy which are not normally considered within feminist or legal theory.

Chapter 1

Introduction

The aim of this book is to examine some of the contested meanings of what it is to be a self, a person or an individual in relation to the law of obligations. There is a political issue at stake: a concern with the way in which the question of what it is to be a woman has been problematised within recent feminist legal theory. In order to overcome what appears to be a block in this area, I turn to areas of philosophy that, with some exceptions, are not usually discussed within feminist legal theory. I draw these together from disparate areas of philosophy in support of a new view of selfhood through which to examine both legal personhood and individualism.

An important move in feminist philosophy has been to show that the supposedly neutral, universal terms: self, person and individual, have actually referred to males; male bodies and traditional lifestyles, as the paradigmatic case. In legal theory, the fact that these supposedly neutral terms actually took men as the norm has given rise to, what is known as, ‘the equality/difference debate’. The terms of this debate describe a dilemma that is faced by women upon entering political institutions, workplaces and social organisations that were initially made by and for men. They can either gain rights by appearing to be like men or can argue that they should be treated differently. Luce Irigaray,¹ amongst other feminist philosophers, has argued that men should not be the neutral measure against whom women are judged. The dilemma posed by the equality/difference debate can therefore be understood as operating in practice, when women enter the male dominated legal profession for example, and within philosophy when theoretical structures are shown to be built upon the assumption that men represent the universal category of what it is to be a self, person or individual.

The dilemma of equality/difference debate has been explored in ways that cut across both theory and practice.² Scott,³ for example, has traced the way in which the equality/difference problem has dogged feminist activists in French history. She illustrates how the theoretical terms of the debate have changed. Sometimes the faculty of imagination was viewed as important, sometimes it was the ability to reason, but whatever was viewed as the defining characteristic of personhood, it is males who were deemed to be proficient and women as lacking this ability. Scott draws an interesting conclusion, one which provides a challenge to feminist theory and marks the starting point for this book. It is Scott’s view that the paradox of women’s position, that is summed up within the equality/difference debate, is not one that can be resolved; not even by changing the conceptual framework in which the debate has arisen. It is implicit within the position of feminism as an historical movement. She concludes,

[I]n the case of feminism, the problem that has been deemed so central (equality versus difference) cannot be resolved as it has been posed. But can it be resolved otherwise? Would there be a feminism without the discourse of individual rights that represses sexual difference? I think not. Can there be a feminist politics that exploits that tension without expecting finally to resolve it? I think so; the point of this book has been to say that feminists have been doing just that for at least two centuries.⁴

I agree that the equality/difference debate cannot be resolved as it is posed. The question of whether this can be resolved by employing different frameworks is partly what this book is about. Whilst both have been described as paradigmatically male, it is necessary to distinguish between the self and legal personhood. What it is to be a self is an ontological concept, whereas ‘personhood’ denotes a moral and legal concept. Historically, women have been denied legal personhood, the ability to sue and be sued in the courts. I want to explore different ways of thinking about the self (starting in Chapter 2) and legal personhood (starting in Chapter 3) that do not take men as the norm against whom women are measured. This involves thinking about a model of selfhood that takes the bodies and lives of women as the norm rather than as an aberration. I will also examine a model of legal personhood, provided by the work of Drucilla Cornell, that aims to move beyond the equality/difference problem.

The paradoxical position of women with regard to individualism, and the problems with individualism, are examined in Chapters 5 and 6 in the light of these earlier chapters. My reference to individualism and ‘possessive individualism’ focuses upon the ontological and political arguments of Thomas Hobbes and Robert Nozick. They share a perspective that views the self as the owner of his (and her?) abilities and owing nothing to society for them. This image of the self is associated with the arguments in political theory about ‘self-ownership’ and ‘property in the person’, which are discussed in the final two chapters in relation to employment contracts and marriage contracts.

Recent History of Feminist Legal Studies

An Australian work by Ngaire Naffine and Rosemary J. Owens,⁵ Sexing the Subject of Law, initially appears to have some similarities to my project of looking at the question of the self and of the person in a legal context. In their introduction, Naffine and Owens state,

This book reflects a central concern of modern social theory, which is the nature of identity. What does it mean to be a human subject or self? What is the nature of (legal) personhood?…The legal person, or legal subject, plays an absolutely critical role in law. The attributes accorded by law to its subject serve to justify and rationalise law’s very forms and priorities. If feminists are to change the law, then, it is vital that they deal with the implicit as well as explicit sexing of the legal person. The aim of this book, then, is to bring together for the first time a diverse group of legal scholars whose task is to engage in a sustained critique of the legal person.⁶

However, after examination, it is clear that we are employing very different theoretical perspectives. As I will discuss below, it is my aim to try to. open up more promising philosophical frameworks in order to move beyond the discomfort about talking about women that pervades Sexing the Subject of Law. Before outlining my response to current problems in feminist legal theory, I want to sketch its history to draw out these concerns.

To situate their work, Naffine and Owens⁷ trace the following recent history of feminist legal theory. They point out that well into the 1980s the discipline of law was resistant to feminist theory because of law’s history of being viewed as ‘autonomous, self-defining and possessed of its own internal logic’.⁸ Legal formalists continue to view law as merely a description of rules drawn from cases and statutes. When these rules are viewed as autonomous and as abstracted from their social context, law is cast as a type of quasi-mathematics that involves the search for the right rule.⁹

Although Naffine and Owens are writing from an Australian perspective, the points that they make about the background of feminist legal theory have general application. Inevitably any attempt to draw out a brief history of feminist legal theory is contentious. I will continue to follow Naffine and Owens’ account because it is written with a view to thinking about the self, person and individual, which is the focus of my own project, but will point to particularly English concerns where relevant.

When feminism did have an impact upon legal theory it took the form of liberal feminism, which Naffine and Owens link with an acceptance of the nature/culture divide:

Humanity was regarded as naturally and self-evidently divided into two sexes: the ordering of human life into men and women was part of nature, not culture, and so the concern of feminists was necessarily limited to the treatment of women once they had entered the cultural order.¹⁰

They sketch this version of ‘liberal feminism’ as taking for granted a split between nature and culture. The sex/gender distinction – one that has been undermined in recent years¹¹ – was mapped onto this split such that ‘gender’ was viewed as a social construct whereas ‘sex’ was viewed as biological. Here ‘biology’ was viewed as something that could not easily be altered – a point that is now contentious within feminist legal theory. In Chapter 2, I take the unusual step of drawing upon the work of Susan Oyama and those biologists who employ developmental systems theory to consider the nature/culture dichotomy in more detail. As well as concerns about the relationship between sex and gender, in the UK early feminist legal theory highlighted some of the problems women encountered with the operation of the law.¹²

Naffine and Owens¹³ detect a major shift away from the dominance of liberal feminist legal theory in the 1980s with the influence of the US lawyer, Catherine MacKinnon. MacKinnon’s radical feminism has also been an important influence upon English feminist legal theory. Central to her argument is an analogy with Marxism that,

sexuality is to feminism what work is to marxism: that which is most one’s own yet most taken away.¹⁴

For MacKinnon, sexuality is central to identity such that the way to reconstruct what it means to be a ‘woman’ is to use ‘consciousness raising’ to show the way in which women are oppressed. Despite the fact that MacKinnon’s work appears to position women as always exploited, she has taken legal cases and influenced the development of the law in areas such as sexual harassment¹⁵ and, more contentiously amongst US feminists,¹⁶ the regulation of pornography.¹⁷

MacKinnon’s inclusion in Naffine and Owens’ outline of the recent history of feminist legal theory works to pinpoint areas of particular concern for their position. They argue that MacKinnon produces a shift in thinking about sex/gender, or nature/culture, by viewing the category of ‘woman’ as a matter of social construction.

There was nothing natural or positive about the female sex: the meaning of woman was very much the cultural work of men who had crafted women according to their sexual interests.¹⁸

As they point out, this is subject to the criticism that it reduces women to a debased sex.¹⁹ This criticism has been linked with a further attack upon MacKinnon: that she produces a ‘universal’ view of women. It is this point that is central to much of contemporary feminist legal theory. I will return to this argument in the next section.

Naffine and Owens argue that MacKinnon’s work questioned the ‘naturalness and fixity of the idea of sexual identity’.²⁰ They then cite the work of US feminist legal theorist Cornell, as ‘producing a deeper fracture’ in the category of ‘woman’. The reference to ‘fracture’ presumably means that there is a further attack on the idea that there can be a universally accepted view of what it is to be a woman – as Cornell does not view what it is to be a self or a person as fractured. Cornell is described as influenced by Derrida. She is characterised as making the move that,

The masculine language, through which women were constructed, was always open to subversion because it was, of its very nature, metaphorical, contingent and fluid. It did not have the power to encapsulate women because it could always be undermined and manipulated by such strategies as irony, satire and mimesis.²¹

It is understandable that Cornell’s engagement with Derrida and with Lacan should mean that she is characterised as ‘poststructuralist’, particularly in 1997. Whilst this was written after Cornell had published The Imaginary Domain,²² in which she develops her own theoretical framework from which her legal principles are derived, it was written before her further development of this approach in her later books.²³ Cornell’s developed conceptual framewo...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• 1. Introduction
• 2. Emergence, Dynamic Systems and Identity
• 3. Cornell’s ‘Imaginary Domain’
• 4. Tort and the Technology of Risk
• 5. The Sexual Contract
• 6. Possessive Individualism
• 7. Conclusion
• Bibliography
• Web Sites
• Cases
• Legislation
• Index