Feminist Perspectives on Law and Theory

Janice Richardson, Ralph Sandland

• Publisher: Routledge-Cavendish
• Year: 2013
• ISBN:
  9781135343576
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

What is the link between the way in which women are viewed as an aberration within law - such that pregnant women initially had to be compared with sick men to claim unfair dismissal - and the view of women as monstrous within philosophy?

This book uses the failure of women to fit within male models of both law and theory as a way to rethink legal questions, including the meaning of equality, freedom, justice and citizenship. This includes concern about the way in which queer theory and critical race theory - as well as issues of class - intersect with feminist theory today. It also raises issues about the relationship between political theory and practice and the productive intersection between debates within law, philosophy and feminism.

This collection of essays on feminist legal theory therefore provides an interdisciplinary approach, drawn not only from law and philosophy, but also from cultural and womens studies. Feminism may still be on the margins of both law and philosophy, yet it has the ability to disrupt both.

This book moves beyond a feminist critique of existing frameworks to the constructive project of reworking theory from within. It goes beyond debates of traditional jurisprudence to draw its tools from the growing body of work on feminist philosophy - including the writings of Luce Irigaray, Drucilla Cornell and Christine Battersby - which intersect both contemporary continental philosophy and critical legal theory.

CHAPTER 1
FEMINISM, LAW AND THEORY

Janice Richardson and Ralph Sandland

INTRODUCTION

By the middle of the 1980s, ‘second wave’ feminism could be said to have ‘arrived’, and to have secured a foothold, in many law schools. It was now a decade since the work that had been done in the 1970s, which, itself taking its cue from early second wave feminist writers – De Beauvoir, Friedan and, later, Firestone, Greer, Oakley and many others – had begun to ask why law fails to provide ‘equality’. In the interim, this demand had itself been subjected to critique from within feminism, which had asked: What does it mean for ‘women’ to want to be ‘equal’ to ‘men’? Is the project of legal feminism to ensure that ‘women’ are treated ‘like men’ by law? Feminism was divided as to the true answers to these questions. The divide, broadly, was between radical feminism, with its revolutionary agenda of a law which recognised women as women, rather than only ‘seeing’ women who were ‘like men’; and liberal feminism, with its rejection of revolution and preference for gradualism and reform, and a continued emphasis on the demand for ‘equality’ before the law.

However, as the 1980s turned into the 1990s, feminist legal theory began to exhibit greater diversity. It became apparent that, despite the differences between radical and liberal feminism, between the politics of ‘difference’ and the politics of ‘equality’, between legal revolution and legal reform, the whole debate was nevertheless underpinned by a number of shared assumptions. Some of the more important of these concerned the relationship between legal change and social change (the assumption was that legal change, whether in the shape of revolution or reform, would lead to social change), and the relationship between theory and practice (the assumption was manifold and complex, but was basically an elaboration of a simple cause and effect model). But perhaps the most important was the assumption that ‘law’ is, always and everywhere, ‘male’. In an important sense, the debate between radical and liberal versions of legal feminism, between ‘difference feminism’ and ‘equality feminism’, distills down to the question of whether ‘male law’ could accommodate ‘the female’. Radicalism thought not; liberalism tended to be more optimistic.

Seeking to find a way through this theoretical deadlock, legal feminists began to scrutinise these underpinning shared assumptions. For example, what did it mean to argue that ‘the law’ – seen as a singular, monolithic entity – was ‘male’? In seeking answers, feminists found little assistance from traditional jurisprudence, which was, and has largely remained, resolutely unwilling even to admit the questions, notwithstanding that (or perhaps, precisely because), like early second wave feminist theories of law, it is grounded on the same unspoken assumption about the sexed (male) ‘nature’ of law. So, legal feminism increasingly looked elsewhere, to philosophy, to cultural and women’s studies, to postmodernism, poststructuralism and deconstruction. The result is that, by the turn of the new millennium, legal feminism, at least at the level of theory, has worked through and beyond the limitations of the ‘radical or liberal?’ paradigm and has recognised that the either/or choice that it posited was false and misleading. Feminist legal theory today is sophisticated, pluralistic, more incisive and careful in its arguments, more aware of its own limitations and deficiencies, less dogmatic and more tuned into the dangers of dogmatism; more aware, too, of the dangers of ‘theory’ and of the confusion that can result from mistaking ‘theory’ for ‘truth’. As Anne Bottomley argues in Chapter 2 of this volume, we have to be aware that ‘theory’ does not provide ‘truth’, so that ‘better theory’ does not, of itself, produce ‘better truth’. We have also to remember that ‘theory’ is not ‘truth’. None can speak for all. Nor can one simply adopt a theoretical ‘position’ in the expectation that a ready made set of answers-for-all-occasions comes as part of the package.

It is this insistence on, or at least awareness of, the dangers of ‘grand theory’ or ‘meta-theory’ that marks out much of the feminist work that has been done since the mid-1980s from what had gone before. Of course, the new scepticism about the potential of theory was by no means a development that occurred only within feminist theory. But that feminist theory has played a prominent role in the development of this scepticism is what allows the argument that legal feminism has developed a ‘third wave’ of perspectives, which in some sense start ‘beyond’ the search for absolute Truth and Justice. This shift amounts, in part, to the admission that feminism has failed to speak equally to or for women of all races or all classes; in part also to the recognition that this ‘maleness’ of law has in fact excluded many men, for example, by reason of race or sexuality, from sharing in its privileges. Things were not as simple as earlier versions of feminism had supposed. One cannot simply choose between ‘difference’ and ‘equality’, nor is the male/female distinction the only pertinent consideration. Other dynamics are also at play. This can be a scary idea, since it is not just that things may be more complicated than it was thought, it is also that there may not be ‘an answer’ to be ‘had’. For feminism, and other identity-based political movements, the role of ‘provider of truth’ was also implicitly brought into question: if there is more at stake than sex/gender, what is the role of feminism? To suppress these other dynamics by insisting that sex/gender is, ‘in truth’, the most important of them? It is for these sorts of reasons that it can be said that third wave feminism is a political movement with an identity crisis. But, on the other hand, to question ideas and assumptions about Truth and Identity provides an opportunity and motivation for experimentation, diversity, innovation, dialogue and originality. Certainly, there is a pressing agenda of questions concerning the relationships between feminism, theory and law.

This book aims, on one level, to provide a snapshot of the diversity of thought that now lies at the intersection of law, feminism and philosophy. But our aim is not merely to catalogue contemporary developments. It is also to push them forward. Part of this project is to break down further the institutional and disciplinary barriers that surround law and law schools. Lawyers, even feminist lawyers, as Bottomley notes,¹ can be introspective and uncomfortable with debates and ideas that occur outside their familiar intellectual environment. We hope that this volume, which contains contributions from those both within and outside law schools, will demonstrate that feminist lawyers have much to gain – as well as to give – in these interdisciplinary debates. One thing about legal feminism that has not changed is that it remains a deeply political, would-be transformative, project. Part of our political mission, as editors of this volume, has been to attempt to provide the reader with an example of the necessity and benefits of broad ranging dialogue to this wider project.

Perhaps the key feature of this project of exploring diversity rather than pursuing one truth concerns the need to reconcile diversity with commonality. To abandon the idea of ‘one truth’ does not mean that there cannot be significant points of commonality – of history, of experience, of interpretation, of purpose and of spirit, in amongst the differences; similarly, to acknowledge commonality in any of these ways is not to attempt to deny diversity. As such, no apology is made for the fact that the contributors to this collection adopt very different – and often seemingly mutually incompatible – frameworks. Nor do we intend here to attempt to provide the reader with some sort of map by which these differences can be reconciled. But we do want to illustrate that difference and commonality are not mutually exclusive. Whilst we are content to let the differences speak for themselves, common areas of concern do flow through the chapters of this book, and these reflect the contemporary position of feminist legal theory. We want now to draw out these common themes in order to illustrate the way in which they interweave through the contributors’ chapters, whilst also highlighting the original insights that the contributors bring to bear on these areas, derived from within their varied disciplines of law, philosophy (including a flourishing of contemporary feminist philosophy) and cultural and women’s studies.

The first common theme is concern about the relationship between theory and practice, which includes an analysis of the impact (and meaning) of the philosophical imagination and the role of utopia and of the ‘impossible’. Along with an analysis of what is meant by theory, there is an awareness of the diverse meanings of ‘the law’ and the way in which feminism has successfully challenged narrow definitions of law. (Feminist legal studies, along with the critical legal studies movements – with influences from Marxism and poststructuralism – and critical race and queer theory, has been successful in highlighting not simply law in context, but a further analysis of the social context itself.) Our second theme, widely debated and linked to the first, is the question of the meaning of the self and the relationship between self/other and subjectivity. In legal theory, one way in which the influence of poststructuralism has manifested has been as an attack on the assumption that women form a group with stable characteristics. So, the stereotyped images of women that influence legal judgments – and are then disseminated within the media – continue to be interrogated. However, the shift of theoretical framework, with a rejection of the idea that theory is a tool in a search for truth in favour of the view that, when theory is used in this way, it in some sense produces truth, means that theorists tend to focus upon the way law constructs women – rather than simply reflecting a fixed category that exists prior to the operation of law. The stereotype is a fiction, a story, but, through its repeated re-telling, it can seem to become ‘true’. The issue then becomes a question of ‘the politics of truth’ (whose truth is this?) rather than a case of right or wrong (truth or untruth). Many contributors, who take up different positions on this issue, discuss this shift. Contemporary work within feminist metaphysics is used to rethink the way in which we consider what it is to be a woman or to have (or exist as) a ‘self’ and the relevance of this to legal theory. Our third theme, again linked to what has gone before, concerns the relationship of feminist theory to other critical theories, such as critical race theory and queer theory. How are such relationships mapped in terms of the grid of possibilities delimited by the more general self/other relationship? What are the implications of such self-imposed boundaries and divisions? Some contributors explore these questions within the context of ‘minority’ politics. Others are more interested in the broader theoretical issues at stake and their practical implications.

THEORY/PRACTICE

The common themes sketched above are drawn from the influence of feminism, with its emphasis upon the practical impact of ‘law’ on women’s lives. This may appear to be a curious claim, given that theory, particularly contemporary feminist theory, often influenced as it is by the continental philosophical tradition, appears to be esoteric. There has also been a long standing feminist concern about the way in which theory has often been used to justify a status quo, oppressive to women. Against this, we would argue that there are always assumptions made about, for example, what is meant by theory/practice (employed in that instance!); what is understood by law; what it means to be a woman or a person. Without an analysis of these basic assumptions it is likely that the accepted worldviews are adopted in an unquestioning manner. From experience, we know that these are more likely than not to be conservative. In the face of this, the role of theory must be to provide the means to question and challenge such conservatism (and the role of ‘theory’ in its maintenance); and this is a deeply ‘practical’ project, which aims for tangible effects. There has been a flourishing of feminist philosophy,² producing tools that greatly contribute to a rethinking of legal theory and, with it, legal practices.

One of the cluster of issues surrounding the theme of the relationship between theory and practice, therefore, is to do with the relevance of theory, with many contributors questioning the role of images of utopia and of the philosophical imagination in producing social change. Interestingly, the recent history of philosophy provides an object lesson in the importance of theory to practice and practice to theory (or, perhaps, in the illusory nature of the divide between them). The rejection of the idea of ‘one truth’ discussed above began to take shape at least partly as a reaction to debates within Marxism and the rejection of the intellectual as being in the vanguard of the revolution, a reaction generated itself in part by the continuing influence of the events of 1968 (the year of widespread, politically charged civil disobedience and public (dis)order around the world, but notably in the US and France), particularly upon contemporary French philosophy. This has also resulted in a challenge to the question of what ‘theory’ is and what it does. Various contributors to this volume draw from within this tradition to consider – or employ – work, for example, derived from Luce Irigaray (Penelope Deutscher and Ewan Porter) and from Gilles Deleuze (Anne Bottomley and Judy Purdom). Irigaray and Deleuze not only share a rejection of the idea of the intellectual who affects society in a top-down manner. Both also want to use theory instrumentally, to provide new concepts and new ways of thinking and living. This proceeds from a very different view of the potential of philosophy to ‘tell the truth’ about ourselves and our world from the contribution by Alison Assiter, which aims to use human need to define ‘the good’ as a basis for law. However, as discussed above, the aim of this book is not to present the reader with ‘contemporary feminist legal theory’ as a pre-packed unity, but to allow contributors to further develop their varied theoretical positions. Readers can then appreciate the diversity of feminist legal theory that exists today and judge for themselves between conflicting assumptions.

As a sub-set of the question of the relevance of theory, the role of utopia is a recurring theme. Whilst utopian thought has been dismissed by those who view it as an attempt to impose an ideal upon the rest of us, the thinking of utopias is defended by many of the contributors. Even those writing within the continental philosophical tradition and chary of the role of the intellectual as truth teller are interested in interventions at the level of the imaginary. The two chapters that deal with Irigaray’s work, for example, focus upon the practical impact of her proposals for legal change. These include a number of separate rights for women, such as safeguards that give legal recognition to virginity, which may appear bizarre to us. The question posed by the two contributors is whether this call for legislation is ‘merely’ a rhetorical strategy that Irigaray does not really ‘mean’, and, if so, does it work, and how?

It is an interesting approach to claim rights as a rhetorical strategy. It appears even more curious as it represents a mirror image of the position in the UK. Here, it has been debated whether the effect of taking legal claims is a bad strategy. This is based upon an analysis of the way that issues are filtered through the legal framework. It is argued that it damages individual women – such as those taking sexual harassment claims – and that the courts produce a stereotyped image of women, which is disseminated by the media. It will be seen whether Irigaray’s looking glass world can provide images that can free up any blockages in the way in which we think about ‘the law’.

‘LAW’

Just as the contributors’ theoretical frameworks differ on the central question of what is meant by ‘theory’, along with its relationship to feminist practice, so they differ as to what is meant by ‘law’. The two intersect because of feminism’s overriding concern with social change. The issue is whether theory can usefully predict where – and whether – legal interventions of any kind can be successful or, perhaps less ambitiously, how it can provide tools with which to consider problems (or law) differently, to try to unblock areas of domination, which may entail a more sophisticated understanding of the idea of ‘domination’. As many of the contributors emphasise, there is more to law than simply a logical, coherent, unyielding patriarchal edifice.

Feminism has been very successful in challenging the meaning of ‘law’. Within the law school, an aspect of this has been a move away from the view that the study of law is concerned primarily with an analysis of cases and statues, with ‘successful study’ defined as being able to solve legal problems in a separate legal universe. The ‘law in context’ movement and socio-legal studies have emphasised that students should be made aware of the social context in which law operates. So, for example, the student of family law may learn of the availability and scope of court orders for the protection of women from domestic violence. But, unless the legal rules are studied in their context, the student may never learn that such orders very often do not work. The feminist and critical legal studies movements have gone further, and have generally been more theoretically informed, in analysing the social context itself. Continuing with the above example, the issue would be why such orders do not work, which entails an analysis of the gendered reality into which such orders attempt to intervene. Both approaches have been useful in focusing upon the changing practice of law, rather than assuming that it exists in an unchanging ideal world of Platonic forms. Foucault famously described French law as being like a machine, and, as Rose expressed it, this should be understood to be ‘more Heath Robinson than Audi’.³ The image evokes the sense in which different types of things form parts that are fitted together in a haphazard manner. Parts may no longer do the work they were supposed to do – if they ever did – but may have adopted some other function. For example, the marital rape exemption was initially engineered to protect men from liability for raping their wives. But this function was overtaken by events such that, before its abolition, the exemption provided an unintended disincentive to women to marry, offering greater legal protection to those women who lived with, rather than married, their male partners. Before Foucault, feminism illustrated the ‘messy’ way in which law operates. This goes beyond pointing out that it is not simply driven by case law and that changes in case law do not derive from logic within the law itself. (Few would now adhere to such a naïve view of law.) The wider view of law...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Series Editors’ Preface
• Contributors
• Acknowledgments
• Table of Cases
• Table of Statutes
• Table of Abbreviations
• Chapter 1 Feminism, Law and Theory
• Part I Theory and Practice: Utopia, Impossibility and the Philosophical Imagination
• Part II Legal Subjectivity: The Person, Self and Other
• Part III ‘Minoritarian Politics’
• Bibliography