Feminist Legal Theories

Karen Maschke

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781135634698
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Multidisciplinary focus Surveying many disciplines, this anthology brings together an outstanding selection of scholarly articles that examine the profound impact of law on the lives of women in the United States. The themes addressed include the historical, political, and social contexts of legal issues that have affected women's struggles to obtain equal treatment under the law. The articles are drawn from journals in law, political science, history, women's studies, philosophy, and education and represent some of the most interesting writing on the subject. The law in theory and practice
Many of the articles bring race, social, and economic factors into their analyses, observing, for example, that black women, poor women, and single mothers are treated by the wielders of the power of the law differently than middle class white women. Other topics covered include the evolution of women's legal status, reproduction rights, sexuality and family issues, equal employment and educational opportunities, domestic violence, pornography and sexual exploitation, hate speech, and feminist legal thought. A valuable research and classroom aid, this series provides in-depth coverage of specific legal issues and takes into account the major legal changes and policies that have had an impact on the lives of American women.

Tradition, Change, and the Idea of Progress in Feminist Legal Thought

KATHARINE T. BARTLETT*

It often seems to me the progress of feminism is very much like that of psychoanalysis. Roughly speaking, there are two parts to analysis. First comes insight—collecting data on the damage within. Then comes extrication from the personality that has developed in response to the damage. The first part is easy, the second part hell. Insight comes in a rush: swift, exciting, dramatic. Extrication is interminable: repetitious, slogging, unesthetic. At least thirty-two times a year for six or seven years the patient repeats original insight as if for the first time. And then, when the analyst can hardly believe it is going to happen again, the patient announces, “Now I see clearly what I have not seen before.” The analyst passes a tired hand across a weary brow and replies, “You saw that clearly last month, and last year, and the year before. When are you going to act on what you see?”¹

Within feminist thought, there is great anxiety about progress: what it is, whether it is occurring, and how to make more of it happen. This anxiety is manifest in the range of reactions to the current “backlash” against feminism.² Some warn that women have asked for too much and weakened their legitimate claims to equality with special pleadings for women that cannot be justified.³ Others charge that women have asked for too little and that incremental legal reforms within existing paradigms will only reinforce the status quo.⁴ Some, among whom I count myself, are frustrated by claims made at both ends of the spectrum. Those worried about women’s special pleadings seem to have missed the central feminist point about how the construction of principles as neutral and special serves systematically to rationalize women’s subordination. Those insisting that incremental reform only reinforces women’s subordination, in turn, undermine the slow and tedious work that might help to alter the social attitudes about gender that sustain it.

My aim in this Article is not to choose between extremes, or even to seek the happy middle between them. It is, rather, to improve the way feminists think about how to produce change—whatever its desired specifications. All too often today, feminists define progress in opposition to tradition and the past. The more “radical” the feminism, the more pervasive and enduring the oppressions of the past are seen to be, and thus the more urgent the need to fully repudiate its traditions.⁵

There is understandable reason for the feminist antipathy to tradition, which represents patriarchal gender role norms, the elimination of which is feminism’s primary goal. Deepening the contemporary feminist hostility toward tradition has been its association with “family values,” invoked in support of such conservative agenda items as state-encouraged prayer in the public schools, the reversal of Roe v. Wade, the privatization of responsibility for family support, the penalization of out-of-wedlock childbirth, and the rejection of purportedly “favored” treatment for women, gay men and lesbians, African-Americans, and third-world “aliens.”

An oppositional stance toward tradition and the past, however, may do more to impede feminist progress than to accelerate it. What I contend in this Article is that a dichotomous view of change is both inaccurate and nonstrategic. It is inaccurate in the sense that the process of change occurs less in breaks from a fixed and stable past than in extensions of ever-mutating versions of it. The fact that change represents extensions of the past rather than its rejection is not due merely to the exigencies of compromise, cooptation, and the triumph of “specia interests.” The future brings along the past because, notwithstanding the allure of the brand new, what most individuals seek in their social relations is not something completely different, but rather a different familiar. I propose that the primary impulse for social change seeks reconciliation between the familiar and an evolving sense of what is just and good, rather than a radical break from the past.

The tradition/change dichotomy is nonstrategic because it fails to take into account this desire for the familiar. It sets the sights of reformers on efforts to engineer great leaps of freedom from an oppressive past to a sharply distinct, desirable future, rather than on building the connections essential to that future. In so doing, it increases the distance those who are being asked to change think they must move. This dichotomous view ignores the fact that the seemingly intractable views about gender which feminists seek to change are tied to individual and group identities, formed through the ongoing accretions and syntheses of old and new understandings of self and other. Feminist revelations can have little impact on identities they completely reject. They must make sense in terms of these identities. This requires not the triumph of new over old, but an integration between them that can generate transformed and transforming views about gender.

An approach to progress built on distance from, rather than identification with, the past creates dissonance and conflict. Dissonance and conflict can, of course, be useful in stimulating change. However, not just any dissonance and conflict will do. What feminists require is dissonance and conflict that enrich and extend a set of shared understandings, rather than further entrench old ones. Tradition is a key to identifying and reshaping the base of shared understandings on which desirable change, or progress, can build. It is a concept that feminists cannot afford to ignore.

This Article begins with an analysis of the oppositional view of tradition and change evident in recent Supreme Court decisions limiting the growth of constitutionally protected individual liberties in the family law area. I then demonstrate how feminist responses to these decisions incorporate and reinforce, rather than challenge, the dichotomous view of tradition and change that these decisions reveal, and show how this view is more damaging than helpful to feminist concepts of progress. I go on to lay out alternative views of tradition and change, including a view that sees tradition and change as mutually embodied rather than as opposites. I contend that the embodiment view supplies the most promising framework for feminist progress. Within this view, tradition is seen as an important component of progress, which in turn is viewed less as a product of revolutionary insight implemented by the newly empowered, than as a product of mundane, necessarily repetitious narratives that reveal, teach about, and improve the ordinary, “traditional” meanings present in this society, including the ordinary meaning of gender. My argument is that although insight and power are necessary to feminist progress, changes in gender role attitudes depend upon the integration of insight and past understandings. These integrations cannot be achieved without, in Gornick’s words, the “repetitious, slogging, unesthetic work[ing]” of these insights into the ordinary and familiar. In this view, strategies consistent with this more integrated approach to tradition and change are more likely to produce a deeper kind of progress—one that both endures and serves as a foundation for future progress—than are strategies based on the tradition/change dichotomy. I end with a review of feminist work from which this more integrated view of tradition and change might build.

I. THE TRADITION/CHANGE DICHOTOMY

A. Tradition and Precedent

Tradition has functioned in different ways in Supreme Court jurisprudence across a diverse set of constitutional contexts. In some cases, the Court has used tradition to refer to social norms and practices that have persisted for some period of time outside, or beyond the reach of, law. These norms and practices act as a limit on state acts that jeopardize these norms or practices⁶ or as validation of state acts consistent with them.⁷ In other cases, what is called tradition amounts to rules or precedents internal to law, to which the Court refers in justifying continued adherence to these (or similar) rules and practices in the face of challenge by those urging an abandonment of tradition.⁸ It is important to see that both usages function somewhat differently from legal precedent. Tradition and precedent each confer some sort of legitimating power on the past and impose constraints based on that power.⁹ Whereas precedent consists of a holding in one legal case that is deemed to control directly the decision in another case,¹⁰ however, tradition derives from outside of law, imposing limits not yet adjudicated by the courts. Once the legal relevance of a tradition has been adjudicated in a case, it becomes incorporated into a precedent and operates as such, subject of course to later reinterpretations of, or reliance upon, tradition (which might, in turn, alter precedent). A tradition that has become embodied in precedent may continue to operate not only as part of that precedent but as an independent, reinterpretable source of authority for future decisions. When authority functions as tradition, its strength increases with age; as precedent, it gains support from its recency.¹¹

Typically, both precedent and tradition are viewed as constraints on authority, and rightly so. One commonly perceived difference between them is that precedent, especially as it operates in the common law, leaves room for evolution and change,¹² while tradition is fixed, stable, and unchanging. Indeed, scholars as noted as Oliver Wendell Holmes have applauded the common law’s great responsiveness to changing conditions while deriding the inflexibility, purposelessness, an...

Table of contents

• Cover
• Title Page
• Copyright Page
• Tables of Contents
• Series Introduction
• Volume Introduction
• Difference and Dominance: On Sex Discrimination (1984)
• Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics
• Challenging Law, Establishing Differences: The Future of Feminist Legal Scholarship
• Race and Essentialism in Feminist Legal Theory
• Feminist Critical Theories
• Toilets as a Feminist Issue: A True Story
• Nasty Law or Nice Ladies? Jurisprudence, Feminism, and Gender Difference
• From Practice to Theory, or What is a White Woman Anyway?
• Ain’t I a Feminist?
• Feminist Theory in Law: The Difference It Makes
• Whiteness and Women, In Practice and Theory: A Reply to Catharine MacKinnon
• Tradition, Change, and the Idea of Progress in Feminist Legal Thought
• Acknowledgments