Feminism and the Power of Law

Carol Smart

• Publisher: Routledge
• Year: 2002
• ISBN:
  9781134972821
• Edition: 1
• Topic: Medicine
• Subtopic: Medical Theory, Practice & Reference

In this now established text the author presents her analysis of the power of law and argues for a feminist post-structuralist approach. She comments on pornography, as well as discussing recent research on rape trials and abortion legislation.

Chapter One
THE POWER OF LAW

INTRODUCTION

This book is an exploration of how law exercises power and the extent to which it resists and disqualifies alternative accounts of social reality. Initially it is important to clarify what is meant by the term ‘law’, since using this concept in the singular tends to imply that law is a body of knowledge/rules which is unified in intent, theory, and practice. In fact I reject this notion of the unity of law because law operates with conflicting principles and contradictory effects at every level from High Court judgements to administrative law. As Hirst (1986) has pointed out, there is now considerable dispute over what law is. Notwithstanding this, the collectivity to which the label law is applied presents us with the appearance of unity and singularity. Hence law constitutes a plurality of principles, knowledges, and events, yet it claims a unity through the common usage of the term ‘law’. I shall argue that it is in fact empowered by its ‘singular’ image. It is important to acknowledge that the usage of the term ‘law’ operates as a claim to power in that it embodies a claim to a superior and unified field of knowledge which concedes little to other competing discourses which by comparison fail to promote such a unified appearance. I shall therefore retain the term ‘law’ because this power to define (itself and other discourses) is part of the power of law that I wish to explore. In addition it is law’s ability to impose its definition of events on everyday life that interests me. For example I shall examine how law’s definition of rape takes precedence over women’s definitions and how law manages to retain the ability to arrogate to itself the right to define the truth of things in spite of the growing challenge of other discourses like feminism.

In the following chapters I shall attempt to push forward feminist theorizing in relation to law and to establish a new basis for its challenge to legal discourse. At present it seems as if feminist ‘legal theory’ is immobilized in the face of the failure of feminism to affect law and the failure of law to transform the quality of women’s lives. Feminist scholarship has become trapped into debates about the ‘usefulness’ of law to the emancipation of women, or the relative merits of ‘equality’ versus ‘difference’ as strategies, or the extent to which law reflects the interest of patriarchy, or simply men. These are necessary debates but they have the overwhelming disadvantage of ceding to law the very power that law may then deploy against women’s claims. It is a dilemma that all radical political movements face, namely the problem of challenging a form of power without accepting its own terms of reference and hence losing the battle before it has begun. Put simply, in accepting law’s terms in order to challenge law, feminism always concedes too much. I shall therefore explore some ways of avoiding this process and shall indicate the importance of attempting to ‘de-centre’ law wherever this is feasible. By this I mean that it is important to think of non-legal strategies and to discourage a resort to law as if it holds the key to unlock women’s oppression. I include in this ‘resort to law’ not only matters of direct policy proposals but also matters of scholarship. For example I raise fundamental doubts about striving to achieve a feminist jurisprudence if such an enterprise merely challenges the form of law but leaves untouched the idea that law should occupy a special place in ordering everyday life. I am not suggesting we can simply abolish law, but we can resist the move towards more law and the creeping hegemony of the legal order.

To some extent this requires a reconceptualization of familiar issues as well as an attempt to think in a different mode. So I make no apologies for going over familiar terrain such as rape—but I propose to do so in a new way. This also means that I do not make policy proposals on, for example, how the law of rape should be reformed. Rather I concentrate on how to sustain feminist discourse in the face of renewed challenges to its legitimacy and on the task of deconstructing the discursive power of law. It is not solely important to promote feminist policies—indeed we are increasingly aware of their limitations. Rather it is my argument that law must also be tackled at the conceptual level if feminist discourses are to take a firmer root.

THE INFLUENCE OF FOUCAULT

Concepts like truth, power, and knowledge are central to this enterprise and it is therefore important to acknowledge their source in the work of Foucault. (For a full exposition of his work it is necessary to look to detailed works like Gordon 1980; Smart 1983, 1985; Cousins and Hussain 1984; Couzens Hoy 1986.) I shall therefore, in the following section, give some consideration to the value of these concepts in relation to a feminist analysis of law. In particular I shall challenge the theme which is fairly explicit in Foucault’s work, namely that it is more fruitful to study the processes of power outside legal institutions because the power of legal discourse is diminishing. I do not reject the idea that non-juridical modes of regulation are increasingly important, but I shall put forward the idea that juridical power remains a formidable obstacle to feminism and that whilst other mechanisms of discipline develop, law itself can deploy these mechanisms to enhance its own power. I therefore propose that the concentration on disciplinary mechanisms (for example of psychiatry and psychology) should not induce a belief that law is a less significant site of power relations. Finally I shall consider the problem of legal method (i.e. the process by which law arrives at its version of Truth) and how in the process it disqualifies other knowledges which may be rooted in feminism.

POWER, TRUTH, KNOWLEDGE

Power

…in the case of the classic, juridical theory, power is taken to be a right, which one is able to possess like a commodity, and which one can in consequence transfer or alienate, either wholly or partially, through a legal act or through some act that establishes a right, such as takes place through cession or contract. Power is that concrete power which every individual holds, and whose partial or total cession enables political power or sovereignty to be established.

(Gordon 1980:88)

It is this formulation of the concept of power that Foucault rejects. He attempts to construct a non-economic analysis of power which better reflects the mechanisms of power in the twentieth century. The idea of power as a commodity which some people, or a class of people, may ‘own’ (usually because they command wealth or economic resources) is inadequate to an understanding of contemporary society. His argument is that society has become transformed such that, whilst in the past the linkage of power and judicial rights may have been valid, this is no longer the case. The transformation that Foucault identifies is the development of the disciplinary society. By this he means the growth of new knowledges (e.g. medicine, criminology, pedagogics, epidemiology, etc.) which came to constitute the ‘modern episteme’. These knowledges create new fields of exploration and bring with them new modes of surveillance and regulation of the population. Hence the criminal is no longer someone who breaks the law and who must be punished. He is pathologized, he needs to be subjected to close surveillance and ultimately to cure or normalization. This process, which Foucault has explored in depth in Discipline and Punish (1979b), The Birth of the Clinic (1975), Madness and Civilisation (1971), The History of Sexuality (1979a), is one which applies to all areas of social life. Foucault has identified a new mode of regulation, the mechanism of discipline—‘a closely linked grid of disciplinary coercions whose purpose is in fact to assure the coercion of this same social body’ (Gordon 1980:106).

Foucault’s concentration on the growth of the disciplinary society reflects his greater interest in the mechanisms of power than the ‘old’ questions of who has power. He also rejects the tendency which is apparent in the traditional formulation of power, of treating power as if it were negative, repressive and juridical. He maintains that power is creative and technical. By this it is meant that the mechanisms of power create resistances and local struggles which operate to bring about new forms of knowledge and resistance. Hence power is productive, not simply a negative sanction which stops or restricts oppositional developments. However, it is clear that although Foucault’s reconceptualization of power opens new ways of understanding, it is very hard to abandon the old concept of power. Hence we not only continue to talk about power as a commodity, we also act as if it were. As Taylor (1986) has argued,

Foucault’s thesis is that, while we have not ceased talking and thinking in terms of this model (i.e. power as a system of commands and obedience), we actually live in relations of power which are quite different, and which cannot be properly described in its terms. What is wielded through the modern technologies of control is something quite different, in that it is not concerned with law but with normalization.

(Taylor 1986:75)

The question that this raises is ‘why do we still look to the old forms of power if they are no longer appropriate?’ Interestingly, Foucault does not dismiss law and the old forms of power altogether as Taylor implies. It is, however, hard to be clear on what he has to say in this area since, by his own admission, Foucault was more interested in the mechanisms of power at its extremities (i.e. where it is least law-like) than at its core (i.e. law itself and legal institutions). He does not appear to be saying that law, and the old contrivances of power, are no longer relevant—although he seems to argue that they will become so. Hence, we should talk of two parallel mechanisms of power which operate symbiotically, but where the old mechanism will be eventually colonized by the new.

And I believe that in our times power is exercised simultaneously through this right and these techniques and that these techniques and these discourses, to which the disciplines give rise, invade the area of right so that the procedures of normalisation come to be ever more constantly engaged in the colonisation of those of law.

(Gordon 1980:107)

So Foucault sees the old power (and hence the significance of law) diminishing. I am less certain that this is happening. Rather it is possible to posit a move in the opposite direction, for example the growing legalization of everyday life from the moment of conception (i.e. increasing foetal rights) through to the legal definition of death (i.e. brain death or ‘body’ death). It may be that law is being colonized in some instances, but in others law may be extending its influence as I shall argue below.

We need therefore to think in terms of two parallel mechanisms of power, each with its own discourse, the discourse of rights and the discourse of normalization. Foucault tells us far more about the latter than the former, yet the former is by no means redundant (even if it is doomed to become so). This raises a number of issues. For example, what is the relationship between the two mechanisms in specific areas as opposed to broad generalities? Might we see an uneven development of this colonization of law? What does this mean for political strategy, if anything? Foucault suggests, for example, that there is little point in turning to law (the discourse of rights) as a strategy to deal with the encroachment of surveillance, since they are now symbiotically linked. I shall not answer all these questions in this chapter, but I shall explore the interface between the two mechanisms to try to give some substance to this, so far, abstract discussion. Before this I must give brief consideration to the notions of truth and knowledge.

Truth/knowlege

In using the concept of truth Foucault does not mean ‘the ensemble of truths which are to be discovered and accepted’. On the contrary Foucault uses it to refer to ‘the ensemble of rules according to which the true and the false are separated and specific effects of power attached to the true’ (Gordon 1980:132). He is not concerned with what is considered to be the usual quest of science, namely to uncover the truth, rather he is interested in discovering how certain discourses claim to speak the truth and thus can exercise power in a society that values this notion of truth. He argues that making the claim to be a science is in fact an exercise of power because, in claiming scientificity, other knowledges are accorded less status, less value. Those knowledges which are called faith, experience, biography, and so on, are ranked as lesser knowledges. They can exercise less influence, they are disqualified. Defining a field of knowledge as science is to claim that it speaks a truth which can be favourably compared to partial truths and untruths which epitomize non-scientific discourse.

Foucault does not compare the scientist’s claim to truth, and hence exercise of power, with the lawyer’s claim. Law does not fit into his discussion of science, knowledge, and truth because, as I have pointed out, he identifies it in relation to the regime of power that predates the growth of the modern episteme. Yet I wish to argue that there are very close parallels in terms of this ‘claim to truth’ and the effect of power that the claim concedes. I am not saying that law attempts to call itself a science, but then it does not have to. Law has its own method, its own testing ground, its own specialized language and system of results. It may be a field of knowledge that has a lower status than those regarded as ‘real’ sciences, none the less it sets itself apart from other discourses in the same way that science does.

It might be useful to provide an example here. In the area of family law there has been a steady encroachment of what has become known as the welfare principle. Hence decisions about children tend to be based on the concept of welfare rather than more traditional legal concepts like rights. As a consequence it has become necessary for law to differentiate itself from social work. Those with legal training distinguish their own knowledge base, and give higher value to their own skills than those of lay people who are inside the legal system (e.g. magistrates and social workers). The following statements from interviews carried out with solicitors in Sheffield in 1980 reveal clearly the hierarchy of knowledge that is presumed in law. (A full exposition of these interviews can be found in Smart 1984.)

1. At times I wish [the judge] would just take notice of the parties themselves and do a lawyer’s appraisal of individuals, rather than at times, [taking notice of] in my book, inexperienced, undertrained operatives…[i.e. social workers].

2. [Referring to the influence of welfare reports]
I think that it depends a lot on the judge in the County Court. I think the magistrates’ courts are more influenced. I think that judges are used to making up their minds on the basis of the evidence and what they think about the parties before them, whereas the magistrates tend to be less self-confident…

3. [Referring to magistrates in general]
…you have to be a very expert practitioner before you can accurately predict which way [magistrates] are going to jump… they’re pretty fickle anyway, and they make decisions which don’t appear to be based on anything normal.

So law sets itself above other knowledges like psychology, sociology, or common sense. It claims to have the method to establish the truth of events. The main vehicle for this claim is the legal method which is taught in law schools and which I shall discuss in more detail below. A more ‘public’ version of this claim, however, is the criminal trial which, through the adversarial system, is thought to be a secure basis for findings of guilt and innocence. Judges and juries can come to correct legal decisions; the fact that other judges in higher courts may overrule some decisions only goes to prove that the system ultimately divines the correct view.

Law’s claim to truth is not manifested so much in its practice, however, but rather in the ideal of law. In this sense it does not matter that practitioners may fall short of the ideal. If we take the analogy of science, the claim to scientificity is a claim to exercise power, it does not matter that experiments do not work or that medicine cannot find a cure for all ills. The point is that we accord so much status to scientific work that its truth outweighs other truths, indeed it denies the possibility of others. We do not give quite such a status to law, although we operate as if the legal system does dispense justice (i.e. correct decisions), and we certainly give greater weight to a judge’s pronouncement of guilt than a defendant’s proclamation of innocence. Indeed there are those who would say that ‘law is what the judges say it is’. The judge is held to be a man of wisdom, a man of knowledge, not a mere technician who can ply his trade.

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. Non-legal knowledge is therefore suspect and/or secondary. Everyday experiences are of little interest in terms of their meaning for individuals. Rather these experiences must be translated into another form in order to become ‘legal’ issues and before they can be processed through the legal system (Cain 1979). For the system to run smoothly, whether it is criminal or civil, the ideal is that all parties are legally represented and that the parties say as little as possible (i.e. they are mute). The problem for the lawyer is that the litigant may bring in issues which are not, in legal terms, pertinent to the case, or s/he might inadvertently say something that has a legal significance unknown to her/him. So the legal process translates everyday experience into legal relevances, it excludes a great deal that might be relevant to the parties, and it makes its judgement on the scripted or tailored account. Of course parties are not always silenced, but I hope to show in Chapter Two that how they are allowed to speak, and how their experience is turned into something that law can digest and process, is a demonstration of the power of law to disqualify alternative accounts.

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. Consider the following quotation from Lord Denning, written when he was Master of the Rolls (i.e. head of the Court of Appeal).

By a series of Acts of Parliament, however, starting in 1870, all the disabilities of wives in regard to property have been swept away. A married woman is now entitled to her own property and earnings, just as her husband is entitled to his. Her stocks and shares remain hers. Her wedding presents are hers. Her earnings are hers. She can deal with all property as fully as any man…. No longer is she dependent on her husband. She can, and does, go out to work and earn her own living. Her equality is complete.

(Denning 1980:200)

In this conceptualization it is law that has given women equality (accepting for the moment that they do have formal equality). In this way law is taken to be outside the social body, it transcends it and acts upon it. Indeed the more it is seen as a unified discipline that responds only to its own coherent, internal logic, the more powerful it becomes. It is not simply that in this passage Denning omits to point out how many women chained themselves to railings, demonstrated and lobbied in Parliament to change the law, nor that he ignores the dramatic changes to women’s economic position which occurred quite independently of law, it is rather that he constructs law as a kind of sovereign with the power to give or withhold rights. (Here we are back to Foucault’s notion of the ‘old’ power of law.) Linked to this idea, law is constructed as a force of linear progress, a beacon to lead us out of darkness. The significance of this is not that one judge, no matter how eminent, should state this, but that this has become a commonsense approach. The idea that law has the power to right wrongs is pervasive. Just as medicine is seen as curative rather than iatrogenic, so law is seen as extending rights rather than creating wrongs. It is perhaps useful to coin the termjuridogenic to apply to law as a way of conceptualizing the harm that law may generate as a consequence of its operations. (Examples of the juridogenic potential of law are explored in later chapters.) But there are two issues here. One is the idea of law as a force for good (or bad) the other is the idea of law as a force at all—both have to be subject to scrutiny. If we stop at the point of considering whether law is a force for good or bad we concede that law is a force—indeed it implies that we simply wish to redirect its purpose. If we go one step further we can begin to problematize, to challenge, and even to redefine law’s supposedly legitimate place in the order of things. Ultimately this is the most necessary project.

Lastly in this section on truth and knowledge, I want to consider how law extends itself beyond uttering the truth of law, to making such claims about other areas of social life. What is important about this tendency is that the framework for such utterances remains legal —and hence retains the mantle of legal power. To put it figuratively, the judge does not remove his wig when he passes comment on, for example, issues of sexual morality in rape cases. He retains the authority drawn from legal scholarship and the ‘truth’ of law, but he applies it t...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• SERIES EDITORS’ PREFACE
• ACKNOWLEDGEMENTS
• INTRODUCTION
• Chapter One: THE POWER OF LAW
• Chapter Two: RAPE: LAW AND THE DISQUALIFICATION OF WOMEN’S SEXUALITY
• Chapter Three: A NOTE ON CHILD SEXUAL ABUSE
• Chapter Four: THE QUEST FOR A FEMINIST JURISPRUDENCE
• Chapter Five: LAW, POWER, AND WOMEN’S BODIES
• Chapter Six: THEORY INTO PRACTICE: THE PROBLEM OF PORNOGRAPHY
• Chapter Seven: THE PROBLEM OF RIGHTS
• Chapter Eight: CONCLUDING REMARKS
• NOTES
• BIBLIOGRAPHY