The Ashgate Research Companion to Feminist Legal Theory

Vanessa E. Munro, Margaret Davies, Margaret Davies

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317043416
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

As a distinct scholarly contribution to law, feminist legal theory is now well over three decades old. Those three decades have seen consolidation and renewal of its central concerns as well as remarkable growth, dynamism and change. This Companion celebrates the strength of feminist legal thought, which is manifested in this dynamic combination of stability and change, as well as in the diversity of perspectives and methodologies, and the extensive range of subject-matters, which are now included within its ambit. Bringing together contributors from across a range of jurisdictions and legal traditions, the book provides a concise but critical review of existing theory in relation to the core issues or concepts that have animated, and continue to animate, feminism. It provides an authoritative and scholarly review of contemporary feminist legal thought, and seeks to contribute to the ongoing development of some of its new approaches, perspectives, and subject-matters. The Companion is divided into three parts, dealing with 'Theory', 'Concepts' and 'Issues'. The first part addresses theoretical questions which are of significance to law, but which also connect to feminist theory at the broadest and most interdisciplinary level. The second part also draws on general feminist theory, but with a more specific focus on debates about equality and difference, race, culture, religion, and sexuality. The 'Issues' section considers in detail more specific areas of substantive legal controversy.

Part I:
Theoretical Questions in Feminist Legal Theory

1
Contesting the Dominant Paradigm: Feminist Critiques of Liberal Legalism

Rosemary Hunter

The concept of ‘liberal legalism’ refers to a set of assumptions found within law in societies and regimes (such as the international legal order) in which liberalism is the dominant political philosophy. These assumptions broadly concern: (a) the nature of the legal person; and (b) the role of law. This chapter will provide an account of both of these aspects of liberal legalism, and the feminist critiques to which they have been subject. Feminist critiques have been mounted from a variety of positions, ranging from liberal feminists challenging law to live up to its promises, to radical and postmodern feminists who, for different reasons, trenchantly reject the validity of the assumptions of liberal legalism. The chapter focuses on feminist critiques of liberal legalism rather than on internal debates within feminism, although these debates are evident in the different diagnoses of and responses to the perceived problems of liberal legalism.

The Legal Person

As Ann Scales explains, two of the central tenets of liberalism are that the basic unit of society is the individual, who exists prior to social organization, and that individuals are rational and self-interested, and use their rationality to achieve their needs and desires (2006: 64). Consistently with these tenets, the legal person envisaged by liberal legalism is rational, autonomous, self-contained, self-possessed, self-sufficient and formally equal before the law. This person relates to others at arm’s length through the mechanism of contract. In the words of Anna Grear, ‘the paradigmatic liberal legal subject’ is ‘a socially decontextualized, hyper-rational, wilful individual systematically stripped of embodied particularities in order to appear neutral and, of course, theoretically genderless, serving the mediation of power linked to property and capital accumulation’ (2011: 44). This makes it possible for a corporation as much as a human being to be considered a legal person.

Despite the appearance of neutrality and genderlessness, however, feminist critiques of the liberal legal person have noted its inherent masculinity. This argument is sometimes historical and empirical, and sometimes symbolic and normative. In the first account, privileged white men have populated law, shaped it in their own image, and instated their experience and view of the world as the legal norm, which has then come to be seen as universal, neutral, objective, inevitable and complete (Finley 1989: 892, Davies 1996: 72). The second, symbolic, account draws attention to the systematic associations within the Western imaginary between the characteristics of the legal person – rationality, autonomy, self-interest, objectivity, assertiveness, self-sufficiency, self-possession – and masculinity (see, for example, Naffine 2002: 81). We can see this masculine norm in the reasonable man of tort law and self-defence doctrine; the rational, self-interested actor of contract law; the responsible person of criminal law; the unencumbered worker of labour law; the rights-bearing individual of human rights; and the standard comparator of equality law (Finley 1989: 893, 896). These legal persons operate autonomously in the public sphere – it is difficult to imagine them, for example, changing nappies, cuddling children or breastfeeding (Naffine 2009: 158).

A significant consequence of the masculinity of the legal person is that women struggle to attain legal subjectivity. Again, this point may be understood both empirically and symbolically. Empirically, to the extent that law is built around an ideal type to which they do not conform, it creates problems for women and fails to take into account their lived reality and experiences. As Ngaire Naffine has pointed out, for example, ‘women’s bodies [are] not susceptible to the sort of self-mastery required of a self-proprietor’ (1998: 203), and indeed for centuries women’s bodies were seen as men’s property (Naffine 1998: 204, 208–211). Even today, liberal legalism’s autonomous, responsible subject is never pregnant and is not a wife (Naffine 2003: 365). And to the extent that they are excluded from legal subjectivity, women are also diminished, since liberal legal theory treats persons not fitting ‘the normal model of autonomous, competent individual’ as marginal, inferior and different (Minow 1990: 9–10).

On a symbolic level, the construction of the masculine as rational, objective and universal is premised on a binary construction of the feminine as its opposite – as irrational, subjective and particular. Thus, the legal person exists in a symbiotic hierarchy with the devalued feminine – his existence and power depend upon the negation and exclusion of the feminine (Naffine 2002: 81, 87). And again, as Margaret Thornton has noted, liberal legalism’s essentialist representation of ‘woman’ as less than rational has been disabling for embodied women attempting to exercise legal subjectivity (1996: 30–31). One response to this observation has been Luce Irigaray’s call for a legal regime that recognizes two, differentiated sexes rather than only one, universal (that is, male) sex (Irigaray 1993, 1994, 1996).

In her recent work, Naffine has argued for a more complex account of the legal person than that presented above. In contrast to her own earlier position, she now rejects the notion that ‘law adopts a monolithic or singular or static view of the person which … either forces women out or obliges them to conform to it if they are to be regarded as persons too’ (2011: 16). Rather, she argues that ‘[w]e need to acknowledge that law’s concept of the person changes according to the guiding scheme of interpretation; that legal persons are therefore multiple rather than singular’ (2011: 16). In her 2009 book Law’s Meaning of Life, she identifies four views of the legal person: rationalist, religionist, naturalist and legalist. The rationalist sees the legal person as a rational actor, as found in liberal philosophy and criminal and contract law, whose capacity for reason is their most important characteristic. The religionist sees the legal person as a sacred being, whose most important characteristic is their human sanctity and inviolability, as found in human rights and medical law. The naturalist emphasizes the sovereign subject, the embodied and bounded self with rights to bodily integrity; while the legalist understands the legal person as simply ‘an abstract device for endowing a capacity to bear rights and duties’, with no fixed or essential characteristics.

Nevertheless, Naffine concedes that each of these legal persons has ‘a masculine flavour’, and thus continues to make it difficult for women as women to be persons in law (2011: 16). In relation to the rationalist position, as noted above, women have traditionally been constructed as the opposite of rational (2011: 17), and even though [white] women were admitted to full public citizenship by the late 1920s, pregnant women are still not recognized in law as fully rational – their capacity for self-government in matters such as abortion remains legally limited (2011: 20). One might add that rape law continues at least to compromise women’s capacity for sexual self-government, and that family law restricts the ability of separated mothers to determine how and where they and their children should live. The religionist version of the legal person as sacred and inviolable also has difficulties accommodating pregnant women (Naffine 2011: 18). The naturalist version of the legal person as a sovereign and bounded subject similarly has problems accounting for women’s sexual and reproductive bodies (2011: 19). And according to Naffine, the legalist view has difficulty maintaining the separation of the legal from the human person in one or other of its patriarchal manifestations (2011: 19). It might also be observed that within the binary hierarchy referred to above, abstraction is associated with masculinity while the feminine is associated with particularity. Thus it would be easier for a legalist to see a man than a woman as an abstract legal person.

The empirical masculinity of the man of law in the form of lawyers and judges has led to calls by some feminists for greater representation of women in the legal profession and in the judiciary. For liberal feminists, this is an argument for law to finish what it began with the formal recognition of women as legal persons and the removal of barriers to women’s entry to the professions in the early twentieth century, and to finally accord equal recognition to women’s rationality (see, for example, Malleson 2003). Other feminists have argued that law needs to incorporate both sexes rather than just one; that women have important, gendered experiences and perspectives to bring to bear that will ensure legal rules and norms respond to a wider range of litigants and are more fully human (see, for example, Wilson 1990, Hale 2001, 2005, 2008, Rackley 2006, 2007, 2008). More controversially, some have relied on the cultural feminist argument that women reason in a ‘different voice’ characterized by an ethic of care (discussed below), which again has something valuable to offer to a law previously focused excessively upon individual rights (see, for example, Menkel-Meadow 1986, Sherry 1986, Wilson 1990).

The notion that women bring something different to lawyering and judging may, however, be perceived negatively rather than positively. As noted above, in the Western imaginary, woman’s ‘difference’ has been seen to reside precisely in her non-rationality. This has rendered embodied women, in Thornton’s words, ‘fringe-dwellers of the jurisprudential community’, not fully accepted as agents of legality due to their association with irrationality (1996: 3–4, 31). Moreover, the fact that the masculine in law has been universalized and appears under the guise of impartiality and neutrality means that women’s perspectives are understood not as equally universal, but as particular, biased, special interests, not providing the degree of objectivity required for authoritative judgement (Thornton 1996: 6, Graycar and Morgan 2002: 57–58, Munro 2007: 49–50, see also Graycar 1998 and 2008). Thus, women’s underrepresentation in the senior judiciary is justified due to their lack of the necessary ‘merit’ required for appointment.

One recent development within this debate has been the advent of feminist judgment-writing projects, in which feminist academics and lawyers have written ‘alternative’ judgments in prominent cases, in order to challenge established modes of legal authority, to highlight the masculinity of existing judgments and to demonstrate the results that a more inclusive judiciary might produce (see http://womenscourt.ca,www.feministjudgments.org.uk, Hunter et al. 2010). Notably, however, these projects have explicitly brought feminist perspectives to judging rather than claiming to represent women’s perspectives or voices. They show how feminist legal theory may be applied in a practical context and illustrate differences within feminism, but they do not conflate women with feminists. This approach is consistent with broader calls for judicial diversity which are premised on the notion that conversations among judges with a wide range of backgrounds, life experiences and intellectual predispositions are necessary for law to attain democratic legitimacy (see, for example, Etherton 2010).

Another feminist line of attack on the liberal legal person has been Jennifer Nedelsky’s call to reconceive autonomy (Nedelsky 2011). While other feminist legal scholars have also engaged with the concept of autonomy, it is important to distinguish Nedelksy’s work from theirs. Robin West, for example, in her early article ‘Jurisprudence and Gender’, argues that the ‘separation thesis’ – the notion that human beings are physically separate from other human beings, and that separateness is epistemologically and morally prior to the relationships and cooperative arrangements that an individual may choose to form – is not true of women (1988: 1–2). Rather, women are ‘essentially connected’ to others, both materially and existentially, through pregnancy, sexual intercourse1 and breastfeeding (1988: 3). She thus posits the ‘connection thesis’, which holds that ‘[w]omen are actually or potentially materially connected to other human life. Men aren’t’ (1988: 14). This view of a fundamental gender difference based on the presence or absence of connection locates West within the school of cultural feminism which seeks both to assert and to valorize women’s difference from men.

Martha Fineman, by contrast, argues that all humans are dependent at some stage in their lives – in childhood, illness and old age – but caretaking for dependents is seen as a family responsibility and is usually undertaken by women. Because of this universal dependency, however, caretaking should instead be seen as a collective responsibility and care work better valued and resourced (2000, 2004: xiii–xvii). A ‘societal commitment to the provision of basic social needs’ would enable the achievement of true autonomy for all individuals based on a position of meaningful and widespread equality (2004: 29–30). In her later book, Caring for Justice, West comes closer to this position in acknowledging that connectedness is not unique to women, but that the beneficial work of maintaining care and connections is both disproportionately performed by women and insufficiently supported by law and society (1997: 1–5).

Nedelsky goes further than both of these theorists in arguing that liberalism is empirically wrong about autonomy in relation to all human beings all of the time. While liberal political and legal theories take atomistic individuals to be their basic unit, they fail to recognize ‘the inherently social nature of human beings’ (1989: 8). Social relations with others are constitutive of the human, not an optional add-on (1989: 8). In Nedelsky’s view, however, this insight does not entail abandoning the concept of autonomy, which she argues remains valuable for feminism (1989: 7). Rather, it is necessary to reconceive autonomy not as an inherent quality of human beings but as a capacity that must be developed and sustained, and which can develop only in the context of relations with others (1989: 10–11). Relationships with others ‘provide the support and guidance necessary for the development and experience of autonomy’; thus, relatedness is not the antithesis of autonomy but a precondition for it (1989: 12). This feminist version of relational autonomy then focuses attention on the kinds of relationships that promote (or diminish) autonomy, both interpersonal relationships and relationships with the bureaucratic state. We need to consider how to structure constructive relationships so that they foster rather than undermine autonomy (1990: 168).

Finally, postmodern feminists have critiqued the way in which liberal legalism’s account of the legal person does not merely function as a representation of reality, but actively contributes to the construction of gender as a binary system, and of limited meanings and characteristics for ‘masculine’ and ‘feminine’ subjects and subjectivity (see, for example, Ahmed 1995: 58, Davies 1996: 4, Hunter 1996: 160, Naffine 2004). Mary Joe Frug, for example, notes that law produces differences and hierarchies between the sexes, and moreover produces these essentialized sexual differences and hierarchies as ‘natural’ (and hence as unquestionable) (1992: 128). Through an analysis of employment discrimination law, family law, and laws relating to sexual assault and prostitution, Frug (1992: 15–18, 32–33, 129–134) demonstrates how law produces the female body as terrorized (‘a body that has learned to scurry, to cringe and to submit’), maternalized (‘a body that is “for” maternity’) and sexualized (‘a body that is “for” sex with men’, that is, both desirable and rapable) (1992: 129–130). This construction of the female body in turn affects how we dress, have sex, and regard ourselves and others (1992: 132). Similarly, Carol Smart argues that ‘law operates as a technology of gender’, ‘a process of producing fixed gender identities’, rather than merely applying to already gendered subjects (1992: 34). According to Smart, law brings into being ‘both gendered subject positions as well as … subjectivities or identities to which the individual becomes tied or associated’; thus ‘Woman is a gendered subject position which legal discourse brings into being’ (1992: 34). Smart, too, charts the rise of compulsory motherhood, showing how successive legislative provisions have constructed motherhood as ‘natural’ and unavoidable for heterosexually active women (1992: 37–39).

Continuing this theme, Sara Ahmed illustrates the way in which child support legislation constructs women as dependent on men and normalizes the heterosexual family, rendering women who have chosen to parent alone or in a lesbian relationship invisible and illegitimate (1995: 66–67). Ratna Kapur shows how the Indian courts’ interpretations of sexual harassment prohibitions have reintroduced notions of sexual morality, chastity, and the cultural idealization of pure, modest Indian womanhood, with women claimants not conforming to these norms being denied protection (2005: 39–40). Sally Sheldon (1999) analyses law’s gendered constructions of masculine and feminine reproductivity, demonstrating how UK foetal protection legislation, judicial endorsement of foetal protection policies, and legislation providing different degrees of civil liability of women and men for pre-natal injuries caused to children, construct the female reproductive body as weak, penetrable, volatile and uncontrollable, by contrast with the masculine heterosexual reproductive body which is constructed as strong, impermeable, stable and invulnerable. Within this legal discourse, too, men are constructed as breadwinners and women as primary carers. Thus, for instance, it is seen as acceptable for women to be excluded from workplaces involving high levels of exposure to environmental toxins, since the porous female body constitutes a potential danger to the foetus and thus requires control, surveillance and management, and since women are ...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Table of Contents
• Notes on Contributors
• Editors' Introduction
• Part I: Theoretical Questions in Feminist Legal Theory
• Part II: Concepts in Feminist Legal Theory
• Part III: Issues in Feminist Legal Theory
• Index