Feminist Legal Theory
FEMINIST LEGAL THEORY
Feminist legal theory is the study of the philosophical foundations of law and justice; informed by women's experiences, its goal is to transform the legal system and the understanding of it to improve the quality of jurisprudence and women's lives. Feminists working in law share the convictions that the historical and continuing exclusions of women from the law's protective domain have injured women and that the exclusion of women from the study of law has limited both the understanding of law and it ethical compass. Feminists have accordingly sought to transform the rules and principles governing particular areas of law—torts, criminal law, constitutional law—so as to make them more responsive to women's needs and more reflective of women's perspectives. Feminist legal theorists examine the consequences—both for women and for jurisprudence—of the exclusion of women's input into our shared understanding of the law's philosophical foundations. Toward that end feminists have examined competing philosophical understandings of the nature of law, have attempted to show how they fail to reflect women's perspectives, and have attempted in each case to reinvigorate them by centralizing rather than marginalizing women's experiences.
Some feminist legal theorists—sometimes called liberal feminist scholars—argue that women's lives will be most improved by simply extending to women what are widely regarded as two of the central promises of law in a liberal regime: first, the promise of "formal equality," the idea that the state's legal institutions will "treat like causes alike"; and second, the promise to each individual of a wide a sphere of individual autonomy. Women, liberal feminists argue, are "like men" in all the ways that should matter to the state and accordingly should be treated, wherever possible, in precisely the same way as men by the law. Women and men are the same in their abilities: Women, like men, can engage in the professions and trades, wage war, fairly serve on juries, administer estates, and vote responsibly, and the law must accordingly not discriminate on the basis of a false claim of difference and must also forbid discrimination against women in the private sector on the basis of such false claims (Williams 1984).
Similarly, women and men are the same in their needs: Women, like men, need protection against violence, meaningful work and civic participation, and, most important, the freedom to develop their individual life plans. The law should therefore extend to women the same protection against private violence and the same sphere of autonomy it extends to men (McClain 1992). By pursuing the logic of these applications of fundamental liberal principles to the law's treatment of women, liberal feminist legal theorists have contributed to widespread changes in the relations of women, men, and the state, ranging from the institution of bans on private and state discrimination on the basis of gender to the expansion of women's reproductive freedom and choices so as to maximize their social and political autonomy.
As critics of liberal feminism have pointed out, however, women are not "like men" in all ways, and as a consequence a rigid application of liberal premises to the sometimes distinctive situation of women will often backfire. Where women are unlike men, the blanket insistence on equal treatment will sometimes impoverish actual women, albeit toward the admirable end of a gender-blind utopian society (Becker 1987). Equal distribution of property at the time of divorce, for example, will impoverish the majority of divorcing women who have less earning potential than their husbands. The equal refusal of an employer to grant maternity or parental leave upon the birth of a child will disproportionately hurt female workers, who, because of their greater biological role in the process of reproduction, will need more time out of the workplace than will men if they are to enjoy the same rights as men to be both workers and parents (Littleton 1987). The refusal of the state to extend the protection of social security to career homemakers treats women and men similarly but disproportionately harms women because women are disproportionately represented in the ranks of unpaid domestic labor.
At the professional level, tenure policies and partnership tracks, equally applied, hurt women more than men, because of the differing reproductive cycles of the two sexes. To take an extreme and only partly hypothetical example, a state that failed altogether to criminalize rape would on one level treat men and women similarly and thereby abide by the liberal mandate of equal treatment, but women would obviously be disproportionately harmed by such a regime. In all of these cases, the even-handed application of legal rules harms women because of the very real differences in women and men's economic, political, and social conditions.
Partly in response to the perceived theoretical and practical inadequacies of liberal feminist legal theory and partly as a response to work in other fields on the differences between men and women's psychological lives, a number of feminists in legal studies, sometimes called difference or cultural feminists, have sought to place at the center of inquiry not the many ways in which women and men are the same or similar but, rather the ways in which women and men are different. This focus on difference has in turn led to three promising areas of inquiry. First, difference feminists in legal studies have put forward a modified or quasi-liberal theory of equality sometimes called an acceptance theory (Littleton 1987). According to this view, the state's moral (and constitutional) obligation to treat citizens equally entails the state's obligation not only to provide equal treatment of the sexes wherever the sexes are similarly situated but also to provide different treatment wherever necessary to ensure an equal acceptance of differences, so that those differences, whatever their origin, do not cause women harm. Because women (but not men) get pregnant, bear children, and lactate, for example, the law must fashion rules of employment and civic engagement that will facilitate the acceptance of those differences in the public and economic spheres, whether or not that in turn requires different or similar treatment of the sexes in various legal regimes. Since women engage in more unpaid domestic labor, the liberal mandate of equality demands that family law, divorce law, and social security law should develop in ways that will render that difference harmless.
Other difference feminists have put forward a related critique of liberalism itself, sometimes called the "dependency critique" (Kittay 1999, Fineman 1995). The conception of human nature on which liberal norms of justice and equality (and the vast bodies of law they imply) typically rests is that citizens of a liberal polity should be treated as fundamentally independent and autonomous. But this conception of our nature is transparently and badly flawed: All human beings are dependent upon caregivers for their very lives for a good part of their early childhood and continue to require care throughout adolescence so as to become the autonomous citizens, independent entrepreneurs, moral agents, and free individuals so valued by various strands of liberalism and so vigorously protected by our fundamental, constitutional law. Further, all of us require care when we are elderly, likewise undercutting the dominant understanding of the independent individual at the heart of liberal theory. Almost all women and many men spend a very high percentage of their adult lives providing this care, in private and for no compensation when done within the family, or for very low wages when done through labor markets.
The disproportionately greater amount of care-giving labor done by women throughout history tends to be invisible within a liberalism that steadfastly insists on individual autonomy; hence, legal regimes that depend upon or aspire to those liberal values are often irrelevant or harmful to women and to the children and elders that depend upon them. The result in practical terms is often the impoverishment of women and dependents; the jurisprudential and philosophical result is a set of moral ideals for law and legal justice that badly undercuts the aspirations and needs of much of the world's populations (West 1996). A liberalism enriched with a feminist regard for the centrality of caregiving labor, for the moral and ethical perspectives such labor both demands and partly produces, and a fuller understanding of the dependencies and interdependencies of our social and biological lives would enhance women's well-being and the strength of both legal and political philosophy (McClain 1992).
Difference feminists have tried to explicate the distinctive harms women suffer that have little or no correlate in men's lives, on the assumption that by virtue of their difference, among other things, the harms that women suffer often go unnoticed as well as unaddressed (West 1996). Women suffer from sexual assault, sexual harassment, and sexual violence in greater numbers and in different ways than men do. Women suffer unwanted and nonconsensual pregnancies; men do not. Whatever the reason, women world-over are more engaged in childraising, and consequently are more harmed than men by the loss of children in custody disputes and are more vulnerable than men to the threat of such loss, which significantly weakens their economic bargaining position both in the family and at the point of divorce. If women are to enjoy legal protection against these and other gender-specific harms, the laws governing the social interactions that occasion these harms must be responsive to the existence and the different nature of the harms that women differentially and distinctively experience.
Radical feminist legal theory, sometimes called dominance feminism, is also an attempt to fashion a feminist theory of law that avoids the pitfalls of liberal feminist legal theory, but it does so in a different way. The central question for feminists working in law, according to radical feminist theorists, is not whether women and men are fundamentally alike or different but how the state might foster the greater empowerment of women. Women are unlike men in one significant respect: women as a group lack power (MacKinnon 1989). Liberal feminists are wrong to downplay or disregard that difference, and difference feminists are wrong to focus on any other differences. A focus on the differential treatment of women by the state, whether with the liberal feminists' aim of eradicating those differences, expanding upon them, as difference feminists wish, will be at best distracting. Disempowerment, not discrimination, and not difference, is the source of the problem, and patriarchy, not law, is the source of women's disempowerment. Law reflects patriarchal influences, but patriarchy also exists independent of law. Consequently, law can be and should be employed to end it.
Loosely reflecting the logic of critical legal scholars' Gramscian analysis of the relation of law and market capitalism, radical feminists have sought to highlight the nonlegal ways in which patriarchal power is created and reinforced in culture and then legitimated by legal rules and institutions. Women are disempowered, for example, by the violence done them through rape, sexual harassment, and street hassling as well as other forms of sexual assault. That disempowerment is then underscored through the distorting messages and the attacks on women's self-esteem occasioned by pornography, the culture of romance, and other societal influences, all of which aim to render that disempowerment in some sense voluntary and all of which render problematic the liberal feminist insistence on expanding individual autonomy as a means for improving women's well-being. Absent feminist intervention, the law's role in this process of disempowerment and cooptation is largely to legitimate those harms: The constitutional doctrine of privacy, laws governing and only partially regulating rape and domestic violence, and the constitutional protection accorded to even extremely damaging assaultive speech all trivialize or render invisible the harms women sustain and reinforce the tendencies that cause them. Law does not itself cause these harms, but it contributes to a culture that tolerates them.
There is, however, nothing necessary about the handmaidenlike role of law in sustaining patriarchy; it only reflects current distributions of sexual and gendered power. Arguably, all of these forms of patriarchal power, and certainly those employing violence, can and should be prohibited by law. The law legitimates a good bit of the disempowerment occasioned by rape by underregulating it, but that can be changed: Rape laws can be expanded, and enforcement of those laws strengthened; to do both would go a long way toward undermining patriarchy. The goal of radical feminist theory is to employ the law in precisely this utterly conventional way toward the unconventional goal of first prohibiting and then eradicating the violence that sustains a patriarchal cultural regime.
Finally, a number of feminists engaged in legal theory have sought to appropriate the tools of postmodern analysis to free liberal, difference, and radical feminist legal theory from the presumed dangers of their essentialist premises. Two distinct projects have emerged from this effort, one critical and one reconstructive. First, postmodernists have joined with African-American, lesbian, and other arguably marginalized feminist legal scholars in an attempt to criticize the consciously or unconsciously racist or heterosexist assumptions in feminist legal theory, thus laying the groundwork for the emergence of a feminist jurisprudence strengthened by its recognition of women's racial, sexual, ethnic, and cultural differences (Harris 1990). Critical-race feminist legal theorists have contributed the most to this project. Theoretical and empirical scholarship has accordingly shown the ways in which, for example, feminist writing on rape and rape law has failed to attend to the experiences of African American women, whose understanding of rape is informed by a history of the use of rape law as an instrument of terror by the white state and by rape as an instrument of terror by men. These critics also point to the ways in which feminist writing on difference, care, and caregiving has failed to attend to the extent to which African American women have provided such care to whites for no or little pay. Likewise, critical-race theorists and writers in the civil rights traditions fail to attend to the different experiences of women and men in communities of color: for example, the communal censoring of African American women who try to theorize or even describe experiences of domestic violence or sexual violence in communities of color. Feminist race scholars writing in law have urged the adoption of the perspective of persons at the "intersection" of various "axes of subordination" to best understand the ways in which these modes of social interaction injure those most vulnerable to multiple forms of marginalization (Crenshaw 1991).
Second, postmodernist feminists have joined with cultural critics and "queer theorists" from other disciplines in an attempt to highlight the ways in which perceived differences between the genders and between sexual orientations are themselves socially constructed rather than biologically mandated (J. Williams 1989, Halley 2002). The aim has been partly to free feminism from false and essentialist stories or metanarratives of women's disempowerment and partly to redirect feminist legal reforms. Postmodern feminists, for example, have been attempting to redirect the law of sexual harassment, largely a product of radical feminism theorizing, away from its current focus on sexuality and toward a more pluralistic understanding of the various harms, whether sexualized or not, that women and men suffer in the workplace (Shultz 1998). This is in part in response to the postmodern complaint that radical feminism and hence sexual harassment law have wrongly relied on a grand metanarrative of women's sexual disempowerment by men and in part a response to a concern that sexual-harassment law may encourage or rest on homophobic responses to what might be harmless socio-sexual gestures in workplaces (Halley 2002).
Both projects—the enrichment of traditional feminist theory with the perspectives of African American and other ethnic minority women, and the challenge to the narratives of female sexual disempowerment at the heart of sexual harassment law and radical feminism—both resonate with long-standing feminist (as well as postmodernist) goals: the first in its insistence on respecting and honoring the voices of outsiders, including those women who find themselves "outside" mainstream feminist discourse, and the second in its insistence on locating within culture, rather than nature, the causes of women's oppression and the key to ending it.
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Robin L. West (2005)