Ivana Radacic
I. What is Feminism and Feminist Jurisprudence?
There is no easy and single answer on what feminism is. Moreover, many modern
feminists believe that no single theory can account for all aspects of the domination
and oppression of women and some deny the usefulness of general theories, at least
the Grand Theory.1 For the purposes of exemplification, I use the description of
feminism as provided by Deborah Rhode: “At the substantive level, it implies a
commitment to equality between the sexes. At the methodological level, it implies a
commitment to gender as a focus of concern and to analytic approaches that reflect
women’s concrete experiences. Underlying these commitments are certain core values
of broader scope. Any ethical framework adequate to challenge gender subordination
must similarly condemn the other patterns of injustice with which it intersects.”2
I choose this definition because it comes closest to my vision of feminism, and
because it embraces all aspects of feminism: its goal- which some feminist theorists
define as equality between the sexes3 and other more specifically as rejection of
patriarchy and liberation of women; its focus of analysis- which some see as gender,4
1
Postmodernism feminism particularly rejects the idea of grand theorizing, which will be discussed
later. See, for example Carol Smart, Feminism and the Power of Law, New York: Routledge (1989).
Deborah L. Rhode, The “No Problem” Problem: Challenges and Cultural Change, 100 Yale L. J.
1731, 1735-6 (1991).
2
3
The meaning of equality has, however, been contested by feminist theorists, which I will discuss in
subsequent section where I analyse different feminist legal theories.
4
The notion of gender captures the ascribed, social nature of distinctions between women and men,
while sex refers to their biological characteristics.
1
and other more specifically as women5 (as devaluated gender identity); methodapproaches that reflect women’s experiences;6 and also broader ethical concerns about
any kind of oppression and injustices.7 This definition shows that feminism is goaloriented;8 it is not an abstract theory detached from practice. Feminist theory is
informed by practice; it is grounded in the experiences of different women ‘as
women.’ At the same time, feminist theory aims to effect and transform the
(oppressive) experiences of women.
Feminist jurisprudence likewise is not a single theory.9 Katherine Barlett defines it as
‘a family of different perspectives or frameworks used to analyse the actual, and the
Many feminist theories have doubted whether ‘women’ is an adequate analytical category,
considering that there is no single ‘woman identity’ and no single ‘woman’s experience.’ Some
scholars still believe that common experience of oppression and disadvantage on the basis of gender ,
as produced by patriarchy, in different women’s lives justifies using the category of ‘women,’ but warn
against essentialism. Others believe that it is strategically and practically important to retain the
category of women. Still others believe that appropriateness of the category may depend on the context
and goals at issue. The problems of essentialism will be discussed when introducing diversity and
postmodern feminist theorists.
5
Feminists have criticized the mainstream social sciences’ epistemology and methodology on the
grounds of being ‘male’ biased and on the grounds of reflecting distorted picture of social reality. They
have particularly attacked the ideas of ‘Truth,’ ‘universality,’ ‘objectivity,’ ‘neutrality,’ ‘abstract
reason.’ Although most feminists do not see any particular method as ‘the method, they sees
‘consciousness raising,’ ‘storytelling’ and asking a ‘woman question’ (what are gender implications of
rules and practices in question) as valued methods of exploring women experiences left out or
misrepresented by ‘mainstream’ epistemology. I will later discuss feminist methodology and attacks
on objectivity in more detail, especially as it concern legal methodology.
6
7
Feminist theorists and practitioners are thus not only interested in gender issues, but also in race,
class, sexual orientation etc., especially in how these categories intersect with gender. Many are also
interested in broader issues of justice, peace, post-colonialism etc.
8
Thus, feminism is explicitly political and does not claim to be neural. Moreover, feminists do not
believe that neutrality exists; rather, they see the construct as a veil behind which to hide the
perspective of powerful (white, middle-class, heterosexual male).
9
Feminist legal theory emerged at the last quarter of the 20th century, at the time when feminists
challenged other disciplines. Feminism is a part of a critical tradition of jurisprudence that connects to
Legal Realist and critical legal studies, as well as to an activist legal tradition grounded in the civil
rights movements. Feminist theory has also roots in 19 th century women’s movement.
2
desirable, relationship between law and gender.’10 Christine Littleton defines feminist
jurisprudence as including all ‘attempts to explain, critique, and change law on behalf
of, and from the perspective of, women.’11 While this definition contains a
problematic notion of essentialism, it points to feminist jurisprudence’s grounding in
women’s experiences, and its goal to transformation of law. Indeed, feminist legal
theory is practice oriented. Carol Smart sees feminist jurisprudence as Praxis
(borrowing the idea from Marx) –‘a combination of theory and practice, constructed
through the development of a methodology which ensures that the insights of theory
are reflected in the politics of action, and that the insights of practice are reflected in
theory construction.’12
Common to different definitions of feminist jurisprudence and to different feminist
legal theories is their focus on gender implications of legal rules and practices (in
particular how legal rules and practices affect women and how law reflects and
constructs gender identities), exposure and critique of patriarchal nature of substance
and methods of law, and goal of transforming both laws’ substance and methods in
accordance to feminist goal of rejection of patriarchy and liberation of women.
However, different theorists have not always had the same ideas on how the
transformation should look like and by what means to achieve it. While theorists of
liberal feminism thought that ‘adding women’ into legal consideration and treating
them equally as men could achieve the goals of liberation of women, nowadays,
Katherine T. Barlett, ‘Perspectives in Feminist Jurisprudence,’ in: Betty Taylor et al (eds), Feminist
Jurisprudence, Women and the Law: Critical Essays, Research Agenda and Bibliography, Littleton:
Rothman & Co (1999), pp. 3-21, at 3.
10
Christine A. Littleton, ‘Book Review; Feminist Jurisprudence: The Difference Method Makes,’ 41
Stanford Law Review 751 (1989), at 725.
11
12
Carol Smart, Feminism and the Power of Law, London: Routledge (1989), at 69.
3
feminist legal theorists go beyond sameness/difference debate and are also concerned
with transformation of legal logic, legal values, concept of justice.
Contemporary feminist theories reject the idea of law as a neutral system of regulation
and dispute resolution, and attack its concepts of ‘universalism,’ ‘objectivity,’
‘neutrality,’ ‘rationality.’ Like Legal Realist theorists, they believe that law cannot be
defined as a scientific enterprise devoid of moral or political context, independent of
social reality.
Feminists attack these legal concepts on many grounds. They (all) argue that legal
concepts of ‘impartiality’ and ‘objectivity’ are just viewpoints of dominant groups,
and therefore hide male bias: ‘if the sexes are unequal, and perspective participates in
situation, there is no ungendered reality or ungendered perspective.”13 MacKinnon has
in particular attacked objectivity and exposed its gendered nature: “Male dominance
is perhaps the most pervasive and tenacious system of power in history, … it is
metaphysically nearly perfect. Its point of view is the standard for point-ofviewlessness, its particularity the meaning if universality.”14 Similarly, Margaret
Davies has attacked ‘neutrality’ as ‘only a position which is culturally enabled to deny
its positionality- it is position which is empowered to know,’15 while Martha Minow
has criticized ‘impartiality’ as ‘the guise partiality takes to seal bias against
exposure.’16
13
Katherine A. MacKinnon, Method and Politics, in: Toward a Feminist Theory of the State,
Cambridge: Harvard University Press (1989), at 114.
14
Id.
15
Margaret Davies, Asking the Law Question, at 176-177.
Martha Minow, ‘Justice Engendered,’ in: Patricia Smith (ed), Feminist Jurisprudence, New York:
Oxford University Press (1993), pp. 217-244, at.
16
4
Mary Jane Mossman has criticized particular legal methods (process of defining
boundaries and delimiting legal from political issues, notion of relevance, and
selecting precedents) for their propensity to maintain the status quo and exclude new
perspectives.17 Martha Minow has criticized ‘unstated assumptions’ that US Supreme
court’s judges uses in deciding cases involving ‘difference.’18 She identified the
assumptions as: ‘difference is intrinsic, not relational; proceeding from an unstated
norm; the observer can see without the perspective; irrelevance of other perspectives,
the status quo is natural, uncoerced and good.’19 She has proposed that judges should
identify vantage points, learn how to adopt contrasting vantage points and to decide
which vantage points to embrace in a certain situation (rather than abdicating
responsibility by maintaining the status quo).
Many feminist theorists have also argued against values of these concepts and
methods, and have attacked the false dichotomy between ‘reason’ and ‘emotion,’
‘rationality’ and ‘irrationality,’ that law sees as given. They have seen the
‘objectiveness,’ ‘rationality,’ and emotional distance that judges are supposed to
inhabit not only as unattainable, but also as not to be aspired. For example, Lynne N.
Henderson has called for empathy in judicial reasoning, arguing that legality gives
judges a way to escape responsibility,20 and Carrie Menkel-Meadow has called for an
inclusion of ‘ethic of care’ in the judicial processes.21
Mary Jane Mossman, ‘Feminism and the Legal Method: The Difference it Makes’, 3 Australian
Journal of Law and Society 30 (1986).
17
Martha Minow, ‘Justice Engendered,’ in: Patricia Smith (ed), Feminist Jurisprudence, New York:
Oxford University Press (1993), pp. 217-244.
18
19
Id.
Lynne N. Henderson, ‘Legality and Empathy,’ in P. Smith (ed) Feminist Jurisprudence, New York:
Oxford University Press (1993), 244-282.
20
5
Postmodern feminists attack legal concepts of ‘objectivity’ and ‘neutrality’ as
unattainable and impossible. They claim that there is no objective ‘truth’ and that
every perspective, including those that claim objectivity, are socially situated and
produced. They also expose law’s discursive powers. Carol Smart, applying
Foucault’s theories of knowledge and power to legal arena, discusses how law
exercises power by claiming to ‘truth’ (and to possessing a method to establish the
‘truth’):
“Law sets itself above knowledges like psychology, sociology or common sense. It claims to have a
method to establish the truth of events. The main vehicle for this claim is the legal method…A more
‘public’ version of this claim, however, is the criminal trial which, through the adversial system, is
thought to be a secure basis for findings guilt and innocence…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… 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.”22
Not only does law thus disqualify alternative accounts of social reality- other
knowledge (like feminist) and experiences (of unprivileged women and minorities),
but it, by the force of its claim to ‘truth,’ authoritatively constructs the meaning of
social reality. Rather than proposing alternative legal strategies, Smart proposes
‘decentralizing’ law by thinking of non-legal strategies and discouraging a resort to
law.
Carrie Menkel-Meadow, ‘Portia in a Different Voice: Speculations on Women’s Lawyering Process,
in: Hilaire Barnett (ed) On Feminist Jurisprudence, London: Cavendish Publishing Limited (1997), pp.
194-196.
21
22
Carol Smart, Feminism and Power of Law, New York: Routledge (1989), at 10-11.
6
Mary Jo Frug similarly discusses the discursive power of law, analysing how law
ascribes constructs female body- namely, how law terrorizes, materializes and
sexualizes female bodies:
“Legal rules permit and sometimes mandate the terrorization of the female body. This occurs by a
combination of provisions that inadequately protect women against physical abuse and that encourage
women to seek refuge against insecurity….Legal rules permit and sometimes mandate the
maternalization of the female body. This occurs by provisions that reward women for singularly
assuming responsibilities after childbirth and with those that penalize conduct-such as sexuality or
labor market work-that conflicts with mothering…Legal rules permit and sometimes mandate the
sexualization of the female body. This occurs through provisions that criminalize individual sexual
conduct, such as rules against commercial sex (prostitution) or same-sex practices (homosexuality),
and also through rules that legitimate and supports institutions such as pornography, advertising, and
entertainment industries which eroticize the female body. Sexualization also occurs -paradoxically- in
the application of rules such as rape and sexual harassment laws that are designed to protect women
against sex-related injustices. These rules grant or deny women protection by interrogating their sexual
promiscuity.”23
She explains how legal discourse explains, rationalizes and renders authoritative these
meanings by an appeal to the ‘natural’ differences between the sexes, differences that
the rules themselves help to produce. Unlike Smart, she proposes legal reforms as a
strategy to deconstruct these meanings.
These critiques do not suggest the impossibility of legal processes and the abdication
of any rules, or their complete replacement by ‘better, feminist methodology.’
23
Mary Jo Frug, Postmodern Legal Feminism, New York: Routlage (1992), pp. 129-130.
7
However, they stress the fact that law and its methods are not neutral, 24 but politicalas is feminist legal theory and its methodology, which feminist do not try to hid, and
for which they are so often attacked. These critiques ask for the acknowledgment of
materiality of any perspective and readiness to be open to multiple perspectives. They
call for sensitivity to the context in legal processes and inclusion of excluded voices.
Feminists have also proposed some alternative methods, like consciousness raising25
asking a ‘woman question’26 and legal story telling27 as particularly suitable to elicit
women’s experiences. MacKinnon has seen consciousness raising as the feminist
methodology, believing that ‘through consciousness raising, women grasp the
collective reality of women’s condition from within perspective of that experience,
not from outside of it.’28 Most other feminists do not believe in a single method and
many have criticized MacKinnon on that account.29 They do not see the processes of
legal dispute resolution as the processes of establishing ‘truth,’ but rather as pragmatic
‘Method is not neutral; it established the criteria by which one judges the validity of conclusions, and
consequently carries with it not simply technical skills but deeper philosophical commitments and
implications’. Mary L. Shanley and Victoria Schuck, ‘In Search of Political Woman,’ Social Science
Quarterly 55, 1975, 632-644.
24
Consciousness raising first referred to the practice of women’s support groups where women were
talking about their experiences, which were extremely common in late 1960s and 1970s. MacKinnon
has mostly been responsible for its introduction as a method in legal arena.
25
‘Woman question’ means asking what gender implications of rules and practices which might
otherwise appear to be neural mean. It asks whether, why and how women have been omitted or
misrepresented in the legal rule or practice; whether, why and how legal rules and practice perpetuate
subordination of women, and how to change rules and practices so to include women’s experiences and
not to perpetuate women’s subordination. See Katherine Barlett, ‘Feminist Legal Method’, in: Hilaire
Bareltt (ed), Sourcebook on Feminist Jurisprudence.
26
27
Legal story-telling is a method of telling the story of the outsiders in and outside the courts. See
Regina Grwycar and Jenny Morgan, The Hidden Gender of Law, 2nd edition, Sydney: Federation
Press, 2002, chapter four, pp. 74-76.
Katherine A. MacKinnon, ‘Consciousness Raising,’ in: Toward a Feminist Theory of the State,
Cambridge: Harvard University Press (1989), pp. 83-106.
28
Anne Bottomley, Susie Gibson and Belind Meteyard, ‘Dwrokin; which Dworkin? Taking Feminism
Seriously’ 14 Journal of Law and Society 47 (1987).
29
8
solutions of issues at questions, that involve the political choices, and which should
therefore acknowledge the politics of the perspective that claims to be neutral; and be
open to different perspectives.
II. Feminist Legal Theories
As the women’s movements revived in the 1960s and 1970s, inspired by the black
rights movement, several waves of feminist legal theory emerged that can be loosely
characterized as liberal theory, cultural theory, dominance theory and postmodern
theory.
1. Liberal Feminism
General view of the liberal feminists is that subordination of women is caused by
social and legal barriers that block or preclude their access to public sphere of politics
and economics. Liberal feminists demand that liberals follow their own principles of
universal human rights and equality and demand equal treatment of women and men,
insisting that women are fundamentally similar to men. These theorists argue for law
to be gender blind- that there should be no restrictions or special assistance on the
grounds of gender.
Although now mostly outdated (as a theory, but not completely as a legal strategy),
liberal feminists’ insistence on equal treatment has made significant gains to women
in the 1960s and 1970s- it had gotten them access to employment, education and
politics. However, while equal treatment strategy proved relatively successful in
9
challenging explicitly discriminatory laws and ‘unreasonable classifications,’30 the
tactic was less successful in challenging laws where different treatment was justified
on the basis of purportedly ‘real’ differences. The rule in difficult to apply in the cases
where there is no man as a comparison point- such as in the cases of pregnancy,31 and
also in relation to problems that mostly women face, like domestic and sexual
violence.
More fundamental problem is the theories’ embracement of ‘male’ standard. Liberal
feminists have not challenged legal concepts nor have they sought transformation of
law, they only asked for its gender-neutrality. However, if laws reflect only (or
mostly) male experiences, making laws gender-neutral does not help women much; it
least helps those most disadvantaged women whose life experiences least resemble
men’s. Moreover, equal treatment of socially unequal individuals does not result in
‘real’ equality and in many cases only exaggerate the disparities.32 As MacKinnon has
argued, under gender-neutral rule, men in effect ‘get preferred because society
An example of ‘unreasonable classification’ that this rule has attacked was a rule that men are to
have preference as estate administrators, as in the US Supreme Court case Reed v. Reed.
30
31
Liberal feminists argue that even in the cases of pregnancy women do not need a special treatment.
They analogize pregnancy to other disabilities, and call for its accommodation on the same grounds as
other disabilities, being afraid that treating pregnancy specially would produce stigmatization of
women. However, in my opinion, it seems that by analogizing pregnancy to other disabilities, liberal
feminists themselves stigmatize this ‘ability.’ Debate between liberal and cultural feminists in relation
to pregnancy benefits is specific for the US. See, Herma Hill Kay, ‘Equality and Difference: The Case
of Pregnancy,’ in P. Smith (ed), Feminist Jurisprudence, New York: Oxford University Press 91993),
pp. 27-47.
32
It was soon also realized that equal treatment could bring men even more benefits. As soon as a
standard was embraced in law, men had start using it to challenge laws and practices that gave
preference to women, such as custody and divorce rules- which has mostly resulted in exasperating
women’s disadvantage.
10
advantages them before they get into account, and law is prohibited from taking that
preference into account because that would mean taking gender into account’.33
2. Cultural Feminism
Cultural feminism (relational feminism/ ‘different voice’ feminism) reverses the focus
of liberal feminism- it is concerned with women’s differences from men. It argues that
important task for feminism is not to assimilate women into patriarchy, and prove that
women are similar to men and can function like men and meet male norms, but to
change institutions to reflect and accommodate values that they see as women’snurturing virtues, such as love, empathy, patience and concern.
This strand of feminism can be traced to Carol Gilligan’s research on moral
development of young girls and boys. In her book In a Different Voice, Carol Gilligan
hypnotizes that men and women typically undergo a different moral development.34
She finds that male respondents typically respond to the moral problems with an
‘ethic of justice,’ while her female respondents typically respond with an ‘ethic of
care.’ ‘Ethic of justice’ involves abstracting the moral problems from the
interpersonal relationship and balancing of rights in hierarchical fashion, while the
‘ethic of care’ represents a relational and contextual approach to moral problems,
which values empathy and relationship. Gilligan argues for recognizing the values of
both voices, and in particular for not devaluating the ‘ethic of care.’
Catherine A. MacKinnon, ‘Difference and Dominance: On Sex discrimination’ in: Feminism
Unmodified: Discourse on Life and Law, Cambridge: Harvard University Press, pp. 32-36, at 35.
33
Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development, Cambridge:
Harvard University Press.
34
11
Feminist legal scholars were quick to apply different voice feminism to legal topics.
The resemblance between the ‘ethic of justice’ and dominant legal discourse made
Gilligan’s methodology a useful tool to critique the law and to suggest alternative
solutions. One of the most important and very controversial examples of cultural
feminist arguments in law was Robin West’s article Jurisprudence and Gender.35 In
this article, West claimed that whole modern jurisprudence (liberal and critical) was
‘masculine’ (because it proceeded from a ‘separation thesis’- the belief that individual
was first and foremost materially separate and apart from individuals, which, she
claimed was not true for women who were materially connected to other individuals,
through critical experiences, notably pregnancy and heterosexual penetration) and
pleaded for greater volume of feminist scholarship grounded in women’s subjective
experience. She was widely criticized for tracing the origins of sexual differences to
biology, and for her focus on intercourse and pregnancy, and essentialist notion of
women as (heterosexual) mother.36
Other examples of using ideas of a ‘different voice’ in legal discourses include Judith
Resnik’s questioning of the abstract ideas of impartiality and detachment of judges,37
35
Robin West, ‘Jurisprudence and Gender,’ 55 U. Chi. L. Rev 1 (1988).
Black feminists and lesbian feminists in particular have charged West of ‘gender imperialism’. See
Angela P. Harris, ‘Race and Essentialism in Feminist Legal Theory,’ 42 Stan. L. Rev. 581 (1990) and
Patricia A. Cain, ‘Feminist Jurisprudence: Grounding the Theories,’ 4 Berkley Women’s L.J. 191
(1989-90).
36
Judith Resnik, ‘On the Bias: Feminist Reconsideration of the Aspirations for Our Judges,’ in: Betty
Taylor, Sharon Rush & Robert J. Munro (eds), Feminist Jurisprudence, Women and the Law: Critical
Essays, Research Agenda, and Bibliography, Littleton: Rothman & Co. (1999), pp. 539-599.
37
12
Leslie Bedner’s revaluation of tort law,38 Kin Kniports’ revising of evidentiary
privileges,39 Carrie Menkel-Meadow’s proposals of reforming of legal processes.40
Cultural feminism has invoked a lot of criticism from different feminist scholars. The
most recurring criticism was that the portrait of women painted by cultural feminism
too closely resembled the 19th century stereotyped portrait of woman as naturally
emotional, domestic and nurturing, and that it slides comfortably with sociobiologism.41 Joan Williams has, for example, critiqued cultural feminists for
‘providing a respectable academic language in which to dignify traditional
stereotypes.’42 MacKinnon has questioned the authenticity of a woman’s voice in
conditions of male domination,43 and warned against celebrating difference: ‘For
women to affirm difference, where difference means dominance, as it does with
gender, means to affirm the qualities and characteristics of powerlessness.’44
The dangers of cultural feminism to which critics pointed to – possibility of
transforming differences seen as a value to differences which perpetuate bias and
discrimination- can be seen in practice, in for example, labour laws that preclude
different types of woman’s work on the grounds of the need to protect them, or in
38
Leslie Bender, ‘A Lawyer’s Primer on Feminist Theory and Tort, 38 J. Legal Educ. 3 (1988).
39
Kit Kniports, ‘Evidence Engendered,’ 1991 U. of Ill. L. Rev. 413 (1991).
Carrie Menkel-Meadow, ‘Portia in a Different Voice: Speculations on Women’s Lawyering Process,
in: Hilaire Barnett (ed) On Feminist Jurisprudence, London: Cavendish Publishing Limited (1997), pp.
194-196.
40
41
Carol Smart, Feminism and the Power of Law (1989).
Joan Williams, ‘Deconstructing Gender, in: Hilaire Barnett (ed) Sourcebook on Feminist
Jurisprudence, London: Cavendish Publishing Limited (1997), pp. 268-275.
42
Catherine A. MacKinnon, ‘Difference and Dominance: On Sex discrimination’ in: Feminism
Unmodified: Discourse on Life and Law, Cambridge: Harvard University Press, pp. 32-36, at 45.
43
44
Id at 39.
13
legal reasoning which justifies ‘unequal treatment’ on the basis of women’s inherent
differences even when that means perpetrating women’s subordinate position.45
3. Radical Feminism (Dominance Feminism)
Radical feminism does not see the issue of gender equality as an issue of difference
and sameness but rather as issues of domination of women by men. The author of
‘dominance approach’ is Catherine MacKinnon, probably the most influential legal
feminist of contemporary area. MacKinnon criticises both liberal and cultural
feminism and Aristotelian formula of equality that they invoke (‘treat likes alike, and
unlikes unlike’).46 She claims that both standards (which she calls ‘difference’
approach) embrace ‘maleness’ as a norm:
‘Concealed is the substantive way in which man has become the measure of all things. Under the
sameness standard, women are measured according to our correspondence with man, our equality
judged by our proximity to his measure. Under the difference standard, we are measured according to
our lack of correspondence with him, our womanhood judged by our distance from his measure…
Approaching sex discrimination in this way- as if sex questions are difference questions and equality
questions are sameness questions- provides two ways for the law to hold women to male standard and
call that sex equality.’47
45
For example, Croatian Labour Law prohibits the night work of women in industry and night work of
women under ground, under water or in mines, because of their ‘specific physio-psychological
characteristics.’ The case which exemplifies dangers of cultural feminism, in which arguments of
cultural feminists were used (which portrayed women as less aggressive, less risk taking etc) to justify
the denying women jobs as commission sales representative is US case EEOC v. Sears, Roebuck & Co.
She also explains how this formula is ill-suited in the issues of gender discrimination, as ‘gender is
socially constructed as difference epistemologically’, saying, ‘A built-in tension exists between the
concept of equality, which presupposes sameness, and this concept of sex, which presupposes
difference.’ Catherine A. MacKinnon, ‘Difference and Dominance: On Sex discrimination’ in:
Feminism Unmodified : Discourse on Life and Law, Cambridge: Harvard University Press, pp. 32-36,
at 33.
46
47
She however, also recognizes some of the values that approaches have: securing access to women to
everything they were excluded, while also valuing what they were allowed to become or what they
have developed.
14
She sees equality question not as a question of sameness, but as a question of
distribution of power, and gender question not as a question of difference but as
question of male supremacy and female subordination. Her ‘dominance approach’ is
therefore not concerned with the Aristotelian formula of formal equality; rather its test
is whether laws and practices in question perpetuate subordination of women. As
such, it aims at ‘substantive equality.’
The dominance approach centres on most sex-differential abuses of women- namely
violence against women (she specifically focuses on sexual harassment48, rape,49
domestic violence against women and children, prostitution, pornography50), that
liberal and cultural feminism could not confront by its standards. MacKinnon sees
appropriation of women’s sexuality by man as central instrument of male dominance.
Her theory of sexuality has been widely attacked as one dimensional, as was her
representation of women (almost exclusively) as victims. Lesbian feminists in
particular warned feminist not to base their positions on the experiences of
heterosexual women alone.51
48
MacKinon is responsible for making sexual harassment recognized as a legal category.
She attacked the element of ‘consent’ (which has traditionally been evaluated from the point of view
of rapist rather than form woman’s point of view) as an instrument of male dominance in law.
49
50
MacKinon saw pornography as one of the central means of social construction of sexuality and
therefore of men’s domination over women. Together with Andrea Dworkin she drafted antipornography ordinances in Minneapolis and Indianapolis, which were ultimately rules out as
unconstitutional. Many feminists were not persuaded by this view of pornography, claiming that sex
and sexual fantasy might be experienced as liberating for some women, and feared that censorship
might prove worse for women, and they actively objected to this censorship. Lesbian feminists in
particular warned feminist not to base their positions on the experiences of heterosexual women alone.
Patricia A. Cain, Feminist Jurisprudence: Grounding the Theories, 4 Berkley Women’s L.J. 191
(1989-1990)
51
15
While her view of sexuality as an instrument of male dominance might have been
over-exaggerated, I think that her connection between sexuality and gender inequality
is justified, and that present social construction of sexuality does reflect and at the
same time help maintain gender inequality. Gender inequality is, among other things,
dependent on men’s control over women’s sexuality, and law plays significant role in
maintaining gender inequality through its regulation of women’s sexuality.
Many feminists have been exploring the connection between sexuality, gender and
law. As noted above, Mary Jo Frug has discussed how legal control of women’s
sexuality construct meaning of their bodies and their gender identities,52 and Carol
Smart has shown rape laws and rape cases construct meaning of heterosexual
intercourse and women’s sexuality.53 Lesbian feminist have in particular analysed the
role of ‘heterosexism’ – ‘pervasive cultural presumption and prescription of
heterosexual relationships’ in construction of gender and maintaining gender
inequality.’54
4. Postmodern Feminism
Postmodern feminism does not represent a single theory. Moreover, postmodern
feminists do not believe in a single theory or a single ‘truth,’ and are particularly
opposed to creation of any ‘Grand Theory.’ Often following Derrida, many
postmodern feminist use techniques of deconstruction to expose internal
contradictions of apparently coherent system of thoughts. This has been a useful
52
Mary Jo Frug, Postmodern Legal Feminism (1992).
53
Carol Smart, Feminism and the Power of Law (1989)
54
Sylvia A. Law. Homosexuality and the Social Meaning of Gender, Wis. L. Rev 187, (1988), at 195.
16
method of debunking patriarchal structures of law. Other postmodern feminists,
following Lacan, are interested in reinterpreting traditional Freudian psychoanalysis,
with all its implications for biological determinism and subordination of women.
Postmodern feminist oppose any essentialism and deny that categorical, abstract
theories derived through reason and assumptions about human nature can serve as the
foundation of knowledge. Postmodern feminists also reject dominant view of a (legal)
subject as autonomous, rational, self-interested, and free-willed individual. Rather, as
Katherine Barlett writes, they see individual as ‘”constituted” from multiple
institutional and ideological forces that, in various ways, overlap, intersect and even
contradict each-other.’55
They also see the dichotomy of victim and oppressor a false one (as any other
dichotomy). For example, Patricia Williams has explored the instability of personal
identity by reflecting on her own complex personal identity in which one part of
herself dispossesses the other.56 Mary Jo Frug57 and Carol Smart58 have stressed the
importance of language-in particular legal discourse- in the construction of both
personal identity and power in the society. This postmodern view of self accords with
the view of diversity stage theorists.
Postmodern feminists do not offer single solution to the oppression of women, first
because they don’t believe there is a single solution to anything, and second, because
55
Katherine T. Barlett, Gender Law, 1 Duke J. of Gender l. & Pol’y 1 (1994), at 14.
56
Patricia Williams, The Alchemy of Race and Rights: Diary of a Law Professor.
57
Mary Jo Frug, Postmodern Legal Feminism.
58
Carol Smart, Feminism and the Power of Law.
17
they to propose the solution would suggest that all women’s experiences are alike and
that women’s oppression is unitary thing. They believe that attacking oppression of
women requires contextual judgment that recognize and accommodate the
particularity of human experience.
The main objection to postmodern feminism, particularly to those views associated
with deconstruction, has been that it tends to be better in destroying theories than
building them, which many see as not useful to feminism in a long run. Also, as
postmodern feminist are highly sceptical to the category of ‘women’ as a basis of
grounding theory or political action, many feminists have attacked postmodern
feminists as precluding political action and reaching the goal of ending women’s
oppression.
5. Diversity Stage
A second thread in the development of feminist legal theory emerged in the late 20th
with a critique of essentialism in existing theories; namely, their ‘false universalism,’
whereby the use of the unstated norm of the most privileged group of womennamely, white, middle class, heterosexual women- has the effect of eclipsing
nonpriviliged groups of woman; and ‘gender imperialism’ which accords too much
weight to gender oppression, minimizing the impacts of oppression based on race,
class or sexual orientation.59
59
See Katherine Barlet, Gender Law, 1 Duke J. of Gender L. & Pol’y 1 (1994).
18
The critiques started with Black feminists exposing race essentialism in feminist
theories and lack of gender consciousness in critical race theories. Kimberle
Crenshaw criticized ‘false universality’ in the standard feminist analysis of separate
sphere ideology,60 and Angela Harris criticized gender essentialism in the theories of
MacKinnon and West.61 Crenshaw, transposing work of Elisabeth Spelman to the
legal arena, has created a theory of intersectionally, which would explicitly recognize
distinctive harms sometimes experienced by women of colour and acknowledge the
interlocking nature of the two systems of oppression.62 Mary Masuda has developed a
theory of ‘multiple consciousness’- the ability to approach the world simultaneously
from several different vantage point,’63 and Martha Minow has developed a relational
approach to differences.64
At the same time, as lesbian and gay jurisprudence emerged, lesbian feminists started
criticizing heterosexual assumptions in feminist theories and lack of awareness of
gender in gay and lesbian theories. For example, Patricia Cain has criticized
heterosexist structure of West’s Jurisprudence and Gender article, and MacKinnon’s
theory of sexuality’s false universalisation.65
Kimberle Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique
of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics,’ 1989 U. of Chi. Legal Forum
139.
60
61
Angela Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581 (1990).
Kimberle Crenshaw, ‘Race, Gender and Sexual Harassment,’ 65 Cal. L. Rev. 1467 (1992). Her
critique had practical implications for US antidiscrimination law.
62
Mari J. Matsuda, ‘When the First Quail Calls: Multiple Consciousness as Jurisprudential Method’
11Women’s Rts. L. Rep. 7 (1992).
63
64
Martha Minow, Making all the Difference: Inclusion, Exclusion and American Law (1990). She has
argued that differences should be seen relational rather than intrinsic, and that instead of objectivity we
should look at different perspectives, especially at perspectives of those mostly affected.
Patricia A. Cain, ‘Feminist Jurisprudence: Grounding the Theories,’ 4 Berkley Women’s L.J. 191
(1989-90).
65
19
Finally, with increasing globalization and growth of human rights discourses,
American dominance in feminist theory and colonial thinking started to be
challenged. ‘Third World’ feminists have been particularly critical of Western
feminist theories and their dominance in feminist thinking.66
III. Do the multiplicity of feminist theories and their disagreement on main
issues and legal strategies render (legal) feminism and its goals problematic?
I tend to agree with posmodern feminists that no single theory can account for all
forms of oppression and experiences of different women. I also don’t think that any
legal strategy should be seen as the strategy that could be implied in every situation of
gender discrimination and gender inequality. Human experience is a way too
complicated to be accounted for by a single theory or its injustices to be remedied by
a single solution. Moreover, theories and actions that claim to ‘truth’ tend to be
oppressive toward different accounts of human experiences, and I see this tendency as
anti-ethical to feminism.
However, I don’t see this fact as too problematic (or inherent to feminism). I agree
with Patricia Smith who claims:
“We don’t need a final unified vision of society and gender to argue against oppression, disadvantage,
domination, and discrimination. We do not need to know beforehand the nature of good society or ideal
person so long as we know what prevents a society from being minimally good or prevents individual
from realizing the basic potentials of personhood. We do not need an ultimate vision when we have not
yet met threshold conditions for minimally just society. The commitment to foster open dialogue that
66
See Hilary Charlesworth and Christine Chinkin, Boundaries of International law: A Feminist
Analysis, at 46-48.
20
allows the expression of diverse views and gives particular attention to eliciting views not usually
heard is a unifying thread among feminists that attempt and represent the commonality of fundamental
values without misrepresenting the plurality of experience.”67
follow the proceedings or analyze their transcripts.
67
Patricia Smith, Introduction: Feminist Jurisprudence and the Nature of Law, in: P. Smith 9ed)
Feminist Jurisprudence (1993), at 8.
21