WOMEN, ECOLOGY AND THE LAW
In every known society, the male’s need for achievement can be recognised. Men may cook, or weave,
or dress dolls or hunt hummingbirds, but if such activities are appropriate occupations of men, then
the whole society, men and women alike, votes them as important. When the same occupations are
performed by women, they are regarded as less important.
Margaret Mead, Male and Female
The treatment of environmental issues by traditional law and legal theory is not gender
neutral. Examining this notion, this essay considers how feminist jurisprudence may
further contribute to influencing the legal traditions that validate our current exploitative
relationship with our environment. By reference to a growing literature on ecofeminism I
have made observations and suggestions as to how I see feminist jurisprudence may
provide an enhanced critique of the manner in which the law validates our present
exploitative demeanour. Premised on the belief that a continuation of our contemporary
relationship with ecological systems is likely to increase scarcity and competition for
resources, and thus exacerbate existing inequalities, I believe the legal advances achieved
to date by feminist jurisprudence may become threatened by cultures experiencing
increasing stress.
Given the enormous task society has in addressing legal inequalities between genders, it is
perhaps unsurprising that the areas of women, the law, and the environment appear not
to have crossed into the other two disciplines respectively. Whilst a growing ecofeminist
movement is establishing a literature dealing with human exploitation of women under a
male hegemony legitimised through ‘legalised means’, and the developing area of
environmental law has increasingly challenged the role of ‘man’s dominion over the
Earth’, there doesn’t appear to be any appreciable bridge so far formed between the two
areas of legal critique. This is a pity, as the manner in which men as the dominant group
within societies have interacted with other entities within their environment, be they
women, the underprivileged or the non-human world, has largely followed a pattern of
arrogant diffidence to the needs of the other. If, as Catherine MacKinnon suggests,
feminist epistemology views the mind and world as interpenetrated1, by bridging the
connection between the way we interact with our environment and the incorporation of
inequality into our legal framework, I think the influence of feminist jurisprudence may
facilitate and encourage reform of environmental and other law that will have far
reaching benefits.
Achieving equality within the Enlightenment tradition appears to have consumed so
much of feminist legal theorist’s energy for reform, that they appear to have taken little
opportunity to establish a critique of women as part of the human species that seeks to
1
MacKinnon, C., Toward a Feminist Theory of State, Harvard University Press, 1989 98.
dominate and exploit the biosphere. In a crude sense, I describe this as replacing male
domination over women and nature, by male and female domination over nature. Whilst
many people would argue that human culture and intelligence afford us that opportunity,
and some might say ‘right’, the increasing degradation of the biosphere suggests this is a
power relationship that will not continue indefinitely.
The desire of ‘mankind’ to subdue and control nature has prefaced the modernity project,
and continues as a strong theme in contemporary jurisprudence. Rather than seeking to
‘set the record straight’, I believe feminist aspirations concerning ecology and law are
more likely to be realised by challenging the nature of legal theory itself. Building on
Foucault’s notion that truth itself has become a means by which a variety of regimes have
been able to assert themselves, I believe feminist desires will be more valuably expressed
through honest concerns about domination and exclusion2, rather than being constrained
by arguing within the existing framework of rational ‘proof’ and truth seeking.
Employing the consciousness raising tradition that Catherine MacKinnon considers
distinguishes feminism3, I believe feminist jurisprudence has an opportunity to establish a
critique of the male dominated notions of exploitation and domination that influence the
way legal theory and practice relates to the environment. Whilst I agree with Carol
Smart’s criticism of MacKinnon’s proposition that radical feminism as such, represents an
ultimate truth4, given the complex nature of the issues I have sought to consider and the
surprising lack of material dealing with the relationships between women, ecology and
the law, it is both beyond my ability and desire to announce any such notions as superior
or more insightful than those of other theorists.
THE LEGITIMATION OF DOMINATION BY MEN
Feminism turns theory into itself, the pursuit of a true analysis of social life, into the pursuit of
consciousness, and turns an analysis of inequality into a critical embrace of its own determinants. The
process is transformative as well as perceptive, since thought and thing are inextricable and
reciprocally constitutive of women’s oppression, just as the state is coercion and the state as
legitimating ideology are indistinguishable, and for the same reasons.
Catherine MacKinnon, Toward a Feminist Theory of State, 84.
Western political philosophy implies a model of universal human nature and experience,
with the universal imposition of the Enlightenment idea of modernisation seen as an
improvement typically proffered by the West to developing countries. Traditional views
of the state as the guarantor of welfare has meant that movements by women to attain the
same opportunities to engage in the activities of the state as men have provided a basic
source of division and definition in political society.5 Human interaction with the
2
3
4
5
Rothfield, P., ‘Jurisprudence and Feminism: Displacing the Analytic Mise-En-Scene’ (1991) Law in Context, 92.
MacKinnon, C., Towards a Feminist Theory of State, Harvard University Press, 1989 98.
Smart, C., Feminism and the Power of Law, Routledge, 1989 70.
Grant, R., and Newland, K., 1991, Gender and International Relations, Open University Press, 93.
Women, Ecology and the Law / David Risstrom / Page 2
biosphere has typically been subjugated to the hegemony of ‘man’s dominion over the
Earth’, with women and the biosphere treated by the law as man’s chattels, whereby the
facility provided by each in turn was viewed as a contribution towards what Francis
Bacon described as the “relief of the inconveniences of man’s estate.”6 Given the
enormous burden that reform measures have placed on feminists wishing to redress the
inequalities and injustices foisted upon them by the men who dominate the legal
bureaucracy that coercively guide our lives, it appears there has been relatively little
attention focussed within legal theory concerning the interaction of women, ecology and
the law.
In this essay I wish to consider the suggestion by Gilligan that women have a unique
degree of access to potential nurturing roles, and contrast it with the view of Catherine
MacKinnon who focuses on women’s experiences and views for guiding a critique of legal
reasoning.7 I also wish to explore the notion that as the application of formal justice
principles within law reinforce discrimination and substantive inequality, the overcoming
or at least recognition of the alienation that persists in the isolation of suburban women
(and men) who, even though they may live in materially rich conditions, suffer
exploitation through marriage, parenthood, psychiatry and consumerism.8
LAW AND THE ENVIRONMENT
For environment a traditional lawyer reads property. Establish ownership or possession and the
armoury of the English legal cupboard is yours to command.
The Challenge of the Environment in English Law - the New Dimension, 59.
Legal consideration of the natural environment has been very unsophisticated. Common
law treatment of ecological interaction is typified by a utilitarian ethic such as that
espoused in Property Law which gives the environment a value according to its utility.
The case of Rylands v Fletcher9 which considered the implications of careless ‘management’
of resources deemed to be under one party’s control affecting another party, simply
limited the extent of its implications to the damage and inconvenience it brought human
habitants. Environmental law has not enjoyed acceptance as a legitimate classification of
legal concern10, in much the same way that women’s concerns about formal and
substantive inequalities have seen the resistance of the legal profession as a whole to
incorporate feminist legal theory critique. Whilst environmental law is by no means a
6
7
8
9
10
Leiss, W., The Limits to Satisfaction: An Essay on the Problem of Needs and Commodities, University of Toronto, 1976
37.
Lacey, N., ‘Feminist Legal Theory’ (1989) Oxford Journal of Legal Studies, Vol. 9, 392.
MacKinnon, C., Towards a Feminist Theory of State, Harvard University Press, 1989 98.
Rylands v Fletcher (1868) LR 3 HL 330.
Grinlinton, D., ‘The “Environmental Era” and the Emergence of “Environmental Law” in Australia - A Survey of
Environmental Legislation and Litigation 1967-1987” (1990) Environmental and Planning Law Journal, Vol. 7, 76.
Women, Ecology and the Law / David Risstrom / Page 3
new area of legal concern11, it has only recently gained greater credence as an interdisciplinary area of significance in its own right, and although the growth in
environmental law reflects an increasingly growing area of legal concern, issues of
environmental law continue to meet the same issues of establishing ‘legitimacy’ that
feminist legal theory has experienced in its own development. The connection between
the two is not simply coincidental.
Our legal framework has been constructed on a partial account of the world. Australian
legal theory and practice have developed within a society that has constructed the social
categories of ‘man’ and ‘woman’ as unequal, with the legal process having been an
integral part of both the construction and maintenance of this inequality. As utilitarian
views expressed in legislation, land use planning and management policies have
dominated traditional evaluation methods of economic and environmental impact,
assessments of the consequences of our activity have typically failed to reflect ecological
values.12 As law tends to assume in a self proclaimed fashion its role as the
‘administrator’ of the environment, similar issues arise as for women facing subjugation
as the ‘other’ in the way patriarchal social networks have assumed the control of women’s
lives. The notion of social ecology, associated strongly with the thoughts of Murray
Bookchin, and the growing voices of ecofeminists such as Ariel Salleh and Carol
Merchant, question and challenge these processes in calling for a greater social
involvement in addressing power inequalities realised in the representation of interests in
the way we conduct our activities.
FEMINISM AND ECOLOGY
“We have got to the stage where women are finally saying ‘the emperor has got no clothes’. You can’t
whitewash women any more. Our arguments are too sophisticated and have gone way beyond what
are ordinarily considered feminist issues.”
Peggy Antrobus, speaking at the Global Forum, Rio de Janiero, June 1992.13
Feminist debate of ecological issues tends to agree that important connections exist
between women’s oppression and the oppression of nature14, but they often disagree
about the nature of those connections and whether those connections may be “potentially
liberating or simply a rationale for the continued subjugation of women.” 15 Therefore,
whilst many feminists agree that ecology is a feminist issue, there is disagreement about
the nature and desirability of environmental feminism, of which the best known
11
12
13
14
15
Fisher, D., ‘An Overview of Environmental Law in Australia’ (1978) Ecology Law Review, Berkeley Law School,
Vol. 5, 47.
Boer, B., ‘Social Ecology and Environmental Law’ (1984) Environmental and Planning Law Journal, Vol. 9, No. 2,
233.
Peggy Antrobus, 29/6/1992, speaking at the Global Forum, Rio de Janiero, June 1992, cited in Women’s new
world order in summit Truth Tent, The Age Newspaper, Melbourne: The Age.
Warren, K., ‘Feminism and Ecology: Making Connections’ (1987) Environmental Ethics, Vol. 9, 4.
King, Y., ‘Feminism and the Revolt of Nature’ (1981) Heresies #13: Feminism and Ecology, Vol. 4, 12.
Women, Ecology and the Law / David Risstrom / Page 4
perspective is ecofeminism, as a legitimate form of critique.16 The underlying thesis of
ecofeminism is that irrespective of our awareness of it, each of us operates from a socially
constructed conceptual framework which shape, reflect and explain our self perception
and worldview, whilst a patriarchal conceptual framework is one that takes traditionally
male-identified beliefs, values, attitudes and assumptions as the only, or the standard or
superior ones. This gives those notions supporting patriarchy higher status to entities
traditionally identified as male than to what have been traditionally identified as female. 17
The relatively recently articulated notions of ecofeminism, derived mainly from a fusion
of radical cultural feminism and ecological environmentalism add a vital element to the
construction of an understanding of how patriarchal systems of domination have both
evolved and been reinforced through the legal mechanisms we subscribe to.
Ecofeminists generally believe that patriarchal value-hierarchical thinking supports the
generation of normative dualisms, where higher value is attributed to one entity over
another. The connections between oppression of women and oppression of nature are
therefore conceptual, and what ecofeminism encourages us to do is to think about the
ways we construct our lives and to think ourselves out of “patriarchal conceptual traps.” 18
Patriarchal conceptual frameworks, characterised by value-hierarchical thinking, typically
lead to a logic of domination that explain, justify and maintain the subordination of an
‘inferior’ group by a ‘superior’ group, whilst denying that oppression is accompanied by
this regime.19 This blindness to the presence of domination is reflected in ‘official’
perspectives on the traditional role of women and their interactions with their
environment, such as the 1992 United Nations Conference on the Environment and
Development. Whilst women compose 53% of the world’s population, but carry out an
estimated 65% of the world’s work for 10% of the world’s pay 20, the continued ‘official’
blindness of large legal bureaucratic organisations such as the U.N. to the role women
seems to only exacerbate the widespread misconception that men continue to ‘manage’
the Earth. Although the role of women in environmental management is frequently
appreciated locally, recognition that women’s contributions were equal, if not greater in
value to men, only really emerged in the late 1980’s21, and as I infer, is yet to be
meaningfully reflected in policy.
16
17
18
19
20
21
Taylor, S., ‘Women and Environments’ (1989) Changing Directions: The Proceedings of Ecopolitics IV, University of
Adelaide, 603.
Warren, K., op cit., 6.
Gray, D., Green Paradise Lost, Roundtable Press, 1981 16.
Id., 20.
Salleh, A, Paper: Second Thoughts of Rethinking Ecofeminist Politics, Australian National University, 1991 4.
Brown, V., and Switzer, M., Paper: Where Have All The Women Gone? The Role of Gender in Sustainable Development,
Centre for Resource and Environmental Studies, 1991 2.
Women, Ecology and the Law / David Risstrom / Page 5
ECOFEMINIST CRITIQUES OF FEMINISM LEGAL THEORY FRAMEWORKS
Politics traditionally is about domination, of one ideology over another. Ecofeminism is about ending
domination - social, economic, racial, environmental and sexual. Ecofeminists don’t want to reform,
they want to change the very rules by which society operates.
Virginia Westbury, Ecofeminising Australia, 90.
Ecofeminist critiques of how instruments of coercion such as the law oppress both women
and nature centre around four elements.22 These are i) that there are important
connections between the oppression of women and the oppression of nature; ii) that
understanding the nature of these connections is necessary to an adequate understanding
of the oppression of both women and nature; iii) that feminist theory and practice must
include an ecological perspective; and iv) that solutions to ecological problems must
include a feminist perspective.
Whilst feminists agree that the oppression of women exists, is wrong and ought to be
overcome, the foundations for their beliefs and the strategies they employ for overcoming
these sometimes differ widely. Although feminist streams of thought are categorised
under the headings of, inter alia, liberal feminism, radical feminism, cultural feminism and
Marxist and socialist feminism, more recent scholarly work such as that by Carol Gilligan
suggest that “these conceptual straitjackets now conceal more than they reveal.”23 In
order to show that feminist legal theory is not a static thesis unsympathetic to
reconceptualisation, in reviewing the development of feminist legal thought I have
provided a brief consideration of each of these categories in relation to ecological thought.
Employing Ngaire Naffine’s analysis, I conclude by suggesting that an increased legal and
community awareness of ecological issues may precipitate the evolution of a fourth phase
of feminist legal theory which melds the notions of ecofeminism and feminist
jurisprudence in a more concrete fashion.
LIBERAL FEMINISM
Liberal feminism maintains the belief that gender equality is achievable within a liberal
framework, and is premised on the assumption that past and present inequalities have
developed mainly through male prejudice. As the oppression of women is based on the
lack of equal legal rights and unfair disadvantages in the legal domain, the liberation of
women requires the elimination of those legal and social constraints that baulk self
determination. Founded on the assumption that people are essentially separate rational
agents, liberal feminist epistemology sees the attainment of knowledge as an individual
project that can achieve equality through a value-neutral intersubjectively verifiable
development of universalisable rules.24
22
23
24
Warren, K., ‘Feminism and Ecology: Making Connections’ (1987) Environmental Ethics, Vol. 9, 4.
Smart, C., ‘Law’s Power, the Sexed Body and Feminist Discourse’ (1990) Journal of Law and Society 194.
Warren, K., op cit., 9.
Women, Ecology and the Law / David Risstrom / Page 6
As a framework for understanding the complexity of issues involved in environmental
issues, liberal feminist epistemology is limited. A major shortcoming of liberal feminism
is that it’s premises tend to rest upon notions of equal rights and equal opportunities for
women, and possess an implied demarcation line delineating humans from nonhumans
alongside claims to moral consideration of both groups on the alleged rights or interests
of solely humans. This means that liberal feminists who articulate a stance on ecological
issues such as protection of endangered species, animal experimentation, and anti-nuclear
and peace movements amongst others, tend to be grounded in the notion of the rights,
interests of present or future human populations.25 A second implication is that moral
consideration extended to qualified nonhumans, as rational sentient interest carriers,
deserve moral consideration. This theme surfaces frequently in debates over animal
liberation, fitting roughly under two umbrellas. Firstly, those typified by the rights based
theory of Tom Regan which postulates that nonhuman animals have moral rights against
humans who have obligations to treat them in particular ways26, and secondly, the
utilitarian based version of proponents such as Peter Singer who see human obligations to
nonhuman entities as based in the belief that failure to acknowledge in theory and
practice the likelihood that these nonhuman entities feel pleasure and pain is an
undesirable expression of ‘speciesism’ analogous to, inter alia, sexism.27
Kathyrn Pyne Addelson, in criticising the liberal feminist ethical tradition, argues that
biases in our worldview such as these “allow moral problems to be defined from the top
of various hierarchies of authority in such a way that the existence of authority is
concealed, and so the existence of alternative definitions that might challenge that
authority and radically change our social organisation is also concealed.”28 Continued
subscription to a patriarchal conceptual framework based on value-hierarchical thought
and oppositional normative dualisms within liberal feminism and the extreme
individualism it embodies tend to conflict with the holistic interconnected frameworks
typifying ecofeminist perception of human involvement in the biosphere. Suggesting that
this conceptual framework will require a revolutionary change in ethics to remedy,
Addelson says as liberal feminist ethical tradition makes the assumption that defining
moral problems from the top of the hierarchy is the ‘official’, ‘correct’ or ‘legitimate’ point
of view29, it fails to recognise that “dominant-subordinate social structures are the creators
of inequality.”30
25
26
27
28
29
30
Warren, K., ‘Feminism and Ecology: Making Connections’ (1987) Environmental Ethics, Vol. 9, 9.
Regan, T., All That Dwell Therein: Essays on Animal Rights and Environmental Ethics, University of California Press,
1982.
Singer, P., Animal Liberation, Random House, 1975.
Addelson, K., ‘Moral Revolution’ in Women and Nature, Harper and Row, 1978 306.
Id. 307.
Ibid.
Women, Ecology and the Law / David Risstrom / Page 7
CULTURAL FEMINISM
Cultural feminism is a broad category of jurisprudence that has in large evolved from a
belief that legal systems have traditionally been fashioned by men in their own image. 31
Ecofeminist critiques of hierarchical rights and rules-based ethical models can be seen
reflected in the work of Carol Gilligan comparing individualised rights oriented ethics
with the interconnected and contextual ethics of care and reciprocal responsibility, such as
is outlined in the well known story of Amy and Jake.32 In contrast to Catharine
MacKinnon who disputes the notion of a female ethical style as the “convenient artefact of
men”33, Carol Gilligan thesis of In a Different Voice is that male and female legal and
ethical styles have developed from the socialisation of different groups of people in
different ways.34 Gilligan argues that the different ethical orientations she identifies
between men and women reflect important differences in moral reasoning.35 For
MacKinnon, gender is not a question of difference but one of dominance propagated by a
system of law that “sees and treats women the way men see and treat women.” 36 The
parallel in MacKinnon’s dominance theory between men as the people occupying the
dominant power positions in society oppressing women, and the dominance of the nonhuman world by the human world is a clear example of the operation of the substantive
inequality that liberal democratic theory so often fails to adequately address.
RADICAL FEMINISM
Radical feminism sees women’s oppression as being founded in a patriarchal system
which oppresses women in sex-specific ways by defining them as having either the
primary functions of bearing or raising children, or to satisfy male sexual desires. As the
oppression of women is based on male control of women’s fertility and women’s
sexuality, radical feminists believe that patriarchy must be dismantled to end male control
of women’s bodies.37 Typically subscribing to the notion that ‘the person is political’,
radical feminist epistemology seeks to explore and implement strategies such as
consciousness raising to correct the imbalances wrought by patriarchal ideology. 38
Perhaps providing the most attention to ecological issues of the varieties of feminism
described here, some radical feminists such as Mary Daly and Susan Griffin claim that
women are closer to nature than males. This is neither a belief I subscribe to nor one
accepted universally by radical feminists. The shortcomings I see in radical feminism’s
31
32
33
34
35
36
37
38
Bottomley, S., Law in Context, Federation Press, 1991 257.
Gilligan, C., In A Different Voice, Harvard University Press, 1982 25-32.
Naffine, N., ‘Law and the Sexes’, cited in Bottomley, S., Law in Context, Federation Press, 1991 262.
Gilligan, C., op cit., 1982.
Warren, K., ‘Feminism and Ecology: Making Connections’ (1987) Environmental Ethics, Vol. 9, 9.
MacKinnon, C., ‘Feminism, Marxism, Method and the State: Towards a Feminist Jurisprudence’ (1983) Signs 534.
Jaggar, A., Feminist Politics and Human Nature, Rowman and Allanheld, 1983 266.
Warren, K., op cit., 14.
Women, Ecology and the Law / David Risstrom / Page 8
treatment of ecological issues is its lack of theoretical construction of a framework that
succinctly explains oppression of women and nature. Furthermore, radical feminism’s
tendency to use essentialism to mystify women’s experiences as being closer to nature
than men’s reinforces the dualist notion of patriarchy that women and men are separate
and irreconcilable categories.
SOCIALIST AND MARXIST FEMINISMS
Socialist and Marxist feminists view society as being based on two antagonistic classes
based on gender. As the sexual division of labour formalises women’s oppression by
excluding women from the public realm of production, liberation of women requires the
abolition of the traditional family as the economic unit. As Engels said, “The first
condition of the liberation of the wife is to bring the whole female sex into public
industry.”39 Praxis, in contrast to liberal feminist reliance on thought and reason is seen
as the key to overcoming the inequities in class societies.
Marxist feminists epistemology is based on the premise that humans exist in a dialectical
relationship with each other, according to the realities espoused by the precepts of historic
materialism which implies that “all forms of knowledge are historically determined by the
prevailing mode of production.”40 Whilst there is an ongoing debate as to the ecological
credentials of Marxist interpretations, it is important for feminist legal theorists wishing to
overcome these inherent conflict to not allow a substitution of domination of man over
woman and nature for the domination of man and woman over nature.
Socialist feminism considers an expanded Marxist notion of praxis and production to
encompass procreation and child bearing, arguing that economic and sex-gender systems
are dialectically reinforced in historically specific ways.41 Both Marxist and socialist
feminists recognise that whilst nonhuman nature is the material basis for providing
sustenance through the transformation of nature through science and technology, a
continuation of the male-dominated mechanistic treatment of nature as passive must be
stopped.42 Socialist feminism extends this to the desire that the socially constructed
categories of ‘women’ and ‘men’ will disappear.43
THE EVOLUTION OF FEMINIST JURISPRUDENCE
39
40
41
42
43
Engels, F., The Origin of the Family, Private Property and the State, International Publishers, 1972 137.
Jaggar, A., Feminist Politics and Human Nature, Rowman and Allanheld, 1983 358.
Id., 124.
Merchant, C., Ecological Revolution: Nature, Gender and Science in New England, University of North Carolina Press,
1989 270.
Jaggar, A., op cit., 132.
Women, Ecology and the Law / David Risstrom / Page 9
Ngaire Naffine in Law and the Sexes44 has chronologically outlined three phases of feminist
legal thought. Corresponding very loosely as First Phase being typified by liberal
feminism, Second Phase by radical and cultural feminism, and Third Phase by socialist
and marxist feminism, Naffine’s thesis describes an evolution away from acceptance of a
traditional male framework of domination and popular subservience towards a greater
emancipation of women. Taking the most recent developments in feminist jurisprudence
as a priority, I wish to concentrate here on what Ngaire Naffine describes as Third Phase
feminism.
Third Phase feminism accepts the possibility that law is both biased and male oriented,
whilst in contrast to Second Phase feminism, rejects the notion that such inequities arise in
a coordinated or uniform fashion. Using the work of Carol Gilligan, Ann Scales believes
that boys and girls are raised to interact with the social world in different ways, and in
doing so develop different styles of moral reasoning. My schema for explaining the
manner in which patriarchal, exploitative and dominating ethics values are likely to be
accumulated is best described by Michel Foucault. In Discipline and Punishment 45 and The
History of Sexuality 46, Foucault challenged earlier Grand Theory propositions of control
and overt coercion of people with the notion that the propagation of norms through
society has a very persuasive effect on its members. In describing the judges of normality
as being everywhere47, Foucault’s ideas ally closely with what is described as third phase
feminism.
Carol Smart’s notion that male bias is not an overt conspiracy has a strong parallel with
those people and groups seeking to change the views of the law and society in its
interactions with the environment. In arguing that the law intervenes most directly in our
personal lives, Smart says that we must engage with the law to challenge its patriarchal
relations. As women have been posited in a subordinate role within the traditional
nuclear family, non-human concerns and likewise the concerns of those who tend to be
most closely connected with the health of the environment have allowed patriarchal
‘leaders’ to guide the modernity project to its current dilemma. It so happens that the mix
of biological intimacy arising from birth and the socialisation of women as nurturers has
meant that those people most often concerned appear to be women. Just as in Smart’s
analysis of Family Law she suggests that the paramount principle of the welfare of the
child has “driven a wedge into the old legal stronghold”48 if feminist legal theorists
choose to do so, they may extend this analysis and action to mould a jurisprudence that
44
45
46
47
48
Naffine, N., 1990, Law and the Sexes, Sydney: Allen and Unwin.
Foucault, M., Discipline and Punishment: The Birth of the Prison, Penguin, 1977.
Foucault, M., The History of Sexuality, Pantheon, 1980.
Foucault, 1977, op cit., 304.
Smart, C., The Ties That Bind: Law, Marriage and the Reproduction of Patriarchal Relations, Routledge, 1984 238.
Women, Ecology and the Law / David Risstrom / Page 10
incorporates an enlarged humanitarian concern for the environmental systems which help
sustain our life.
ECOFEMINIST LEGAL THEORY AS A FOURTH PHASE IN FEMINIST JURISPRUDENCE?
Carolyn Merchant’s most recent work Ecological Revolutions49, in considering the role of
nature, gender and science in society suggest to me that feminist legal theory may
increasingly involve itself more directly and closely with issues of ecological concern.
Merchant’s examination of the historical development of New England outlines how the
notion of unexploited land as being ‘waste’ was applied and reinforced by a legal-political
system dominated by males. Examining the development of law by using a study of
American law carried out by Horwitz50, Merchant shows how the instrumentalist
conception of law removed much of women’s common law rights to develop property,
leaving the benefit from any increased value with men.51
Expanding her thesis, Merchant believes that capitalist relations of production and
patriarchal relations of reproduction supporting mechanistic consciousness must give way
to new socioeconomic forms, new gender relationships, and an ecological ethic.
Suggesting that such a global ecological revolution may have already begun, the vital role
that feminist legal theory and practice may provide in reducing the domination ethic
embodied in ‘male-constructed’ law is obvious.
Ann Scales has examined the presence of gender oppression which militaristic
worldviews tend to impose. Believing that “we can’t overcome gender oppression
without demilitarizing ourselves and our world”52, Scales cites the 1981 Greenham
Common Women’s Peace Camp and the movement it promoted as “a successful story of
contemporary feminist history-making.”53 While I want to avoid an arrogance in
suggesting that feminist legal theory to date has been inadequate in addressing issues
concerning women, the environment and law, I do believe the further exploration of
themes of legally created and sanctified domination of the environment provide a
necessary and worthwhile development for feminist jurisprudence to pursue.
WOMEN’S INVOLVEMENT IN REGULATION OF INTERACTION WITH THE ENVIRONMENT
49
50
51
52
53
Merchant, C., Ecological Revolution: Nature, Gender and Science in New England, University of North Carolina Press,
1989.
Horwitz, M., The Transformation of American Law: 1780-1860, Harvard University Press, 1977.
Merchant, C., op cit., 244.
Scales, A., ‘Militarism, Male Dominance and Law: Feminist Jurisprudence as Oxymoron? (1989) Harvard
Women’s Law Journal, Vol. 12, 28.
Id., 29.
Women, Ecology and the Law / David Risstrom / Page 11
Despite their poor representation within formal policy and decision-making structures, women’s
concern for the environment has empowered women in Australia, as in other countries, to take action.
Office of the Status of Women, June 1992, Women and the Environment, 3.
Given the recent evolution and interdisciplinary nature of environmental law, information
concerning women’s direct involvement in advocacy seems to be non-existent. Whilst the
role of women as ‘nurturers’ tends to allow women to be stereotyped as having motherly
qualities associated with caring, I think this is largely a misconception of both the
potential and actual experience of women. Assuming arguments that biological
differences between women and men make women less disposed to formal engagement in
the demands of regulation, such as argued in Re Goodell 54 have little, if any, substance to
them as I believe, it is interesting to see how women have been involved in other areas of
regulation.
Val Brown and Margaret Switzer’s extensive gender analysis of the Australian
Government’s Ecological Sustainable Development (ESD) process55, made a number of
interesting observations. Premised on their observation that women’s positions in society
typically differ from men, Brown and Switzer looked at the gender blindness applicable to
the role of sustainable development as a concept for environmental management. Noting
that almost all gender analysis concerning human relationships with the environment
have to date been undertaken in developing countries, these typically found that where
women’s activities and interests were ignored, environmental degradation was reported
as having increased.56 Switzer and Brown suggest that having received the same training
as men, women working in professional fields have often failed to notice the missing
observations of gender difference.57 This suggests that one of the major advances to be
made in overcoming gender blindness within legal practice is not only in overcoming
those areas identified as exhibiting bias, but by applying efforts to illuminate those areas
not yet widely recognised as having such a bias. Switzer and Brown conclude that the
contributions of women in the area of environmental management and sustainable
development are both “major” and “unrecognised”, and that whilst “women’s skills of
practical solutions, seeing issues as a whole and of conflict management are becoming
emphasised in environmental management programs … women, however, are unlikely to
be present to help develop the male level of expertise in these areas.”58
54
55
56
57
58
Re Goodell (1875) 39 Wisc 232.
Brown, V., and Switzer, M., Paper: Where Have All The Women Gone? The Role of Gender in Sustainable Development,
Centre for Resource and Environmental Studies, 1991.
Id., 2.
Id., 30.
Ibid.
Women, Ecology and the Law / David Risstrom / Page 12
IN CONCLUSION
“…feminism demonstrates that radical legal critique requires self-reflective attention to one’s own
perspective and to the perspective of the marginalised other. It is not that “thinking makes it so”, but that
thinking without attention to perspective can make it seem so. Our perspectives are overdetermined and
constrained by sexuality, race, class, ideology, and historical structure. But, through attentive and
empathetic communication with those who are situated differently from ourselves, we can think our way
into perspective, and that is half the battle in a world where justice is blind. It is in the perspective of the
other that we begin to see ourselves.”
David Cole, Getting There: Reflections on Trashing from Feminist Jurisprudence and Critical Theory, 90.59
My belief is that whilst many people in Australian society possess an intimate
understanding of how we as humans interact with our environment, the likelihood that
these differences have arisen from socialisation means this outlook need not be
exclusively available to women in the future. If those people socialised as males grasp the
opportunities that feminist jurisprudence provide in reducing the estrangement that their
‘objective rationalist’ world imposes upon them as legal actors, the law and society in
general would very likely advance in their appreciation of their social and environmental
setting, and in a synergistic fashion, so likely would our interactions with the
environment.
I think it is important to stress again that my desire to more closely link the notions of
feminist legal theory and environmental concerns is not to suggest that women
intrinsically possess biological predisposition towards these issues. They may do, but my
instinct suggests this is not so. For me, it is rather that feminist legal theory is a valid filter
for critiquing the way in which traditional legal theory and our traditional modes of
interacting with our laws have led us towards a situation that potentially threaten gains
our culture has already made, if not our survival as we know it. The road to social change
begins with mutual respect and ends with the conditions that make mutual respect
possible.60 As for any movement concerned with equality and substantive justice, and in
the tradition of the struggle for equality already begun, I believe feminist legal theory will
likely experience a compromise in its ideals if whilst, being aware of the impropriety
implicit in our exploitation of the environment, it becomes divorced from an intimate
concern for the plight of other sentient beings.
Though severe social and environmental stresses already exist within most modern
Western societies, the extent to which they currently impinge on aspirations for equity
between different groups, whether they be based on gender, race or otherwise may be
approaching insignificance in comparison to the challenge we are likely face if extreme
widespread environmental stress occurs. The history of struggle for women’s equality
suggests that the likelihood of recognition by legal theorists and practitioners of the
59
60
David Cole, Getting There: Reflections on Trashing from Feminist Jurisprudence and Critical Theory, (1985) Harvard
Women’s Law Journal, Vol. 8, 90.
Id., 91.
Women, Ecology and the Law / David Risstrom / Page 13
validity of nonhuman interests will remain long and arduous. Nevertheless, the parlous
state of our current relationship with our ecology indicates that an inability to respond to
this may threaten the future of the environment we rely upon and the cultural advances it
has so far afforded us. Both women and men.
Women, Ecology and the Law / David Risstrom / Page 14
BIBLIOGRAPHY
Addelson, K., 1978, ‘Moral Revolution’ in Women and Nature, New York: Harper and Row.
Andreen, W., 1992, ‘The Evolving Law of Environmental Protection in the United States:
1970-1991’ in Environmental and Planning Law Journal, Vol. 9, No. 2, NSW: Law Book
Company.
Antrobus, P., June 1992, Women’s new world order in summit Truth Tent: The Age
Newspaper: Melbourne: The Age.
Atkins, S., and Hoggett, B., 1984, Women and the Law, Oxford: Basil Blackwell.
Bates, G., 1987, Environmental Law in Australia, 2nd. Edn., Sydney: Butterworths.
Biehl, J., 1991, Rethinking Ecofeminist Politics, Boston: South End Press.
Boer, B., 1984, ‘Social Ecology and Environmental Law’ in Environmental and Planning Law
Journal, Vol. 9, No. 2, NSW: Law Book Company.
Bottomley, S., 1991, Law In Context, Sydney: Federation Press.
Boyden, S., 1987, Western Civilisation in Biological Perspective, Oxford: Clarendon Press.
Brown, V., and Switzer, M., 1991, Seminar: Where have all the women gone? The role of gender
in sustainable development, Canberra: Australian National University.
Çagatay, N., Grown, C., and Santiago, A., 1986, ‘The Nairobi Women’s Conference:
Toward a Global Feminism’ in Feminist Studies, Vol 12, No. 2, College Park, Md.: Feminist
Studies Inc.
Caldicott, H., 1986, Missile Envy: The Arms Race and Nuclear War, Toronto: Bantam Books.
Campbell, J., 1990, Paper: The Moral Imperatives of Man’s Future Evolution, Los Angeles:
University of California.
Cohn, C., 1987, “Sex and Death in the Rational World of Defence Intellectuals’ in Journal of
Women, Culture and Society, Vol. 12, No. 4, Chicago: University of Chicago.
Cole, D., 1985, ‘Getting There: Reflections on Trashing From Feminist Jurisprudence and
Critical Theory’ in Harvard Women’s Law Review, Vol 8, Cambridge: Harvard Law School.
Cotterrell, R., 1989, The Politics of Jurisprudence, Sydney: Butterworths.
Davis, D., 1986, ‘Ecosophy: The Seduction of Sophia’ in Environmental Ethics, Vol. 8,
Albuquerque: University of New Mexico
Davis, F., 1991, Moving the Mountain: The Women’s Movement in America since 1960, New
York: Simon and Schuster.
Women, Ecology and the Law / David Risstrom / Page 15
Davis, Y., and Anthias, F., (eds.)1989, Woman - State - Nation, Hampshire: MacMillan.
Edwards, S., 1981, Female Sexuality and the Law, Oxford: Martin Robertson.
Elshtain, J., 1982, ‘On Beautiful Souls, Just Warriors and Feminist Consciousness’ in
Women’s Studies International Forum, Oxford: Pergamon Press.
Engels, F., 1972, The Origin of the Family, Private Property and the State, New York:
International Publishers.
Enloe, C., 1990, ‘The Gulf Crisis: Making Feminist Sense of It’ in Pacific Research, Canberra:
Peace Research Centre.
Fisher, D., 1978, ‘An Overview of Environmental Law in Australia’ in Ecology Law Review,
California: Berkeley Law School.
Foucault, M., 1977, Discipline and Punishment: The Birth of the Prison, London: Penguin.
Foucault, M., 1980, The History of Sexuality, New York: Pantheon.
Frazer, E., Hornsby, J., and Lovibond, S., (eds.), 1992, Ethics: A Feminist Reader, Oxford:
Basil Blackwell.
Gilligan, C., 1982, In A Different Voice, Cambridge: Harvard University Press.
Gorz, A., 1974, Ecology as Politics, Boston: South End Press.
Grant, R., and Newland, K., 1991, Gender and International Relations, London: Open
University Press.
Gray, D., 1981, Green Paradise Lost, Massachusetts: Roundtable Press.
Gray, D., 1982, Patriarchy as a Conceptual Trap, Massachusetts: Roundtable Press.
Graycar, R., and Morgan, J., 1990, The Hidden Gender of Law, NSW: The Federation Press.
Grinlinton, D., 1990, ‘The “Environmental Era” and the Emergence of “Environmental
Law” in Australia - A Survey of Environmental Legislation and Litigation 1967-1987’ in
the Environmental and Planning Law Journal, Vol. 7, NSW: Law Book Company.
Halliday, F., 1991, ‘Hidden from International Relations: Women and the International
Arena’ in Gender and International Relations, London: Open University Press.
Halliday, F., 1991, ‘International Relations: Is There a New Agenda?’ in Millenium, Vol 20,
No. 1, London: London School of Economics.
Horwitz, M., 1977, The Transformation of American Law: 1780-1860, Cambridge: Harvard
University Press.
Women, Ecology and the Law / David Risstrom / Page 16
Hughes, I., 1992, In Press, The Western Idea of Progress: The Myth that Prevents Sustainability,
Canberra: Centre for Resource and Environmental Studies.
Hutton, D., (ed.), 1987, Green Politics in Australia, Sydney: Angus and Robertson.
Jacobs, M., 1991, The Green Economy: Sustainable Development and the Politics of the Future,
London: Pluto Press.
Jaggar, A., 1983, Feminist Politics and Human Nature, New Jersey: Rowman and Allanheld.
King, Y., 1981, ‘Feminism and the Revolt of Nature’ in Heresies #13: Feminism and Ecology,
Vol. 4, New York: Harper and Row.
Klein, R., (ed.), Radical Voices: A Decade of Feminist Resistance, Oxford: Pergamon Press.
Lacey, N., 1989, ‘Feminist Legal Theory’ in Oxford Journal of Legal Studies, Vol. 9, Oxford:
Oxford University Press.
Leiss, W., 1976, The Limits to Satisfaction: An Essay on the Problem of Needs and Commodities,
Toronto: University of Toronto.
MacKinnon, C., 1983, ‘Feminism, Marxism, Method and the State: Towards a Feminist
Jurisprudence’ in Signs, Chicago: University of Chicago.
MacKinnon, C., 1989, Toward a Feminist Theory of the State, Cambridge: Harvard University
Press.
MacKinolty, J., and Radi, H., 1979, In Pursuit of Justice: Australian Women and the Law,
Sydney: Hale and Ironmonger.
McMillan, C., 1982, Women, Reason and Nature: Some Philosophical Problems with Feminism,
New Jersey: Princeton.
Merchant, C., 1983, The Death of Nature: Women, Ecology and the Scientific Revolution, New
York: Harper and Row.
Merchant, C., 1989, Ecological Revolutions: Nature, Gender, and Science in New England,
Chapel Hill: University of North Carolina Press.
Midgley, M., and Hughes, J., 1983, Women’s Choices: Philosophical problems facing feminism,
New York: St. Martin’s Press.
Mobbs, M., 15/3/1991, ‘A growing tangle of environmental laws’ in Australian Financial
Review, Sydney: Sydney Morning Herald.
Moi, T., 1990, Feminist Theory and Simone de Beauvoir, Oxford: Basil Blackwell.
Women, Ecology and the Law / David Risstrom / Page 17
Mossman, M., 1985, ‘“Otherness” and the Law School: A Comment on Teaching Gender
Equality’ in Canadian Journal of Women and the Law, Vol 1., No. 1, Quebec: University of
Windsor.
Murphy, P., 1988, ‘Sex-Typing the Planet: Gaia Imagery and the Problem of Subverting
Patriarchy’ in Environmental Ethics, Vol. 10, Albuquerque: University of New Mexico
Naffine, N., 1990, Law and the Sexes, Sydney: Allen and Unwin.
Office of the Status of Women, June 1992, Women and the Environment: A Statement prepared
by the Office of the Status of Women for the United Nations Conference on the Environment,
Canberra: Australian Government Publishing Service.
Pateman, C., and Gross, E., 1986, Feminist Challenges: Social and Political Theory, Sydney:
Allen and Unwin.
Pritchard, M., and Robison, W., 1981, ‘Justice and the Treatment of Animals: A Critique of
Rawls’ in Environmental Ethics, Vol. 3, Albuquerque: University of New Mexico.
Regan, T., 1982, All That Dwell Therein: Essays on Animal Rights and Environmental Ethics,
Berkeley: University of California Press
Rosaldo, M., and Lamphere, L., 1974, Woman, Culture and Society, California: Stanford
University Press.
Rothfield, P., 1991, ‘Jurisprudence and Feminism: Displacing the Analytic Mise-En-Scene’
in Law in Context, Bundoora: La Trobe University Press.
Salleh, A., 1984, ‘Deeper that Deep Ecology: The Eco-Feminist Connection’ in
Environmental Ethics, Vol. 6, Albuquerque: University of New Mexico.
Salleh, A., 1991, Seminar: Second Thoughts on Rethinking Ecofeminist Politics: a dialectical
critique, Canberra: Australian National University.
Scales, A., 1989, ‘Militarism, Male Dominance and Law: Feminist Jurisprudence as
Oxymoron?’ in Harvard Women’s Law Journal, Vol. 12, Cambridge: Harvard Law School.
Scarman, L., 1974, English Law; the New Dimension, London: Stevens.
Schwenk, D., 1990, ‘Book Review: Toward a Feminist Theory of State’ in Women’s Rights
Law Reporter, Vol. 12, No. 3, Newark: Rutgers School of Law.
Sexton, M., and Maher, L., 1982, The Legal Mystique: The Role of Lawyers in Australian
Society, Sydney: Angus and Robertson.
Shirlow, M., Dover, S., and Boyden, S., 1990, Our Biosphere Under Threat: Ecological Realities
and Australia’s Opportunities, Oxford: Clarendon.
Women, Ecology and the Law / David Risstrom / Page 18
Singer, B., 1988, ‘An Extension of Rawls’ Theory of Justice to Environmental Ethics’ in
Environmental Ethics, Vol. 9, Albuquerque: University of New Mexico
Singer, P., 1975, Animal Liberation, New York: Random House.
Smart, C., 1990, ‘Law’s Power, the Sexed Body and Feminist Discourse’ in Journal of Law
and Society, Oxford: Basil Blackwell.
Smart, C., and Smart, B., 1978, Women, Sexuality and Social Control, London: Routledge.
Smart, C., 1984, The Ties That Bind: Law, Marriage and the Reproduction of Patriarchal
Relations, London: Routledge.
Smart, C., 1989, Feminism and the Power of Law, London: Routledge.
Taylor, S., 1989, ‘Women and Environments’ in Changing Directions: The Proceedings of
Ecopolitics IV, Adelaide: University of Adelaide Graduate Centre for Environmental
Studies.
Ward, B., 1976, The Home of Man, London: Andre Deusch.
Warren, K., 1987, ‘Feminism and Ecology: Making Connections’ in Environmental Ethics,
Vol. 9, Albuquerque: University of New Mexico
Westbury, V., 2/7/1991, ‘Ecofeminising Australia’ in The Bulletin, Sydney: Australian
Consolidated Press.
White, L., 1975, ‘The Historical Roots of our Ecological Crisis’ in Notes for the Future,
Oxford: Oxford University Press.
Young, J., 1991, Sustaining the Earth, Sydney: NSW University Press.
Zimmerman, M., ‘Feminism, Deep Ecology, and Environmental Ethics’ in Environmental
Ethics, Vol. 9, Albuquerque: University of New Mexico.
Women, Ecology and the Law / David Risstrom / Page 19
MacKinnon describes the pursuit of a true analysis of social life as becoming the pursuit of
consciousness.
Warren defines ecofeminism as being based on the four following claims that; 1/ there are
important connections between the oppression of women and the oppression of nature;
2/ understanding the nature of these connections is necessary to an adequate
understanding of the oppression of women and the oppression of nature; 3/ feminist
theory and practice must include an ecological perspective, and 4/ solutions to ecological
problems must include a feminist perspective.
By concentrating on the gulf between traditional perceptions of objectivity and the
substantive inequities propounded by legal instruments, I wish to show both how women
are often subjugated by the law to be less than equal. I then, and to consider how the
contributions of feminist legal theory may improve our interactions with our
environment.
The degree of inequality expressed within human society and between humans and other
elements of the biosphere Environmental degradation is strongly influenced by t.
By examining the manner in which the law has viewed issues relating to the environment
I wish to challenge claims of traditional law and legal theory to objectivity and neutrality
in its interactions both amongst the human species and between human and non-human
elements.
While I am not calling for a ‘religious’ ethic that reifies inorganic entities, I am alluding to
the important observation that human endeavour is highly dependent on the health of the
biosphere that supports us.
Women, Ecology and the Law / David Risstrom / Page 20