workings of the law from perspectives which foreground the
implications of the law for women and women's lives. This study
includes law as a theoretical enterprise as well its practical and
concrete effects in women's lives. Further, it includes law as an
academic discipline, and thus incorporates concerns regarding pedagogy
and the influence of teachers. On all these levels, feminist scholars,
lawyers, and activists raise questions about the meaning and the
impact of law on women's lives. Feminist jurisprudence seeks to
analyze and redress more traditional legal theory and practice. It
focuses on the ways in which law has been structured (sometimes
unwittingly) that deny the experiences and needs of women. Feminist
jurisprudence claims that patriarchy (the system of interconnected
relations and institutions that oppress women) infuses the legal
system and all its workings, and that this is an unacceptable state of
affairs. Consequently, feminist jurisprudence is not politically
neutral, but a normative approach, as expressed by philosopher
Patricia Smith: "[F]eminist jurisprudence challenges basic legal
categories and concepts rather than analyzing them as given. Feminist
jurisprudence asks what is implied in traditional categories,
distinctions, or concepts and rejects them if they imply the
subordination of women. In this sense, feminist jurisprudence is
normative and claims that traditional jurisprudence and law are
implicitly normative as well" (Smith 1993, p. 10). Feminist
jurisprudence sees the workings of law as thoroughly permeated by
political and moral judgments about the worth of women and how women
should be treated. These judgments are not commensurate with women's
understandings of themselves, nor even with traditional liberal
conceptions of (moral and legal) equality and fairness.
Although feminist jurisprudence revolves around a number of questions
and features a diversity of focus and approach, two characteristics
are central to it. First, because the Anglo-American legal tradition
is built on liberalism and its tenets, feminist jurisprudence tends to
respond to liberalism in some way. The second characteristic is the
goal of bringing the law and its practitioners to recognize that law
as currently constructed does not acknowledge or respond to the needs
of women, and must be changed. These two features can be seen in the
major debates in current feminist jurisprudence, which range from
questions of the proper perspective from which to understand the
problems of the law, to questions of legal theory and practice.
1. Responding to Liberalism: Questions of Perspective
As a critical theory, feminist jurisprudence responds to the current
dominant understanding of legal thought, which is usually identified
with the liberal Anglo-American tradition. (This tradition is
represented by such authors as Hart 1961 and Dworkin 1977, 1986.) Two
major branches of this tradition have been legal positivism, on the
one hand, and natural law theory on the other. Feminist jurisprudence
responds to both these branches of the American legal tradition by
raising questions regarding their assumptions about the law,
including:
* that law is properly objective and thus must have recourse to
objective rules or understandings at some level
* that law is properly impartial, especially in that it is not to
be tainted by the personal experience of any of its practitioners,
particularly judges
* that equality must function as a formal notion rather than a
substantive one, such that in the eyes of the law, difference must be
shown to be "relevant" in order to be admissible/visible
* that law, when working properly, should be certain, and that the
goal of lawmaking and legal decision-making is to gain certainty
* that justice can be understood as a matter of procedures, such
that a proper following of procedures can be understood as sufficient
to rendering justice.
Each of these assumptions, although contested and debated, has
remained a significant feature of the liberal tradition of legal
understanding.
Feminist jurisprudence usually frames its responses to traditional
legal thought in terms of whether or not the critic is maintaining
some commitment to the tradition or some particular feature of it.
This split in responses has been formulated in a number of different
ways, according to the particular concerns they emphasize. The two
formulations found most frequently in American feminist jurisprudence
characterize the split either as the reformist/radical debate or as
the sameness/difference debate. Within the reformist/radical debate,
reformist feminists argue that the liberal tradition offers much that
can be shaped to fit feminist hands and should be retained for all
that it offers. These feminists approach jurisprudence with an eye to
what needs to be changed within the system that already exists. Their
work, then, is to gain entry into that system and use its own tools to
construct a legal system which prevents the inequities of patriarchy
from affecting justice.
Those who see the traditional system as either bankrupt or so
problematic that it cannot be reshaped are often referred to as
transformist or radical feminists. According to this approach, the
corruption of the legal tradition by patriarchy is thought to be too
deeply embedded to allow for any significant adjustments to the
problems that women face. Feminists using this approach tend to argue
that the legal system, either parts or as a whole, must be abandoned.
They argue that liberal legal concepts, categories and processes must
be rejected, and new ones put in place which can be free from the
biases of the current system. Their work, then, is to craft the
transformations that are necessary in legal theory and practice and to
create a new legal system that can provide a more equitable justice.
Under the sameness/difference debate, the central concern for
feminists is to understand the role of difference and how women's
needs must be figured before the law. Sameness feminists argue that to
emphasize the differences between men and women is to weaken women's
abilities to gain access to the rights and protections that men have
enjoyed. Their concern is that it is women's difference that has been
used to keep women from enjoying a legal status equal to men's.
Consequently, they see difference as a concept that must be
de-emphasized. Sameness feminists work to highlight the ways in which
women can be seen as the same as men, entitled to the same rights,
protections, and privileges.
Difference feminists argue that (at least some of) the differences
between men and women, as well as other types of difference such as
race, age, and sexual orientation, are significant. These significant
differences must be taken into account by the law in order for justice
and equity to be achieved. What has been good law for men cannot
simply be adopted by women, because women are not in fact the same as
men. Women have different needs which require different legal
remedies. The law must be made to recognize differences that are
relevant to women's lives, status and possibilities.
The two characterizations of the debate about what perspective is best
for understanding the problems of the law do share some features.
Those who argue a sameness position are often thought to fit, to some
degree, with the reformist view. Difference feminists are seen as
sharing much with radicals. The parallel between the two
characterizations is that both argue over how much, if any, of the
current legal system can and must be preserved and put to use in the
service of feminist concerns. The two characterizations are not the
same, but the important parallel between them allows for some
generalization regarding the ways in which each is likely to respond
to particular theoretical and substantive issues. However, while the
two may reasonably be grouped for some purposes, they must not be
conflated.
From these perspectives, feminist jurisprudence emphasizes two kinds
of question: the theoretical and the substantive. These two kinds of
question are, perhaps especially for feminists, deeply connected and
overlapping. Discussions of central theoretical issues in feminist
jurisprudence are punctuated by elaboration of the substantive issues
with which they are intertwined.
2. Central Concerns: Questions of Theory and Practice
In asking theoretical questions, feminists are concerned with how to
understand the law itself, its proper scope, legitimacy, and meaning.
Many of these are the questions of traditional legal theory, but asked
in the context of the feminist project: What is the proper moral
foundation of the law, especially given that any answer depends on the
moral principles of the dominant structure of the society? What is the
meaning of rule of law, especially given that obedience to law has
been an important part of the history of subjugation? What is the
meaning of equality, especially in a world of diversity? What is the
meaning of harm, especially in a world in which women, not men, are
subjected by men to certain kinds of violence? How can adjudication of
conflict be properly and fairly achieved, especially when not all
persons are able to come to the adjudication process on a "level
playing field"? What is the meaning of property, and how can women
avoid being categorized as property? Is law the best and most
appropriate channel for the resolution of conflict, especially given
its traditional grounding in patriarchal goals and structures?
Although feminists have addressed all these questions and more,
perhaps one issue stands out in many feminists' eyes as a matter of
special importance, encompassing as it does some aspect of many of the
questions noted above. The issue that for many feminists is at the
heart of concerns is that of equality and rights. Two others that may
be considered nearly as central are problems of harm, and of the
processes of adjudication.
a. Equality and Rights
Law works partly by drawing abstract guiding principles out of the
specifics of the cases it adjudicates. On this abstract level,
theoretical questions arise for feminist jurisprudence regarding
equality and rights, including the following: what understanding of
equality will make it possible for women to have control over their
lives, in both the private and public spheres? What understanding of
equality will provide an adequate grounding for the concept of rights,
such that women's rights can protect both their individual liberty and
their identity as women?
In general, the feminist concern with equality involves the claim that
equality must be understood not simply as a formal concept that
functions rhetorically and legally. Equality must be a substantive
concept which can actually make changes in the power structure and the
relative power positions of men and women generally. Although equality
is examined in a wide variety of specific applications, the major
concern is the goal of making equality meaningful in the lives of
women. But for many feminists, concerns with equality cannot be
addressed without also attending to rights. Because the liberal
tradition figures rights as the hallmark of equality, it is in terms
of rights that we are expected to see ourselves as equals before the
law. Further, rights discourse has structured both our understanding
of equality, and our claims to it.
Examinations of equality are, therefore, often framed by particular
substantive issues. For example, much feminist jurisprudence regarding
equality is framed in terms of concerns about work. If women are
equal, then how will this be expressed in workplace law and policy?
One of the key issues in this field has been how to treat pregnancy in
the workplace: Is it fair for women to have extended or paid leave for
pregnancy and birthing? Under what circumstances, or limitations? Are
women being given "special" rights if they have a right to such leave?
The struggle over the proper understanding of pregnancy and work
raises questions about whether women should be treated in such law as
individuals or as a class. As individuals, it has seemed relatively
easy for workplaces to claim that not all employees are given such
leave, and thus that women who do not are being treated "equally". One
feminist strategy has been to attempt to revise such law to recognize
the particular difference of women as a class. Herma Hill Kay, for
example, argues that pregnancy can be seen as an episode which affects
women's ability to take advantage of opportunities in the workplace,
and that pregnant workers must be protected against loss of equal
opportunity during episodes of pregnancy. (Kay, 1985)
Concerns over pregnancy express the fundamental questions of the
sameness/difference debate. The sameness position suggests difference
should be erased to the greatest extent possible, because it has been
used as a basis for discrimination. Difference proponents argue that
pregnancy involves significant differences which should be seen as a
linchpin of legal understanding. Does equality mean that women should
wish to be treated exactly the same as men, or does it mean that women
should wish to be treated differently, because their differences are
such that same treatment cannot provide equity?
Feminists who argue that equality requires creating for women the same
opportunities and rights which are currently available to men of the
ruling class are bringing the reformist or sameness approach to bear.
Approaches to rights and equality which focus on women's
individuality, emphasizing it in the way that law has done for men and
requiring women to show that they are like men and thus may be treated
like men, tend then to be reformist or sameness oriented. Because
these approaches are seen as requiring that women become as much like
men as possible, and that law treat women as it does men, they are
often referred to as assimilationist.
Christine Littleton (Littleton, 1987) offers a further set of terms
for approaches to understanding equality: symmetrical (paralleling
reformist and sameness approaches) and asymmetrical (paralleling
radical and difference approaches). This classification refers to how
women and men are "located in society" with regard to issues, norms
and rules. If a theorist sees men and women as sharing a location
regarding an issue, then that theorist has a symmetrical approach; if
not, then the approach is asymmetrical. Littleton classifies
assimilationist approaches as symmetrical, along with what she calls
the androgyny approach. The androgyny approach argues that men and
women are very much alike, but that equality will require social
institutions to pick a "mean" between the two, and apply that standard
to all persons. This model is less frequently argued than the
assimilation model.
There are also many radical and difference approaches to equality.
What they share is the desire to avoid having to take on all that is
questionable and/or undesirable about (society's construction of) men
in order to be considered equal before the law. Thus many radical
approaches (although not all – MacKinnon, below, is an example of one
which is not) emphasize similar questions and problems as difference
approaches. How to recognize relevant difference, and what kind of
difference law must be responsive to, is a crucial part of these
feminist examinations of equality. Ann Scales, for example, argues
that liberal/reformist approaches do not do enough to really make the
changes that are necessary, because the problem in equality is a
problem of understanding how domination works. We must learn to see
how equality has formally been tied in to domination through the
liberal framework. In her view, a certain kind of inequality needs to
be recognized and worked with, rather than ignored or assimilated.
(Scales, 1986)
Other difference/radical approaches include the special rights,
accommodation, acceptance, and empowerment models. (Littleton, 1987)
The special rights model suggests that justice requires our
recognizing that equality is too easily understood as "sameness",
where men and women are not the same. Rights should be based on needs,
and if women have needs that men do not, that should not limit their
rights. The accommodation model asserts that differences which are not
fundamental or biologically based should be treated under a
symmetrical or assimilation model. But this leaves those differences
which are fundamental (such as the ability to be pregnant) as
differences which must be recognized in the law and accommodated by
it.
Littleton's own approach is expressed in the acceptance model. This
argues that (gender) difference must be accepted, and that law should
focus on the consequences of such differences, rather than the
differences themselves. Although differences exist between men and
women, equality should function to make these differences "costless"
relative to each other. Equality should function to prevent women's
being penalized on the basis of their difference. Thus equality should
require us to institute paid leave for pregnancy and birthing, and to
guarantee women's return to their jobs after birthing.
Empowerment models reject difference as irrelevant, and shift focus to
levels of empowerment. Equality, then, is understood as what balances
power for groups and individuals, and dismantles the ability of some
to dominate others. This radical and asymmetrical view does not,
however, fit well with the categorization of feminist positions in
terms of sameness and difference. The empowerment model's focus on
domination and the ways in which power is distributed seems to
represent a significant departure from the parallel suggested above.
Thus some feminist jurists have suggested that it be understood as a
separate approach. Judith Baer calls it simply the domination model of
feminist jurisprudence. Catherine MacKinnon is one well-known scholar
who holds this view. (MacKinnon, 1987) In her theorizing of
pornography, for example, she focuses on the question of how power is
used in pornography to maintain a structure of domination which belies
the possibility of equality between men and women.
Feminist critiques of rights in general assert that rights have been
apportioned based on notions of equality that deliberately exclude the
needs of women. If rights are to be truly equal, they must be
apportioned on a more equitable basis, informed by the experience of
women and others previously excluded. Or, following MacKinnon or
Patricia Williams (discussed below), rights must be apportioned based
on how they empower those to whom they are granted. Feminist scholars
debate the ground for understanding rights while working to create a
foundation from which women can claim and exercise rights that will be
meaningful in their lives.
b. Understanding Harm
Perhaps the most difficult question for feminist jurisprudence
regarding the issue of harm is that of perspective: who defines and
identifies harm in specific cases? Given that law has traditionally
worked from a patriarchal perspective, it is perhaps not surprising
that identifying harm to women has been problematic. A patriarchal
system will benefit from a very stingy recognition of harms against
women. Feminist jurisprudence, therefore, must examine the basic
question, what is harm? It also must ask, what counts as harm in our
legal system, and why? What has been excluded from definitions of harm
that women need included, and how can such trends be overturned?
Three types of harm-causing actions that are typically and
systematically directed against women have formed the background for
discussion about what harm means, and what counts as harm: rape,
sexual harassment, and battering. Until fairly recently (for example,
before the legislative reform movements of the 1970s), some forms of
these actions were not considered actionable offenses under the law.
This was largely due to the history of understanding women not as
independent and autonomous agents, but as property belonging to men
(thus issues of the meaning of property are also crucial to
understanding harm). Feminist jurisprudence has challenged this state
of affairs. As a result, changes have been made in the laws regarding
each of the three categories, although the effectiveness of these
changes is widely disputed (see, e.g., Schulhofer 1998 for an
excellent review of this law). At the very least, work by feminists
has made it possible to speak of these harms by providing a vocabulary
for them, by raising awareness about them, and by prosecuting them
more frequently and with some success.
Discussions of rape attempt to answer many of the questions that apply
to all three types of harm-causing actions. Cases of all three types
give rise to similar problems that prevent women from being treated
justly: blaming the victim; privileging the point of view of "the"
agent, i.e., the male perpetrator; indicting the woman's sexual
history while ignoring the man's history, whether sexual or violent.
Underlying all these problems are assumptions about gender and agency
which encourage the law to place responsibility for their own harm on
women rather than on the men who cause it. Women have been believed to
be mentally unstable or at least weak-minded, to be scheming and
deceptive, and to have an improper motivation for making claims of
harm against men. For these reasons, they tend to be seen as
untrustworthy witnesses. Because they have been characterized as
sexually insatiable and indiscriminate, they tend to be seen as
deserving whatever harm they "provoke" from men. Corresponding
assumptions about men's rational superiority encourage their being
seen as believable witnesses. At the same time, assumptions about
men's natural sexual needs are taken as justification for their
violations of women. Feminist jurisprudence attempts to respond to
these problems as double standards and matters of equality and rights.
Other issues of harm require different responses. Harm-causing actions
tend to be defined in terms of external and observable characteristics
(levels of force), of intention on the part of the agent (mens rea),
and of the consent of the one harmed. Consequently, what is at issue
is how law uses these criteria in determining both when harm has
occurred and whether it is to be justified or excused. What feminist
jurisprudence has found is that women and men frequently differ over
the understanding of each of these criteria. But since it is a
patriarchal understanding which grounds the law, women's
understandings tend not to be given a proper hearing.
In Susan Estrich's discussion of rape (Estrich, 1987, 1987a), she
claims that the mens rea criterion can be used to create either too
much emphasis on the perpetrator's intention, or too little. In either
case, she believes the focus on this criterion makes evident the law's
lack of understanding of and concern for the harms women suffer. The
law's focus is to not wrongly punish men, which is achieved at the
cost of not protecting women.
Further, Estrich argues that the force criterion is understood from a
patriarchal perspective: force is seen as a matter of what "boys do in
schoolyards." This criterion figures force as a simple matter of the
straightforward use of physical strength, or the use of implements of
violence. But it ignores the kinds of force that are most frequently
used in rape and other types of harm to women, such as psychological
coercion. If the courts expect women to resist physical and
psychological coercion in the same ways and at the same level that men
do, then the courts impose an unreasonable expectation on the
"reasonable" woman.
Regarding consent, Estrich explains that the courts have believed that
if consent is given, then rape (or other harms) do not occur. This
places responsibility on the one who has been harmed to show that she
did not, in fact, consent. But patriarchal courts have held that only
the strongest and most emphatic expression of non-consent functions as
evidence. This means that in many cases, women have been said to have
"consented" even though they were physically carried off by men and
verbally expressed non-consent (Schulhofer 1998). Non-consent has not
been easily proven unless the woman has been severely beaten, or
unless a significant weapon (that is, gun or knife) was used, or death
was threatened in a way that convinces the court. Thus what
non-consent means for the court has been very different from what
women themselves have said about (their) consent.
Robin West (West, 1988) argues along similar lines, claiming that
women's social training does not impart the same fundamental values
that men's training does. She theorizes that men value separation and
autonomy to the point that they would physically fight, desperately,
to maintain theirs. But because women value connection and relation
most highly, they find it difficult to respond to physical violence
with violence of their own. Violence destroys connection and
relationship, which is what women are socialized to value most. This
makes it difficult for women to respond to rape, and other harms, in a
way which convinces masculine courts that they did not consent.
Women's definition and identification of these harms is very different
from what the courts have so far constructed.
It is difficult to separate out some parts of the reformist or
sameness and radical or difference approaches with regard to harm. In
general, however, those who argue that current laws can be changed to
adequately protect women have reformist or sameness views. Those
arguing that the current definitions of harm simply cannot be revised
sufficiently have radical or difference views. Thus Estrich, who
concludes that we need to treat rape as we treat other kinds of crime
which require nonconsent (theft, for example) could be considered a
reformist view. Mary Lou Fellows and Bev Balos offer a similar
analysis of how women's perception of the harms of date rape can be
accommodated in current law. This can be accomplished by the
application of the heightened duty of care that exists already in the
common law doctrine of confidential relationship. (Fellows and Balos,
1991) West's argument, based on recognizing and responding to
fundamental differences between men and women regarding harm, could be
seen as a radical or difference view. MacKinnon's analysis of sexual
harassment, which focuses on the need for women to be empowered to
define the harms against them, represents a dominance view on harms.
c. The Processes of Adjudication
Many feminist jurists challenge the processes of adjudication by
raising questions about the neutrality or impartiality that such
processes are assumed to embody. Neutrality is believed to function in
the law in at least two ways. It is assumed to be built into the
processes of the law, and it is assumed to be produced by those
processes. Feminist jurisprudence challenges the first set of
assumptions by raising questions about legal reasoning. It challenges
the second by raising questions about how a law created and applied by
partial and biased persons can itself be neutral. Thus feminist
jurisprudence also raises the question of whether neutrality is a
possible, or an appropriate, goal of the law.
As traditionally understood, neutrality in law is supposed to protect
us from a number of ills. It protects from personal bias by insisting
that judges, attorneys, law enforcement officers, etc., treat us not
as people with specific characteristics, but as interchangeable
subjects. We should be seen only in terms of certain specific actions
and our intentions with regard to those specific actions. Officials
are expected not to bring their personal biases to bear on those who
come before them, and certain personal aspects of those brought before
the law are not permitted to come under scrutiny. For example, if a
judge personally believes that women are pathological liars, this is
not supposed to influence his or her interpretation of any particular
woman's testimony. Similarly, no person's race is supposed to
influence any judge's understanding of their case. Feminist
jurisprudence challenges such claims to neutrality.
Neutrality in law is supposed to protect against ideological bias as
well. It does this by taking a supposedly universal perspective on a
case, rather than a particular perspective. This belief that law and
its practitioners can see, and judge, from the "view from nowhere" has
been criticized by feminist jurisprudence. Feminists claim that such
complete objectivity seems not to be fully possible. They also argue
that claiming such neutrality deflects attention away from the fact
that a partial view – a masculinist view – is being presented as
universal. Feminist jurisprudence, like most feminist theory, rejects
the claim of law that it is a neutral practice, and instead points to
the ways in which law is clearly not neutral.
One of the ways law is not neutral is through the individual people
that work in law. Feminist jurisprudence argues that because there is
no such thing as the "view from nowhere", every understanding has a
perspective. This perspective influences it, and provides an
interpretive field for whatever matters of fact there may be. Since
law is made, administered and enforced by people, and people must have
a perspective, law must reflect those perspectives at least to some
degree. Feminists tend to agree that to the extent that a practice or
person is unaware of their own perspective, that perspective will more
strongly influence their interpretations of the world. It is when we
become aware of biases that we are able, through critical reflection,
to reduce their influence and thus move toward a greater (although not
a perfect) objectivity.
Another way that law is not neutral is in its content. Because it is
made by people, many of whom have not critically examined their own
standpoints, the content of law may be unfair or discriminatory. Such
content would require officials to act in ways that are not impartial,
or not fair. But even if law is written by those whose perspectives
are relatively objective, our legislative system often imposes
compromises on laws. Some compromises required to pass law may change
or weaken its objectives in ways that prevent its functioning as
intended. These criticisms show that the content of the law, affected
by the contestations of our legislative system, may not be neutral.
Further, it shows that the processes of the law do not guarantee the
neutrality that they are assumed to do.
Neutrality is also assumed to be built into certain processes of the
law, and in particular the processes of judicial reasoning. The
traditional model of judicial decision-making relies on case law,
which uses precedent and analogy to provide evidence and
justification. Interpretation of statutes in prior cases provides
precedent or rules. Courts then attempt to determine how the facts of
current cases require one rule or another to be brought to bear. This
way of making decisions has itself been thought to be neutral, and the
formalities of due process that support it are thought to reinforce
that neutrality. This feature of law, relying on past judgments to
influence current and future ones, also makes it peculiarly resistant
to change. For feminist jurisprudence, use of precedent allows the law
to insulate itself against the critiques of outsiders, including
women.
Use of precedent has been challenged by a feminist and non-feminist
critiques, including the pragmatism of Margaret Radin (Radin, 1990)
and Jerome Frank's legal realism (Frank, 1963). Feminist jurisprudence
responds to use of precedent by pointing out those areas which are
most likely to be subject to sexist understandings. For example, case
law that has derived from cases in which plaintiffs and defendants are
men will assume that the circumstances for those men are simply the
"normal" circumstances. Workplace law has frequently been challenged
by feminist critics for this reason. The law assumes, based on cases
in which the workplace was populated mainly by men, that everyone who
works shares men's circumstances. This assumption entails that workers
are supported by a full-time homemaker, such that the burdens of home
life and child rearing should not affect one's ability to function
efficiently in the workplace. But such assumptions work against women,
who usually are supporting someone else in this way rather than being
supported.
Reform and sameness feminists argue that case law is not a bad system
but that reforms are needed to emphasize to the realities of women's
lives. Radical and difference feminists are more likely to argue that
case law is itself a system that is too heavily entrenched in
patriarchy to be maintained. Its reliance on precedent makes it too
conservative a system of decision-making to be adequately brought to
the service of feminism.
3. Trajectories
Although it seems that the sameness/difference and the reform/radical
debates could create an impasse for feminists, some theorists believe
that some combination of the two views can be more effective than
either alone. Patricia Williams (Williams, 1991), for example,
believes that rights can function as powerful liberatory tools for the
traditionally disadvantaged. However, she also believes that in a
racist society such as contemporary America, racial difference must be
recognized because it creates disadvantage before the law. In this
way, she claims that some features of the liberal tradition, like
rights, need to be maintained for the liberatory work they can do.
However, she argues that the liberal tradition of formal equality is
damaging to historically marginalized groups. This aspect of law needs
to be completely transformed.
As an example of the ways in which rights are still needed by the
traditionally disadvantaged, she examines the relationship to rights
that is enjoyed by a white male colleague. His sense of his rights is
so entrenched that he sees them as creating distance between himself
and others, and believes that rights should be played down. In
contrast, Williams expresses her own relationship to rights, being a
black woman, as much more tenuous. The history of American slavery,
under which black Americans were literally owned by whites, makes it
difficult for both blacks and whites to figure blacks as empowered by
rights in the same ways that whites are.
This example shows how Williams weaves together important elements of
both reform and radical positions, and at the same time includes the
element of empowerment that is seen in dominance positions. She claims
that for blacks, and for any traditionally disadvantaged group, rights
are a significant part of a program of advancement. One's relationship
to rights depends on who one is, and how one is empowered by one's
society and law. For those whose rights are already guaranteed, what
may be necessary for social change is to challenge the power of rights
rhetoric for one's group. But for those whose rights have never been
secure, this will not look like the best course of action. Williams'
suggestion is that we recognize that rights and rights rhetoric
function differently in different settings and for different people.
But this, then, is a response which relies on the radical and
difference premise that difference must in fact be attended to rather
than elided. In order that rights be made effective for historically
marginalized people, we must first see that they do not in fact
function for all people in the way that they do for those they were
created for.
Another approach to drawing the two sides of the debate in feminist
jurisprudence together is offered by Judith Baer, whose claim is that
feminist jurisprudence to date has failed to either reform or
transform law because feminists in both camps have made crucial
mistakes. (Baer, 1999) The primary error has been that feminist
jurisprudence has tended to misunderstand the tradition it criticizes.
Although feminist jurists recognize that the liberal tradition has
secured rights for men but not women, they have failed to make
explicit the corresponding asymmetry of responsibility. Women are
accorded responsibility for themselves and others in ways that men are
not. For example, women are expected to be responsible for the lives
of children in ways that men are not; as noted above, this has
implications in areas like workplace law.
The second major error Baer sees in feminist jurisprudence is that it,
along with most feminism, has tended to focus almost exclusively on
women. This has drawn feminist attention away from men and the
institutions that feminism needs to study, criticize, challenge and
change. It has also created a series of debates within feminism that
are divisive and draining of feminist energy. Again, the solution is
to recognize when reform (sameness) and radical (difference)
approaches are effective, and to use each as appropriate. Baer argues
that
[f]eminist jurists need not – indeed, we must not – choose between
laws that treat men and women the same and laws that treat them
differently. We already know that both kinds of law can be sexist. Our
gender-neutral law of reproductive rights treats women worse than men,
but so did "protective" labor legislation. Conversely, both
gender-neutral and gender-specific laws can promote sexual equality.
Comparable worth legislation would make women more nearly equal with
men. So have affirmative action policies. Women can have it both ways.
Law can treat men and women alike where they are alike and differently
where they are different. (Baer 1999, 55)
Baer provides critiques of both reform and radical feminist
jurisprudence. She concludes that neither alone is sufficient, but
that both, applied where appropriate, could be. She argues that the
feminist focus on women has encouraged an inability to think on a
universal scale. This leaves feminists, and law under feminist
jurisprudence, mired in the particularities of individual cases and
individual traits. To move out of this mire, she suggests three tasks
for feminist jurisprudence:
First, it must do the opposite of what conventional theory and
feminist critiques have done: posit rights and question
responsibility. Second, it must develop analyses that will separate
situations from the people experiencing them, so we can talk about
women's victimization without labeling them as victims. Finally, it
must move beyond women and begin scrutinizing men and institutions.
(Baer 1999, 68)
Baer does not suggest that feminism, nor feminist jurisprudence,
should give up the study of women and women's situations. Rather, her
suggestion is that this study as an exclusive focus is not sufficient
for either reform or transformation. Because "women neither create nor
sustain their position in society" feminists need to scrutinize those
who do. Baer's suggestion is that what is needed is an account of
"what it means to be a human being, a man, or a woman, which makes
equality possible." (Baer 1999, 192) The mistakes that feminist
jurisprudence has made have prevented its developing this account,
which Baer thinks could be the foundation of what she calls a feminist
postliberalism sufficient for feminist jurisprudence.
4. References and Further Reading
* Baer, Judith A, Our Lives Before the Law: Constructing a
Feminist Jurisprudence (Princeton, NJ: Princeton University Press,
1999)
* Cornell, Drucilla, Beyond Accommodation: Ethical Feminism,
Deconstruction and the Law (New York: Routledge, 1990)
* Dworkin, Andrea, Intercourse, (New York: The Free Press, 1987)
* Dworkin, Ronald, Law's Empire (Cambridge: Harvaard University Press, 1986)
* Dworkin, Ronald, Taking Rights Seriously (Cambridge, MA: Harvard
University Press, 1977)
* Estrich, Susan, "Rape," 95 Yale Law Journal 1087-1184 (1987)
* Estrich, Susan, Real Rape (Cambrdige: Harvard University Press, 1987a)
* Fellows, Mary Louise and Beverly Balos, "Guilty of the Crime of
Trust: Nonstranger Rape" 75 Minnesota Law Review 599 (1991)
* Hart, H.L.A., The Concept of Law, (New York, Oxford University
Press, 1961)
* Jerome, Frank, Law and the Modern Mind (New York: Doubleday and Co., 1963)
* Kay, Herma Hill, "Equality and Difference: The Case of
Pregnancy," 1 Berkeley Women's Law Journal 1-37 (1985)
* Littleton, Christine A., "Reconstructing Sexual Equality," 75
California Law Review 1279-1337 (1987)
* MacKinnon, Catherine, Feminism Unmodified: Discourses on Life
and Law (Cambridge: Harvard University Press, 1987)
* Minow, Martha, Making All the Difference: Inclusion, Exclusion
and American Law (Ithaca: Cornell University Press, 1991)
* Radin, Margaret Jane, "The Pragmatist and the Feminist," 63
Southern California Law Review, 1699 (1990)
* Scales, Ann C., "The Emergence of Feminist Jurisprudence: An
Essay," 95 Yale Law Journal 1373-1403 (1986)
* Schulhofer, Stephen J., Unwanted Sex: The Culture of
Intimidation and the Failure of Law (Cambridge: Harvard University
Press, 1998)
* Smith, Patricia, ed., Feminist Jurisprudence (New York: Oxford
University Press, 1993)
* Tong, Rosemarie, Women, Sex and the Law (Totowa, NJ: Rowman and
Littlefield, 1984)
* West, Robin, "Jurisprudence and Gender," 55 University of
Chicago Law Review 1 (1988)
* Williams, Patricia, The Alchemy of Race and Rights (Cambridge:
Harvard University Press, 1991)
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