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Feminist legal theory manifests through writing and speaking about ‘law’ and ‘women,’ in an effort to promote and improve understanding about justice. Feminist legal theory is a set of ideas, an activity engaged in by thinkers in and outside academia, and an intellectual and political movement. Developments in feminist legal theory emerged through engagement with problems rooted in inequalities, experienced by individuals and communities, at the hands of people, corporations, or the state. This research paper draws out key areas of tension within the field of feminist legal theory, focusing on English-language feminist legal theory and spanning the field of national jurisdictions and international human rights.
- Method and Epistemology
- The Human
- Sex and Sexuality
- Marriage and Social Reproduction
- Feminist Legal Theory and International Human Rights
Feminist legal theory manifests through writing and speaking about ‘law’ and ‘women,’ in an effort to promote and improve understanding about justice. Much of that writing and speaking debates the meaning of the terms ‘law’ and ‘women.’ Feminist legal theory is a set of ideas, appearing as truth claims, critiques, and/or advocacy messages, an activity engaged in by thinkers in and outside academia, and an intellectual and political movement. In its life span, it has gone through several evolutions, to produce a plural, complex, and fractured body of thought and practice. Evidence for the maturity of feminist legal theory, as a field, can be found in a number of edited volumes and dedicated academic journals. Defining feminist legal theory as a set of ideas and practices situates it across academia, nongovernmental organizations, law firms, think tanks, community groups, and public office. Developments in feminist legal theory have emerged through engagement with problems connected to inequalities, as experienced by individuals and communities at the hands of people, corporations, or the state. The problem-driven impetus of feminist legal theory contributes to its present-day heterogeneity. It also explains how a ‘field’ of feminist legal theory survives, despite the enduring debates about pillar concepts like ‘woman’ or ‘equality’ and resistance to the normalizing and disciplining effects of definition.
The separation line between feminism and feminist legal theory is porous. While feminist legal theory takes law as a primary focus, the whole field of feminist studies regularly engages legal issues because the state is central to feminism’s reformist agenda. Contemporary Western feminism’s roots lie in nineteenth-century campaigns to abolish slavery and secure the right to vote for women and enslaved people. Although some US campaigners fought to end both slavery and women’s oppression, the post-Civil War movement for women’s suffrage splintered over decisions to prioritize the voting rights of white middle-class women.
As an intellectual and political enterprise, feminist legal theory has been a movement embedded in the political currents of its time. The twentieth-century’s struggle between liberalism and Marxism set the stage for feminist debates about prioritizing civil equality rights over material inequalities. The contemporary rollback of the welfare state, the foregrounding of the nuclear family as the caretaker of human vulnerability, and the disproportionate impact of austerity policies on marginalized women provide the context for the critical attention among feminist legal theorists to issues ranging from the feminization of the global care market to the queer critique of same-sex marriage.
Though feminist theory and activism gained strength into the twentieth century, it was not until the 1970s that ‘feminist legal theory’ came to be labeled as a field, with different schools of thought appearing and receding over time. Six strands are signposted here and developed further throughout the research paper. The equality stage of feminist legal theory, sometimes labeled ‘liberal feminism’ (1) and dated to the 1970s, focused on formal inequalities between women and men and called for ending legal discrimination. By the 1980s, radical or dominance feminism (2) and difference feminism (3) shifted attention to the differences between women and men and the social production of inequality. Both schools of thought were criticized for single-minded attention to the concerns of class- and race-privileged women. An antiessentialist movement (4) introduced thinking and action on multiple and intersecting forms of discrimination. Postmodernism (5) turned attention from dichotomous and categorical identities toward questions of social construction and subjectivity. Queer legal theory (6) challenged foundationalist understanding of sex and sexuality.
This research paper addresses English-language feminist legal theory in North America, the UK, and Australia, with some additional international representation by authors writing in English. It draws out key areas of tension within the field of feminist legal theory oriented toward domestic and national jurisdictions, and then surveys the state of critique in international human rights.
Method and Epistemology
Feminist legal critique typically starts from the position that understanding material, structural, and ideological conditions requires an attention to sex and gender and their interaction with other axes of differentiation. A common analytic technique focuses on exposing features of an issue that other methods overlook, by, for example, identifying the gender implications of rules and practices that seem neutral (Bartlett, 1990). However, some critics reject the idea that feminist analysis constitutes the addition of a ‘gender lens’ on some ‘social real’ defined on other primary material, ontological, or legal grounds (Morgensen, 2012).
Feminist legal theory has responded to concomitant shifts in legal scholarship and feminism. First through legal realism, then through law and society research and critical legal studies, the gaze of common law scholars turned from the theoretical ideal of law on the books and toward the law in action. While the new empiricism brought concern for making law more effective, it also challenged the hermetic seal between ‘law’ and ‘society’ and introduced the notion of the coconstitution of the law, society, and the subject.
Feminist theory traversed similar epistemological terrain. Liberal feminist legal theory revealed the male bias in formal law and legal processes and argued for the reform of law from a neutral perspective. Radical feminists exposed law’s neutrality as a patriarchal sleight-of-hand. According to MacKinnon, male dominance’s “point of view is the standard for point-of-viewlessness; its particularity the meaning of universality” (MacKinnon, 1989: pp. 116–117). A critique based on standpoint theory argued that this quest for neutrality presumed a view from nowhere – and that there can be no such thing. Rather, a truth could best be reached by treating women as authorities about their own lives and experiences (hooks, 1989). Feminist legal theorists seized the invitation to listen to women’s voices in the legal arena, by, for example, analyzing how trial processes heard and shaped women’s narratives of violence (Sheppard and Westphal, 2000) or thinking about whether women bring a unique perspective to judging (Minow, 1992). The epistemology of postmodern feminism questioned the whole project of an authoritative perspective on truth, calling instead for a nonfoundational, nonessentialist analysis. Mariana Valverde challenged the law’s claims about the unity and coherence of categories like the ‘legal subject,’ and instead studied the law as a site for discourses and processes that shape what is taken as knowledge (Valverde, 2003). Feminist legal theory also drew on queer theory, a scholarship that postures itself against, or at variance with, the normative. According to queer legal theorist Adam Romero, by jettisoning foundational epistemologies in favor of a positionality consistently opposed to the norm, it becomes difficult to “know definitively what feminist legal theory and queer legal theory, as such, substantively are or do” (Romero, 2009: p. 197). Thus, an attention to epistemology exposes the challenges of the bases of feminism as a political and critical project.
The human is the starting point for most feminist legal theory. The field of posthuman feminist legal thought reaches beyond the human to nonhuman life, the environment, and the material. Ecofeminism challenges traditional environmental law (Rochette, 2002). Maneesha Deckha has argued that understanding animal oppression is essential to both understanding human forms of oppression and developing a coherent concept of justice (Deckha, 2006). Materialism was largely thrown out with the Marxist bathwater of the late twentieth century (Conaghan, 2013), but feminist scholars drawing from Science and Technology Studies are bringing the material back into view, exploring the enmeshment of mind and body, nature and culture, and human and nonhuman forms of agency (Conaghan, 2013). For example, ultrasound allows us to ‘see’ a fetus on a screen, an intermingling of machine, body, and senses that informs ideas of the fetus as an autonomous human life (Barad, 2007). The turn to materiality provides a new lens in the debates among feminist legal scholars on abortion and reproductive technologies.
Because US law historically established and upheld gender inequalities, American liberal feminists took to the courts to dismantle them. Explicit distinctions between men and women were the target of the Equal Rights Amendment, a proposed amendment to the US Constitution that aimed at invalidating gender-biased statutes and common law rules. Though ultimately not passed into law, the goals of the Equal Rights Amendment took effect through litigation led by the Women’s Rights Project at the American Civil Liberties Union. Its lead litigator, Ruth Bader Ginsburg – who later became a US Supreme Court justice – fought a line of cases that attacked gender differences in the law, whether they served to harm women or men (Chamallas, 2003). On her understanding of equality, equality under the law required treating like persons alike and unlike persons alike.
The campaign for neutrality in legal standards ran aground when it reached situations where women and men seemed not to be similarly situated, like in scenarios involving pregnancy or physical strength. Some judges thought that pregnancy might be a ‘disability’; others argued it was sex-specific and deserved ‘special’ treatment (Littleton, 1987). Courts, legislatures, and activists attempted to define a ‘normal’ standard against which ‘difference’ could be identified (Scales, 2006). The trap lay in framing equality as either sameness or difference and taking men as the standard referent for such difference.
A critique of this binary approach led to a redefinition of equality beyond purely formal terms. Debates about substantive equality reintroduced Marxist questions of the distribution of material resources. From within a liberal rights perspective, courts worried about the limits of a state’s responsibilities to provide minimal guarantees or standards of living, with courts frequently deferring to legislatures on questions about redistribution of wealth (Cossman and Fudge, 2002).
Theorists reframed the equality debates as a debate about the meaning of justice. Building on the work of liberal philosopher John Rawls, some feminists argued that if justice is about distribution, then injustice is about the imperfect distribution of material resources, rights and liberties, and opportunities. Communitarians argued that just distribution should include attention to culture and community. Martha Nussbaum advanced a capabilities approach, focused on identifying the minimum conditions that states must provide to ensure human flourishing (Nussbaum, 2000). Carol Gilligan, a leading thinker of difference feminism, introduced the distinction between an ethic of care, in which moral judgment is based on context, relationships, care, and connection, and an ethic of justice, in which judgment proceeds from abstract principles, rights, and individual autonomy (Gilligan, 1982). Though Gilligan’s model has been criticized because it associated men with an ethic of justice and women with an ethic of care, it opened up a field of inquiry about feminist understandings of justice.
Nancy Fraser observed that these opposing views all depart from the ‘justice as distribution’ paradigm, as neither theory of justice emphasizes transformation or makes an effort to “restructure the underlying generative framework” (Fraser, 1997: p. 23). She argued for a transformative understanding of justice, so that the processes that produce injustice, rather than their effects, can be analyzed and tackled.
‘Difference’ signals the categories and lived experiences that are raised, interpreted, and used to produce divisions among people. Difference has been a central challenge throughout feminist legal theory.
In the history of feminism and feminist legal theory, race has arguably been the oldest, thorniest difference. Since the late nineteenth century, women of color have questioned feminism’s prioritization of the concerns of white, upper-class women. Early feminism’s focus on formal equality in public life and the workplace was criticized for its inadequate attention to the conditions of material inequality experienced by poor and racialized women. Feminists of the 1980s were criticized for essentializing the category ‘woman,’ whether they preferred ending patriarchal domination or celebrating women’s unique gifts. Both law and feminist legal theory had failed to theorize women of color’s experiences of discrimination along multiple axes of identity. Kimberle Crenshaw introduced the concept of intersectionality to challenge the default whiteness of feminist analysis (Crenshaw, 1991). Legal tests often require categorizing harms based on ‘race’ or ‘gender,’ with the result that some plaintiffs fall between categories, while others receive no legal recognition of the compounding interactions among different forms of discrimination (Williams, 1987).
Could there be a feminist movement if the category of woman was infinitely fractured along plural lines of identity? This crisis within feminism took place during the apogee of identity politics and the emphasis on multicultural tolerance. Political theorist Susan Moller Okin suggested that multiculturalism was “bad for women” (Okin et al., 1999). Wendy Brown (1995) and Leti Volpp (2001) cautioned against a feminism that depicted women as passive victims of intrinsically oppressive ‘culture.’
The synergies between feminism and the global war on terror positioned culture, gender, and sexuality as productive sites of state power. The US nonprofit Feminist Majority Foundation campaigned against the Taliban’s treatment of Afghan women, launching what became a simple, mediafriendly rallying cry for a deeply complex US war in Afghanistan (Hirschkind and Mahmood, 2002). In 2010, a public controversy erupted when Gita Sahgal, the head of Amnesty International’s Gender, Sexuality, and Identity unit, resigned in response to the organization’s partnership with Moazzam Begg, a former Guantanamo detainee and UK citizen with ties to the Taliban. Some read Amnesty’s collaboration as a welcome attempt to repair relations with a demonized Muslim population, while others, including Sahgal, interpreted it as a threat to Amnesty’s core values of equality and universal human rights (Gopal, 2013).
Legislators and judges in the West wrestled with the state’s interface with a nonsecular ‘other,’ on issues ranging from Muslim veiling to the incorporation of religious law into family law disputes (Fishbayn, 2008). Some feminists are deeply troubled by ‘accommodation’ and integration of the so-called cultural norms in state law, as this is interpreted as ceding ground to rising religious fundamentalisms – both Muslim and Christian. Other feminist legal theorists consider this a welcome step in exposing the white, secular, patriarchal bias of Western law (Fournier and See, 2012). While many feminist critiques focused on race, gender, and religion, other voices called attention to the heteronormative underpinnings of these debates. For example, queer theorist Jasbir Puar studied the connections between the West’s war on terrorism, nationalism, and gay rights discourse. Puar argued that the West contrasts its tolerance of homosexuality and its concern for the vulnerable Muslim queer to a demonized Middle Eastern masculinity, thus justifying Western Islamophobia and fueling a belligerent homonationalism (Puar, 2007).
Feminist legal theory often aligns with the canonical categories it challenges, resulting in feminist critiques of contract, criminal law, tort law, tax law, and so forth (Bottomley, 1996; Brooks, 2011). An alternative approach is problem-based, producing bodies of scholarship and activism around categories like reproductive justice, sexual and gender-based violence, workers’ rights, and the criminalization of poverty and migration (Bridgeman and Millns, 1998; Schneider, 2000; Conaghan and Rittich, 2005). These efforts map the ways that law intersects with women’s lives, fails to respond to women’s realities, shapes their opportunities, and constructs their sense of self. ‘Law in action’ studies inquire about the law’s simultaneous role in constructing disadvantages, remedies, identities, and understandings of justice, as in Catherine Albiston’s research on the effects of the US Family and Medical Leave Act in changing the behavior and values of employers and workers (Albiston, 2010). A canonical example of the feminist analysis of legal doctrine is Catharine MacKinnon’s study of rape law, which shows how rape law starts from a male point of view (MacKinnon, 1983). A further approach connects feminist theory to philosophical debates about rights. Frances Olsen, for instance, warns against a turn to rights for the purpose of women’s emancipation. She argues that the resolution of conflict in rights terms can oversimplify complex power relations, deprive conflicts of their political significance and force, and fail to take into account structural power inequalities (Olsen, 1984). Through this engagement with law, feminist legal theory has unseated the neutrality of law’s foundations.
Feminist legal theorists take a range of views about what law ‘is’ and what prospects it offers for achieving the goals of feminist reformers. Liberal feminists, most concerned with formal inequalities, define the law as residing in cases and statutes and implemented by lawyers, judges, and legislators. Departing from the view that the law is fundamentally grounded in fairness, proponents like Ruth Bader Ginsburg believe that the law could be reformed to better respect ‘women’s’ rights.
Radical feminists, attentive to power relations, are less sanguine about the nature of law and its potential for positive social change. They find the law in the inert words of statutes and cases, but also in norms, habits, and entrenched attitudes. Typified by Catharine MacKinnon’s work (MacKinnon, 1983), these scholars see the law as embedded in patriarchal, stratified social relations. The law is susceptible to reform through feminist litigation and campaigning, but it is highly resistant to change. For example, in her work on domestic violence, Reva Siegel has shown how law is more liable to continuity through transformation than to genuine reform (Siegel, 1997).
Postmodern theorists adopted a multidimensional view. For example, for Carol Smart, although the law is defined as a socially powerful place for producing knowledge claims about justice and distribution, it is not universally or intrinsically helpful or harmful to the subjects who seek its remedies (Smart, 1989). Queer critics like Janet Halley raise concerns about the law as an institution premised on defining and separating the normal from the deviant, thus casting doubt on the role of law in emancipatory political projects (Halley, 2006).
Feminist legal theorists disagree about the nature and role of the state in emancipatory political projects. For liberal legal theorists, the state appears variously as a site for protection, a guarantor of individual rights and liberties, an agent of limited redistribution, a legitimate source of punishment, and an arena for fair debate. On this view, the state’s laws are open to change through legislative or judicial processes (Davies, 1994).
Difference feminist theorists are skeptical about reforming the neutral state. Since women and men are fundamentally different, with different starting points in life and different needs, reform efforts are best focused on remedies like affirmative action, quotas, maternity leave, and public child care (Nott, 2000; Gilligan, 1982; Davies, 1994). These differences aside, both liberal and difference theory envisioned a strong state at the helm of justice projects.
These understandings of the state were challenged through the influence of Marxism and postmodernism. It became less fashionable to see the state as either a positive or negative space for feminist engagement.
Radical and postmodern feminist theory draws on these insights. According to radical feminist theorists and their readings of Marx, the very idea of a line between the state, the market, and the family manufactures the zones of state noninterference – in contractual relations and family relations – that expose people to patriarchal and capitalist violence (Olsen, 1985; Rose, 1987). Postmodern feminism, influenced by philosopher Michel Foucault, describes the state as a site for the production of discourse, with normalizing and disciplinary effects caused by self-governance rather than overt coercion or domination (Boyd, 1997). From this perspective, every choice by the state is a form of regulation; even a decision to ‘do nothing’ is a regulatory decision, because the practical consequence of ‘nonregulation’ is a normalization of existing distributions of power and resources.
More recently, the analytical lens has broadened, the state has been decentered, and a plurality of sometimes contradictory, context-driven views have emerged. Many contemporary theorists treat the nation-state as one of many spaces in diffuse local and global assemblages of power. Janet Halley’s concept of governance feminism describes the installation of feminists and feminist ideas within institutional and legal power (Halley, 2006). Those fighting to end gender-based violence in intimate relationships push for a stronger police force, swifter prosecution, and mandatory sentencing (Kelly, 2005). Other theorists advocate for considerably ‘less’ state – for example, those concerned with the criminalization of poverty, swelling prison populations, violent working conditions of sex workers, and life chances of trans people (Spade, 2011; Bumiller, 2008).
Complex debates over the notion of freedom course through feminist legal theory, bringing in their wake questions about agency, power, choice, and the nature of the subject. As Marx discussed in his classic essay “On the Jewish Question,” the state’s abolition of formal distinctions based on birth and the decree of individual equality leaves untouched all the material, cultural, and social structures of domination. Liberalism’s vision of freedom is synonymous with formal equality rights. Equating freedom with equality rested on the introduction of the abstract, liberal, self-sufficient universal subject (Fineman, 2004).
This liberal subject is the object of concerted study across feminist legal theory. Liberalism’s canonical accounts start with a natural, unified, and autonomous (implicitly or explicitly male) individual who yearns for a social world in which he can pursue his self-interest. Feminists disagree with this model, arguing that the self is neither a preconstituted individual nor wholly determined by membership in a social group. Rather, the subject is socially constructed and constituted relationally, through involvement with – and incorporation of – significant others and integration into communities (Young, 1990).
Discarding the idea of any essential or natural identity, Judith Butler argues that “woman itself is a term in process . an ongoing discursive process” (Butler, 1990: p. 33). Gender identity is performed, as opposed to intrinsic or natural, and “genders can neither be true nor false, but are only produced as the truth effects of a discourse of primary and stable identity” (Butler, 1990: p. 136). On this account, the body does not preexist as a biological ‘real,’ but is itself materialized through discourse.
Considering the subject as the effect of ongoing social processes and discourses muddies the waters of freedom and agency. How do people know what they want if there is no core, autonomous self who directs decisions, their available choices are constrained by material realities, and their wants and desires are shaped by social conditions?
Commercial surrogacy contracts offer an example of such dilemmas. It was the absence of choice that led radical feminist Andrea Dworkin to compare surrogacy to prostitution (Dworkin, 1983), while Christine Overall questioned whether the choice to enter a surrogacy contract could be a free one (Overall, 1987). On the other hand, some feminists argued that commercial surrogacy arrangements were in fact the manifestation of a woman’s right to make choices about her body and enter into contracts for financial gain (Shalev, 1989). An empirical survey of existing research found that women of color are greatly underrepresented as surrogate mothers (Busby and Vun, 2010). Such empirical findings bolster the argument that respecting women’s agency requires attending to their own accounts of their lives and capacities. On issues ranging from surrogates to sex workers to women in military academies, courts, legislators, activists, and theorists have struggled to define women as victims or agents and have debated whether policies should reduce or expand women’s field of choices.
Sex and Sexuality
The women’s movement spent the 1960s campaigning for reproductive rights like access to abortion and contraception, and the 1970s lesbian feminist movement brought greater attention to women’s rights to sexual pleasure with other women. Adrienne Rich denounced feminism for assuming a standard norm of female heterosexuality (Rich, 1980). By the late 1970s, feminists began to emphasize the violence and danger associated with heterosexual sexuality and the late 1970s and early 1980s saw feminist legal theory gripped by the ‘sex wars.’
Debates divided many feminists into two opposing positions, often labeled as radical and sex positive. According to the radical feminist point of view, under conditions of patriarchy, sex and sexuality intrinsically perpetuated violence against women. According to a sex-positive point of view, sex and sexuality were sites of personal pleasure and political possibilities for subverting patriarchal definitions of femininity.
The ‘sex wars’ of the 1980s took shape around an emerging antipornography movement, underpinned by radical feminism and its theory of gender oppression. Radical feminists, such as MacKinnon and Dworkin, campaigned for the use of censorship and other legal prohibitions in order to outlaw pornography and reduce sexual violence against women. Pornography was seen to shape the cultural devaluation of women, define women’s sexuality, and eroticize violent relations of domination. Sex-positive feminists reacted to this legal campaigning by decrying sexual repression, calling for greater sexual freedom, and defining sexuality as a site of political resistance.
Sexual practices and the meaning of consent were focal points of disagreement. For radical feminists, pornography, prostitution, sadomasochism, and sexual role-play like butch– femme relationships amounted to the repetitive entrenchment of male dominance. For example, MacKinnon argued that heterosexuality “institutionalizes male sexual dominance and female sexual submission” (1989: p. 113). In contrast, sex-positive feminists supported consensual sexual practices and they criticized radical feminists for repressing sexual desire and stigmatizing sexual minorities. Carlin Meyer argued for a brand of sex-positive feminism that could theorize sexuality as a space for autonomous and liberating choices (Meyer, 1994), while Robin West called for theories of sex as valuable to women’s subjective well-being (West, 1987).
Questions about consent also underpinned these debates. For radical feminists, there could be no authentic consent or agency in a world of choices defined by male dominance and violence. In contrast, sex-positive feminists viewed women as capable of consenting and exerting agency and they criticized radical feminists for defining women’s identities as effects of male domination (Abrams, 1995). However, this work was slow to percolate into legal theory. Katherine Franke commented that feminist legal theorists, “have done a more than adequate job of theorizing the right to say no, but we have left to others the task of understanding what it might mean to say yes” (Franke, 2001: p. 181).
The heated debates about sex and sexuality in the 1980s generated both divisions and new political formations. Gayle Rubin argued that feminism had little to say about sexuality, notwithstanding its expertise on gender-based subordination (Rubin, 1992). Eve Kosofsky Sedgwick said that gender and sexuality were distinct analytic axes – and distinct intellectual arenas (Sedgwick, 1990). Their argument for a new intellectual terrain, beyond the sex/gender distinction, gave birth to the field of queer studies.
Through engagement with queer theory, feminist legal theory has moved toward an increasingly antiessentialist understanding of sex and gender and a more diverse account of sexuality. Theorists, including Judith Butler, opined that people were born with a biological sex, but acquired a self-conception of gender through processes of socialization (Butler, 1990). This insight severed the ‘natural’ or ‘inherent’ from the socially contingent, so that the socially produced could be legally and politically challenged. Queer theorists argued that sexuality was also socially produced and culturally constructed. Queer legal theorists challenged the law’s reliance on a male/female binary. They argued that a multiplicity of sexes, genders, and sexualities exist along a spectrum. In recent years, some trans legal advocates have celebrated the legal permission to move across the male/female divide, while others argue for a world that accepts the ‘in-between’ reality of the trans-gendered, intersexed, bigendered, and androgynous (Cowan, 2013).
While sexual minorities and dissidents achieved some equality gains in the late twentieth and early twenty-first centuries, the story of progress nevertheless rests on an economy of normal and deviant, included and excluded. Campaigners applauded the legal recognition of same-sex marriage as a victory for formal legal equality, but others saw the same-sex marriage project as yet another instance of the yearning for recognition by a state, and with it, the attribution to the state of power to police everyone’s sexualities (Spade, 2011).
Marriage and Social Reproduction
Marriage and social reproduction have been sites for the formation and consolidation of state authority. The law’s construction of the private sphere as an autonomous realm served to uphold and generate gender subordination. Key themes have included the rights to bodily autonomy, choice, privacy, and the public/private divide.
Under the common law doctrine of coverture, a married woman was located under the authority and protection of her husband, preventing her from making contracts or wills, controlling her earnings, or owning real property. In the nineteenth century, in the United States, the state regulation of marriage permitted the definition of a private sphere, shielded from state intervention. As informal, de facto marriages were brought into the formal institution of marriage, people were legally bound in defined obligations, thus widening the scope of state authority. Incorporating more relationships – including the nonnuclear families of freed slaves – into the institution of marriage ensured that dependents would be the responsibility of husbands, rather than the state. A gender ideology of ‘separate spheres’ emerged, in which each sex had different natures with unique and complementary moral attributes. Post-Civil War married women’s earning acts gave a married woman property rights in her own labor, while simultaneously defining household labor as an obligation of marriage, rather than a form of work (Cott, 2000).
Feminist legal theorists challenged the public/private divide enshrined in the regimes of coverture and separate spheres ideology. The US feminists leveraged the constitutional right to privacy as a route to contraceptive sales and abortion, but they also sought to pierce the shield of privacy around the marital home to compel state intervention in domestic violence.
Feminist legal theory challenged the role of law in creating and upholding the heterosexual family as the setting for the distribution and fulfillment of natural and inevitable dependencies. Activists in the 1970s demanded wages for women’s domestic work and pointed out that ‘free’ care work in the home creates, sustains, and subsidizes the labor force. According to Martha Albertson Fineman, “the sexual family is considered the ‘natural’ form for the social and cultural organization of intimacy, its form ordained by divine prescription and perpetuated by opinion polls” (Fineman, 1995: p. 143). Approximately, 70% of families in 1940 fit the traditional male breadwinner–female housewife model; by 1988, however, the so-called traditional families accounted for only about 20% of all families and today there is no longer a typical or dominant family form (Albiston, 2007). Nevertheless, the ideology of the nuclear family defines both normal and deviant configurations of social reproduction. A vibrant literature has emerged in recent years, studying the globally distributed care economy and the resulting alliances and conflicts of interest between and among women in the global North and global South (Williams, 2000; Johnson, 2002; Conaghan and Rittich, 2005).
Feminist Legal Theory and International Human Rights
Feminist critiques of international human rights can be divided into three categories: (1) normative and institutional calls for the inclusion of women into human rights, (2) study of the role of gender in the architecture of the human rights system, and (3) critique about the perils and pitfalls of human rights.
The statement that “Women’s rights are human rights,” from the 1993 Vienna World Conference on Human Rights, confirmed the migration of women’s interests from the isolated backwater of ‘special issues’ into the mainstream of human rights (Friedman, 1995). Fields of feminist activism and critique include development, transitional justice, international humanitarian law, peace and conflict, violence against women, reproductive and sexuality rights, refugees and migration, and international economic policy (Askin and Koenig, 1999). Christine Chinkin and Hilary Charlesworth observe that while there has been much feminist critique of the use of rights at a domestic level, there has been relatively little feminist critique of the normative and tactical value of human rights at an international level (Charlesworth and Chinkin, 2000). Their explanation is that feminists have been hesitant to critique what is so new and so hard-won, echoing Patricia Williams’ comment that, from the African-American perspective, “rights feel so new in our mouths” that they should not be impugned (Williams, 1987).
The first generation of feminist critique of human rights sought to explain why women were excluded from the protection of human rights and what had to be done to remedy this. One explanation was that there were no ‘general’ human rights; by this reckoning human rights are, in themselves, men’s rights (Charlesworth, 1995). State sovereignty has been theorized as an extension of masculinity in the international sphere (Ruskola, 2010), while the primacy given to civil and political rights over economic, social, and cultural rights has been explained as a source of women’s exclusion from human rights protections (Sullivan, 1995).
Another body of empirical scholarship illuminates the ways that gender appears in the architecture of contemporary human rights and their antecedents. During the founding of the United Nations, founders were unwilling to grant rights to women specifically, but they saw gender as a metric of development. In the newly formed United Nations, the status of women in territories administered by member states was a key indicator of a country’s capacity for self-governance (Knop, 2002).
A third body of critique invited caution about the feminist project in international law. In line with the “Third World Approaches to International Law” movement, this new literature exposes the complexities, distorting conditionalities, and unintended consequences of feminist gains in international law (Chinkin et al., 2005; Otto, 2006). First, scholars note that the feminist human rights movement imagines the international as an imaginary and utopian site of justice. International elite human rights advocates (from both the North and South) construct the particular as the problem in order for the universal to be the solution, while simultaneously avoiding the injustice born within the international economic and political system (Nesiah, 1993).
Second, theorists study the effects of injecting feminist principles into international institutions. Examples of governance feminism in international law include the recognition of sexual violence crimes in international criminal law and a focus on the criminalization of sex trafficking (Halley et al., 2006). Although feminists have achieved goals like gender mainstreaming in international law, the institutionalization of feminism in international law has adverse effects.
Third, the ascent of women’s rights, primarily driven by campaigning on violence against women, was conjoined with the demonization of culture as an intrinsically oppressive force. Ratna Kapur has criticized the ways that international law rests on an essentialized understanding of gender and culture, which combine to produce a ‘helpless’ native victim of human rights law (Kapur, 2002). Sally Engle Merry has shown how UN rights processes adopt a static definition of culture, which is then counterposed to make universal claims for gender equality (Merry, 2006). For Leslye Obiora, the international and First World obsession with culture obscures the primary cause of women’s rights violations: global inequality and structural economic exploitation (Obiora, 1997). From such a perspective, human rights and feminism might well be Trojan horses. They may bring some gains for women’s equality and wellbeing, but other, new harms, like the demonization of culture and disregard for global material inequalities, might creep in as well.
Recent surveys about the state of the field in feminist legal theory have produced numerous edited volumes – signaling the field’s depth and diversity – while at the same time sparking reflection about the dispersal of the field, due to productive recentering around key words like sexuality or masculinity or the mainstreaming of its key analytic concerns across mainstream legal scholarship (Abrams, 2011). Discussions about the health of the field reveal the character of feminist legal theory as a movement that provokes deep personal investments, rather than as an arms-length academic exercise. Scholars who are seen to have harmed the feminist legal project, as though it were a mortal being, risk extreme vitriol. Janet Halley’s (2006) suggestion to “take a break from feminism” provoked such a reaction (Halley, 2006). Halley defined legal feminism as reliant on a gender polarity between women and men, a subordination of women to men, and a commitment to acting for women. This account, according to Halley, both diminishes feminist victories and glosses over the casualties on the way to power. For some, Halley’s invitation was tantamount to apostasy. Although feminist legal theory has matured, diversified, and become more plural, there remains the belief that there is a battle to be fought, and some speech and action count as crossing enemy lines.
Critique today seems to require moving across the confines of jurisdictions – both national and intellectual – and abandoning monolithic theories of the state and single-method studies. As a field that has, from its inception, convened a rebellious rabble of activist and theoretical voices, feminist legal theory is experienced in crossing boundaries. One such boundary separates the humanist and the empirical. Political theorists, rather than feminist legal theorists, led the way in debates about the meaning of justice. This is surprising given legal theory’s penchant for normative questions, but less surprising given that feminist legal scholars have devoted their energies to empirical investigation into the ‘impact’ of law on women and analysis aimed at winning legal victories by exposing the ‘true’ gendered nature of law. According to Marianne Constable, questions about the meaning of justice may be occluded by accepting the model of a world that ‘is’ and a law that ‘does’ things and ‘tells’ people what to do (Constable, 1994). The next chapter of feminist legal theory could attend to life – in all its pluralities – as it ought to be or could become.
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