Feminist Legal Theory

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The ‘essentialism’ critique has posed a serious challenge to Feminist Legal Theory. Can the challenge be overcome? The importance of feminism to legal theory as a whole is, and always should be, the highlighting of hidden social and legal norms that society and legal scholars ignore behind a faA§ade of neutrality. The problem for feminism as a foundationalist attack on the assumptions of law, rather than law in itself, is its status as a ‘social movement that radically challenges existing hierarchies’[1]. The main problem of a ‘movement’ such as feminism is that they are generally their own worst enemies in that seeking to replace existent norms they put in place ones that have just as many hidden dialectics as the previous norms. In many ways feminist legal theory has never quite been sure of itself, there is an underlying dissatisfaction with the treatment of women in society generally but no clear way forward. Grosz[2] pointed out that feminist legal scholars who had initially fought for equality quickly discovered that equality merely meant equality at male standards and had to swap equality-discourse for autonomous-discourse, namely an adherence to liberal principles of self-determination for women and men to create their own experiences. In the initial stages of this realisation the feminist ‘movement’ seemed to falter at the enormity of the iceberg of which they had discovered the tip. The current critiques of feminism fundamentally question the aim and possibility of any concept of feminism just as they discovered with equality, the question this work fundamentally attempts to answer is whether there is any potential for redemption of feminist theory. The problem is that a theory can only reach a certain abstraction before it becomes of any use, Minow has argued the anti-essentialist critique of feminism points out the ‘un-stated reference points that hide from view a preferred position and shield it from challenge by other plausible alternatives’[3] have been uncovered within feminism. This means that the enormity of the task that was facing feminists when challenging merely the male reference points within law has increased exponentially in constructing a sensible view of feminism, however a subject such as this was always going to be ripe for a post-modern critique. It is as well to understand the fundamental arguments at stake and begin to fully articulate what we mean by the critique of essentialism and it’s meaning for feminist accounts of law. The idea of essentialism can be fundamentally described as ‘the notion that there is a monolithic ‘women’s experience’ that can be described independent of other facets of experience like race, class and sexual orientation’[4]. The use of meta-narratives is a common tool within all western legal theory and is supposed to have come from much of enlightenment thought, the fundamental idea of the enlightenment was that humans could describe and comprehend their own existence without reference to a God. This desire in rational scholars to reduce theories to meta-narratives has been exposed in recent years by scholars that wish to show how these meta-narratives have inherent assumptions that underpin them. There are many feminist writers who espouse feminist meta-narratives, Robin West’s account is probably the most forthright of these, in her account it isn’t so much a hidden assumption but a declaration of faith: ‘The claim that we are individuals ‘first’ and the claim that what separates us is epistemologically and morally prior to what connects us – while trivially true of men, are patently untrue of women’[5] West argued that the potentiality for motherhood was a defining characteristic of all women and that it connected them and gave them a fundamentally unique link; she also argued that other experiences such as menstruation, heterosexual penetration and breastfeeding all gave women a connected nature. Many other writers didn’t make forthright assumptions such as this but rather took a different essentialist stance the archetypal villain here is Catherine MacKinnon[6] who implicitly argues that the distinctions between women are of a lesser importance than the distinction between men and women. She is accused of having a colour-blind approach that privileges her opinions of what it is to be a woman over say a black woman[7] or a lesbian[8], even when such writers acknowledge the distinctions between women they socially construct those differences so as to make no difference[9]. In MacKinnon’s case this was seen as a failure to acknowledge the non-subordination to men that lesbian writers claim to experience through their sexuality, this was rejected by MacKinnon as she still saw sexuality as constructed by male dominance however this means that were we to accept fully MacKinnon’s ‘millennial’ moment where a groups’ qualities become ‘part of the standard by which humanity is measured’[10] that standard would represent a white heterosexual women’s experience and still leave black or lesbian women’s experiences unprivileged. The above debate is at the heart of the problem for a corpus of writers that we could varyingly call traditional feminists, stage two feminists or essential feminists. It is the critique, by feminist writers, of feminist ideals that has proved so divisive for the theory. The central issue for reflective writers on the ‘dominant discourse’ and its inherent ignorance of internal distinctions has been to consider the position of feminism in the aftermath of these realisations. There is no rebuttal of an anti-essentialist stance; perhaps because feminist writers were quick to appreciate their own methods being used internally against the feminist movement, any arguments that rebutted the anti-essentialist stance would also rebut the main propositions of these feminist writers. This quandary for feminist writers is reflected in a wider difficulty for current accounts of law that are primarily based on meta-narratives of neutrality and are challenged by postmodernist accounts. The problem with this for feminism is that the identification of women as a non-unitary group nor even a group in which one can describe a baseline existential commonality is that it pulls down every effort of feminism because equality for women becomes equality for white heterosexual women, the challenging of male paradigms in law with reference to ‘female’ paradigms and discourse on the law’s subordination of ‘women’ are all undermined. This has lead to feminists using postmodernism as a vehicle in attempting to overcome the essentialism problem and revitalising feminism as a vehicle for social and legal change. However as this writer will show this attempt has been ultimately unsuccessful and could perhaps lead to a rejection of feminism. The approach has been different from many writers and this is precisely what has caused confusion for any sensible restructuring of the debate. The anti-essentialist feminists do not argue the same point, some argue that all that is required is a widening of the appreciation of the intra-women differences not just an acknowledging of them but a deeper understanding of the lesbian and black existential experiences. On reading much of the writing surrounding same-sex provisions in law there is a continual theme that assimilating lesbians and gays into marriage isn’t sufficient, marriage is a concept that implies monogamy and stability for children both fundamental attitudes that many homosexuals do not agree with given their existential experiences. In similarity, many post-modern feminists merely ask for a deeper understanding of the concept of women, namely that what being a ‘women’ is for a white heterosexual woman isn’t so for black, homosexual women[11]. Some feminists such as Crenshaw have taken a novel approach and suggested that rather than talking about ‘women’ in some form of meta-narrative that the only way to escape the essentialist mindset is to develop a theory talks to the ‘intersectional experiences of those whom the movement claim as their respective constituents’[12], she argues what essentialism has done is to compartmentalise the struggles of constituents of various disadvantaged group, she seems to be arguing that any discourse about ‘women’ ought to take a bottom-up approach that aims to make things not just better for women but better for black, lesbian women or some other similarly constructed individual that represents the praxis of intersectional discrimination experiences[13]. However, in my opinion this defence to the essentialism critique is unconvincing when we look at the fundamental claim that many anti-essentialists are making is that discourse about women generally makes patriarchal assumptions such as the naturalness of heterosexuality[14], the ability to deal with this by simply putting those who are seen as most disadvantaged at the centre of reform efforts and thereby treating the needs of only singularly disadvantaged individuals is unconvincing. In my opinion the widening of such a concept obliterates any meaning that concepts of disadvantaged people can have; is it possible to say that discrimination, in itself is unitary, by this I mean that an assumption that says we can challenge meta-narratives by widening the meta-narrative fail to realise that the same critique will apply to widened meta-narratives. The realisation, for example, that the discrimination transsexuals feel is based on a binary view of gender challenges the entire notion of gender as we understand that concept. Such challenges cannot be lumped together because of their disparate nature; how do we de-privilege a binary view of sex without necessarily blurring the very real discrimination women suffer in our society? These exact concerns have motivated many feminists to try and reject post-modern feminist stances: ‘Equivalence of all biases and particularities and reduces the feminist ethic to just one of many equally valid viewpoints [and] if taken to its ultimate conclusion must condone an anarchist and wholly de-regulated economic and social policy’[15] However the post-modern feminists do have other strings to their bows, Bell Hooks has argued for a particularly novel solution to the problem in that she advocates that that we reconfigure feminism as a movement that one ‘advocates’ rather than what one ‘is’. The distinction allows people of disparate identities and who don’t fully subscribe to hard-line feminism to still use it as a movement through which we can challenge sexual discrimination and oppression. In many ways this seems like Catherine MacKinnon’s retort to her post-modern critics[16] who argue that feminism is not essentialism in the sense that it is not making any pre-destined assumptions about ‘woman’ just that there are commonalities between women that exist in the way that they are treated in that all women are subordinated in certain ways and therefore we must argue for ‘women’ on that basis. There have been other attempts to construct post-modern narratives on a larger scale than particular incidences on the level of individuals that seem to be the only possible subjects of post-essentialist feminism as advocated by writers above[17]. These women argue that the ‘inadequacy of post-modernist theory’ does not necessarily entail that ‘feminist legal theorists should give up theory, and resign ourselves to a strategy of pragmatic engagement with positive law’[18]. These accounts have generally drawn upon a less well-known body of theories springing from Kant called Aestheticism. This theory is ideally suited to overcoming the arguments of feminism; to classify something in reference to aesthetics is to make no judgement about its purpose or its designation. The example Barron uses is a rose: If one looks at a rose and says this is a ‘rose’ then that makes biological and genus assumptions however if one says this is ‘beautiful’ that is not to make any preformed opinion but just a statement of its aesthetics. The basis of a theory on what that is wholly determined by reference to the sentient determinants of behavior avoid an individualist interpretation and can more readily accept a pluralist approach to overcome the essentialism debate. The different positions of writers in this corpus of theories such as Drucilla Cornell and Catherine Butler are highly abstract and complex drawing on the ideas of the image of the body within law and the use of aestheticism in constructing these images and how these images can be disruptive in social spheres. In many ways on a reading of these theories that attempt to avoid essentialism it is difficult to understand how it solves the problems of essentialism. For example, Barron argues that we can find a post-modern structure for law by realising that we are unable to access objective reality when we contemplate something such as ‘women’ however this id merely to state our limitations as human beings, what we can do is speak of the female body as ‘imaged’ i.e. representations of reality which acknowledge their lack of reality. Therefore when asking whether the use of the concept ‘woman’ is right in certain situations we don’t appeal to whether this is a potentially ‘real’ description of women but rather whether the use of the word women accesses a particularistic identification with particular women that can be generalised into a shared experience. The theory outlined here is highly sophisticated and this work cannot do justice to it’s concepts but as cursory rebuttal it would appear that the movement away from concepts to aestheticism seems to me like swapping one potentially manipulative discourse with another. How is it possible to acknowledge a particularistic feeling that leads to a shared experience, which aesthetic experiences are purely particularistic rather than shared? And can it ever be measured? Unfortunately none of its proponents have ever propounded a normative theory of law premised upon these realisations and so it is hard for us to criticise the value of these theories to law. In concluding this essay I want to lay out clearly for the reader why it is that we ought to reject feminism and why the above debate highlights fundamental tensions that challenge the entire subject area. I will draw on various areas to show how we cannot possibly hope to keep a feminist approach that is in any way coherent. The classic argument that is used to overcome essentialist critiques is that ‘there is enough that is cohesive and common about the category of woman to bridge the differences for purposes of political solidarity’[19]. In my opinion it appears as though certain feminists hold onto this as a mantra so as to save feminism from the obvious conclusion; law reform based on meta-narratives will always be flawed. In many ways I agree with Catherine MacKinnon that some of the post-modern critiques miss the fact that feminism isn’t actively denying that there are differences between women, in fact of all the liberal legal theory traditions feminism is perhaps the most pluralistic. However, this realisation doesn’t save it from being considered ineffective; take for example the argument of baseline biological or societal commonality i.e. being a woman is fundamentally distinct from being a man or all women are oppressed everywhere. If we accepted these claims prima facie and move back to the original project of feminism i.e. to make changes to social structures such as the law that enforce masculine norms of female subordination. Is it possible for feminism to avoid the problem that it is ‘a discourse which constructs its own object, `women’, in the same way that discourses on sexuality construct theirs’?[20] The commonality that writers assume shows the same blind-sidedness that legal positivism showed to its critics in the beginning. The infinite regression of feminist argument shows its futility in combating the concerns of post-modernism for example take the statement by MacKinnon that all women are subject to subordination in all societies, this just regresses the problem to a societal level because whilst it maybe true that all women are subordinated they most certainly are not subordinated in similar manners. Therefore the use of rape laws subordinates white women and black women in different ways; Black women view rape laws as a way of suppressing black people generally by using a ‘patriarchal idealisation of white womanhood’[21] to justify violence against black people and create a differential between rape of a white woman and of a black woman[22]. Therefore reforming the rape laws on the behalf of ‘woman’ ignores that whilst in both cases there is subordination the subordination is distinct. Feminism will always find itself being attacked from within and without following the realisations of anti-essentialism. In my opinion the most fundamental example of why is to look again at the example of transsexuals, post-modern theorists concerned with transsexualism argue that any rhetoric about groups whether this be gender groups or sexuality groups cannot possibly understand the particularistic existence of people who endlessly and continually recreate their personality, sexuality, identity, gender and mind. In my mind the problem essentialism creates for feminism is insurmountable simply because it is the recognition that binary concepts and fixed points of reference cannot provide analytical tools from which to judge law. The idea that you can recreate feminism in some sort of abstract metaphor or image is so removed from reality as to be almost useless as a contribution to normative legal theory, nor cannot it be revitalised by any of the other arguments presented within this article. The reason for this is that even if we can construct some abstract form or analytical version of ‘woman’ that can be used discursively the inevitable sweep to normative propositions and a pressure for reform by a ‘movement’ using those propositions ends up skewing the analytical tool that it was premised on into a form of meta-narrative which in feminism has merely lead to the situation where ‘all woman are the same but some are more the same than others’. Books Barnett, HilaireSourcebook on Feminist JurisprudenceCavendish / 1997 Weisberg, D.KellyFeminist Legal Theory FoundationsTemple Univ. Press / 1993 Articles Anderson, Feminist Epistemology and Philosophy of ElizabethSciencehttps://plato.stanford.edu/entries/ Barron, AnneFeminism, Aestheticism and the Limits Of2000 FLS 275 Law Grigolo, MicheleSexualities And The ECHR: Introducing 2003 EJIL 1023 The Universal Sexual Legal Subject

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Gunby, IngridA ‘Postmodern Feminist’ identity Politics?www.massey.ac.nz

MacKinnon, Points Against Postmodernism2000 C-KLR 687 Catherine Pinkus, JennyFeminist Poststructuralism1996 www.massey.ac.nz Sayer, AndrewEssentialism, Social Constructionism &1997 Socio. Rev 454 Beyond Stapleton, KarynIn Search of the Self: Feminism, 2000 F&P 463 Postmodernism and Identity Online Sources www.worldlii.org www.lexisnexis.com www.swetswise.com 1


[1] Littleton (1987) [2] Grosz ‘What is Feminist Theory’ in Barnett (1997) [3] Minow ‘Feminist Reason: Getting it & losing It’ in Weisberg (1993) [4] Harris (199)) [5] West, Robin ‘Jurisprudence & Gender’ in Barnett (1997) [6] She is the subject of attack in Cain and Harris’ anti-essentialist works both detailed in Weisberg (1993) [7] Harris attacks this angle [8] Cain attacks this angle [9] Spelman argued that the essentialist feminist reduced essentialist critiques to ‘such differences simply are less significant than what women have in common’ quoted in Cain Ibid. [10] MacKinnon’s Difference & Dominance: On Sex Discrimination in Barnett (1997) [11] This is Cain’s solution. See Cain OP Cit6…p.364 – 365 [12] Crenshaw (1989) [13] I find this particularly unpersuasive for the same reason I reject Grigolo (2003)’s ‘Universal Sexual Subject’ given that the rights that such a subject are still essential in the sense that they make fundamental assumptions about what such a universal subject would want and inevitably make a false claim of equality which mirrors the complaints of feminists against patriarchal law. [14] This is the argument of Patricia Cain Supra N6 [15] Cited in Pinkus, J (1996) [16] MacKinnon (2000) [17] Barron (2000) p.278 [18] Ibid. [19] Bender (1990) in Barnett (1997) p.204 [20] Gunby (Online Article) [21] Harris Supra N4 [22] For example studies show that in rape sentencing in 1968 that in all cases in Maryland where the death penalty was applied was for rape of a white women whereas between 1960 and 1967 47% of all black men convicted of sexual assault on a black woman were released on probation (Harris Ibid, at p.350 – 351)

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