Feminist Legal Theory

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Feminist Legal Theory

• LSJ 362 Autumn 2007

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• The laws apparent neutrality masks its real
  nature the law is male.

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First Wave Feminism EQUALITY

• This wave of feminism dates from the
  enlightenment (eighteenth-century) and stresses
  equality, rights, liberation and emancipation.
• First wave feminism insists that gender is
  inessential or secondary to our humanity
• John Stuart Mill was a first wave feminist

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Second Wave Feminism DIFFERENCE

• Second wave feminism (or difference feminism)
  stresses the difference between sex and gender
  sex is our biological and natural being gender
  is the social and cultural interpretation of that
  being.
• Equality relies on being equal to some
  standard, a standard usually associated with
  masculinity and masculine ideals.
• Second wave feminism stresses the difference of
  women, and challenges the centrality of masculine
  values (reason, detachment, power, autonomy,
  aggression).

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Second Wave Feminism DIFFERENCE

• Carol Gilligan In a Different Voice
• Catharine MacKinnon
• The law reifies male dominance
• Criticizes sameness/difference theory used to
  frame womens rights under the law in terms of
  their sameness to men (e.g. deserving equal pay)
  or their difference from men (e.g. right of
  maternity leave)
• problematic because both sameness and difference
  use men as the referent category

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Second Wave Feminism DIFFERENCE

• Catharine MacKinnon
• makes it difficult for women to argue for special
  protection under the law when the underlying
  premise is equal treatment makes it seem like
  women want it both ways
• the real question is not whether women are like,
  or unlike, men, but whether a rule or practice
  serves to subordinate women to men
• law defines sex and sexual difference in ways
  that mask the universality of men's point of view
  and naturalize women's relative powerlessness in
  society

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Second Wave Feminism DIFFERENCE

• Catharine MacKinnon
• -right to privacy or free speech sanction
  spaces in which men can abuse women (domestic
  violence, pornography)

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Second Wave Feminism DIFFERENCE

• Elizabeth Schneider, "The Violence of Privacy
• public/private divide
• opposed to mediation in violence against women
  cases, instead wants criminalization, because
  mediation is a "private" solution, criminal
  sanctions send public message of condemnation

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Second Wave Feminism DIFFERENCE

• Christine Littleton, Womens Experience and the
  Problem of Transition
• 1 ) The law's approach to the problem of violence
  against women accepts violence against women,
  focusing on individual choices (was it safe to
  leave? etc.) rather than on structural problems
  in society
• This translates the problem into a problem of
  individual womens decisions rather than the
  central problems of battering male violence,
  male power, and gender hierarchy (332)

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Second Wave Feminism DIFFERENCE

• Christine Littleton
• 2) Separation/connection
• The problem of transition is created by an
  existing system of power that makes any
  non-conforming patterns of behavior appear
  deviant Phallocentrism is just such a hegemonic
  system. It systematically rewards those who
  conform to culturally male styles of behavior and
  systematically disadvantages those who resist,
  regardless of the biological sex of the actor.
  (p. 333)
• Male jurisprudence separates, yet women seek
  connection to others --gt are there ways we can
  envision solutions to violence against women that
  respect womens desire for safe connection rather
  than forcing women to adhere to (male) standards
  for reasonable behavior?

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Third Wave Feminism DECONSTRUCTION/
POSTMODERNISM

• Criticism of 2nd wave for essentializing gender
• The supposed opposition between masculine and
  feminine can also be deconstructed. Third wave
  feminism looks at how the difference between men
  and women is constructed and performed.
• Instead of the sex/gender distinction or the
  assertion of a common humanity, third wave
  feminism stresses polymorphous difference not a
  difference between men and women, but a continual
  and unstable difference.

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Third Wave Feminism

• Rejects the binary model there are not two
  sexes but a series of sexual identifications and
  performances. There is no natural sex
  underlying our gender.
• Sex and gender are textual or performative --
  always in production and open to question
• Supports the ideal of personhood, as opposed to
  a strong, exclusive sense of identity as women
  point isnt to reverse the socially constructed
  hierarchy so that women are on top, or to
  institute special protections for women, but to
  renegotiate all human relations so power is
  shared

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Third Wave Feminism

• Wendy Brown, States of Injury
• Danger of asking state to provide protection for
  women in doing so, may reflect and reinforce the
  very attitudes which perpetuate inequities.
• Example 1981 Supreme Court case, Michael M. v.
  Sonoma County, upheld Californias statutory rape
  law (had been challenged on equal protection
  grounds)
• Drucilla Cornell statute embodies and reinforces
  assumptions about gender that cause harm
• The Court refuses to examine the role that the
  law plays in reinforcing the very values that
  cause injuries to women.

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Third Wave Feminism

• Also critical of 2nd wave for failing to address
  other forms of oppression, especially race
• Black feminism in USA, Postcolonial or third
  world feminism