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In praise of legal feminism

Butterworths Inaugural Legal Studies Lecture

Published online by Cambridge University Press:  02 January 2018

Ngaire Naffine*
Affiliation:
University of Adelaide

Abstract

This paper reflects on the achievements of feminism within the legal academy. Rather than offer an encyclopaedic account of feminist legal scholarship, it seeks instead to define, in broad terms, the aims, the spirit and the methods of legal feminism, identifying the commonalities among feminist scholars. It suggests that it is the critical study of law as ‘a form of life’, to borrow from Wittgenstein, which perhaps best characterises the shared endeavour of legal feminists. The paper identifies the major intellectual and political difficulties encountered, and also engendered, by feminists in the course of their work, and it assesses the impact of feminism on mainstream jurisprudence.

Type
Research Article
Copyright
Copyright © Society of Legal Scholars 2002

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References

1. A useful list of some of the major books and journals of legal feminism is to be found in Joanne Conaghan's recent review of feminist legal theory: ‘Reassessing the Feminist Theoretical Project in Law’ (2000) 27 J Law and Society 351 at 352.

2. This paper itself invites such a criticism. So it is appropriate, from the outset, to acknowledge that the feminist project is not singular. As I will endeavour to show, there is a number of, mainly constructive, debates among feminists about their appropriate aims and methods. And, of course, feminist legal scholars possess a broad range of intellectual and political backgrounds. Conaghan includes among them ‘liberalism, socialism and Marxism, American critical legal studies and critical race theory, poststructuralism and post-modemism, and psychoanalytic perspectives’. Conaghan, n 1 above, pp 357–358. My intention, however, is to draw out the commonalities of purpose of feminist legal scholarship, to enable a view of legal feminism as a whole. The reluctance of many feminists to ‘essentialise’ both women and feminism necessarily renders this broad-brush approach controversial (a critical discussion of the feminist fear of essentialism is to be found in part three of this paper).

3. This point is well made in Charlesworth, H and Chinkin, C The Boundaries of International Law: A Feminist Analysis (Manchester: Manchester University Press, 2000).Google Scholar

4. The word ‘gender’ is, for the moment, a term of convenience which will be readily understood by the reader. A discussion of the important distinction between sex and gender is to be found below.

5. The final persons' case was Edwards v A-G for Canada [1930] AC 124. A legal history of the persons' cases is to be found in Sachs, A and Wilson, J H Sexism and the Law: A Study of Male Beliefs and Legal Bias in Britain and the United States (Oxford: M Robertson, 1978)Google Scholar. In Edwards the Privy Council finally conceded that women were ‘persons’ for the purpose of the right to be nominated to the Canadian Senate.

6. Wittgenstein, L Philosophical Investigations trans G E M Anscombe (Oxford: Blackwell, 1953) s 19 Google Scholar.

7. Wittgenstein, n 6 above, s 23.

8. Wittgenstein, n 6 above, s IIxi.

9. McGinn, M Routledge Philosophy Guidebook to Wittgenstein and the Philosophical Investigations (London: Routledge, 1997) p 51.Google Scholar

10. Grayling, A C Wittgenstein (Oxford: Oxford University Press, 1988) p 85.Google Scholar

11. Bloor, D Wittgenstein: A Social Theory of Knowledge (London: Macmillan, 1983) p 140.CrossRefGoogle Scholar

12. Lacey, N (ed) Unspeakable Subjects: Feminist Essays in Legal and Social Theory (Oxford: Hart Publishing, 1998) p 232.Google Scholar

13. See Dworkin, R Law's Empire (London: Fontana, 1986).Google Scholar

14. Of course, Dworkin's theory of the integrity of law is not without its detractors, even within the confines of analytical jurisprudence. For a recent concise and critical account of Dworkin's theory of law see Tebbitt, M Philosophy of Law (London: Routledge, 2000) ch 4Google Scholar. For a discussion of the mechanisms by which analytical legal theorists have maintained their distance from other disciplines see Davies, M and Naffine, N Are Persons Property? Legal Debates about Property and Personality (Aldershot: Ashgate Press, 2001)Google Scholar chs 1 and 3 and Davies, M Delimiting the Law: Postmodernism and the Politics of Law (London: Pluto Press, 1996).Google Scholar

15. I say ‘implicitly accepted’ because the work of Wittgenstein has not played a central role in the development of feminist legal theory. However, his analysis of language formation and language use within a form of life seems particularly useful to feminism as I intend to show in this paper.

16. N Lacey ‘Community in Legal Theory: Idea, Ideal or Ideology?’ in Lacey (ed), n 12 above, p 147.

17. Wittgenstein himself tended to focus on the consensus among language users. However, it is possible to give a more political reading to Wittgenstein, as Naomi Scheman has done in ‘Forms of Life: Mapping the Rough Ground’ in Sluga, H and Stern, D G (eds) The Cambridge Companion to Wittgenstein (Cambridge University Press, 1996) p 383.CrossRefGoogle Scholar

18. There is, of course, an honourable tradition of feminists doing battle over terms: our predecessors, the suffragists, submitted themselves to physical assault and even force feeding in their efforts to change the meaning of the word ‘person’.

19. The close connection between theory and practice in feminist legal theory is discussed in Bottomley, A and Conaghan, J in Feminist Theory and Legal Strategy' in Bottomley, A and Conaghan, J (eds) Feminist Theory and Legal Strategy (Oxford: Basil Blackwell, 1993) p 1.Google Scholar

20. Mahoney, RLegal Issues of Battered Women: Redefining the Issues of Separation’ (1991) 90 Mich LR 1.CrossRefGoogle Scholar

21. See A Wallace Homicide: The Social Reality (New South Wales Bureau of Crime Statistics, Attorney General's Department, 1986).

22. Paradoxically, the reluctance of police to respond swiftly and strongly to domestic violence was also a function of the perceived dangers of such ‘disputes’, as I discovered as a police officer.

23. The government of South Australia has done this, eg in its recent amendments to the criminal law of that state.

24. On the problem of having one's meanings altered in the specific context of rape law reform see Heath, M and Naffine, NMen's Needs and Women's Desires: Feminist Dilemmas about Rape Law Reform’ (1994) 3 Australian Feminist LJ 30.CrossRefGoogle Scholar

25. Wittgenstein, L Remarks on the Philosophy of Psychology Vol II von Wright, G H and Nyman, H (eds) (Oxford: Blackwell, 1980) s 652.Google Scholar

26. For a discussion of women's admission to professional university faculties see Sachs and Wilson, n 5 above.

27. Scheman, n 17 above, p 403.

28. Scheman, n 17 above, p 404.

29. E Evatt in Charlesworth and Chinkin, n 3 above, p ix.

30. See Dworkin, REquity, Democracy and the Constitution: We the people in court’ (1990) XXVIII Alberta LR 324.Google Scholar

31. See Sachs and Wilson, n 5 above.

32. N Lacey (ed), n 12 above, p 231.

33. For a fuller discussion of this impoverished liberal legal view of the person see N Lacey ‘Theories of Justice and the Welfare State’ in Lacey (ed), n 12 above, p46.

34. James, W Pragmatism (New York: Dover Publications, 1995) p 27.Google Scholar

35. James, n 34 above.

36. James, n 34 above.

37. Indeed some feminists have explicitly adopted this approach, as in Judith Gardam's study of humanitarian law from the point of view of an alien: Gardam, JAn Alien's Encounter with the Law of Armed Conflict’ in N Naffine and R Owens (eds) Sexing the Subject of Law (North Ryde: Law Book Company, 1997) p 233.Google Scholar

38. Wittgenstein, n 6 above, s IIxi.

39. See Wishik, HTo Question Everything: The Enquiries of Feminist Jurisprudence’ (1986) 1 Berkeley Women's LJ 64.Google Scholar

40. There is an extensive feminist literature on the public/private distinction but see in particular Thornton, M (ed) Public and Private: Feminist Legal Debates (Melbourne: Oxford University Press, 1995)Google Scholar and N Lacey ‘Theory into Practice? Pornography and the Public/ Private Dichotomy’ in Bottomley and Conaghan (eds), n 19 above, p 93.

41. According to Wittgenstein's ‘private language argument’, linguistic meaning is public not private. It is shared and social, not individual and personal; and thus we rely only on public criteria to check the meaning of all our terms. In essence, it entails the proposition that there is no such thing as a private language; that language is public by nature. From this it follows that we must attend to concepts as they are deployed within a form of life in order to obtain their sense.

42. Some legal feminists however have explicitly invoked Wittgenstein and his private language argument. See eg, M Davies ‘Taking the Inside Out: Sex and Gender in the Legal Subject’ in Naffine and Owens (eds), n 37 above, p 25, esp pp 38–40.

43. Psychology has had a considerable effect on legal feminists, especially the work of Gilligan, C In a Different Voice: Psychological Theory and Women's Development (Cambridge, Mass: Harvard University Press, 1993)Google Scholar. Luce Irigaray from literary and psychoanalytic theory has, to varying degrees, influenced the work of Catharine MacKinnon, Drucilla Cornell and Nicola Lacey. Carol Smart is herself both sociologist and legal analyst. Even feminist philosophers of science, such as Sandra Harding and Donna Harraway, have exerted an influence on legal feminists.

44. This term is borrowed from Naomi Scheman, n 17 above, p 39.

45. James, n 34 above, p 23.

46. James, n 34 above, p 23.

47. A Bottomley and J Conaghan in ‘Feminist Theory and Legal Strategy’ in Bottomley and Conaghan (eds), n 19 above, p 1.

48. To some feminists, only women can be feminists. To others, myself included, men can also assume this title. However, it is safe to assert that the large majority of legal feminist scholarship is by women.

49. MacKinnon, C Feminism Unmodified: Discourses on Life and Law (Cambridge, Mass: Harvard University Press, 1987) p 39.Google Scholar

50. For a feminist critique of MacKinnon see Cornell, D Beyond Accommodation: Ethical Feminism, Deconstruction and the Law (New York: Routledge, 1991) ch 3Google Scholar; and Cornell, DSexual Difference, the Feminine, and Equivalency: A Critique of MacKinnon's Toward a Feminist Theory of the State’ (1991) 100 Yale LJ 2247.CrossRefGoogle Scholar

51. Other feminists, such as Carol Smart, have questioned this reliance on law as a panacea for sexism. See Smart, C Feminism and the Power of Law (London: Routledge, 1989) pp 67–68.CrossRefGoogle Scholar

52. Grayling, n 10 above, p 84.

53. See Berlin, I Two Concepts of Liberty (Oxford: Clarendon Press, 1959)Google Scholar for one of the classic statements on the importance of the private sphere. And for a challenge to this view, see Charlesworth and Chinkin, n 3 above, p 44; and O'Donovan, K Sexual Divisions in Law (London: Weidenfeld, 1985) p 78.Google Scholar

54. William Blackstone Commentaries on the Laws of England, reprint of 1st edn, 1765 (Chicago: Chicago University Press, 1979) vol 1, p 121.

55. See in particular Frances Olsen's ‘The Myth of State Intervention in the Family’ (1985) 18 U Mich JL Ref 835.

56. Writing specifically in defence of the power of testamentary disposition, Bentham said ‘Clothed with the power of making a will. he [the testator] may be considered as a magistrate set over the little kingdom which is called a family, to preserve it in good order’: ‘Principles of the Civil Code’ in Bowring, J (ed) The Works of Jeremy Bentham Vol 1 (Edinburgh: William Tait, 1843) p 337 Google Scholar.

57. There is an extensive critical literature on this liberal conception of the pre-legal and pre-social subject, but see the influential early work of Pateman, Carole The Sexual Contract (Cambridge: Polity, 1988)Google Scholar; Naffine, N Law and the Sexes: Explorations in Feminist Jurisprudence (Sydney: Allen and Unwin, 1990)Google Scholar; and Frazer, E and Lacey, N The Politics of Community: A Feminist Critique of the Liberal-Communitarian Debate (Hemel Hempstead: Harvester, 1993).Google Scholar

58. This is not to say that feminists do not recognise that enforced relations can also be dangerous. Indeed feminists have helped to bring to light the extent of violence against women in and out of the home, much of it of a sexual nature. It should also be said that the liberal ideal of the free autonomous individual has been of considerable strategic value for feminists and that it continues to supply an important aspiration.

59. Jennifer Nedelsky is responsible for some of the more interesting developments of the idea of relational autonomy. See her ‘Reconceiving Autonomy’ (1989) 1 Yale J Law and Feminism 7;’Law, Boundaries and the Bounded Self (1990) 30 Representations 162; and ‘Reconceiving Rights as Relationships’ (1993) 1 Review of Constitutional Studies 1.

60. Many liberals have in fact conceded the problems of liberalism expressed in its starkest form and have therefore partially recognised the constituting nature of social relations. For a recent defence of liberal conceptions of autonomy see Jackson, E Regulating Reproduction: Law, Technology and Autonomy (Oxford: Hart Publishing, 2001) esp ch 1.Google Scholar

61. The sexual divisions in law are nicely expounded in O'Donovan, n 53 above.

62. Carter, A The Sadeain Woman: An Exercise in Cultural History (London, Virago, 1979) p 9.Google Scholar

63. Though this is not necessarily the case, as I will point out in the next part of this paper.

64. Poole, ROn Being a Person’ (1996) 74 Australasian J Philosophy 38 at 43.CrossRefGoogle Scholar

65. The thesis that women acquire a more authentic view of patriarchy, because of their oppression, is associated with ‘standpoint feminists’ and particularly with the work of Nancy Hartsock ‘The Feminist Standpoint: Developing the Ground for a Specifically Feminist Historical Materialism’ in Harding, S and Hintikka, M B (eds) Discovering Reality: Feminist Perspectives in Epistemology, Metaphysics and Science (London, Reidel, 1983) p 283 Google Scholar. A discussion of some of the epistemological problems inherent in standpoint feminism is to be found in Naffine, N Feminism and Criminology (Cambridge, Polity, 1997).Google Scholar

66. This tendency to neglect biology in early feminism is further discussed in N Naffine and R Owens ‘Sexing Law’ in Naffine and Owens (eds), n 37 above, p 3.

67. Murphy, TFeminism on Flesh’ (1997) 8 Law and Critique 37 at 39.CrossRefGoogle Scholar

68. Although my analysis of language has relied on the work of the later Wittgenstein, feminist theory has tended to look more to the writings of French literary theorists such as Ferdinand de Saussure and Jacques Derrida. However, there are important similarities between these three philosophers of language.

69. Davies, n 43 above, p 26.

70. Murphy, n 67 above, at 38.

71. This has been a long-standing concern of Drucilla Cornell, evident in all her feminist theory, but see Cornell, DConvention and Critique’ in Cornell, D (ed) Transformations (New York, Routledge 1993) p 15.Google Scholar

72. The work of Kimberley Crenshaw is particularly associated with this thesis. See Crenshaw, KDemarginalising the Intersection of Race and Sex: A Black Feminist Critique of Anti-Discrimination Doctrine, Feminist Theory and Antiracist Politics’ (1989) University of Chicago Legal Forum 139.Google Scholar

73. See Crenshaw, K (ed) Critical Race Theory: The Key Writings that Formed the Movement (New York: New York University Press, 1995).Google Scholar

74. This thesis is more fully articulated in Spelman, E Inessential Woman: Problems of Exclusion in Feminist Thought (Boston: Beacon Press, 1988).Google Scholar

75. For an extended discussion of the problematic nature of ‘grand theory’ see N Lacey ‘Closure and Critique in Feminist Jurisprudence: Transcending the Dichotomy or a Foot in Both Camps?’ in Lacey, n 12 above, p 176.

76. See the discussion of ‘strategic essentialsm’ in Conaghan, n 1 above, p 373.

77. See Davies, n 42 above, for a critical analysis of the two-sex system.

78. See Harris, ARace and Essentialism in Feminist Legal Theory’ (1990) 42 Stan LR 580 Google Scholar. And then MacKinnon's reply in MacKinnon, CFrom Practice to Theory’ (1991) 4 Yale J Law and Feminism 13 Google Scholar. See also Carol Smart's critique of MacKinnon's supposed essentialism in Smart, n 51 above, pp 75–77 and Margaret Davies' defence of MacKinnon in Davies, M Asking the LAW Question (Sydney: LBC, 1994).Google Scholar

79. Charlesworth and Chinkin, n 3 above, p 45.

80. Barron, AFeminism, Aestheticism and the Limits of Law’ (2000) 8 Feminist Legal Studies 275 at 278.CrossRefGoogle Scholar

81. The political implications of the use of the first and third person by feminist theorists is discussed in N Lacey ‘Feminist Legal Theory Beyond Neutrality’ in Lacey (ed), n 12 above, p195.

82. Barthes, RThe Death of the Author’ in Barthes, R (ed) Image, Music, Text (trans Stephen Heath) (London: Fontana, 1977) p 142.Google Scholar

83. E Spelman in ‘How do they see you?’ London Review of Books 16 November 2000.

84. On the ongoing suspicion of generalities see Spelman, n 83 above.

85. Drakopoulou, MThe Ethic of Care, Female Subjectivity and Feminist Legal Scholarship’ (2000) 8 Feminist Legal Studies 199 at 210.CrossRefGoogle Scholar

86. Conaghan, n 1 above, p 363.

87. Barron, n 80 above, at 276.

88. Barron, n 80 above, at 276.

89. A recent discussion of the forced caesarean section cases is to be found in Jackson, n 60 above, pp 131–140.

90. As Nicola Lacey observes, our liberal law's ‘primary focus [is] on the individual, on persons one at a time. as moral units’: N Lacey ‘Theories of Justice and the Welfare State’ in Lacey (ed), n 12 above, p 62.

91. John Seymour has described it thus in Child birth and the Law (Oxford: Oxford University Press, 2000).

92. The struggle of higher courts to make sense of the state of pregnancy is particularly apparent in A-G's Reference (No 3 of 1994) [1998] AC 245.

93. See N Lacey ‘From Individual to Group? A Feminist Analysis of the Limits of Anti-Discrimination Legislation’ in Lacey (ed), n 12 above, p 24; and J Conaghan ‘Pregnancy in the Workplace: A Question of Strategy?’ in Bottomley and Conaghan (eds), n 19 above, p 71.

94. Admittedly, it is difficult to marry high-level theory with specific law reforms. The heroic endeavours to do so of both Drucilla Cornell and Luce Irigaray have met with limited success. See N Lacey ‘Normative Reconstruction in Socio-legal Theory’ in Lacey (ed), n 12 above, p 221.

95. One imaginative endeavour to construct a rape law which implicitly recognises female integrity is to be found in N Lacey ‘Unspeakable Subjects, Impossible Rights: Sexuality, Integrity and the Criminal Law’ in Lacey (ed), n 12 above, p 98.

96. The heyday of legal theory of persons was the 1920s and 30s when it was still considered an important jurisprudential topic. Since then it has waned in importance. This process of atrophy is examined in Davies and Naffine, n 14 above.

97. Indeed this vacillating tendency is a central theme of Alexander Nekam's The Personality Conception of the Legal Entity (Cambridge, Mass: Harvard University Press, 1938).

98. Nekam, n 97 above, p 49.

99. Nekam, n 97 above, pp 49–50.

100. Notes ‘What we talk about when we talk about persons: the language of a legal fiction’ (2001) 114 Harv LR 1745 at 1745.

101. Salmond on Jurisprudence (London: Sweet and Maxwell, 12th edn, 1966) p 306.

102. Kelsen, H Pure Theory of Law (Berkeley: University of California Press, 1967) pp 173–174.Google Scholar

103. Nekam, n 97 above, p 67.

104. Dias, R W M Jurisprudence (London: Butterworths, 5th edn, 1985) p 270.Google Scholar

105. Tur, RThe “Person” in Law’ in Peacocke, A and Gillett, G (eds) Persons and Personality: A Contemporary Enquiry (Oxford: Basil Blackwell, 1987) pp 121–122 Google Scholar. The problem with this severe legal formalism is that it of course denies the normative nature of legal concepts and the considerable (and intended) influence of legal concepts on social and political life. It ignores law's expressive function.

106. According to Nekam, for example, this is the best way of immunising law from the philosophical or metaphysical connotations of the person. He maintains that ‘[t]he use of the idea of personality to explain the subject-of-rights character of a thing, and the consequent use of the word “person” to designate the legal entity, are both as inappropriate as they are dangerous. While from one point of view they say too much, from another they say too little’: Nekam, n 97 above, p 67. They say too much in that they invite metaphysical speculation about human personality. They say too little in that they fail to convey a proper understanding of the esoteric workings of the legal device of personality.

107. I am referring here to a long-standing debate between positivists and natural lawyers. This debate tends to form a central subject of most orthodox texts of jurisprudence.

108. For human rights lawyers it is almost axiomatic that legal rights map onto a natural antecedent human subject. Thus it is said that rights ‘inhere in the natural condition of being human’: Kinley, D (ed) Human Rights in Australian Law: Principles, Practice and Potential (Sydney: Federation Press, 1998) pp 4–5 Google Scholar. For some this subject of legal rights is simply ‘the human being’. For others this subject is the ‘normal’ human being. Thus is the legal subject linked with ‘natural’ human beings and so naturalised, fixed and hypostatised. The very idea of a human right connotes a natural human being who forms the basis of the right.

109. For an anthropologist's account of other pollution-conscious societies see Douglas, M Purity and Danger: An Analysis of Concepts of Danger and Taboo (London: Routledge and Kegan Paul, 1966).CrossRefGoogle Scholar

110. As David Bloor declares in his discussion of Kuhnian paradigm shifts, ‘[a] potential anomaly can only create a crisis and precipitate a revolution if somebody makes it so, hence the whole process depends on the balance of power in the relevant group’: D Bloor, n 11 above, p142.

111. With their borders thus secured, orthodox jurists have been able to rely on home-spun misogynist folk wisdom about human nature, and especially women's nature, when they come to justify their decisions and reasoning and with little fear of contradiction from those who are thought to count. Such crude speculation, unsupported by rigorous empirical data, has been manifest in the area of rape law, for example. We have heard of women's tendency in sexual matters to lie and to deceive, to be confused about their own desires and to convey mixed messages. Slight evidence has been offered in support of these propositions, and yet this bigotry has often persisted with little effective opposition. See Naffine, NWindows on the Legal Mind: Evocations of Rape in Legal Writing’ (1992) 18 Melbourne University Rev 741.Google Scholar

112. I did this myself in Law and the Sexes: Explorations in Feminist Jurisprudence (Sydney: Allen and Unwin 1990). However, as Joanne Conaghan explains, many feminists now ‘characterise specific features of law as “male” rather than treat. law in a global way’: J Conaghan, n 1 above, p 362.

113. Moreover, someone or something does not have to possess even a minimum cluster of legal rights in order to be a legal person (though some natural lawyers may insist on a minimum grouping of human rights).

114. Hohfeld, W NSome Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913) 23 Yale LJ 16 CrossRefGoogle Scholar; and Hohfeld, W NFundamental Legal Conceptions as Applied in Judicial Reasoning’ (1917) 26 Yale LJ 710.CrossRefGoogle Scholar

115. There is therefore, paradoxically, already within law a relational and therefore inherently social view of the person. It is paradoxical because positivist lawyers have tended to insist that legal personality is a strictly legal, not a social, concept.

116. Drakopoulou, n 85 above, at 200.

117. As Hamish Ross has recently observed in his account of law as a social institution, ‘the pervasive relationality’ which underlies social behaviour ‘is reflected. in the structure of key legal concepts’: Ross, H Law as a Social Institution (Oxford: Hart Publishing, 2001) p 128 Google Scholar. This observation is particularly applicable to the concept of the person which may be regarded, in Hohfeldian fashion, as nothing more than a transient assembly of legal relations.

118. In his Remarks on the Philosophy of Psychology, Wittgenstein asked ‘Thus can there be definiteness only where life flows quite regularly? But what do they do when they come across an irregular case? Maybe they just shrug their shoulders.’ Wittgenstein, n 25 above, s 653.