Feminism

Feminism

lecture 1 - feminist legal theory > Equality Difference and Diversity Feminisms

What is feminist legal theory? (flt)
- Theory, teaching and practice about how law affects women
- Women and law; sex discrimination and law; gender and law; feminist analysis of law; feminist
perspectives on law; feminist jurisprudence; and feminist legal scholarship
- At its most general level, flt
 is about scholarship that takes into account women’s perspectives or interests,
 assumes women’s experiences are different from men’s and
 that acceptance of this difference generates commitment to change

Asking the women’s questions?
- Does the rule/practice have gender implications?
- Have women been left out of consideration?
- If so, how might that omission be corrected/addressed?
- What difference would it make to do so?

Difficulties and dilemmas
- Why do feminist need theory? –
 dialectical relationship between theory and practice; theory is not `out there’ based on
concrete, daily experiences
 Elizabeth Schneider – it starts with personal and concrete experience, integrates this
experience into theory and then in effect reshapes theory based upon experience and grows
out experience but it also relates back to that experience for further refinement, validation
or modification
- Is there only one feminist legal theory?
 More than just the `patriarchal’ nature of law (MacKinnon)
 There is no feminist approach to law that can explain multiple oppressions women
experience when it comes to law
 There are many approaches - Liberal; Dominance/Power; Socialist; Cultural;
Poststructural/Postmodern; Queer; Black
 Differ in fundamental ways:
§ Understanding nature of women’s oppression
§ Role of law in that oppression
§ Strategies for overcoming that oppression

Areas of commonality
1. What do feminists do when they do feminist legal theory?
 How does the law effect women and contribute to women’s oppression?
§ Begin with an analysis of legal rules and [practices that are discriminatory on their
face (not having the right to vote. Reasons provided for this was – women are more
vulnerable, cannot reason as good, physically weaker)
§ Explores rules and practices that are discriminatory in their impact (equal pay for
equal work - Justification is pay for the amount of work they do. feminists explain
that both the jobs have the same result and there should be the same pay for the
job they do.
 How can the law be used, if at all; to improve the analysis of legal methodology and legal
reasoning
§ Case analysis
§ Look at the experience from both sides
 Challenges laws claims to neutrality
§ Radical scepticism of neutrality (idea of universal truth/foundation of law)
§ The system doesn’t embody the women’s expenses
§ Catharine MacKinnon - “This defines the task of feminism not only because male
dominance is perhaps the most pervasive and tenacious system of power in history,

, but because it is metaphysically near perfect. Its point of view is the standard for
point-of-viewlessness, its particularity the meaning of universality. Its force is
exercised as consent, its authority as participation, its supremacy as the paradigm of
order, its control as the definition of legitimacy.
2. How can the law be used, if at all, to improve women’s social position?
 Articulate specific strategies for reform
§ Instead of treating genders differently, treat them the same (liberal feminism)
 However, this question of whether law can in fact be a useful tool in bringing about social
change remains a contested issue with feminist legal theory
§ Has gender become more managed rather than liberated?

Mapping FLT: Liberal feminism and equality
- Accepts the basic principles of liberalism
 Individual autonomy/choice
 Formally equal treatment
 Women should be treated the same as men
 This equality/liberal feminism was very important and made very significant contributions
 Successfully challenged many laws and practices that treat women differently, that
prohibited women form doing things, simply because they were women

Dilemmas of difference
- What if women are different from men?
 What about when women are different than men?
 Treating women, the same as men when they are different might not promote women's
equality; it might actually harm them
 E.g. pregnancy as an actual physical difference

Difference Feminism:(radical/dominance/power feminism and cultural feminism)
- differences cannot be ignored
- But there are a number of different ways to think about difference:
 I.e. cultural /relational feminism and dominance feminism
§ both agreed on the implicit male standard but fundamentally disagreed on the
nature of women’s differences.
- Dominance/Power Feminism: The Theory (MacKinnon)
 women are oppressed by men through sexuality.
 defined as sexual objects for men
 sexuality and heterosexuality is the sexual domination of women by men
 as a result, dominance feminists have focused on issues like rape, porn, and sexual
harassment
 these were the very mechanisms through which women were oppressed
 the critique of law - a big one
 the law's values of objectivity and neutrality and formal equality - were simply male
subjectivity/male bias/male domination




READING

Martha Chamalla, Introduction to Feminist Legal Theory (2003) pp. 15-22

, Divides FLT into three stages tracking three decades of intensive developments.. Since 1970’s the field of
feminist legal theory has developed so far that the boundaries between feminist scholarship and other critical
inquiry has become blurred.

- FLT can be divide in 3 stages
1) 1970’s → Equality Stage
2) 1980’s → Difference Stage
3) 1990’s → Diversity Stage

 NB: These stages are oversimplifications as they indicate when certain themes began to emerge. They may
not even represent predominate feminist influence at the time. And at each stage there is some individual
scholars whose work seemed to fit better in another stage. E.g. in 1970s when most scholarship stressed
the similarities between men and women, some feminists stressed the importance of diversity among
women.
 They don’t exist in nature, rather they are contrasted in order to aid understanding of the diverse and
contradictory arguments of feminist scholarship.

- the Equality Stage of the 1970s
 emphasis was on women’s similarity to men
 feminists concentrated primarily on dismantling the intricate system of sex based legal
distinctions which had been established purportedly to protect women – feminists argued
that protection through law was harmful to women because it served to restrict women’s
live to the home and family.
 specifically focused on individual rights, particularly the right of non-traditional women to
engage in male-dominated activities. its central message was that gender should be
irrelevant to the distribution of legal benefits and burdens and that persons should be
treated as individuals, not as members of a class.
 These were liberal feminists – reject biological, natural claims of gender difference. Share a
commitment to individual autonomy and choice and insist that these freedoms be afforded
to women as well as men. Liberal feminists are called ‘assimilationists – their arguments
didn’t challenge the rules or structure but focused on equal access within their framework
 The term feminists didn’t exist – they called themselves women’s advocates
- the Difference Stage of the 1980s
 the concept of difference in regard to poverty, gender gap in politics, the ‘glass ceiling’ and
other phenomena’s which made it clear that the gender were different, was studied
 feminists began to emphasise the various ways that men and women were different – from
cultural attitudes, ideology, socialisation or organisational structures.
 Revised the concept of ‘equality’ to mean something other than ‘identical treatment’ pf men
and women - argued if men and women didn’t start from the same position, identical
treatment of each group might never produce meaningful equality. The implicit male norms
themselves should be changed to achieve equality
 Difference feminists emphasised the importance of issues such as pregnancy, sexual violence
(including rape, sexual harassment, domestic violence and pornography).
 Dominance theorists developed a critique of liberalism, including liberal feminism. They
argued that rather than increasing women’s power, well-established concepts such as
privacy, objectivity and individual rights actually operated to legitimate the status quo.
 Argued law failed to protect women’s bodily integrity – the anti-pornography campaign drew
links between portrayals of women as sex objects and the prevalence of sexual violence and
sex discrimination.
- the Diversity Stage of the 1990s
 focused on diversity amongst women themselves
 led by lesbians and women of colour who claimed they had been left out.
 1990s feminist’s critic of feminism emphasised the dangers of essentialism – the assumption
that there is some essential commonality among all women – whether it be women’s
oppression by men or women’s different voice.
 Feminists have aspired to embrace a ‘both/and’ rather than ‘either/or’ mindset.