Feminist Legal Theory Research Paper

The extension of the right to vote was central to the nineteenth century feminist legal agenda. Informed by the social contract theory, early feminists believed that women’s political enfranchisement would facilitate their emancipation from historical oppression. The women’s rights movement was closely linked to the struggle for the abolition of slavery. In the United States, the campaign for women’s vote is associated with the 1848 Seneca Falls convention and the Declaration of Sentiments that emerged from the meeting. It was at Seneca Falls that the former slave, Sojourner Truth, gave her celebrated ‘Ain’t I a woman?’ speech, which questioned the parallel that is often drawn between the legal status of white women and that of slaves in the rhetoric of early nineteenth century feminism.

Despite the significance of voting as the emblematic act of citizenship and of full participation in the polis, gender-based discrimination was no less pervasive in other spheres of life. Under the common law doctrine of coverture, a woman lived under the tutelage of her father or other male guardian, until through the sacramental covenant of marriage, her civil legal identity was subsumed by that of her husband under whose cover she derived protection. A woman was typically incapable of making contracts or testamentary dispositions, owning and alienating real property, testifying as a witness in court against her husband, suing or being sued in her own name, or controlling her earnings. She could not even protect her own physical integrity—her husband had the right to chastise her, although only with a switch no thicker than his thumb.

The legal fiction of the unity of spouses as well as the rise of separate spheres ideology exempted the private sphere of the family from state intervention, and rendered women vulnerable to an array of abuses, including rape by their husbands. Beginning in the middle of the nineteenth century, a series of statutes—generically called the Married Women’s Property Acts—removed some of the most severe civil disabilities pertaining to women, and acknowledged their personhood for the purposes of the law. Ultimately, struggles for the right to vote, for property rights, for protective labor legislation, for access to education and professional careers, and for related entitlements helped transform the legal landscape. Over the past few decades, feminist strategies have continued to effect change in consciousness and in laws. Legal efforts have focused, inter alia, on expanding reproductive freedom, deterring sexual violence, and eliminating sex-based discrimination in employment, education, family, welfare, and related contexts.

2. Definitions

Feminist legal theory is a legacy both of the nineteenth century campaigns for women’s emancipation and of the renaissance of feminist activism in the United States and elsewhere since the 1960s. Although there is much debate about its definition, feminist legal theory can be understood as the manifestation in the legal academy of a range of efforts to understand the nature of women’s subordination—especially the ways in which it is rationalized and naturalized—and to propose remedies for this subordinate condition. Drawing upon cross-cutting academic and activist traditions, feminist inquiry approaches law both as an ensemble of potential tactics for reform and, more generally, as a site of struggle for a more general political transformation. Most strands of contemporary feminist legal theory have conceptualized law as a historically and socially constructed artifact embedded in particular social relations. Feminist legal theory elucidates the ways in which law facilitates patriarchal dominance and control. Explicating how the doctrines, discourses, institutions, and culture of law perpetuate gender hierarchy, feminist legal theory has provided the impetus for reconceptualizing tightly bonded concepts and premises of legal thought.

Distinctions are often made among various strands of contemporary feminist legal theories. Liberal feminists emphasize the similarities between men and women as rights-bearing autonomous human beings (see e.g., Williams 1982, Kay, 1985, Littleton 1987). Radical feminists argue that society is premised on relations of male domination and female subordination, and that the very epistemological preconditions of law and politics are profoundly gendered (MacKinnon 1982). Postmodern legal feminists show how identities are constituted through multiple structures and discourses that in various ways overlap, intersect, and contradict each other (Frug 1992, Williams 1991). Cultural feminists emphasize the differences in experience and perspective between men and women, challenging the reification of instrumental capacities of men and denigration of the affective capacities of women which prefer the connection of the individual self to others (see e.g., Menkel-Meadow 1985, West 1987).

The various strands identified above are not an exhaustive inventory of the competing perspectives in feminist legal thoughts, and each has been criticized for its limitation. For example, the cultural feminist perspective is sharply countered by critics who view it as simply an atavistic, throwback to nineteenth century stereotypes, which reified and naturalized the separate-spheres moralizing that entrenched gender asymmetry (Dubois et al. 1985). By the same token, the radical view is criticized for presupposing a unique female point-of-view that does not allow for social differentiation (Cornell 1990). Whatever their draw-backs, it is important to note that these strands are not at all mutually exclusive; their overlap is particularly evident in their commitment to make the world better for women by reconstituting legal practices that have excluded, devalued, or undermined women’s concerns.

3. Legal Education

The emergence of the feminist legal theory critique is no doubt linked to the unprecedented entry of women into the legal academy over the past few decades. It was not until 1972 that all bar-accredited law schools in the United States admitted female students. In other countries, the participation of women in legal education has also not been without resistance (see e.g., Dahl 1987, Sachs and Wilson 1978). Feminist theorists have argued that legal education is a microcosm that reflects, reinforces, and reproduces the asymmetric gender relations of the society at large (Obiora 1996). The entire structure of law—its hierarchical organization, its adversarial orientation, and its privileging of formal logic—is considered evidence of its gendered historical and ideological foundations. Studies suggest that the standard law school curriculum marginalizes, distorts, and omits issues of particular concern and interest to women (see e.g., Charlesworth et al. 1991). A recurrent criticism is that the behavioral norms elicited and rewarded by dominant pedagogy are at fundamental variance with socio-cultural norms of female behavior and cause high levels of alienation and role conflict for women in law school (O’Brien and McIntyre 1986).

The idea that gender differences matter is by no means new in the legal terrain. Western philosophical and legal thought is informed and characterized by dichotomous paradigms that may be traced to ancient assumptions of male superiority. Such assumptions found particular expression in systematic sex-role constraints that allocated public power and authority to men and increasingly relegated the activities of women to the private sphere. One of the theories justifying the exclusion of women from the public sphere posited that there was a discrepancy between womanhood and adulthood; the qualities deemed necessary for adulthood—the capacity for autonomous thinking, rational decision making, and logical action are associated with masculinity, but considered undesirable attributes of the feminine self. The opinion of Justice Bradley in the 1873 United States Supreme Court decision in Bradwell vs. Illinois (83 U.S. 130), which affirmed the Illinois bar’s refusal to admit a woman, epitomized the operation of the ideological generalization about women’s intellectual deficiency and providential ordination for domestic concerns. As he put it, ‘[t]he paramount destiny and nature of woman is to fulfill the noble and benign offices of wife and mother.’

4. Reform Initiatives

Feminist legal theory has had diverse targets of inquiry, and has sought to answer many difficult, sometimes intractable, questions about law and society. At the methodological level, it has foregrounded gender as an analytic category. Consonant with techniques of consciousness raising which made visible the personal consequences of gender inequities and the commonalities amongst women’s life stories, feminist legal method draws and builds upon analyses of women’s experiences. Through the critical scrutiny that it has brought to bear on the form and content of orthodox legal theory and practice, feminist methodology has exposed the ambiguities, contradictions, deficiencies, and politics of law. Interrogating the assumptions, arguments, and conclusions which underlie the patterns of constraint that pervade and define the everyday lives of women, it has illuminated how gender hierarchies have been constructed and legitimated in the legal arena.

Contemporary feminist legal theory has provided a framework for the questioning of numerous gendered social practices, such as prostitution and pornography, and made possible the recognition of sexual harassment and various forms of rape as legal categories (see e.g., MacKinnon 1989, Estrich 1986, Smart 1995, Strossen 1993, Shrage 1994). Feminist theorizing has also shown how the private sphere, as exemplified by the family, which had been treated in law as an autonomous realm deserving of protection from state intervention, incorporates myriad forms of gender subordination. Insisting that the ‘personal is political,’ feminist scholars have exposed the gendered consequences of domestic violence and of the allocation and valuation of ‘invisible’ domestic labor, such as child care and housekeeping (see e.g., Schneider 1991, Pateman 1988, Olsen 1983). They have also reinvigorated debates concerning family law issues, ranging from the consequences for women of traditional marriage, divorce, custody, and child support to issues relating to the control of reproduction (see e.g., Fineman 1991). Exposing how women’s unpaid domestic labor and socialization patterns determine the extent to which they can enter the marketplace of paid employment and the terms on which they do so, feminist inquiry has illuminated the connection between domestic arrangements and the structure of the workplace, the regulation of motherhood, the availability of welfare, etc. (Finley 1986, Rose 1992, Radin 1987, Roberts 1991, Abrams 1995, Nedelsky 1990).

Just as beliefs about differences between men and women have rationalized gender inequality, other notions of sexual difference have inspired feminist theorizing. Given the centrality of the principle of equality from the Declaration of Independence to present day political discourse, it is not surprising that feminist legal theory began with an attack on discrimination. Criticisms of restrictive governmental categories were framed in terms of equality of treatment and opportunity. Within this framework, feminists have successfully challenged the assumptions and policies underlying many laws, such as those of female dependency and unsuitability for certain jobs, both in courts and in legislatures. Condemning policies or practices whereby women are denied opportunities simply because of their gender, the liberal feminist enterprise has stressed the similarities between men and women and sought to minimize their differences. Especially during the 1960s and 1970s, feminist jurists relied on a formal equality model which required sameness of treatment for similarly-situated persons and disparate treatments for persons who are not alike as a strategy to trigger the judicial invalidation of many sex-based discriminatory classifications and practices (see e.g., Franke 1995).

To survive judicial scrutiny in the United States, sex-based classifications must bear a substantial relationship to an important governmental purpose. Employing this standard of review, the Supreme Court has insisted on gender-neutral military, social security, welfare, and workers compensation benefits. Under the rule of gender neutrality, in many jurisdictions, the law of custody and divorce has been transformed, giving men (in principle) equal rights to the custody of their children and to spousal support. By and large, the objective of challenging unequal opportunities and the ideology that legitimated them has resulted in a certain undeniable progress. Women have increasingly attained equality in formal rights, but they still experience substantial inequity in social, economic, and political status. The persistence of such disparities is in part attributable to the continuing devaluation of women’s capabilities and women’s work. The ultimate defeat of the proposed Constitutional Equal Rights Amendment (ERA) in the USA during the 1980s underscored the extent to which ‘traditional’ views of gender roles have continued to frame debates. Even in places such as Nigeria, where the mechanism for challenging gender-based discrimination is enshrined in the Constitution, efforts to implement the law remain constrained by deeply embedded customs and tradition.

Faith in formal legal equality obscured its political and practical implications. Equality-based arguments were necessarily value- laden to the extent that they affirmed the status quo in general and accepted of the view of law as rational, objective, neutral, and apolitical. Such equality for women came to mean equality with men—in the United States, with white, middle-class men. In this fashion, the social attributes of men set the norm against which women often appeared deficient. Where there was no man to set the norm (as in pregnancy), it was assumed that there was no discrimination and differential treatment was not condemned. Discourse regarding pregnancy discrimination, for example, ignored women’s reproductive health needs. The achievement of formal equality in some settings has aggravated the real world inequality of women in others.

The substantive approach to equality modifies the formalist argument by focusing on the outcome of actual differences between men and women. Proponents of substantive equality demand that rules address disparate outcomes resulting from sex differences. A variant of this model attempts to remedy past discrimination through measures such as affirmative action and comparable worth schemes. An alternative model of substantive equality invokes sex-based biological differences as a rationale for sex-specific protections. A more comprehensive strategy advocates special accommodations to counteract the costs of social norms and practices that disadvantage women.

The debate over differential treatment strategies caused a rift in the women’s movement. For some, emphasizing women’s unique characteristics has exacerbated their economic disadvantage and magnified underlying stereotypes of their frailty. With time, equality has been reconceptualized as an anti-subordination principle to counter discrimination, not just because the classical focus on formal equality implied unfair treatment of specific individuals, but also because it perpetuated gender hierarchy. This perspective, also known as dominance theory, focuses attention on the imbalance of power between men and women (MacKinnon 1989). Increasingly, feminist legal theory has been influenced by a view of the individual as being constituted of multiple, intersecting, and contradictory institutional and ideological forces. This emerging view has been directed not only outward, against conventional legal principles and values, but also inward against feminist legal theory itself (see e.g., Minow 1988).

5. Critique Of Identity

Feminist legal theory has been faulted for its failure to condemn the other dimensions of injustice that also mediate gender identity. The preoccupation with differences between men and women has obscured the differences among women and the way that other factors such as race, class, age, disability and sexuality mediate these differences. At the same time that women’s choices have been limited, the role of some women—white women of the privileged classes—has been idealized and unreflectively generalized to the situations of other less fortunate women. Consistent with the recognition that the perspective from which one speaks affects the meaning of what is said, some feminists have criticized the liberal mainstream tendency to homogenize and universalize a tacitly normative concept of ‘woman’—typically a white, heterosexual, bourgeois, able-bodied, female citizen of an advanced industrial democracy (see e.g., Harris 1990, Crenshaw 1989, Kline 1989, Williams 1991).

Influenced by the post-modern acknowledgment of the plurality of situated realities, these feminists have insisted that the analytic focus of the feminist paradigm take account of social context, structure, and history. Arguing that the category ‘woman’ has no universal explanatory force, they reject any foundationalism view of identity based on gender distinction alone. They challenge the very notion that there could exist a prototypical woman who can be described in ways that reflect and have meaning for the lives of many different women living in very different geo-graphical, economic, political, and social settings (see e.g., Obiora 1996).

6. Global Dimensions

Gender relations in many non-Western societies are complicated by an intermingling of custom and religion in the law of personal status that governs gender relations. In nineteenth century British debates around numerous gendered practices in colonized regions, the agenda of rescuing non-white women from the barbarity of the culture into which they had the misfortune of being born played an important role in justifying the imperial project. With the intensification of global cosmopolitanism from the 1980s onward, local gender relations have increasingly been required to justify themselves in dialog with alternative modes of being. Gender equity norms symbolize the advance of the human rights agenda.

The most eloquent expression of the prohibition of gender discrimination is codified in the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The imperatives that it articulates have been consolidated in subsequent documents and conferences such as the 1993 Vienna Conference on Human Rights. Notwithstanding the force of the appeal of a global norm of gender parity, there is reason to question how well it has traveled across radically different histories, cultures, and socioeconomic structures. Amid the enthusiasm for spreading human rights ideas across the globe, it is easy to lose sight of the fact that abstract formal rights are seldom a panacea. Gender reform initiatives, laudable as they may be, show clearly that meaningful sociolegal acts of transformation must be sensitive to context and culture.

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