Feminist Legal Theory

1. Feminist Legal Theory LSJ 362 Autumn 2007

2. The law’s apparent neutrality masks its real nature: the law is male.

3. 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

4. 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).

5. Second Wave Feminism: DIFFERENCE Carol GilliganIn a Different Voice Catharine MacKinnon • The law reifies male dominance • Criticizes “sameness/difference theory” used to frame women’s 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

6. 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

7. Second Wave Feminism: DIFFERENCE Catharine MacKinnon -“right to privacy” or “free speech” sanction spaces in which men can abuse women (domestic violence, pornography)

8. 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

9. Second Wave Feminism: DIFFERENCE Christine Littleton, “Women’s 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 women’s decisions rather than the “central problems of battering – male violence, male power, and gender hierarchy” (332)

10. 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 --> are there ways we can envision solutions to violence against women that respect women’s desire for safe connection rather than forcing women to adhere to (male) standards for “reasonable” behavior?

11. 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.

12. 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 isn’t 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

13. 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 California’s 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.

14. 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