Authenticity and Fiction in Law: Contemporary Case Studies Exploring Radical Legal Feminism

Authenticity and Fiction in Law: Contemporary Case Studies Exploring Radical L·gal Feminism4 Sarah Slavin It is a basic act of self-respect to refuse to acquiesce in our own derogation and dehumanization; to decide that we will not surrender our bodies or our minds without a struggle, that we will not be bought, or battered, or teased, or terrorized, or numbed, or brainstarved into any state which mutilates our integrity.1 One consequence of law in the U.S. is discrimination against groups of people in the distribution of benefits and burdens. Law must endlessly discriminate, or classify, in providing the standards by which people with a law-and-order maintaining perspective may predict their behavior. Most people have a law-and-order maintaining perspective. They are expected to because this stabilizes the regime.2 Women are one social group subordinated by this endless discrimination and allocation of valued things. In the words of Gaya tri Chakravorty Spivak, a denial by law of women to themselves expunges "the clitoris as the signifier of the sexed subject."3 To separate out, consistently, sexuality and reproduction in defining women's legal status would introduce to sex- and gender-based classifications a responsiveness not currently present. Legal reforms tend instead to justify dispossession, maintaining to the extent possible superordinate male-value-linked legal practices, including emphasis on women's reproductive function and de-emphasis of sexuality as social construct. Reforms fail to represent women's voices or, as Hélène Cixous has written, "song before law."4 In this context, it seems futile to expect to recover representations of damage sustained by women, in our many cultural communities, and of what, as a matter of history, we have lost.5 In this regard, law as an embodiment of collective decision, as means to survival and self-destruction, seems insufficient for our needs. Law, nonetheless, may be necessary to make tangible and perceptible, in the body politic and elsewhere, women's entitlement to decision-making power, indeed, to survival as well as to self-definition. Zillah Eisenstein sees struggle within law as "part of the process of challenging patriarchal privilege,"6 Legal challenges have been so used by social movements throughout U.S. legal history.7 Applied to a litigant's experiences, broad social purposes may be served by bringing these challenges. This is a meaning of outcomeoriented litigation,8 with a determining factor the relationship that obtains ©1990 Journal of Women's History, Vol. ι No. 3 (Winter)__________________ "Parts of this article were presented to the Southern Political Science Association annual convention, Memphis, 1989, and the Conference on Women in the Year 2000: Utopian & Dystopian Visions, Indianapolis, 1988. I acknowledge Elaine Heffernan and Victor Balowitz for talk about rights and philosophy, and Berenice Carroll, Kathleen Barry, and Joan Hof f-Wilson for encouragement and interest. The works of Susanne Kappeier and of Clyde Taylor have inspired me. 124 Journal of Women's History Winter between a rights-based claim and social movement and struggle.9 People dispossessed may "attach positive symbolic value to such claims in a search for ways to challenge disavowals of their respective needs."10 Along with its purposes, law's method needs accessing by social practice . To dispute in some cases women's classification by law, or lack of classification in others, or in some cases, both, is to dispute the basis for the state11 and even to destabilize it. Legal institutions, like educational ones and those to which labor and welfare are assigned, need to be reorganized for women's multi-dimensional selves to come to the fore. Such struggle constitutes movement toward social transformation, but legal challenges also may be important—if not entirely or always satisfactorily—to the daily lives of individual, sexually abused children, or their mothers in trying to protect them, or to pregnant teenaged women, a woman after partnership in an upper level job, a construction job where there have been no women before or seniority calculated in a way not tending to reserve certain jobs for men, to women and minority peoples subject to sexual and racial harassment or bias-related violence, to women and men with AIDS. Rapists ought...