Legal Feminism: Activism, Lawyering, and Legal Theory

5 Feminist Legal Theory

Feminist Legal Theory People sure get nervous when a woman’s free. —Trisha Yearwood Everything I know about being a lawyer has been through the emergence of what came to be known as “feminist jurisprudence.” What I call “feminism” is not a way of thinking confined to persons born female. Rather, this feminism is the concrete analysis of systematic oppressions, which analysis has led to a critique of objectivity in epistemological , psychological, and social—as well as legal—terms. There is no “female point of view” nor any “male point of view” corresponding to an individual’s membership in a biologically defined group.1 Rather, there is a socially constructed process that conscripts people into a gendered way of seeing the world. This process includes not only rites of genderization for individuals but also habits of thinking that are contingent but powerful. Among those habits is the division of the world into knowing subjects and known objects, that is, the habit of dividing perceptions between those that are subjective and those that are objective. In the understandable rush to render feminist work acceptable in traditional terms, it is sometimes suggested that feminist lawyers ought to advertise our insights as the best among competing revivals of the Legal Realism of the 1930s. All outsiders are surely indebted to the Realists for their convincing demonstration that the law could not be described, as the formalists and positivists had hoped, as a scientific enterprise, devoid of moral or political content. The Realists’ description of the influence of morality, economics, and politics upon law is the first step in developing an antidote for legal solipsism. In the end, however, Realism was not courageous enough for feminism. The Realists did not revolutionize the law but only expanded the concept of legal process.2 The Realists did not press their critique deeply enough; they did not bring 5 83 home its implications. In the face of their failure, the system has clung even more desperately to objectivity and neutrality. As described in the previous chapter, liberalism is the unifying theme of most contemporary jurisprudential debate. The Ronald Dworkin slightly-left liberals, the Antonin Scalia pretty-far-right liberals, the Law and Economics scholars—all of these people share classic liberal assumptions . Liberalism has the lure of the abstract and the universal. It purports to rise above the grime of detailed daily life. It holds the promise of objectivity. The legal feminism emerging in the 1960s began in that liberal mode. It involved challenging the exclusion of women from equal opportunities of all sorts. The thrust of the approach was to argue for neutrality in legal standards, that is, for a legal rule regarding women that “did not take sex into account.” That led a group of feminist scholars in the 1970s and ’80s—it surely led me3 —to waste a lot of time bickering about rules and standards in the abstract. I thought that if feminist lawyers could just set out our principles precisely enough, if we offered a new, improved equality standard just one more time, then there would be justice in the world. The equality standard did change,4 but the world didn’t, except for the privileged few. It was a time of stuckness for me, until I read the book Catharine MacKinnon wrote in 1979, called Sexual Harassment of Working Women. In it, she demonstrated that the engine of the liberal machine is the “differences approach.”5 If women ask to be treated the same as men on the grounds that we are the same as men, then we concede that we have no claim to equality in contexts where we are not the same as men, whether as matters of biology or as matters of social fact. Slowly the people doing this work came to realize the need to resist abstraction, to realize that perception is not just given but is directed by socially constructed power relations. Thus we also learned the need to resist domestication of our own thought. In the liberal realm, the engine of the struggle for equality has been Aristotelian. Equality means to treat like persons alike, and unlike persons unlike.6 In this system, everything depends upon accuracy in assessing the similarities and differences among situations. The deficiency in the system is always brought home to me by the fact of how recently the U.S. Supreme Court let women in the equal protection door. That was in 1971, in a...