(Re)Placing the State: Family, Law and Oppression

Abstract

AbstractIn this article I argue that an analysis of “the State” is necessary in order to understand legal developments related to “family” that are relevant to efforts to combat the oppression of heterosexual women, as well as of lesbians and gay men. Drawing on recent debates concerning postmodernism and feminist theory, I review efforts to reconceptualize the nature of the state not as a monolithic institution, but rather as a set of arenas, or the site of various discursive formations. Because laws are generated from within, but are only part of, concentrated forms of state power, feminists and progressive groups that are engaging with law must retain an explicit analysis of the state. This analysis must be more nuanced and displaced than it has been in instrumentalist and structuralist accounts, in order to explore the ways in which feminists have influenced legal change and whether this influence is positive or negative for different groups. The limits on law's ability to fundamentally transform the social relations of oppression must however be recognized. In particular, the relationship between overall state trends—for example privatization—and trends specific to certain state arenas such as courts and legislatures—for example enhanced women's rights to men's property and increased legal recognition of same sex couples—must be traced in order to determine the political impact of seemingly progressive movements in areas related to “the family”.