Feminist Legal Scholars Research Articles

Under the shadow of legality: A shadow hauntology on the legal construction of the Women, Peace and Security agenda

Abstract Considered a landmark in feminist international politics, the Women, Peace and Security (WPS) agenda of the UN Security Council has been the object of many feminist explorations. Feminist legal scholars, however, have grappled with the ‘shadowy’ legality of the agenda, mostly analysing it as an ‘unsuccessful’ legal project: a partial or in progress legal norm, a defective legal form that attests (and furthers) the exile of inclusion of feminists in international law, or yet a formalistic discussion with lesser impact for feminist activists on the ground. Drawing from Avery Gordon’s considerations on taking shadows seriously in our production of knowledge, I propose, however, that reckoning with the shadows of the WPS’s legality enables a more comprehensive analysis of how the agenda has been a successful legal project in its own way. Offering a ‘shadow hauntology’ for the legal status of the WPS, I zoom in on the competing legality perceptions shared by relevant actors, the (gendered and colonially-continuous) shadows that have haunted those perceptions into formation, and how these competing visions have shaped the legality of the WPS as a shadow of its own. This study then offers an alternative way of studying legality both to feminist legal scholarship and studies on international legal sources more broadly. More concretely, it embraces the irresolvability of the legal status of a norm to take stock of the different legal projects and legality perceptions advanced by feminist actors and gender experts, in an effort to understand, in their own terms, the successes achieved.

Institutionalising women’s experiences in law: Possibilities and pitfalls of parliamentary gender audit committees

Feminist legal scholars have long recognised that law is gendered, being a manifestation of power that often works to the detriment of women. This need not be the case. This article tests the capacity of law to make a material difference on women’s lives through parliamentary auditing. The arguments springboard from an innovation emerging in Tasmania in 2022: a Gender and Equality Audit Committee in the Tasmanian Legislative Council. Alongside the Australian Capital Territory’s Standing Committee on the Economy and Gender and Economic Equality, these Australian examples provide a framework to interrogate the possibilities for inclusive, gendered legislative scrutiny.

Gendering Public and Private International Law: Transversal Legal Histories of the State, Market, and the Family through Women's Private Property Rights

This essay takes up Karen Knop's challenge to reconstruct the oft-made distinction between private and public law by engaging private international law (PrIL) as a “lost side of international law.”1 To do so we interrogate the changing fortunes (literally) of women's private property rights in the long nineteenth century—a period characterized by the divestment and reinstatement of gendered rights in national law—focusing on the Nordics, Europe more broadly, and the Colonial world. Following Knop and other feminist legal scholars, and by engaging with questions of what Mariana Valverde calls “scale,”2 we bring women's property rights in conversation with international law. In doing so, we point to sites of engagement where the politico-economic structures of international law are lived, negotiated, reconfigured, and made real.3 We use scale to frame and inform our analysis bringing attention to how the “small” (micro) economics and politics of everyday life, women's labor, and gendered legal concerns, underpin and are an intrinsic part of the “large-scale” structures of international law. “All scales shifts,” Mariana Valverde notes, meaning that such “processes . . . br[ing] certain phenomena into focus that had previously been blurred or pushed to the background.”4 Recovering matters of women's history and everyday life, which, as Knop has argued are often “hiding in plain sight,” with a focus on women's property rights, brings to the fore the critical relationship between family/household, market, and the state, and the fundamental role international law has played in implementing a specific economic vision through the organization of gendered power relations.

The harm of normalized violence: re-identifying intimate partner violence as torture in acknowledging the stakes of abusive relationships

ABSTRACT In this article, I draw on the work of radical feminist legal scholars, who have argued for using the terminology of torture in international law as a means to take intimate partner violence (IPV) seriously and to recognize the harm of normalized violence. I explore lived experiences of IPV based on my feminist activist research, which has included co-moderating online support groups and conducting follow-up interviews with women who have been subjected to coercive control. I examine in detail the similarities between torture and IPV in terms of the purposiveness, severity, and effects of violence, and show how these were concretized in the lives of research participants. This research took place in Finland, which has been referred to as the “Nordic paradox,” as IPV is both common and normalized within Finnish culture and society and the harm of private violence is generally dismissed. I conclude that drawing these parallels could serve as a means to raise awareness of the stakes of abusive relationships and validate targets’ experiences of abuse. Moreover, focusing research on experiences of violence in a Nordic country can expand our understanding of gender-based violence in the context of feminist international relations.

Decertifying Gender: The Challenge of Equal Pay

‘The Future of Legal Gender’ project has assessed the potential implications for feminist legal scholarship and activism of decertifying sex/gender. Decertification refers to the state moving away from officially determining or registering sex/gender. This article explores the potential impact of such moves on equal pay law and gender pay gap reporting. Equal pay and gender pay gap reporting laws provide an important focus for the project because they aim to address structural dynamics associated with persistent pay inequality that women experience across occupations in the United Kingdom. These legal measures illuminate gendering as a large-scale social problem widely understood to operate structurally and systemically. What effect, then, could decertifying sex/gender have on the law and conceptual power of equal pay? Might decertification undermine the structure of equal pay law, with all hard-won gains it has brought for women? Or is it possible to imagine that decertification could accompany a more inclusive and effective legal architecture for equal pay?

Redressing the balance: how Australia’s approach under the Hague Abduction Convention is still endangering victims of domestic violence

Abstract This article explores how Australian courts consider allegations of domestic violence under Article 13(1)(b) of the Hague Convention on Child Abduction. As is now well known, there has been a paradigm shift since the Convention’s introduction, which has seen the circumstances and underlying reasons for international child abduction change. Through an examination of Australian case law from the past 5 years, this article reveals the issues that taking mothers continue to face in Australian return proceedings and the concerning reality that the courts continue to prioritise a prompt return over the safety and well-being of women and children exposed to domestic violence. This is despite feminist legal scholars and activists demonstrating for over 20 years that domestic violence is not being adequately dealt with in return proceedings and calling for change. The article discusses how the huge inequality in legal representation for taking mothers and left-behind fathers adds to the imbalance in these matters. Unfortunately, the recent Hague Conference Guide to Good Practice in such cases is unlikely to affect any substantive change to redress that imbalance. Suggestions for ways to redress the balance between taking mothers and left-behind fathers are suggested.

Young people's experiences of image-based sexual harassment and abuse in England and Canada: Toward a feminist framing of technologically facilitated sexual violence

This article reports on a qualitative research study Sharing Networked Image Practices (SNIP) among young people. We explore our findings from 37 focus groups with 206 young people aged (11–19) in London and South East England and Toronto, Canada conducted in 2019 and 2020. Drawing on feminist legal and criminological scholarship (Powell & Henry, 2017; McGlynn et al., 2017; McGlynn and Johnson, 2020) we develop a framework to clearly identify how and when image sharing should be constituted as forms of: (1) Image-Based Sexual Harassment (IBSH) (i.e. unsolicited penis images (‘dick pics’) and unwanted solicitation for nudes), and (2) Image-Based Sexual Abuse (IBSA) (i.e. non-consensual image creation/sharing). We argue that categorizing non-consensual image sharing, showing and distributing as image-based sexual harassment and abuse rather than ‘sexting’ is an important conceptual shift to enable young people, schools, parents and all relevant stakeholders to recognize and address new forms of technology-facilitated sexual violence.

Can Feminist Legal Theory Transcend Vietnamese Legal Education and Legal Research Towards the Goal of Addressing Women’s Issues?

This article aims to figure out why feminist legal theory is called for being studied in Vietnam and what are the possible implications of the movement of adopting feminist legal theory in Vietnam, specifically, for Vietnamese academia legal education and scholarship. This article first argues that Vietnamese legal scholarship and education lacks a soul regarding gender-related issues—a feminist insight. This article points out that finding a feminist legal theory has long been a quest for Vietnamese scholars. It would follow from this that the recognition and adoption of feminist legal scholarship can have overall positive impacts on the Vietnamese legal academia and its scholarship and contribute to addressing the need for gender equality in legal academia and the whole society.

Taking feminism beyond the state: FIFA as a transnational battleground for feminist legal critique

Abstract The Fédération Internationale de Football Association (FIFA) plays a fundamental role in defining and asserting the boundary between men and women in football. Its decisions condition the way the game is played, the way players and clubs contract, and the way the FIFA World Cup is organized and experienced by people around the world. FIFA’s private transnational governance regime is, at least hypothetically, as prone to gender bias and discrimination as states or international organizations. Nevertheless, feminist legal scholars have rarely directed their sights on transnational private regulators such as FIFA. This article suggests to take the feminist legal critique beyond its traditional battlegrounds and highlights FIFA as a transnational governance site deserving feminist scrutiny. While it does not advocate for the introduction of specific policies, it aims to provide a convincing justification and a helpful roadmap for future feminist engagements with FIFA.

Law’s Invisible Women

This article examines the unintended gendered consequences of lockdown on women’s rights, particularly those related to women’s work, health and wellbeing. Situating this assessment within wider feminist legal scholarship, which exposes the gendered nature of law and the tendency to legislate in a way that prioritizes a privileged male legal subject, we argue that legislation and subsequent decisions fail to centre women’s lived experiences and so deprioritize women’s needs. We ultimately argue that lessons need to be learned regarding how post-pandemic responses are implemented to mitigate the impacts on women and ensure gender is mainstreamed within the law-making process.
 Keywords: women; Covid-19; flexible working; care; telemedicine; abortion; gender mainstreaming.

Disposable Menstrual Products as Law's Objects


 
 
 During the past few years, scholars and activists have increasingly engaged with law as a means to challenge stigma, silence, and disadvantages associated with menstruation. Menstrual items (predominantly in the form of disposable menstrual products) are becoming increasingly prominent in this “legal turn.” There have been legislative reforms to provide access to free menstrual items, litigation and legislative reforms to remove taxes on menstrual products, legislative reforms on product safety and environmental sustainability of menstrual items, and water and sanitation hygiene (‘WASH’) policies and guidelines in the context of international development interventions that focus on access to menstrual items.
 As regulation of disposable menstrual products assumes greater prominence in legal doctrine, feminist legal scholars are increasingly evaluating the impacts of such laws on menstruators, including in the context of diverse experiences of menstruation and menstrual injustice. But what can disposable menstrual products themselves tell us of law? In this Essay we take an object-informed approach to law in the specific context of disposable menstrual products. What insights about law might these objects provide, and how do these insights deepen our understanding of law’s relationship to menstruation, menstruators, and the worlds in which menstruators are situated? What can we appreciate about law’s role in defining, as well as recognizing and responding to, the diversity of experiences related to menstruation? How do menstrual items nuance our understanding of agency in relation to menstrual injustice? And what do these objects tell us about the limits and challenges of using law to achieve justice in relation to the embodied experiences of people who menstruate?
 
 
 
 Part II introduces some key contributions to feminist legal thinking on materiality and objects, which informs our analysis of disposable menstrual products as law’s objects. Part III introduces some of the critical threads in scholarship on disposable menstrual products, including how they relate to diversity and materiality of experiences of menstruation. Then, we turn in Part IV to explore what disposable menstrual products tell us about law’s role in menstruation, using the recent laws introduced in Scotland as a case study.
 
 
 
 
 

Laugh All You Medusas! Hélène Cixous’ Écriture Feminine as Feminist Legal Translation, Transformation, Transgression, and Translactation in the Era of AI and the Anthropocene

ABSTRACT This text considers Hélène Cixous’ écriture feminine (‘writing feminine’) as one way to do feminist legal translation. It discusses the importance of ‘writing one self’ as legal scholars in our own time as a reflection both on what law as well as what the self is or can be. To write one self through écriture feminine is a feminist act in contestation to the ‘phallocentric’ search for the law’s (phallo-)‘originary first term or logos’. Drawing on Yoriko Otomo’s feminist legal scholarship, I show that écriture feminine writes the world differently through the writing of the self; something which is urgently needed in a time of, as Anna Grear puts it, ‘necrotic, predatory imperative of Euro-centric petro-capitalism and rampant industrial consumerism’. Legal scholarship has often considered Cixous’ work in the context of ‘the linguistic turn’ – a turn that has been out of vogue for some time now. Hence, Cixous’ écriture feminine is rarely explicitly part of contemporary critical legal scholars’ efforts. In this text, however, I argue that Cixous’ scholarship, and her écriture feminine, is necessary to contemporary legal scholarship in its turn to new materialism, tech and AI: The feminist translation, transformation, transgression and translactation in écriture feminine interrupt the phallocentric predatory imperative embedded in the world such legal scholarship tries to make sense of and rework.

Are workers musicians? Kesha Sebert, Johanna Wagner and the gendered commodification of star singers, 1853–2014

AbstractThe legal history of pop singer-songwriter Kesha Sebert has brought to light serious problems of gender and power in the US recording industry: it remains male dominated to its core. These contemporary problems have specific historical origins. Contextualising the 2008–2014 lawsuit between two rival producers over the exclusive right to Kesha's labour power suggests that elements of Victorian gender relations and class war were baked into the doctrine on which that 21st century case turned. Drawing empirically on court documents, and analytically on perspectives from history and sociology as well as feminist legal scholarship, this paper explains the persistent vitality of a ‘gendered erotic triangle’ in music production. By contextualising Kesha's gendered legal triangulation, and analysing a seemingly technical quibble about the interpretation of a statute of (temporal) limitation, this paper frames the commodification of singers’ labour power as central to a gendered project of class domination.

Tort Law and Feminism, forthcoming in Oxford Handbook on Feminism and the Law in the U.S. (Deborah L. Brake, Martha Chamallas & Verna Williams, eds) (forthcoming 2021)

Tort law has not been a sympathetic audience for feminist legal scholars. Despite decades of compelling feminist advocacy and scholarship, tort law has largely resisted attempts to orient it towards pursuing goals of social justice or equality. Nevertheless, some feminist redirection has been achieved, mostly through statutory intervention, thus laying the groundwork for further development. This chapter imagines what tort law might look like if it more fully embraced feminist reforms. Focusing on four foundational concepts in tort law – duty, third-party liability, harm, and damages – this chapter uses the tools, insights, and arguments of modern feminist tort scholarship to envision the doctrinal landscape of a tort law rooted in gender justice and social equality. Noting the places where feminist paths have already been forged, this chapter explores how reconceptualizing the duty of care, expanding third-party liability, recognizing a broader range of intimate and harassment-based harms, and eliminating gender and racial bias from damage awards could transform tort from an instrument that perpetuates existing social inequalities into a mechanism of social justice offering recompense and remedy to all who are wrongfully injured.

A question of definition: feminist legal scholarship, socio-legal studies and debate about law and politics

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Gender in the Competition Law Curriculum?

Competition law curricula pay scant, if any, attention to gender. This paper argues in favour of integrating gender throughout the curricula in a wide range of law modules/courses. It weaves selected threads from feminist legal scholarship into a framework for appraising the gender neutrality of competition law. The selected threads from feminist enquiry unmask assumptions and highlight gendered impact which, combine, to perpetuate or exacerbate existing socio-economic divisions. In order to offer illustrations of assumed gender neutrality, this paper looks at economic research on, firstly, competition agencies’ selection of enforcement projects and, secondly, the definition of markets. This paper hopes to draw attention to the fledgling topic of competition law and gender in the hope of raising its visibility among competition law academics.

The laws of social reproduction: a lesson in appropriation

This article offers insights into the law’s appropriation of women’s reproductive labour, namely, the intimate labours that they typically carry out in the context of marriage to biologically, socially, emotionally and culturally reproduce members of the household by offering a range of goods and services. Feminist legal scholars have long demonstrated the law’s failure to recognise, much less value, such reproductive labour. Where the law does recognise such labour, feminists argue that it is largely within the parameters of the institution of heterosexual marriage to the exclusion of other organisational forms. The article extends this line of feminist legal critique to reveal feminists’ own reluctance within the debates on social reproduction to recognise the reproductive labour performed by women outside the family and explicitly for the market. Through a cross-sectoral comparison of the law’s regulation of three such sectors of women’s abject labour, namely, sex work, bar-dancing and commercial surrogacy, the article demonstrates how, despite their regulation through criminal law, licensing law and contract law, there are several structural similarities in the political economies of these sectors. Consequently, any change in the rule network pertaining to any one sector of women’s reproductive labour affects women in that sector but also in other sectors. The article argues that it is only through an examination of the deep interconnectedness between sectors of women’s reproductive labour that feminists can assess whether an alternative regulatory matrix would further women’s claims to economic justice.

Chapter 3: Feminism, Law, Cinema

'Law and film' scholarship calls into question what one considers as legal source or text. It puts into sharp relief how law is a meaning-making institution through which we imagine and tell stories about our social world. It destabilizes the often assumed boundaries between ‘rational’ and 'irrational' ways of knowing. In this chapter, I argue that such transformative potential has been harnessed by feminist legal scholars who have recently turned their minds to cinema and the questions it can ask about how law operates in women’s lives. Rather than simply using films as an engaging way to teach specific legal concepts or legal processes, the intersection of feminist jurisprudence, law and film provides analytic space for new perspectives on subjectivity, judgement and social power.

Theorizing the More Responsive State: Transcending the National Boundaries of Law

In a recent essay in the Yale Journal of Law & Feminism, Martha Fineman proposed the concept of shared “vulnerability” as an alternative framework to traditional American equal protection analyses for describing, assessing, and addressing economic and social inequalities. Putting aside the particulars of her theory for a moment, critical to Fineman’s analysis is her assertion that a vulnerability approach to the allocation and (re)distribution of societal resources requires “a more responsive state.” In this paper, I focus on a basic question provoked by her call for a more responsive state, namely: to what does she refer when she invokes the “state”‘ Fineman does not resolve this question, except to say that the state is “the manifestation of public authority and the ultimate legitimate repository of coercive power” but not necessarily the nation-state. If not necessarily, or not only, the nation-state, then where is it (or where might we locate it) for the purposes identified by Fineman‘ At both a conceptual and organizational level, one answer might be transnational or supranational institutions in North America. Much of the American literature theorizing the state has focused on the nation as the locus of state power and authority. Functional theories, instrumental theories, and critical theories have typically conceived of the state as defined by territorial and/or geopolitical borders. Within legal scholarship, an even narrower focus has been common: the state as adjudicatory apparatus. Yet it may be more productive (and promising) for feminists to shift the conceptual lens so that it embraces a wider and less vertical conception of state power. Thus, this paper takes up Fineman’s invitation to begin the task of theorizing a “more responsive state” in the US, by looking beyond the US to North America, and putting two groups of scholars in conversation with one another: feminist legal theorists, on the one hand; and integration theorists, including governance theorists within that broader category, on the other. Ultimately, my aim is to suggest that feminist legal scholars might usefully begin (re)theorizing the state by engaging with the process of North American integration (and with integration theorists) in order to explore integration’s emancipatory or progressive potential for responding to the sorts of inequalities identified by Fineman.

‘Endlessly Valuable’ Discursive Work—Intimate Partner Femicide, an English Case Study

Against the trend of roll-backs of pro-feminist initiatives by right-wing governments, feminist-led reforms to the law of murder deserve accolades as hard-fought feminist victories. For three decades, feminist analysts have critiqued the operation of provocation defences in intimate partner femicide cases. Their work has been rewarded with the implementation of reforms in several anglophone jurisdictions that have abolished or curtailed that defence. This article focuses on the revolutionary impact of the reform implemented in England and Wales. It argues for the continuing purchase for feminist legal scholars of a methodology championed by Carol Smart in her seminal 1989 text, Feminism and the Power of Law. She counselled feminist law scholars to read law as a site for contesting law’s truth about gendered relationships. This methodology has not only been critical in exposing the misogyny and injustice embedded in traditional provocation by infidelity defences; it also enables researchers to chart shifts in law’s discursive constitution of truth in the post-reform era.