Feminist Legal Theory Research Articles

At home in the law: how the domestic violence revolution is transforming privacy

In the past forty years, the idea of home, which is central to how the law conceives of crime, punishment, and privacy, has changed radically. Legal scholar Jeannie Suk shows how the legitimate goal of legal feminists to protect women from domestic abuse has led to a new and unexpected set of legal practices. In At Home in the Law, Suk argues that the growing legal vision that has led to the breakdown of traditional boundaries between public and private space is resulting in a substantial reduction of autonomy and privacy for both women and men. Winner of the Jacob Prize Book Award for the most outstanding law and society book published in 2009 A fascinating analysis of our changing conceptions of privacy, gender, and the reach of the law...The book will be just as interesting to lay people as it is to legal scholars. - Steven Pinker, Harvard College Professor of Psychology, Harvard University, and author of How the Mind Works and The Stuff of Thought

Reproduction and Scale: A Response to Skeggs and Wilson

This paper draws on the concepts of reproduction and scale to suggest that Skeggs and Wilson, in their contributions to this issue of Feminist Legal Studies, both identify a future-oriented reworking of historically accumulated value. The spectacular emotional labour of British reality television and the parody of mechanistic labour in Bangkok’s sex shows may be seen as instances in the affective search for future security in transnational markets. Capitalist subjectivities are still being produced through these gendered and sexual activities, but they are being produced with television audiences and sex tourists whose geopolitical baggage becomes part of the show.

“It’s New But Not That New”: On the Continued Use of Old Marx

This essay reviews Skeggs’ and Wilson’s papers in this issue of Feminist Legal Studies in terms of their development of, and departure from, ideas central to the Italian post-Marxist, post-workerist tradition; specifically their understanding that capital is increasingly converging with the production and reproduction of social life itself. I interrogate the assumed necessity to move beyond ‘the limitations of Marx’ by revealing, via the Communist Manifesto, Grundrisse and Capital, how the ideas of ‘old’ Marx can offer important engagements and interlocutions with the ‘new’ empirical phenomena explored by Skeggs and Wilson. I show how Marx’s notion of creative destruction is in tune with Wilson’s work on the erotic generativity of capitalism, and how his observations on labour-time as the measure of value illuminate the exchange and circulation of Wife Swap. Finally, I suggest that we might be wary not to lose sight of the question of resistance by regarding immaterial labour as productive labour, and thus relinquishing Marx’s conceptual tools of labour, value and capital.

Feminist Legal History: Women and the Law in U.S. History

Feminist Legal History offers new visions of American legal history that reveal women’s engagement with the law over the past two centuries. The essays in this book look at women’s status in society over time through the lens of the law. The conventional story portrays law as a barrier or constraint upon women’s rights. While law has and continues to operate as a restraint upon women’s full participation in society, law has also worked as a facilitating structure. The overall picture gleaned from the snapshots in time offered in this book shows the actualizing power of the law for women. Women have used the law historically as a vehicle to obtain personal and societal change. Even more, women have used feminist theory to transform the law itself to incorporate an appreciation of gendered realities.The introduction provides the context necessary to appreciate the essays in this book. It starts with an overview of the existing state of women’s legal history, tracing the core events over the past two hundred years. This history, while sparse, provides the common foundation for the authors, and establishes the launching point for the deeper and more detailed inquiries offered here. The introduction then provides an exploration of the key themes advanced in the book. In Part I, Contradictions in Legalizing Gender, the essays develop analyses of the law’s contradictory response to women’s petitions. The essays in this section provide evidence of law’s operation as a barrier, limiting women’s power and agency and challenge the assumptions that such barriers have been eliminated today. Yet the essays in part I also present a more nuanced historical picture. They show the law’s facilitation of women’s agency and power, often based on the same gendered norms that elsewhere produced limitations. Part II of the book, Women’s Transformation of the Law, shows women’s impact upon the law and illustrates how women changed the law to incorporate their own, gendered, perspectives. By “feminizing” the legal process and altering the substantive law to respond to women’s needs, women were able to shape the law in their own image. The introduction concludes with an overview of feminist legal thought. An appreciation of such theory and methodology is important to understanding the lens through which the authors and advocates over time approached the problems presented. Feminist Legal History is not just a collection of stories about women. Instead, it is a feminist inquiry of the historical record, in which feminist theory illuminates the positions and motivating beliefs of women over time.

Separate Silos: Marginalizing Men in Feminist Theory and Forgetting Females in Masculinities Studies

In society, the impulse toward sex segregation remains strong. Social separation of the sexes persists, from childhood on. Pink and blue tracking in the nursery gives way to sex segregated public schooling. In 2006 the Department of Education released new regulations expanding the opportunities for single-sex classes, schools, and extracurricular activities. These regulations fueled an explosive increase in single-sex public schools and classes. The popular media endorse separatist themes - from heralding the “boy crisis” in education to proclaiming that single-sex schools are “better for girls.” The separatism continues in labor market. Even though women comprise 47 percent of the labor force, occupational segregation by sex persists, with women accounting for 79 percent of social workers and 89 percent of healthcare support occupations, while 77 percent of protective service workers and 92 percent of construction managers are men. In sum, almost 70 percent of all workers are in occupations that are strongly dominated by one sex or the other.This segregation in society has its parallels in legal doctrine and legal theory. The central premise of this essay is that masculinities studies and feminist legal theory occupy separate academic silos. The branches of inquiry, although drawing on selected excerpts from each other and with some cross-fertilization in recent years, have remained largely segregated - in their methodologies, scholarship, conferences, and subjects. The first part of the essay traces how those silos were built; the second part addresses whether they should be dismantled and, if so, in what ways.

Kryminologiczno-epistemologiczne i genderowe aspekty przestępstwa zgwałcenia

According to government information from November 2010, only 8% of committed sex crimes are reported in Poland. In 90% of cases, the perpetrators remain unpunished. Taking into account the statistics for 2009, 6,700 cases of sexual violence show the scale of the problem. The article tries to investigate the reasons of such situation. How does it happen that in a legal order, which since 1932 is based on extremely modern approach to the crime of rape, it remains in practice so often unpunished? The reasons of this are seen in the accepted procedure of prosecution, on the motion of the injured. This procedure results from the fact that provisions from 1932 have been accepted as they were, without a deeper reflection or analysis of the state of affairs of the time. What was acceptable in the criminological-epistemological and dogmatic perspective then, has been accepted by the legislator at present. This leaves a question why regulations from 1932 are still in force at present, with the detriment to the victims. In seeking an answer to this question, a methodology provided by feminist jurisprudence is assumed. The text also explains the very notion of feminist jurisprudence and gender analysis of law. The method allows to notice the elements earlier neglected by the law and to explain why corruption of the perpetrator reaches the victim. The development of feminist jurisprudence over the past three decades has contributed to significant enrichment of the theory of law in many countries and has led to many reforms of criminal law, including changes to the regulations concerning the rape of crime. Taking feminist criminology and feminist jurisprudence into account allows to consider the causes of placing joint responsibility for rape on a victim. It allows to demonstrate that what is hidden under the euphemism of morals and morality is also supported by laws and does not result from tradition as much as from the influence of contemporary law. The accepted procedure of prosecution of the crime is a significant element of this process. Assuming a gender perspective introduces a perspective of experiences and values essential for women to the analysis of language, evaluation and events, although it is not limited to this. The text, while analysing the determinants of regulations concerning rape, questions the basic axioms of criminal law dogma pertaining to neutrality and objectivity of criminal law. The example of regulations on rape proves that both axioms in fact sustain a loss to the benefit of the interest of the legislator who has a greater tendency to identify with a perpetrator than with a victim. The text analyses various perspectives of justifying accepted norms and indicates that higher arguments at each time serve to justify current interests. Using instruments of gender analysis of law here as well, reader’s attention is drawn to the perspective resulting from the experiences and values presented by women.

Feminist legal theory: outline of the issue

Feminist legal theory: outline of the issue

El debate igualdad/diferencia en los feminismos jurídicos

In this paper, I will follow the footsteps of feminist debate on equality and difference in its intersection with law. The principle of equality before the law has been in conflict with the need for acknowledgement of diversity of women’s conditions in regards of achieving that principle. Furthermore, differences in the lives of women are multiple and diverse. In order to make a thorough investigation on this dilemma, I will revise the main legal feminist perspectives, and examine the lines of opinion within the field through which the relationship between feminisms and law are defined and problematized. Towards the end I shall address the problem from the perspective of what has come to be known as deconstructivist feminism or post-feminism as a means of assessing the importance of the division between equality and difference within the field in question.

Rethinking Consent in a 'Big Love' Way

Rethinking Consent in a 'Big Love' Way

The Human Fertilisation and Embryology Act 2008: Tinkering at the Margins

This note suggests that, viewed from a feminist perspective, the reforms contained in the Human Fertilisation and Embryology Act 2008 represent a missed opportunity to re-think the appropriate model of regulation to govern fertility treatment and embryology research in the UK. It argues that reform of the legislation was driven largely by the government’s desire to avoid re-igniting controversies over the legal status of the embryo and abortion and to maintain Britain’s position at the forefront of embryo research and related biotechnologies. It also highlights the importance of media debates, which were highly selective, to the reform process, and suggests that in order to inject feminist values into the process of legislative reform, feminists need to become more media savvy. In the short term, it suggests that there is little prospect of a radical re-thinking of the appropriate ethico-legal response to the wide variety of family forms that reproductive technologies potentially enable, much less of considering our ethical obligations to the new forms of embryos that are now permitted by the 2008 Act. In the meantime, however, it argues that these issues provide productive opportunities for feminist legal theorists to address questions that have been erased or obscured in the course of the 2008 reforms.

An Uneasy Alliance? The Relationship Between Feminist Legal Studies and Gender, Sexuality and Law

The relationship between feminist legal studies and the field of LGS needs to be considered on the level of research, teaching and policy making. Across all three levels the language of gender and sexuality has become the dominant discourse. A few examples will suffice. Courses on women and law have generally been refashioned as courses on equality or gender, sexuality and law. Women’s Studies degrees have declined in popularity, and some feminists have argued that the practice of teaching women’s studies in separate degree programmes should be reconsidered (Brown 2008, p. 34). The shift to the language of gender is also apparent in government and policy making. The Women’s Unit created by New Labour in 1997 quickly became the Women and Equalities Unit and is now the Government Equalities Office. 1 The creation of the Equality and Human Rights Commission can be seen as part of this move towards a more broad-based and intersectional approach. Given that the category ‘woman’ is a hallmark of feminism, how is the relationship between the field of LGS and feminist legal studies to be negotiated? The connection between feminism and gender, particularly in the academic sphere, is explored in Scott’s (1986) seminal article on gender as a historical category. Scott describes how the term ‘gender’ was adopted by many feminists to describe ‘‘the social organization of the relationship between the sexes’’ (1986, p. 1053). She explains that some historians used the term ‘gender’ as a synonym for ‘women’ and she notes that: In these instances, the use of ‘gender’ is meant to denote the scholarly seriousness of a work, for ‘gender’ has a more neutral and objective sound than does ‘women’. ‘Gender’ seems to fit within the scientific terminology of

The Making of a Field or the Building of a Wall? Feminist Legal Studies and Law, Gender and Sexuality

The Making of a Field or the Building of a Wall? Feminist Legal Studies and Law, Gender and Sexuality

Feminist Concept of Right

In this article, the effort was to understand the feminist concept of right. To accomplish the same, the history of the Women’s movements in India and West were discussed as they formed the first effort by women to define and demand the legal rights they deserved. The movements are important especially in the Indian context inasmuch that the feminists in India feature more prominently in women’s organization than in academia. Even as far as the western jurisprudence is concerned, it traces its roots into the suffrage movement of the eighteenth and nineteenth centuries. Women have always had at some stage in life been made subordinate to the other sex, whether it is done knowingly or unknowingly, willingly or unwillingly. Feminists try to question the presumption that this is the normal way of things. Unfortunately, feminism instead of finding support from educated women due to their own personal experiences whether it is in a household or the workplace finds ridicule. Feminists are branded as aggressive, angry and bitchy women, who hate men and are against marriage. The question that seems to hang in the air is - what most young women - even those who have enjoyed the so-called fruits of feminism - understand feminism to be? Or do they believe in its principles and ideas of equality and advancement for women but fear the label itself? Other than that, in order to understand the modern concept of rights of the feminist, different schools of feminist jurisprudence were discussed. This was done mostly with the intent to understand the variations in the feminist concept of equality between the two sexes. This then has a direct bearing on the concept of rights which are formulated and demanded by these feminists.

Creation, Duration, Adjudication: A Review of Alexandre Lefebvre’s The Image of Law: Deleuze, Bergson, Spinoza

Alexandre Lefebvre’s The Image of Law: Deleuze, Bergson, Spinoza presents a challenge to neo-Kantian liberal jurisprudence (represented by Hart, Dworkin, and Habermas) as well as a novel theory of judgment. Lefebvre constructs a “dogmatic image of law” out of a Kantian heritage discerned in key works of twentieth-century jurisprudence: the representative figures all think judgment according to Kantian categories and locate the act of adjudication in an act of subsumption. Deploying Deleuze’s critique of the representational image of thought in a new context, Lefebvre claims that another mode of judgment—one that would not stifle creativity and novelty by subjecting the unfamiliar to the logic of the familiar—is possible. Bergson’s theories of perception and memory are substantially reconfigured for a juridical context, and the virtuality of the law is assessed from this vantage point. Lefebvre argues that a theory of judgment based not on subsumption but rather on Bergsonian “attention” and the Deleuzian “encounter” provides new insight into the machinations of adjudication and the law more generally. Lefebvre’s intervention is criticized for failing to engage with Deleuze and Guattari’s work on law, Anglophone critical legal work, and Lacan’s theory of desire and Law, all of which would have enhanced the breadth of the study. It remains, nevertheless, a significant contribution to theoretical jurisprudence and the philosophy of judgment.

Feminist Foundations for the Law of Business: One Law and Economics Scholar's Survey and (Re)View

The purpose of this Essay is to suggest frameworks and modes of inquiry for applying feminist legal analysis to business law and the related theory of law and economics. It does so in two ways. One is to assess works already written by feminist scholars in the business law arena, highlighting how those contributions have begun to pave the way towards enriching the scope of business law analysis. The other is to offer two new roles for feminist jurisprudence. One role is to define just (that is, fair) distributions of rights and the other role is to define social judgments of value, both within the context of law and economics' efficiency criteria for efficient allocation and cost benefit analyses. As a result, this Essay demonstrates that feminist jurisprudence can find fruitful roles consistent with its moral goals through interaction with law and economics, particularly with regard to analyzing business law issues.

Must Feminist Judges Self-Identify as Feminist?

Feminist legal scholars want judges to self-identify as feminist. Rosemary Hunter offers a compelling argument about the significance of self-identification as the marker of a feminist judge. However, few judges are willing to self-identify as feminists. Feminist adjudication offers an alternative theory. It serves three functions not met by feminist self-identification. First, it distinguishes the professional culture of feminist judges from that of feminist legal scholars, a distinction borne out in a study comparing the use of the 'f' word on the bench and in the academy. Second, it positions feminist judges to intervene in the contemporary feminist legal theory debate between dominance feminists who self-identify and postmodern feminists who disavow their approach. Third, it invites feminist legal scholars to recognize the power dimension inherent in their relationship with the feminist judges whom they study. I conclude it is premature for feminist legal scholars to rely only on the theory of feminist self-identification to credential feminist judges.

No Male or Female

For this, my contribution to the Feminist Legal Theory Projects's Twenty-fifth Anniversary Volume Beyond the Boundaries of the Law, I take the invitation to participants to be to speak very personally about how we came to feminist legal theory and what we made of it. I take my title from the New Testament, because I came to my own radical take on sameness feminism through teenage engagement with the Catholic Church's radical past and repressive future on matters of sex equality and through engagement in college and graduate school with arguments for the equality of the sexes made from the Middle Ages through the French revolution by otherwise conservative women defending their own right to participate in male-dominated enterprises and otherwise radical men willing to call all received ideas into question, even those concerning women's place.The essay will be in part a reminder that there are far more generations than three who have sought to transcend the boundaries of the law through feminist theory: feminists, male and female, have been making their case for centuries. It will also be in part an elegy for potential alliances lost: though many of the women who in prior centuries sought to bring their sex beyond the boundaries of the law were self-described conservatives on other matters, in my lifetime feminism and conservatism have come to be seen as antithetical, something I dealt with on a daily basis as a faculty member in two of the nation's most conservative law schools, Virginia and Chicago. Also in my lifetime, the Church that brought me to sameness feminism at first repudiated sex equality and then turned to an embrace of difference, as official guardian of doctrinal purity Joseph Ratzinger, now Pope Benedict XVI, in official pronouncements explicitly rejecting the sort of sex and gender theory to which I am committed, came close to suggesting that even souls have a sex.

Working on the 'Mommy-Track': Motherhood and Women Lawyers

This Article examines the effects of motherhood on the careers of women lawyers and the efficacy of the 'mommy-track' as a means of ameliorating these effects. Part I examines the current position of women in the legal profession. Part II examines the nature of 'motherhood' and the risk/benefit function of 'mommy-tracking.' Part III analyzes the 'mommy-track' from the perspective of feminist jurisprudence. Finally, Part IV examines issues related to workplace transformation. It is the position of this paper that 'mommy-tracking' reinforces undesirable stereotypes. Ironically, this apparent 'solution' actually forestalls the transformations, at home and at work, which could enable women to choose both motherhood and career. Thus, 'mommy-tracking' both results from and perpetuates gender inequality because women, unlike men, still pay the cost of parenthood with their careers.

Why Should Feminist Jurisprudence Be a Compulsory Course at Law School

Feminist jurisprudence is a general term that encompasses many theories and approaches based on examining gender, sexuality, and power in relation to the legal system. As a field of legal scholarship and theory, feminist jurisprudence had its beginnings in the 1960s. By the 1990s it had become an important and vital part of the law, informing many debates on sexual and domestic violence, inequality in the workplace, and gender-based discrimination at all levels of U.S. society. The feminist political movement began in the nineteenth century with a call for female suffrage. At a convention in Seneca Falls, New York, in 1848, a group of women and men drafted and approved the Declaration of Rights and Sentiments. This document, modeled on the language and structure of the Declaration of Independence, was a bill of rights for women, including the right to vote. Throughout the late 1800s, feminist leaders Susan B. Anthony and Elizabeth Cady Stanton were persistent critics of male society's refusal to grant women political and social equality. In the mid-nineteenth century, many state legislatures passed married women's separate property acts. These acts gave women the legal right to retain ownership and control of property they brought into the marriage. Until these enactments a husband was permitted to control all property, which often led to the squandering of a wife's estate. Finally, when the Nineteenth Amendment to the U.S. Constitution was ratified in 1920, women gained voting rights in the United States. Feminist Jurisprudence is related with four kinds and specially enumerated with a particular part of society that is Women, and deals all matter relating to Women. A philosophy of law based on the political, economic, and social equality of the sexes, feminist thought began during The Enlightenment with such thinkers as Lady Mary Wortley Montage and the Marquis de Condorcet championing women's education and many liberals, such as Jeremy Bentham, demanding equal rights for women in every sense. One of the early modern proponents of feminist themes was Mexican nun, Juana Ines de la Cruz (1651-1695), particularly in her essay entitled 'Reply to Sor Philotea'. The first scientific society for women was founded in Middleberg, a city in the south of the Dutch republic, in 1785. Journals for women which focused on issues like science became popular during this period as well. Mary Wollstonecraft's A Vindication of the Rights of Woman (1792) is one of the first works that can unambiguously be called feminist, although by modern standards her comparison of women to the nobility, the elite of society, coddled, fragile, and in danger of intellectual and moral sloth, does not sound like a feminist argument. Wollstonecraft believed that both sexes contributed to this situation and took it for granted that women had considerable power over men.

Transgender Legal Advocacy: What Do Feminist Legal Theories Have to Offer

Transgender persons face severe prejudice and discrimination in a wide variety of areas—from areas of public concern like employment, credit, public accommodations, and law enforcement, to more private areas such as marriage, parenting, healthcare, and inheritance. The main question this Comment seeks to answer is: given everything that feminist legal theory has done to help make the legal system more amenable to the needs and rights of women, what does feminism have to offer sexand gender-nonconforming persons seeking redress