Feminist Legal Theory Research Articles

Attitudes of Nursing Professionals towards the Rights the of Mentally ill

Individuals suffering from mental illness are receiving the scant care and concern of the community because of their unproductive value in the socio-economic value system. They have not only been neglected but received step motherly treatment from the health planners especially in the developing countries. It is only the plea of progressive incorporation of the norms of human rights and liberal jurisprudence in the respective legal system of nation states that has created the urgency and necessity of initiating appropriate steps for the care and treatment of mentally ill persons.

Law’s Empire Writes Back: Legal Positivism and Literary Rejoinder in Wilde’sDe Profundis

“Law’s Empire Writes Back” queries the relationships among subjectivity, agency, and liberal jurisprudence against the backdrop of Oscar Wilde’s De Profundis . Examining the trial proceedings that led to Wilde’s eventual incarceration and, arguably, demise, Dale Barleben argues that the trial apparatus, which searches for “truth,” instead manufactures guilt in many instances. Juxtaposing contemporary literary and legal scholarship with accounts of Wilde’s trials, Barleben extrapolates theories of trauma and confession, focusing on the trial as a performance in which the actors often become the characters they play. The ontological shift in Wilde’s writing before and after trial evidences the change in Wilde’s thinking about his subjectivity and identity—changes, argues Barleben, which are direct results of the traumas of trial procedure.

Legal Feminism and the UN's Gender Mainstreaming Policy: Still Searching for the Blind Spot?

This article primarily assesses feminism’s achievements and challenges, particularly within the framework of the UN gender mainstreaming policy. The first part of the article explored different feminist inquiries into general law to question whether such inquiries have been successfully or properly reflected in the UN gender mainstream process. The second part focused on the progress made by the UN Security Council through its series of resolutions on Women, Peace and Security to examine the ways in which international institutions and international legal categories tend to exclude women and the issues of most concern to women. This analysis, owing much to the extensive literatures on female analyses on international law in the last two decades, led to the conclusion that despite the significant progress that has been made by feminist international lawyers, there remain many ongoing challenges before international law may fully embrace and reflect ‘true’ feminist values.

Law, Gender and the Burden of Culture

This essay makes three points about the use of culture as an argument against law reform and as an explanation for why reform does not happen. First, culture (and its religious analog) is often used as a justification for avoiding gender law reform. However, what is often hidden behind such usage is a highly particular and discreet set of political choice about how to arrange the rights and obligations within society. These choices are not determined a priori by a cultural script. Second, both those who tend to use it to justify doing nothing or doing very limited reforms as well as those who seek sweeping reforms view culture similarly. This mirroring of relativists and universalists is an old construction that has roots in the colonial period and this history is important in understand the present dilemmas of feminism. Finally, that mirroring dynamic also reflects a seemingly intractable oppositional tension between multi-culturalist/relativists who seek to preserve culture and the universalists who seek to overcome it. This tension is very present in legal feminist thought and activism making transnational coalitions and support more complicated. While it is impossible to fully explore that tension as it manifests in the literature or its damaging effects on feminist activism and agenda-setting, I do want to examine two contexts in which it can be clearly observed: the veil context in France and the recent activism by Femen to “free” Muslim women from Islam. By grounding the theoretical observations in these two practical phenomena, I hope to show that unless the impasse is overcome, the full potential of emancipatory feminist thought and activism will never be realized.

The beginning of the sharpness: loyalty, citizenship and Muslim divorce practice

AbstractMuslim divorce practice is a feminist issue, insofar as it often departs from core principles of Anglo-American divorce law. When legal feminists have examined the reception of Muslim divorce practice in common-law courts, they have tended to measure those departures in terms of financial outcome. There is a danger that, in consequence, our theory of Muslim women's legal agency is reduced to pragmatic matters of choice, money and advantage-taking. That theory seems hugely impoverished when read against the political background in Britain, where Muslims‘ legal agency upon divorce is bound up with deeper questions of belonging and allegiance. Feminist work ought to be able to advance a theory of citizens’ commitment to civil law in litigation which can give a complex account even of the unsettling litigation of Muslim divorce disputes in civil courts. This article draws on existing work in feminist multiculturalism to sketch the beginnings of that theory.

Inheriting and Inhabiting the Pleasures and Duties of Our Own Existence: The Second Sex and Feminist Jurisprudence

This essay considers the relation between the conduct and the personae of the feminist, the historian and the jurisprudent; and, the writing of history and of jurisprudence. It does so treating part of the relation between historiography and jurisprudence as engaged as an art of selffashioning, in the preparation for an ‘institutionalised social office’. The immediate purpose of this essay is to show how these arts of self fashioning came to be inherited by Australian feminism. In doing so, I will assert the centrality of Simone De Beauvoir’s The Second Sex in that tradition. I suggest that acknowledging this practice and its inheritance is important when considering how we might live productively the plurality of institutional life and the life lived – in law, and for our present.

Rape and Rape Mythology in the Plays of Sarah Kane

Few contemporary plays have created greater furor than Sarah Kane's Blasted, first performed at the Royal Court Theatre in London in January 1995. (1) The violence was pervasive, the structure seemingly incoherent, the purpose elusive. Critics were almost uniformly hostile. (2) It was, according to one, disgusting feast of filth, while another concluded that not theatre critic that's required, it's psychiatrist. (3) They were barely more enamored of later plays such as Phaedra's Love and Cleansed. Criticism has tended to soften over time. (4) Indeed, the greater danger today, decade after her tragic early death, is that of critical hagiography, with Kane lauded as one of the most original of breed of dynamic in-yer-face or new brutalist dramatists who rose to prominence during the 1990s. (5) One of the characteristics of this genre of drama was peculiarly intense embrace of sex and violence. (6) Violence certainly emerged as defining feature of Kane's writing. (7) And when Kane sought to intensify the violence of her plays she turned repeatedly to rape. (8) The purpose of this essay is to explore Kane's presentation of within the context of the ongoing feminist debate regarding sexual violence and its attendant As we shall see this presentation creates as many tensions as it does affinities. The first part of this essay will revisit rape, and more particularly the enduring force of rape myths. The second will then consider Kane on rape: its presentation in her plays and its consideration in her subsequent interviews. It has been said that Blasted is play of strategic incoherences. (9) The final part of this essay will contemplate Kane and in the context of this apparently perplexing supposition. It will be necessarily interdisciplinary exercise, enjoining growing body of law and literature scholarship which makes the case for the use of literary texts in legal study. Such strategy is commonly recommended for variety of reasons: to impress the linguistic and rhetorical nature of law; to emphasize the historicity of legal text; to nurture more nuanced appreciation of poethicar dimension of law; and above all, perhaps, to stress the illustrative value of the literary text as an informing educative aid. (10) It is to this latter purpose that this essay is primarily written. I. Rape and Myth The crime of represents something of touchstone in feminist legal and political theory. According to Robin Morgan, is the perfected act of male sexuality in patriarchal culture, the ultimate metaphor for domination, violence, subjugation, and possession. (11) Ann Cahill writes in similar vein. Rape is a crime that epitomizes women's oppressed status, one of indisputable violence and loathing. (12) For much of the 1970s and 1980s it was possible to distinguish two alternative and hugely influential positions. The first, associated commonly with Susan Brownmiller, argued that is less about sex, and more about simple violence committed by men against women, a brief expression of physical power, conscious process of intimidation, blunt, ugly sexual invasion with possible lasting effects on all women. (13) The second, favored by many critical legal feminists, followed Catharine MacKinnon in arguing, to the contrary, that is logical extension of heterosexuality. (14) Adopting position that owed much to the influence of Andrea Dworkin, MacKinnon argued in her Toward Feminist Theory of the State that the wrong of has proved so difficult to define because the unquestionable starting point has been that is defined as distinct from intercourse, while for women it is difficult to distinguish the two under conditions of male dominance. (15) Accordingly, she famously concluded, If sexuality is central to women's definition and forced sex is central to sexuality, is indigenous, not exceptional, to women's social condition. …

The Middle Way: What Contemporary Liberal Legal Theorists Can Learn from Aristotle

American legal theorists frequently ask whether and how theorists, citizens, lawmakers, judges, and other public officials can attain truth, correctness, or certainty in their legal and moral views. This essay discusses the views of contemporary liberal legal theorists who have attempted to answer these questions in a way that is neither objectivist nor formalist, on the one hand, nor subjectivist or relativist, on the other, referring to authors that make up this group as theorists of the way. The essay suggests areas in which such legal thinkers might profit from studying Aristotle's writings about ethics and politics. Two approaches of contemporary liberal legal theory of the middle way are discussed. The first is characterized by a reluctance to have recourse to substantive moral and political principles that exist independently of a particular legal order. Because of their reluctance to import substantive standards external to a nation?s legal system into legal reasoning, this approach advocates to a much greater degree than the second approach reliance on communal deliberation and various structural, procedural, and related devices to constrain deliberations about human values and conduct. This study outlines some of the central beliefs of this process-oriented approach to practical knowledge and then analyzes how Aristotle might react to them. The beliefs discussed are the place and method of communal reasoning about practical matters; self governance and consent; self-governance and transformative political participation; and the emphasis on ideal speech conditions to legitimate the products of communal deliberation. The second approach of contemporary liberal legal theory of the middle way discussed in the essay is characterized by a belief that moral or political philosophy can arrive at some measure of truth about principles and values having to do with the lives of individuals and the conduct of communities. With one exception, the theorists discussed in this part of the essay are willing to recognize and incorporate such principles and values into practical reasoning that takes place within the confines of a particular legal system such as our own. These thinkers disagree about the degree to which and the occasions on which recourse to values external to a political community should occur. This essay discusses how Aristotle might react to the major ideas common to these thinkers. The ideas discussed in this part are the sources of external substantive values that legal reasoning might incorporate; the relative roles of consent and habit in securing obedience to the law; and the connection between deliberation and character.

The 'Different Voice' in Jewish Law - Some Parallels to a Feminist Jurisprudence

The article explore several parallels between features of Jewish law and a type of feminist jurisprudence that has been inspired by the work of Carol Gilligan. For example, Jewish law emphasizes compromise, an avoidance of formal claims, a concern for victims that transcends mere compensation. It recognizes the primacy of duties, not rights, it seeks to avoid formal rules, insists that judges be sensitive to the difficulties of life and that judges must use their intuition as well as their reason. Jewish law discouraged the use of lawyers, preferring that parties work out their own disputes. It favored a controlled market to limit the damage done by competition and imposed a duty to rescue. Jewish law views peace as the ultimate goal.

Is “law as a social system” bad for women? A preliminary analysis of the Luhmannian approach to law from a feminist perspective

Women's struggle for emancipation can be characterized, among other elements, as an ongoing process for, first, entering the legal system and second, attempting to change it. This, nonetheless, stirs up conflicts and certain perplexities, as appropriately summarized by Alejandra Ciriza under the label the Wollstonecraft dilemma: the politicization of sexual difference, which constitutes the center of feminist struggle in modernity, faces a twofold obstacle. On the one hand, the presentation of sexual difference in the public sphere leads to the transformation of any question related to it into a vindication of rights. On the other hand, the judicialization and institutionalization of such demands lead to the recognition of the limits and impossibilities of a politics of rights (Ciriza, 2004, p. 210). Given the fact that there is this uncontestable and paradoxical relationship between women's political struggle for equality and the legal system, this paper aims to evaluate a specific approach to law, that is, Luhmann's account of law as a social system from a feminist perspective. The question guiding the discussion proposed here is the following: is the theory of law as a social system able to incorporate feminist contentions to law? In order to do so, the Luhmaniann theoretical framework and its most important concepts is presented and discussed. Then, this framework is reviewed through a feminist perspective, particularly by the confrontation with a feminist agenda of law that is based primarily on feminist legal theory and theories of patriarchy. At the end, I hope to accomplish the twofold intention of this paper: first, to point the limits of Luhmann's approach to law from a feminist standpoint and, second, to show the relevance of gender analysis in the legal field

The Paradoxes of Human Rights

The article discusses controversies and paradoxes related to practices of human rights. It mentions the records of high number cases on human rights violations during the end of World War II, and again after 1989. It highlights continues presence of issues on several political and social issues including religion, ethnicity and ideology. It mentions the failure of political philosophy and liberal jurisprudence on understanding and implementing the practices of human rights protection. It also highlights the debates which were raised by Charles V of Spain regarding the torture of Spanish towards Indians of Mexico in April 1550.

Possibilities Lost and Found: Recovering the Intersectional Vision of Legal Feminism

Possibilities Lost and Found: Recovering the Intersectional Vision of Legal Feminism

My Brother's Keeper: Regulation of the Brother–Sister Relationship in the Religious Personal Laws of India

This article analyses the continued denial of equality to women in India's religious personal laws by focusing on the rights of brothers and sisters to illustrate the repeated failures of law. Although this failure has been normalised by deploying various conceptual tools, these theoretical trends need to be challenged. This article examines the 2005 amendment to the Hindu Succession Act which, although giving women extensive property rights, still gave sisters lesser rights than their brothers. It demonstrates that the concept of religious personal laws is a construct which is often used uncritically, and that it legitimises the denial of equal rights to women. The paper combines critical geography scholarship and legal feminist insights to argue that the law must be aware of spatial practices and that it is essential for legal thinkers to engage with the law in more than an instrumental sense. It analyses the processes of knowledge production and explores how the constitutive aspects of legal knowledge can be better integrated into legal scholarship. It thus aims to make visible the many spaces of the law: where laws are made; where ideas about men and women as owners of property are normalised; and where the law is expected to be implemented. It argues for legal scholars to be present and engaged in the contestation of meanings of the law.

Choosing the Right to Choose: <em>Roe v. Wade</em> and the Feminist Movement to Legalize Abortion in Martial-Law Taiwan

Choosing the Right to Choose: <em>Roe v. Wade</em> and the Feminist Movement to Legalize Abortion in Martial-Law Taiwan

Feminist judging and legal theory

The Feminist Judgments Project involved the writing of alternative feminist judgments in significant legal cases. This article describes how the project was used to introduce students in a legal philosophy module to the ideas sitting behind the project, i.e. that there could be a distinctively feminist approach to judgment writing and that such an approach could be legitimate. One of the aims of the module is to explore critical accounts of the law. Briefly outlining the content of the module, we then focus on two particular facets of this content: the role of judgments in the module, and the issue of where feminist judging sits within this. We then go on to consider a particular activity we have developed for use in the class, which involves students seeking to identify the gender of the judges involved, and the distinctions (if any) between judgments. Finally we reflect on how the students have used this activity within their own summatively assessed work for the module. As we proceed, we refer to our experience of bringing the Feminist Judgments Project into our work, and the extent to which we think it has been successful.

Break Out of Russia: Miķelis Valters and the National Issue in Early Latvian Socialism

This article deals with the political thought of Miķelis Valters (1874–1968), whose early writings are considered to contain the first clearly articulated argument for independent and democratic Latvia. Until now, Valters's writings haven′t been analyzed in their own historical and intellectual context, being subjected to Marxist and nationalist ‘proleptic mythologies’ instead. However, such an analysis provides us with important insights about the intellectual origins of Latvian political nationalism. Valters's early argument for independent Latvia derives much from the legacy of Russian narodnichestvo and from German liberal legal theory, rather than from Austro-Marxism, as suggested by previous commentators.

The State of the Union: Toward a Biopolitics of Marriage

The State of the Union: Toward a Biopolitics of Marriage

Martha Albertson Fineman, Jack E. Jackson and Adam P. Romero (eds): Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations

Martha Albertson Fineman, Jack E. Jackson and Adam P. Romero (eds): Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations

Women who opt out: the debate over working mothers and work-family balance

P a r t I . Opting Out: Women's History and Feminist Legal heory Introduction: Women, Work, and Motherhood in American HistoryBernie D. JonesP a r t I I . Is Opting Out for Real?1 The Rhetoric and Reality of Opting Out: Toward a Better Understanding of Professional Women's Decisions to Head Home Pamela Stone and Lisa Ackerly Hernandez2 The Real and a New Model of Flexible Careers Kerstin Aumann and Ellen GalinskyP a r t I I I . Can All Women Opt In before hey Opt Out?3 Opting In to Full Labor Force Participation in Hourly JobsSusan J. Lambert4 The Challenges to and Consequences of Opting Out for Low-Wage, New MothersMaureen Perry-Jenkins5 The Future of Family Caregiving: he Value of Work-Family Strategies hat Beneit Both Care Consumers and Paid Care WorkersPeggie R. Smithviii |6 Care Work and Women's Employment: A Comparative PerspectiveJoya MisraP a r t I V. Conclusion7 he Opt-Out Revolution Revisited Joan C. Williams and Jamie DolkasBibliography About the Contributors Index

Erratum to: Citation and Censorship: The Politics of Talking About the Sexual Politics of Israel

In July 2011, Feminist Legal Studies published an article by Jasbir Puar titled: ‘Citation and Censorship: The Politics of Talking about the Sexual Politics of Israel’ (Vol 19, Issue 2: 133–142). In April 2012, Alan Posener wrote a complaint to Springer, the publisher of Feminist Legal Studies, objecting to content in Puar’s article. Specifically, Posener objected to Puar’s description of Posener as ‘antiMuslim’ on the basis that it was defamatory. In response to this complaint, the author has agreed to amend the relevant section of the article as follows: ‘‘One day prior to the start of the conference, the Director of the Humboldt Graduate School and also a conference organizing committee member, Professor Christina von Braun, gave an interview to Alan Posener, a well-known journalist in Berlin. While Posener is a self-described champion of Muslim rights in Europe, his contributions in the interview with Von Braun reflect one example of the complex ways that anti-Muslim assumptions can be refunctioned and masked within neoliberal discourse. In this interview von Braun made derogatory comments about the author’s work and person... [rest of paragraph to continue with original text]’’. The above paragraph should be deemed to replace the original version.