Introduction A while back Larry Solum asked me to write a short post about feminist legal theory for his excellent Legal Theory Blog. What follows is a brief (though longer than it probably should be) overview of this scholarly subject area. With two exceptions, I don’t mention any feminist legal theorists by name, but at the very end there are links to several feminist legal theory bibliographies.
Most feminist legal theory starts, at least implicitly, with the belief that women are not treated the same as men are by the law or by legal actors. Women should be treated equally to men because we really are not very different, in terms of our hopes and dreams and desires and abilities. Women are in some ways different from men, but those differences are not weaknesses or deficiencies, and when the law accounts for them correctly, this promotes broadly accepted notions of justice and equality.
In her book “The Second Sex,” feminist philosopher Simone de Beauvoir explained the concept of “woman as other,” writing that “humanity is male and man defines woman not in herself but as relative to him; she is not regarded as an autonomous being.” Feminist legal theory acknowledges the “otherness” of women by recognizing that laws are made, interpreted and enforced by men, and for men. When the justicial interests of women and men are conterminous and congruent, that isn’t problematic for women, but when they are not, it is. Feminist legal theory seeks to identify ways in which the legal system treats women less favorably than men, and to recommend remedial legal reforms.
Subject Areas The most important writings and practical applications of feminist legal theory have primarily occurred in the family law, criminal law, reproductive rights, and employment law arenas. These areas of the law tend to have the most immediate and extensive relationships to the general population of women. Important theoretical feminist work has also been done in legal disciplines such as property law, tax law, and corporate law. Eventually there will be multiple feminist critiques of every legal subject area.
Four Analytic Approaches: Equality, Difference, Dominance, and Intersectionality To prevent this from becoming The Never Ending Feminist Legal Theory Blogpost, I’m going to greatly oversimplify a very rich and diverse field by breaking feminist legal critiques down into four categories. I warn the reader that while the categories are defined quite broadly, they still probably fail to capture important strains of feminist legal thought. None of these categorical approaches is mutually exclusive, but there are times when independently applying various approaches to a particular issue will lead to oppositional outcomes.
Equal Treatment The first category of feminist legal theory concerns itself with equality. It attacks laws that explicitly treat women differently than men, and recommends laws that promulgate change in social policies or practices that put women in inferior positions. Examples: “Equal pay for equal work” was a very powerful rallying cry when women with identical skills and responsibilities were paid less than identically situated men, and laws like the Equal Pay Act of 1963 made a tremendous positive impact on the lives of working women. Reflecting on far more ancient history, feminist legal scholars know that women were not “given” the right to vote, they had to fight very hard for passage of the Nineteenth Amendment, which states in pertinent part: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”
Attaining the right to own property was also an important “equality” triumph, and in some ways a battle that is still being fought, as women are still discriminated against by landlords, by mortgage lenders, and in myriad other ways that affect our ability to acquire and possess property so that we can live independently. Future equality battles will likely address issues like the status of women in the military, and practices in the medical and insurance industries.
Recognition of Difference The second category of feminist legal theory addresses ways in which the legal system intersects with cognizable differences (both biological and socially constructed) between women and men. “Difference” feminist legal theory critiques facially neutral laws that affect women and men disparately, and recommends laws that ease the burdens that gendered expectations place on people, usually to the detriment of women.
Examples: Laws against pregnancy discrimination are an obvious example of legislation that is specifically related to gender differences. The “comparable worth” approach to pay equity posits that the law should guarantee equal pay for comparable as well as equal work, to accommodate the fact that many occupations are highly segregated by gender. The fact that because they are “different,” women may choose certain occupations over others, one argument goes, shouldn’t condemn them to lower salaries if they are working just as hard and skillfully as if they were in male dominated professions with higher pay scales.
The Sometimes Symbiosis of “Equality” and “Difference” The “equality” and “difference” approaches to feminist legal theory are sometimes described as being in tension with each other, but I think that concern is exaggerated by people who feel threatened by the idea of making women a more explicit focal point of the legal system. There are certainly people who describe themselves as “equality feminists” who assert that once all laws are facially neutral, the work of feminism is done, but few feminist legal theorists take this position. Nor I am aware of any “difference” proponents, legal scholars or otherwise, who assert that all laws need to explicitly take account of differences between women and men. Many feminist legal scholars adopt a blended approach, believing that for women to achieve true and meaningful equality, sometimes the law needs to treat women and men as equals, and other times it needs to acknowledge and control for differences related to gender.
Dominance and Subordination The third categorical feminist legal approach is that of dominance theory. It recommends stepping back from scrutiny of individual laws and social constraints, and viewing the entire legal system as an overarching mechanism of dominance and subordination. This returns us with a vengeance to the concept of “otherness” articulated by Simone de Beauvoir. In her 1984 essay, “Difference and Dominance: On Sex Discrimination,” Catharine MacKinnon asserted that to treat issues of sex equality as issues of sameness and difference was to take an approach that concealed the substantive way in which men were the measure of all things, writing:
Under the sameness standard, women are measured according to our correspondence with man, our equality judged by our proximity to his measure. Under the difference standard, we are measured accord8ing to our lack of correspondence with him, our womanhood judged by our distance from his measure. Gender neutrality is thus simply the male standard, and the special protection rule is simply the female standard, but do not be deceived: masculinity, or maleness, is the referent for both. Think about it like those anatomy models in medical school. A male body is the human body; all those extra things women have are studied in ob/gyn. It truly is a situation in which more is less. Approaching sex discrimination in this way – as if sex questions are different questions and equality are sameness questions – provided two ways for the law to hold women to a male standard and call that sex equality.
Under the dominance theory approach, when a law has differential effects on the binary gender categories of “female” and “male,” this is an exercise of power, a way in which women are subordinated to men. Limiting activism to changing discreet laws means all that can realistically be achieved by women is less inequality in targeted contexts. Fighting male dominance in any substantive way requires working for political changes that invest women with equal power in all aspects of social life.
Anti-Essentialism and Intersectionality Finally, the fourth category can be described as either the “anti-essentialist” or “intersectionality” approach to feminist legal critique. This approach rejects the idea that gender issues in the law can or should be considered in isolation. Because in real life women can not be stripped down to an “essential” assortment of gender characteristics, legal analysis shouldn’t attempt this either. Other human attributes such as race and sexual orientation inseparably intersect with gender in the physical world, so the anti-essentialist approach demands that they always be considered together with gender in theory as well as practice. It also strongly encourages conterminous consideration of issues like class and religion, which, while not as legally immutable as race and gender, are viewed as having important connections to gendered constructs that should inform and animate feminist legal theory.
Feminist Legal Theory and the Power of Personal Experiences One important tool of feminist legal theory is the use of personal narratives. Personal narratives sometimes get written off by anti-feminists as self-serving stories of little consequence, up until they point that they are immortalized in appellate opinions, when they suddenly become Important Statements of Law. Feminist legal theorists recognize the importance of personal stories to the project of identifying gender-related problems that are caused by the legal system, or that could be improved by the legal system. One oft invoked feminist phrase is that “the personal is political,” which for feminist legal theorists means that lurking within personal narratives are important political issues that are or can be affected by laws. When women began telling personal stories about bosses who groped them or demanded sexual favors, quid pro quo sexual harassment emerged as a political issue with a legal solution. When individual women began talking about experiences with sexual abuse, among other things an understanding that rape laws required reform emerged. Sharing stories reveals that women have many common experiences, and knowing that “it’s not just me” can be validating and empowering for women who feel disadvantaged or oppressed by gender-related issues.
Quilts My scholarly specialty is intellectual property law, which is comprised of three discreet areas: Copyright law, patent law, and trademark law. Cyberspace law sometimes gets thrown in for good measure as well, since so many legal issues on the Internet involve some facet of intellectual property law. Using the personal narrative format, I will try to illustrate the categories of feminist legal theory I set out above, and I will do this by talking about quilts.
Quilting is a largely female identified art form that does not mesh well with copyright law because quilts are functional, rather than being merely decorative; because quilters use a lot of repetition, such as a particular pattern to represent a wedding, or to symbolize the birth of a child, and these features are intentionally echoed (indeed “copied”) in many later quilts; and because quilts are often designed and executed by amorphous groups (e.g. during “quilting bees”) rather than by a single heroic author. Congress has never attempted to write a provision of the Copyright Act that was specifically applicable to quilts, even though it has done so for many other discreet art forms, categories of writings, and specific technologies. Is this because quilting is viewed as unimportant? And if so, is quilting viewed as unimportant because it is perceived to be the provenance of women? These are the sorts of queries feminist legal theory raises. The equality approach might ask whether there were “male identified” art forms that are similarly ignored by copyright law. The difference approach might ask whether women are better served by keeping copyright laws away from quilting. The dominance approach might ask why women were quilting at all, instead of using their time and talents to pursue more lucrative and culturally respected art forms. The intersectionality approach might ask whether women of particular races or economic classes quilted more than others, and if this could be part of the explanation for why copyright law ignored quilts.
I would initially try to use all these approaches to analyze the interplay (or lack thereof) of quilting and copyright law. However, if I wanted to do more than describe the situation, I’d have to recommend either a change in the law, or a change in the way courts apply and interpret current law. This would require me to favor one theoretical approach over the others, based on what I though the superior normative solution was.
Because I believe that a “low barriers” approach to copyright law is best, I’d be reluctant to recommend adding a specific quilting provision to the Copyright Act if it meant that quilters could more easily assert copyright claims against each other. This would degrade the quilting culture of copying and group authorship that strikes me as socially valuable, so I would reject an “equality” approach that made quilting “equal” to drawings and sculptures. In doing so I would be embracing the “difference” approach, because my views clearly reflect a belief that quilting is different in part because it is women identified, and these differences are beneficial, so the law should preserve them. However, by reifying difference in this manner, I might also be condemning quilting to second class status. It is certainly possible that if the copyright laws treated a quilt more like an oil painting, society might follow suit, and this would elevate the social and economic status of quilters. Valuing “difference” too greatly might preclude this.
Applying dominance theory would require me to recognize that women may turn to quilting because they are subordinated by men who deny them access to other creative outlets. It would therefore make more sense to devote resources to reducing impediments to women’s full participation in the fine arts, rather than simply attempting to amend the Copyright Act on behalf of quilting. One problem with this approach is that quilters may be deeply offended, and wonder why what they do is not being valued. Some will question whether the merits of quilting are being disregarded because quilting is so closely aligned with women: Is quilting getting short shrift because it has “girl cooties”? Others will ask whether, because they prefer quilting to oil painting, they are being accused of “false consciousness,” meaning they are assumed not to recognize that by quilting rather than pursuing other artistic endeavors, they are complicit in their own oppression. I struggle with all this, because while I recognize that framing the world in terms of dominance and subordination tends to abrade the sensitivities of many women, it also seems intuitively correct to me. When I visit a major museum and notice that only a tiny fraction of the exhibited works have been created by women, I don’t blame quilting. I love well made handmade quilts, and I know that producing them requires a lot of specialized effort and skill But I also recognize that the artistry responsible for them might have been channeled into more “museum worthy” forms of artistic expression if the talents and skills of women had been nurtured and developed for centuries along with those of men. It is very difficult to reassure quilters that you value and appreciate their work, while simultaneously asserting that quilting is a symptom of subordination. How can upsetting and offending quilters possibly forward the goals of feminism? It’s a very hard question, and one that reappears in some form or another every time dominance theory is applied to social phenomenon. The intersectionality approach requires me to consciously stop thinking about quilting from a white, middle class perspective and do some research about the role of quilting in the artistic, social and economic lives of women of difference races and in different economic groups than my own. If I specifically determine that the importance of quilting to (for example) poor women is greater than it is to more affluent women, I need to make sure my analysis, and any recommendations I make, take this into consideration. Maybe this means that I will recommend legal changes that would privilege quilt makers (who are mostly women) over quilt sellers (who may be mostly women), and also over quilt buyers (who may also be mostly women). Thinking about the relationships and conflicts between various groups of women can be difficult, but it is also both worthwhile and necessary. While it is certainly possible that if we took over the world, women would start acting just like men, I hold out hope (quite possibly “essentialist” hope, if truth be told) that we could do a bit better, and intersectionality theorists remind feminists that our true project is to build a better world for all women, not just ourselves.
Bibliographies Compiled By others: External bibliographies of books and articles about feminist legal theory include: