Legal Theory Blog

Stabile on Catholic & Secular Feminist Legal Thought

Susan J. Stabile (University of St. Thomas - School of Law (Minnesota)) has posted The Challenges of Opening a Dialogue between Catholic and Secular Feminist Legal Theorists on SSRN.  Here is the abstract:

Catholic Feminist Legal Theory has much to contribute to our analysis of various social, political and legal issues. However, in order for a Catholic Feminist Legal Theory to make a contribution to the dialogue about issues of law and public policy, it has to be able to speak effectively to those outside of the faith tradition. In particular, it has to get past the instinctive reaction of many people that a Catholic feminist theory cannot be reconciled with secular feminist theory.

The question addressed in this Article is whether it is possible for a Catholic Feminist Legal Theory to be taken seriously by secular feminists and other legal scholars. The Article identifies and discusses some of the major challenges to the articulation of a persuasive Catholic Feminist Legal Theory to a non-Catholic feminist audience. With respect to each of the issues identified as a challenge to secular feminists, my focus in this Article is not whether the Church's position on the issue in question is correct. Rather, the focus is whether the position of the Church on the issue can be shown to be grounded in truth claims that do not sound in subordination of women or otherwise do violence to the aims of secular feminists.

The Article addresses five issues: (1) the place and role of Mary within Catholicism; (2) a historical narrative of subordination in the Church; and the Church's position on (3) contraception, (4) marriage and family and (5) the ordination of women. It concludes that the first two of those issues, properly understood, do not present any problem from a secular feminist perspective. With respect to the third and fourth issues, it concludes that although the Church's positions on contraception and marriage/family are grounded in claims that do not on the surface seem inherently oppressive to women, the positions do imply a view of homosexuality that will be difficult for secular feminists to accept. Compounding the difficulty, the fifth issue, ordination presents a more directly challenging problem from a secular perspective. Thus, ultimately I am pessimistic about the ability of a Catholic Feminist Legal Theory to be able to engage in meaningful dialogue with secular feminists.

Baines on Feminist Judges

Beverley Baines (Queen's University - Faculty of Law) has posted But Was She a Feminist Judge? (ONE WOMAN'S DIFFERENCE: THE CONTRIBUTIONS OF JUSTICE BERTHA WILSON, Kimberley Brooks, ed., UBC Press, Forthcoming) on SSRN.  Here is the abstract:

During her time on the bench, Justice Wilson refused to identify as a feminist. Her silence did not deter feminists from applauding many of her decisions. Nor did it preclude them from critiquing three opinions: Pelech, Morgentaler, and Hess. In this chapter, first I identify the features of feminist legal theory that inform these critiques. Next I explore some of the recent challenges that women's studies and gender theorists have posed for this theory. I conclude that it makes a significant difference to analyze Justice Wilson's three contested opinions from the perspective of gender theory.

Dowd on Masculinities & Feminist Legal Theory

Nancy Elizabeth Dowd (University of Florida Levin College of Law) has posted Masculinities and Feminist Legal Theory: An Antiessentialist Project (Wisconsin Women's Law Journal, Vol. 13, 2009) on SSRN. Here is the abstract:

Men, patriarchy and masculine characteristics have predominantly been examined within feminist theory as a source of power, domination, inequality and subordination. Various theories of inequality have been developed by feminists to challenge and reveal structures and discourses that reinforce explicitly or implicitly the centrality of men and the identity of the top of a hierarchical power and economic structure as male.

The study of masculinities has been inspired by feminist theory to explore the construction of manhood and masculinity, and to question the real circumstances of men. It has explored how privilege is constructed, and what price is paid for privilege. Masculinities study challenges an essentialist portrait of men. Instead of seeing men as a single entity, and only described in terms of dominance and power, the study of masculinities reveals ways in which the dominant gender system subordinates and differentiates among men. At the same time, anti-essentialism also means exposing affirmative differences among men that challenge dominant definitions of masculinity. Masculinities analysis exposes how those alternative models are constructed as well as quashed by the dominance of a preferred, singular gender model that ultimately limits men's freedom as well as resisting women's equality.

The study of masculinity thus reveals not only a more complex portrait of men, but also enhances the understanding of the construction of gender for women.

This paper is linked to an larger project on the interface between masculinities scholarship and feminist theory, in which I hope to explore the theoretical relationship between the two, as well as looking at some particular examples that relate to boys and to men. In this article I suggest in is time for feminist theory to move toward a richer analysis of men, informed by masculinities scholarship. I outline the theoretical perspective of masculinities scholarship. I then explore how this plays out in specific areas related to boys and men. In this article I look at boys and education as well as men and fatherhood. Finally, I suggest how masculinities scholarship might inform feminist analysis. I hope to de-essentialize men in feminist theory, use masculinities scholarship to enrich efforts to identify male privilege and the specific practices that sustain male dominance, and challenge masculinities theory to more strongly address the means to undermine male power.

This paper should be of interest to critical scholars, as well as those interested in the range of masculinities scholarship across a broad array of legal subjects.

Barak-Erez on Feminism, Citizenship, and Armed Service

Daphne Barak-Erez (Tel Aviv University - Buchmann Faculty of Law) has posted The Feminist Battle for Citizenship: Between Combat Duties and Conscientious Objection (Cardozo Journal of Law & Gender , Vol 13, p. 531, October 2007) on SSRN. Here is the abstract:

Military service has traditionally been considered one of the most distinctive signs of full citizenship. Accordingly, the exclusion of women from military service has been inseparable from their lower civic status. Struggles for inclusion in the army, and particularly in positions of combat duty, have therefore been part of the feminist agenda, at least for those who associate it with equal opportunities. The article explores the dilemmas around military service of women by focusing on the struggles around full inclusion of women in the army in Israel. The Israeli context is special in this regard due to two factors: the application of mandatory service to women on one hand and the centrality of military service in the country on the other hand.

The controversy in this matter reached the Israeli Supreme Court only at a relatively late stage - by two petitions that, prima facie, represent sharply conflicting struggles. One petition was aimed at expanding equal opportunities for women in the army by changing the historical policy of accepting only men to the air force's prestigious pilots' course. In contrast, the other petition was aimed at exempting the petitioner from army service for reasons of conscience, with reference to the prolonged Israeli rule in the occupied territories. This petition was based on a special legal provision not applicable to men. The article explores these petitions and the judgments which followed them and then evaluates their relative contribution to the struggle for equal citizenship of women.

Despite large differences in the background and the aims of these petitions, they share strong resemblances. Both, ostensibly so far apart, acknowledge the centrality of military service to Israeli citizenship. The petition for full inclusion in the air force highlighted the importance of military service for equal opportunities in professional and public life. The petition for exemption from service opened the door for the participation of young women in the Israeli political discourse. Both petitioners understood that full citizenship in Israel, as opposed to merely formal citizenship, goes through the army or at least through taking a stand with regard to military service.

Call for Papers: Feminist Legal History

The editors of a proposed book, Feminist Legal History: New Perspectives on Law seek submissions for contributing chapters to the book. This book is an edited collection of essays by leading scholars in law and history that offers new historical and feminist perspectives on law and applies these insights to the legal and social policy issues of today. The collection takes as its primary goal an exploration of women’s historical use of the law to advocate and achieve equality. Contributing authors employ this core theme in a variety of historical contexts to reframe and illuminate such topics as women’s rights in the area of family law, women’s participation in the U.S. military, women’s legal activism and participation in social justice movements, judicial roles played by women, and women’s status in constitutional law. Feminist Legal History was inspired by a symposium held in October 2007 sponsored by the Center for Constitutional Law at The University of Akron School of Law, one of four such national centers established by Congress.

Editors
Tracey Jean Boisseau, Ph.D., The University of Akron, Department of History
Tracy A. Thomas, J.D., M.P.A., The University of Akron School of Law

Contributors
Felice Batlan, J.D., Ph.D., Chicago-Kent College of Law
Eileen Boris, Ph.D., University of California Santa Barbara, Women’s Studies Program
Mary L. Clark, J.D., American University Washington College of Law
Jill Elaine Hasday, J.D., University of Minnesota Law School
Gwen Jordan, J.D., Ph.D., Fellow in Legal History, University of Wisconsin School of Law
Jennifer Klein, Ph.D., Yale University, Department of History
Jean H. Quataert, Ph.D., Binghamton University, Department of History
Mae C. Quinn, J.D., L.L.M., University of Tennessee School of Law
Leigh Ann Wheeler, Ph.D., Bowling Green State University, Department of History

If interested, please submit an abstract and CV by July 1 to Professor Tracy Thomas at thomast@uakron.edu. Final manuscripts of 20-25 pages should be submitted by September 15, 2008.

For questions, contact:
Tracy A. Thomas
Professor and Director of Faculty Research
University of Akron School of Law
(330) 972-6617
thomast@uakron.edu

Fineman on Vulnerability & Equality

Martha Albertson Fineman (Emory University - School of Law) has posted The Vulnerable Subject: Anchoring Equality in the Human Condition (Yale Journal of Law & Feminism, Vol. 20, No. 1, 2008) on SSRN. Here is the abstract:

This essay develops the concept of vulnerability in order to argue for a more responsive state and a more egalitarian society. Vulnerability is and should be understood to be universal and constant, inherent in the human condition. The vulnerability approach is an alternative to traditional equal protection analysis; it represents a post-identity inquiry in that it is not focused only on discrimination against defined groups, but concerned with privilege and favor conferred on limited segments of the population by the state and broader society through their institutions. As such, vulnerability analysis concentrates on the institutions and structures our society has and will establish to manage our common vulnerabilities. This approach has the potential to move us beyond the stifling confines of current discrimination-based models toward a more substantive vision of equality.

This paper is much anticipated and highly recommended.

Kalsem & Williams on Social Justice Feminism

Kristin Kalsem and Verna L. Williams (University of Cincinnati - College of Law) have posted Social Justice Feminism on SSRN. Here is the abstract:

For the past three years, women leaders from national groups, grassroots organizations, academia and beyond have gathered to address dissonance in the women's movement, particularly dissatisfaction with the movement's emphasis on women privileged on account of their race, class, or sexuality. At these meetings of the New Women's Movement Initiative (NWMI), advocates who no longer want to do feminism have articulated a desire for social justice feminism. This article analyzes what such a shift might mean for feminist practice and legal theory.

Drawing on history, specifically the work of the women behind the Brandeis brief in the Muller v. Oregon workers' hours' restriction case and the National Women's Conference of 1977, this article takes initial steps at broadly defining social justice feminism as that which is productive, constructive, and healing. Moving from practice to theory, it suggests a new way of articulating and understanding the feminist work that is being done in this current stage of feminist jurisprudence, after the path-breaking interventions of anti-essentialism and intersectionality. This article also sets forth certain methodological tools for doing social justice feminism and then uses them to examine the recent Supreme Court case, Long Island Care at Home v. Coke, a case upholding the lack of wage protections for certain domestic workers.

With this article, we hope to advance the conversation that has already begun, both in the world of practice as evidenced by the work of the NWMI, as well as the world of feminist legal theory. Social justice brings to feminism a particular emphasis on fairness and transformation; it is a modification that signals change. At this critical time, with efforts to exacerbate the divides of race and gender, social justice feminism provides a new paradigm for talking about and examining these and other issues that threaten movements dedicated to dismantling oppression and bettering people's lives.

Crawford on Third Wave Feminism

Bridget J. Crawford (Pace University - School of Law) has posted Third-Wave Feminism, Motherhood and the Future of Legal Theory on SSRN.  Here is the abstract:

This paper theorizes the noticeable absence of law from discussions of motherhood by feminists who came to political consciousness in and after the 1990's. Young women loudly proclaim their difference from feminists who have come before, but in doing so, they over-emphasize and even elevate women's reproductive achievements over others. First-person narratives like Rebecca Walker's Baby Love, Evelyn McDonnell's Mama Rama, and Peggy Orenstein's Waiting for Daisy reify motherhood into a sought-after and revered state. These authors, perhaps unwittingly, contribute to the very mythology of motherhood that prior feminists sought to vanquish. They seemingly reject the feminist adage that the personal is political. For Walker, McDonnell, Orenstein and others, the political is personal all over again.

By offering a critique from squarely within the generation of women who have proclaimed a third-wave of feminism, this article speaks directly to my peer group of legal scholars. I am a third-wave feminist by strict demographic definition, but not by preference, politics or proclivity. Women like me (and our allies) who grew up and first studied law in a post-ERA, post-Title IX and post-coeducation era need to develop our own account of the law's limitations and potential. This account should be informed by our own experiences but also needs to understand preceding feminist concerns and methodologies. Writings of young feminists, when read in the context of the work of Martha Fineman, Robin West and Adrienne Rich, among others, can articulate a feminist theory of motherhood. In fusing contemporary third-wave feminist writing with extant feminist legal scholarship, one can discern the beginnings of a potentially rich third-wave feminist legal theory with its sights on pragmatic gender justice.

Sheehan on Deconstruction

Katherine C. Sheehan (Southwestern Law School) has posted Caring for Deconstruction (Yale Journal of Law and Feminism, Vol. 12, 2000) on SSRN.  Here is the abstract:

In her 1997 book “Caring for Justice”, Robin West issues a call for a “justice of care”. In the same work, however, West attacks what she calls “postmodernism,” largely because she views it as a threat to her “essentialist” position—the idea that women share essential qualities with each other. However, neither West's call for the mitigation of general justice with particularized care nor her more general project of enriching the law's understanding of women's lives depends on this essentialism. West's refusal to attend to a wide variety of work lumped together as “postmodernism” undermines the strength of her case for a justice of care in at least two important ways. First, West has blinded herself to remarkably similar and important work done in the area of responsibility, ethics and politics by the late Jacques Derrida. Derrida's recent explorations of the tensions between the political necessity for general rules of law and ethical responsibility owed to the singular other both enrich the justice/care debate and highlight opportunities for further theoretical development. Attention to this work can only help West in thinking through the issues she has raised. Second, West's essentialism, premised on the notion that individuals share essential qualities by virtue of their gender, is itself inconsistent with her demand that justice respect each litigant in his or her particularity.

Part II of this Article explores the surprisingly close parallels between Derrida's and West's views of justice. Although their notions of justice as asymmetrical relationships based in responsibility are strikingly similar, Derrida and West arrive at their ideas from quite different directions which suggest different practical possibilities and problems. Part III situates Derrida's writing on justice within the body of his work, in the process attempting to clear away some of the more troublesome misconceptions that have attached themselves to deconstruction in the US. Part IV critiques West's feminist essentialism and its incompatibility with her idea of caring justice. The article concludes by comparing the implications of Derrida's and West's ideas and suggest directions for further research.

And a bit more from the text:

As Drucilla Cornell has pointed out, West’s aim to “reveal Woman for what she really is” depends for its success on a language that does not and cannot exist,“a pure medium that transposes sense by bringing it to conceptual form.”

And a bit more:

West often finds herself defending her essentialism against friendly feminist criticism, but never succeeds in doing so adequately. In a defense against anticipated objections in the Introduction to Caring for Justice, for example, West confuses sameness with difference. West refers to the work of Carol Gilligan for the proposition that women are different from men, then challenges “those who assert the ‘no difference’ hypothesis”149 to assume the burden of proof. The critical problem with West’s essentialism, however, is that it posits sameness among women, not that it argues for difference between women and men.

I must admit that I am totally baffled by the reference to “a pure medium that transposes sense by bringing it to conceptual form.”  Language is a medium, but what are the criteria for a "pure medium."  And why does West's argument rest on purity.  As for sameness and difference, West is most certainly not confused.  If there are two sets, X and Y, and set X differs from set Y, then the members of set X must share characteristics that enable the difference.  Or to put it somewhat differently, the idea of sameness is entailed by the grammer of sameness and difference, using grammer in the Wittgensteinian sense.

Given the subject matter, this paper is quite readable and it does a good job of demystifying Derrida.

Resources on Feminist Legal Theory

Ann Bartow has posted an excellent collection of sources in a post entitled Feminist Legal Theory For Beginners?.  Very cool.