by Martha Albertson Fineman
“Twenty years ago the first Feminism and Legal Theory (“FLT”) workshop was held at the University of Wisconsin Law School. Begun initially as a summer program, the FLT Project provided a supportive forum for a variety of scholars from different disciplines who were interested in gender and law. Papers from the early sessions of the FLT workshops became a part of the very first feminist legal theory anthology, At the Boundaries of Law: Feminism and Legal Theory.
In the intervening years a lot has transpired. The FLT Project continues to hold summer sessions, along with workshops and “uncomfortable conversations” each semester. We have moved well beyond, while not totally abandoning, the earlier preoccupation with issues of primary concern to women, such as domestic violence and reproductive freedom. Today, the FLT Project is as invested in its “Corporations and Capitalism” working group as it is in working with scholars who are engaging in path-breaking work on care and dependency.
Of course, when we speak of feminism, it is necessary to clearly state that there are many differences within feminism – difference in approach, emphasis, and objectives – that make sweeping generalizations difficult. Recognizing that there are many divergences in feminist theory, it is nonetheless possible to make
some generalizations. Feminism is not anchored in any one discipline. It presents a theory of gender and challenges the assertions and assumptions of gender-neutrality and objectivity in received disciplinary knowledge. Often credited with inserting the “woman question” into disciplinary dialogue, feminism has broadened and complicated the traditional framework of a variety of disciplines. Because gender is theoretically relevant to almost all human endeavors, it is also relevant to almost all disciplines.
I. FEMINISMS AND FEMINISTS
Because feminism as a discipline focuses on the significance of
gender and the societal inequality resulting from values and assumptions based on gender, feminist scholars are found in all disciplines. As a group, feminists are concerned with the implications of historic and contemporary exploitation of women within society, seeking the empowerment of women and the transformation of institutions dominated by men. In addition, many feminists also use distinctive feminist methods to bring women’s experiences to the foreground, such as consciousness raising or storytelling. Such methods recognize the validity and importance of women’s experiences and ground feminist theory and research.
One important characteristic of feminism is that it represents the integration of practice and theory. As noted by historian Linda Gordon, feminism is “an analysis of women’s subordination for the purpose of figuring out how to change it.” The recognized desirability of this practical aspect has made many feminists gravitate toward law and legal reform as objects of study and action. They have had many successes within law. In fact, it is fair to state that feminism, along with economics and, to some extent, psychology, has had a visible and immediate impact on law over the past several decades. The effect is apparent not only in the academic and in legal scholarship, but in the doctrine employed by courts and developed by legislative bodies. The very institutions of law have been assessed and, occasionally, revised in the light of feminist insights and arguments.
The fact that feminism has had an impact is not surprising given the huge influx of women into law schools beginning in the 1970s. While there were women in law schools prior to this period, their numbers have increased significantly during this time. Further, women have been integrated into the profession at all levels.8 In the first wave of women to attend law school, many were explicitly interested in a feminist political agenda. They came to law schools with the mantra that “the personal is the political” ringing resolutely in their ears. They were interested in reform and the role that law would play in the project of engineering a more gender-equal society. These early feminists were optimistic about using law to attain gender equality.
The strategies of early legal feminist reformers were varied and their perspectives were not always compatible. One basic divide that emerged early in the articulation of a legal approach to feminist theory is still significant today—the issue of gender difference. What were the differences between women and men? How were they to be addressed? The majority of early feminist legal theorists adopted a discrimination model to the issue of gender. Their objective was to outlaw biased treatment and provide laws that allowed women equal opportunities with men.
This group of feminist legal scholars and practitioners were uneasy with too much attention to difference and instead wanted to emphasize women’s sameness with men. Less innovators than entrepreneurs within traditional legal principles, these feminists resorted to doctrinal arguments that women and men should be treated the same. Employing and expanding upon existing equal protection jurisprudence, the attack was on differences codified in law as well as on the stereotypes that justified them. The belief was that any recognition of difference or argument for “special treatment” would operate to the disadvantage of women. These feminists attacked discriminatory laws that denied women full participation in public institutions such as the jury (successful) and the military (unsuccessful). They challenged financial and market institutions’ different treatment in areas like insurance and finance, and used Title VII of the Civil Rights Act of 1964 to make gains in equal treatment in access to employment and pay. Consistent with the primary commitment to equality and gender neutrality, many of the early cases were actually brought on behalf of men excluded from women’s institutions or complaining about favored treatment for women.
Other feminist scholars, however, wanted to develop and build upon the concept of gender difference. Gender inequality was not only produced and maintained through exclusion from or discriminatory treatment within existing social structures. Facially neutral rules could also generate inequalities, particularly since women’s and men’s societal circumstances were so different. Such differences demand different treatment – mere formal equal treatment could not sufficiently address existing structural and ideological inequalities. This strand of feminism sought to question the legitimacy of existing gender norms and their implications for society’s institutions and legal structures. The objective was not necessarily to eradicate these norms (a monumental task that has only begun), but to address the implications of gendered institutions. Institutions, including law were not perceived as neutral and potentially helpful in this regard. They were part of the problem as currently constructed.
This group of scholars and activists, labeled “difference feminists,” can be further divided according to how they understood the implications of difference. Some, labeled “cultural feminists,” argued that women were different from men and had a unique way of “knowing” or feeling. For example, cultural feminist arguments were particularly significant in developing the movement to replace adversariness with mediation and other, gentler, forms of alternative dispute resolution.
By contrast, other arguments that focused on gender differences waged broader critiques of certain substantive areas of law. These attacks were directed at a variety of laws and legal institutions, challenging them as illegitimate because they failed to reflect the differences between women and men.
Recognition that differences between women and men existed (whether developed socially or biologically) led some feminists to call for law reforms addressing the position of women and the gendered nature of their lives. The argument was that women occupy a different and inferior or subordinate position in this society and this necessitated “special” concern and responsiveness. Existing laws were attacked as reflective of male bias.21 Some commentators went so far as to assert that the law itself was male.
Such arguments, delegitimizing existing law and structures, eventually led to reforms that displaced the traditional (male) perspective and effectively transformed the way we think about things such as sexual assault and domestic violence. Family law was another area in which critiques based on the inequity of gender differences were effective. Property division rules at divorce were altered in response to the argument that women as homemakers and mothers made valuable, even if non-monetary, contributions to the family. A focus on gender differences also ushered in “new” legal concepts such as sexual harassment and the battered women’s syndrome. Courts began to recognize that a “typical” woman’s reaction to an experience of “flirtation” in the workplace or repeated threats and actions of violence at home might not be the same as those of the law’s construct—the “reasonable man.” These changes in the law show the success that feminists have achieved in working towards challenging the existing nature and structure of the law. As noted over ten years ago in At the Boundaries of the Law, “the task of create and explicate feminist methods and theories that explicitly challenge and compete with the existing totalizing nature of grand legal theory.”
There is a tension between the idea of feminism as a method of analysis and gender neutrality or equality as its aspiration. How can the major feminist insight – that women live gendered lives, lives shaped by experiences within a society whose institutions and ideologies are founded upon and incorporate gendered assumptions – be reconciled with the equality paradigm as it is played out in law as sameness or equality of treatment? By and large, there is no reconciliation. Equality norms and gender neutrality prevail; although, there is some minor concession to the realization that women’s unequal material circumstances might require some small, preferably temporary, concessions. For example, advocates of affirmative action begin with the premise that equality is not only desirable, but also attainable. The point of affirmative action is remedial—to ensure equal access and equal opportunity for equally distributed meritocracy and ability.
In fact, if we look at the areas which take the idea of gender most seriously and in which it has had the greatest impact, what emerges is an interesting picture. Sexuality, “domestic” violence, and family law are areas that have historically and stereotypically been conceded to women or considered to be of special concern to women. While rape and sexual harassment are “public” events that are sanctioned by law and the focus of regulation and policy, unease with both actions is the result of the fact that we view them as related to “private” activities such as consensual sex and flirtatious seduction. The idea of gender is less visible in situations where we do not view women as victims, as we do in some cases of rape or domestic violence, or where issues do not implicate the domestic sphere of home and family. The dilemma for a feminist is how to bring a gender-focused analysis to bear in the more public and powerful institutional contexts. How can we argue that gender is relevant beyond the sexual, the violent, and the familial?”
Fineman, Martha Albertson, Feminist Legal Theory (2005). Journal of Gender, Social Policy & the Law, Vol. 13, No. 1, 2005; Emory Public Law Research Paper . Available at SSRN: https://ssrn.com/abstract=2132233