Feminist Theory in Law: The Difference It Makes

by Martha Albertson Fineman

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“This essay is a consideration of the feminist project in law and two contemporary legal feminist approaches to the historical construction of women as “different”– a characterization that has had implications in regard to the way in which women are understood as objects and subjects of law. These competing feminist responses are based on similar conclusions about women’s uneasy relationship to law as well as to other institutions of power in our society. They differ, however, in their analyses of the nature and extent of the difference between women and men and the conceptual and theoretical implications of differences.

Until fairly recently, legal feminism was primarily an equality-based
strategy, which assumed no legally relevant differences between men and women. This emphasis was perhaps determined by the many ways in which the law historically both facilitated and condoned women’s exclusion from the public (therefore, overtly powerful) aspects of society. Difference was the rationale and the justification for this exclusion which was based on the belief that women’s unique biological role demanded their protection from the rigors of public life. It was no surprise, therefore, that when significant numbers of women began to make inroads into public institutions such as the law, they sought to dismantle the ideology which had excluded them-assimilation became the goal and equality the articulated standard.

Recently, some feminists have called attention to the fact that “equality” tends to be translated as “sameness of treatment” in American legal culture and, for that reason, actually operates as a conceptual obstacle to the formulation and implementation of solutions to the unique economic and societal problems women encounter.’ These “post-egalitarian feminists” urge a reconsideration and reconstruction of differences-this time from a feminist perspective. Those feminists who now want to move beyond equality and establish affirmative theories of difference recognize that initial adherence to an equality concept was necessary in taking the first steps to change the law and legal institutions. The lesson some of us have learned from the results of the past several decades of equality feminism, however, is that a theory of difference is necessary in order to do more than merely open the doors to institutions designed with men in mind. Arguing for a theory of difference questions the presumed neutrality of institutions, calling into question their legitimacy because they are reflective of primarily male experiences and concerns. In that way, a theory of difference has the potential to empower women.

This essay begins with a consideration of the development of the current debate over differences which continues to characterize much of legal feminist writing. I attempt to address some of the limitations I think feminists encounter when law is the subject about which they write. In the latter half of this essay I expand on a notion of “gendered life” which I first began to develop in an earlier article.  I am developing this concept in order to facilitate a discussion of differences that is both grounded in concrete and empirical experiences of significant numbers of women as well as reflective of the dominant ideological presentation of women as constructions of our culture and its institutions.

The idea of a gendered life is not the same as asserting the notion of
“essential” femaleness. The concept of a gendered life is based on the belief that most differences between the sexes are socially manufactured, not inherent. This realization, however, should not obscure the overwhelming nature of the task faced by feminists seeking change in social and cultural representations of women. Changing society is not an easy task. In fact, in some ways it might be easier were differences the result of nature or biology. In that instance technology might prove of assistance. Culture and society are not easily manipulated and change occurs slowly if at all. Even what appears to be progress is often the superficial adjustment of institutions undertaken only to maintain old hierarchies in the face of challenges.’

Finally, I suggest that the concept of a “gendered life” can be helpful
in urging cooperation among women across our differences in areas where social and cultural definitions of “Woman” operate to potentially oppress us all. The notion of women’s experiences is problematic when consideration is given to the differences among women. This aspect of the debates about difference is currently of particular interest to the legal feminist community. This last section of the essay is ultimately a plea that the feminists who are engaged in writing theory about law not “unique” ourselves out of existence as an analytic category-as “women.” My argument is based on the assumption that as feminist women we have an important and unrepresented perspective with which to assess and critique the law. It is further based on the assertion that as privileged women we have the obligation to help other women who suffer in their gendered lives in our culture but have no access to legal institutions and discourse.”

Fineman, Martha Albertson, Feminist Theory in Law: The Difference it Makes (2005). Columbia Journal of Gender and Law, Vol. 2, 2005; Emory Public Law Research Paper Forthcoming. Available at SSRN: https://ssrn.com/abstract=2103393

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