by Martha LA Fineman
“Twenty-ﬁve years ago, shortly after my own successful, but nonetheless harrowing bid for tenure, I began the Feminism and Legal Theory Project (FLT) at the University of Wisconsin. The explicit purpose was to provide a supportive and encouraging environment for scholars interested in doing feminist theory work. Early workshop sessions were in the summers, often lasting a week or more. They were organized around topics or themes, such as differences and motherhood.
The women and men who came to those early sessions were searching for a way to reconcile growing critical and feminist sensibilities with the study and teaching of law as we had experienced it as students and beginning professors. A handful of Women and the Law courses had been created and were being taught at that time, but there were very few women law professors and the word “feminist” was fairly new to law schools.
During those early sessions, we struggled in our presentations and discussions, often borrowing from feminist work in other disciplines, trying to push the language of feminism found in literature or history into a legal frame. The language found in other disciplines didn’t always ﬁt very well into the legal frame, particularly because the discipline of law had its own discourse and some rather inﬂexible standards that resisted new ways of approaching old problems.
In so far as feminist theory is critical theory, it faced a formidable subject in encountering the law. The law historically is conservative in nature. Concepts such as stare decisis and adherence to the idea of precedent controlling decisions make change difficult. In addition to valuing stability and continuity, law adhered (at least rhetorically) to principles of neutrality and objectivity. Teaching law was supposed to be a rational and logical exercise, not one that introduced particular perspectives or political positions. Feminism was seen as importing bias into teaching and scholarship, a form of special pleading in which women always came out on top.
Justice is, after all, blind, and we are a nation of laws, not men (sic) as the sayings go. Claims for reform based on the idea that a group (women) was not represented by the men who controlled law and its institutions and that the law was therefore biased were not well received. A large burden for as the ﬁrst generation of feminist legal scholars was to convince our colleagues in the legal academy that feminism had its place and was as meritorious as its con- temporaries: law and economics and critical legal studies. To some extent feminist legal theorists were able to build on the critiques of legal realists who challenged the objectivity of law during the 1930s and 1940s. Feminist legal theorists also benefited by inroads made at a number of law schools by the ﬂeeting Critical Studies Movement during the 1970s and 1980s.
Law as a discipline remains a tough terrain for feminist thought, however. Even though most US law schools now have courses and seminars on feminist legal theory, many remain skeptical about its contributions, particularly those who have not educated themselves about feminist legal theory and the insights it can bring to their understanding of law and legal institutions. Increasingly feminists themselves raise questions about using the label “feminist,” since it is seen as divisive or off-putting.
Some of our early eﬀorts at feminist legal scholarship were published in 1991 in the ﬁrst anthology of feminist legal theory, At the Boundaries of Law: Feminism and Legal Theory, which I edited along with Nancy Thomadsen. I selected the term “boundaries” for the title because while feminism had made its way into law, crossing some conceptual and intellectual boundaries, it had barely done so. Feminist legal theory clearly stood in law’s margins—near the boundary that marked law oﬀ from other academic disciplines. The Introduction to this earlier collection is included as an appendix to this volume.
This new collection marks the passage of a quarter of a century of scholarship supported by the FLT Project. Its title connotes that the current position of feminist theory might be perceived as “transcending” law. This could mean two different things. The ﬁrst is a mere celebratory claim that feminism is nearer the center than the periphery of law, having transcended or moved beyond law’s boundary. However, some would argue that what has been transcended is not the boundary that marks oﬀ law, but law itself. This claim is more controversial, both within and without legal feminism because any claim that feminist theory has gone beyond or transcended law raises a fundamental question about the future of feminist legal theory: what will give focus and content to feminist legal theory if it has left law behind?
The chapters in this collection do not always agree on where feminism should be positioned in regard to law. Some proceed as though feminist insights were central to law and law reform (or at least in legal education). Others see little possibility for real feminist transformation in law, adhering to the notion that law is inherently male and impervious to feminist inroads. A few other authors in this collection seem to have transcended law in their own work. While they might focus on legal institutions and bring an understanding of how law interacts with society and positions of power, their concern is not with changing or reforming law but in better understanding how power is manifested. In that sense arriving at (or in) law is not the goal. In fact, law may be but an obstacle to be understood and ultimately transcended.
This book is divided into seven sections, beginning with reﬂections on the history of feminist theory and moving on to reﬂect on key themes in feminist legal theory: equality, bodies, universals and identities, intimacy and family, the state, and politics. These themes and some of the chapters reﬂect the fact that while much has changed since that ﬁrst collection of essays, much remains the same. This new collection presents a range of feminist legal scholarship and a diversity of feminist legal scholars, including men, who were absent from the ﬁrst FLT collection. Readers will encounter exciting and varied scholarship in the following pages that should leave them with a sense of the richness of feminist legal theory as it has developed over the last 25 years.”
Fineman, M.A., & (2010). Transcending the Boundaries of Law: Generations of Feminism and Legal Theory. Abingdon: Routledge
Find the book here.