Feminist Theory in Law: The Difference It Makes

by Martha Albertson Fineman

pink hat
Image by Clker-Free-Vector-Images from Pixabay

“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.
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The Neutered Mother

by Martha Albertson Fineman

black-and-white outline of a woman breastfeeding an infant

“I. INTRODUCTION
A. Definitions:
Mother; a female who has borne offspring
Female; of or pertaining to the sex that brings
forth young
Neutered; neither masculine nor feminine in
gender
Gender; the quality of being male or female
B. Mother as Symbol
I use the term “Neutered Mother” because it represents conflict and
contradiction-words in contraposition to each other, incompatible when placed together. The Neutered Mother presents a gendered noun, degendered by the adjective that precedes it-an opposition of meaning that mirrors the conflicts in culture and in law over the significance and potency of the symbol of Mother.

 

In this Article, I will assess the evolution of the symbolic aspects of “Mother” in modem family law reform and offer an argument for revitalization of the powerful and positive aspects of changes in law for real life mothers.’ Focusing on Mother in any context is dangerous. Mother is a universally possessed symbol (although its meaning may vary across and within cultures). We all have a mother-some of us are mothers. As a lived experience, Mother is virtually universally shared in our culture and, therefore, more intimately and intensely personalized than many other symbols. Mother, however, is an ambiguous symbol–one about which there is contest. For that reason, the importance of Mother as a symbol is greatly enhanced on both an individual and a societal level. In its various configurations, Mother is a significant factor in defining our understanding of our own familial, sexual, and social circumstances. In this way, it is also significant in our construction of universal meanings-defining the general qualities of life for us.

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The Social Foundations of Law

by Martha Albertson Fineman

“I. INTRODUCTION
The first few words of the Constitution of the United States capture the idea of the social contract-the legitimacy of government is based on the consent of the people.’ The renewed interest in social contract theory since the 1970s may have been generated by the public diversity of viewpoints and perspectives that began to emerge at the time and that challenged the very idea of “we the people.”
     In the sprawling, secular, contemporary American context, appeals to social cohesion based on religious principles or on shared geographic boundaries are
of limited usefulness. Voluntary participation in societal institutions may generate identification with a group, but this too is limited. As I have noted earlier, “A national identity can be based on acceptance of a shared or common language, culture, or history, but in pluralistic and diverse societies citizens often are fragmented along exactly these lines.” As a result, quite often a unifying myth is fostered and perpetuated as a way to build unity where division might otherwise prevail.

A Workshop on Vulnerability and Corporate Subjectivity – Call for Papers

Vulnerability theory has long been critical of the liberal legal subject and an ideology that privileges consent and contract, manipulating concepts such as choice and autonomy to justify a restrained state. This workshop seeks to explore questions around the legal subject as manifested in its corporate form. The corporation is a legal construct, originally designed to meet social goals. However, throughout the years, and particularly since the rise of neoliberalism in the last decades, it has transformed into an institutional structure that often thwarts human well-being. The recent shift from liberalism to neoliberalism not only re-positioned markets and capital, it also reformulated the idealized legal subject at the center of law and politics. Neoliberal legal subjects—both people and the corporations they form—are reconfigured as “units” of capital that, as such, demand constant investment and management to maximize value. Such units of capital then serve as the mediating institutions through which, according to neoliberalism, social goods are justly allocated and social goals are ideally achieved.

How has this profound shift been accomplished? What role has the perception of the corporation, as a legal construct, played in facilitating such transformation? To what extent have laws and policies been designed to respond to corporate vulnerability or to the need to support corporations by enhancing their resilience? A central tenet of vulnerability theory is that vulnerability is universal – for both natural persons and for legal persons (institutional subjects) created by law and policy. Despite this universality, individual and corporate vulnerability are fundamentally different – individual vulnerability is primary and corporate vulnerability is socially derived. A question can be asked about the ways in which the state chooses to address these universal vulnerabilities – directly, by focusing on individuals’ resilience, or indirectly, but focusing on corporate resilience.

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Injury in the Unresponsive State Writing the Vulnerable Subject into Neo-Liberal Legal Culture

by Martha Albertson Fineman

Image via Arek Socha.

Introduction

This chapter considers the limited ways in which “injury” or harm is understood in American political and legal culture. In particular, I am concerned with the inability of contemporary constitutional or political theory to interpret the failure of collective or state action as constituting harm worthy of recognition and compelling remedial action. Here, I am not focused on laws redressing harm to private individuals and entities caused by other private individuals and entities. These legal harms are defined in areas of private law, such as tort and contract. Nor am I focused on those legal harms addressed by areas of regulatory law, such as criminal or administrative law. Rather, I am interested in the norms and values that inform the principles governing the exercise of action and restraint on the part of the state when it acts as sovereign and in relationship to individuals as political or legal subjects. As reflected in these foundational documents and constitutional jurisprudence of the United States, these principles express a theory or philosophy of what constitutes legitimate state authority.

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Deadline Extended – 1/20/20

The deadline for proposal submissions has been extended to Monday, January 20, 2020.

We are pleased to announce a workshop commemorating the publication of one of Professor Martha Albertson Fineman’s most influential books –The Neutered Mother, the Sexual Family and Other Twentieth Century Tragedies (1995). Twenty-five years after its publication, The Neutered Mother continues to exert a powerful influence on critical and feminist legal studies, as well as the social sciences and humanities at large. We warmly invite a range of scholarly, pedagogical, critical, and creative responses to this important book, as well as reflections upon how it has shaped work on the family, as well as individual autonomy, dependency, vulnerability and the vulnerable subject.

Continue reading Deadline Extended – 1/20/20

from “The Sexual Family” by Martha Albertson Fineman

Chapter from Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations

Image via Gerd Altmann from Pixabay

“I. STRUCTURING INTIMACY

Core assumptions inherent in our current social and cultural narratives about the family as an institution have tremendous significance in the political and legal definition of the family and, hence, for the fate of mothers. The legal story is that the family has a “natural” form based on the sexual affiliation of a man and woman. The assumption that there is a sexual-natural family is complexly and intricately implicated in discourses other than law, of course. The natural family populates professional and religious texts and defines what is to be considered both ideal and sacred. The pervasiveness of the sexual-family-as-natural imagery qualifies it as a “metanarrative”—a narrative transcending disciplines and crossing social divisions to define and direct discourses. The shared assumption is that the appropriate family is founded on the heterosexual couple—a reproductive, biological pairing that is designated as divinely ordained in religion, crucial in social policy, and a normative imperative in ideology. Continue reading from “The Sexual Family” by Martha Albertson Fineman

‘Elderly’ as Vulnerable: Rethinking the Nature of Individual and Societal Responsibility

by Martha Albertson Fineman

Image by OpenClipart-Vectors

“The vulnerability of our embodied beings and the messy dependency that often comes in the wake of physical or psychological needs cannot be ignored throughout any individual life and must be central to theories about what constitutes a just and responsive state. The concept of vulnerability reflects the fact that we all are born, live, and die within a fragile materiality that renders all of us constantly susceptible to destructive external forces and internal disintegration.

Vulnerability should not be equated with harm any more than age inevitably means loss of capacity. Properly understood, vulnerability is generative and presents opportunities for innovation and growth, as well as creativity and fulfillment. Human beings are vulnerable because as embodied and vulnerable beings, we experience feelings such as love, respect, curiosity, amusement, and desire that make us reach out to others, form relationships, and build institutions. Both the negative and the positive possibilities inherent in vulnerability recognize the inescapable interrelationship and interdependence that mark human existence.

The state and the societal institutions vulnerability brings into existence through law collectively play an important role in creating opportunities and options for addressing human vulnerability. Together and independently institutional systems, such as those of education, finance, and health, provide resources or assets that give individuals resilience in the face of our shared vulnerability. A responsive state must ensure that its institutions provide meaningful access and opportunity to accumulate resources across the life-course and be vigilant that some individuals or groups of individuals are not unduly privileged or disadvantaged. Continue reading ‘Elderly’ as Vulnerable: Rethinking the Nature of Individual and Societal Responsibility