Feminist Philosophy of Law STUDY NOTES A LEVAL

First published Tue May 19, 2009; substantive revision Tue Oct 24, 2017 Feminist philosophy of law identifies the pervasive influence of patriarchy and masculinist norms on legal structures and demonstrates their effects on the material conditions of women and girls and those who may not conform to cisgender norms. It also considers problems at the intersection of sexuality and law and develops reforms to correct gender injustice, exploitation, or restriction. To these ends, feminist philosophy of law applies insights from feminist epistemology, relational metaphysics and progressive social ontology, feminist political theory, and other developments in feminist philosophy to understand how legal institutions enforce dominant gendered and masculinist norms. Contemporary feminist philosophy of law also draws from diverse scholarly perspectives such as international human rights theory, postcolonial theory, critical legal studies, critical race theory, queer theory, and disability studies. Addressing the goals of feminist philosophy of law requires theory development, conceptual analysis, and conceptual revision. Promoting freedom and equality for women reflects a profound shift in basic assumptions about the nature of women and their proper place in the world: a shift from inequality to equality of the sexes, along with re-examination of what equality itself requires. It also requires re- examination of the understanding of sex, gender, and gender roles. Given the scope and detail of this change, feminist legal theory proceeds on multiple levels, from the pragmatic, concrete, and particular to the conceptual and ultimately visionary. Some of this writing appears in philosophy journals and monographs, but much also appears in journals in gender studies and feminism, generalist law reviews, and the many specialist law journals devoted to issues of gender and justice. This article begins with a brief overview of fundamental themes of feminist legal theory, followed by discussion of the evolution of views about needed institutional changes in several substantive areas of law: political equality, immigration, and citizenship; marriage, reproductive rights, and commodification of the body; protection from violence; and economic rights.  1. Fundamental Themes in Feminist Legal Philosophy o 1.1 The Rule of Law o 1.2 Equality and Difference o 1.3 Reasonableness in Law o 1.4 Public and Private o 1.5 Human Rights o 1.6 Multiple Methodologies  2. Formal Equality and Equal Citizenship  3. Marriage, Reproductive Rights, and Commodification of the Body  4. Violence Against Women  5. Equality in Social and Economic Life  6. Conclusion  Bibliography  Academic Tools  Other Internet Resources  Related Entries 1. Fundamental Themes in Feminist Legal Philosophy In philosophy of law, as in feminist theory more generally, methods, presumptions, and approaches vary considerably. Radical, socialist and Marxist, postcolonial, transnational, relational, cultural, postmodern, dominance, difference, pragmatist, liberal, and neoliberal approaches to feminism are all represented in and provide differing contributions to feminist legal philosophy. Moreover, feminist legal theory has developed over time, with concerns such as equality, liberty, dominance and difference, and diversity and globalization prevailing at different points (Chamallas 2003). Despite all these differences of focus, emphasis, or approach, certain themes are common. Normative assumptions include the equal moral worth of all human beings (and perhaps of some non-human animals as well) and the entitlement of beings of such moral worth to equal treatment under the law, however this might be understood. Feminist philosophers of law also share certain basic criticisms of traditional views of the nature of law and legal reasoning, of patriarchal assumptions as reflected in law, and of the problems that women have in securing equal justice under law (Smith, 1993, ch. 6). They are attuned to the ways that power in society is shaped by the shortcomings of various legal systems as well as to the complexities of improving these systems, including how to decide the meaning of equal treatment under law and how it might be achieved. For example, feminist philosophers of law may disagree about the extent to which law should attempt to prevent dominance within intimate relationships and is complicit in oppression if it does not. Neoliberal views emphasize liberty and consent; criticisms of neoliberalism include the practical difficulties of choice under circumstances of patriarchy or economic constraints. To take another example, difference feminists and liberal feminists struggle with the meaning of equality under law and whether achieving equality might in some circumstances require different treatment. 1.1 The Rule of Law Many standard accounts of the nature of law hold that law presumes and reflects a world-view in which the goal is to achieve a set of presumptively coherent and stable propositions. Whether this aim is understood as “the rule of law” (see, e.g., the entry on Friedrich Hayek), as the “internal morality of law” (see, e.g., the discussion of Fuller in the entry on natural law theories), or as “the soundest theory of the settled law” (see, e.g., the discussion of Dworkin in the entry on interpretation and coherence in legal reasoning), or in other similar terms, legal systems embody comprehensive and generally long-standing conceptual systems. The coherence of any particular legal system can always be challenged, but on this approach an aspiration of any legal system is coherence. And (at a minimum) the appearance or illusion of coherence is maintained by requirements of consistency, including following precedent, treating like cases alike, and maintaining judicial impartiality. Feminist critics point out that conceptualizing the rule of law in terms of coherence and consistency tends to reinforce and legitimate the status quo and existing power relationships (Scales 2006; MacKinnon 1989). Indeed, one primary purpose of law as traditionally understood is to promote stability and order by reinforcing adherence to predominant norms, representing them not only as the official values of a society, but even as universal, natural, and inevitable. Law is thus seen as setting the official standard of evaluation for what is normal and accepted—what is required, prohibited, protected, enabled, or permitted. It is accordingly represented as objective—for example, as compelled by precedent and not just a matter of opinion (see, e.g., MacKinnon 2006, 1989; Smith 2005, 1993; Rhode 1997; Minow 1991). Violations, wrongs, injustices, harms, or infractions are by definition deviations from law, and typically also deviations from the status quo. The status quo is the invisible default standard of law. From these observations, feminist philosophers of law have concluded that law makes systemic bias (as opposed to personal biases of particular individuals) invisible, normal, entrenched, and thus difficult to identify and to oppose (Minow 1991; Rhode 1989; MacKinnon 1989). Such systemic bias may be accepted not only by actors within the legal system such as judges but also by its victims as well as its beneficiaries. Primary tasks of feminist philosophy of law are to identify such bias wherever it occurs within the legal system, through methodologies such as genealogical analysis, conceptual analysis, or normative critique (e.g., Bartlett 1990; MacKinnon 1989). Feminist philosophers of law judge the status quo thus enforced as patriarchal, reflecting ancient and almost universal presumptions of gender inequality. This is not a conceptual necessity; law need not be patriarchal. Law does, however, reflect power relationships within societies. Throughout history, and in virtually every society, men and women have been viewed not only as different, but also as unequal in status and in power. Women were typically cast as opposites to men within an overarching set of dichotomies: men considered rational, aggressive, competitive, political, dominating leaders; and women seen as emotional, passive, nurturing, domestic, subordinate followers. Versions of this set of assumptions have been widely and pervasively incorporated in long-standing institutions from politics and economic arrangements to educational and religious institutions, to aesthetic standards and personal relations—and law is no exception (MacKinnon 2006, 1989; Smith 2005, 1993; Olsen 1983). 1.2 Equality and Difference