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
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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
, A central task of feminist philosophy of law is articulating what equality requires against this background
of patriarchy; however, feminists take differing approaches to this problem. For liberal feminists, a
primary task is achieving the principle of procedural equality articulated by Aristotle that like cases
should be treated alike and different cases differently in proportion to their differences. For other
feminists, this focus on procedural justice raises the question of whether there are differences between
men and women that the law may justifiably take into account. For many centuries men and women
have been viewed as significantly different, and since they are different it has been thought appropriate
and justified to treat them differently in law. Indeed, one of the reasons for the entrenchment of sexual
inequality is precisely the observation that some differences between men and women are real: only
women can become pregnant and bear children. Historically, feminists contend in a variety of ways,
such differences were greatly exaggerated, as was their significance and the extent to which they could
be attributed to biology rather than being socially constructed.
For feminist philosophers of law, an ongoing set of issues has concerned which differences, if any, law
may take into account consistently with equal treatment. There are biological differences, such as
pregnancy and birth. There are statistical differences: men are taller and stronger; women have longer
life expectancies. There are historical differences: women but not men have been systematically
subordinated because of their sex—unable to vote, to own property, or to enter into legal contracts.
Women are much more at risk to be raped. Women are much more likely to be responsible for
caregiving in the family. Women are likely to earn less for the same work, and likely to be segregated in
jobs that pay less than work that is male dominated. The feminist challenge is whether and how to
acknowledge certain differences without entrenching stereotypes, reinforcing detrimental customs,
promoting sexist socialization, or incurring backlash (Rhode 1997; Minow 1991)—and without
compromising equality.
This challenge identifies “dilemmas of difference” (Minow 1991), which occur when a decision is based
on unstated norms that presume the status quo as universal and inevitable when in fact these norms
reflect a particular point of view. The structure of a difference dilemma is this: there is a difference, such
as that only women become pregnant or that an employer has a history of refusing to promote women.
Taking this difference into account seems required for equal treatment: otherwise, women will face
disadvantages that men will not. But taking this difference into account also seems to instantiate
unequal treatment, giving women special benefits (time off work, fast-track promotions) men do not
have. So it seems there is no way to achieve equality in the face of differences such as these.
Countering a difference dilemma requires undermining the way the issue was initially formulated (more
accurately, mal-formulated). Feminist critics of the view that pregnancy leave is a special benefit, for
example, point out that the only way these benefits can be judged special is if the norm against which
they are being evaluated is male. If the standard was female, or even human, such benefits could not be
considered special (or even unusual) since they are far more commonly needed than, say, benefits for a
broken leg, or prostate cancer (neither of which are considered special benefits). The underlying male
standard is invisible because it is traditional for most workplaces, and pregnancy leave would require a
change to these norms; but in the view of feminist critics, this underlying standard needs to be exposed
as male because in fact it is not equal. (Rhode 1997; Minow 1991) Once male norms are recognized as
