Legal Feminism: Activism, Lawyering, and Legal Theory

By Ann Scales | Go to book overview

3
Intractable Questions

Knowledge … is not itself power, although it is the magnetic field
of power. Ignorance and opacity collude or compete with knowl-
edge in mobilizing the flows of energy, desire, goods, meanings,
persons.

—Eve Kosofsky Sedgwick, Epistemology of the Closet

In the prior chapter, I described the tension between cer- tainty and doubt with reference to familiar legal problems. Whether lawyers like it or not, the U.S. Constitution doesn’t explain what it means in every controversy by “searches and seizures” or “cruel and unusual punishment.” The first set of words is inherently ambiguous: one cannot assert with certainty or finality either what behaviors the Framers of the Constitution intended to be subsumed within the terms “searches” and/or “seizures” or what behaviors should be subsumed within those terms. The second set of words—particularly the word “cruel”—is inherently ethical, what is often called a “value judgment.” I meant to convey in that chapter that it is simplistic and irresponsible just to retreat into the supposed superiority of “objective” over “sub- jective” assessments of such words, and even that the divide between “objective” and “subjective” is a smoke screen.

The underlying problem is that, even if there were some objective, fixed, external world beyond what we perceive, there is no way for us to verify when we truly “know” it. That dilemma is among the four that Immanuel Kant described as philosophical antimonies: questions that keep coming up but for which there can be no ultimate resolution. These are the “intractable questions” for which this chapter is named, and there is no getting around them in law.

Another of the metaphysical antimonies is the question of whether we have free will or have all our thoughts and actions (including our perception that we’re acting freely) determined by some larger force. On

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Legal Feminism: Activism, Lawyering, and Legal Theory
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Acknowledgments ix
  • Introduction 1
  • Part I Places of Stuckness - Roles, Rules, Facts, and the Liberal View of Human Nature 15
  • 1 - The Rule of Law 17
  • 2 - Certainty and Doubt 32
  • 3 - Intractable Questions 47
  • 4 - The Limits of Liberalism 63
  • Part II Places beyond Stuckness - Feminist Notions, Controversies, and Promises 81
  • 5 - Feminist Legal Theory 83
  • 6 - Feminist Legal Method 100
  • 7 - False Consciousness 120
  • 8 - The Future of Legal Feminism 137
  • Notes 153
  • Index 209
  • About the Author 219
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