Legal Feminism: Activism, Lawyering, and Legal Theory

By Ann Scales | Go to book overview

5
Feminist Legal Theory

People sure get nervous when a woman’s free.

—Trisha Yearwood

Everything I know about being a lawyer has been through the emergence of what came to be known as “feminist jurisprudence.” What I call “feminism” is not a way of thinking confined to persons born female. Rather, this feminism is the concrete analysis of systematic oppressions, which analysis has led to a critique of objectivity in episte- mological, psychological, and social—as well as legal—terms. There is no “female point of view” nor any “male point of view” corresponding to an individual’s membership in a biologically defined group.1 Rather, there is a socially constructed process that conscripts people into a gen- dered way of seeing the world. This process includes not only rites of genderization for individuals but also habits of thinking that are contin- gent but powerful. Among those habits is the division of the world into knowing subjects and known objects, that is, the habit of dividing per- ceptions between those that are subjective and those that are objective.

In the understandable rush to render feminist work acceptable in tra- ditional terms, it is sometimes suggested that feminist lawyers ought to advertise our insights as the best among competing revivals of the Legal Realism of the 1930s. All outsiders are surely indebted to the Realists for their convincing demonstration that the law could not be described, as the formalists and positivists had hoped, as a scientific enterprise, devoid of moral or political content. The Realists’ description of the influence of morality, economics, and politics upon law is the first step in developing an antidote for legal solipsism. In the end, however, Real- ism was not courageous enough for feminism. The Realists did not rev- olutionize the law but only expanded the concept of legal process.2 The Realists did not press their critique deeply enough; they did not bring

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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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