Legal Feminism: Activism, Lawyering, and Legal Theory

By Ann Scales | Go to book overview

6
Feminist Legal Method

A hand or something passes across the sun. Your
eyeballs slacken,
you are free for a moment. Then it comes back:
this
test of the capacity to keep in focus
this
unfair struggle with the forces of perception

—Adrienne Rich

If it is true that law is a discourse about epistemology, ethics, and politics, the next project is to inform the epistemology, ethics, and politics of legal decision making. Chapter 4 explained why difficult legal projects can’t be informed by the rhetoric of liberalism. Chapter 5 de- scribed a feminist way of understanding law that takes history, suffer- ing, and context seriously. At the end of that chapter, I spoke of the difficulty in keeping feminist insights in focus.1 In this chapter, I would like to talk more precisely and practically about how the feminist theory I describe would actually operate. I would like to suggest eight ideas (or steps) that inform a practical analysis of a legal problem. It will strike some as a wrongheaded “structuralist” effort, but I mean only to indi- cate recurring places in practice where confusion creeps in, where bad habits take over, and where cases are lost.


1. Don’t Get Bogged Down in Conventional Political Divisions

As I explained in chapter 4, most political controversy in the United States occurs within a narrow field. In my lifetime, the biggest changes in the polity were wrought by Ronald Reagan and his pro-big-business agenda. Those changes can be understood within the tradition of philo- sophical liberalism. With regard to the role of the state (whether the

-100-

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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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