THE SEX OF LAW
SINCE the rise of classical liberal thought, and perhaps since the time of Plato, most of us have structured our thinking around a complex series of dualisms, or opposing pairs: rational/irrational; active/passive; thought/feeling; reason/emotion; culture/nature; power/sensitivity; objective/subjective; abstract/contextualized; principled/personalized. These dualistic pairs divide things into contrasting spheres or polar opposites.1
This system of dualisms has three characteristics that are important to this discussion. First, the dualisms are sexualized. One-half of each dualism is considered masculine, the other half feminine. Second, the terms of the dualism are not equal, but are thought to constitute a hierarchy. In each pair, the term identified as "masculine" is privileged as superior, while the other is considered negative, corrupt, or inferior. And third, law is identified with the "male" side of the dualisms.
The division between male and female has been crucial to this dualistic system of thought. Men have identified themselves with one side of the dualisms: rational, active, thought, reason, culture, power, objective, abstract, principled. They have projected the other side upon women: irrational, passive, feeling, emotion, nature, sensitivity, subjective, contextualized, personalized.
The sexual identification of the dualisms has both a descriptive and a normative element. Sometimes it is said that men are rational, active, and so forth, and other times it will be said that men should be rational, active, and so forth. Similarly, the claim about women is sometimes considered to be descriptive; women simply are irrational, passive, and so forth. A lot of people used to believe that this was an inevitable, immutable fact about women--that women were unable to become