Academic journal article Law and Contemporary Problems

Theorizing Class, Gender, and the Law: Three Approaches

Academic journal article Law and Contemporary Problems

Theorizing Class, Gender, and the Law: Three Approaches

Article excerpt



"Class" is a peculiar category in American life and law. Although Americans are no strangers to class struggle, and at various points in our history have participated in lively debates over economic rights and social citizenship (not to mention bloody labor struggles), (1) most people in the United States at present do not understand "class" as a crucial category either for personal identity or for political struggle.

Our legal system, moreover, helps to obscure class relations in the United States. Our eighteenth-century national constitution lacks economic or social rights. Americans perceive, instead, a bright line between the "public" world of rights and the "private" world of market arrangements. In terms of ideology, we have a split-level system of governance: democratic at one level, with state-backed commitments to equality and dignity, and capitalist at the other, with commitments to inequality and submission to the discipline of market forces. (2) Despite the harsh consequences of market rule, so obvious in this time of economic downturn, coercion is conventionally identified with the public sphere, whereas the world of the market--despite its stark inequalities--is understood to be "free." (3) In the material world, as opposed to ideology, however, governance at all levels in the United States is both state- and market-driven, to varying degrees. As the Legal Realists pointed out long ago, there is no such thing as a "free market" without the backstop of state coercion to enforce private promises. (4) And as contemporary administrative law scholars have noted, in the last few decades enthusiasm for pure "command and control" regulation by the state has declined, and governance of regulated industries has comprised a mixture of market mechanisms and state directives. (5)

The near absence of class as a folk category in the contemporary United States makes analysis tricky. Part of the work of theorizing gender and class is to tease out scholarly from popular uses of these terms. Our split-level governance system also contributes to the trickiness of class analysis: because we tend to speak of the economic and state spheres as distinct and opposed, tracing the intricate interconnections between them is difficult.

A third obstacle to analysis worth mentioning at the outset is that to the extent that class functions at all in popular life, it does so as an identity category as well as a category of structural analysis. The social theorist, then, must take care to distinguish class as it has functioned to give individuals and collectives a sense of identity from class as a structure of power within which people live, whether they recognize it or not.

A fourth tricky thing for the theorist of class is the fact that class, like race and gender, is simultaneously symbolic and material. For example, gender marks material differences between groups of people, as concepts like "the feminization of poverty" indicate. At the same time, gender is a powerful language that we use to represent relations, not only among persons, but also among ideas or practices. (6) In addition, the material and the symbolic uses of gender influence one another. At the symbolic level, for instance, we imagine women to be naturally better at caring for children than men, and this leads to a society where in fact women do the lion's share of care work (but mostly outside the market, since child care is so "natural" for women).

Similarly, when using class as a tool of institutional analysis (as opposed to an individual or collective identity category), the theorist must be aware that class analysis comes with inherited cultural meanings. Even though class looks more "objective" than, say, race--because economic relations are based in material reality in a way that race relations arguably are not--economic relations, economic institutions, and class relations all come with sometimes-unrecognized symbolic systems, whether Marxist (the source of fantasies about the "proletariat" poised for revolution) or capitalist (the source of fantasies about captains of industry, unfettered by the state, leading the way to riches for everyone without regard for ecological limits). …

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