14 Feminist Legal Theory Introduction Feminist legal theory addreses the connections between sexism and law. AS we have seen in Chapter 13 the law is not immune fom seeping ericims which cat i 3¢ rote an agent of injustice than justice, and feminist egal tneory makes [at els ort oem 141 Sexism and law Like racism, sexlsm sno easy to define stiefactonly. One might begin by saying that sexism in outlooks the belief that women ae some way atleast inert omen, ‘ht sexism in practice or deed ithe treatment of women ee favourably than men forno other aon than thatthe are women There are diferent ways in which the Tnaseristsoclety, Le Ina society where sexstattitudes ae the norm or at ast wide spread the lat, being» sci instution that reflect the mores of society, wl rect thos sexs attitudes inthe various roles i contains. Ths ivi east shown the legal histry of any society Until the eferms ofthe nineteenth century, te eg stars of married women in England vas tegatded as being submerge in that of thet hun’; n consequence, they were for example, mabe to hold legal le prop ey. It was not until the early twentieth century that women were legally enttle to ‘oe, and not until the lst decades ofthe twentieth century Ent las were enacted to ress discrimination onthe bas of sexi employment Many other examples could bbementione, and feminist egal scholars have certainly drawn attention tothe various ‘ways that the law onthe Book sexist, But hela ght be connected to the exist {ence of sexism nother, mare profound ways Following in the footsteps of theca legal scholars, feminist theorists may Wkewise deny that legal dctzne is objective ‘neutral and coherentin the way that aw often presented tbe; els nt what lds the law together may be an outlook reflective not only of the pivlged and powerful economic and politcal dase, but aloof the dominant sex Or, to consider one mote possible connection, the bas structural concepts ofthe law, such as ight, and:he way {which legal disputes are resolve, may present a ‘masculine’ conception ojustce and injustice, and ‘masculine’ techniques fr the resolution of dspues. I tis sor of ‘tii canbe made out then obviously the entice legal enterprise may be een tobe discriminatory against women.Asan reader ofthis book wil know, while ew people would be happy to say ma sexist or that would normally amount aeniting ove was. certain Kid of ge, there is much disagreement, both mongst women and between women and mee 2 to what counts ara sent atitude. For example, its not all uncommon fr peop to believe tha, n certain ways, women and men fa ar ferent, for example With respec to thelr boiogislreprodictve capabilities, and that this rege them © ‘rete ciferentiy. The rst maxim oases "enh cakes alike and ferent set ‘iferentiy, and sof men nnd women diferin significant ways this must justity di ferent treatment. suming thatthe differences are gerinely matters of fact, a ‘zruinely significant, then it would sem inappropriate to cil their proper appre (ofthe things that the dterent feminist legal theories attend ts the appropriate way ‘of determining whether a datinction or ati geniney seis 1411 Sexand gender While the wort we give to ilegtimately discriminatory practice gains women is Sexism, i might move approprntely be called ‘gendeism! Feminist legal ters typically distinguish between sex and gender. Sex refers to the bological attribute of bring female of male (although the actual biological categories of female and male sre not entirely prec). Gender, on the other tnd, refers to the mich broader com ‘xptualditinction between the feminine andthe masculine gender is wht ive female and male stereotypes. While all women ae female, women ate not eqvally feminine. feminine characteristics ae thore which women typi, and mere othe point, appropriately’ splay: charactersticy uch ae entity emotion, snd modest. Simslatyallmen are ale, but some men ae more masculine’ thin others, Sirpaying strength leadership, olidnes, tionality, and soon, ofcourse not the roe of feminist neory tata these stereotypes ana perpetuate te ea that women shows be feminine, men masculine, Rather the detincion i thereto point ot hat many of the ideas tet underlie sexism operte to make tem that there i 2 natura, ‘je tives connection between femalenesr an femininity, malenest and marclinty, fou? arttae abot gender are sch thats woman win ie 9 strong lender i ino percep tion, to that extent ‘esa real woman, some sort of anomaly or freak, then we Will not pereie its sens to marinate or ignore such 3 woman: how cule tbe an otence !gainst women to give shor hrf fo fomeane who really e not one, ora least who isnot really ating ike one? In this way, examining the scl] construction of gendtr allows the theorist to reveal the hidden sexi embodied in Kes of what Iatura to women and men. Furthermore, recognising gender allows feminists to recogni, nd show solidarity with, others who are reste unfavourably becrse they fll to met the stereotypical Behaviour expected of them non-athletic or pasave men, tomboys, for other gies or women who have masculine’ character, ut In patculy, ga lesbian, bse, and transgender individual 1412 Feminist legal theory and practice {mn beeping with other exit legal theoretial movernents, feminist heory of aw is concerned with kind of oppression the oppretslonof women obviouly Ile therefoe ot srpsing that feminat legal theoretically refuee to manta any sharp de neti between ‘theory’ and pratce particular lg lsus, uch asthe law's tet ment of rape Victims and offender, the resolution of custody dsputes, the regulationjemint Lage Tecry 227 Teproivetion affected bythe law, are not jst examine fo glean theoretical isi Feminist work which reveals oppremive regulation must at he same time, sugges a8 agenda for legal efor, forthe simple reason that pointing ut an injostie isthe sme ‘thing as pointing out something that needs tobe rected. lend, one ofthe gett sceeses in feminist legal theory hat been in the way that by ‘naming’ behaviears from feminist theres! perspective, ates towards those behaviours have ig ncantly sre within the aw and more rowdy in society ‘nef exampl, sight em aber snpe and cbvous linguistic phys, tn some ‘rays they have been rermacabiy elective Noon have these new ems puta nate ‘ocetng but dimly perceived wrongs to women, bat tey ave alse brought then ta the broads public consclousess Tat by the term have electvly Droog ehe ‘ied phenomena ino being foc those arte the commun for whieh hey wee (ang, ta ase of Lega Feminism’ (2002) 22 Lp Sues 2.78) While t would be wrong to say tht, a2 miter of logic, there ia necesary conic, between theory and practice a common tension arses between what might be called atc or strategic goals and cognitive or theoretical gol. Ponting ost an injustice {sno the same thing aremedying even though the former is neces) fore ae But wealo know tit how we fame an injustices often instrumentally strategy important, Len regard to the prospect forts eform. Ax the passage om Nafhine lure quoted indists feminists have achieved roe with certain ways of nazing justice. But consider the slogan, "Thee’s no sch thing x consensual sex, whlch is sssoclted with Andrea Dworkin and Catharine MacKinnon, and which phil sum sarzs the claim tht rle-emale eal intercourse har mean for both mie and women a2 manifestation ofmssculine power and female sobmson in which het lf consents nesental—a rather dfs, but by no means abs theoreti pei Nevertheless in terms of feminist practice tha slogan may have been a stati dbs te, a allowed opponents of feminism to clam that ferinist are crazy man-hatrs ‘wh believe al men ae apes, In ight of thie sort of experince, an understande Concern with sees at reforming the aw can, then work to bln he pursuit OF eas thie ae promising or inhibit he frank statement of eas which are others theo ‘etclystong in order not to undermine the climate for rform. From the oppesite petspctve, it is porble to become mired in ard theoreti diptes which waste energy better spet on pursuing chang, and theoretical alsptation can underine poll solidarity and commitment. 14x21 Conscouinert ring ‘Consciousness rising’ was frm of feminist political practice which aoxe fn the late 1960s nthe Unite States ft was funded onthe iden that women were ted fom each other potcali, and tecaure ofthe domination of men over womea ia say mined-sex setting, women were often sllenced by th convention of acousse. By allowing women to speak to each other in allovomen dicursion groups about tei ‘wn experiences, without thet speaking being cot short or reinerpcted by men, women's cansclousnes oftheir own ereumstances would be sised. They would be ble to recognise inthe storks of others a more general patter tothe ways n which {hel lives were unfulfilled, and they would become conscious of how sexism affected228 Asin nem personally, Individual women woudl then become capable of analysing how Society opprested women, lentifying occasions where ext attitudes shaped people's ‘behaviour In tis way consciousness alsing became the most distinctive and succes fol aspect feminist practice 142 The varieties of feminist legal theory siference, and postmodern feminists below ie undoubtedly cre, but the divisions its bite, haminating, for connects the feminist theories t the broader pala philosophical currents and traditions which they drae upon. Ts, however, Decenary not to sbocbora? any peticular incre int a peticular atgory jut Got {hesake of stegoristion Tee no more te arin femini legal theory tha any ‘lee hat an individual theorist is us the rellection ofthe tradition in which he or she rots 1421 Uberal feminism Te basic premise of liberal ‘feminism, drawing upon the Enlightenment ejection of tradition = ound bats for onl ened nd ening i Eales mig dag sty and universality, e that women and men are equal. Equal how fsa mutter of prince Wis wong to deny women the chance to Be svtonomous ‘authors of thelr nm ives’ ust 2 would be to deny men tht chance, ain partic Ia, i wrong to discriminate against women in ie opportunities, restricting them, forex ons in particular SRI syst ooo tne Ween wad inte men age. Ie should not be confused with the use ofthe word ‘ibera wien ‘bea are Contased with ‘conservative’ in mainstream politcal debate, The vast majority of citizens in Western democracies are berlin the sense thatthe accept, and indeed normaly strongly endorse, the equality of citizens, a more or lst regulated market ‘conomy (as opposed to Sate economic planning), the rule oflaw, and democratic gy tmnment. Of eure, there ae many contrasting perspectives on the bea outlogk, At ‘he core of lberaliam, however, ete pctre ofthe Individual asa ight-eoey Le. ‘omeone who has certain inalienable and inviolable rights, such asthe ight to fe to ‘reedom of expression to freedom of association, to propery, dso on, which elects he dea that te ves of individuals are the oly genuine object of value which thelaw and state mn epect. (Of course, you are sen nt to measure up aefully human, then there sno need 10 extend al ofthese rights to you. sone ofthe greatest of tragedies that the intellectualfeminst age Theory 229 tools provided by the Enlightenment were very unevenly applied white men alone | vere considered tbe fly espableof being righte-beaters In consequence, isnot i= | Prsing that much ofthe energy of eral feminist over the ast couple of centuries hes been expended n the projet of simply destroying various myths shot women's nad | fsquacies. The good news, however is that this project has ben enoconsly success | As regards the gl ights nd lie opporanies for women inthe Wester democta. Cie the word of 6 yas gossip unrecopnsabe. Al eminit hers ecogase the genuine importance ol tes gis, tt te same ine, many have guested sehether «theoreti appoich te feminism ining most o exclusively trl poical theory, tinsely acento mec the challenge ef sexs indeed eshaps the majority of feminist theorists would agree that berlin has worked fo entrench, not eradicate, temporary sexism ot sexi simply, then a ea certin elements of con Han) Thecrigueof ber! feminism Liberalism is founded ypon the equslty of inviduls, on each persons right to qual weaument under the law and bythe Sate, Liberalisaequies lms therefore 0 1 RD Actzmanve ation’ programmes, for example, which positively dein ate In favour of historically disadvantaged groupe, ate dsc to justify on er ‘round however praiseworthy the motive behind them, because ny orm of deri raton along thes ins violates the right of every individual tobe tented oan in ‘ual not asta representative of group. ut feministsundersandabiy segue tha this Simply aes fo grated tha poplar equi suse, gel cpl of eee ‘Another aspect of liberal individualism which stoubling fr feminism isthe way in which beralism egards human social clatlonships a8 a ater of cho, ofthe exe tise of the Ieeedom of assocition. Under liberal, etch individuals autonomous, fre from coastainsixposed by others in being the autho” of his enn life. By con teat, many feminists and other legal theorist insist that socal connections within the family and the community ae constitute of person’ Kentty, at simply mate of ‘consumer cho But iberlim i bind to this and scant ake scout ofthe ‘way in whic sexism might be embeded in ou socal elationships and which might profoundly affect « woman’ abt to exreise the ght a iberl State confers upon he. Perhaps the most trenchant arpect of this acm is feminism’ entique ofthe ‘public-private distinction” Liberals eyplcally stingush public realm, which com: prises the arena of employment, trade, and polities, tn which person dels with other Individuals protected by bis oer legal rghts toma the private elm, of love amily, friendship which operates aecording to diferent logic and where it would be ine propelate or the aw o the State to intrude So for example, ‘domestic violence was or ‘long time garded something which was ot ally the busines ofthe police or he Jaw But as feminists point ot, this outlook simply alt appreciate the way in which deeply ngsaned sexism in private afar sch af oles nthe family can significantly Impatr the exercise of righ i the pubic elm, Love, fly, ends rather than beng ate nhs nt may be le pt the oon, ghee a,230, Aosinstand beyond bert junied on an a port conception of the nature ofthe Iman being. Individuals are Gem on ocean atin tas Be petMfe ete ve challenged In particular, ean beargued that individ fom the influence socal and political regis being ble to distinguish mint can stongly argue that history shows that attitudes abovt the ‘nate of omen” ae what they ‘ally want, 1 att is to teat them as end, is extremely > reat men and women equally so teat hem the | SE et itn men, tat isbecause they ae a the appro [tguesthe cri lberalism gies women eal rights onl 0 longas they atk men they canbe sen to compete equally onthe level paying fel of he marketplace only to long a the eiferences between men and women are ignored. To take the obviows ‘See of reproductive copay, a woman's cote to “have children’ means something “tly diferent fom a man’ hole’ odo ‘the same’ in the context of employment. Tor theclti of egal berlin, in vib ofthis ference the only fair and just thing fo do would be not to teat men and women in exactly the same wy. Bu though i certainly a reason to treat them diferent 5 nota round for treating men and sromen anual In. other words inorder to sehieve genuine equality weave 10 ove Seyond the simpli, universe tsumpon that equal treatment, underthe lw in 1422 Radical feminism octal fe inthe same way, for example as Mauss soe eats visions asthe central ‘Srgonising estar of economic and pita if. The ost wel known racial mist {heory is that of Catharine MacKinnon, whose work we shall look a in some detail totow, MacKinnon’ theory i pial of radical feminism in focusing n paticulr (sex, sual ad reproduction, the more ‘biog’ rather than ‘endeceultural sree tne Sat of women general ais feiss ean Te oppesion of women to be primarily Tcsted "is aie ad epee Sec ese a Band pact regs on sh reguetion. ee. Bown way hat is fed women, tint empowesed men, Te work of radial femiss can be see asthe sexual urn feminist og theory and is effect has ben profound. indeed for many lw students, to murder tothe lay regulting abortion Ie was radial feminists who champloned Shortion sights arguing thatthe dental of the ght to abortion was a facet of maleFemestaga Theory 231 control of reproduction, 1 was ric feminists who argued that pornography was the ‘raphe depiction of sexualised Violence against wemen that normalised the rapis's ‘conception of sexual desire, and thatthe protection of pornography by the right to freedom of expesin reve the la topsinilege the monetary ners ofthe poco. rapher over the lives nd health of women v4238 The cg fade "The charge eientlliam e ferent ere from he charge as i against eral en iss, Here thechargets that eicalfeminiss have betrayed theirowa former allegiance fo conciowsnest ttng the practice of listening to womens red tres and accepting heir understanding of thelr nn expertences, an insted on & sexism sexually con nection which may women donot fee at el in thei own ves, Radical feminists, so the ericism goes, emphasise xx above all ele, whereas the crs and effects of Sx ism are mach more varied Tis charactesetion of sexism stenialises women as the submissive tx prney, tobe woman just tobe sjeted to sex lence, Bu ths reduces wormen othe vty sexual stereotype that feminism seks to Overcome ‘Radial feminist i eitiied as being oppositional becuse i argue, It anne make allies with other oppressed groupe, sch as those who ae oppressed because of 1 ofsocial and politcal mec re fi easier wb consequence, is dlseu forthe radical fesinist to devote energy to eradeating less Dic forms of oppesion {sure another in. As reaching out to men Some, though by no means al, adic feminists draw a separatist conclusion fom the realsation of how deeply sexism i ‘ngrned in male-female sexual and productive elation. in terms of radial feminisv's utopan character, Fru pts the pot well ee a O ‘ormany people itis difclt in the extreme to envisage a word n which no el ig ‘lfcanee would attach t the distinction between men and women, and suey 8 fe, ‘tis utopian to pursue that which we cannot even comprehend. [Ris dificult weigh thestength ofthese atismsin te abstract, for thei fre very much dependent upon the truth of adil feminist claims If, upon examination Tada feminists do a beter job than other feminist theories of explaining the shape tnd the soure of sexism, a in particular ke persistence, then would appeat (2) that thas established something more oes extent abou what it means bea Woman: (2) that sexism, ayaa femines perceive s profound in away tat other forms fppresion arc not and thaw are commited othe ease of justice, radiating Scam will ot be wlopian even ifthe changes required are profound, and fics a ly grasp in advance232. Agsinstand beyond berlin 123 Cultural/diference feminism ‘The culturaliference feminist outlook canbe captured in the ea that there ae no ‘mous individual chooser, is profoundly misguided. One imply cannot strip the female neesavay rom s woman to nid the liberal person baneath. Radical frinsm right to swith the difference especially sx ces between men and women, but over problematises sesthat sexism operates primarily in the way it walang reprieve dif these citferencs regarding diferences ae belng conceivable nly a sites of oppresso according to the cultaralference feminist, the recogaltlon of diffrence i ot pers !nact of and a prekde to further oppression The motto of cultralltference eminem could be ‘Equality doesnot mean same res Indeed if we are ever fo have political equality, tern, or would be impo Sile to simply eradicate the ferences between men and women, adults and children, between people of different genetic cult, eligious, nd etn backgrounds. We hd beter lean olive wth ference, andthe principal way i which this to De done isnot to ignore, marginale, or posvely undermine the perspective of non ‘dominant indival or groups. in the ease of ay, cultraljatference feminist ng that te law ha file to ake no account the womans pont of view Cituralifference feminism hasbeen heavy shaped in one direction by the Work ‘of Caro Gilligan, andin another by Robin West Gllgan sa psychologist who, in her 1982 book, na Different Vote, argued tat boys and gis eason differently to revolve Inotal dilemmas. Boy fend to emphasise people's individual entidements, and ger trate rules to resolve confics. The boy approach to moral realising Is captired by CGlgan with the pra ‘an etic of rights Gi onthe ther hand, see to resolve ‘moral dilemmasby emphasing the personal eltionships involved, and sek compro ‘mies so that everyone's interests retaken into acount; this eet an ‘ethic of eae Fermin legal tories this wark a impli cettqueof the legal system, The lgalsystem clei adoptsan ethic of righ nd attenton can be drawn as well to com petisveadversaral ‘winner takes al cour proceedings that discourage compromise. Inthiswny, the iv can be seen to take a masculine approach ins very reasoning. Not ‘only doe this negrively affect the prospect of female lawyers, who more naturally clenvetoaciferent way of moral esoning, bt talsopuivlges nen generally as they fre more likely to resolve social conics in dally ifn a way the Law can effectively agnise and ths are moe likly to be suited wo playing by the law's ules, Robin Wes characterisation ofthis rand of feminism canbe summed up inher “The connection thn simply thi Women ab actullyof potentially materially con (0. West, ucspradence and Gender (1988) $5 Un of Chega L194) For West, the cultural feminists emphasise or celcbrate the postive passiblies of ‘these conoections,n particular the mother-child bond and the source of entity and understanding t gives to women, And she regds the radial feminist as one who ‘dwells upon the negative aspects of such aconnecton, the way that sex and pegnancy far ke Invasions, forging connections which can imperil + woman's autanomy and sense of individual dentity. According to Wert, the project of feminist jurisprudence Isto make it lear to legal culture thatthe masculine understanding of individuals 5 basally separate andunconnected simply does not reflect the word as seen by women,14.23) The etique of cuturalference feminism CCanrlfiference feminism draws sme ofthe eitiques of both cada and iberal ferminism. In keeping with the etiques of adil feminism, culturaliferenc fem sm is equally open tothe claim tate esentalieewomnen a the ‘connected! an aliobe viewed a poltaly conservative, as liberal feminism is sometimes aetsed ‘of being; bat with the opposite twist Kerl feminism is conservative because Serene enna anf ppc to conalgn women io thas tralscal loth cing professions, teachers, nurses, and soon, nd motherhood, Most profoundly, howe, tay simply not be the eas that for most women, let alone al the ‘ete of cae’ best describes the way they morally reson, noe that Women's connectedness prom nena feature of thelr sense of identity and relation others. 14.24 Different perspectives on gender Ikis worth pausing hereto consis how Hberl rac, nd cukurlierence em nists addres the idea of gende. Olsen sets outa erie ofGuallsms, with qualities o s asocloted with masculinity on the left, with ther feminine counter parson the right: objectresunective principet/peronaied Olsen, Feminiam and Ciitcal Legal Tory: An American Perspective’ (990) 18 ‘The reader can surely 2d other binary distinctions which ate prevalent in distin sulsing the masculine fiom the feminine, Like Olen, feminist thers in gener Fegprd these dualism as both sexulied—the ones on the left te matculine—snd hierarhised—the ones on the left are also beter, more vale by society. How ought feminist to del wit this? We wil getadiferent answer depending upon whet the ‘theorist i liberal radical or cultualiferenceinvatlook The liberal theorists prone to accep te hierarchy hough peshaps in not al te eta, but eject its sexualisation. Thus, bea feminist would deny tht the tits fon the left are necesnily masculine any oc than those onthe ght ae neces feminine. People ate indviils, nd a iniviguts they tay tft tats o qual ties fom eter se of the cvision. On tne oes han, ts another question ently Whether e should wale cteity aver passity or thought ove eling234 Aga and Beyond iberain Jong ss women areseen tobe ust as capsbie a men of beng objective, for instance itis ota ise fo else whether we prize the forme over the ter. The cultulidference feminist on the other hand, Ukely to acept the sexualk sation (hough peshaps in natal fits detail) but eect the hierarchy. That th alturalfiference feminist regards men and women a diferent, with different tals and ypieal characte, but doesnot accep that these differen tats and chacacter isics should be valued aiferently. Rather, the goa of the cultural/iference feminist to ensure tha society revalues the right hand side ofthe division, otha passivity b Valued as equally as activity, and oo “The radical feminist will have none of either approach. So long asthe categories ‘male’ and female’ have meaning, they wil be undesstood in tras of various tals and cnaacterstes, and whatever characteristics are associated with the mal, they wil be more highly valued. Tak, for example, the dualism princpledfpersnalsed. The radial feminist can imagine the order being reversed, 20 thatthe masculine outlook veas personalised, the female principled. R would be easy to ste how the valuation of the characteristics would change. Te personalised outlook would reflect the men who ‘nowshiscon mind, sabe to sbsor arguments, buts knows that theultimate dec. son alwayslies in one's gut. Wheres’ principle’ sell just what comes out of whiny talking shops rom people who aevershut up, rom women and ‘men ike eehead philosophers. And otie that those dvaliems which donot seem likly tobe ble tobe shifted in tis way suchas powerienstivty, are ust tho dualism that express mae 1425 Postmodern feminism Postmodern fminism ean bescen a response tothe perceived aires of Uber a eal nd euturalliferencefeminisms. ike other pottinodemiss, postmodern fem hsm is concerned withthe violence of clacton andthe way tat language anc theory ae not merely ways of expresing truth but ac also ways of suppressing othe ways of seeing things. Ths postmodern leminlss subscribe tothe postmodern nunc tion to listen to all the diferent woces, voces which are unlibely to expres dentca experience or reveal hee speakers as nding the sme meanings in our arous sola In particular, postmodern theory shares postinodecnism’s genera suspicion of geanc ‘theory. its emphssson the fragmentation of ruth and ening ad the harm or Wons {hat occurs when etry to caprure ruth and meaning in representational tems ie language, andits emphasis onthe multiply of peoples perspectives, ical feminism i mos likely toatract the charg of rand theorising” In paste lar, MacKinnon’ claims regarding the connection between the inequalltyof wome snd male domination in sex and sexuality isthe sor of tight and foundational connce ‘on of whieh postmodernist would be suspicious By purporting to explain so sch 'emust necesaly abstract way fom al nuance and subeety Prthermoe, is sugge> tion that the unequal ueatmentof women can be understood onthe basis ofthis ‘oe ig rt which must be addressed in feminist practice i the soc of theoretic snd Practical calm which or the postmodernist, ncongenial ai dspace other ways of understanding ag combing sexi, {ite other postmoderniss, postmodern feminists also emphasise (hey se the fragmented nature of our grasp on reality in the case of sexism, out understanding of ts always provisional ands best informed by a continual jagling and revision ‘of those slernents which seem mort informative a the moment. We must always beateis Legal Tneary 235, In mind the way in which ways of seeing and speaking x our ideas and can init openness to afferent perspetves,peepectives which might endeemine the theoe al status gu by, at te eas, revealing recelved ideas tobe partial in oth sense! 0 Finally, a the debate between the Mbeal, radical and cukueataifference feminists reveals the lived experience of sexist illtrestment is Likely to generate and hes gene: ‘ality of contrasting, even conflicting perspective. A rug pats it depict male and fee sexual dentin a anatomically deteraed an poyehoiog ‘ally predictable. This s inconsistent with te velo characte ox dienes a ‘he pact hat stone specs has. on any nc iat tn postmode gon, ths uestment of sexual ent incite witha deceneie,patmorp us, Contingent understanding of he subject. Becust sx dftences ae Seaiotic—that conse by 8 system of sigs that we produce and interpet—ench of ws inereapably produces heel witha he gender ‘esningspster, although the meaning of gender indeterminate or undciae The ‘emma of affeence, whieh te Meal eqality guarantee sees to avd through ‘eutality, is unavodable (4.3: rg. 'A Postmodern Feminist Manifeto (An Uninised Dat (992) 105 Hary [ERev 048 tp 1046) 14251 Thecrtique ot postmedeen fein (One can cxticse postmodern feminism in the same way that postmodernism has typically been criticised, a providing no bass or vali erties seating. If every pe. ‘suggest, onthe work ofthe theorist in question. The recognition of the contingency Insoelal ations anda respect forthe provisional character of rth claims need not undermine one's critical faculties, Postmodetnism is alo often citiclsed fo leading to political impotenc, for in refusing fo endorse the possiblity of truth, It efuses to endorse the trath of aims of oppression. This is probably a misreading, however, {or postmodernism’s anxiety e with the concept of non-perspectval truth, “ruth vith a eapita nt the idea that certatn things are the eae To be a postmodernist |Snot wo deny that things happen, that a woman may have been sexually hatessed at work, aor that sucha thing was «wrong done to her, but to deny tha such evens re best understood through the lens of a rand theory bout sexism or the mature 14.26 Feminist legal theory and the interaction between sexism and feminist legal theorists hae faced the charge hat thir views are reflective not ofall women, but of white, economically privileged women. Feminists in general accept that Sexism farfrom the only problem many women face, and that feminist theory should be senative to other sources of oppresion. The question is whethes a theoretical en \esvour to bring anti-sexist and ante-racist theory togeter wil eat rut, oF whether itis mote produetve to recognise the instanceof the other, but not confuse the dt. ferent projects ofeach. Collin work (Callins, Black Feminist Thought: Krowlele iecr | Consceusnes, and th Pots of Empowerment (London: Routledge, 191) isan example United States ean only propel be seen when both racism snd sexi ae taken into {account The stereotypes ofthe black woman asthe elle mother: the Jeoebe fhe sexually agzesive wornan) othe mamy (de sutogate mother fo white chile all sersotypes, the preduction of which tems to have requted sexist and roi 143 The work of Catharine MacKinnon, (Of ll feminist egal theories, Catharine Mackinon’s works possibly the best known, and coatsins a numberof important des, Probably the mos cena ke in error isthe elim that our understanding ofthe difference between the sexes through and ‘through satrated with the aceptance of male mination, Furthermore, this tea of Cived ofa kindof sexual pow (Feminisa has a theory of power: Sexualty i ended a5 genders exe. Mle 'nd female arecened hough the ertzation of donanee and subrion, Jonsprudence (983) 8siga 638 ap. 35), The arena where sexism s most evident case most ‘true to isl that of sex and "eprodction, fr iis there that men are most cer seen tobe ‘on toptne pum i inended, nd Mackinnon herelf gues that sexi ls embedded In ne aspen a tila in language which deals with ex. MacKinnon has femously ast Da tucks wom: ubect verb obec (G. Mackinnon, Femincm Unmodified (Cambridge, Mass Harvard Unvesty Pes, 1987) 9.128) (ur language of sex reveals that our conception of the relation of men to women ia {eX that of the man as active subject, of woman as passive obec; he dot it to en 50d not vice versa, The point i meant tobe taken both epistemalogialy as wll 36 Politically. MacKinnon’ claim is that feminism st simply the elites! movement whose Purpose is to eradicate sexism, bu that feminism ia theary of knee as Well, Specialy, femintsm claims that the categories of male and female are known {0 us through wha she calls the mae point of ew; which isthe sexist pao view of male domination, The male point of view, however, is not generally perceived asa Bolnt of view, much lesa male one. Rather tis petcsived as theobjeerive’ cw men te men and women are women and their dterences ae perfectly natural, s anyone Viewing the situation ‘objective can see. In consequence ofthis uncansclouy bias ‘whlch shapes ou very concept of sex, the gol of eins cannot simply Beto appos the oppresion of women, Dutt must doo in the knowledge that tis wl veloe ‘overthrowing the categories man’ and ‘woman, tak” and female a1 we presently: s”DmUmUmlmUm 238 Agsinatand beyond Uber ‘menavealling the dfeence when women cone Pebaps the wroag of 4p as proven so dic oatcuat becmare the unquestionable stating pnt hasbeen ‘hat ape is detnable ss Stnct rom inetcouns, when for women te ciSeu 0 atingush them under conditions of male dominance, (. MacKinnon, ‘emai, Mace, Method snd the State: Towards emnkt Jraprdence (989) Sips 633 app. 646-47) rom this perspective MacKinnon and Dwskins lat that consent is immaterial to rape tke sence: consent simply nota condituive feature ofthe concep of (non ‘ape permite sex; therefore cannot be te thing whose abtence distinguishes sex al itercourse that amounts to ape 1422 MacKinnon’simpact Jes dfcult to overestimate MacKinnon’ impact onthe cours of feminist egal the ory. Bven those eminiss who disagree profoundly with br views would acknowledge that MacKinnan’s analysis has probed the relationship between sexism and sexuality in ways which have been very iluinating. The standard citilam of Mackinnon’s works chat takes the part for the whole, and regards the sexipower connection as {he essential foundation for the male sexist egemony over women, Whatever el must be brought into the picture to give a faller account of women's oppression, however, the greatest strength of Mackinnon’ analyse surely ts cantebution to explaining the persistence of sexism. Long ater mort men and yomen have aban doned much ofthe ola sexist outlonk concerning women's inferior ineligence and much else, most people today sil strongly believe that men and women have dt ferent sexual nates, often slong the very lines of dominance and submission that 144 Aliberal feminist revival? In recent yeas, the philosopher Martha Nussbaum has led something of revival of Iiperal feminism, Nosebaum argues thatthe Uber tradition is one of equal concern and respect foreach individual. need not be understood to be egos, nor need it tmphasive the separateness of petsons rather than their connectedness, And bea isms great strength, which other polscal wadtions donot have the conceptual ool to fully embrace ts concern that Ue purpose for which the Sate nthe Iw ae Institte ste contaibue to the outshing ofeach nav inaivials whose Hives sre considered ‘one by one’ and not meal as members of growp, an as nav, distinct ends, so that no individual's wellbeing ean Desaciiced inthe interest of th fe: To the extent that feminism’ primary tasks to adres the oppression of worn, Mberalism has the virtue of requling thatthe oppression of every single woman i srs, Furthermore, lberalism’s embrace of feedor ean be seen a only con patible with but also emblematic of feminism’ ght against female oppression, fr "What seit oppression does, at worst, remve from women the birthright belong Ingo every naman, the oy individuals have in using their own minds and bodies fee from coercion.FURTHER READING Mackinnon, Tend emit Theory fhe State (Cambridge, Mass Harvard Peas J Schif D, and Nobles, erie a Leal Theory. Cammestery Samat Cains andthe over of Law Leon: Routed, 1989, est, R Turprudence and Gender 198) SS Uni f Che ER