NEWSLETTER ON PHILOSOPHY AND LAW

— APA Newsletter, Fall 2002, Volume 02, Number 1 —FROMTHEGUEST EDITORIntroduction: Recent Work in FeministJurisprudencePatricia Smith*Feminist jurisprudence incorporates a wide range of issuesand topics. In this necessarily selective overview of recentwork, three general areas will be represented: theoreticalgroundings, social issues, and international activism.Theoretical Groundings. The theoretical grounding offeminist jurisprudence, like that of law, has always been amatter of debate. Early legal feminists used liberal argumentsto object to unequal treatment of women in law and socialpractice. But some feminists found liberal feminisminadequate, both as providing an explanation of women’ssubordination and as offering a solution to it. In the 1970sthere were two main strands of criticism: sexual andeconomic, initially quite distinct and unitary in focus.Radical feminists focused specifically on the sexuallyoppressive nature of patriarchy. They argued that gender is asocial construct at the heart of the patriarchal social system,which constructs sexuality itself in the form of maledomination and female subjection. It is so pervasive that itstructures our thoughts and attitudes, our assumptions andinstitutions, including family, market, academy, church, andstate. So the only way to change the position of women is tochange the way we think about gender itself. The analysis ofsexuality as dominance has provided significant insights forunderstanding certain social and legal problems such as rape,domestic violence, sexual harassment, and pornography.While few legal feminists today have adopted a radical viewoverall, many feminists (and perhaps non-feminists) haveaccepted the basic radical thesis that gender is (at least largely)a social construct, and that it strongly influences attitudes,norms, and institutions.In contrast to the early radical view, the early economicview was led by Marxist and socialist feminists who arguedthat the key to understanding the domination of women waspurely economic. Equality for women would not be possible,they maintained, in a class-based society established onprinciples of private property and exploitation of the powerless,and especially the segregation of economic life into separatespheres of home and market. They criticized liberal feministsfor their apparently uncritical acceptance of exploitativeeconomic institutions, and pointed out that the public/privatesplit associated with capitalism insures the clear disadvantageand dependence of women by making them solely responsiblefor all necessary but unpaid labor associated with the homeand family. The Marxist influence has waned in feminist circlesas it has in general, but the focus on economic structures hasrecently re-emerged. Widespread personal experience of theproblems of the double day for caregivers who work in thepublic sphere and the dependency of caregivers who don’thas proven the socialist point. Most feminists today acceptthis point, but without necessarily accepting a socialist solutionto it. So the work/family conflict is now seen as a problemthat implies no single obvious theoretical solution, and currentwork on the issue tends to be pragmatic and eclectic.During the 1980s two other developments emerged thatprovided insights as well as debate within feministjurisprudence. Liberal feminists hit a logjam, arguing for equaltreatment on the basis of the sameness of men and women,when they began to address issues of pregnancy leave andhealth benefits that were obviously different for men andwomen. This coincided with the publication of Carol Gilligan’sbook, In a Different Voice, which postulated a difference inthe moral development of men and women and stressed theimportance of recognizing the equal legitimacy of both pointsof view. All this raised a deep debate over the sameness ordifference of men and women and how it should be addressedin law.The second development was an anti-essentialistmovement and skepticism of “Grand Theory” often associatedwith pragmatism, postmodern or French feminism, and criticallegal theory. Often using techniques of deconstruction toexpose the internal contradictions and unstated presumptionsof apparently coherent and neutral systems of thought, thishas been a useful method of debunking patriarchal structuresof thought and social organization and other bias, includingboth law and mainstream feminist jurisprudence. Forexample, critics pointed out that much feminist legal thoughtgeneralized on a narrow range of experience (that ofprivileged, professional, white women) as though it were theexperience of all women. In this regard the anti-essentialistmovement has provided important insights.In the 1990s liberal feminism re-emerged with a newstrength and vigor. In her essay, Amy Baehr reviews thisliterature. She considers the tensions, or perceived tensions,between feminism and liberalism, and in particular the limitseach imposes on the other. She argues that the questions ofconcern to feminist liberal theories show that they are “resultsof struggles to reconcile values.” This struggle is at the heartof any political or legal theory that recognizes competing valuesin the real world, and is thus not specific to any particulartension between feminism and liberalism per se.Practical Issues. Feminist jurisprudence was initiallyinspired and has since been dominated by a general set ofpractical issues or social problems that affect the lives andprospects of women. That is, feminist legal theory grew outof feminist political activism and legal practice: the fight forjustice, freedom, equality, and security for women. As a result,a large proportion of the scholarship in the field is concernedwith the continuing analysis, development, and strategy forprogress in these areas. For the sake of discussion thesepractical issues can be grouped in three general but somewhatoverlapping categories: (1) issues of violence, domination, andcoercion; (2) issues of work and family; and (3) issues ofsexuality and reproduction. Issues of violence and coercioninclude the social problems of rape, domestic abuse, sexualharassment, and sometimes pornography; and they implicatevalues of security, freedom and justice. Issues of work andfamily primarily involve the problem of discrimination invarious forms: e.g., discrimination in the workplace; or in familyor property law regarding custody, support, alimony, or divisionof assets; or in the structure of social organization itself in amanner that specifically disadvantages women. Theseproblems implicate the value of justice. Issues of sexuality andreproduction include the problems of pornography,prostitution, surrogate motherhood, abortion, and the scopeof reproductive rights, as well as the commercialization of sexin media and marketing, and they implicate values of freedomand autonomy.Issues of sexuality and reproduction will not be coveredin a separate essay here, although recent work has been donein these areas. The debate over pornography has continued,but overall remains at a stalemate, while the pornography— 148 —

— Philosophy and Law —industry grosses over 10 billion a year, and the internet makesit increasingly available and harder to control or regulate.Reproductive rights continue to be challenged, but legalinnovations have been few in recent years. The issue ofabortion remains a source of continuing political struggle,while scholarly interest has tended to focus on bio-ethicalissues produced by technological advances, such as stem cellresearch, fertility enhancement, and cloning. This explodingliterature deserves separate treatment.Issues of work and family have generated increasinginterest and creative scholarship recently. Much of thisliterature is concerned to explain why progress towardeconomic equality is so slow. It has been noted that at thecurrent rate of advancement it will take two to four centuriesfor women to achieve parity with men in business, and about500 years to achieve it in Congress. Recent work analyzesstructural barriers, invisible and unconscious discrimination,and devices of denial that retard economic progress forwomen. These issues will be discussed in my essay belowon the work/family conflict.Issues of violence, domination, and coercion havereceived perhaps the most scholarly attention of all these areasduring the past six or eight years. Some of this has beenfocused on conceptual analysis, some on legal and trialprocess issues, and some on barriers to progress, the failureof reforms, and how to correct them. The problem of rapecontinues to spark scholarly interest. Considerable work hasbeen done to analyze the concept of consent, and on thedefining elements of rape itself. (See, for example, two specialissues of Legal Theory (June and September, 1996) devotedto consent, and Archard, Sexual Consent, 1998). A controversycontinues over the nature and seriousness of acquaintanceor date rape and the failure of law to deal with it adequately,or indeed, whether law can or should deal with it, and if sohow. (One good collection is Francis (ed.), Date Rape, 1996.)Finally, several books and articles have focused specificallyon the law of rape as written, and on the trial process in casesof rape (e.g., Schulhofer, Unwanted Sex: The Culture ofIntimidation and the Failure of Law (1998), or Taslitz, Rapeand the Culture of the Courtroom (1999)). There is rather wideagreement within feminist jurisprudence that current rape lawand trial procedures related to it are inadequate to providewomen with redress for injury, much less to protect them fromthe threat of rape, although why this is so, to what extent, andwhat should be done about it remain matters of debate. (See,for example, Dworkin, Life and Death (1997), Cuklanz, Rapeon Trial: How the Mass Media Construct Legal Reform andSocial Change (1996), or see generally Burgess-Jackson (ed.),A Most Detestable Crime: New Philosophical Essays on Rape,(1999).) Thoughtful and creative scholarship has beenproduced on this topic in recent years.The problem of domestic violence has also been thesubject of ongoing scholarly investigation. Topics of interestinclude the battered women’s syndrome defense, the natureof agency and reasonableness in this context, the requirementsof justice regarding the (in)effectiveness of restraining orders,the (lack of) enforcement of the law, and the general problemsassociated with making the trial process effective. (Anexcellent and fairly comprehensive treatment is Schneider,Battered Women and Feminist Lawmaking (2000); and seealso in general, the special issue in Hypatia (Fall, 1996) onWomen and Violence, or French, Teays, and Purdy (eds.),Violence Against Women: Philosophical Perspectives, (1998).)The problem of sexual harassment has generated recentscholarship that will be discussed in the essay by Leslie Francis,who looks especially at two recent themes that “have thepotential to cut against understanding harassment as a harmto women as a group.” Since this would be a significantdevelopment in sexual harassment law, Francis addresses thispotential, as well as the implications of recent retrenchmentof the law of discrimination.Global Issues and International Activism. Feministjurisprudence is potentially a global phenomenon, but globalcommunication among scholars historically has not beenespecially good. This situation has improved, although westill have far to go. International conferences, institutes andassociations, international collaborations facilitated by internetaccess and scholar exchange programs, and increasing ethnicdiversity on university campuses, as well as internationalevents and media coverage have all contributed to aheightened interest and awareness of global issues, politicalactivism, and international scholarship by and about women.More information is now more readily available from a widerrange of places. More women participate in university life inmore nations (although more women than men remainilliterate as well).Scholarship and journalistic reporting generate or coincidewith increasing organization and protest against indefensiblesocial and legal practices that threaten the very lives andsecurity of women, as well as their potential equality orfreedom. For example, reports on domestic violence aroundthe world have led some scholars and activists to characterizeit as a human rights violation, and have also led to a betterunderstanding of its extent and severity. Reports on anddiscussion of so-called “honor killing” and “dowry murder”have provoked protest and monitoring of both these practicesand the (lack of) legal response to them in a number ofsocieties. The incidence of rape as an instrument of terror ortorture, and as a war crime or crime against humanity incircumstances such as those in Bosnia or Rwanda, has beenwidely addressed in scholarly work from several nations.On the issues of economic and reproductive rights,interesting comparisons between the western world and theformer Soviet nations are now possible, with considerablefeminist scholarship now being generated from EasternEurope. And much more scholarship is now available on theseissues from Latin America, Africa, Asia, and the Middle Eastthan ever before. Interest in international economic issues ingeneral and regarding women in particular has beenstimulated by the work of Amartya Sen and Martha Nussbaum(see, for example, Nussbaum and Glover (eds.), Women,Culture and Development (1995)). In his essay, Jeff Reddingsurveys several issues in recent international feminist legalactivism in South Asia. He focuses especially on three issues:(1) religion-based systems of family law, (2) use of reproductivetechnologies to select for male children, and (3) feministmethodologies of legal and social reform.* Patricia Smith is Professor of Philosophy at Baruch College and theGraduate Center, CUNY. She is editor of Feminist Jurisprudence(Oxford Univ. Press, 1993) and several other volumes, and author ofLiberalism and Affirmative Obligation (Oxford Univ. Press, 1998). Sheis currently working on a book titled Omission, Law and Responsibility.— 149 —

— APA Newsletter, Fall 2002, Volume 02, Number 1 —Liberalism in Recent Feminist PoliticalPhilosophy and Philosophy of LawAmy R. Baehr*While liberalism is one of the important roots of the feministmovement and of feminist political and legal theory, one mightnot know that from reading much feminist scholarship of thepast thirty years. The current anti-liberal character of feministpolitical and legal theory is not surprising when we considerthe role of new left thinking in the development of secondwave feminism, the recent interest among feminists incontemporary French philosophy, such as that of JacquesDerrida and Michel Foucault, and the impact of Carol Gilligan’sIn a Different Voice on recent feminist

of the American Philosophical Association’s Committee on Philosophy and Law. David Luban (Law, Georgetown) chairs the committee. Continuing members are Lester Hunt (Philosophy, Wisconisn), William Edmundson (Law, Georgia State), Julie Van Camp (Philosophy, Cal State-Long Beach), Joan McGregor (Philosophy, Arizona State), and Claire