By the mid-1980s, some feminist legal scholars had begun to move beyond a focus on equality and the idea of reforming discrete aspects of law, to thinking about how the nature of law itself was gendered. The work of the American legal theorist, Catharine MacKinnon, was particularly influential, but other scholars began to ex lore the possibility of feminist jurisprudence in the 1980s.11 The new approaches struck a chord with many feminist legal scholars, generating debates, seminars, colloquia, and a flurry of publishing activity. Mainstream law journals began to publish articles by feminist legal scholars, signalling a qualified degree of acceptance of feminist jurisprudence within the academy. Special issues of law journals began to be devoted to feminist jurisprudence, and then specialised feminist law journals appeared.12 With the appearance of feminist courses in the law curriculum, monographs and collections of essays devoted to feminist jurisprudence became increasingly attractive to publishers.
The proliferation of feminist jurisprudence encouraged more sophisticated theoretical analyses, although the practical aims of feminism and the desire for equality have continued to be central to liberal legalism. Nevertheless, some feminist theorists became frustrated with the ad hoc nature of the gains made and began to focus on the masculinist nature of legal knowledge. I choose to use the word “masculinist” rather than “male” or “masculine” to emphasise the element of social construction, and to avoid the implication that there is some predetermined or “male” character to law.13 Thus, women may share masculinist values, just as men may share feminist values. The term “masculinist” can therefore be used to describe women in the academy, in the legal profession, and elsewhere, who defer to the orthodox myth that legal knowledge is neutral, objective and fair.
The major problem that emerged was that feminist legal scholars who were themselves largely white, middle class and heterosexual, sought to create, it was argued, a new legal subject in their own image. Non-English speaking, indigenous, immigrant, lesbian, disabled, and working class women began to attack the depiction of woman as possessing a single, identifiable “essence”, for they did not see themselves reflected in the image. White feminists have been taken to task for prioritising gender over race,14 and for their “ethnocentric universality” in representing Third World women as homogeneous and powerless.15 The attack on what came to be known as “essentialism” sent shock waves through the feminist movement. No longer was it possible for a White woman to refer to women collectively as “we”; the category “woman” had been shattered into a thousand fragments.
The attack was salutary in that even the most obtuse of White Western feminists was jolted into an irrevocable consciousness regarding the enormous importance of differences between women. But a conundrum presented itself: how could there be a politically viable women’s movement without a unitary category of women? This conundrum caused an unfortunate fissure to manifest itself between academic and reformist feminism. On the positive side, a significant body of feminist work began to appear from postcolonial, critical race, Aboriginal and lesbian theorists, although the essentialising tendency of these terms themselves has been noted. Mary John has said of postcolonialism, for example, that it has “turned into a universalizing description of the contemporary predicaments of the globe as a whole”.16 Some scholars are presently engaged in a project to disrupt the “cliche-ridden discourse of identity” by exploring the ways in which identities are formed.17 The characteristics of identity, including race and gender, can themselves no longer be regarded as unqualified or fixed givens. The challenging issue in the legal context is to explore the role of law in producing and reproducing social differences.
The attack on essentialism signalled the increasing acceptance of postmodern critiques of foundational and unitary causal accounts. Postmodem feminism cannot be defined in terms of a single theory, for it includes a range of perspectives that reject universality, objectivity and the idea of a “single truth”. Indeed, feminism itself may be understood as a form of postmodernism because of its multifaceted assault on universalism and orthodoxy. Self-conscious postmodernism has involved a move away from “theorising in grand style”, in which one or more causal factors are identified as the explanation for major social phenomena, such as women’s oppression or “patriarchy”. The attack on Catharine MacKinnon’s work, which has focussed on the sexualisation of dominance, is illustrative. This work was, and continues to be, highly influential among mainstream theorists and the media, as well as feminist scholars across a wide spectrum of disciplines, but has come to be criticised for being one-dimensional, and disempowering for women.18 Hence, to counter the potentially disabling effects of theorising women’s lives in terms of sexualised dominance, some feminists have sought to present more positive images of women as resisters.19 While not denying that many women are subject to exploitation in their lives, postmodernism rejects subordination as a fixed characteristic of women’s identity. Instead, a fluid approach is favoured which takes account of resistance, as well as exploitation. Thus, a multidimensional and more complex picture of women’s lives is produced.
Poststructuralism, which may be subsumed beneath the rubric of postmodernism, focuses particularly on the constructionist role of language.20 Hence, the term “deconstruction” is also favoured. Influenced by Saussure, Lyotard and other French (generally male) theorists,21 feminist legal scholars have been responsive to the idea of “multi-narratives” and “local discourses”, including the body as a site of meaning.22 Jacques Derrida’s focus on the interrelationship between the dualistic norm and its “other” have been productive in feminist and postcolonial scholarship. To illustrate, the dominant side of a string of dualisms central to Western intellectual thought; for example, man, mind and objectivity, has been consistently privileged over their feminised counterparts, namely, woman, body and subjectivity.23 Derrida’s work shows that connotations of subordination rigidly attaching to the latter can be disrupted by strategies such as experimenting with the performative possibilities of metaphor, or focussing on the boundary between the norm and the “other” so that conventional notions of power are challenged.24 Drucilla Cornell, building on the work of Luce Irigaray, in addition to that of Derrida, advocates the development of an ethical relationship to the Other so that the metaphors associated with otherness can be engaged with and given new meanings through a process of mimesis.25
Other feminist legal scholars have been attracted by Foucault’s critique of power.26 Power is a variable that has largely been invisible within liberal legalism, albeit central to feminist critiques of patriarchy, domination and subordination. Foucault’s particular insights are, first, power should not be understood only in terms of an institutional centre, for attention should also be paid to the capillaries, or micro-political sites; secondly, power should be understood as circulating and diffused, rather than as fixed so that wherever power is located, it invites resistance and destabilises conventional notions of authority; thirdly, power is thoroughly imbricated with the production of knowledge. While some feminist scholars have criticised Foucault for failing to accord sufficient weight to institutional power, and to gender, his work has possessed an appeal because of its positive and productive potential. That is, it provides a means of theorising power that avoids the traps of victim feminism and nihilism.