The Development of Feminist Jurisprudence



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A Note of Caution


In a brief overview, it is impossible to do justice to the rich tapestry of feminist legal scholarship that has proliferated in the past decade.27 My intention has been merely to highlight the diversity and dynamism of feminist jurisprudence and to capture something of the ambiguous relationship that feminists have with law which, as for formerly colonised peoples, can be simultaneously liberatory and oppressive. The short but dramatic history of feminist jurisprudence also reveals that there is not one model of scholarship, but many, just as there are many models of masculinist jurisprudence. The message of poststructuralism is that all texts, including the supposedly authoritative texts of law, as well as feminist theorisations in regard to those texts, are subject to rereading and reinterpretation, which signals the likelihood of many more shifts and turns within a dynamic interrelationship. However, there is undoubtedly a danger in jumping on the latest theoretical bandwagon, and attacking yesterday’s theorists, until one is oneself toppled from the cutting edge. Ann Scales cautions against what can amount to a feminist form of destructiveness.28 Diversity among theorists should be accepted and viewed as positive, no less than the reality of diversity among women.

The major concern regarding fragmentation is that it could threaten the political and reformist imperative of feminism, thereby inducing a resiling from earlier gains.29 Indeed, it may ahead have deflected energy from resisting the “new economy”.30 The new economy involves a contraction of the public sphere and the welfare state, the privatisation of public goods, globalisation, and a preoccupation with efficiency, economic rationalism and profits, all of which have become the hallmarks of conservative governments in Western Europe, Canada, Australia, New Zealand and the United States. It would also appear that the conjunction of “modernisation” and globalisation have had negative ramifications for many women in developing countries that are presently wholeheartedly embracing the market.31 It has been suggested that the centralising tendency of postcolonial states tends to reinforce women’s marginal socio-economic status,32 thereby highlighting the need for constant feminist vigilance as the configurations of corporate power subtly shift.

The danger is that a preoccupation with micropolitical sites can cause feminist legal theorists to lose sight of the “big picture”. The unpopularity of Marxist and socialist feminism, following the collapse of Communist regimes in Eastern Europe, has stifled the discourse of class which, like power, is virtually invisible within legal discourse. With the suppression of class, a crucial tool of analysis has disappeared in respect of women’s inequality, particularly in developing countries. A socialist critique can highlight the way the changing morphology of capitalism ensures that women workers are retained as a low-paid, expendable workforce. Thus, while the postcolonial subject can be empowered through postmodern analytical tools, she may want to maintain a bridge to selective universals, which have fallen out of favour. As Jordan and Weedon observe:

The postmodern critique of universals, metanarratives, essential subjectivity and the fixing of meaning has much radical potential but it is not without its dangers. Many postmodern thinkers and writers decidedly privilege plurality and pleasure over power and effective resistance. The postmodern celebration of difference becomes dangerous once it is divorced from the structural power relations that produce it.33

As law is intimately concerned with the structures of power relations, it is essential not to lose sight of those structures and how best to manage them. The prevailing neoconservatism is so detrimental for many women workers that it may be necessary for them to organise as a class for reasons of what Gayatri Spivak calls “strategic essentialism”. In the face of a common threat, the key issue for feminists is not likely to be who can speak for whom, but who can speak at all?

Challenging Curricular Knowledge


Scholars who have worked on a piece or pieces of the jigsaw that make up the trajectory of feminist jurisprudence have sought to incorporate some of the pieces into their teaching. There are two obvious ways that have been utilised to develop feminist jurisprudence within the law curriculum: either by setting aside a special course, or by integrating feminist perspectives into the curriculum as a whole. I shall outline these two approaches, which may be of interest to those contemplating curricular changes.

Separatism


A dedicated elective, such as Women and Law, Gender and Law, Sex Discrimination, Sexuality and Law, or Feminist Jurisprudence, permits a detailed treatment of issues which disproportionately impact on women. The disruption of the category “woman” has rendered the phrase “Women and Law” obsolete. Even the “second generation” phrases may now be supplanted by trendier postmodern titles, such as Law and Culture.

Although an elective does carry with it the likelihood of preaching to the converted, it usually allows considerable latitude in respect of the syllabus, including topics selected, theoretical perspectives favoured and degree of focus on legislation, case materials, policy analysis, commentary, and creative texts, without regard to a specific doctrinal area of knowledge. A typical course might begin with readings on equality or some provocative instances of inequality in order to stimulate the interest of students, and to establish the aims of the course. The primary topics within the feminist jurisprudential “canon” have tended to involve violence, the family, and reproductive and economic rights, closely parallelling the history of the reformist agenda.34 The concern with reproductive rights has mirrored the general feminist view that a woman has a right to control her own body. While the focus was initially on laws criminalising abortion,35 Issues of embodiment, including sexuality, lesbianism, the nature of desire, and sex work, have received more attention in recent years, parallelling the popularity of postmodern discourses. Nevertheless, violence against women (particularly, sexual assault, wife battering, and homicide) has continued to be of perennial concern to feminists everywhere,36 as has motherhood and child care. Economic rights have related primarily to the inequities in paid employment — the lack of equal opportunity, conditions of work, pay, as well as the way concepts, such as skill, merit and authority, have been constructed in masculinist terms.37 Sexual harassment in the workplace has been an issue of ongoing interest and concern.38

More recently, there has been something of a turning away from issues pertaining to violence and the family. Instead, we find a greater focus on the public sphere and civil society, including the meaning of citizenship. This public turn has been prompted, in part, by the widespread contraction of the welfare state in Western Europe, Canada, Australia and New Zealand, as well as republican debate in Australasia. A look at women in legal education, the legal academy and the legal profession has also moved onto some syllabi, reflecting feminist theorists’ desire to look in the mirror and interrogate their own practices.

The variations in theoretical, methodological and pedagogical approaches are legion, as already suggested. An interdisciplinary focus challenges the autonomy of law and disturbs the positivist paradigm. The law and literature movement, for example, has encouraged the deconstruction of legal texts themselves, as well as the use of creative writing — drama, poetry, novels, feminist crime fiction, and autobiography. The inclusion of creative literature within a law course disrupts the idea that the juridical voice is the only authentic and authorised voice in law. While a focus on Law and the Humanities is productive, Law as a Humanity goes further.

An historical approach has been favoured by many, for it conveys a fluid sense of the way in which gender has been constructed, as well as an understanding of the struggles that have been undergone.39 Nevertheless, an historical narrative can carry with it a danger of progressivism, that is, the idea that life is always getting better for women and that it is only a matter of time before the ideal end state is reached. It can convey the impression that it is simply a question of there being enough women present for institutional change to occur, as in the legal profession or the academy.40 A progressivist approach, which emphasises legal enactments, also downplays the effect of other social institutions, and may deflect attention away from factors that serve to immunise cultural and religious practices from scrutiny, practices that have all too often shielded beneath the rubric of “private”.41

The pedagogy of feminist jurisprudence challenges the liberal separation between public and private spheres in a very direct way, in that students often speak frankly about their lives and the topics under discussion in a way that is rare in the legal classroom. Discussion as to why affectivity is conventionally excluded from legal discourse can be illuminating for students. It can also be painful if it means that a consideration of violence, rape, or incest resonates with their personal experience. Some teachers of feminist jurisprudence have been keen to encourage the sharing of the experiential in the belief that feminist theory is necessarily grounded in the micro-experiences of individual women. Other teachers, caught by the objective allure of legal positivism, are less comfortable with this methodology. Again, there is no “right” or “wrong” approach; teachers must be guided by what they are comfortable with in conjunction with the dynamic of a particular class.

Various experimental approaches have been adopted regarding the writing component of courses in feminist jurisprudence, given that the lecturer still has a formal obligation to assess students. For example, students may keep a journal in which they write their own impressions and analyses of class discussions in order to emphasise the subjectivity of knowledge. Feminist jurisprudence also lends itself to creative and imaginative research projects. Students can achieve a high level of satisfaction by completing an original project which they have themselves devised. While a single semester does not allow sufficient time to carry out extensive fieldwork, small projects based on media studies, archival material, or interviews are feasible. In addition, feminist jurisprudence provides scope for the exploration of a wide range of topics based on conventional library research which address critical issues in regard to constitutionalism, education, development, and so on. To reduce the competitive individualism that typifies legal pedagogy, group projects are recommended as a means of encouraging a more collaborative approach to learning.42 As an alternative to essay writing, in a setting where interdisciplinarity is highly desirable the use of film or other creative media might be explored.

It may be possible to develop a more advanced feminist legal theory subject in order to pursue selective issues in greater depth, although this is dubious in an economic rationalist environment. Original in-depth research can nevertheless be encouraged through higher degree candidature.


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