Ch12 Feminist legal theories

1-Central common themes of FLT

Freeman at para. 14–001 explains FLT as seeking to:

……………………………………………………………………………analyse the contribution of law in

constructing, maintaining, reinforcing and perpetuating patriarchy ( Patriarchy is a social system in which
positions of authority are primarily held by men) and it looks at ways in which this patriarchy can be

undermined and ultimately eliminated.

Example: In many legal systems, a father was historically presumed to be the head of the family,
and his word carried more weight in matters like custody, inheritance, or decision-making.

Feminist legal scholars’ common themes include a wish to:

 show how law defines what is male/female/masculine and feminine, reinforcing the
position of men and women in society to men’s advantage
 analyse how the differences between women and men should or should not be reflected
in legal rules, institutions and structures
 place the lived experiences of women at the centre of their scholarship
 stress ideals of women’s self-determination and freedom: for women to be treated as
fully human. This draws upon themes of liberalism and we can ask if this is a critique of
liberalism or a better realisation of liberalism (see especially Nussbaum)
 bring change and transformation to society, including the legal system, to improve
people’s lives.

Power, oppression, emancipation (the fact or process of being set free from legal, social, or political restrictions;
liberation), freedom, equality, justice and what it means to be human, and how these are

captured in law, are central general themes. Although FLT has now become a vast topic, this
chapter aims to steer you through some of these themes and the abstracts in the core
reading.

What is Feminist Legal Theory (FLT)?

Feminist Legal Theory looks at how law has helped create and support male power (patriarchy) in society
— and how we can change the law to make things fairer for everyone, especially women.
According to Freeman (para. 14–001), FLT aims to:
Study how law helps keep patriarchy in place, and find ways to challenge and remove that patriarchy from
the legal system and society.
Key Common Themes in Feminist Legal Theory
1. How Law Defines Gender Roles
 Feminist scholars explore how the law labels people as “male” or “female” and how it treats men
and women differently, often giving men the upper hand.
 📌 Example: In many legal systems, a father was historically presumed to be the head of the family,
and his word carried more weight in matters like custody, inheritance, or decision-making.

2. Questioning Legal Differences Between Men and Women

 Feminists ask: Should the law treat men and women exactly the same (formal equality)? Or should
it recognize their different experiences and disadvantages (substantive equality)?
 📌 Example: Maternity leave laws vs. equal parenting rights — should law offer special protection
to women, or aim for shared responsibilities?

3. Centering Women's Lived Experiences

 Instead of making abstract rules, FLT wants to start with real women's stories and challenges.
 📌 Example: In domestic violence cases, a law that seems “neutral” may not protect women unless
it considers power imbalances in abusive relationships.

4. Promoting Women’s Freedom and Self-Determination

 FLT focuses on women’s right to be independent, respected, and free — to be treated as fully
human.
 This overlaps with liberalism, which also supports individual rights — but FLT asks: Is liberalism
doing enough for women?
 📌 Example: Philosopher Martha Nussbaum argues that feminism should push liberalism to truly
include women’s voices, like ensuring equal education and health rights.

5. Changing Society and Law for the Better

 Feminist legal scholars want to transform the law and society so that it improves people’s lives —
not just change laws on paper, but make real, positive changes.
 📌 Example: Feminists fought for legalising abortion or recognising marital rape as a crime, which
were real steps towards women’s bodily autonomy and safety.

These ideas come up again and again in feminist legal work:

 Power – Who holds it and how it’s used.
 Oppression – How certain groups (like women) are held back by laws and structures.
 Emancipation – Helping people gain real freedom.
 Equality – Not just being the same, but being treated fairly according to real-life
situations.
 Justice – Making laws that create fairness for all.
 Humanity – Recognizing women as full human beings in law.
 2-A brief history of feminist legal theory
First wave

Enlightenment feminists, like Mary Wollstonecraft, writing at the time of the French
Revolution, asserted that women, like men, possessed the innate capacity for reason. Such
feminists argued that women’s capacity for rational thought had been suppressed by their
upbringing, since they were forced into a stereotypically dependent, subservient, ‘feminine’
type of socialisation process, being discouraged from developing, or at least not encouraged
to develop, their own intellectual faculties as they were perceived, provided with an
inadequate or disadvantaged education. Women were prevented from engaging in public
life, through an emphasis on supposedly ‘womanly’ private domestic responsibilities, denied
the opportunities to engage in political processes and formally excluded from decision-
making. (The division of the public and the private spheres has been a recurring theme in
FLT – have a look at the analysis in Freeman on this.) Such a situation was lamentable ( full of or
expressing sorrow or grief) said enlightenment feminists, but they were hopeful the situation could

be changed by a different socialisation of the two sexes – effectively providing both boys and
girls/men and women with similar upbringings/conditions/ opportunities. The rhetoric ( the art
of effective or persuasive speaking or writing) of liberalism (of equality, freedom, the rights of man) and

particularly John Stuart Mill’s work specifically discussed the unfairness of the subjection of
women and argued in favour of women’s rights.

Mid-19th to early 20th century suffragists (Suffragists were people—mostly women, but also some men—who
peacefully campaigned for the right of women to vote.) arguing for the rights of women to vote and other

legal rights are known as the first wave of feminism. Their argument was that, if men have
certain rights and can do particular things, women should be able to do these too. Women
should be equally protected by the law and the law should apply to all – men and women –
equally by according men and women equal treatment. During much of the 20th century,
incrementally in different nation states governed by different domestic laws, women gained
the vote and obtained formal equality before the law.

Second wave

The modern (1960s and onwards) women’s liberation movement, often known as the
second wave of feminism, emerged out of the civil rights, and then often more radical,
movements in the 1960s seeking freedom and equality for women, particularly in areas of
employed work outside the home, reproductive rights with freedom over their own bodies,
sexuality and life choices in general. Some activists were female lawyers or legally trained
and many lawyers developed feminism’s general view of treating women as equals, or
enabling women to be free, into a more specific focus of the legal world on what was
happening in universities, in legal training and in legal practice. A variety of legal scholars
 working in different areas with diverse perspectives and concerns began to focus on feminist
issues or on how the law affected the lives of women; how law related to women; whether
it in fact treated men and women as equals: formally and substantively.

It is generally considered that the first feminist movement was a liberal concern arguing for
equality, which sought to have the same status and protections given to women as men
enjoyed under the law. However, this encountered the problem of the standard being a
‘male standard’: women having to live up to standards set by men for men, which may suit
(certain) men’s lives – on this see Section 12.5. This changed in feminist analysis of the law
to a concern for asserting difference or trying to get the law to treat men and women as
equal but different. This approach, however, risked returning to the arguments of natural
subordination. An alternative is to be more reflective and constantly ask the woman
question (see Sections 12.4 and 12.5.2). It seeks to fully understand the role of gender in
constituting legal and social relations and, conversely, the role of legal relations in
constituting gender.

NB: FLT is part of feminist thought in general. Sometimes you will hear references to first-
wave feminism. This refers to the period 1790 until the suffrage. Then ‘second wave’
feminism refers to post-1960s. Some refer to ‘third-wave’ feminism as a postmodern 2000s
onwards era but many dispute there have been any other ‘waves’ since the second.

3-Dealing with equality and difference

A debate that has been central to FLT since the 1970s has important effects in law in
practice. The early push for feminists was for equality with men. However, this led to many
queries, including: do women want to be treated like men? Does equality for women
require different treatment? Are there more important values than equality? These
questions are common within equality and justice debates in general. Freeman explains
these as issues of how feminists should define and respond to sexual difference. Which
approach needs to be taken?

 Ignore or emphasise sex or gender differences?

 If emphasise, how should affirmative action be used to achieve more substantive
equality?

Certain feminists are critical of a traditional, liberal, approach to equality: one which should be
familiar to you from liberalism and law, the traditional liberal jurisprudence prevalent in
democratic states including in the theories of Dworkin and Hart. However, Wendy Williams
argued that feminists have two strategic choices: either equality on the basis of similarities
between the sexes or special treatment on the basis of sexual differences. She favoured the
former. Others say that an equal treatment approach may work for women who meet male
norms, whose lives conform more with male ways of living but is this really what feminists seek?
Christine Littleton calls instead for a reconstruction of thinking about equality. To accept
women’s difference, society needs to do more than accommodate difference. She gives
examples of consequences including paying mothers the same wages as soldiers or not paying
soldiers. Her aim is to challenge ‘phallocentrism’.

4-Critiquing law’s supposed universal scope

The wave of feminism that developed in the 1960s and 1970s was concerned, among other
things, to demolish what many writing within this ‘wave’ saw as the myths of universality in
concepts of political and legal theory. This involved analysing the ‘classic works’ of the European
past and demonstrating their patriarchal character (for a definition of patriarchy, see Section
12.5.3) – one may argue that this work also needs to be done for the non-Western past as well.

This was often a deconstructive process – that is, criticising law’s failures. Many have felt that it
would be a harder task to reconstruct concepts in political and legal theory in a new way that
was relevant not only to the freedom and inclusion of women but that also advanced
emancipation and equality for all. Concepts such as power, freedom, authority, privacy,
democracy and citizenship are to be rethought and feminist writers brought in concepts not
traditionally part of the liberal canon of political and legal theory – for example, care. But a
lasting question may be: ‘is a post-patriarchal society conceptually imaginable and practically
feasible?’ Feminist methods have been suggested to address this. Bartlett emphasises three
feminist legal methods:

1. Asking ‘the woman question’.

2. Feminist practical reasoning.

3. Consciousness-raising.

The key, Bartlett argues, is to see beyond one’s own limited perspective. In Finley, we see
examples of the way law sees women as refracted through the male gaze rather than through
women’s own experiences and definitions.

These critiques focus on the ‘epistemology of jurisprudence’, i.e. the theory of knowledge
expounded in law and thinking about what law is. The assertion is that within traditional
jurisprudence some writers claimed the title of objective science for generalisations that have
been assertions from the masculine mode of thought. Some feminist scholars claim that such
prevailing positions are not ‘objective’ but only limited and biased; hence any perspectives
arrived at are only partial. Instead, all scholars must recognise the embeddedness of their own
assumptions within a specific historical context. By drawing on other disciplines, we are now
asking if not only the practice of law silences women’s aspirations and needs and, conversely,
privileges those of men but whether the very construction not only of the legal discourse, but
representations of the discourse in the academy (the construction of our understanding and
knowledge of law), is the product of patriarchal relations at the root of our society.

Activity 12.1

Read in Freeman, Chapter 14 ‘The inquiries of feminist jurisprudence’, para.14–002 the

discussion of Heather Wishik’s list of feminist inquiries into law. How does Wishik list feminist
inquiries into law? (When answering, rewrite Wishik’s questions in your own words.) Feedback:
see end of guide.

5-Feminist political orientations

We will look briefly in this section at influential views: the liberal; ethic of care; radical feminist;
black feminism, and the poststructuralist or postmodernist. NB: these are not set categories;
there is overlap between positions but this is a useful way to introduce you to the study of FLT.

The liberal view The principal aim of the liberal view of law is to uphold the rule of law: i.e. that
all people are equal before the law. On this view, the law is neutral and impartial among
persons. In law, sex or gender (also colour, ethnicity, etc.) are irrelevant. Wollstonecraft and Mill
and the first wave of feminism, mainly from the 19th century and into the 20th century, set out
a liberal feminist perspective. Further, the aim of much early second-wave legal feminism, from
the 1960s onwards, was to show how women were not treated equally. These arguments
emphasise that girls or women should be given the same rights to education and opportunities
as boys/ men: see Wollstonecraft, M. A vindication of the rights of woman (1792). The use of
law is therefore a vital reform tool. If law in the liberal tradition is to bring justice, fairness and
equality to all and freedom for the individual, liberal feminism shows how law is failing to live up
to its own standards of justice and fairness, equality for over half of the population by failing to
give women equal rights. Law can be used – through (better) interpretation or new legislation –
to reform existing law to live up to its own liberal standards. Using this approach, sometimes
called the ‘sameness’ approach – deriving from the idea that this involves treating men and
women the same – it was better to view gender or sex differences as legally irrelevant. The
approach meant that women should be given the same rights and entitlements as men: give
women equal treatment; dispense justice even-handedly; try to live up to the ideal of neutrality
between persons and gender justice would be achieved.
Despite its promise of a better future, cracks appeared in this approach. Many saw it as women
having to become like men – becoming equal meant movement in a one-way direction towards
the male standard, trying to live up to public standards and systems and laws already created by
men for men, in the male image.

Such an approach was criticised for removing the ‘feminine’ from the law, or continuing to
prevent its inclusion (except for stereotypes of womanly images in the law). Was it reinforcing
existing biases? Would it not always be more difficult for women to live up to the standards if
they were standards made in the male image? How could this approach help in areas where
men either cannot, or usually do not, feature – such as pregnancy, abortion or sexual violence?

Criticisms of the ‘sameness’ approach came from various other feminist approaches – in
particular, from ethic of care or cultural feminist legal theories and radical legal feminists.

Ethic of care

This approach argues that there are genuine, somehow relevant, differences between men and
women that should be celebrated. Women have their own moral perceptions that are either
more valid than, or at least as valid as, men’s.

Much of this work comes from a development of the work of psychologist Carol Gilligan, who
identified two distinct moral codes that correspond to gender when she carried out research on
various groups of girls/boys/men/women, including asking about the Heinz dilemma: should
Heinz steal a drug he cannot afford to save his wife’s life? Gilligan’s work provides
counterarguments to previous research by Lawrence Kohlberg, who identified five stages of
moral development, with impartial thought being the highest, at stage 5.† Kohlberg’s research
appears to show that women never got higher than stage 3. On the basis of her new findings,
Gilligan then argues in In a different voice: psychological theory and women’s development.
(Cambridge, MA: Harvard University Press, 1982) [ISBN 9780674970960] for a re-evaluation of
the feminine.

The two moral codes or voices identified are

1-A feminine mode based on caring – the maintenance of relationships, a web of

communications and networks; concern for the particular needs of others in their particular
contexts. This is the ethic of care. Gilligan argued that women placed greater emphasis on
context and the concrete effects of their decisions on other people:

…………………………………………………………………………………………………… The elusive mystery of

women’s development lies in the recognition of the continuing importance of attachment in the
human life cycle. Women’s part in man’s cycle is to protect this recognition while the
developmental litany [that is the doctrine whereby higher modes of moral reasoning entail
greater abstraction] intones the celebration of separation, autonomy, individuation and natural
rights.

2-A masculine mode: objective, impartial, impersonal, unemotional, thinking of obligations,

justice, rights and rules. That is, the generally idealised form of the legal and political system.

This is the ethic of justice. As Gilligan summarises it (1982, pp.19 and 20) Kohlberg’s
developmental psychology rests on a concept of justice rooted in a ‘rights conception of
morality’, which ‘is geared to arriving at an objectively fair or just resolution to moral dilemmas
upon which all rational persons could agree’.

But what are the consequences of the ethic of justice? According to Benhabib, in Benhabib, S.
Critique, norm and utopia: a study of the foundations of critical theory. (New York: Columbia
University Press, 1986) [ISBN 9780231061650]):

……………………………………………………………………. This results in a corresponding inability to treat

human needs, desires, and emotions in any other way than by abstracting away from them and
by condemning them to silence... Institutional justice is thus seen as representing a higher stage
of moral development than interpersonal responsibility, care, love, and solidarity; the respect
for rights and duties is regarded as prior to care and concern about another’s needs: moral
obligation precedes moral affect; the mind, we may summarize, is the sovereign of the body,
and reason, the judge of inner nature.

Instead of care and this approach being repressed and undervalued, ethic of care, sometimes
referred to as cultural feminism argues that this approach ought to be heard together with the
ethic of justice or ‘male voice’, which is historically dominant and particularly prevalent in law.
The feminine voice is just as rational and potentially public in scope; it is not just for use in the
home, the private sphere, etc. In terms of methods, it is useful here to connect this orientation
in FLT to what has been referred to as ‘asking the woman question’. This is linked to the critique
of ‘abstract masculinity’ as the organising force of social thought.† (†As Rich, A. Of woman born:
motherhood as experience and institution. (London: Virago, 1977) [ISBN 9780393312843] argues in response to
her reading of the mind–body distinction that has relegated women’s reasoning to the status of the naturally
irrational: ‘Female biology – the diffuse, intense sensuality radiating out from clitoris, breasts, uterus, vagina; the
lunar cycles of menstruation; the gestation and fruition of life which can take place in the female body – has far
more radical implications than we have yet come to appreciate... We must touch the unity and resonance of our
physicality, our bond with the natural order, the corporeal ground of our intelligence.’ (p.21)).

This argument holds that the ideals of Western rationality, notably the rule of law but including
scientific thought, distort and leave partial our understanding of nature and social relations.
These ideals devalue contextual modes of thought and emotional components of reason. The
issues that have dominated the task of governing and deciding on new legislation have been
issues that have most concerned men; the potential for an alternative woman’s perspective has
been systematically ignored. Thus we find it argued that modernity has privileged male thought
on ethics as superior morally to feminine modes of understanding.

Many queried Gilligan’s findings – how could a small sample be translated into a world view of
the way men and women think? Even if accurate on that front, some are more concerned as to
why women may care more than men and why they appear to value relationships more. Gilligan
appears neutral on this point. If women do care more, is it because of the different socialisation
processes in boys and girls? Is it for psychological reasons relating to identification with your
primary carer in early life – usually the mother (i.e. do girls gain their identity by a connection or
similarity with their mothers, while boys gain their identity as a separation or difference from
their mothers)? Or is it because of women’s biology – are women somehow more connected to
other life because of their reproductive capacity? In legal feminism, this is an uncommon stance
to take but Robin West in ‘Jurisprudence and gender’ (1988) (see extract in Freeman, para. 14–
010) illustrates it well conceptually. West asked ‘[w]hat is a human being?’ She said this was an
important question for legal theorists to answer because ‘jurisprudence, after all, is about
human beings.’ West concluded that, as far as legal theory is concerned, women are not human
beings. West sets out a table of the official and unofficial stories of what it means to be human
and how those differ in law, depending on one’s perspective.

This is often called ‘difference feminism’. However, difference feminism can include
postmodernist positions too.

Activity 12.2

One of Gilligan’s research methods involved posing the ‘Heinz dilemma’. She asks her research
subjects: should Heinz steal a drug he cannot afford in order to save his wife’s life? Please
answer this – it is instinctual reactions that matter. Then give reasons for your answer.
Feedback: see end of guide.

Activity 12.3

Read Freeman, Chapter 14 ‘Feminist jurisprudence’, extract by West, R. ‘Jurisprudence and

gender’, para. 14–010.

a. What is her argument?

b. In what ways do women crave intimacy and connection with others, rather than the
separation and autonomy that are one of the main values in liberal legal theory?

c. How are women severely disadvantaged by liberal legal jurisprudence?

d. What are the particular recurrent experiences in women’s lives that emphasise connection?

e. How convincing do you find these – as always provide evidence for your position.
No feedback provided.

Radical feminism

The most prominent radical feminist working in law and FLT is Catharine MacKinnon.
MacKinnon dislikes the sameness and difference approaches as she believes that both try to
make women live up to standards set by men. The equality standard is criticised as being based
on men’s lives. The difference and ethic of care approach is also criticised as valuing care
because women give it to men: that image or construction of women is favourable to men or
patriarchy. Affirming difference therefore means affirming powerlessness. MacKinnon says that
such differences between men and women are hierarchically socially constructed to best suit
men and to keep women oppressed. She has famously compared feminism with Marxism.
Sexuality in its relation to feminism is analogous to the relations between work and Marxism:
that which is most one’s own is that most taken away or ‘alienated’ by the social construction of
a false identity. The gender system itself is a power system, unequally structured to suit men’s
lives. Law’s supposed neutrality only reinforces this inequality. When law is at its most neutral
and objective, it is at its most masculine.

Despite the strong critique of law and its role in the construction of the current configurations
of sex or gender differences to men’s advantage, MacKinnon argues that law can be used as a
tool to empower women to change both their circumstances and the legal system itself. Much
of MacKinnon’s early work focused on pornography and sexual abuse. Pornography is seen as
exploitative and degrading of women.†( † MacKinnon stated in 1989 that in the USA almost 50 per cent of
all women are raped or are the victims of attempted rape sometime in their lives (see MacKinnon extract in
Freeman, 14–011). MacKinnon argues that notions of ‘consent’ and ‘choice’ are invoked to conceal force and that
the notion of consent is often invoked in rape trials as a way of legitimising what has in reality been an act of force.
For MacKinnon rape is the defining paradigm of sexuality but force is pervasive in many areas of gender relations).

Patriarchy

Carol Johnson described ‘patriarchy’ as:

……………………………………………………….. a system of male domination that involves the

subordination of women. Patriarchy takes different forms in different societies and different
historical periods. It interacts with other forms of oppression, such as class, race and sexuality,
in very complex ways.

Johnson, C. ‘Does capitalism really need patriarchy? Some old issues reconsidered’ (1996) 19
Women’s Studies International Forum 193, 201 (available in the Online Library)

Patriarchy is a system of hierarchical power; it oppresses and devalues femaleness, the feminine
and, therefore, women in general in intersectional and contextually sensitive ways. Definitions
of the human that mean ‘man’ contribute to that system. Definitions of ‘woman’ that represent
one monolithic view that results in a partial and specific woman who is white, propertied,
Western and so forth also do this. In post-patriarchy, feminists argue, these issues and problems
will be overcome.

This inquiry into the legal system is feminist because it is grounded in women’s concrete
personal lived experiences: one of the rallying calls of second-wave feminism was that the
personal is the political. MacKinnon describes feminist method as consciousness-raising: i.e. the
collective critical reconstruction of the meaning of women’s social experience as women live
through it: see Freeman, extract by Bartlett, K.T. ‘Feminist legal methods’ (para. 14–012) and re-
read this when you have considered the other political orientations below.

Radical Feminism and Law: Catharine MacKinnon

Who is Catharine MacKinnon?
Catharine MacKinnon is one of the most important radical feminists working in law and
feminist legal theory (FLT). She strongly criticizes the way law treats women and how the idea
of equality has been shaped by male experiences.

Criticism of the Sameness and Difference Approaches

 Sameness approach: This says women should be treated the same as men.
MacKinnon’s problem with it: It assumes that the male way of life is the norm. So, to
be "equal," women have to become like men. For example, if a workplace only values
long working hours and no time off for family care (which men historically didn’t do
much of), then women are disadvantaged if they follow a different path.
 Difference or "ethic of care" approach: This says women are different from men (e.g.
more caring) and should be treated accordingly.
MacKinnon’s problem with it: It still keeps women in roles that benefit men, like
being caregivers. So instead of freeing women, it keeps them in powerless positions by
saying, “Women are naturally caring.” For example, if we praise women for always
taking care of others but never reward them properly or give them leadership
positions, it’s still unequal.
Conclusion: Both approaches, according to MacKinnon, keep women stuck in roles made for
men's benefit.

The Problem with “Difference”

 MacKinnon believes that differences between men and women are not natural, but
are created by society to favour men.
 These differences are hierarchical – men are seen as more powerful and women as
less.
Example: Women being seen as emotional and men as rational. Society values rationality
more, so men are placed higher.

Comparison with Marxism

 MacKinnon compares feminism with Marxism:
 o In Marxism: workers are alienated from their work – the thing they create is
taken from them.
o In feminism (MacKinnon’s view): women’s sexuality is taken from them – it
becomes something that men define and control.
Example: When women are portrayed in media mainly for men’s pleasure, they lose control
over how their own sexuality is understood.

Law is Not Neutral

 The law claims to be neutral (fair to everyone), but MacKinnon says that’s not true.
 When the law is being most "objective", it actually reflects male values and male
ways of life.
Example: Laws that define rape around the idea of "consent" often don’t consider the
pressure, fear, or power imbalance women face. So, a woman might say "yes" out of fear, but
the law treats it as true consent.

Using Law as a Tool for Change

 Even though MacKinnon criticizes the law, she doesn’t reject it entirely.
 She believes law can be used to empower women and bring change.
Example: She worked to change laws around pornography and sexual abuse.
 She sees pornography as harmful to women – it often shows women being degraded
and treated like objects.
 She said that in the U.S. (1989), almost 50% of women had been raped or faced
attempted rape.
 She argues that in rape trials, "consent" is used to hide force – people say the woman
"chose" or "agreed," when in fact she was forced or pressured.

MacKinnon's View of Sexuality

 For MacKinnon, rape is the central example of how sexuality is about power.
 Force is present not just in rape, but in many gender relations.
Example: In relationships or workplaces, men may use power or status to get sex, which is
not truly voluntary for the woman.

Patriarchy: Definition and Critique

Carol Johnson’s definition:
Patriarchy is a system of male domination. It puts women in lower positions and works
differently in different societies and times. It also connects with other forms of oppression
like class, race, and sexuality.
 Hierarchical power system: It devalues women and feminine traits.
 Definitions of “human” often mean “man,” which excludes women.
 Definitions of “woman” are often narrow – they focus on white, rich, Western
women, ignoring the diversity of women’s lives.
Example: A feminist policy that only helps middle-class white women won’t help Black or
working-class women – this is called intersectionality.
 Post-Patriarchy: Feminist Hope
 Feminists argue that in a world after patriarchy, women will no longer be seen in
narrow or weak roles.
 Women will have real equality based on their actual experiences and not male-
created standards.

“The Personal is the Political”

 This was a key idea in second-wave feminism (1970s).
 It means that personal experiences (like marriage, abuse, housework) are not just
private matters – they are part of wider social and political systems.
Example: A woman’s unpaid housework isn't just a private issue – it supports the economy
and reflects gender inequality.

Feminist Legal Method: Consciousness-Raising

 MacKinnon and other feminists talk about a special method called “consciousness-
raising.”
 It means women share and reflect on their personal experiences together to
understand how society oppresses them.
Example: Women meeting in groups to talk about sexual harassment at work may realise it’s
a pattern, not just a few “bad men” – it’s a systemic issue

Activity 12.4

What is patriarchy? Give some examples of it in action from your country.

Activity 12.5

What is meant by ‘consciousness raising’?

No feedback provided.

Many criticised MacKinnon’s theory for presenting women as a group of passive victims, created
and positioned by men or the patriarchal structure. Indeed, both ethic of care/cultural feminism
and radical feminism came to be criticised as producing a common standard for all women to
live up to. In the same way that feminists had originally criticised the common standard women
had to achieve for being a male standard, now it was criticised as producing one feminist
standard for women. This is often described as ‘essentialising’ women and being a reductionist
position. These criticisms came particularly from black feminists and postmodern feminists.

Black feminist thought/critical race feminism

 Following developments in US scholarship in the realist tradition, critical legal realism and
critical race theory (see Chapters 13 and 16 of Freeman), feminist race scholars argued that
many feminists over-emphasised gender classification at the expense of other social factors,
particularly here, race. Certain feminists ignored, or seemed oblivious to, the diversity among
women and how that affects experiences of oppression. Kimberlé Crenshaw† coined the term
‘intersectionality’ to highlight the multiple forms of overlapping oppression experienced by non-
white women. Since the late 1980s, many have sought to integrate issues of race, ethnicity and
nationality into feminist theory. See, for example, hooks, b. ‘Theory as liberatory practice’
(1991) 4(1) Yale Journal of Law and Feminism 1 – available in the Online Library.

Black feminists stress the importance of asserting rights, of creating a sense of self-
determination through narrative storytelling of life experiences and taking ‘a subject position’.
The scholarship of black American law professor Patricia J. Williams† is a prominent example of
this type of work. Often when people are socially powerless, their freedom – starting with that
in their own heads and then the sharing of their views with others through the narrative
method – can in itself lead to a sense of empowerment.

Williams deliberately seeks to escape the traditional forms of clear, logical writing in the name
of being true to real experience. She uses reflections on personal experiences as the focus for
exposing general themes. As she explains in her writing:

…………………………………………………………………………………. I am interested in the way in which legal

language flattens and confines in absolutes the complexity of meaning inherent in any given
problem; I am trying to challenge the usual limits of commercial discourse by using an
intentionally double-voiced and relational, rather than a traditionally legal black-letter,
vocabulary. For example, I am a commercial lawyer as well as a teacher of contract and property
law. I am also black and female, a status that one of my former employers described as being ‘at
oxymoronic odds’ with that of a commercial lawyer... On the one hand, my writing has been
staked out as the exclusive property of constitutional law, contract, African-American history,
feminist jurisprudence, political science, and rhetoric. At the same time, my work has been
described as a ‘sophisticated frontal assault’ on laissez-faire’s most sacred sanctums, as ‘new-
age performance art’, and as ‘anecdotal individualism’. In other words, to speak as black,
female, and commercial lawyer has rendered me simultaneously universal, trendy, and
marginal.

Another perspective relates how the ‘feminine mystique’ uncovered by Betty Friedan in the
early 1960s of the disenchanted suburban American housewife – the confinement of women in
domestic circumstances in the modern family – overlooks the role of the racial ethnic ‘domestic
help’.
In Freeman, extract by Okin S.M. ‘Is multiculturism bad for women?’ (para. 14–015) there is a
discussion of potential conflicts between feminism and cultural pluralism. What if some
minority cultural value systems appear to Western feminists as detrimental to women? How
should a Western legal system respond, for example, to polygamy or female genital mutilation?

🟥 Criticisms of Catharine MacKinnon’s Radical Feminism

Many people have criticised Catharine MacKinnon’s radical feminist theory for making
women seem like helpless victims. According to MacKinnon, women are shaped and
controlled by a patriarchal (male-dominated) society. But critics say this makes it seem like
women have no power or ability to resist, which is too simplistic.
Two feminist approaches – radical feminism and cultural feminism (also called the ethic of
care approach) – were both criticised for trying to create one standard of what it means to
be a woman. Originally, feminists had complained that society expected women to live up to
a male standard. Now, these feminist theories were being criticised for expecting women to
fit into a single feminist standard. This problem is called "essentialising" – it assumes all
women are the same, which is not true in reality.
Example: A theory that says all women are naturally nurturing or oppressed in the same way
ignores the experiences of women who are not mothers, or who face different problems
because of race or class.

🟩 Black Feminist Thought and Critical Race Feminism

💡 Key Idea: Intersectionality – coined by Kimberlé Crenshaw
Black feminists and critical race feminists argue that gender is not the only source of
oppression. Race, class, sexuality, and other factors also matter. Feminist theories that only
focus on gender leave out the full picture of how women of colour experience the world.
Intersectionality means that different types of discrimination (like racism and sexism) overlap
and combine. A Black woman might be treated unfairly not just because she is a woman, and
not just because she is Black, but because she is both.

🟨 Examples of Black Feminist Legal Scholars

👩🏾‍⚖️Patricia J. Williams
Williams is a Black American law professor. She is known for using her personal life stories in
her legal writing. This approach is called the narrative method.
 She says legal writing is often cold and too focused on logic and rules. She wants to
show that real experiences are more complex and messy.
 Williams talks about being both a Black woman and a commercial lawyer, which
some people saw as a contradiction. But she argues this mix of identities gives her
unique insight into how the law works in real life.
Example: In her writing, she talks about how her employer once said that being a Black
woman didn’t "fit" with being a commercial lawyer – a comment that shows how racism and
sexism still shape people’s expectations in law.
📖 bell hooks (spelled with lowercase letters)
bell hooks (real name: Gloria Jean Watkins) wrote about how telling personal stories can be a
form of resistance. Sharing these stories helps oppressed people find their voice and feel
 empowered.
Example: A Black woman telling her story of being ignored or disrespected at work because
of her race and gender can help others understand the emotional and social reality of
discrimination – something statistics alone can't show.

🟦 The Problem with White Middle-Class Feminism

Some feminists, especially in earlier generations (like Betty Friedan in the 1960s), talked
about the suffering of middle-class housewives stuck at home. But they ignored the fact that
many women – especially women of colour – were working as domestic helpers in those
same homes.
Example: A white feminist may talk about feeling trapped in the home, but never think about
the Black or Latina woman cleaning that home for a living – who also has her own struggles.

🟫 Feminism and Multiculturalism – A Conflict?

In a famous piece called “Is Multiculturalism Bad for Women?”, feminist thinker Susan Moller
Okin looks at what happens when feminist values and cultural traditions clash.
Some cultural or religious practices might seem harmful to women – like polygamy (a man
having several wives) or female genital mutilation (FGM). Okin asks: What should Western
legal systems do when such practices are accepted in minority communities?
 Should we respect cultural traditions, even if they seem to oppress women?
 Or should we apply feminist human rights standards equally to everyone, even if that
means criticising or restricting some cultural values?
Example: In some cultures, girls are married off at a young age. Western feminists see this as
child abuse, but people in those cultures may see it as tradition. Feminists like Okin say we
must protect the girls, even if it means rejecting certain traditions.

🔵 Final Key Point: The Personal is Political

Both radical feminism and critical race feminism are based on the idea that personal
experiences matter and are political issues. This means everyday life – including sex, race,
work, family, and relationships – is not just private but shaped by power and law.
MacKinnon calls the feminist method “consciousness-raising” – where women come
together and talk about their real-life experiences to understand how society is built to
disadvantage them.

Activity 12.6

The following extract comes from the beginning of Williams, P.J. The alchemy of race and rights:
diary of a law professor (1992). Read it and then answer these questions:

a. What is ‘subject position’ and why does Williams appear to consider it fundamental in her
analysis of the law?
b. What difficulties can you see in following through the logic of ‘subject position’ or ‘standpoint
theory’?

Diary of a law professor

Since subject position is everything in my analysis of the law, you deserve to know that it’s a bad
morning. I am very depressed. It always takes a while to sort out what’s wrong, but it usually
starts with some kind of perfectly irrational thought such as: I hate being a lawyer. This
particular morning I’m sitting up in bed reading about redhibitory vices. A redhibitory vice is a
defect in merchandise which, if existing at the time of purchase, gives rise to a claim allowing
the buyer to return the thing and get back part or all of the purchase price. The case I’m reading
is an 1835 decision from Louisiana, involving the redhibitory vice of craziness.

The plaintiff alleged that he purchased of the defendant a slave named Kate, for which he paid
$500, and two or three days after it was discovered the slave was crazy, and ran away, and that
the vices were known to the defendant… It was contended [by the seller] that Kate was not
crazy but only stupid, and stupidity is not madness; but on the contrary, an apparent defect,
against which the defendant did not warrant…The code had declared that a sale may be avoided
on account of any vice or defect, which renders the thing either absolutely useless, or its use so
inconvenient and imperfect, that it must be supposed the buyer would not have purchased with
a knowledge of the vice. We are satisfied that the slave in question was wholly, and perhaps
worse than, useless.

As I said, this is the sort of morning when I hate being a lawyer, a teacher, and just about
everything else in my life. It’s all I can do to feed the cats. I let my hair stream wildly and the
eyes roll back in my head.

So you should know that this is one of those mornings when I refuse to compose myself
properly; you should know you are dealing with someone who is writing this in an old terry
bathrobe with little fringes of blue and white tassels dangling from the hem, trying to decide if
she is stupid or crazy.

Feedback: see end of guide.

Postmodernist feminism

Criticisms of ‘totalising’ and then ‘governance feminism’ are made by critical theorists and
postmodernists about any attempts to find a universal truth or standard of justice for women,
or for anyone or anything else. They argue that not only is such a search undesirable – for
example, it could be seen as neo-colonial or evidence of some sort of new imperialism – it is
also impossible to do. They argue that any so-called ‘quest’ for a universal feminist
jurisprudence is unattractive and even potentially dangerous. If ‘woman’ has a socially
constructed false consciousness with a real essence to be uncovered somewhere within her, this
‘essentialism’ fixes identities, excludes those women who have other experiences, and is
reductionist and potentially reactionary.

This postmodern development can in turn be critiqued for weakening feminist politics because
feminism as a political movement, with the aim of alleviating women’s oppression, depends on
some unified notion of what is right and just and of an oppressed group. This has led to
criticisms that the postmodern perspective poses problems for any radical political theory that
presents certain ways of life or existence as better than others. If each claim to truth is valid,
who is to say which is better? While much postmodern work does not disintegrate into nihilistic
relativism, some does. Janet Halley’s call to take a break from feminism describes ‘governance
feminism’ as institutionalising feminist ideas in law and formal power, which she sees in a
variety of areas.†( † Halley, J. Split decisions: how and why to take a break from feminism. (Princeton, NJ:
Princeton University Press, 2008) [ISBN 9780691136325].)

FLT and the future

FLT often aims to offer alternatives to make women’s lives fairer and better in the present, while
also proposing reforms for a better future. In most work, this involves setting out agendas for
change with positive effects for society in general. Sometimes, this can lead to tensions. If the
current position is patriarchal and oppressively structured to women’s disadvantage, will this
position be reinforced by providing more help or support?

The question is frequently raised whether FLT can really make any practical difference. As a
result of much of these theorists’ work, cultural shifts have taken place and laws have been
changed. The feminist judgments project, which is underway in a number of countries around
the world, has led to many reworkings of legal judgments. Rather than only critiquing existing
judgments, the participants have put ‘theory into practice’ by engaging in a practical, ‘real
world’ exercise of judgment-writing, subject to the same constraints that bind appellate judges.
In doing so, they have pioneered a new form of critical sociolegal scholarship, which seeks to
demonstrate in a sustained and disciplined way how judgments could have been written and
cases could have been decided differently. For further reading and development of your
analysis, feel free to explore these projects.

Within Anglo-American feminism, more recent work has argued for a return to progressive
political programmes – as feminism has traditionally pointed out injustices, the wrongness of
the violation or exploitation of women, and the need to make women’s lives better. This is
particularly important in regard to human rights, especially at an international level. Human
rights law rests on the notion that all individuals – regardless of where they live, their sex,
gender or race, etc. – are equally entitled to rights simply because they are human. It has been
argued that violations of men’s human rights better fit the model of human rights violations
that have been based on male experiences of what a violation is. The more feminised victims
become, therefore, the less likely it is that international human rights will be found to be
violated. But women need to be sure that their rights not to be violated are upheld – including
not being sold or deceived into slavery or being treated as sex objects; to have economic
security and a voice in public life; to have control over their own bodies. MacKinnon and others
have been active in the international arena and development of this body of law, including
international criminal justice and sexual violence in conflict. Viewed in this way, feminism is part
and parcel of human rights discourse; women are, and should be treated as, equal human
beings. c

It seems that the liberal emphasis on rights, freedom and equality is again being revisited by
many feminists. There is a recognition that there is still a need, now more than ever, for change,
transforming links between theory and practice, and at least some type of universal truth –
perhaps at the most mundane or common level, a global acceptance that treating women as
less human than men is wrong. This all presupposes a binary system of male and female, which
is increasingly being called into question in the 21st century. That important issue is beyond the
scope of this chapter.

Self-assessment questions

(Also remember to look at past exam questions and reports.)

Question 1 Discuss at least two contributions that you consider feminism has made to
jurisprudence.

Question 2 Is there such a subject as feminist jurisprudence, or is feminist jurisprudence merely

what feminist lawyers point out is illiberal in the law?

Question 3 ‘Traditional jurisprudence has been the thoughts of men reflected in a legal system
built by men for men; it is only the ideology of the masculine.’ Does this claim have any validity?

Question 4 In what ways, if any, does the law systematically discriminate against women?

Question 5 Are there general arguments to support the notion that a feminist legal theory is
possible?

Sample examination questions

Question 1 Critically evaluate the contribution to legal thought of any two feminist legal
scholars.

Question 2 ‘Feminist scholars reject dominant masculine assumptions and have succeeded in
removing them in law.’ Discuss

Advice on answering the questions

Question 1 You can choose whichever feminist legal scholars you wish, as long as they have
been the subject matter of this chapter and essential readings and are therefore covered by the
course.

In your introduction, which you must have, set out which two scholars you have chosen. You
should explain why you have chosen them: is it, for example, because you strongly agree or
disagree with them; is it because you are of the opinion they bring something important to the
debate, something stimulating and reflective? Also set out in your introduction the structure
your essay will take. An excellent answer will have themes. These could be: power, law’s
supposed neutrality, women’s freedom, and so forth, which may be used as headings in your
essay with description, analysis and evaluation – what you think of the theorist’s position and
why. All of this must be set out in your essay in response to the question. It is not advisable to
write in a list-like fashion, as this appears descriptive and report-like, as opposed to being a
proper essay written in good prose with evaluation and evidence. You should draw on other
legal theorists who may criticise the two you have chosen. This can be wider than within FLT
itself but, as ever, avoid overlap with other essays you choose in the examination paper.

Question 2 Some claim that feminist writings offer critiques of the truth of the existing state of
affairs but, if that is so, what guarantee of ‘truth’ can they offer? For example, in MacKinnon’s
work, she defines our present situation and modes of thought as inescapably imbued with
masculine domination. If that is the case, how can her analysis escape the grip of this
domination and actually create unbiased or true new ideals? Drucilla Cornell (Cornell, D. Beyond
accommodation: ethical feminism, deconstruction, and the law. (New York: Routledge, 1991)
[ISBN 9780415901062]) identifies this as the problem of false consciousness in the writing of
MacKinnon:

………………. For MacKinnon, what women desire now under patriarchy is by definition false
consciousness. So we think that we want love and intimacy? For MacKinnon, we only think that
way because that’s how they want and need us to think so that we will continue to be available
to them. Women’s expressed desire is only an ideology... Because we think we want love and
intimacy, we put up with ‘them’ in a way we would not otherwise. ...no matter what I or any
other woman says or writes about the legitimacy, and indeed value, of love, we do so only to
the degree that we are deluded and, in spite of ourselves, complicit in our degradation. (p.133).
In this there is no way out, there is no level of the ‘other’ other than desires, thoughts, modes
of intellectual development which ‘they’ (i.e. the structures of masculinity), have allowed.
Women are wrapped in the desire/power of men, their reality ‘silence’; therefore, how can
women, and MacKinnon, break from that silence? What about ‘consciousness raising’? What
will that reveal?

Moreover, in the process of pointing out the partiality of modern social theories and legal
perspectives, feminists have frequently employed generalising categories like ‘masculinity’ and
‘femininity’ in problematic ways. While demanding a situational critique of previous theory,
feminists often talk as if their own theory could escape such a self-critique.

A reductionism in locating ‘the cause’ of women’s oppression, such as production, sexuality,

child rearing or language, is sometimes apparent. Susan Brownmiller and Andrea Dworkin, for
example, locate the biological roots of patriarchy in man’s capacity to rape. Thus male power is
ultimately reduced to coercion, but this reduction is at the expense of acknowledging complex
cultural elements which require more diverse forms of analysis. While rejecting universalist
forms, the critique often becomes itself universalist.