Legal Feminism and Foucault – A Critique of the Expulsion of Law

Published date01 December 2001
AuthorVanessa E. Munro
Date01 December 2001
ISSN: 0263-323X, pp. 546–67
Legal Feminism and Foucault – A Critique of the Expulsion
of Law
Vanessa E. Munro*
Contemporary theorists have become increasingly receptive to the
selective incorporation of Foucaultian theory within feminist
frameworks. However, the reception of Foucault within feminist legal
critique has been less enthusiastic. The most celebrated theorist to
argue for the incorporation of Foucaultian insight within the feminist
analysis of law is Carol Smart. While conceding the significant
contribution of her work, this article will argue that her interpretation
of the Foucaultian thesis on law is considerably more problematic.
Illustrating the extent to which she adopts an unnecessarily pessimistic
prognosis for the development of Foucault within legal analysis and
reform, this article will examine an emerging counter-interpretation of
Foucault that presents the possibility for a more promising application,
seeking to provide a defence both of the utility of Foucault for feminist
jurisprudence, and of the utility of legal reform strategies being
exercised for feminist purposes.
In her influential work, Feminism and the Power of Law,
Carol Smart
makes a pioneering attempt to apply a growing contemporary feminist
interest in the theory of Michel Foucault
to the field of legal study.
Foucault’s post-structuralist theory posits the emergence of peculiarly
modern forms of power that operate via mechanisms of normalization rather
than authority and command. These modern forms of ‘disciplinary power’
exist in a variety of social locations outwith the confines of the state and
between a variety of social agents without sovereign status over one another.
In so doing, they exist as distinct from the juridical frameworks,
ßBlackwell Publishers Ltd 2001, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
* Lecturer, Department of Law, University of Reading, PO Box 217, Reading
RG6 6AH, England
1 C. Smart, Feminism and the Power of Law (1989).
2 M. Foucault, The Archaeology of Knowledge (1972), tr. A. Sheridan; M. Foucault,
The History of Sexuality, Vol. I (1976); M. Foucault, Power/Knowledge Selected
Interviews and Other Writings 1972–77 (1980) tr. C. Gordon (1980).
assumptions, and discourses that have tended to embody social perceptions
of power to date.
While the merits of a selective incorporation of Foucaultian theory within
feminist frameworks have been well documented in a variety of areas of
sociological and philosophical critique,
such incorporation within feminist
legal critique has been less enthusiastic. Commentators have expressed
concern regarding the ability of the Foucaultian thesis on fluid and dispersed
power relations to accommodate the more specific dimensions of legal
analysis. In particular, many theorists have expressed concerns regarding the
extent to which Foucaultian theory considers law a manifestation of the
increasingly out-dated juridical model.
Adopting an interpretation of
Foucault that posits his position on law to be at best agnostic and at worst
dismissive, various theorists, feminist and otherwise, have encountered an
uncomfortable dilemma in seeking to apply a Foucaultian critique to legal
process and legal reform.
Without dismissing the substantial body of work on the relationship
between feminism, Foucault, and the law which has emerged since its
publication in 1989, it is clear that Feminism and the Power of Law has
largely set the tone and the parameters of this ensuing discussion. Indeed,
edited collections almost a decade later continue to cite Carol Smart as the
main expositor of the postmodern/post-structuralist feminist position on
Likewise, while it may also be true that Carol Smart’s own work has
progressed beyond the opinions expressed therein,
the enduring influence
which those opinions have had upon the development of feminist
Foucaultian legal theory can barely be disputed.
Despite having generated a variety of useful arguments regarding the
strong interdependence between law and medicine, and regarding the
constructive aspects of social power, Smart’s Foucaultian thesis betrays
significant self-doubt regarding the application of Foucault to law. While
Smart provides an interesting account of the possibilities of a Foucaultian
feminism, her tendency to interpret Foucault’s approach to law as involving
an expulsion of legal power, leads her into an unnecessary debate with
Foucault and an unnecessary thesis regarding the pursuit of reform through
3 S. Lukes (ed.), Power (1986).
4 L. McNay, Foucault and Feminism (1992); S. Hekman (ed.), Feminist Interpretations
of Foucault (1996).
5 A. Hunt and G. Wickham, Foucault and Law Towards a Sociology of Law as
Governance (1994).
6 N. Harstock, ‘Foucault on Power – A Theory for Women’ in Feminism/
Postmodernism, ed. L. Nicholson (1990).
7 See, for example, J. Bridgeman and S. Millns, Feminist Perspectives on Law – Law’s
Engagement with the Female Body (1998).
8 Certainly her more recent work Family Fragments? (1999) appears to encourage a
generally more sympathetic approach to the legitimacy of legal reform than that
developed in Feminism and the Power of Law.
ßBlackwell Publishers Ltd 2001

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