Reassessing the Feminist Theoretical Project in Law
| Published date | 01 September 2000 |
| Date | 01 September 2000 |
| Author | Joanne Conaghan |
| DOI | http://doi.org/10.1111/1467-6478.00159 |
JOURNAL OF LAW AND SOCIETY
VOLUME 27, NUMBER 3, SEPTEMBER 2000
ISSN: 0263-323X, pp. 351–85
Reassessing the Feminist Theoretical Project
1
in Law
Joanne Conaghan*
This article seeks to address the current state of theoretical debate
within feminist legal studies in the United Kingdom and beyond. It is
part map, part critique of dominant theoretical trends – an attempt to
identify and explore a range of questions about feminist scholarly
engagement in law, including the relationship between academic
feminism and political activism, the distinction (if any) between
`feminist’ analyses and broader engagements with law and gender, and
the normative underpinnings of feminist legal scholarship. The author
makes no pretence to neutrality on these issues, questioning the per-
ceived `drift’ between political and academic feminism, and arguing
strongly for the recognition and realization of feminism’s normative
and transformative aspirations. Similarly, she challenges the
emergence of an `anti-essentialist’ norm in feminist discourse, and
reaffirms the value of `women-centred’ feminist approaches. Finally,
this article is also a personal venture, a `stock-taking’ exercise which
seeks to interrogate the author’s own understanding of what feminist
legal work entails.
351
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1 ‘A project is a continuous, goal-oriented practical activity based on an analysis of
some kind . . . but the goals and the analysis are not necessarily internally coherent or
consistent over time’, D. Kennedy, Critique of Adjudication (1997) 6.
*Kent Law School, University of Kent, Canterbury CT2 7NS, Kent, England
Earlier versions of this paper were presented at the Feminism and Law Workshop,
University of Toronto, September 1999, the Gender and Law Seminar programme,
University of Bristol, November 1999, the Feminist Legal Studies Seminar Programme,
Kent Law School, January 1999, and the SLSA Annual Conference, Queens University
Belfast, April 2000. My thanks to all those who have encouraged me in this project (there
have been many), but particularly Anne Bottomley, Clare McGlynn, Sue Millns, Erika
Rackley, and Pierre Schlag.
INTRODUCTION
Over the last twenty years feminist perspectives on law have increasingly
gained ground within the legal academy. What was initially received with
scepticism as a ‘political’ rather than ‘academic’ engagement with law has
become, by the start of the new millennium, a significant body of legal
scholarship, competing with other jurisprudential theories for ‘airtime’ in
distinguished journals and texts. Currently, in the United Kingdom, feminist
legal scholarship addresses a wide and continually expanding area of law,
with feminists legal academics engaging not only with mainstream
‘exemption’ subjects such as tort or property law,
2
but also with burgeoning
new fields such as health-care law.
3
Indeed, few areas of law, no matter how
musty or arcane, have remained immune from the feminist legal challenge.
4
The growing acceptability of feminism within legal scholarship is
expressive of a broader intellectual incursion by feminist theorists on the
academy: even in the most ‘masculine’ of disciplines such as economics
5
and across the sciences,
6
a feminist presence is now unmistakable. Yet, as
feminism has gained academic legitimacy, it appears to have lost some of its
352
2 See, in particular, A. Bottomley (ed.), Feminist Perspectives on Foundational
Subjects of Law (1996). There is now a vast array of published work by feminist legal
scholars in the United Kingdom, including a number of collections/anthologies, For
example, A. Bottomley and J. Conaghan (eds.), Feminist Theory and Legal Strategy
(1993); H. Barnett, Sourcebook on Feminist Jurisprudence (1997); J. Bridgeman and
S. Millns, Feminist Perspectives on Law: Law’s Engagement with the Female Body
(1998). Prominent overseas collections include R. Graycar and J. Morgan, The
Hidden Gender of Law (1990); M. Fineman and N. Thomadsen (eds.), At the
Boundaries of Law: Feminism and Legal Theory (1991); K.T. Bartlett and R.
Kennedy, Feminist Legal Theory: Readings in Law and Gender (1991); and F. Olsen
(ed.), Feminist Legal Theory I: Foundations and Outlooks;Feminist Legal Theory II:
Positioning Feminist Theory Within Law (1995). A number of academic journals now
specialize in feminist legal issues, for example, Australian Feminist Law Journal,
Canadian Journal of Women and Law,Feminist Legal Studies,Harvard Women’s
Law Journal and Yale Journal of Law and Feminism. The sheer volume of material is
strongly demonstrative of the ‘established’ status of feminism as a legitimate mode of
scholastic enquiry in law, as is its inclusion in the jurisprudential ‘canon’: see M.D.A.
Freeman, Lloyds Introduction to Jurisprudence (1994, 6
th
edn.) ch. 13.
3
For example, J. McHale and M. Fox, Health Care Law: Text and Materials (1996); S.
Sheldon and M. Thompson (eds.), Feminist Perspectives on Health-Care Law (1998).
4 For example, M. Condon, ‘Limited by Law? Gender, Corporate Law and the Family
Firm’ in Law as a Gendering Practice, eds. D. Chunn and D. Lacombe (2000) 181
(on corporate law); J. Grbich, ‘Taxation Narratives of Economic Gain: Reading
Bodies Trangressively’ (1997) 5 Feminist Legal Studies 131 (on tax law).
5 M. Ferber and L. Nelson (eds.), Beyond Economic Man: Feminist Theory and
Economics (1993); E. Kuiper and J. Sap (eds.), Out of the Margins: Feminist
Perspectives on Economics (1999).
6 S. Harding, The Science Question in Feminism (1986); Whose Science? Whose
Knowledge?: Thinking From Women’s Lives (1991); E. Fox Keller, Reflections on
Gender and Science (1985); H. Longino, Science as Social Knowledge: Values and
Objectivity in Scientific Enquiry (1990).
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political ground. Few women (or men) today would identify themselves as
‘feminist’ although most would subscribe to the view that sexual equality is a
desirable social goal.
7
There are many cultural and political reasons for this
frequent rejection of feminism as a political label. In the popular imagin-
ation, feminism is too often associated with ideas and images which derive
from negative and prejudicial stereotypes while, as a political movement,
feminism is regarded by many as having run its course. Because few people
today seriously challenge the legitimacy of women’s aspirations to equality,
it is mistakenly assumed that such aspirations have, in fact, been realized.
8
Natasha Walter, identifying this ‘reality gap’ between women’s perceived
and actual material position, blames feminists for contributing to the mis-
perception by taking the ‘the personal is political’ slogan too far and
immersing feminism in debates about lifestyle choices rather than concrete
disadvantage.
9
At a more theoretical level, Nancy Fraser has expressed
concern about the growing divergence of feminism from social theory,
manifest, she alleges, in the preoccupation of some feminists with ‘cultural’
over ‘material’ considerations.
10
The gist of such criticisms is that feminism
353
7 Survey evidence on women’s attitudes to feminism reveals that while many women
continue to feel ‘positive’ about feminism, they are much less likely to identify
themselves as ‘feminist’, N. Walter, The New Feminism (1998) 32–52.
8 See, here, R. Coward, Sacred Cows: Is Feminism Relevant to the New Millennium?
(1999) who concludes that feminism is ‘an outmoded ideology increasingly unable to
make sense of a very different society’ (p. 210). The idea that feminist goals have
been achieved and are, therefore, no longer relevant to women is often captured in
the media and popular discourse by the term ‘postfeminism’. Originally coined by an
American journalist in the early 1980s, it was brought to prominence by Susan
Faludi who identified it as part of an anti-feminist Backlash (1992). In academic
discourse, ‘postfeminism’ has a more specialized meaning, signifying, among other
things, a theoretical shift in focus away from a concern with ‘women’ towards a
preoccupation with gender/difference. In this latter sense, much of what is offered as
feminist theory today may be characterized as postfeminist. For a theoretical
exploration of postfeminism, see A. Brooks, Postfeminisms: Feminism, Cultural
Theory and Cultural Forms (1997). The implications for feminist legal studies of this
shift in theoretical focus are, in part, the subject of this article.
9 Walter, op. cit.,n.7,p.4.
10 Fraser’s critique of feminism is closely bound up with her characterization and
exploration of the ‘postsocialist’ condition, a fundamental feature of which she
identifies as the ‘decoupling of cultural politics from social politics, and the relative
eclipse of the latter by the former’ – N. Fraser, Justice Interruptus: Critical
Reflections on the ‘Postsocialist’ Condition (1997) 2. This, she argues, has shifted
intellectual and political attention away from concerns with material inequality and
issues of redistribution towards ‘claims for recognition of group difference’ (id.). Her
analysis has met with criticism, for example, from Judith Butler, ‘Merely Cultural’
(1998) 227 New Left Rev. 33–44, and there is little doubt that Fraser’s theoretical
contentions have touched a sensitive nerve in the feminist academy. Yet, Walter,
representing a more widely disseminated popular feminism, strongly echoes Fraser’s
criticisms, calling for a ‘new feminism’ which is ‘above all . . . materialist’ (Walter,
op. cit., n. 7, p. 6). Similarly, Lynne Segal (Why Feminism? (1999)) criticizes ‘the
cos[y] therapeutic version of feminism’ which has entered mainstream culture but
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