Symposium: Feminist Legal Theory

Journal of Gender, Social Policy & the Law Volume 13 | Issue 1 Article 3 2005 Symposium: Feminist Legal Theory Martha Albertson Fineman Follow this and additional works at: http://digitalcommons.wcl.american.edu/jgspl Part of the Civil Rights and Discrimination Commons, Jurisprudence Commons, and the Women Commons Recommended Citation Fineman, Martha Albertson. " Feminist Legal Theory." American University Journal of Gender, Social Policy & the Law. 13, no. 1 (2005): 13-23. This Symposium is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Journal of Gender, Social Policy & the Law by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact . Fineman: Symposium: Feminist Legal Theory FEMINIST LEGAL THEORY MARTHA ALBERTSON FINEMAN∗ Introduction .......................................................................................... 13 I. Feminisms and Feminists.................................................................. 14 II. Deconstructing the Public/Private – Engagement with Law and Economics ................................................................................. 20 INTRODUCTION Twenty years ago the first Feminism and Legal Theory (“FLT”) workshop was held at the University of Wisconsin Law School. Begun initially as a summer program, the FLT Project provided a supportive forum for a variety of scholars from different disciplines who were interested in gender and law. Papers from the early sessions of the FLT workshops became a part of the very first feminist legal theory anthology, At the Boundaries of Law: Feminism and Legal Theory.1 In the intervening years a lot has transpired. The FLT Project continues to hold summer sessions, along with workshops and “uncomfortable conversations” each semester. We have moved well beyond, while not totally abandoning, the earlier preoccupation with issues of primary concern to women, such as domestic violence and reproductive freedom. Today, the FLT Project is as invested in its “Corporations and Capitalism” working group as it is in working with scholars who are engaging in path-breaking work on care and dependency. Of course, when we speak of feminism, it is necessary to clearly state that there are many differences within feminism – difference in approach, emphasis, and objectives – that make sweeping generalizations difficult. Recognizing that there are many divergences in feminist theory, it is nonetheless possible to make some generalizations. Feminism is not anchored in any one ∗ Robert W. Woodruff Professor of Law, Director of Feminism & Legal Theory Project, Emory University School of Law. 1. AT THE BOUNDARIES OF LAW: FEMINISM AND LEGAL THEORY (Martha Albertson Fineman & Nancy Sweet Thomadsen eds., 1991) [hereinafter BOUNDARIES]. 13 Published by Digital Commons @ American University Washington College of Law, 2005 1 Journal of Gender, Social Policy & the Law, Vol. 13, Iss. 1 [2005], Art. 3 14 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 13:1 discipline. It presents a theory of gender and challenges the assertions and assumptions of gender-neutrality and objectivity in received disciplinary knowledge. Often credited with inserting the “woman question” into disciplinary dialogue, feminism has broadened and complicated the traditional framework of a variety of disciplines.2 Because gender is theoretically relevant to almost all human endeavors, it is also relevant to almost all disciplines.3 I. FEMINISMS AND FEMINISTS Because feminism as a discipline focuses on the significance of gender and the societal inequality resulting from values and assumptions based on gender, feminist scholars are found in all disciplines. As a group, feminists are concerned with the implications of historic and contemporary exploitation of women within society, seeking the empowerment of women and the transformation of institutions dominated by men. In addition, many feminists also use distinctive feminist methods to bring women’s experiences to the foreground, such as consciousness raising or storytelling.4 Such methods recognize the validity and importance of women’s experiences and ground feminist theory and research. One important characteristic of feminism is that it represents the integration of practice and theory. As noted by historian Linda Gordon, feminism is “an analysis of women’s subordination for the purpose of figuring out how to change it.”5 The recognized desirability of this practical aspect has made many feminists gravitate toward law and legal reform as objects of study and action. They have had many successes within law. In fact, it is fair to state that feminism, along with economics and, to some extent, psychology, has had a visible and immediate impact on law over the past several decades. The effect is apparent not only in the academic and in legal 2. See, e.g., KEITH E. MELDER, BEGINNINGS OF SISTERHOOD: THE AMERICAN WOMAN’S RIGHTS MOVEMENT, 1800-1850, at 95-96 (1977) (discussing the emergence of the “woman question” within the abolitionist movement, while raising questions about the nature and function of gender). 3. See BOUNDARIES, supra note 1, at xv (“Disagreements [within the feminist community] aside, however, it seems clear to me that feminist legal theory has lessons for all of society, not just for women or legal scholars. Ultimately, it is the members of our audience that will judge the effectiveness of our individual and collective voices.”). 4. See MARTHA CHAMALLAS, INTRODUCTION TO FEMINIST LEGAL THEORY 10 (1999) (noting that feminist legal theorists frequently use narratives of battered women in researching domestic violence). 5. Linda Gordon, The Struggle for Reproductive Freedom: Three Stages of Feminism, in CAPITALIST PATRIARCHY AND THE CASE FOR SOCIALIST FEMINISM 107 n.1 (Zillah R. Eisenstein ed., 1979). http://digitalcommons.wcl.american.edu/jgspl/vol13/iss1/3 2 Fineman: Symposium: Feminist Legal Theory 2005] FEMINIST LEGAL THEORY 15 scholarship, but in the doctrine employed by courts and developed by legislative bodies.6 The very institutions of law have been assessed and, occasionally, revised in the light of feminist insights and arguments. The fact that feminism has had an impact is not surprising given the huge influx of women into law schools beginning in the 1970s.7 While there were women in law schools prior to this period, their numbers have increased significantly during this time. Further, women have been integrated into the profession at all levels.8 In the first wave of women to attend law school, many were explicitly interested in a feminist political agenda. They came to law schools with the mantra that “the personal is the political” ringing resolutely in their ears.9 They were interested in reform and the role th (...truncated)