short essay on feminist jurisprudence

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Feminist Philosophy of Law

Feminist philosophy of law identifies the pervasive influence of patriarchy and masculinist norms on legal structures and demonstrates their effects on the material conditions of women and girls and those who may not conform to cisgender norms. It also considers problems at the intersection of sexuality and law and develops reforms to correct gender injustice, exploitation, or restriction. To these ends, feminist philosophy of law applies insights from feminist epistemology, relational metaphysics and progressive social ontology, feminist political theory, and other developments in feminist philosophy to understand how legal institutions enforce dominant gendered and masculinist norms. Contemporary feminist philosophy of law also draws from diverse scholarly perspectives such as international human rights theory, postcolonial theory, critical legal studies, critical race theory, queer theory, and disability studies.

Addressing the goals of feminist philosophy of law requires theory development, conceptual analysis, and conceptual revision. Promoting freedom and equality for women reflects a profound shift in basic assumptions about the nature of women and their proper place in the world: a shift from inequality to equality of the sexes, along with re-examination of what equality itself requires. It also requires re-examination of the understanding of sex, gender, and gender roles. Given the scope and detail of this change, feminist legal theory proceeds on multiple levels, from the pragmatic, concrete, and particular to the conceptual and ultimately visionary. Some of this writing appears in philosophy journals and monographs, but much also appears in journals in gender studies and feminism, generalist law reviews, and the many specialist law journals devoted to issues of gender and justice. This article begins with a brief overview of fundamental themes of feminist legal theory, followed by discussion of the evolution of views about needed institutional changes in several substantive areas of law: political equality, immigration, and citizenship; marriage, reproductive rights, and commodification of the body; protection from violence; and economic rights.

1.1 The Rule of Law

1.2 equality and difference, 1.3 reasonableness in law, 1.4 public and private, 1.5 human rights, 1.6 multiple methodologies, 2. formal equality and equal citizenship, 3. marriage, reproductive rights, and commodification of the body, 4. violence against women, 5. equality in social and economic life, 6. conclusion, other internet resources, related entries, 1. fundamental themes in feminist legal philosophy.

In philosophy of law, as in feminist theory more generally, methods, presumptions, and approaches vary considerably. Radical, socialist and Marxist, postcolonial, transnational, relational, cultural, postmodern, dominance, difference, pragmatist, liberal, and neoliberal approaches to feminism are all represented in and provide differing contributions to feminist legal philosophy. Moreover, feminist legal theory has developed over time, with concerns such as equality, liberty, dominance and difference, and diversity and globalization prevailing at different points (Chamallas 2003).

Despite all these differences of focus, emphasis, or approach, certain themes are common. Normative assumptions include the equal moral worth of all human beings (and perhaps of some non-human animals as well) and the entitlement of beings of such moral worth to equal treatment under the law, however this might be understood. Feminist philosophers of law also share certain basic criticisms of traditional views of the nature of law and legal reasoning, of patriarchal assumptions as reflected in law, and of the problems that women have in securing equal justice under law (Smith, 1993, ch. 6). They are attuned to the ways that power in society is shaped by the shortcomings of various legal systems as well as to the complexities of improving these systems, including how to decide the meaning of equal treatment under law and how it might be achieved. For example, feminist philosophers of law may disagree about the extent to which law should attempt to prevent dominance within intimate relationships and is complicit in oppression if it does not. Neoliberal views emphasize liberty and consent; criticisms of neoliberalism include the practical difficulties of choice under circumstances of patriarchy or economic constraints. To take another example, difference feminists and liberal feminists struggle with the meaning of equality under law and whether achieving equality might in some circumstances require different treatment.

Many standard accounts of the nature of law hold that law presumes and reflects a world-view in which the goal is to achieve a set of presumptively coherent and stable propositions. Whether this aim is understood as “the rule of law” (see, e.g., the entry on Friedrich Hayek ), as the “internal morality of law” (see, e.g., the discussion of Fuller in the entry on natural law theories ), or as “the soundest theory of the settled law” (see, e.g., the discussion of Dworkin in the entry on interpretation and coherence in legal reasoning ), or in other similar terms, legal systems embody comprehensive and generally long-standing conceptual systems. The coherence of any particular legal system can always be challenged, but on this approach an aspiration of any legal system is coherence. And (at a minimum) the appearance or illusion of coherence is maintained by requirements of consistency, including following precedent, treating like cases alike, and maintaining judicial impartiality.

Feminist critics point out that conceptualizing the rule of law in terms of coherence and consistency tends to reinforce and legitimate the status quo and existing power relationships (Scales 2006; MacKinnon 1989). Indeed, one primary purpose of law as traditionally understood is to promote stability and order by reinforcing adherence to predominant norms, representing them not only as the official values of a society, but even as universal, natural, and inevitable. Law is thus seen as setting the official standard of evaluation for what is normal and accepted—what is required, prohibited, protected, enabled, or permitted. It is accordingly represented as objective—for example, as compelled by precedent and not just a matter of opinion (see, e.g., MacKinnon 2006, 1989; Smith 2005, 1993; Rhode 1997; Minow 1991). Violations, wrongs, injustices, harms, or infractions are by definition deviations from law, and typically also deviations from the status quo. The status quo is the invisible default standard of law. From these observations, feminist philosophers of law have concluded that law makes systemic bias (as opposed to personal biases of particular individuals) invisible, normal, entrenched, and thus difficult to identify and to oppose (Minow 1991; Rhode 1989; MacKinnon 1989). Such systemic bias may be accepted not only by actors within the legal system such as judges but also by its victims as well as its beneficiaries. Primary tasks of feminist philosophy of law are to identify such bias wherever it occurs within the legal system, through methodologies such as genealogical analysis, conceptual analysis, or normative critique (e.g., Bartlett 1990; MacKinnon 1989).

Feminist philosophers of law judge the status quo thus enforced as patriarchal, reflecting ancient and almost universal presumptions of gender inequality. This is not a conceptual necessity; law need not be patriarchal. Law does, however, reflect power relationships within societies. Throughout history, and in virtually every society, men and women have been viewed not only as different, but also as unequal in status and in power. Women were typically cast as opposites to men within an overarching set of dichotomies: men considered rational, aggressive, competitive, political, dominating leaders; and women seen as emotional, passive, nurturing, domestic, subordinate followers. Versions of this set of assumptions have been widely and pervasively incorporated in long-standing institutions from politics and economic arrangements to educational and religious institutions, to aesthetic standards and personal relations—and law is no exception (MacKinnon 2006, 1989; Smith 2005, 1993; Olsen 1983).

A central task of feminist philosophy of law is articulating what equality requires against this background of patriarchy; however, feminists take differing approaches to this problem. For liberal feminists, a primary task is achieving the principle of procedural equality articulated by Aristotle that like cases should be treated alike and different cases differently in proportion to their differences. For other feminists, this focus on procedural justice raises the question of whether there are differences between men and women that the law may justifiably take into account. For many centuries men and women have been viewed as significantly different, and since they are different it has been thought appropriate and justified to treat them differently in law. Indeed, one of the reasons for the entrenchment of sexual inequality is precisely the observation that some differences between men and women are real: only women can become pregnant and bear children. Historically, feminists contend in a variety of ways, such differences were greatly exaggerated, as was their significance and the extent to which they could be attributed to biology rather than being socially constructed.

For feminist philosophers of law, an ongoing set of issues has concerned which differences, if any, law may take into account consistently with equal treatment. There are biological differences, such as pregnancy and birth. There are statistical differences: men are taller and stronger; women have longer life expectancies. There are historical differences: women but not men have been systematically subordinated because of their sex—unable to vote, to own property, or to enter into legal contracts. Women are much more at risk to be raped. Women are much more likely to be responsible for caregiving in the family. Women are likely to earn less for the same work, and likely to be segregated in jobs that pay less than work that is male dominated. The feminist challenge is whether and how to acknowledge certain differences without entrenching stereotypes, reinforcing detrimental customs, promoting sexist socialization, or incurring backlash (Rhode 1997; Minow 1991)—and without compromising equality.

This challenge identifies “dilemmas of difference” (Minow 1991), which occur when a decision is based on unstated norms that presume the status quo as universal and inevitable when in fact these norms reflect a particular point of view. The structure of a difference dilemma is this: there is a difference, such as that only women become pregnant or that an employer has a history of refusing to promote women. Taking this difference into account seems required for equal treatment: otherwise, women will face disadvantages that men will not. But taking this difference into account also seems to instantiate unequal treatment, giving women special benefits (time off work, fast-track promotions) men do not have. So it seems there is no way to achieve equality in the face of differences such as these.

Countering a difference dilemma requires undermining the way the issue was initially formulated (more accurately, mal-formulated). Feminist critics of the view that pregnancy leave is a special benefit, for example, point out that the only way these benefits can be judged special is if the norm against which they are being evaluated is male. If the standard was female, or even human, such benefits could not be considered special (or even unusual) since they are far more commonly needed than, say, benefits for a broken leg, or prostate cancer (neither of which are considered special benefits). The underlying male standard is invisible because it is traditional for most workplaces, and pregnancy leave would require a change to these norms; but in the view of feminist critics, this underlying standard needs to be exposed as male because in fact it is not equal. (Rhode 1997; Minow 1991) Once male norms are recognized as only that—male norms—the presumption of difference must be corrected. If the need for correction is taken seriously, then legal recognition of difference cannot by itself imply unequal treatment. An assertion of difference is a factual assessment. Equality is a political (or moral) standard. One does not automatically follow from the other. Thus formulation of the debate in terms of sameness or difference must be transcended by understanding equality. (Smith 2005; Rhode 1997; Minow 1991).

Legal standards of reasonableness are another area where feminist philosophers of law strive to reveal male norms. In areas of the law from criminal law (would a reasonable person believe that the threat of harm was sufficient to require the use of force in self-defense?) to tort law (did the defendant exercise reasonable care?) to contract law (what are reasonable commercial standards of fair dealing?) to employment discrimination (was she reasonably offended by the conduct of others at work?), reasonableness standards play a major role in law. Traditionally, the standard was that of the average reasonable man, a formulation that overtly indicated its gendered nature. Today, the standard is more likely to be formulated as that of a reasonable person, but feminists continue to demonstrate how this standard reflects male norms. A particular area of current controversy is interactions with the police, where feminists join with many others such as the Black Lives Matter movement or disability rights groups to reveal the biases in what is judged reasonable for police to do and what responses to police conduct are thought to be reasonable (Cuevas and Jacobi 2016). Feminists have also proposed the standard of an average reasonable woman, which achieved one success in court, Ellison v. Brady , 924 F.2d 872 (9 th Cir. 1991). However, the presence of a separate legal standard may be criticized as unfair or as fragmenting the law into a variety of subjective perspectives—although this conclusion is also subject to critique as an illustration of the difference dilemma. More recent feminist attention has been directed towards de-legitimating masculinist perspectives of reasonableness and achieving equality in the understanding of reasonableness (Chamallas 2010). Areas of law such as tort (Chamallas and Wriggins 2010) and contract (Threedy 2010) have been reassessed as reflecting bias in their structure, the types of claims they recognize, their understanding of injury, and the compensation they provide. To summarize, a persistent theme in feminist philosophy of law is uncovering how masculinist, ableist, or white norms are reflected in law.

Another central theme in feminist philosophy of law is the viability of the public/private distinction. For liberals, including liberal feminists, there remains a domain of private life that should be reserved for individual choice. Radical feminists raise the concerns that patriarchy and sexual dominance pervade private relationships and there are no clear lines to be drawn between actions that primarily affect the individual and actions that affect others more broadly. Legal structures that permit or reinforce dominance within intimate relationships are thus deeply problematic and must be overturned. One area where this debate has taken shape among feminists is the law of prostitution (see the discussion in the entry on feminist perspectives on sex markets ); some liberals claim that when prostitution is fully voluntary, it should be legally permitted, and the role of law is to prohibit coercive forms of the practice. Other feminists argue that legalized prostitution simply allows sex trafficking to flourish in its shadow (Dempsey 2010) or more comprehensively that paid sex can never be fully voluntary (Miriam 2005). Other continuing areas of theoretical exploration among feminists are the weight and scope to be given to any distinction between the public and the private in reproduction, family structures, work arrangements, sexual relationships, domestic violence, and the like; these issues are discussed further in later sections of this essay.

Human rights theory is another central area of concern for feminist philosophers of law. By the end of the 20 th century many societies had officially rejected sexual inequality in law, at least as a matter of basic human rights. Human rights are now said to apply equally to women and equal protection of the law is seen as applying equally to men and women (United Nations Convention on the Elimination of All Forms of Discrimination Against Women [CEDAW] 1979). Feminists hail these developments but remain concerned that in many societies commitments to human rights are shallow and laws reflecting patriarchal environments and cultures continue to thrive and flourish.

In addition, some feminists are directly critical of the role of rights. Feminists associated with the critical legal studies movement, for example, see rights as potentially masking underlying relationships of power and domination (Scales 1986). Other feminists, such as those associated with critical race theory, voice concerns that dominance feminists assume an essentialism that silences the voices of African-American women (Harris 1990) and that rights may provide crucial protection to victims of discrimination and oppression (Williams 1992). Similar debates concern rights in international law with liberal feminists defending the gains achieved through the international recognition of human rights and critical theorists joining with some third world feminists to decry the structural bias of international law and the role of rights in continuing to mask oppression (Engle 2005; Otto 2005).

Methodologically, feminist philosophy of law draws a great deal from feminist work in other areas of philosophy and has broken new ground as well. Feminist epistemological accounts of epistemic injustice and the social nature of knowledge are especially salient to many questions about and within law (McKinnon 2016). Trials, after all, depend on testimony. Fricker (2007) considers both testimonial injustice and hermeneutical injustice. Testimonial injustice occurs when people are discounted as credible because of stereotypes such as those rooted in sex or race; it may also occur when people are assessed as overly credible for similar reasons, likely to the detriment of the credibility accorded others (Medina 2013). For example, a woman’s testimony may be discounted in allegations of rape in the face of her assailant’s claim of consent. To take another example, claims of asylum seekers about threats they face in their home countries may be disbelieved. Hermeneutical injustice occurs when others do not even have the concepts to understand what someone is saying, as when a victim of sex trafficking claims she was coerced but police or immigration authorities can only visualize her as an economic migrant. Work of African-American feminists such as Dotson (2011) present especially powerful accounts of race-based epistemic injustice. An additional illustration of the importance of feminist epistemology is the development of understanding of first person standpoints. This work has informed discussions of victim protection, for example (Schroeder 1991).

Work in relational metaphysics has helped in analysis of how legal institutions should reflect connections among people, including care relationships (McClain 1992; West 1988). Many feminist writers in this tradition have taken pains to distance themselves from simplistic essentialist assumptions about the way women think or the role of women as caregivers, emphasizing instead the importance of context to understanding. Feminist theory has inspired and deployed new forms of legal realism—the view that law reflects its social context—to criticize the frequent formalism of approaches to law in terms of economic relationships and rational choice (Nourse & Shaffer 2009). Feminist scholarship on human rights—viewed in the abstract as universal—has also emphasized the importance of lived experiences in context (Halley et al. 2006). Debate about whether all forms of prostitution should be prohibited, or whether there is room for a liberal view that would distinguish coerced trafficking from voluntary sex work, is but one illustration of such scholarship. Legal archaeology, understood as exploration of cases in their full context, is a method developed by Threedy (2010) and others for criticizing the formalism of much legal analysis and revealing the extent to which gendered norms permeate legal doctrines such as defenses in contract law. Feminists interested in criticizing paradigms of rationality and breaking down supposed divisions between reason and emotion have questioned whether there is a too-ready willingness to reject emotions in supposedly non-gendered contexts such as the law of evidence where the rules are constructed to eliminate appeals to emotion as irrelevant—but a too-ready acceptance of emotion in contexts where women are stereotyped and disadvantaged, as with the Supreme Court’s assertion that the state has an interest in protecting women from partial birth abortion because they might later come to regret their decisions (Abrams & Keren 2010).

Intersectionality theory is an especially important recent development in feminist methodology of relevance to philosophy of law. Feminists using an analysis of intersections between race, sex, and other identity categories discern essentialist tendencies that gloss the complexities of identity in the work of both radical and liberal feminists (Crenshaw 2012, Harris 1990). Intersectionality theorizes how locations in multiple socially constructed categories such as gender, race, class, or disability affect how people live (Jones 2013, Haslanger 2012). Theorizing without intersectionality made women of color and other multiply oppressed people invisible; keeping categories such as race and sex separate made it more difficult to achieve justice for persons who were multiply oppressed. Intersectionality creates interlocking and superimposed axes of privilege or disadvantage (Haslanger 2012). An illustration can be found in ways that prison violence arguably tracks intersections between vulnerability and identity categories, with images of female vulnerability both reinforcing sexist thinking and contributing to the oppression inflicted by the racist carceral state (Gilson 2016).

The mid-twentieth century women’s movement—so-called second wave feminism—began as a liberation movement (see the entry on feminist political philosophy ). The idea was that women are entitled to be free and equal citizens—as free as men to participate in their societies, to pursue their ambitions and determine their own lives. A starting place for achieving equal citizenship was political equality. Despite the facts that political equality had been defended by the Seneca Falls Convention in 1848 and by and Harriet Taylor Mill in the “Enfranchisement of Women” in 1851, and that women’s suffrage had been achieved in the United States and in many other countries by the early 20 th century, at mid-century political equality remained a radical idea that led to some radical legal reform. And it remains a deeply contested concept nearly 75 years later.

While the basic right to political equality is taken for granted in many societies today and is explicit in the norms of international law (CEDAW 1979), in some cultures women are still not equal citizens. Some are unable to vote, hold office, attend school, engage in business, or travel about freely. Some do not control their own reproductive lives, access to their bodies, the opportunity to pursue any life ambition other than marriage, or who their marriage partner will be. Some women have little control over any major decisions about their lives. In some societies they are banned by law from making all or some such decisions, and thereby are rendered dependent on those who can.

One of the most fundamental goals of global feminist jurisprudence is to oppose and reform barriers to women’s participation in the public sphere. The basic premise is that unequal citizenship constitutes second-class status that cannot be justified. Equal citizenship is a presumptive value in the modern world. Problematically, in law the burden of justification typically lies with the reformer and precedent favors the status quo (MacKinnon 2006).

International recognition of human rights has been particularly important as a means to achieve equal citizenship. Feminist legal scholars have been pursuing issues of women’s human rights internationally for many years, at least since the United Nations was officially formed in 1945. CEDAW, adopted in 1979, sets the international human rights standard against gender discrimination. Especially since the 1980s, these efforts have been aided by mass communication, international travel, and the Internet (Rhode & Sanger, 2004). International conferences have promoted dialogue and exchange of ideas on issues ranging from honor killing to labor law. Some international groups (both NGOs and government-sponsored) are specifically focused on (what are often called) women’s issues, such as violence against women and girls, women’s economic viability, or women’s health and reproductive issues (see, e.g., the links in the Other Internet Resources Section to CRLP, Futures without Violence, Gendercide Watch, Human Rights Watch, National Network to End Domestic Violence, Wild for Human Rights, and WomenWatch). The collection of data by social scientists is more accurate and inclusive than ever in history, thus providing better foundations for analysis. Finally, collaborative research and comparative analysis of diverse legal systems and social customs have been increasing for at least thirty years, and in virtually every society more women are available to engage in these efforts and more men have become interested in them (see Jain 2005; Rhode & Sanger 2005; Stark 2004; Sen 1995; Peters & Wolper 1995)

Beyond equal citizenship, feminist jurisprudence also criticizes legal or political structures that would put disproportionate burdens on women or children seeking to live or to become citizens in countries other than their country of origin. Here, feminists reveal how asylum or refugee policies may be based on male models of what constitutes persecutions, discounting forms of structural injustice that disproportionately burden women (e.g. Parekh 2012; Freedman 2008).

The cumulative result of these efforts has been to globalize both the issues and the approaches to them. Providing a global perspective encourages conditions favorable to the conceptual revision needed for legal reform. As nations join and sign international conventions and treaties that increasingly include rights for women, feminists are supplied with a foundation from which to argue that local laws must comply with these international commitments. For example, signing the Declaration on the Elimination of Violence Against Women implies that a nation is committed to enacting and enforcing laws against violence toward women. Ratifying the U.N. Declaration of Political and Civil Rights implies that a nation is committed at a minimum to universal suffrage and more generally to equal citizenship. Becoming a state party to CEDAW affirms support for equal human rights and for elimination of all forms of discrimination against women. Although a number of states expressed reservations in their acceptance of CEDAW, the US did not. Thus, international law and treaty commitments can be used to argue for national or local legal reform (Schneider 2004; Peters & Wolper 1995).

Yet even if the goal of stated legal equality is achieved, law provides no protection unless it is enforced. Feminist legal critics have argued that laws and treaties that exist on paper frequently are ignored in fact when they apply to women and contradict local customs and beliefs (Husseini 2007; MacKinnon 2006). An additional concern is that formal acceptance of treaties may mask failures to implement treaty requirements (Hathaway 2005)

Moreover, the meaning of equal citizenship beyond equal political participation remains contested. An initial liberal feminist approach was to argue strictly for formal equality, that is, to deny that any sexual difference was ever relevant to legal doctrine. This strategy, often called the assimilation model, was an effective strategy for challenging overt legal restrictions on women and legally enforced exclusion (Taub & Williams 1993; Smith 1993; Bartlett & Kennedy 1991). For example, in the US feminist lawyers argued successfully that statutes treating women differently for purposes such as estate administration or age of majority violated constitutional equal protection, following the initial lead of Ruth Bader Ginsburg as director of the ACLU Women’s Rights Project in Reed v. Reed (404 U.S. 71 (1971)). At its most comprehensive, this was the approach of US feminists seeking passage of the unsuccessful Equal Rights Amendment (ERA) to the Constitution, an amendment that would have put sex on the same fundamental legal footing as race.

Achievement of equal citizenship viewed as the removal of explicit legal barriers leaves open whether equality requires more. Even in the United States, much legal room remains for continuing controversy. The effort to establish full constitutional equal protection through the ERA foundered on assertions that differences matter to issues as diverse as military service, child support, or bathroom utilization (Mayeri 2011; Frug 1992). This argument fueled conservative opposition to the ERA, but these issues were raised in different forms for feminists as well. Feminists emphasizing class differences and labor rights were concerned that hard-won benefits for women could be jeopardized. Critical race theorists were concerned that formal equality for women failed to understand the complex intersectionality of discrimination against women of color (Mayeri 2011). Critics of patriarchy insisted that histories of discrimination were central to understanding the functioning of male norms in social institutions from the family to employment to political structures. At present, in US constitutional law what equal protection requires when sex is a category has not been modeled on the strict scrutiny accorded race as a category; sexual differences concretized in law must only pass a level of heightened scrutiny as to their rationale to garner constitutional acceptance.

Across the globe, there are similar debates about what more is required beyond formal equality of citizenship. CEDAW’s (1979) requirement for the elimination of “all forms” of discrimination against women has been a framework for these debates (IWRAW-AP 2012). These debates are complicated, however, by concerns that at least certain ways of understanding human rights norms incorporate so-called western values and are incompatible with legitimate cultural differences. Whether theories of rights can be formulated in a manner that accommodates cultural differences has been given considerable attention by feminist political philosophers (Mookherjee 2009; Ackerly 2008) and is centrally relevant to the understanding of international human rights norms and their role in law.

Nowhere than in marriage is the legal bias towards the status quo more apparent. Yet in many jurisdictions across the globe, same sex marriage is now legally recognized. The U.S. Supreme Court held in Obergefell v. Hodges that prohibitions of same sex marriage violate constitutional guarantees of due process and equal protection (576 U.S. ___ (2015)). Liberal feminists and many others have hailed this decision as a significant victory. Nonetheless, concerns remain about the decision’s scope. In many jurisdictions, a couple’s marriage may be protected but they will not be protected against decisions of their employer to fire them or of their landlord to evict them. It is also unclear whether people will be able to refuse them services on religious grounds; the Supreme Court will decide this issue during its 2017-2018 term.

Still further critics argue that extension of marriage to same sex couples merely entrenches a fundamentally inegalitarian relationship. The view that equality requires extending the institution of marriage to same-sex partners, if it is to be available to opposite-sex partners, is a liberal view. In the eyes of critics of liberal marriage, marriage itself must be rethought, if gendered inequalities are to be overcome (Brake 2014). Valorizing marriage also potentially harms those whose relationships take other, less valued forms, such as asexual relationships, polyamorous relationships, or care networks (Brake 2014). To the extent that marriage institutionalizes problematic forms of dominance, it would seem a mistake to extend it at all—or at least to extend it without significant substantive changes in the institution (Kim 2010). Assimilationist paradigms both recognize the pain of exclusion but fail to problematize the role marriage plays in institutionalizing inequality (Robson 2002).

Reproductive autonomy is another particularly telling example of the ongoing force of gender norms. Feminists plausibly contend that women cannot be free and equal citizens if they do not control their own bodies. Much feminist research has detailed the history and debated the implications of current laws and policies that have allowed or constrained women’s reproductive freedom (see, e.g., Peach 2002; Rhode 1997). Paternalistic attitudes towards women have been identified as shaping the structure of the Supreme Court’s Roe v. Wade (410 U.S. 113 (1973)) decision and subsequent efforts by states to regulate or restrict abortion in the name of protecting women’s health (Appleton 2011; Laufer-Ukeles 2011). Even feminists who personally oppose abortion, or who are critical of some abortions (e.g., those evidencing disability discrimination) typically argue that abortion should still be legal. Some argue that controlling one’s own body is a necessary condition for any other freedom (see, e.g., Peach 2002; Estrich 2001; Rhode 1997; Olsen 1993). Yet together with paternalistic attitudes about the need to protect women from their emotionality and irrationality in the reproductive process, traditional views of women’s reproductive roles have shaped law and policy. Laws permitting abortion remain under attack; many U.S. jurisdictions now have laws targeting abortion providers (TRAP laws), although in Whole Woman’s Health v. Hellerstedt (579 U.S. ___ (2016)) the U.S. Supreme Court struck down Texas’s TRAP laws as impermissibly burdening women’s rights without providing corresponding benefit for women’s health. Feminists point out that analyses of whether such statutes place undue burdens on women’s rights in terms of formal legal barriers manifest legal formalism that conceals the reality of ongoing oppression or inequality of opportunity. The Hellerstedt decision rejected such formalism in favor of an analysis of the actual benefits and burdens of the Texas laws by a slim 5–3 majority after Justice Scalia’s death, but with the addition of Justice Gorsuch one further appointment to the Court could tip this balance.

The abortion issue also raises questions about how law should deal with issues of deep moral disagreement within society. In the United States, the protection of women’s reproductive freedom from restriction by government was initially based on the right to privacy and is now understood in terms of liberty. First applied to reproduction in the 1965 case of Griswold v. Connecticut (381 US 479 (1965)), the constitutional right to privacy was understood to protect individuals from state interference with certain decisions affecting their private lives, particularly decisions about marriage, family, sexual intimacy, and procreation. Griswold was jurisprudentially controversial because the right to privacy is not explicitly stated in the Constitution. Feminists have argued that originalist approaches to constitutional interpretation that would restrict constitutional meaning to the understandings in place at the time constitutional provisions were adopted are jurisprudentially problematic in their entrenchment of the norms of the patriarchy of the day (e.g. Case 2014) More recent decisions about abortion rights have been framed in terms of fundamental liberties that may not be unduly burdened (e.g., Planned Parenthood of Southeastern Pennsylvania v. Casey (505 U.S. 833 (1992))).

On the other side of the abortion debate from women’s reproductive liberty is the question of the fetus. Roe v. Wade ’s extension of the right to privacy to a woman’s decision to terminate a pregnancy by elective abortion set off a firestorm of protest and debate that remains robust over forty years later. Even the language used to state the issues is contested. Labeling the fetus a “pre-born infant” or a “person”—as some of the attempts to pass so-called personhood amendments have tried to do—begs exactly the question of what if any moral claims the fetus might have (e.g. Francis, ed. 2017, part IV). Many feminists hold nuanced views on these questions. For example, disability rights feminists may argue that while abortion rights should be protected, abortion decisions that are based on inadequate or biased information about disabilities are problematic. Black feminists may interrogate whether abortion policies or support for women and families are racially biased, implicitly or even explicitly. Many feminists also agree that the state has an interest in protecting the fetus to the extent that it will be born alive—that is, that the state has an interest in protecting continuing pregnancies against fetal harm, including harm inflicted by the pregnant woman herself—although feminists also recognize that this interest must not be seen to legitimize problematic coercive or paternalistic interferences with pregnant women’s liberty.

In its more recent cases the US Supreme Court has held that the state interest in protecting potential life may begin at the moment of conception even though the mother’s interest outweighs it ( Planned Parenthood v. Casey , 505 US 833 (1992)). The Court’s continuing jurisprudence bears out initial feminist concerns that saw this formulation as the tip of a wedge (e.g. Peach 2002). For example, the 2007 decision of Gonzales v. Carhart (550 U.S. 124 (2007)) upheld the constitutionality of the Partial Birth Abortion Ban Act of 2003. The Act bans what it terms partial birth abortion—language freighted with the imagery of a live-born person—except when necessary to save the life of the mother. In the decision, the Court weighed substantial state interests in protecting the health of the mother and in preserving fetal life as interests present all along during pregnancy against the burden placed on the woman’s right of reproductive liberty. Opponents of the Act claimed that its partial birth label concealed the extent of its restriction on pre-viability abortion choices. The decision has spurred state efforts to enact the TRAP laws described above. These state statutes have placed increasing burdens on abortion providers; many have closed and abortion is practically unavailable for women in many areas of the United States despite the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt .

Feminists also criticize the US Supreme Court’s reasoning in support of the state interest in protecting potential life. One concern is the scope of the supposed interest, such as whether it extends to the sale or distribution of contraceptive devices that prevent implantation after fertilization, or that even are claimed to do so in rare cases. Another concern is how any interest in protecting fetal life from the moment of conception can be supported in a secular, liberal state. If the answer is that there is some special status accorded to the human embryo or fertilized egg that requires its protection from the moment it is fertilized, feminists argue, this is best characterized as a religious view. If so, religious beliefs are being imported into state laws and the US Constitution that have a disproportionate impact upon women. The vague references to protecting potential life, so central to all the Supreme Court’s decisions on this complex issue, obscure these critical implications and are problematic on many grounds. Even in a modern, secular, liberal state that is explicitly committed to individual freedom, women’s fundamental liberties can be obscured and mystified by language and action that uphold and impose longstanding restrictive modes of thought and custom that may not always be recognized as religious in origin but that have no other plausible explanation. Such restrictions are often expressed in and defended by the use of religious language (such as sacred-ness or sanctity) that is applied to controversial religious doctrines as though they were settled, basic and uncontroversial.

Some societies explicitly incorporate religious law into their legal systems, operate dual systems, or are expressly theocratic. Others are secular but faced with strong customary elements. To some extent all societies face the problem of customary resistance to reform, as illustrated by the abortion debates in the United States. In nations with strong religious or customary influences on law, feminists may face difficult issues of how to interpret religious law into language more favorable to women’s freedom, how to call upon international human rights norms, and/or how to interpret the language of customary law in a way that enables it to absorb feminist reforms over time (Quriashi 2011). This is a special case of the general problem of entrenchment. It may involve several different ways of challenging the religious establishment on matters of interpretation that are (traditionally) considered settled or fundamental. Some customary doctrines arguably have no particular basis in religious texts, although they are treated as though they do (e.g., when life begins). Furthermore, some doctrines have a very general religious basis (e.g., women should be modest) but are interpreted to require far more severe or detailed customs (e.g., women must be entirely covered whenever they are in public). A further strategy points out that all religious interpretation is selective, so it must be determined whether a passage of text should be considered basic and eternal, or whether it was simply a reflection of particular customs or attitudes relevant to a particular time in history (e.g., adultery and blasphemy are capital offenses). Some innovative work has been done on these issues, for example, by exploring the distinction between shari’a (eternal) law and fiqh (custom or jurisprudence) in Islam, and by considering the interplay of dual systems (Quriashi 2011; Mir-Hosseini 2005; Reed & Pollitt 2002; Jeffrey & Basu 1998). These approaches emphasize interpretive methods; a further approach calls on the separation between law and morality endorsed by legal positivism to disentangle traditionalist moral beliefs from the requirements of law.

Since the adoption under the Affordable Care Act of the requirement that contraception methods approved by the U.S. Food and Drug Administration be included in group health plans without cost-sharing, many have voiced religious objections to providing this coverage. Feminists argue that contraceptive use declines with costs and that ready access to contraception is an important part of women’s ability to control their bodies. They also point out how the burdens of contraception and contraceptive failure fall on women rather than men. Objectors contend that contraception should be a matter of private choice rather than a government requirement, that at least some contraceptives are problematic as abortifacients (although this contention is contested for contraceptive methods such as the intrauterine device), and that rights of conscientious objection should be respected. Here, too, philosophy of law considers the role of law in resolving these disputes.

Commodification of the body especially in reproduction is a topic of extensive discussion among feminist philosophers of law. As reproductive technologies have become increasingly sophisticated, pressures for women to sell their oocytes or to be paid to bear children for others have mounted. Some liberal theorists urge that if paid sex, paid surrogacy, paid gamete donation, and the like can be achieved voluntarily, these are legitimate forms of economic opportunity. To prohibit them is to deprive some people—primarily women—of opportunities that might be of value to them and to deprive the biologically and the socially infertile of the ability to form families. Indeed, if all forms of sexuality, including marriage, were viewed on the model of economic relationships, some argue, equality for women would be furthered (Ertman 2001). Feminists critical of this liberal position argue that commodification may misperceive the nature of the body in human life by understanding it as the subject of property—despite the all-too-apparent reality that alternatives to commodification may be worse (Radin 1996). Relatedly, some contend that commodification of the body in practices such as paid surrogacy is inherently exploitative (Dickenson 2007).

Many liberal feminists, too, are opposed to a variety of commodification practices. Some argue that abolition of even voluntary prostitution is necessary to protect victims of sex trafficking, as legalized prostitution may mask continued flourishing of trafficking in its shadow (Dempsey 2010). Others are concerned about the possibility of genuinely voluntary consent in circumstances of poverty or limited opportunities for many women. Several countries that have legalized prostitution, such as the Netherlands and Germany, have engaged in vigorous debates about whether legal prostitution is a voluntarily chosen occupation for many, whether legalization has bettered the circumstances for prostitutes, and whether legalization has been coupled with enhanced enforcement of laws against sex trafficking or other sex crimes. Other countries, such as Sweden, have banned prostitution altogether, spurred by feminist critique of the practice.

Related to the concerns about commodification of the body are criticisms of what are seen as questionable technological imperatives, even apart from the economic incentives that may be driving them. Some feminists contend that practices such as pre-implantation genetic diagnosis, transplants of mitochondrial DNA, or gene editing are far riskier both physiologically and ethically than proponents admit (e.g. De Melo-Martin 2016). These feminists point out that long-term evidence of safety is lacking and that there may be unanticipated deleterious consequences of these techniques. These practices may portend far-reaching changes in our understanding of individual identity and what it is to be human. Whether law in the form of prohibitions or regulations should be imposed on these practices, or whether they are a matter for individuals to decide for themselves, is deeply contested. Some liberal feminists, for example, argue that individual’s choices about the reproductive risks they are willing to take should be respected, especially when they are striving to avoid disease in their potential offspring.

An ongoing theme in all these debates about marriage, reproduction, and the body has been the extent to which these issues should be understood in terms of protecting liberty, and how much they should be understood in terms of achieving equality. For liberal feminists, the extent to which women may exercise uncoerced choice over their bodies and their private lives is key. If women choose marriages in which they are dependent economically, make choices about how many children they will have, and elect to spend their lives in uncompensated domestic labor, those decisions should be respected as long as they are not coerced. For other feminists, what is critical is the extent to which even apparently free choices are exercised against a backdrop of economic inequality or patriarchal dominance. For these feminists, economic dependency and norms of dominance call into question the possibility of genuinely free choice.

No individual is entitled to inflict gratuitous harm upon another and no one should have to live in fear. These are among the few uncontroversial principles accepted in all moral systems and form the core of the criminal law in every society. Keeping peace and order has long been considered a fundamental justification for the very existence of the state or legal authority. Many philosophers have explicitly supported this idea, even those who argue for limitations on the state. J.S. Mill , for example, argued that the only legitimate reason for interference by the state in the affairs of individuals is to prevent one person from harming another. Thomas Hobbes argued that peace (i.e., personal security) is the ultimate political value for which a rational individual would sign on to the social contract justifying state power to protect the security of every man from the potential threat of every other (see the entry on Hobbes’ moral and political philosophy ). And Montesquieu defined political liberty as the tranquility of mind that comes from not being subject to fear for one’s safety. To achieve such tranquility of mind he proposed the separation of (governmental) powers to retard the abuse of power that could so threaten the security of citizens. From Confucius and Lao Tzu to Mohammed or Gandhi, and from the Ten Commandments to the Code of Hammurabi, personal security—freedom from fear—is a value that the state is expected to secure and maintain.

Until the 20 th century, however, these commitments did not protect women from a frequent source of danger, their intimates: husbands, lovers, relatives, friends, or employers. Indeed, for much of history these common threats to the personal security of women were not recognized as harms at all that it was the business of the state to address. Instead, they were frequently taken to be inevitable, a matter of right, or justifiable. Not surprisingly, a great deal of feminist legal scholarly attention and reform effort has been directed to revealing and changing the many ways in which law fails to protect women and girls against forms of violence such as rape (including date rape and marital rape), domestic abuse, sexual harassment, and other types of abuse. Although some countries do not collect official data and the nature and incidence of such violence varies widely by culture, many studies indicate that no society is exempt from these forms of violence. The 2012 United Nations Millennium Development Goals Report observed that although equal numbers of boys and girls are now attending school across the globe, violence against women continues to undermine progress towards all goals.

In legal theory about gendered violence, the possibility of separating the public from the private sphere is critical. Historically law did not address injuries inflicted by intimates. So, while the single greatest civil purpose of law has been to keep men from violating one another (the only greater being to repel foreign invasion), much violation of women by men has been considered as a private matter beyond the purview of law. Domestic chastisement was once considered legitimate discipline of one’s wife and marital rape was excluded from the definition of rape in many criminal law statutes. Feminists criticized the presumption that such behavior among intimates was beyond the purview of the criminal law and these limitations have largely been overcome, at least in the United States and Europe.

Many other problematic aspects of rape law have also been revised in light of feminist critiques. Historically, rape by an acquaintance was not seen as “real rape” (Estrich 1987) but as more likely consensual sex. Acquaintance rape was made virtually impossible to prove by strict corroboration requirements and other rules of evidence. Another hurdle to proof of rape presented by the rules of evidence was the requirement of active resistance: victims who did not actively resist—including those who were most terrorized or who feared harm from resistance—were judged to have consented to whatever happened to them, or at least to have reasonably appeared to their attackers as consenting (McGregor 2007). Victims also were discouraged from pursuing complaints by evidence rules that permitted them to be examined about past sexual histories, thus forcing them to reveal intimate private matters and subjecting them to judgment as immoral themselves. Victims who delayed reporting alleged rapes, perhaps out of shame or fear, were considered not to have made a fresh complaint and thus to be less credible. Many of these rules have been formally overturned but it is less clear whether as a practical matter they continue to infect decisions such as whether to prosecute, how to examine witnesses, or how to assess the credibility of witnesses.

Contemporary discussions of the definition and proof of rape continue to struggle with questions such as what consent to sex really means. Some feminists have argued that there is a domain of wrongful sex that is different from rape; Cahill (2016), for example, argues that sex that occurs within context of structural injustice is unjust sex that may be within a gray area of ambiguity. She distinguishes cases in which the woman is less than fully willing, cases in which the woman’s will is clearly overcome, and cases in which the victim cannot fully consent due to incapacity. What distinguishes these types of cases, Cahill says, is how the victim’s sexual agency is deployed. She characterizes as unjust sex in the gray area in which the woman’s sexual agency is actively sought but undermined for example in circumstances in which her consent is simply expected or in which it is difficult for her to express unwillingness. Subtle discussions such as this illuminate why some rape cases are so difficult for law to handle, as law deals in bright line determinations such as whether conduct was criminal. Allegations of rape in contexts in which one of the parties is under the influence of drugs or alcohol also place pressure on the idea of agency in the context of sex. Heyes (2016) explores the phenomenology of agency and the harms of assaults involving victims who are semiconscious or unconscious.

Difficulties about consent and proof attend other forms of violence against women as wll. Incest, like rape, was always illegal but rarely admitted, let alone prosecuted. Prosecutors were all too willing to drop charges when women chose not to press them, potentially confusing respect for the victim’s choices with her fear of embarrassment or coercion. And sexual harassment (like sex discrimination) simply did not exist as legal claims until the 1960s or later (MacKinnon & Siegel 2004; MacKinnon 1979). So it is clear not only that equal protection of law for women was not recognized until recently, but also that the force of law was used to back male dominance. If a man were attacked on the street he could pursue his attacker in the courts of law. If a woman were attacked in her home she had no legal cause of action as it was considered a private matter. Many feminist critics contend that in important respects such domestic violence amnesia continues to characterize how law functions (Dempsey 2009). This is true in both criminal law and the law of private damages, according to these critics (Chamallas & Wriggins 2010).

Over the past 30 years or so, many jurisdictions across the globe have enacted major improvements in formal legal protections against violence once considered private. Rape laws have been reformed to varying degrees in many societies, although even the best arguably still have far to go (McGregor 2005; Estrich 2001; Taslitz 1999; Schulhofer 1998). For example, most western nations no longer require corroboration of rape by witnesses. In many jurisdictions, consent is no longer presumed from the absence of resistance and far stricter requirements for the relevance of evidence are in place. Feminist lawyers have worked hard to secure these legal reforms and they represent important achievements. International law too has recognized the rape of women in war as a crime against humanity (see the United Nations International Tribunal for the Former Yugoslavia page on Crimes of Sexual Violence ), and prosecutions for this crime have recently taken place for the first time in history. Sexual harassment and sex discrimination are now rather widely recognized as wrongful behavior and legal causes of action in a variety of forms.

Despite this significant progress in formal law, crime statistics continue to verify that violence against women remains a problem of major proportions. Reporting rates are low. Conviction rates in no sense reflect a full commitment to punishing these crimes on a par with punishment of other crimes (Estrich 2001; Schulhofer 1998). The result of such enforcement failure, feminists contend, is that in practice men have almost the same powers over women that were historically enshrined in law. A woman may no longer be legally required to remain with a husband who beats her, but if she has nowhere to go, no income or employment opportunities but children to support, then her restriction is in practice the same as it was in the past (see Gendercide Watch; WomenWatch ). Given long-standing customs of subordination, the traditional disparity of power, and the typical difference in size and strength between men and women, the threat of physical harm and the differential exercise of economic and political power are sufficient to maintain male dominance unless the law intercedes to counteract these forces (Husseini 2007; Manderson 2003; Schneider 2000; Rhode 1997). Both in the US and elsewhere, immigrant or undocumented women may be particularly vulnerable both to their partners and to enforcement failures.

So, why hasn’t the law interceded more successfully? Feminist theorists give different answers to this question. Liberal feminists may focus on biased attitudes of police officers, prosecutors, and judges, the majority of whom are male. Other feminists point to persistent economic inequality between women and men, with resulting dependency that makes it difficult for women to leave abusive relationships or to resist harassment. For example, Schultz (2003) argues that opposition to sexual harassment should not be identified with opposition to sex in the workplace but instead with opposition to practices that tend to exclude women from jobs and with a vision of genuine equality at work.

Dominance feminists offer the more radical critique that the pervasiveness, seriousness, and tenacity of male threats and the inadequacy of official responses reflect the patriarchal construction of gender itself on a model of dominance and submission. That is, the law reflects a way of thinking on which masculinity means strength, forcefulness, aggressiveness, and domination and femininity means delicacy, resistance, submission, and subordination. The distinction between persuasion and force appears as a fine line that is easy to cross. If the distinction between normal sexual behavior and rape turns on a last minute decision by a woman to stop resisting and submit, then it will hardly be surprising if rape turns out to be both very pervasive and widely denied (McGregor 2005; MacKinnon 1989). Furthermore, if the very concept of masculinity is not just strength but domination, then resorting to violence to enforce female subordination is a clear correlate of the model. If standards of reasonableness—what it is reasonable to expect partners to understand, to ask, and to do—are male, the boundaries of acceptable behavior will look very different than if judgments of reasonableness are understood to be gendered—and, largely, male. Finally, if the natural relation between the sexes is taken to be both hierarchical and adversarial, then a male dominated legal system formulated by men from a male perspective is bound to protect the interests of men at the expense of women whenever the two conflict or are perceived to conflict. Thus, the patriarchal construction of gender makes domination the model of masculinity and rape (or at least power and submission) the model of sex (MacKinnon & Siegel 2004; Estrich 2001, 1987; Schneider 2000; Schulhofer 1998; MacKinnon 1989).

This dominance critique has been widely misunderstood, however. Critics of the dominance approach characterize it as condemning all sex and indicting all men as rapists, but this criticism is to some extent unfair. A few exaggerated claims made by some feminists, highly publicized in the early 1970s, did condemn all sex. But in a more enduring sense the dominance critique relies on several observations that illustrate the truth of feminist claims about the entrenchment of patriarchy as the status quo and the domination model of sexuality. Many feminists claim that the use of sex to dominate is pervasive, affecting how people think and interact in all cultures (Schneider 2000; MacKinnon 1989). Critics interpret this observation as a claim that every sexual act is an act of domination (or rape), an inference that does not follow from the general observation about the role of sex in oppression. Part of the reason for reinterpretation is that once again feminists are arguing against the norm. If feminists are correct that domination is the patriarchal model of sexuality and patriarchy is the status quo, then it is not surprising if they appear to be arguing against all sex itself, at least according to anyone who cannot envision an alternative model of sex.

Initially, feminists were divided in how to address the dominance model of sexuality in law and society. Focusing on causes or influences, some feminists attempted to challenge media stereotypes, an approach for which they were criticized as censors. Some challenged the fashion and beauty industry with minuscule impact while suffering considerable personal ridicule for their efforts. Some focused on opposing pornography (especially violent pornography) as the symbol of the dominance model and developed model anti-pornography statutes for jurisdictions to enact (see the entry on pornography and censorship ). When one jurisdiction—Indianapolis—did enact a statute providing injunctive relief and a damages remedy for violent pornography, it was quickly held to be an unconstitutional violation of free speech ( American Booksellers v. Hudnut , (771 F.2d 323 (7th Cir. 1985)). That the feminist message of opposing female subordination was criticized as a Victorian condemnation of immoral sex, some feminists contended, illustrated the deep entrenchment of the domination model. Instead, feminists suggested developing better models of masculinity (MacKinnon & Siegel 2004; Estrich 2001; Rhode 1997). More recently, many feminists have explored the role of structural injustice in maintaining gender oppression (e.g. Parekh 2011))

Conflicts continue to this day over the permissible limits on free speech, both where sex is involved and more generally. The development of video and robotic technologies that allow highly realistic simulations of degrading or violent sexual acts have placed additional challenges to regulatory efforts, as these depictions do not require human performance and thus do not directly harm individuals creating the depictions. Some argue that viewing these materials should be criminalized because this conduct is wrongful and it can be the proper object of the criminal law to punish wrongdoing even when it does not harm others directly (Danaher 2017). Feminists have pointed out that drawing the line for state intervention at direct harm to others hews closely to problematic distinctions between the public and the private drawn by Millian liberals. Bracewell (2016) observes in addition that the earlier ordinances advocated by MacKinnon and others proposed damage remedies and injunctive relief rather than criminalization; the carceral turn against violent speech is more readily aligned with liberalism’s delineation of the proper role of the state as harm-prevention. Indeed, the U.S. Supreme Court decision striking down California’s statute imposing civil fines for the sale of violent video games to minors rested on the liberal view that content-based regulation of speech is impermissible, Brown v. Entertainment Merchants Association , 564 U.S. 786 (2011).

Finally, feminist legal scholars have proposed legislation and trial practice procedures that would treat domestic violence as part of a systematic cultural environment that discriminates against women (Schneider 2000). These proposals are regularly undermined by (well meaning) therapeutic models that treat domestic violence as individual psychological problems of anger management or substance abuse or the like, rather than as part of a widespread social problem. Medical approaches often depersonalize the issue as family dysfunction. The male perpetrator seems to disappear and responsibility fades as though the harm were caused by a disease rather than by a violent man, a responsible human agent. Clearly countering entrenched acceptance of male violence against women will take long-term, concerted effort. Impressive gains have been made, but much more is needed (MacKinnon 2006; Husseini 2007; Manderson 2003; Schneider 2000; Hassan 1998).

Unequal treatment in social and economic life—in schools, public accommodations, employment, housing, insurance, pensions, investment, sports, the environment, and more—has been another target of feminist legal critique. Here, too, the question has been what equal treatment under law requires in the face of differences, including supposed biological differences, histories of discrimination, and entrenched social institutions. The law has developed from the removal of outright barriers—male-only public universities, for example—to non-discrimination, to consideration of what conditions and practices adversely affect women to the extent of generating inequalities that ought to be addressed in law.

In the US from the 1940s on, courts gradually began to enforce the Equal Protection clause of the 14 th Amendment to apply strict scrutiny to state-imposed categorizations based on race; later on, constitutional law began to address whether race and sex could be analogized or even coupled for purposes of analysis (Mayeri 2011). In 1963, the US Congress passed the Equal Pay Act, amending the Fair Labor Standards Act to prohibit unequal pay on the basis of sex for “equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions,” 29 U.S.C. §206(d) (2012). (Congress, in a dispute about comparable worth, left open the interpretive question of whether this statute requires the same pay for the same work or equal pay for substantially equivalent jobs, a comparable worth standard.) The Civil Rights Act of 1964 followed the next year, explicitly establishing rights not to be discriminated against on the basis of race, sex, religion or national origin in areas that included employment (Title VII), education (Title IX) and governmental benefits. Many nations have similar laws (phrased in varying language) and these have been or could be of considerable benefit to women, especially where bias is overt and provable.

Unfortunately, in much of the world today discrimination is far from overt, but no less effective for its increased subtlety. In some ways progress toward equality has been substantial in many parts of the world. But in other respects advances have been slow, even in progressive nations. Enshrining equality in law is a far different matter from implementing it in practice. Women have been active participants in the public sphere in large numbers in many societies for thirty years or more. Yet the great majority of women remain clustered in the bottom or middle ranks in otherwise male dominated professions, or segregated into traditionally female fields. Politics remain strongly male dominated. And the top echelons of business are still a male preserve: the so-called glass ceiling (Kellerman & Rhode 2007; Fineman & Dougherty 2005; Estrich 2001). Despite increased educational, political and employment opportunities for women, the feminization of poverty (Pearce 1978) continues to increase while equality of power remains elusive. Changes in divorce law and the law of alimony and child support have been factors in poverty’s feminization (Smock, Manning & Gupta 1999), raising questions for feminist theory about whether equality requires re-institution of protectionist laws. In employment, women consistently earn less for comparable work in the same field, and female dominated occupations are consistently paid less than male dominated ones, even when the male occupations require less education and involve less responsibility (Kellerman & Rhode 2007; Allen 2005; Fineman & Dougherty 2005; Roberts 2002; Estrich 2001; Williams 2001; Rhode 1997). For feminist legal scholars, the overarching question is what roles the law should play in response.

One set of issues concerns the effects of bias that cannot be demonstrated to be intentional discrimination: bias that is unrecognized or implicit but that is bias nonetheless. In employment and other areas of social and economic life, supposedly objective rules may be applied differently to men and women. For example, a woman may be told the company does not allow part time work, but a man may be allowed to cut back in order to pursue some valued activity, such as holding political office. And women are often graded or evaluated lower on the basis of gender alone, without the recognition that this is what is taking place. Symphony orchestras famously discovered that the number of women musicians selected rose dramatically when applicants auditioned anonymously from behind a screen (Goldin & Rouse 2000). One use of statistical evidence in antidiscrimination law in the US is to raise inferences of unrecognized bias, hence discrimination, in situations such as this.

A further set of issues concerns how law should address the disparate impact of apparently sex-neutral policies. Even without explicit or implicit bias, many longstanding policies may affect men and women differently. Policies discouraging or prohibiting part time work, when consistently applied to both men and women, may still have quite different consequences for parents with primary responsibility for child care, thus disadvantaging women disproportionately. As Williams (2010) points out, the US continues to have a workplace structured on the basis of the norms of the 1950s, assuming a breadwinner husband and a wife at home taking care of the children. Flexible work schedules, predictable shifts, consistent start and stop times, day time work, or part time work at hourly rates or with benefits proportionately equivalent to those of full time workers simply are not available to much of the workforce in the US or elsewhere. Moreover, the US, unlike other advanced industrial societies, has no general statutory requirement for paid family leave.

These many policies pose classic dilemmas of difference and can be deconstructed by understanding the male norms they assume, as discussed in Section 1. Employment policies concerning pregnancy are notorious examples warranting separate mention. At one point, the U.S. Supreme Court concluded that failure to cover pregnancy under state or employer disability insurance programs was not discrimination on the basis of sex, as it differentiated between pregnant persons and non-pregnant persons. ( Geduldig v. Aiello , 417 U.S. 484 (1974); General Electric Co. v. Gilbert , 429 U.S. 125 (1976)). Since pregnancy did not affect all women, denying pregnancy benefits did not discriminate against women on the basis of sex, or so the reasoning went, although these policies would certainly have different impacts on women than on men. Men and women were being treated the same: neither received pregnancy benefits. So men did not receive any benefits that women did not receive. And women did not receive any benefits that men did not receive. The logical implication was that requiring a benefits program to include pregnancy benefits for women would entitle them not to equal rights, but to special rights; not to equal treatment but to special treatment (Olsen 1995; Smith 1993; Bartlett & Kennedy 1991). Feminists were stunned by this argument—after all, only women can become pregnant—and the US Congress enacted the Pregnancy Discrimination Act several years later. The most recent battleground over apparently neutral rules has been the recognition of exceptions for employers with religious objections from providing contraceptive coverage for their employees.

In addition, some policies that differentiate based on sex may be perceived as just or as beneficial to women. Affirmative action policies designed to root out the lingering effects of prior discrimination are an example of policies differentiating on the basis of sex that may be regarded as just. Other policies have been seen justified on a variety of grounds, including benefits to society, benefits to women, or distributive justice. In the US, these have included excluding women from jury duty based on their supposed responsibilities in the home, giving survivor’s benefits to widows but not to widowers, and creating single-sex schools. To some critics, all of these policies violate formal equality. To feminists, underlying issues for achieving equality include determining whether any of these policies enforce stereotypes, entrench prejudice, or treat anyone unfairly—and whether law should be used to challenge them as a result.

Moreover, sex is not the only ground of legally actionable discrimination. Some critical race theorists, queer theorists, disability theorists, and other feminist legal philosophers have both clarified and complicated the issue of equality and difference by pointing to discrimination based on race, class, ethnicity, sexual orientation, disability and age (Mayeri 2011; Nussbaum 2006; Allen 2005; Crenshaw 1996, 1989; Valdes 1995; Matsuda 1987). As discussed above, the scholarship on intersectionality creates complex pictures of identity and the structure of discrimination. For example, employment discrimination against women of color may not be simply a matter of race-plus or sex-plus, but a phenomenon of interaction between these and possibly other categories. Some feminists have pointed out as a problem in particular of liberal feminism that much of its focus is directed to the concerns of white, middle class, professional women (Williams 2011, 1997, 1992; Roberts 2002; Crenshaw et al. 1996).

For all these reasons, women remain at a serious disadvantage both at work and at home (Williams 2010; Fineman & Dougherty 2005; Roberts 2002; Okin 1995). In the workplace it has been noted that despite the many forms of discrimination described above, many women are able to progress quite well as long as they function as perfect workers (i.e. as men). These women also have the greatest legal resources to combat discrimination, which shows that the workplace has changed little and that the standard of evaluation is still male (Williams 2010; Fineman 2004; Estrich 2001). This precludes women from being mothers and still being treated as equals in the workplace. Many instances of discrimination appear to start when a woman becomes a mother, even if her work product has not changed. And many women find themselves in the double bind of being disliked and disapproved of as bad mothers or discounted and disrespected as uncommitted workers. This has been identified as discrimination and is often legally actionable. Joan Williams (2001) has called this additional barrier the “maternal wall” and adds it to the glass ceiling as a form of illegal discrimination. But it remains difficult to prove and difficult to counteract. Feminist philosophers of law have offered a variety of proposals for counteracting it (Allen 2005; Fineman 2004; Estrich 2001; Williams 2001; Rhode 1997). Some societies handle the coordination of family and work better than others, and some progress has been made in some places; but the burdens of domestic labor in the private sphere remain greatly undervalued and largely invisible, and the stereotype of the domestic and nurturing mother is deeply entrenched.

The economic disadvantages of women at work are reinforced by domestic disadvantages, either as a formal matter of family law or in the implicit biases in how apparently neutral rules are applied. While most societies idealize the role of the mother, her domestic work is consistently undervalued or unpaid. As a result, often when mothers seek divorce, child custody, and property settlements they are gravely disadvantaged (Fineman 2004; Williams 2001; Weitzman 1992, 1987). In some societies the de-valued status of wives and daughters leaves them without inheritance, property, or even without adequate food, health care, or education (Carr et al. 1996; Okin 1995; Sen 1995; Chen 1995,1983). Many feminist legal scholars have offered proposals for revising some family laws with some modest success. Some have suggested pay scales for traditional domestic duties and alternative models for custody suits and property settlements (Williams 2001; Jain 1995; Olsen 1983). And some feminists have analyzed the domestic ideal itself, suggesting an alternative legal model of the family. Martha Fineman (2004, 1995) has argued that the state has no reason to reinforce and privilege the sexual family—the sexual relation between a man and a woman that is the traditional basis of marriage as a legal institution. Rather, the care-giving relation is what should be encouraged and supported by the state. One problem with the care-giving role is that it makes the care-giver dependent on another source of income, typically and traditionally a breadwinner. It is this dependent status of the care-giver that needs to be addressed in law and public policy, assuming that care-giving is a positive and indeed a crucial role in human life. According to this view, the myth of autonomy is an unfortunate side effect of a male perspective that tends to make the private domestic sphere both invisible and de-valued (Fineman 2004, 1995). And this issue is further complicated by the intersection of gender with race and class (Roberts 2002).

This de-valuation and invisibility has contributed directly to the feminization of poverty, which is now a problem of global proportions. Global poverty is getting worse, and increasingly women bear the brunt of it. Two billion people (about one out of three) live in extreme poverty on less than two dollars a day. About 800 million go to bed hungry every night, and eight million die from poverty related causes each year. More than seventy per cent of them (nearly three fourths) are female. So serious are the effects of extreme poverty on women (and girls) that the World Health Organization has named it a disease (“extreme poverty,” coded Z59.5) and called it “the world’s most ruthless killer” (Jain 2005, p. 138).

The reasons for the feminization of poverty are complex and differ in important respects by culture. Some women are poor because their society is poor—devastated by natural disasters or war and social turmoil, or sapped by corrupt officials or colonial powers. Some are refugees, and some are sick, old, or disabled. Many of the poor are children. It has been noted that extreme poverty for both men and women is attributable to a variety of entrenched traditional structures such as class or caste hierarchies, ethnic or religious discrimination and unequal land distribution (Carr, Chen & Jhabvala 1996). And often these long term structural problems are aggravated by globalization, world markets, economic restructuring and such recent trends in the world economy. Women’s poverty results from all these factors: being part of a poor family, village, or region, but is compounded by the subordination of women within the family, community or social structure at large. When poverty is bad it is worse for women. When food and medicine are short the most deprived are women and girls. Norms of seclusion—exclusion from inheritance, lack of credit, lack of training and education—all disadvantage women and girls. In all societies the poorest women carry compounded burdens of discrimination by race, class, caste or religion as well as sex discrimination (Roberts 1995; Chen 1995; Crenshaw 1989; Matsuda 1987).

Many programs have been proposed and initiated to alleviate this problem. Women’s unions and cooperative associations have been formed. New models of credit and lending are being tested. The UN, various NGOs and Women’s Organizations, as well as national and local organizations, have been working to increase opportunities for literacy and employment for women and girls (Jain, 2005; Carr, Chen & Jhabvala 1996; Nussbaum & Glover 1995). Pioneers of micro-lending Muhammad Yunus and the Grameen Bank received the Nobel Peace Prize in 2006. Yet poverty and polarization are increasing in many societies. Many feminists are now of the view that reform of economic and social institutions is critical to the well being of women. The sharp distinction between public and private labor needs to be recognized as an artificial one (Fineman and Dougherty 2005). As noted by Chen, “so long as policy-makers make the artificial distinction between the farm and the household, between paid work and unpaid work, between productive and domestic work, women will continue to be overlooked” (1983, p. 220). Thus, the interaction between private labor and the public good must be, and is beginning to be, acknowledged. For example, Chen (2011) argues, contributions of unpaid labor should be included in estimates of GDPs; contributions of work in the informal sector (which tends to be dominated by women and low income men) is increasingly being included in national and institutional studies potentially affecting economic policy; and unpaid domestic labor is now sometimes considered as having monetary value in court cases.

Some feminists have concluded that, like the dominance model of sexuality, the domestic model of women’s unpaid labor may not be addressed by denouncing it directly. It may also require incremental erosion by addressing its causes and effects. That is, it must gradually be replaced with a better model. According to Chen (1995, 1983), for example, (ideological) arguments for the equality of women in rural India and Bangladesh were met with great resistance, but when the approach was revised to provide pragmatic assistance for economic development to poor women that substantially improved their lives (and thus the lives of their families) resistance substantially decreased. Dreze and Sen (1989, p. 58) have noted “considerable evidence that greater involvement in outside work does tend to go with less anti-female bias in intra-family distribution.” Respect for women arguably increases as their independence increases.

Communist societies that purported to institute equality for women from the top down, so to speak, failed to accomplish their goal precisely by overlooking the obvious conflict between the perfect mother and the perfect worker. For example, commentators such as Li (1995) contend that in China the Communist model of equality superimposed a thin veneer of equal gender relations over 5,000 year old patriarchal customs that strongly socialized women to the roles of obedient and deferential wife and daughter. Combining these norms with Communist women’s equal obligations as workers created double obligations for women without any real recognition of the double role as a double burden (Li 1995). Some feminists have noted that the Soviet Communist idea of gender equality and its post-communist development created a triple burden, as women were expected to function in three roles: wife and mother; good worker or professional; and social activist (Petrova 1993). And today, as women enter the public sphere around the globe, they carry the burdens of the private sphere with them, because the institutional structure has not been changed to accommodate social and economic evolution or to recognize the value of traditional women’s work (Fineman 2004, 1995).

Many feminists have concluded at this point that it is critical to mainstream women into the public sphere, thereby increasing their visibility as economic contributors and, thus, their control over their own lives. It is crucial to weaken the public/private distinction to make the general work environment more hospitable to parents and caregivers in general. And it is imperative to continue to raise feminist consciousness: to identify the bias of male norms, and yet to attend to the contextual surroundings necessary for an accurate assessment of complex human relations, as well as pragmatic solutions to longstanding entrenched inequality. Law is a critical tool in this effort (Stark 2004; Williams 2000; Okin 1995).

Law furthers social stability but may entrench norms of oppression. Law can also be a necessary means for reform. Law can be an anchor to the past or an engine for the future. Each function has its place. Feminist legal philosophy is an effort to examine and reformulate legal doctrine to overcome entrenched bias and enforced inequality of the past as it structures human concepts and institutions for the future.

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How to cite this entry . Preview the PDF version of this entry at the Friends of the SEP Society . Look up topics and thinkers related to this entry at the Internet Philosophy Ontology Project (InPhO). Enhanced bibliography for this entry at PhilPapers , with links to its database.

• Center for Reproductive Rights Worldwide (CRLP)
• Center for WorkLife Law
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• Gendercide Watch
• Human Rights Watch
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• 9 to 5: Winning Justice for Working Women
• National Network to End Domestic Violence
• Wild for Human Rights
• Women’s Institute for Leadership Development
• Crimes of Sexual Violence , at the United Nations International Tribunal for the Former Yugoslavia webpage.

affirmative action | citizenship | civil rights | equality | exploitation | feminist philosophy, approaches: pragmatism | feminist philosophy, interventions: liberal feminism | feminist philosophy, interventions: political philosophy | feminist philosophy, topics: perspectives on disability | feminist philosophy, topics: perspectives on objectification | feminist philosophy, topics: perspectives on reproduction and the family | feminist philosophy, topics: perspectives on sex markets | justice | legal rights | liberty: positive and negative | parenthood and procreation | pornography: and censorship | privacy | rights | rights: human | social institutions | social minimum [basic income] | social norms | well-being

Acknowledgments

The authors would like to thank Samara Casewell for assistance with the original bibliography. As of March 2013, Leslie Francis has taken over updating this entry which was originally written by Patricia Smith.

Copyright © 2017 by Leslie Francis < francisl @ law . utah . edu > Patricia Smith

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The Law That Shapes Us: "Contemporary Feminist Jurisprudence"

Chelsea Wallis DPhil Law

Law DPhil candidate, Chelsea Wallis , examines contemporary feminist jurisprudence as part of The Law That Shapes Us.

The task of assessing the impact of feminist approaches to the law and to legal institutions is not a simple one. As with many social justice movements, promising developments towards substantive gender equality in some parts of the world are counterbalanced by equally significant regressions elsewhere: the progress made towards securing the rights of women and girls has never advanced in a straight line. Feminist activism and jurisprudence too have evolved in waves, gradually incorporating and eventually recentring the lived realities of the most marginalised at the core of feminist thinking by adopting a dynamic, intersectional perspective on oppression. This article considers the shape that contemporary feminist legal theory and methodology have taken, before exploring key issues in which a feminist lens has been applied to the law. These examples span both the Global North and the Global South, including reproductive autonomy and domestic abuse, as well as sexual harassment and the reverberations of #MeToo upon the criminal law and on defamation. 

Contemporary feminist jurisprudence is informed by thinkers as temporally and theoretically diverse as Mary Wollstonecraft and Kimberlé Crenshaw, united by a shared recognition of the barriers which continue to hinder gender equality within changing social, cultural, and political contexts. A key insight from feminist legal analysis is that the entrenched demarcation between public (traditionally masculine) and private (traditionally feminine) spheres continues to pervade the law, explaining how the reluctance to intervene in family life impedes the effective regulation of issues such as domestic abuse or marital rape. As Sandra Fredman explains in Women and the Law, the liberal legalism on which the public/private distinction is premised also ‘renders invisible the value and significance of reproductive labour and ignores the role of the family as one of the chief means of educating and socialising future citizens’ (17).

In the language of human rights, the consequent privileging of negative liberty – civic freedom from interference by the State – over positive duties – which oblige the state to provide for the social and economic rights of its citizens – has an abiding impact on women’s lives, including the unequal burden of domestic labour and the pressure of fulfilling unpaid caring responsibilities.  

These impacts are, predictably, felt most keenly by those who lack the resources to advocate for their rights, especially women and families in poverty, a group disproportionately comprised of people already subject to chronic marginalisation on grounds of race, class, migrant status, or disability. As well as adopting an intersectional perspective, feminist legal thinking is thus also concerned with the nexus of capitalism and patriarchy; the project of achieving substantive gender equality is intricately intertwined with the pursuit of social justice more broadly. Consequently, in addition to supplying important theoretical insights, feminist jurisprudence is a praxis and a call to action, as exemplified by grassroots groups such as India’s Gulabi Gang , Australia’s Sisters Inside ,  and the UK-based Read and Resist! collective. Within the adjacent realm of academic activism, the Feminist Judgments Project , which rewrites the judgements in key cases through a feminist lens, is ‘a political intervention which seeks to challenge the ongoing exclusion of women from legal subjectivity … Rather than accepting our (feminine) invisibility and powerlessness, we have exercised collective agency to attempt to leave a female-gendered mark on the law’ (8).

These themes of collectivisation and solidarity are equally present in feminist empirical work: Oxford DPhil candidate Ellie Whittingdale’s article on becoming a feminist methodologist foregrounds the importance of reciprocity and reflexivity in sociolegal research and within legal spaces themselves. 

The emphasis on trusting and valorising women’s voices, and especially those silenced due to intersectional oppression, is central to feminist jurisprudential thought with respect to reproductive autonomy. The traditional conceptualisation of the right to abortion solely in the negative terms of ‘privacy’ – effectively, a woman’s right to abjure interference from the State in determining whether to terminate a pregnancy – fails to appreciate the inherently context-specific social, political and cultural factors which affect the accessibility (and the stigmatisation) of abortion. It is those women who are already underprivileged that will face challenges in actualising their negative liberty. Rather, a positive, feminist approach to abortion regulation places obligations on the state to provide and facilitate access. It is critical that the right to abortion be considered as an equality right in terms of the social reality women face, not only in relation to equality with men in terms of bodily autonomy, but also in relation to the differential privilege experienced across demographics of women within and between cultures. Similarly, the reluctance of the judiciary to hold medical professionals to account in cases of negligent sterilisation resulting in ‘wrongful conception’ demonstrates the same paternalistic and patriarchal attitudes towards women’s bodily autonomy as those exercised in policing abortion access. 

The treatment of domestic abuse is also a key site of feminist legal inquiry. Now widely recognised as a  human rights issue , domestic abuse is a form of gender-based violence produced by systemic patriarchy and maintained by a legal system designed to regulate the public sphere rather than the private domain. Recent debates over the criminalisation of coercive control have revealed important cracks in the regulatory apparatus: within Australia, a focus on criminalisation, with parallels to the Council of Europe’s  Istanbul Convention , risks targeting communities that are already vulnerable to the misuse of police power. In particular,  advocates for indigenous communities have contended  that policymakers must recognise and address the intergenerational trauma that many Aboriginal women – Australia’s fastest growing incarcerated demographic  – have experienced at the hands of police, as these victims risk being disbelieved by authorities and often face pernicious stereotypes when reporting domestic violence. Similar concerns have been raised by  migrant Australians  and representatives of  minority religions . These same themes emerge from Roychowdhury’s study in the radically dissimilar context of West Bengal, where women who seek police assistance confront not only misogynistic prejudice and social alienation, but crippling systemic pressures which disable them from seeking justice. Judicial and police passivity exacerbates discrimination, inevitably privileging those who are strong enough to advocate relentlessly on their own behalf and maligning women who lack this resilience or have fewer social or financial resources.

In the decades since the second-wave feminist movement, both gender-based violence and sexual harassment have been framed as flagship causes in the struggle for women’s social, political and economic equality. Sexual harassment reifies the same patriarchal values and preoccupation with control as in domestic abuse, although it is principally perpetrated in the public sphere. Sexual harassment is not about sex, but about the performativity of masculine dominance. A feminist jurisprudential lens is able to capture the gendered hegemony that underpins both issues; although not all harassment or abuse is perpetrated against women or nonbinary individuals, all its manifestations are nonetheless united by patriarchal values. Moreover, only an intersectional feminist framing is able to excavate the layers of oppression which operate on women of colour, those from poor and under-educated backgrounds, linguistic minorities, non-cis or non-heterosexual women, disabled women, and refugees, among others. The publicity attached to the #MeToo movement has catapulted the issue of sexual harassment in recent years, exposing the gender-based nature of the issue, but the high-profile cases of white, middle-class women have not been matched by the publicity accorded to the less privileged. These issues reflect pervasive social discourses, as MacKinnon comments : ‘#MeToo is cultural, driven principally by forces other than litigation, and is surpassing the law in changing norms and providing relief for human rights violations that the law did not – in some ways in current form could not, although law is embedded in culture and can and will change with it.’ 

Five years after #MeToo, how far has awareness and support for survivors of sexual harassment and violence progressed? To judge from the vitriolic, prejudiced, and horrifyingly misogynistic responses to the Depp v Heard defamation trial , the task of changing attitudes and understandings of gender-based violence is far from over. As Natasha Stott Despoja writes in her tract  On Violence , eliminating the abuse and harassment of women and girls ‘requires a conscious and critical conversation about gender relationships, power, and what builds and changes culture’, situating feminist jurisprudence at the juncture of law, social activism, and academic inquiry. This conversation is a continuing, dynamic enterprise that demands attention and effort from all of us, both within and beyond legal spaces. It requires that we centre the voices of diversely-oppressed women, whose contributions have so often been elided. Equally, it demands that we consider how we enact feminism in our daily lives, our homes, and our workplaces, as well as through our political and judicial will. Yet as feminist jurisprudence evolves and continues to confront the project of dismantling structural, systemic inequality, it also deserves to celebrate the collective resilience emanating from a shared dedication to ending gendered injustice on a global scale. 

Follow Chelsea on Twitter  @chelseawallis_  as well as conversations about The Law That Shapes Us via our official hashtag #TheLawThatShapesUs. 

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feminist jurisprudence

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Feminist jurisprudence is a philosophy of law based on the political, economic, and social issues of equality. As a field of legal scholarship, feminist jurisprudence began in the 1960s. It now holds a significant place in U.S. law and legal thought and influences many debates on sexual and domestic violence , inequality in the workplace, disability rights, and issues of discrimination . Through various approaches, feminists have identified gendered components and gendered implications of seemingly “neutral” laws and practices. Laws impacting  employment ,  divorce , reproductive rights / abortion , rape , domestic violence , and sexual harassment have all benefited from the analysis and insight of feminist jurisprudence.

Feminists believe that history was written from a Western c is -male point of view and does not reflect anyone else’s role in making history and structuring society. This male-written history has created a bias in the concepts of human nature, gender potential, and social arrangements. The language, logic, and structure of the law are male-created and reinforce Western male values and power dynamics. Creating a “binary ” of male and female also creates an implied hierarchy. By presenting male characteristics as a "norm" and anything/anyone outside of that as deviation from the "norm" (otherness), the prevailing conceptions of law reinforce and perpetuate patriarchal power. Feminists challenge the belief in the biological and social concepts of a gender binary. Gender is a social construct on a spectrum, and is not biological. Sex determines a reproductive capacity, but not psychological, moral, or social traits.

Though feminists share common commitments to equality, feminist jurisprudence is not uniform; there are many schools of thought within feminist jurisprudence. 

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Review Essay - Feminist Jurisprudence

Christina Whitman , University of Michigan Follow

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In the 1970s feminist legal theory furthered feminist legal practice. Feminist lawyers saw themselves as advocates of "women's rights," interested in winning legal victories in particular cases. Because their attention was focused on reform through legislation or litigation, the theory they developed was deliberately, if uncritically, grounded in what would be persuasive to those who held power in government institutions. They built directly upon the precedent made in race cases, precedent which assumed that the appropriate goal for social change was equality and defined equality as the similar treatment of similarly situated individuals. The key to the early legal victories of the second wave was the assertion that women and men are similarly situated for all legally relevant purposes.

In the last decade, however, feminist jurisprudence has become less interested in arguing to judges. Instead, its attention has turned to the critique of law itself as a construct of patriarchy. As a prac- tical matter this shift was provoked by the apparent deficiencies of the ostensibly neutral, formal equality strategy in cases involving problems, like pregnancy, that judges thought reflected bedrock biological differences between women and men. Legal scholars, influenced by feminist critical theory in other disciplines, began to ask whether the standard methods of legal analysis necessarily distort what is at stake for women. In a move that parallels the feminist criticism of science, these scholars challenge the assumption that law establishes a neutral procedural framework that provides a fair hearing for all points of view.

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Whitman, Christina B. "Review Essay - Feminist Jurisprudence." Feminist Stud. 17 (1991): 493-507.

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Feminist Jurisprudence

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The Development of Feminist Jurisprudence

1998, Legal Education Review

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• Jurisprudence

Feminism in modern jurisprudence

This article is written by Rishika Rathore , from the School of Law, Jagran Lakecity University. It addresses the subject of modern feminist jurisprudence, along with the feminist philosophy of law and modern schools of jurisprudence. Additionally, it talks about fundamental themes and approaches to the feminist philosophy of law.  

Table of Contents

Introduction

The word feminism has been derived from the Latin word “ Femina ”’, meaning a woman. But, what does feminism imply? There are different answers to this question due to discrete perceptions of the people. The true meaning of feminism is a set of movements with the object of determining, defending, and establishing equal rights for women in the field of economy, education, politics, etc., and social rights for women with equal opportunities. Feminism is an ideology of gender equality, thus a feminist can be a man, woman, or transgender as well. But, here comes another question, i.e. what feminism jurisprudence is?

Throughout world history, women have been deprived of equal rights, status and opportunities by getting labelled as a fragile section. They have been associated with the kinds of work that are within the boundaries of their house. Feminism jurisprudence or feminist legal theory claims that law should be equal for all, without any social prejudice or male domination. It carries the study of standards and application of different issues that have developed and emerged within feminists’ thoughts and eventually became a theory. This paper highlights the sketch of modern jurisprudence, the feminist philosophy of law, and various approaches to it, before concluding insights of modern feminism jurisprudence .

An overview of modern jurisprudence 

The word jurisprudence has been acquired from the Latin word “jurisprudentia”, which means skill or knowledge of the law. It is a subject, whose knowledge creates a base for pillars of whole legal studies and cultivates one’s ideas about a particular theory. Bentham was the first philosopher who analyzed the nature of law, therefore he is known as the Father of jurisprudence .

Jurisprudence is the apex source of democracy and judiciary, on which modern civilization is based. The structure of the judiciary and democratic system carries genes of jurisprudence, therefore it is the DNA of every democracy as well as the judicial system. After the 15th century, the period between then and now is known as modern jurisprudence . It was concerned with the principles of civil law, natural law, and the law of nations. 

Schools under modern jurisprudence

There are six schools of jurisprudence , namely natural, analytical, historical, sociological, realistic, and contemporary. All the schools, except natural, are considered as a part of modern jurisprudence: 

• Analytical school of jurisprudence: It was co-introduced by Bentham and Austin . It insists on what is the nature of law and what could be the possible nature of law. Austin is the f ather of analytical jurisprudence , therefore this school is also known as the Austinian school. 
• Historical school of jurisprudence: It was introduced by Savigny . Through this school, he underlined that law is the source of ritual, customs, etc., therefore Savigny is known as the father of historical jurisprudence . 
• Sociological school of jurisprudence: This school was the first of its kind that highlighted the significance of public interaction with judicial systems and governments while focusing on basic rights. Rudolph Von Ihering is known as the father of sociological jurisprudence .
• Realistic school of jurisprudence: This school was introduced by John Grey. It was focused on the role of courts, judges, court proceedings, and judgments. He made a forecast that “judgments are the source of law”. Therefore, John Grey along with Oliver Wendell Holmes became the father of realistic jurisprudence .
• Contemporary school of jurisprudence: Recently, Indian jurist Mr. Deepak Sharma introduced India’s indigenous jurisprudence, the contemporary jurisprudence. It emphasizes democracy and justice and has been outlined to know the ways to emancipate the democratic structure and to increase the efficiency of judicial systems. Mr. Deepak Sharma is the father of contemporary jurisprudence . 

Feminist philosophy of law – feminism in modern jurisprudence 

Feminist philosophy of law has been a debatable issue among liberal feminists and radical feminists. The former wants non-discrimination, impartial society, and equal opportunities for women, while the latter criticizes the existing structure of law, claiming that it has an essence of patriarchal society. Feminists believe that laws have been made from men’s perspective and no one has ever considered women’s point of view and their contributions in the past. There are three major ideological schools of feminist jurisprudence: 

• Liberal Feminism – This idea encourages independence, freedom from old-aged stereotypes made by a male-dominated society, and gender discrimination.  
• Radical Feminism – This idea is against inequality encountered by women and male perception of considering all men as superiors. It also condemns patriarchal traditional beliefs, for instance, “ghunghat pratha” imposed on women. 
• Cultural Feminism – This ideology is similar to that of radical feminism, as it is concerned with giving wings to the moral and ethical values of men as well as women while appreciating the distinctiveness of men and women. 

The extensive influence of patriarchal thoughts on the legal structure gets reflected in the condition of women in their homes as well as in society. On that account, the feminist philosophy of law acts on the following terms: 

• Turn over a new leaf to restrict gender injustice, women’s exploitation and promote freedom and equality for women. 
• Mirrors a profound shift in fundamental assumptions about the nature of women and their significant role in society. 
• Re-examines the basic understanding of sex, gender, and gender roles.
• Applies insights by considering problems at the junction of sexuality and law. 

Fundamental themes of concern in feminist philosophy of law

The different representations and approaches to feminism have provided various considerable contributions to feminist legal philosophy. In addition to this, feminist legal theory has been evolved, with concerns such as equality, liberty, injustice, and diversity prevailing at different loci. Notwithstanding these different approaches, focuses, and insists, certain themes remain common such as the rule of law, equality, fairness in the law, human rights, etc. 

The rule of law

The rule of law contains a set of principles that provide directions to govern a community in a formal and procedural nature. The formal nature involves norms like stability, publicity, universality, and lucidity that govern a society. The procedural nature talks about the practices by which these norms are directed in institutions like courts, along with the independence of the judiciary. Moreover, rule of law also comprises substantive presumptions like liberty.  

The legal systems are consistent and long-lived conceptual systems that can always be challenged, but the aim of law remains constant. Feminist critics argue that the consistent forming of ideas for the rule of law tends to strengthen and legalize the male-dominated or male-perceived status quo. 

The status quo is an unavoidable bitter truth of law because violations, wrongs, injustices, etc. are defined by variations of law, typically from the old-aged status quo. Thus, feminist philosophers of law have observed and concluded that there is an invisible routine bias, which is so blended that it get accepted not only by lawyers but also by its victim as well as its receivers. Therefore, the primary task of feminist philosophers is to identify such biases through different approaches. Moreover, they condemn the patriarchal state of affairs and nearly universal presumptions about gender imbalance. 

Equality and difference 

Men and women have always been viewed as remarkably different and due to this reason, it has been found acceptable to treat them differently in the law. One of the main reasons is sexuality and gender tasks. Only women get pregnant and only men have a muscular physique. Feminists think that these differences are exaggerated and should be normalized. For instance, pregnancy leave should be given to both women and men, because pregnancy should be considered into biology rather than a social construction, and therefore special treatments like permitting maternity leave to women, will be unequal treatment to men. 

The foremost task of feminist philosophers is to communicate what kind of equality is required against the patriarchal system. On one hand, the liberal feminist focuses on Aristotle’s principle of procedural equality which says – “ similar cases should be treated similarly, while different cases should be treated differently, following their proportionality ”, and on the other hand, other feminists raise skeptical questions whether there are any differences or not that law may legitimately take into account. Thus, the biggest responsibility of the feminist philosophy of law is to identify and acknowledge certain differences without promoting sexism , establishing stereotypes, and injustice. 

Fairness in law

Another domain, where the feminist philosophers attempt to reveal patriarchal norms, is the legal standard of fairness that plays a significant role in law. In terms of traditions, such standards were considered in an average reasonable man. This formation highlights the excessive bias and gendered nature of law. Presently, this standard has been altered from reasonable men to the reasonable person, but feminist argues that such standard still has an essence of male norms. Like in the old days, today also, women’s rationality is decided and judged by patriarchal thoughts. If a woman makes any social blunder, she gets criticized and called irrational or unreasonable. Thus, a persistent theme of masculinist ideology is still reflected in the fairness of the law . 

Public and private distinction 

One of the central themes in the feminist philosophy of law is the sensible distinction between men and women. Liberal and radical feminists have independent thoughts regarding this theme as well. Liberal feminists put forward the idea of keeping the private life reserved for personal choice, but radical feminists step up concerns that there are no specific lines that separate private inequality and exploitation of women from that of the public. Moreover, they argue that patriarchal and sexual dominance infiltrates private relationships. Thus according to feminist philosophers, all the legal systems that permit or strengthen dominance in personal relations should be restricted or reconstructed. For example, in Islamic law men are allowed for polygamy but women are not. Thus, feminists cry out for scopes of distinction between private and public life to avoid discrimination that starts within four walls.

Human rights 

Another concern under the feminist philosophy of law is human rights theories . Progressively, a large number of societies have rejected sexual inequality in law for the sake of basic human rights. But some feminists praise this development but on the contrary, they also argue that societal commitments to human rights are all shallow and hypocritical. They are concerned that many existing laws are nourishing with the reflection of patriarchal thoughts. For example, in India, many civil services or government exams have reservations for women and girl children. It reveals two male-dominated thoughts, first is, a man considers a woman less capable, that she needs special stairs for basic educational rights. Second is, even now some girls and women are not allowed to educate or work. 

Diverse methodologies 

In terms of methodology , feminist philosophers have contributed and broken the ice in other areas of philosophy, that feminist philosophy of law has recognized as well. Although, there were genuine confusions and misunderstandings among feminists regarding the term methodology. Feminist philosophers found it quite difficult to find alternative thoughts within the male-dominated academy. They were concerned or precisely angered since all the popular and academic knowledge was based on men’s lives, men’s perceptions, and associated with the problems faced by men. Therefore, coping with such struggles feminists made great attempts not only to apply but also contribute their original thoughts to feminist knowledge production. 

Approaches to feminist philosophy of law

The liberal equality theory.

Liberal feminism is a specific approach that deals with the achievement of equality between men and women and mainly focuses on the power of an individual to call off discriminatory practices against women. Liberal feminists ’ goal is to encourage an individual to her instincts and abilities to help men and women to become twins in the eyes of law as well as society. The key difference between contemporary liberals and bygone liberal feminists is their beliefs about freedom. A contemporary liberal feminist holds on that the personal liberty and political autonomy of women must be supported to achieve equality in democratic liberal societies. A bygone liberal feminist, on the contrary, claims that feminism’s political mission is restricted to repelling laws that treat men and women differently, and such a task has already been accomplished by them. Regardless of this catfight, their ultimate aim is to organize women into groups that can pronounce and raise awareness at huge levels. 

The sexual difference theory

The theory of sexual difference carries arguments of gender feminism. It argues that the root of women’s maltreatment lies somewhere in the intersection of biology, psychology, and culture. According to it, the cultural characteristics linked with femininity are more superior and powerful than that of masculinity in many aspects, and therefore, men and women should spin their respective rational web. 

The dominance theory 

Dominance feminism is a theory of feminists that discards the approaches of equality and difference feminism. The feminists crying out for equality seek to have systematically equal access to all legal, traditional, and social male privileges for women. On the other side, feminists argue for gender differences and seek different legal and social treatment for women to compensate for past inequalities. Dominance theory, in some ways, supports feminists who fight for gender discrimination because as per this theory male social dominance is the result of well-established inequality between men and women. Dominance feminism gives credit to male concentrated efforts for women’s inferior societal position. It claims that males controlled women through social, sexual, and physical domination. Socially, they mastered women by objectifying and exerting patriarchal control over them, while making them legally powerless. Sexually, they imposed threats of forced sex, using cat-calls, making sexual advantage in the workplace, and moulding them as mere sex objects. As a Hindu shlok says, “naari taran ki Adhikari” – a woman is worthy to get beaten, implies men’s physical torture over women. Dominance feminism is also known as  Catharine A. MacKinnon’s feminism.  

The anti-essentialist theory 

Essentialism can be termed as a collection of fundamental traits which are sufficient and necessary conditions to make things similar. It carries two steps, the first is differentiating between objects by considering the specific parts, and the second is to characterize the things within a sole concept, to provide a better understanding of essentialism. Feminist essentialism can be imprecisely defined as an assumption of universal women’s essence, originated from psychological and biological traits like beauty, sympathy, nurturance, supportiveness, etc. Essentialism fancies that all women share the same innate characteristics. Anti-essentialism simply opposes this assumption. Anti-essentialists defy the use of limited traits such as biology and psychology in the definition of women because it restricts the possibility of alterations in women, thus hindering social recognition of women.        

The postmodern theory

Postmodern feminism is different from other feminist ideologies. It begins with the thought that modern feminists are overly focused on gender differences between men and women, and failed to recognize differences within each gender. Moreover, it claims that gender has been developed by perception-based discussions, that we adopted with the passing time. Apart from these, postmodern feminists claim their key element is that variants of patriarchy are due to women’s social characteristics. These views were framed within the theory of intersectionality which attempts to examine how social, biological, and cultural classes simultaneously interact with each other.    

Conclusion 

Throughout history, men and women have been regarded not only as distinct but also unequal in social status and power. Women have been deliberately cast as opposites to men through some outwitted contrasts such as behavioural traits, for instance, men are assumed competitive, rational, aggressive, intelligent, political, and dominant leaders, while women are supposed as fragile, emotional, domestic, care-giver, and underlings. These variants of assumptions have been omnipresently followed in every political and economic arrangement, from educational to religious institutions, to beauty standards and relationships. Unfortunately, the law is no exception. Therefore, the need for feminist jurisprudence felt among the societies so that law cannot be patriarchal any further, and to achieve such aim, feminists stood up, questioned the male-insight laws or practices, represented examples of illegitimate patriarchy, and guided the methods to establish “ equality” for women worldwide. 

• https://plato.stanford.edu/entries/feminism-law/
• https://blog.ipleaders.in/growth-feminist-jurisprudence-india/
• https://plato.stanford.edu/entries/feminism-liberal/
• https://plato.stanford.edu/entries/feminism-psychoanalysis/#Lac
• https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1243&context=wmjowl
• https://iep.utm.edu/jurisfem/
• https://blog.ipleaders.in/introduction-jurisprudence/

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Feminist Political and Legal Theories

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• First Online: 03 January 2023

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• Antonio Álvarez del Cuvillo 4 ,
• Fabio Macioce 5 &
• Sofia Strid 6 , 7  

Part of the book series: Springer Textbooks in Law ((SPTELA))

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This chapter presents an overview of feminist legal and political thought, aiming at discussing the different perspectives within feminist thought. In the first part, basic concepts in feminist thought such as gender, patriarchy, and feminism are explained, and a brief overview of the historical evolution of feminist movements is provided. The other two sections focus in greater detail on political and legal theories, respectively, including a critical analysis of the influence of patriarchy on mainstream legal and political discourses. The chapter will further provide a description of how classical concepts of political or legal tradition have been reconsidered from a feminist point of view, and a short presentation of the most important issues at stake in both these fields.

Authors are listed in alphabetical order. Antonio Álvarez del Cuvillo has written Sect. 3.1 and 3.2 ; Sofia Strid has written Sect. 3.3 and Fabio Macioce has written Sect. 3.4 and 3.5 . The authors would like to thank Mareike Fröhlich, Thomas Giegerich, Julia Ricarda Jungfleisch and Dragica Vujadinović for their valuable comments and engagement with the chapter. Antonio Álvarez would like to thank Fabio Macioce, Asunción Aragón and Sofia Strid for the comments on his section. The contents of this chapter are based on the syllabus for the course Feminist Political and Legal Theories, by Dragica Vujadinović, Miodrag Jovanović, Tanasije Marinković, Bojan Spaić, Antonio Álvarez del Cuvillo, Asunción Aragón, Fabio Macioce, Sofia Strid and Zara Saeidzadeh.

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• Feminist jurisprudence
• Feminist political theory
• Feminist legal theory

1 Introduction

This chapter will present an overview of what is usually called, feminist jurisprudence , that is to say, feminist legal theory. As legal theory is deeply intertwined with political theory, especially with regard to the critical analysis of the law, we have seen fit to include the latter in the study.

This text provides a basic theoretical framework, which is necessary to apply gender mainstreaming to the different branches of law. While other chapters of the book are mainly focused on empirical material, such as positive law or court decisions, this chapter focuses on theories and ideas. Before beginning to analyse legislation and cases, it is necessary to go in depth into various fundamental issues; the concept of gender, the relevance, the purpose of gender mainstreaming and the different approaches or methodologies that can be adopted. Besides this theoretical chapter, the chapter on Sociology of Law in Gender Perspective as well as to a certain extent the chapter Gender Issues in the Comparative Legal History deal with the most relevant concepts and phenomena, but by placing them in a social-political or historical-political context instead of this mostly theoretical one.

This chapter is mainly focused on feminist theories, and the basic distinction between women and men. LGBTQIA+ and other non-binary aspects are addressed with more detail in the Sociology of Law chapter.

In this brief summary of feminist legal and political theories, this chapter tried to acknowledge the great diversity of perspectives that exists within feminist thought, including debates that have taken place about some essential problems. In that context, the reader is advised to maintain a critical attitude, not only toward the dominant legal discourse but also toward feminist theories themselves and, of course, toward the views adopted by the authors of this chapter.

The contents are divided into three main sections. First, the chapter explains certain basic concepts in feminist thought such as gender , patriarchy , and feminism . In this section, the chapter explores the historical evolution of the feminist movement and the different types of feminism. The other two sections refer to political and legal theories, respectively, following a similar structure, which includes a critical analysis of the influence of patriarchy on mainstream discourse, a reconsideration of the classical concepts of political or legal theory from a feminist point of view, and a short presentation of the most important issues in each field.

2 Gender, Patriarchy and Feminism

2.1 patriarchy and gender.

It is usually accepted that, from a biological or reproductive point of view, the human species has two sexes, because there are two types of gametes. Footnote 1 Commonly, there are anatomical, morphological and physiological disparities between females and males , many of which are easily noticeable by human perception. For that reason, in every society, perceived sex is used to delimit two social groups, women and men. Invariably, this distinction has economic, social, political and cultural relevance.

Binary opposition between women and men is ubiquitous as a cultural mechanism, however it is neither absolute nor continuous. Throughout history, there have been many variations and interpretations of gender and sex. Further, there are cultures or societies that currently recognise additional gender categories that incorporate individuals who do not fit with specific contemporary or traditional gender roles; e.g. third and further genders. Nevertheless, these categories presuppose the binary distinction, in order to be intelligible: for instance, in Zapotec cultures a muxe would be a person assigned ‘male’ at birth that assumes social roles normally attributed to ‘females’. Even the ‘non binary’ category itself implies that there is a binary distinction in society.

This differentiation between men and women is not neutral from the perspective of power or dignity. Indeed, in all known human societies there is some type of male dominance that implies significant inequalities in symbolic status, economic functions, political power, freedom of choice, life opportunities and access to society’s resources. These inequalities are structural and systemic because they are not related to isolated behaviours, but firmly interwoven in society’s patterns, rules, and the structures of power. Therefore, in every society there is a system of male domination; a set of representations, beliefs, values and practices that tends to maintain and reproduce women’s subordination. In Feminist Theory, this structure of power which generates systemic inequalities between women and men is usually called patriarchy . The subsections will delve into the notion of patriarchy in Sects. 3.3.1 (political theories) and 3.4.1 (legal theories).

Every domination system presents itself as an objective reality stemming from the natural order of things. In all societies, the subordinate position of women has been historically considered inherent to the biological distinction between the sexes. For instance, in Western culture, until very recently, the greatest male philosophers and thinkers explicitly legitimized male dominance on the basis of divine will, natural order, or pure reason.

Consequently, the political aim of women’s emancipation necessarily requires denaturalising women’s subordinate position in the social structure, dissociating it from anatomical differences or metaphysical essences. This strategy is present in the eighteenth century in the discourse of Mary Wollstonecraft, who highlighted the importance of education in women’s subjugation, but is particularly well expressed in the mid-twentieth century by Simone de Beauvoir in her famous quote, “One is not born, but rather becomes a woman”. Footnote 2

Throughout the twentieth century, beginning with Margaret Mead’s classical anthropological work, Footnote 3 social scientists have gathered a good deal of evidence that proves the features, personality traits, characteristics, values and social roles attributed to women vary widely across history and cultures, and thus they are not linked to biological differences. Although women have almost always held a subordinate position, the social expectations attributed to them are not the same from one society to another.

Since the late 1970s, the category gender has been used in feminist theory and the social sciences to depict this critical differentiation between sex as a biological reality and the contingent social and cultural patterns attributed to each sex. In the 1950s and 1960s, the term had evolved from grammar to psychiatry and psychoanalysis, in reference to individuals’ gender identity . In contrast, the anthropologist Gayle Rubin coined the term to designate a social structure (the sex-gender system ), defined as “the set of arrangements by which a society transforms biological sexuality into products of human activity”. Footnote 4 Hence, we could define gender as determined social roles and expectations, even as the set of stereotypes, prejudices and cognitive biases that different societies and cultures attribute to each biological sex, that are not a necessary consequence of physiological differences between men and women. In conclusion, whereas sex is biological and relatively objective, gender is a social construct. Footnote 5

Some authors have suggested that perhaps even the category sex could be a social construct. Footnote 6 This claim is very controversial as biologists use the label as a scientific category to represent an objective reality that supposedly exists, regardless of human representations, related to the phenomenon of sexual reproduction that characterises most living species, including humans. Of course, all linguistic categories are social constructions, however this assertion in particular could be interpreted as a relativistic denial of the current scientific consensus about human biology. Footnote 7 Furthermore, from the perspective of social sciences, the deconstruction of sex could dilute the importance of the sex/gender distinction, which has been useful for understanding how social differences are produced on the basis of an individual’s perceived sex. On the other hand, the hypothesis of sex as a social construction could help us to be aware that, in many cases, when we are talking about biological sex in social discourse or in legal reasoning, we are in fact attributing social, cultural, or legal significance to the perceived sexual attributes of a person. In that sense, perhaps we are referring to gender instead of pure biological sex.

In this context, it is useful to differentiate between gender identity and gender . Gender identity is the self-conception that a person has of being a man, a woman, both, or neither. Most people are cisgender , i.e., they identify themselves with the sex assigned at birth. Some people are labelled as transgender , identifying as members of either the opposite gender category or outside the binary classification. While gender identity is a purely subjective experience, gender is a social, intersubjective phenomenon that normally operates regardless of the individual’s self-identification. Gender expectations, roles and stereotypes linked to the social category of women or men will be applied to every person socially perceived as female or male , even if they do not identify themselves as such or if their chromosomal sex does not match their phenotypical feminine or masculine features.

Gender-fluid people that are socially-perceived as women because of their physical appearance could be victims of sexual harassment or sexist discrimination at work, regardless of their personal self-identification as non-binary people.

Gender has a direct connection with patriarchy; the subordination of women and the inequalities of power are supported by a set of psychological dispositions, cultural values, social roles and expectations, that tend to reproduce systemic inequalities. In other words, gender patterns form the basis of symbolic violence, sex discrimination, and gender violence.

Symbolic violence occurs when the cognitive schemes available to women for perceiving themselves and their social relationships with men are “the embodied form of the relation of domination”. Footnote 8 In that context, social inequalities or the conditions that reproduce such inequalities are internalised, naturalised, or accepted by its victims. When symbolic violence is not sufficient for maintaining the subjugation of women, discriminatory practices, including gender violence, come into play. Footnote 9 Of course, these practices are sustained by gender stereotypes and prejudices. Therefore, discrimination and gender violence could be described, not only as consequences of the system of masculine domination, but also as mechanisms that contribute to perpetuating it.

Due to its links with the reproduction of patriarchy, gender is usually considered an oppressive and alienating force in feminist literature; for some authors, the final aim of feminism would be to create a genderless society in which sexual anatomy was irrelevant, Footnote 10 although this is not a unanimous opinion. For instance, gender difference is appreciated by cultural feminism, and self-perceived gender identity could be relevant for personality development. Gender patterns could also be detrimental to men in some way, since they are imposed on the individual regardless of their preferences or personal needs. In this way, Bourdieu states that male privilege is a trap since it gives every man the duty to “assert his manliness in all circumstances”. Footnote 11

Gender is not the only factor that determines social position, discrimination, and privilege. In fact, it interacts with other personal characteristics, including, but not limited to, social class, race or ethnic origin, age, disability, sexual orientation and gender identity. Experience modulated by the intersection of different categories or social circumstances is not merely the sum of these categories. Footnote 12 In that context, intersectionality is the analytical perspective that takes into account the combination of different aspects of people in order to understand their position in the social structure.

2.2 Feminism

Feminism is a philosophical and political movement aimed at ending women’s oppression, Footnote 13 encompassing both theory and activism. Since patriarchy is characterized by systematic inequalities, the basic goal of feminism is to achieve equality between women and men. Footnote 14

2.2.1 History of Feminism

Throughout history and across cultures, people have advocated for women’s rights and against misogyny, or have defended women’s capability to do certain things that were not considered appropriate in the context of patriarchy. This kind of discourse could be called protofeminism , since modern feminism, as an organized movement, appeared in the late nineteenth century in Europe and North America.

This movement has its ideological roots in the philosophical principles of the Enlightenment of the seventeenth and eighteenth centuries, even though in that period masculine domination was not challenged by most authors. Footnote 15 In the late eighteenth century, the declarations of rights resulting from the bourgeois revolutions in the United States and France proclaimed that all “men” were born free and equal; this did not imply the inclusion of women, proletarians or ethnic minorities. In fact, the subordination of women in the public and private spheres was considered natural and implicit in the social order regardless of formal proclamation of the principle of equality. Trying to criticize this contradiction, the revolutionary Olympe de Gouges wrote a pamphlet titled “Declaration of the Rights of Woman and of the Female Citizen” (Déclaration des droits de la femme et de la citoyenne) in 1791, in imitation of the 1789 “Declaration of the Rights of Man and of the Citizen”. In 1792, Mary Wollstonecraft published a protofeminist essay “A Vindication of the Rights of the Woman: With Strictures on Political and Moral Subjects” in Britain and later, in the nineteenth century, authors like Harriet Taylor Mill and her husband, John Stuart Mill, published dissertations which advocated for women’s equality, specially concerning education and politics.

The history of the feminist movement is usually divided into waves , characterized by the main objectives pursued in each historical period. Of course, this distinction is a simplification and should not be considered absolute. There is a great deal of diversity regarding the objectives pursued in each wave, and at the same time, there are many overlaps between them. Footnote 16

- The first wave is identified with the suffrage movement from the late nineteenth century to the first decades of the twentieth century. It is usually considered that the suffrage movement was born at the Seneca Falls Convention, in the state of New York in 1848. Later, in the 1860s it expanded to the United Kingdom and to other countries thereafter.

Besides women’s suffrage, which was clearly the main goal, Footnote 17 the feminist movement in this period was focused on women’s access to higher education and other basic civil rights that nowadays are taken for granted, like the right to own property. Footnote 18

- The second wave is usually related to the feminist movement in the 1960s and 1970s, although some authors consider it began with the publication of Simone de Beauvoir’s essay, The Second Sex, in 1949. Footnote 19 This new impetus of the feminist movement had its roots in the failure of the promises of independency and fulfilment that the dominant liberal ideology of this time granted to women. Footnote 20 Formal equality had essentially been achieved in the United States and other countries, nevertheless, gender inequalities were pervasive. In this period, the feminist movement was mainly divided into two main currents. Footnote 21 On the one hand, many efforts were made to fight discriminatory practices in the public sphere, especially discrimination in the labour market and sexual harassment at the workplace. On the other hand, a new emphasis was placed on analysing personal, sexual and family life from a radical feminist perspective. In this regard, the most famous feminist slogan of this era was “the personal is political”, which is explored in the following sections.

- The third wave is considered to have begun in the 1990s. This stage was characterized by an increase of the diversity of perspectives within feminism. Even though the other waves were not monolithic, criticism was raised concerning the overrepresentation of the interests and views of white, middle-class, professional, cisgender and heterosexual women in high-income countries in the previous configuration of the feminist movement. A new focus was placed on intersectional feminism that drew on the connection between gender, class, race and other personal characteristics. Movements like transfeminism or postmodern feminism have even questioned the meaning or the significance of basic concepts of feminist theory like women, gender or even sex.

- Some authors identify a fourth wave of feminism, from 2012–2013 to the present day, that implies a new impetus in the movement. This is mainly concerned with diverse online/offline forms of gender violence (domestic violence, rape culture, sexual harassment), body shaming and women’s representation in the media and Internet. Footnote 22 Online activism and social media are particularly important in this wave, providing rapid global dissemination to initiatives, such as the #MeToo movement. Intersectionality is still highly relevant in the fourth wave, perhaps even more so than in the third wave.

2.2.2 Types of Feminism

Feminism is very diverse. In fact, it could be considered not as a single movement or ideology, rather as a set of different social movements and theories that share the same basic goal of defeating the systemic oppression of women. Feminist theories vary and often contradict or complement each other due to epistemological, ideological, or strategic differences. Such a plurality gives rise to many heated debates regarding concrete practical issues, such as the regulation of prostitution or the inclusion of trans women. A classification of theories could allow a better understanding of this complexity, however it should be approached with caution due to the diversity within each type of feminism, and there being many combinations of these different approaches, both in theory and in practice.

The most common classification distinguishes liberal feminism, Marxist feminism, radical feminism, cultural feminism and postmodern feminism as different types. Footnote 23 In the last decades, ecofeminism has also become popular.

Liberal feminism agrees with political liberalism, and for that reason, it claims the basic values of freedom and equality should be applied to women as well as to men. Women should enjoy the same legal and political rights as men, since they are rational beings. Footnote 24 However, they are sometimes excluded from the public sphere (employment, politics and legal field) without proper justification, given that they are equally capable to fulfil these roles. In that context, the main concern of the liberal feminist is fighting discrimination without challenging the dominant ideology, the liberal democracy, the meritocratic principle or the market economy. Footnote 25

Marxist feminism relates women’s oppression to the social relations of production that cover basic human needs in all societies. Although classical Marxism is indeed concerned with women’s subordination, this topic has usually been subsumed under class oppression, Footnote 26 which implies that gender relations have often been ignored or marginalised in classical studies. Footnote 27 However, subsequent studies in the last decades have used Marxist analysis to address the situation of women as a central political issue. Footnote 28 It should be remembered that, in Marxist theory, the material basis of society is constituted not only by the production of material goods, but also by the reproduction of human life. In that vein, the subjugation of women would be related to the division of productive and reproductive labour that implies some kind of appropriation of the domestic and reproductive work of women. Marxist feminism is also called Socialist feminism , although some Socialist theories are not particularly linked with Marxist methodology.

Radical feminism focuses on the unequal power relationships between men and women, embedded in the core structure of the society and supported by law. Footnote 29 Whereas in liberal feminism , women’s exclusion from formal institutions is the main cause of gender inequality, in radical feminism, it is a consequence of the deeper structures of male domination. Footnote 30 Patriarchy is seen as the most ancient and pervasive system of domination Footnote 31 and it is firmly attached to society, not only in the public sphere, but also in family life and private relationships. Therefore, women’s liberation is not only achieved through legal reform, but also through awareness of the systematic relations of domination in everyday life. Hence, the slogan of second wave feminism, quoted above, “the personal is political”.

Cultural feminism (or difference feminism ) highlights and celebrates physical and psychological differences between women and men, Footnote 32 such as female sexuality, attitudes considered to be feminine or the experience of motherhood. As seen above, feminist theories and movements usually tend to emphasise substantial equality between women and men, denaturalising gendered expectations about the essence of masculinity or femininity. Conversely, cultural feminism values and appreciates women’s experiences and feminine attitudes, detaching them from the social position of inferiority that women historically have suffered. In some cases, it implies that “womanly” attributes like emotional sensitivity, nurturance and cooperation, are valued over attitudes related to masculinity such as competitiveness or aggressiveness. Footnote 33 Some cultural feminists consider that there is an actual feminine essence, derived from biological facts, however not all of them are essentialist. Indeed, it is possible to recognize that gender patterns are contingent, and, at the same time, to have a positive understanding of the real experiences and values developed by women in gendered societies.

Postmodern feminism is characterized by a general mistrust of the pursuit of objectivity, certainty or ultimate truths. Footnote 34 It denies the universal validity of global explanations and meta-narratives Footnote 35 and embraces complexity, uncertainty, particularities and diversity of perspectives. As this chapter has mentioned earlier, basic concepts relevant in feminist theory like sex, gender, women or feminism itself are often criticised, questioned, or deconstructed. Postmodernism is also related with queer theory , a critical academic discourse that claims gender identity and sexual orientation are fluid and variable rather than fixed and discrete, thus undermining the boundaries between the sexes, the genders and the sexual orientation categories. Footnote 36

Ecofeminism: explores the connections between patriarchy, exploitation of nature and all forms of violence. Footnote 37 Therefore, it blends feminism and environmentalism, and sometimes, pacifism too. Footnote 38 There are different approaches to ecofeminism (for instance, cultural ecofeminism, radical ecofeminism, socialist ecofeminism) Footnote 39 and some branches are interested in spirituality or religion, whereas others are not. Footnote 40

3 Feminist Political Theory

3.1 patriarchy in feminist political theory: an overview.

If we focus on political theories, the concept of patriarchy, as well as the many terms used to denote the contested concept, has a long history: it has been used by feminists like Virginia Woolf, the Fabian Women’s Group and Vera Bitten. Footnote 41 The concept itself goes back much further, being at the core of feminist political theory, either as the explanans or the explanandum, until relatively recently. Footnote 42

Patriarchy can be conceptualised as a system or systems producing and reproducing gendered and intersectional inequalities, and men’s power and women’s subordination. It is a system of social, political and economic structures and practices, in which men as a group/category govern, oppress and exploit women as a group/category. Footnote 43 The concept refers to both the greater aggregate social, economic, and political power men as a group have over women as a group and over further genders as a group, and to the power hierarchies between both individual men and between groups of men. Footnote 44 Patriarchy is simultaneously structural and ideological, a hierarchical organisation of social institutions and social relations: “structurally, the patriarchy is a hierarchical organization of social institutions and social relationships that allows men to maintain positions of power, privilege, and leadership in society. As an ideology, the patriarchy rationalizes itself. This means that it provides ways of creating acceptance of subordination not only by those who benefit from such actions but also by those who are placed in such subordinate positions by society”. Footnote 45

Whether advanced as an analytical tool or the focus of substantial critique, the concept of patriarchy has formed a constant feature of feminist academic and activist work. Politically, feminists have used the concept in the search for an explanation of experiences and feelings of oppression and subordination, and in the desire to transform these into political practices. Analytically, patriarchy has been used to address and explore the basis of women’s subordination and to analyse the variations of the basis/bases. In feminist theory emerging in the 1960s, patriarchy became a crucial framework for explaining the persistence of gender inequality at a systemic level. Footnote 46 The concept was used by Millet in the seminal book Sexual Politics published in 1969 to refer to male domination and to the power relationships by which men dominate women, Footnote 47 and the year after by Firestone in The Dialectic of Sex to capture the “sexual class system”, which she argues predates and runs deeper than any other form of oppression. Footnote 48 A few years thereafter, Mitchell used patriarchy in Psychoanalysis and Feminism (1974), to analyse the effects of kinship systems where men exchange women, and of fathers’ symbolic power in those systems on the psychology of women. Footnote 49 Hartmann used it to define men’s power over women and to analyse the relationship between men’s power over women and capitalism. Footnote 50 In Eisenstein’s defence of liberal feminism, patriarchy was used to describe the sexual hierarchy manifested in the many roles of women within the family, e.g. as mother, domestic labourer and consumer. Footnote 51 To Jónasdóttir, patriarchy is a historically specific form of men’s exploitation of women in formally equal and developed democracies, captured by the concept of love power, Footnote 52 to mention a few. Footnote 53

Feminist theories of patriarchy, or feminist theorising patriarchy, include the attempts to formulate a coherent theory of the basis, or rather bases, of the subordination and oppression of women. These include Millet’s aforementioned deployment of sexuality, Footnote 54 Hartmann’s use of capitalism, Footnote 55 and additional bases of oppression, including biology; Footnote 56 sexuality; Footnote 57 the domestic mode of production; Footnote 58 kinship pattern; Footnote 59 biological reproduction and the care of dependent children; Footnote 60 reproduction more generally; Footnote 61 and sex/affective production (the production of sexuality, bonding, and affection as the core processes of society). Footnote 62

While noting the variety of theoretical approaches and attributed bases to patriarchy, it is also clear that the exact form, in terms of structures, processes and actions, that patriarchies take varies across societies and cultures, and varies historically. There is a vast literature on historical analyses on patriarchy, or patriarchies, ranging from Elshtain’s classic expositions of the patriarchal line from God(s), to monarch/emperor, to fathers and to other men Footnote 63 through to historical change from private or domestic patriarchy to public or modern patriarchy. Footnote 64 These latter historicizations of patriarchy can be seen in part as a response to some (feminist) critiques of broadbrush and overgeneralized analyses of patriarchy. Footnote 65 Such broad historical accounts have sometimes been complemented by attention to the historical diversification of structures and domains within different societal forms of patriarchy, in which violence exists alongside other domains, for example, sexuality, work/capitalism, family/procreation, civil society, polity, culture/ideology/discourse. Footnote 66 There have been further developments of a strong class take on patriarchy and of ‘patriarchy-capitalism’. Footnote 67 More recently, there has been further engagement of patriarchy with neoliberalism, as, for example, in Campbell’s ( 2014 ) coining of ‘neoliberal neopatriarchy’ Footnote 68 and globalization, postcolonialism, and processes of transnationalization, as in ‘global patriarchy’, Footnote 69 ‘trans(national)patriarchies’, Footnote 70 ‘postcolonial patriarchy’, Footnote 71 various transitional forms of patriarchy, Footnote 72 ‘racialized patriarchy’ and the inherent racism of patriarchy. Footnote 73 Hence, there is wide variation in the meaning and use of both term and concept. Footnote 74

The debates about the usefulness of patriarchy as a concept are often arguments about ontology, methodology or politics, and the usefulness in understanding and enabling the analysis of various relations, processes and sites/domains as structure. Hence, the concept of patriarchy offers an axis for understanding female subordination throughout premodern history. However, the logic of patriarchy without the logic of emancipation embedded in modernity (connected with political revolutions, industrial revolution, emerging of mass education, and the suffragette and feminist movements) cannot serve as the analytical tool for understanding contradictory status of gender relations in modernity. The conclusion is, then, that it is not enough to use only the logic of patriarchy in the context of modernity, rather the dialectic of patriarchy and emancipation from patriarchy must be used as the methodological axis and analytical tool for understanding gender relations in modernity and contemporaneity. Footnote 75

3.2 Central Concepts of Political Thought Reconsidered

Feminist political theory challenges some of the most established and taken for granted concepts in the history of political thought, including public and private, equality/inequality, freedom, justice, citizenship and democracy—to mention a few. This subsection first considers the central role of the political , deriving from the second wave feminist argument regarding the interrelation of the private and public, personal and political. This concept and its consequences are central to feminism, feminist theory and feminist political theory, laying the foundations for how we can think politically whilst challenge prevailing patriarchies, labelled gender orders (as used by R.W. Connell), gender systems (as used by Yvonne Hirdman) and gender regimes (introduced by Sylvia Walby). Footnote 76 It then introduces the concepts of equality/inequality, freedom, justice, citizenship and democracy, including the feminist critique of them (?).

For most of its history, political theory has ignored women and women’s experiences. Consequently, most of the history of feminist political theory has attempted to remedy this. The inclusion of women, women of colour, women of different social classes, women of different sexualities, women of differently abled bodies and ages and so forth has been a key achievement for feminist political theory over the past 60 years. A second key achievement for feminist political theory, and an ongoing unifying commitment, is the expansion of the boundaries and enlargement of the scope of the political sphere. Footnote 77 The political argument, turned into famous slogan, of the student movement and second wave feminist movement of the late 1960s, “the personal is political”, which was mentioned in the first section, points towards this expansion. The core of the argument is that politics takes place in the personal, in the private, in women’s everyday experiences of subordination and inequality, and what happens in the personal, private sphere, in women’s everyday life, has political importance. The political argument underlines the interrelations between personal experience and the larger social and political structures, thereby challenging both the nuclear family and family values. Footnote 78 Further, the expression “the personal is political” emphasised that issues that were considered women‘s personal issues were in fact political issues and in need of political intervention to generate change. Such issues included: sex(uality), reproduction and birth control, childcare and housework, bodily integrity and intimate partner violence. Finally, “the personal is political” connects to the idea of a global sisterhood, a perception that women share common needs or interests irrespective of ethnicity, race, class, culture, marital status, sexuality and (dis)ability, although the specific content of that shared commonality has long been debated. Footnote 79

The distinction between private and public, personal and political, has been pivotal and one of the “grand dichotomies” in western political theory and thought. Footnote 80 Since Aristotle, the ‘political’ has been constructed as the realm of reason and rationality. It was in the political sphere that social and cultural institutions could be questioned and changed, a place for reasoned and rational discussion and deliberation. However, as feminist political theorists Jane Mansbridge Footnote 81 and Susan Moller Okin Footnote 82 write, when Aristotle defined politics as the affairs of the polis, he simultaneously defined the household, the home and the private as other, as the non-political, thereby as a realm that could neither be questioned nor changed. Footnote 83 The influence of Aristotle, often considered next to Plato as a founding figure of political philosophy whose writings constitute canon literature in political philosophy and political theory, on western political thought and its consequences for the position of women and women’s rights cannot be overestimated. Aristotle’s definition of the polis as public, distinct from the private, set the boundaries of political thought and intervention up until, and in part including, the twentieth century, thereby excluding much of women’s lives and experiences from political questioning and state interventions. It further excludes women (and others, e.g. enslaved men, non-athenians) from citizenship: to Aristotle, citizenship was linked from public participation, to involvement in politics. For example, the division of private and public, where state interventions are considered illegitimate in the private, has long term and serious, sometimes deadly, consequences for women victims/survivors of men’s violence: as will be discussed in the Sect. 3.4 , devoted to legal feminism, such a distinction effectively sanctioned and legitimised marital rape, sexual violence, forced marriage, female genital mutilation and other forms of violence against women. These were considered for a long time as private matters, sacred in the realm of the family—and by no means a matter for the polis or democracy itself.

Feminist political theorists showed, in their critique, that what had been considered the private realm was saturated with unequal power relations: the household was, as shown by Susan Moller Okin, structured by gender hierarchies, domination and inequalities. Footnote 84 The hierarchies of the household and its effect on women’s capacity to participate in the public led to an argument that the very distinction fuelled the domination of women by men. The sexual division of labour in the household led Carol Pateman to conclude that the “Sexual Contract” between women and men preceded the “Social Contract” between equal and independent men, as introduced by Hobbes, Locke and Rousseau. Footnote 85 Drawing on the notion of the social contract Pateman, and others (e.g. Iris Marion Young, Sheyla Benhabib, Ruth Lister and Rian Voet), developed a key critique of the concept of citizenship and illustrated how it was gendered: the history of the concept and practice of citizenship is built on an abstract gendered subject who is male, white, and able-bodied, hence excluding women, minority groups and marginalised groups. Citizenship is therefore constructed around men, male and masculinity, and rests on the separation/dichotomy of public and private – on patriarchy. Women can only access it by resolving the so-called Wollstonecraft’s dilemma, which presents two alternatives: “either women become (like) men and so full citizen, or they continue at women’s work, which is no value for citizenship.” Footnote 86 To Young, the solution lies not in resolving Wollstonecraft’s dilemma, but in a model of a heterogeneous public, which situates women as a group among other marginalised groups, such as ethnic minorities, the poor, and the aged. According to Young, these groups are prevented from participation in the public arena,—preventing from exercising ones citizenship, due to the liberal emphasis on homogeneity, impartiality, and normative rationality. Footnote 87 Instead of highlighting similarity and sameness, Young emphasises group difference.

The basis of women’s access to full citizenship hence draws attention to issues of sameness and difference, and the concept of equality in feminist political theory. At its core, feminist theory (and feminism) theorises political, economic and social equality between sexes and genders—albeit that different feminist theories and movements have different visions of what equality means and what strategies to deploy to achieve it. Gender equality can first, be categorised as either a vision and a goal in its own right, or as a strategy and a means to some other goal, for example economic development in contemporary capitalism. Gender equality has been defined in three ways: (i) sameness, (ii) difference, and (iii) transformation. Sameness, here, means that since men and women are fundamentally the same, they should be treated equally. Hence, equality means equal treatment. This leads to understanding equality as equal opportunity and resonates with a liberal feminist vision of equality. Difference, here, means the equal valuation of different contributions: men and women are fundamentally different and may contribute differently, however those contributions should not be valued differently. The transformation approach to gender equality does not focus on the extent to which men and women are the same or not, but rather on the social, political and economic systems and forces that enable, or not, change. Instead of comparing contributions, the focus is on the transformation of structures that can cause change, and transform gender equality. Footnote 88

The centrality of the private/public dichotomy in political thought and the feminist challenge of these boundaries have consequences for our thinking and understanding of further central concepts, not only democracy, citizenship and equality as outlined above, but the very notions of freedom and justice that develop from this distinction (see Sect. 3.4.2 below).

3.3 Central Feminist Political Issues

Feminist political theory concerns not only women or gender, rather, a range of topics and concerns including: power relations and how these are gendered; and how they intersect with class, disability, ethnicity, gender identity, nation, race, religion, sexual orientation, and masculinity. Feminist political theory questions the seemingly natural and natural objects, including the self, the family, and sexuality, thereby questioning the power relations embedded in these seemingly natural institutions. Feminist political theory offers a critique of the history of political philosophy; its norms and theories, and is inherently diverse, plural and characterised by its rejection of essentialism, as “a notion that social categories are unchangeable with essences that map onto given characteristics and inequalities”. Footnote 89 Following on from the logic of the section on feminist political theory, starting in patriarchy and continuing with the notion of “the personal as political”, issues of central concern in this subsection are violence, pornography, prostitution and (hetero)sexuality. Other key central feminist issues, such as the division of labour, gender and economics etc., are discussed in the chapters on Labour Law and Gender and Economics in this textbook.

There is a long tradition of feminist and intersectional research on men‘s violence against women. Footnote 90 Violence is key to understanding social inequality and gender relations: men’s violence against women is often understood as both cause and consequence of unequal power relations between men and women. Footnote 91 Feminist understandings of violence against women are not limited to use or threats of physical force, but also include sexual, psychological, verbal, and economic forms of violence and financial abuse, as well as coercion, control, harmful traditional practices, and in online/offline contexts.

The UN Secretary General’s widely cited definition of gender-based violence against women goes beyond physical injury, defining it as:

“violence that is directed against a woman because she is a woman, or violence that affects women disproportionally. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty”. Footnote 92

Further, and contrary to conventional psychology and criminology, feminist and intersectional analyses of violence make visible how violence is being directed from the relatively powerful to the relatively powerless. Footnote 93

Such feminist definition and understanding of violence links sexual violence with prostitution/sex work and pornography. This is a central issue and debate in feminism, dubbed the ‘sex wars’ or the ‘porn wars’ in the late 1970s and 1980s, it continually influences and positions contemporary feminist theory. Footnote 94 The differences spanned across various issues related to sexuality, sexual activities, and sex, including pornography, erotica, prostitution, LGBTQIA+ and the role of transgender women. Feminists such as Andrea Dworkin and Catherine MacKinnon are positioned on the critical side, declaring that pornography and prostitution were exploitation and violence rather than sexual preference or orientation. In contrast, Ellen Willis and Gayle Rubin declared these issues to be a matter of preference and choice. Some commentators have announced the sex wars as the end of the second wave and beginning of the third wave feminism. Footnote 95 Although contested, sex and sexual violence tend to be pictured as two radically different phenomena. Footnote 96 In contrast to this, contemporary feminist researchers have highlighted that it is often unclear where to draw the line between just sex and sexual violence. Notions of ‘grey zones’ and debates around consent have arisen, not least after the feminist campaigns and social movements #talkaboutit and #metoo. Footnote 97 They have pointed out that, in so far as (hetero)sexual scripts are organized in line with a gendered logic that has much in common with the dynamics of sexual violence, “[m]any rapes merely extend traditional heterosexual exchanges, in which masculine pursuit and female reticence are familiar and formalized”. Footnote 98 Catharine MacKinnon famously took this insight to its logical extreme, virtually erasing the distinction between (heterosexual) sex and violence. MacKinnon’s disturbing question still resonates: If sexual and gendered reality is socially constructed in a way that eroticizes male power and female submission, how can we possibly distinguish sex from violence? In a less reductionist form, the observation that normative (hetero)sexuality is infused with violent dynamics has been articulated as a continuum of sexual violence, whereby “‘typical’ and ‘aberrant’ male behaviour shade into one another”. Footnote 99 Other central feminist issues are discussed towards the end of this chapter.

4 Feminist Legal Theory

4.1 patriarchy in legal thought and legal practice: an overview.

When considering the legal aspects of feminism, the effects of patriarchy in law are pervasive and well-established. As Luce Irigaray clearly highlights, “Their [men’s] discourses, their values, their dreams and their desires have the force of law, everywhere and in all things. Everywhere and in all things, they define women’s function and social role, and the sexual identity they are, or are not, to have”. Footnote 100 Accordingly, it is not surprising that feminism has devoted a wide range of studies to the analysis of the influence of patriarchy and patriarchal norms on the conditions of women, extending to those who do not conform to these male, heterosexual, and cis-gender norms. And since, as has already been argued, patriarchy is not merely a form of social organisation in which males are the head of the family, rather where the whole of society is governed by male rules, male hierarchies, male desires, and gendered social structures. Feminist legal scholars have focused on the intersection of gender and law, contemporaneously discussing strategies to correct gender injustice, exploitation, or restriction. In this vein, feminist scholars have analysed legal systems and institutions starting from the recognition of their intrinsic patriarchal structure, which creates a subtle duality between men, who are the “Subject”, and women, who are the “Other”. Footnote 101 In relation to law, this pervasive dualism produces oppression and the invisibility of women, creating difficulties in making their voices heard and acted upon: all this, behind a veil of objectivity and neutrality that hides the orientation of law towards the needs and goals of male subjects.

In a 1992 essay, the British sociologist Carol Smart identifies three phases of feminist positions on law. These phases are linked to the three “waves” of feminism, which have been analysed in the subsection devoted to the history of feminism (Sect. 3.2.2.1 ). Although they are not reducible to them: “the first stage is epitomized by the phrase ‘law is sexist’, the second by the phrase ‘law is male’, the third by the phrase ‘law is gendered’.”. Footnote 102 Therefore, starting from the recognition of such a patriarchal orientation of law, the first phase feminist legal scholarship focused on the consequences of patriarchy in terms of exclusion of women from public life, what some scholars labelled as the male monopoly of law. Footnote 103 In this phase, those positions which criticise the law prevail because it is not (as it claims to be) objective, rational, and impartial. Rather, by distinguishing between men and women, the law discriminates against women by distributing fewer resources to them, denying them equal opportunities, and refusing to recognise the offences against them. Consequently, the debate on patriarchy takes the form of the quest for equality in the professions as well as in politics, attempting to remove existing rules that operated to the detriment of women, without criticising the basic assumptions of the legal system itself (its consideration of subjects as gender-neutral individuals, holding gender-neutral rights). Footnote 104

It is in the second phase that legal feminism explicitly addresses the male orientation of law; feminist legal scholars criticize the impartiality and objectivity of legal systems, uncovering the male standards and assumptions that permeate these concepts. MacKinnon, for instance, argues that ideals such as objectivity and neutrality, which are typical of Western legal culture, are actually masculine values that have been taken as universal values. Thus, with respect to the approach “the law is male”, this means that when a woman stands before the law, the law applies fundamentally masculine criteria. Footnote 105 Similarly, feminist legal scholars highlight the male standards underlying criteria such as the “reasonable person”, and how these standards mask male construct and male standards, thereby consolidating male dominance. Analyses thus focus more on the societal structure which is the legal systems’ background, than on specific rules that unequally affect women. Within these perspectives, both radical and Marxist feminists argue that inequalities arise from the gendered structure of the whole of society (rather than from single bad laws), and that the relationship between the sexes is determined and shaped by the oppression of women by men, in addition to the structure of privilege and oppression. Footnote 106

The third phase does not simply question the gendered structure of society and legal systems, but the role of law itself, adopting postmodernist philosophies and deconstructionist approaches. In this third phase, the condition of women is analysed with greater attention to the local dimension and specific context. The critique of the effects of patriarchy on the condition of women is carried out without referring to mono-causal theories; the impossibility of reducing the condition of women to a single set of factors is emphasised, and the possibility of highlighting ‘essential’ elements useful in defining the condition of women is denied, highlighting instead the importance of factors such as class, race and age. As some scholars have pointed out, Footnote 107 the deconstructionist approach tends to question certain assumptions of previous feminist theories, and in particular the implicitly white, heterosexual, and middle-class point of view that underpin these theories. What is criticised, as highlighted in the Sect. 3.2.2.2 on the “types” of feminism, are not the conclusions reached by these theories, instead the very claim to be able to elaborate a theory of patriarchy that is adequate for all women regardless of race and class differences, and the ethnocentrism of some theories of women’s oppression in non-Western cultures. More generally, any theory which fails to attend to the diversity of women’s condition is criticised, claiming that in order to understand the many different forms that patriarchy can take, the importance of contextual analyses, of subjective narratives, and of individual experiences must be stressed. Therefore, the substantial irreducibility of the experience of women of colour to that of white women is reaffirmed, including the impossibility of talking about patriarchy and the oppression of ‘women’ in general, and the need to include different experiences and points of view in the debate. Footnote 108 At the same time, lesbian feminists point out that patriarchy and oppression, as theorised by prevailing theories, presuppose an underlying heterosexual binarism, which neglects the condition of lesbian women and their needs. Footnote 109 In the same vein, postmodernist theories deconstruct the very concepts of gender and sex, and the binarism (man-woman, subject-other, oppressed-oppressor) that they presuppose. The results of this approach, while significant in philosophical terms, have nevertheless been criticised politically, and in relation to their ability to affect the legal structures and institutions that are the source of inequality and oppression. As Bordo points out, Footnote 110 the postmodernist critique risks delegitimising feminism as a theory, so as to make the claim of rights and opportunities more difficult: in other words, even though convincing on a theoretical level, the postmodernist approach risks neglecting the everyday difficulties that women encounter on a legal and political level.

4.2 Central Concepts of Legal Thought Reconsidered

Since law determines the fundamental values of a society, and codifies what is (allegedly) universal and objective, legal feminism is aimed at unmasking the systemic prejudices on which the law is based, which condition not only the subjects charged with applying the law, but also the life of every individual. In order to fulfil this task, feminist scholars reconsidered and renamed personal experiences and legal concepts, applying methodologies such as conceptual analysis and normative critique. The work of MacKinnon has been pivotal, as already seen in Sect. 3.3.3 , in renaming sexual harassment, pornography and rape from the point of view of those who suffer these offences, and in conceiving this point of view as collective. Footnote 111 Even if she has been accused of blindness to the differences between women, and a totalising view of the ‘domination’ of men over women, her use of legal concepts nonetheless enhances both their practical and symbolic implications. Similarly, Olsen reflected on a series of oppositional pairs that emerge in the liberal tradition, such as active/passive, rational/irrational, objective/subjective, thought/feeling, reason/emotion, power/sensibility, culture/nature etc. As already observed in the Sect. 3.3.2 , while the first terms of these pairs have been traditionally associated with the masculine, and within the world of law, the second have been linked with the feminine. As a consequence, not only have women’s traits generally been stereotyped and regarded as alien to law, but women’s access to and influence in law have been limited. Footnote 112 On this basis, the sexualisation of law can either be rejected as such, claiming the full capacity of women to be rational, active, etc., and use the law for their own ends, or it can be rejected in its hierarchical structure, claiming the importance of “feminine” values and their importance in law. A third approach, which Olsen calls ‘androgyny’, tends to highlight how both character groups are present in both men and women, and to problematize their very content and boundaries. In other words, feminist approaches to legal studies have been characterised by the assumption of a gender perspective (aimed at unmasking the alleged neutrality of law); by a critical orientation (oriented towards the promotion and emancipation of women through legal norms); and by a desire to reframe the relationship between theory and practice (in order to eschew abstractions in legal interpretations and offer effective solutions to real-life needs).

One of the concepts that has long attracted the attention of feminist legal scholars is certainly that of equality, and the relationship between equality and difference. In considering the conceptual relationship between equality and difference, the reformulation of these concepts in the search for an equality that may be realised through the enhancement of differences, as well as the consequences in terms of political and legal choices, have long occupied feminist literature. The principle of procedural justice articulated by Aristotle that like cases should be treated alike, and different cases differently in proportion to their differences, has been taken as a critical starting point, in considering what equality requires against a patriarchal legal background. This notion of equality, although apparently neutral and objective, has proved problematic for women because of the circumstances in which women are not like men (such as sexuality, reproduction), and of their different social, political, and economic background. Therefore, the concept of equality has been crucial in eighteenth and nineteenth century to promote the idea that women (as any human being) are by nature free, equal, and endowed with the same inalienable rights as man, thereby challenging their inferior legal status. In contrast, feminists challenged the concept of equality by arguing that equality takes man as the standard (equal to whom ?), presuming that men and women should be similarly situated in society, contemporaneously ignoring both the differences between the sexes and those amongst women themselves. Consequently, with regard to the equality/diversity pair, feminists not only elaborated subtle analyses on the alternative between formal and substantive equality, they further expanded the concept in terms of equality of opportunity, equality of results or outcome, equality of condition, equality of power, and social equivalence Footnote 113 but also argued for an intersectional approach in order to better acknowledge the way in which race, class, gender and other systemic oppressions work together. Footnote 114

The debate over the pair equality/difference aimed, among other things, at unravelling the biases and male basic assumptions that underlie the traditional legal understanding of equality, thus advocating for a reconsideration. Feminist scholars stressed that when women are compared to men in order to assess whether they have been treated equally or not, the outcome may be the pathologisation of women themselves; such an approach uses the male as a comparator. In doing so, this normalizes his experiences, measuring women’s experiences against male standards.

In the debate on policies related to pregnancy and motherhood of women workers, it is affirmed that maternity protection regulations serve to protect women and to shift the costs of reproduction (in terms of career, time, opportunities) onto society. However, many feminists believe that this kind of legislation favourable to working mothers tends to brand women as ‘problematic’ and reinforces the idea that only mothers should take care of children. Footnote 115 In Italy, for example, maternity leave is only granted—albeit extensively consisting of a minimum of 5 months—to women. If, from a formal point of view, this guarantees job protection, from a substantial point of view this tends to disadvantage women at the time of recruitment, and in income levels. It may represent women as ‘costly’ from the employer’s point of view, compared to their male colleagues.

In this vein, some feminists argued for a reconsideration of the equality/difference dilemma outside the logic of hierarchy. Such logic, as highlighted by Mackinnon, stems from the overlapping of biological difference and societal gender hierarchy, whilst hiding underlying asymmetries of power and systems of domination. Footnote 116 Equality, in her view, should be understood as a counter-balancing force, a way to reshape power asymmetries between groups and individuals, dismantling the domination of some (historically, men) over others. What is at stake, as highlighted in Sect. 3.3.2 , is not merely an asymmetrical and detrimental treatment , rather an asymmetrical distribution of power : equality, in this perspective, is almost a function of empowerment. Therefore, as in legal analyses, the discussion on equality goes beyond the alternative between what is “same” and what is “different”: it requires that male domination be uncovered and balanced, by constructing a legal standard that takes the perspective of women and their possibilities to act in society into account. MacKinnon’s works on sexual harassment of working women Footnote 117 and violent pornography Footnote 118 have been pioneering in this regard.

A second, fundamental goal of feminist jurisprudence has been the pair oppression/discrimination, in order to oppose and reform barriers to women’s participation in the public sphere, with specific regard to legal structures that put disproportionate burdens on women. Accordingly, MacKinnon’s analyses on male domination urged feminist legal scholars to focus on the legal structures of oppression, rather than on specific rights-related discriminations. In contrast from discrimination, oppression is produced in a systemic way; it operates through social, political and economic systems that simultaneously limit women’s opportunities and penalise them in different but inevitable ways. With an instructive metaphor, Frye describes oppression as “a birdcage”. “If you look very closely at just one wire, you cannot see the other wires. If your conception of what is before you is determined by this myopic focus, you could look at that one wire, up and down the length of it, and be unable to see why a bird would not just fly around the wire (…) it is only when you step back, stop looking at the wires one by one, microscopically, and take a macroscopic view of the whole cage, that you can see why the bird does not go anywhere; and then you will see it in a moment”. Footnote 119 Additionally, oppression targets groups rather than individuals. Unlike discrimination, which can affect individuals as well as groups, oppression primarily involves groups. Individuals are consequently affected by oppression because they belong to a group; legal, social and cultural norms, institutional mechanisms, practices and habits, symbols and mechanisms of mass communication. Each of these forces can represent a vehicle for oppression, from a structural perspective, regardless of individual conditions and resources. Footnote 120

One of these sources of women oppression, and a third central focus of feminist critique over the years, has been the distinction between the public and private spheres. The political relevance of this distinction has been already discussed in Sect. 3.3.2 . Focusing on the legal consequences, it is possible to highlight the assumption of a clear-cut distinction between the public and the private realm entails the idea that personal relations are a site of legal non-intervention, a sphere where individuals are sovereigns, and a boundary which the law cannot (normally) cross. Accordingly, feminist scholars attempted to overcome the distinction itself, criticising ideologies that assign men and women to different spheres on the basis of their natural characteristics, inevitably confining women to positions of inferiority, and hiding abuses and oppression from judicial scrutiny and redress. Footnote 121 Contemporaneously, other scholars insisted that it should be preserved, both to protect women’s interests in matters like child custody and reproductive freedom, and to protect a site of women’s empowerment against discrimination, especially for non-white women. Footnote 122 For that reason, some scholars attempted to reconsider the distinction, highlighting the relations between the domestic sphere with both the state, the official-economy of paid employment, and the arenas of public discourse. Footnote 123 Others argued for a different rethinking of both the private and the public sphere, by drawing attention to the many aspects of family life that, in spite of the rhetoric of privacy, are in fact hedged with legal regulation, such as marriage, divorce, child custody, and social welfare rules. The fact that even if state’s regulation may be less relevant, there are non-state power and non-state bodies at work, which are linked with each other. Footnote 124 In more recent times, feminist legal scholars argued for a deconstruction of such a hierarchically ordered dichotomy, rejecting any either/or analysis: for instance, struggles for the integration of same sex relationships into marriage had the effect of both proposing different definitions of marital relations and the notion of spouses, and gaining access for gay and lesbian people within the public realm, thereby reconsidering the public/private divide rather than abolishing it.

The understanding of the public sphere as the realm of reason, required in order to take part in public debates and linked to an alleged standard of objectivity, prompted feminist scholars to scrutinize the concepts of reason and reasonableness, with specific regard to their legal use. If knowledge and rational argumentations claim objectivity, the rational/objective standards in both civil and criminal law, the so called “reasonable person”, if not explicitly “reasonable men”, are modelled around a person who is both gendered (as a male), and specified in terms of class, ethnicity, and more. Feminists’ analyses focused on these biased legal standards, both to unveil and to reconsider them. In this perspective, the reasonable-unreasonable dichotomy and the objective-subjective dichotomy are criticised as working together when objective standards are implemented to determinate reasonableness, and reasonableness is used to better understand objectivity. This overlap underlies court jurisprudence and its patriarchal power structures; as long as the courts maintain the appearance of rational and objective actors and hide their biased positioning. As Noddings exclaimed, law has long used a “reasonable man” standard to evaluate human actions, for instance in criminal trials. Even if in recent years it has been renamed the “reasonable person” standard, such a change was developed in a masculine and patriarchal culture, still reflecting its values. Footnote 125 From Criminal Law to Tort Law, extending to other areas of legal systems, the reasonable person worked to answer relevant questions (did the defendant exercise reasonable care? Did the person comply with a reasonable standard of fair dealing? etc.) by using a gendered perspective, both because it arose from a male culture, and because it has been enforced by courts that are still largely made up of men. In other words, the ‘reasonable person’ represents a community ideal of reasonable behaviour, which dismisses gender, age, and intellectual ability as relevant subjective characteristics to a court’s evaluations. Consequently, not only are standards of behaviour set, which entire subpopulations (not just women) tend not to exhibit, but society’s majoritarian prejudices concerning normalcy are used to draw the picture of such a ‘standard’ person (male, heterosexual, white, able-bodied, etc.).

In sexual harassment law and battered women’s self-defence cases, as well as in rape law, the standard of the “reasonable person” implicitly requires women to conform to a certain image and to certain modes of conduct, for their experiences to be legally recognised as crime. Otherwise, to the extent that their behaviour does not match what could be expected of a reasonable person, largely conditioned by male biases and ideals, they are blamed for provoking or seducing men, thereby disempowering the female victims. For instance, a “reasonable” victim is expected to cry, to try to escape, not to be dressed provocatively, to denounce immediately, etc.[…] She is expected to correspond to an abstract ideal of a victim, elaborated in a patriarchal culture. These stereotypes can affect judges’ understanding of who is a victim and who is not, can influence their views about the credibility of witnesses, and permit irrelevant or prejudicial evidence to be admitted. Footnote 126

The reasonable person standard has been reconsidered by feminist scholars to include the experiences of both women and other excluded groups. A first strategy has been that of proposing the “reasonable woman” standard, which requires thinking from the perspective of a woman’s reaction in a given situation, rather than that of the standard/average man. However, since the interpretation of the standard is left to white, male judges, such a different standard may merely represent a change in language with no positive consequence, perpetuating stereotyped representations of women themselves. Footnote 127 A second strategy has been to reformulate reasonableness, in both an intersectional and contextual perspective, which focus on the person’s experiences and needs, avoiding the stereotypes imposed by any particular theoretical standard. Footnote 128 With specific regard to rape, sexual harassment, or domestic violence cases, extending to cases concerning employment discrimination, the victim’s perspective must be taken into account, requiring that she exposes her feelings in a non-judgmental and unbiased environment.

4.3 Central Feminist Legal Issues

It is possible to argue that feminist analysis of law “is, negatively, an analysis of how some or all women have been excluded from the design of the legal system or the application of law, and positively, a normative argument about how, if at all, women’s inclusion can be accomplished”. Footnote 129 Thus, while in the 1970s the main objective of feminist legal scholarship was to affirm equality of treatment among men and women in all legally relevant purposes, by the 1980s feminist legal scholars focused on the analysis of structures and systems that undermined the inclusion of women in any areas, extending to practices and norms that prevented substantive equality. Within this framework, scholars addressed specific challenges and topics, by taking the ‘dilemma of difference’ into account, i.e. recognising that women’s disadvantage might be reinforced both by ignoring the difference and by acknowledging it. If measures are taken to compensate the disadvantage, stereotypes are acknowledged that perpetuate the disadvantage; if no measure is undertaken, and women are not stereotyped, they do entirely bear the cost of the disadvantage. Footnote 130 In this phase, scholars argued that such a dilemma arises on a biased premise, which implies that the status quo is natural and good, and that only specific differences are to be addressed: however, women are different only if men are taken as the standard, and women need special rules only because the rules they are confronted with have been formulated by and for men.

A first issue that has been crucial in feminist legal scholarship, and clearly illustrates this evolution, is the economic subordination of women. Within this field, specific questions and topics came to the fore: among the many, the equality of opportunity in access to the public sphere and in the labour market has been considered. Restrictions on women’s participation in certain professions, such as the judiciary, the military, and many others, have been the target of feminist scholars in a first phase, with the aim of opposing barriers that bolstered a second-class citizenship for women. However, even if these struggles led to an increase in female participation in the workforce, substantial disparities remained. Not only women were largely confined to certain ‘female’ occupations (nursing, teaching, secretarial, etc.) with lower wages and fewer career prospects, when they entered traditionally ‘male’ fields (law, medicine, business, etc.) their treatment remained disproportionally worse. Footnote 131 Therefore, feminists focused on the analysis of rules and practices that adversely affect women, so as to generate inequalities at a substantial level. A first challenge concerned the application of supposedly objective rules, and the pressure of unrecognized biases (for instance, in recruitment procedures, or in workers’ evaluation). Secondly, a reconsideration of norms that ruled workplaces by assuming the ‘male breadwinner’ with no care burden as a standard, has been deemed necessary: norms concerning flexible work schedule or part time work, as well as affirmative actions, have been proposed as corrective measures. Thus, whilst, legal scholars argued that cases of discrimination in the labour force are rooted in both cultural beliefs and gender stereotypes (which may affect women, as well as LGBTQIA+ people, people of colour, immigrants, etc.), and organizational structures, policies, and practices. In contrast, feminist scholars highlighted the biased premise of these arguments: the so-called ‘culture of domesticity’ underpinning the workplace, within which the perfect worker is available to work overtime, and to travel, without being restricted by personal and familial responsibilities (since his personal life depends on the unpaid work of a woman/wife). Therefore, some feminists argued it is not only necessary to challenge the current organisation of the workload and the masculine standards operating in the workplace, family norms and entitlements. This can be done either by recognizing the value of parental care, in order not to leave women impoverished and constantly dependent due to their domestic work, or by suggesting alternative models of family and marriage as a legal institution. Footnote 132

A second group of topics in the legal feminist agenda concerned the status of the female body, sexual relations, self-determination of women over it, and in more general terms the regulation of sex and sexuality: pornography, reproductive rights, domestic violence, sexual harassment, and rape, to name only a few issues, figure centrally in feminist legal theory. The political relevance of these topics has been discussed in Sect. 3.3.3 . Paying specific attention to legal consequences, feminist scholars analysed these against the background of the patriarchal social structure which leads to the stereotyped construction of the woman as the ‘good’ battered wife, the ‘bad’ mother, the ‘real’ rape victim. Footnote 133 Such a culture coerces women and penalises them for corresponding to the image invoked by law, as well as for failing to correspond to it. Until recently (twentieth century) women did not properly own their bodies, not having a voice, legally, in decisions concerning reproduction, sex, intimate relationships, and without protection from harms inflicted by their intimate partners (husbands, lovers, as well as employers). To be more precise, it is the very nature of harm that was disputed within a male culture which considered these actions as either inevitable or justifiable. Therefore, a crucial task for legal feminism has been to explore the ways in which law fails to protect women from abuses and violence. Even if all Western states recognize spousal rape and physical violence occurring within marriage as crimes today, both are sometimes considered as less serious than violence occurring outside of marriage. All these crimes have been analysed by feminists starting from different perspectives (cultural feminists, race theorists, dominance feminists) and with different approaches, however a common theme was identified being the biased regulation of these crimes. Feminist scholars highlighted that interpretations of both the force and lack of consent required a woman to offer the “utmost resistance” or “reasonable resistance”, thereby making the verbal resistance, crying, begging, saying “no”, not enough to manifest the lack of consent. In a parallel way feminist scholars focused on domestic violence, and what is now labelled as femicide. On one view, they deemed the law to be inadequate to protect against being coerced into sexual intimacy, as elements of these crimes are still vague if not favourable to the defendant. Contrarily, feminists highlighted the extent to which social attitudes about sex, and intimate relationships are pervasively biased to favour male dominance, holding necessary reforms back. For instance, scholars who analysed pornography Footnote 134 tended to see it as a reinforcement of the patriarchal culture and of male dominance that results in rape, harassment, and violence. Contemporaneously, it is important to emphasise that reflections on domestic abuse have been discussed from an intersectional perspective: while initially the ‘battered woman’ was perceived as essentially white and involved in heterosexual relationships, subsequent studies focused on the intersection of race, class, ethnicity, language, and sexual orientation, highlighting the difficulties faced by gay men or lesbians to defend themselves from violence and abuse.

Another area of interest was certainly that of reproductive rights, on the assumption that if a woman is not free with regard to self-determination over her own body and sexuality, she is not free at all. While abortion has certainly been one of the first and most significant issues debated by legal feminism, other issues arose in the following decades. The debate on abortion, which has been heightened and thoughtful inside and outside feminism, raised moral, religious, philosophical and legal issues. Among these, it has been questioned whether the best foundation on which to base a right to terminate pregnancy is privacy or equality.

Norma McCorvey, known in her lawsuit under the pseudonym “Jane Roe”, was born in Louisiana in 1947. At the age of 16, she married a violent man with whom she had two daughters. While pregnant with her third child, Norma began her lawsuit to assert her right to an abortion. The US Supreme Court was asked whether the Federal Constitution recognises a right to abortion even in the absence of health problems of the woman, the foetus and any other circumstances other than the woman’s free choice. In a landmark decision Footnote 135 (made by a majority of 7 judges in favour and 2 against), the Supreme Court based the right to abortion on the fundamental right of privacy, interpreted as “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy”, thereby fuelling the criticisms concerning the state’s abdication of women and its unaccountability for the disadvantages shouldered by women as a group. Footnote 136 If abortion belongs to the private realm, state interference is avoided, however the state does not have to support these private choices with public funds or institutions.

Alternative solutions have been adopted across the world, depending on the political circumstances and cultural traditions of the different countries, the availability of a more or less extensive welfare state, and other political factors (across the European Union, 24 countries have legalized abortion on a woman’s request or broad social grounds, and two Footnote 137 allow it on social and economic grounds. More restrictive regulations are emerging in Poland, where abortion is now allowed only on grounds of woman’s health, incest or rape, Footnote 138 and Malta is the only EU country were abortion is illegal. Other limitations are present in several EU Member States, including mandatory waiting periods for abortion on request, mandatory counselling or information prior to abortion, and refusals of care on grounds of conscience and religion). It is worth noting, however, that while non-feminist arguments about abortion mainly focused on the morality and/or legality of performing abortions, feminist scholars also considered other questions, which are deemed relevant in overcoming the oppression of women and in meeting their needs. Among the many, questions were posed concerning the accessibility and delivery of abortion services, the legitimacy of unnecessary and burdensome conditions on abortion providers, doctors’ conscientious objection, as well as many other measures aimed at restricting access or availability of abortion procedures. These are only some of the issues debated.

The debate on abortion did not exhaust the issues raised in the field of reproductive rights; the rise in medical technologies was accompanied by both an increased medicalisation of reproductive issues, and increased regulation of this field, where women’s rights to exercise control over their bodies are placed in competition with the claims of others (the state, the husband, the unborn, etc.). The availability and safety of means of contraception, the management of pregnancy and childbirth, sterilisation (both its positive side, as a right to self-determination, and its negative side, as in cases of sterilisation programs performed on minority groups and on mentally incompetent adults), the use and misuse of caesarean sections, are only a few issues debated by legal feminists. Recently, questions concerning surrogacy have been debated within and outside feminist scholarship, often engaging arguments similar to those already proposed in the debate concerning prostitution and the commodification of the female body. Proponents of surrogacy argue that surrogate mothers, if allowed to use their reproductive capacity by entering into these contracts, may increase their income and improve their education, in addition to helping others by transforming procreative labour into a market asset. Opponents highlight the conditions of exploitation and poverty in which surrogate mothers find themselves, and interpret these choices as the result of oppression and subordination by others, rather than a sign of freedom. Footnote 139

Postmodern feminism approached these and other issues through both a criticism of the false essentialism of classical approaches, and a more nuanced analysis of subjectivity and power relations. The postmodern critique of the idea of the subject, labelled by Susan Bordo as “feminist skepticism” about gender, Footnote 140 accuses the latter of being a totalising fiction. In this vein, multiculturalists complained that Western feminists excluded and ignored non-Western women and their worldviews, thereby rejecting any all-embracing assumption on woman’s identity and patriarchy. While from a Western perspective the decision of a Muslim woman to wear a hijab may represent an internalization of patriarchy, from a non-Western point of view it might denote the rejection of the equation between “uncovering” and “liberating” women inflicted by Western patriarchal culture. Footnote 141 Contemporaneously, lesbian and gay theorists highlighted the links between heterosexism and sexism—in addition to the marginalisation of their perspective by the mainstream feminist movement, and the peculiar challenges they face, from a legal point of view. Footnote 142 These include; the right to assume more childcare responsibilities, to obtain custody of their children, and not to be excluded by employment rights that are granted to straight women. Additionally, gay and lesbian theorists argued that sexual orientation meets the standards established (in the US) by Supreme Court jurisprudence for suspect classification and should receive strict scrutiny under the Fourteenth Amendment equal protection analysis. Similarly, other challenges arose from queer and postmodern theories, which questioned the dominant binarism in law. Footnote 143 From the registration of gender on official documents, to marriage laws and anti-discrimination laws, legal systems still tend to identify people according to a twofold distinction between men and women. Therefore, transgender and intersex people raised questions concerning the right not to be identified by law as either male or female, and argued for the legal recognition of multiple identities, extending to the abolition of sex as a relevant legal category. Footnote 144 Even if feminist scholarship seemed to be generally sympathetic towards these claims, by refusing a biologically determined model of gender and sexuality, some authors emphasized that such a fragmentation of human identity into multiple frames risks undermining feminist claims and the struggle against the oppression of women. Further, the self-determination of gender identity is at odds with the definition of feminist political goals and its political community. Footnote 145

5 Conclusion

The aim of this chapter was to present an overview of feminism, with a specific focus on legal and political challenges. Therefore, the chapter provided a basic theoretical framework, which is necessary to explore feminist analyses of the different branches of law, as well as related political questions.

The chapter did not offer to the reader a unitary definition of feminism, not even in its legal or political applications. Rather, feminism has been presented in its internal complexity, and its multifaceted understanding. Even if feminist theories aimed at ending women’s oppression, encompassing both theory and activism, they should be considered a set of different social movements and theories that share the same basic goal of defeating the systemic oppression of women, rather than a single movement or ideology. Consequently, the chapter presented the “types” of feminism, and its “waves”, highlighting the multiple combinations of these different approaches, both in theory and in practice.

The chapter discussed many of the typical themes of feminist reflection, and in particular, focused on those that are most relevant from a political and legal point of view. Of particular relevance here have been the analysis of the binary opposition between women and men, the distinction between sex and gender, and the notion of patriarchy. All these notions and categories are interwoven with inequalities in symbolic status, political power, life opportunities and access to society’s resources, within a system of rules, values and practices that tend to maintain and reproduce women’s subordination, thereby being pivotal for any attempt of legal and political emancipation of women.

Specific topics and concepts have also been discussed in the second and third part of the chapter. This section was devoted to the analysis of how feminist political theory explored fundamental concepts of Western political thought, including the distinction between public and private realm, equality, freedom, citizenship and democracy, specifically considering the interrelation of the private and public, personal and political. Moreover, this chapter argued that feminist political thought not only unravelled unequal power relations behind these concepts and distinctions but also struggled for the inclusion of women, women of colour, women of different social classes, women of different sexualities, women of differently-abled bodies and ages within the political realm, gaining women’s access to full citizenship and enabling social change. Specific attention has been further devoted to the issues of violence, pornography, prostitution and (hetero)sexuality, interpreting them as both cause and consequence of unequal power relations between men and women.

The final part of this chapter has been dedicated to the analysis of legal feminism, once again starting from the notion of patriarchy and the consequences that this social and cultural structure has on the law. This section highlights the consequences of patriarchy in terms of exclusion of women from public life (epitomized by the phrase ‘law is sexist’), the false impartiality and objectivity of legal systems, which covers the male standards and assumptions that permeate legal concepts (epitomized by the phrase ‘law is male’), and the importance for legal theories of contextual analyses, subjective narratives, and individual experiences, criticising the binarism man-woman, subject-other, oppressed-oppressor (epitomized by the phrase ‘law is gendered’). The application of these theoretical approaches to legal discussions and analyses are manifold: among the many, the chapter offered a discussion of traditional policies and rules aimed at promoting equality (and their male biases), the male standards behind the concepts of reason and reasonableness, with specific regard to their legal use, the status of the female body and self-determination of women over it, and in more general terms the legal regulation of sex and sexuality.

This chapter has many limitations. First, it does not explore all the relevant issues, and not all those that are analysed are analysed with the necessary depth. Second, it focuses on the European and US context, and largely neglects non-Western cultures and legal systems. Third, it does not delve into the historical, cultural and political context in which feminist claims and reflections were elaborated. These limitations depend, of course, on the limits of space as well as on the expertise of the authors; but above all, they depend on the aim of the chapter itself, which, as said, was to offer an overview of the theoretical and philosophical assumptions of legal feminism, whose specific aspects will be discussed in the following chapters of this book.

However, there is a common thread throughout the chapter: it is the idea that, first, we live in a world where women’s oppression is still at stake, not only because the vast majority of women across the world lack basic rights and legal protection, rather, even in Western countries major inequalities remain. Second, we live in a world that is still, largely, male. As de Beauvoir argued, the construction of society, of language, of law, all rests on male assumptions and male standards, thereby relegating the women to a condition of otherness and exceptionality (or deficiency). Women’s priorities, feelings, and practices are marginalised as ‘different’ and neglected as inferior, in a dichotomous conception of gender and identities that hierarchically assign rights, roles, and behaviours. Exploring this assumption was, from different perspectives, the aim of the chapter. Challenging this structure, and rethinking society and law from a different, non-male perspective, is the ever-present challenge of all feminism, and legal feminism in particular.

In your view, what are the advantages and the disadvantages of the distinction between sex and gender? Do you believe that it is useful at the present time? Do you think that sex is really binary in human biology?

Do you consider that fourth-wave feminism has emerged?

Do you think that the different schools or branches of feminism are complementary or contradictory? Justify your answer.

What is the difference between the three phases of legal feminism, which have been labelled as law is sexist’, ‘law is male’, and ‘law is gendered’? In what sense the second phase addresses the “male orientation of law”?

Describe the origins and implications of the slogan “the personal is political”, and use it to justify the state’s intervention in the family.

What are the three notions of gender equality, and how does each relate to different feminist waves and feminist political theories?

What are the arguments for the exclusion/inclusion of women and marginalized groups in the concept of citizenship?

Why, according to many scholars, does the “reasonable person” standard work to answer relevant legal questions through the use of a gendered perspective? What alternative strategies have been proposed in order to reconsider such a standard?

Why many feminists criticised the decision of the US Supreme Court to recognise the right to abortion on the basis of the right to privacy?

Why legal scholars argue that cases of discrimination in the labour force are rooted not only in cultural beliefs and gender stereotypes, but also in organizational structures? Can you provide some example?

This idea does not imply necessarily that every individual could be objectively classified in one of the sexes, as we will see later. In this sense, the binary distinction between the sexes is widely challenged in the academic literature. Also, there are some authors who argue that sex, and not just gender, could be a social construct, which we will discuss in this section.

de Beauvoir ( 1949 ), p. 285.

Mead ( 1935 ).

Rubin ( 1975 ).

Fletcher ( 2002 ), p. 9.

Butler ( 1990 ), pp. 8–10. See also the “Sociology of Law and Gender Equality” Chapter in this book (subsection 1.1).

Marinov ( 2020 ).

Bourdieu ( 2002 ), p. 35.

Millet ( 1969 ), p. 43.

Bourdieu ( 2002 ), p. 50 .

Crenshaw ( 1989 ), p. 140.

Mikolla ( 2008 ).

Lorber ( 2010 ).

Bryson ( 1992 ), p. 18.

Hewitt ( 2010 ).

Bryson ( 1992 ), p. 87.

Lorber( 2010 ), p. 1 .

Ibid ., p. 3.

Bryson ( 1992 ), p. 159.

Legates ( 2001 ), pp. 347–364.

Munro ( 2013 ), pp. 22–25; Negar, Kharazmi ( 2019 ), pp. 129–146.

Barnett ( 1998 ), pp. 121–204; Bryson ( 1992 ), pp. 2–7; Lorber ( 2010 ), pp. 9–13.

Ibid. , p. 2.

Barnett ( 1998 ), pp. 124–134.

Ibid ., p. 137; Bryson ( 1992 ), p. 3.

Barnett ( 1998 ), pp. 137–138.

Bryson ( 1992 ), pp. 232–260.

Barnett ( 1998 ), pp. 14, 163–164.

Bryson ( 1992 ) , p. 194.

Barnett ( 1998 ), p. 143.

Lorber ( 2010 ), p. 11.

Bryson ( 1992 ), pp. 5–6.

Barnett ( 1998 ), p. 18.

Lorber ( 2010 ), p. 13.

Mies and Shiva ( 1993 ), pp. 13–16.

“Ecofeminism […] grew out of various social movements — the feminist, peace and the ecology movements […] We see the devastation of the earth and her beings by the corporate warriors, and the threat of nuclear annihilation by the military warriors, as feminist concerns”, Ibid. , pp. 13–14.

Lorenzen and Eaton ( 2002 ), p. 1.

“[…] some tried to revive or recreate a goddess-based religion; spirituality was defined as the Goddess. Some call it the female principle, inhabiting and permeating all things — this spirituality is understood in a less ‘spiritual’, that is, less idealistic way […] Many women, particularly those who combine their critique of capitalism with a critique of patriarchy and still cling to some kind of ‘materialist’ concept of history, do not easily accept spiritual ecofeminism”, Mies and Shiva ( 1993 ), pp. 17–18..

Beechey ( 1979 ), pp. 66–82.

DeKeseredy ( 2020 ), pp. 621–638.

Walby ( 1990 ); Hunnicutt ( 2009 ), pp. 533–573; Bryson ( 1999 ), pp. 311–324.

Strid and Hearn ( 2021 ); DeKeseredy ( 2021 ).

DeKeseredy ( 2021 ), p. 3; See e.g., Sheila Rowbotham who confirms this statement with the notion of “interiorization of subordination/slavery”, meaning that women traditionally have interiorized and accepted subordination (Rowbotham ( 1979 ), p. 402).

Bryson ( 1999 ).

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Eisenstein ( 1981 ).

Jónasdóttir ( 1991 ).

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Delphy ( 1977 ); Delphy ( 1984 ).

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Hearn ( 1987 ); Vogel ( 1983 ).

Ferguson ( 1989 ); Ferguson and Folbre ( 1981 ), pp. 313–318.

Elshtain ( 1981 ).

Brown ( 1981 ), pp. 239–268; Dworkin ( 1981 ); Walby ( 1990 ); Hearn ( 1992 ).

Rowbotham ( 1979 ), pp. 970–971.

Hearn ( 1987 ); Hearn ( 1992 ); Walby ( 1986 , 1990 ).

Messerschmidt ( 1988 ).

Campbell ( 2014 ).

Parekh and Wilcox ( 2020 ), https://plato.stanford.edu/entries/feminism-globalization/ , last accessed 5 October 2021.

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Bosch-Vilarrubias ( 2014 ), pp. 205–217; Kocabicak ( 2020 ).

Ortner ( 2014 ), pp. 530–549; Ortner ( 2020 ).

We are indebted to unpublished work by the author and Jeff Hearn, Örebro University, for this paragraph.

We are indebted to Professor Dragica Vujadinovic, Belgrade University, for this analysis and paragraph.

Hirdman ( 1990 ).

Tucker ( 2011 ), pp. 1033–1036.

McCann and Kim ( 2013 ).

Geoghegan and Wilford ( 2014 ), pp. 179–120. For an early debate about the shared interests or needs of women, see Jónasdóttir ( 1991 ); Diamond and Hartsock ( 1981 ); Sapiro ( 1981 ); Mansbridge ( 1999 ); Philips ( 1995 ); Young ( 1997 ).

Squires ( 2018 ), https://doi.org/10.7765/9781526137562.00015 , last accessed 5 October 2021.

Catharine MacKinnon adopts one of the most directly hostile stances in relation to the public/private distinction itself, arguing that the idea of a private realm is ‘a means of subordinating women’s collective needs to the imperatives of male supremacy’: MacKinnon ( 1989 ), p. 188.

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Fabio Macioce

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del Cuvillo, A.Á., Macioce, F., Strid, S. (2023). Feminist Political and Legal Theories. In: Vujadinović, D., Fröhlich, M., Giegerich, T. (eds) Gender-Competent Legal Education. Springer Textbooks in Law. Springer, Cham. https://doi.org/10.1007/978-3-031-14360-1_3

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2 Feminist Legal Theory and the Rights of Women

• Published: March 2004
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It would be a misconception to believe that legal feminism as an idea came about only in the late 20th century. Issues regarding feminist thought have for a very long time been issues of great concern. In the context of law, modern feminist texts today encompass arguments for the rights of women and the achievement of equal political and legal status that were advocated as early as the 18th century. This chapter examines the relationship between modern campaigns and the feminist analyses of law which attempts to utilize human rights codes in obtaining equality, autonomy, and justice for women. The chapter identifies some of the different methods that have been developed within feminist legal theory such as liberalism. It also discusses various issues that are brought up within this context. The chapter also explores the feminist critiques that involve theories of political and legal rights, and investigates the models that are developed along with critical race theory that intend to provide better reconstructions of these rights.

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Back to Course Catalog

Fall 2022 • Course

Feminist Legal Theory

Prerequisites: None

Exam Type: No Exam Students will write response papers analyzing the reading materials. The professor will provide feedback and revision will be encouraged.

This course will examine and compare eight major strands of contemporary North Atlantic feminism: liberal feminism, dominance feminism, cultural feminism, socialist/materialist feminism, economic feminism in a liberal market frame, critical race feminism, postmodern feminism, and the relations between feminism and conservatism. We will read classics in feminist legal theory and case studies allowing us to examine and compare the ways in which various strands of feminism have engaged law and law reform. The goal of this course is to enable each student to make informed decisions about which strands of feminist legal theory work best for them and to give all students a strong understanding of how past stages in the development of feminist legal theory and law reform help to shape contemporary expressions of feminism and feminist approaches to law.