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WHAT ·IS FEMINIST LEGAL THEORY? II-FEMINIST LEGAL THEORY:
The difficulty in . answering the very •
I-INTRODUCTORY REMARKS €
general question of what is feminist legal v
Before beginning my discussion on the theory begins with the problems of the term 1.
· v~ry general question of what is feminist itself. Feminist legal theory, by any other .
J \I
legal theory, and. by way of introduction to name, might be less intimidating. I believe
these s_eminar series as a whole, I must that feminist. legal theory is a far less i ti
make a few remarks on the limitations on grandiose project than is suggested. by its f,
my perspectives and experiences, and on name; it is perhaps also a far more radical
h
the limitation of the perspectives of the project than is suggested by its name. ' ;
\'
approaches .to.feminist legal theory that I · Feminist legal th~gzy refers to an area of l
will be .addressing. I speak from the theory, teaching and practice about how the
perspective of a white, western middle law effects women. it is an area of inequiy l g
class woman, and I speak of a body of
known by many names : . "women and the ·
Law". in its earliest formulation. "Sex
I r
c
!l knowledge that emerged very much from n
' Discrimination and the I:.aw". "Gender and
the experiences of other such women. My ' '
d
ttje Law", "Feminist Analysis of Law",
perspective is inevitably a partial one, and I "feminist Perspectives on Law", "Feminist a
offer it only as such. I do not believe that Jurisprudence". "Feminist Legal e
approaches to feminist legal theory ·that Scholarships" and· "Feminist 'Legal a·
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have emerged in the west can simply be Theory". No one term has come . to
applied to a developing country such as Sri dominate the discourse to the exclusion of rr
' Cl
! all others, although feminist legal theory
Lanka: in light of the fundamental
I· differences in legal cultures, and in the has gained a certain prominence within the q
o
social, ecohomic and political context of · circles with which I am most familiar. It is gr
women. My own objective for this the term which I have, at lest temporarily,
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come to use to describe the area in which I
workshop series is far more modest. It is ' IS
reach and write.
my hope that we· can initiate a dialogue 01
Feminist legal theory is about feminist
whereby partial knowledge can be shared, ('(
approaches to low. Beyond and Sheehy
and perhaps transformed into a perspective
define works that approach law from . a
that will be more useful to those. of you · I
feminist perspective at their most general
concerned with. issues of women and social as:
justice in Sri Lanka. It is my hope that there
"Scholarship which takes into account a
might be a relevance, or at least a
woman's perspective or interests". This
resonance, in some of the question- and definition assumes that women's
insights of 'feminist legal theory( The extent perspective is different from me'n and
to which any of . these questions and that acceptance of this difference . I

I
insights of this emerging body of literature generated a commitment to change.
might. be useful and .rele~ant ·is an open Feminist approaches to la~ .. ~~~il_be seen
. question, and can only be determined by to start from a basic assumption about the
those women engaged in struggling for · relationship between women .and law : that
social change-within this country.' · the the law is informed. by and serves. to
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115

reinforce partiarchal social relationship- . potential relevance and that "tight"

tl\at it is based on male norms, male legal analysis never a~sumes gender
,experience and male dominance, that neutrality.
•
.women's experience is excluded from the Before elaborating on the nature of the
law,
..
and that the law has contributed to
~r. •
inquiries of feminist legal theory, it is
·women's oppression. important to turn to some of the difficulties
';.~,-Katherine Bartlett has recently attempted and dilemmas associated with this area of
, · answer the question of what it is that work. The concept of feminist legal theory·
..rminists do when feminists do law. She means with much . resistancy and
.·..as described the inquiry as "asking the misunderstanding. I believe 'that it is
· oman question." · important to begin by addressing some of
. The woman question asks about the the implications and limitationa of the term, ·
-ender implications of a social practice o and thus preempt the · resistance and
'ule: · have women been left .out of misunderstanding that is otherwise so
consideration/ If so., in what way;· how common.
might that omission be corrected ? What (a) · Why·feminist legal theory I Why do
difference would it make to do so? In law, feminists need theory ? · I:
. asking the woman question means
The term feminist legal. theory suggests a·
examining how the law fails to take into
false distinction - that is -·· a distinction
account the experiences and values that
between' theory and · practice, My
seem more typical of women than of
. understanding .of feminist legal theory is
men-or how existing legal standards and
not as an area of inquiry removed from the
::f;.9nc~pts might disadvantage women. The
: qµestion assumes that some of the features practice of law,, and from _the practice of
· of the law may be not only non-natural in a feminist struggle." While there is sometimes
gopl:!ral sense, ·but also "male" in a specific resistance to theory· in· practical struggles ·
sense. The purpose of the woman question for social change, I believe that feminist
is to expose those features and how they need theory. Theory is required to
operate, arid: to suggest how they might be understand the nature of many of the
corrected. problems that women face in confronting
. ~· .·. i
the law. Theory as. a process of abstraction.
~.
llartlett . further
. states that:
anri generalization, is not a luxury for
I
., I

asking the woman question is a method

feminists' engaged in 'using the law to bring
of critique as integral to legal analysis as
about social change. Generalizations based
determining the presidential value of a
upon past experience. required in addition
case, stating the facts, or applying law to
-facts. "Doing law" as a feminist means
to attention to context and detail ifwe are ., ·j
looking beneath the surface of law to to understand and appreciate both I
·.·II.
. identify=Jhe gender implications of rules similarities and differences among concrete ;

'
and the assumptions' underlying them situations. We need generalizations and .·~ I

abstraction if we are to begin to understand . '

.: ~· and insisljng upon applications of rules t. =

; t
.
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that do not pE.1rpl'tuatc women's general tendencies, and the forces at play in ··.'I
·•,-.. ..·!
subordination. It means recognizing legal regulation of womef,! ·beyond- the ·;. i
;·i
.. that the woman question always has .specifi_ties of the particular case. ·.:: I
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116

Furthermore, it is important to recognize A second problem with the discourse of

that feminist legal theory is integrally feminist legal theory. While some scholars
connected to feminist legal practice, that have attempted to develop comprehensive
both are fundamental to a feminist legal and holistic theories of the partiarchal
praxis. I use the term praxis in a loosely nature of law, there is no one feminist
Marxian sense, referring to the dialectic approach to law or theory of law that can
interaction of theory and practice. Elizabeth adequately explain the complex and ·
Schneider explains the dialectical multiple oppressions in the legal regulation
relationship between feminist theory arid on women. Many approaches to feminist
practice as the method of feminism: . legal theory, like feminist theory more
.. (it) start (s) with'personal and concrete generally, have emerged. Saine. approaches
parallel · more general social theories:
experience.Integrate (s) this experience
into theory, and then, in effect, reshape liberal, socialist, postructuralist, Other
approaches, most notably, radical
(s) theory based upon experience and
experience based upon theory. Theory feminism, has developed as a social theory
expresses and grows out of experience in its own right, unique to famines. These
but it also relates back to that experience approaches differ from one another in
for further refinement, validation or fundamental ways in . their apf
understanding of the nature of women's
modification.
oppression, in the role of law in that
While theory is an exercise different oppression, and in strategies for
from practice, it is ~ exercise that it overcoming that oppression ..
intimately connected to in feminist theory
Beyond andSheehy describe some of the
is deeply embedded in feminist theory. As
basic assumptions and differences among
. Schneider further explains:
some of these. different approaches to
For feminist, theory is not "out their", T
feminist legal scholarship ? They describe
but rather, is based on the concrete, attei
traditional liberal feminism as :
daily, and "trivial" experience of con!
Accepting the basic economic and app:
individuals, and so emerges from the
political institutions of Canadian society relal
shared experience of women talking.
and the precept that government should ideo
Because feminist theory grows out of
only interfere in the "public" sphere,
direct experience and consciousness Tl
liberal feminists tend to believe that
actively asserting itself, feminist theory of t
equality for women can be achieved
emphasizes context and the importance scho
substantially within the current ·
of identifying experience and claiming over
framework. While sometime arguing
it for one's own. soph
for reformulation of the rules allocating
As a starting point, it is therefore benefits and burdens, liberal feminists it de
essential to understand that theory is. do so by .analogizing to male norms; fcmi
neither a luxury for feminist struggles for thus pregnancy benefits are 'advocated that
social change, nor is it an entity s~mehow on the same basis as benefits for illness · I of fo
distinct from those struggles. or disablement. Whil
' .
i expe
(b) Is there only one feminist legal Beyond and Sheehy describe radical
there
theory? feminism approaches lo law as:
... law!
 117

This· analysis locates women's There is, •moreover, no unity or

oppressions in patriarchy a systemic ·singularly of women's experiences upon
expression of male domination and which such a totalizing feminist legal
control over women which permeates theory could be premised. Women's
all social, political, and economic experiences are diverse: there perspectives
institutions. The desire for supremacy, and oppressions mediated through their.
the psychological pleasure of power, positions not only of gender, but also of
and male fear of female sexual and ·race, class, ethnicity, religions, sexual
reproductive capacity are identified as identity, and the various other forms of
ire the motivating forces of patriarchy. difference. Women of colour have recently·
ies 'Laws governing reproduction, sexual insisted that feminist theory and practice
es: assault, and pornography are viewed as recognize the interlocking nature of these
1er · extensions of patriarchal control over oppressions, and the . extent to which·
c~f female sexuality, with violence against positions o/ race, class and other differences
)ry women reinforcing this control. mediate women's experience of gender
2Se oppression. Feminist legal theory, if it is to
,in They describe socialist feminist
be based on the experience of women, must
eir approaches to law as :
then by its very definition, be based on
n's By socialist feminist, we mean an diversity.
~ .
hat analysis which regards both gender and .Some feminist scholars have in fact
for class relations as being inextricably. suggested that "the . quest for a feminst
linked, but which does not prioritize jurisprudence", that is, for a. holistic and
the either ~et of relations as the primary comprehensive feminist theory of law ,'is a
mg cause of women's oppression. misconceived and potentially dangerous
to They note that until recently, vety little exercise for feminists. It is argued that any
ihe attention had been given, in the Canadian attempt to construct a feminist meta-theory
context, to develop a socialist feminist is simply an attempt to replace one
.nd approach to law, which explores the dominant/hegemonic understanding of the
:. ~I world for another, and furthermore, serves
ety relationships between law, state and
'i$
uld •
ideology. to· reinforce ·:he authority and centrality of
~
~re,·· law that feminists ought to be attempting to
hat [
$
This brief description and categorization displace.
~ 'of the different approaches to feminist
.red
ent
. 1
.i scholarship
oversimplifies
by
an
its very
increasingly
nature
complex and
llIWHAT DO FEMINISJS DO WHEN
WE DO FEMINIST LEGAL THEORY?
ing
mg f sophisticated body of literature. However, Notwithstanding these difficulties and
ists · i~ it does serve to illustrate the diversity of diversities, feminist legal theory refers to an
ins; .·· t' feminist approaches to law and suggests extensive body of writing and teaching
ued Ji that it is perhaps more appropriate to speak which shares, at least some level, some
iess ' of feminist legal theories and approaches. basic assumptions and areas of inquiries. At
While each approach takes women's the risk of oversimplification, .two very
experience as a starting point in i~.s analysis, general -and related areas of. inquiry can be
ical . ; __ there is no single approach or analysis to identified. Feminist legal theory can be seen
. I

law.that .flo~s fromthese experience. .te be concerned with addressing (1) How

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 118

does. the law effect women and contribute 'that notwithstanding their . formal
to their oppression ? (2] How can the law neutrality h~s a desperate impact on
be used: if at all, to improve the social women. The analysis _might theri examine
position of women ? Both of these the assumptions about gender that underlie
questions raise m tu~n a myriad of these rules, practices or judicial approaches,
subsidiary inquiries. The first question of and attempt to draw connection between
how the law effects women includes different rules and practices in terms of
analyses of the substance and process of the these underlying assumptions.
law, the. methodology of legal reasoning,
A second level of analysis can be seen to
and law's epistemological claims to
be an analysis of legal methodology and
objectivity and neurility. The second as
legal reasoning. Many feminist legaL
question of how the law can be used in frc
feminist struggles for social change might scholars have argued that the methodology
fo
include specific strategies for law reform, as of legal reasoning is patriarchal. Some
well as more general discussion of the role feminists have argued that women
of the law in social change. approach moral reasoning differently than
men, that women are more sensitive to
(A) HOW DOES THE LAW EFFECT context and experience, and Iess. inclined to
WOMEN AND CONTRIBUTE to generalization and abstraction. These
.

THEIR OPPRESSION ?
theories of gender difference in moral
Feminist legal theory might be seen to reasoning have found voice in a number of
begin with an analysis of discrimination feminist critiques of legal· reasoning. and
rules and social practices. This would methodology as based on male moral
include an analysis of legal rules and reasoning. Other feminist legal scholars
practice that are discriminatory on their have argued that the traditional
face, that is, rules that explicitly
methodology of legal reasoning, of
differentiate on the basis of gender, and
characterizing the legal issue, choosing
disadvantage women. The analysis might Ki
legal precedent and interpreting legal
focus on revealing legal rules or practices ID(
doctrine hides . an underlying political
for example, that prohibit women from an
choices that are being made. Purther, ·the
exercising the vote of from admission to the SOI

legal profession, or that treat a women's act emphasis ~ principle and. precedent in err
of adultery as more serious than a man's traditional legal methodology. has been bic
act. This analysis would· have to consider argued be to inherently .conservative. If . • rac
the reason underlying the differential backward looking focus serves ·to
treatment. Since such differential treatment perpetuate the male bias, and the exclusion. be
is often defended on the grounds that it of women's experience from the law. ex-
protects women, both the rationale and the A third, and related level of analysis be
effect for the law would be examined to might be seen to be the feminist challeng~ I op
determine whether the rules or practices to law's epistemological claims to· fer
advantage or disadvantage women. neutrality. Many feminists would argue
Feminist legal analysis mig~t · also that feminist critiques of the legalsystem in
explore rules and . practices · that ate. fact begin with this disconstruction of-the
discriminatory in their 'impact, ·that is, rules
.,.._
. myth of objectivity and neutrality:
~
 119
'
This approach begins with a radical ·and attempt to theorize the effect of these
skepticism about the neutrality and relationships on women.
universality of the existing legal system.
(B) HOW CAN THE LAW BE USED, IF
It questions our laws and practices in
AT ALL, TO IMPROVE WOMEN'S
· fundamental ways, as well as the
SOCIAL POSITION
reasoning process by which we
' understand and apply them. It does so The second general area of inquiry, that
from. the beginning premise that the is, of how the law can be used to improve
existing system does not embody the position _of women, . focusses on
women's perspectives. developing strategies· for feminist litigation
and law reform. After having identified
Catherine Mac Kinnon has described this
how particular at areas of the law either on
assumption of the exclusion of women
their factor in their impact, discriminate
from the law asihe basic point of departure
against women, feminist legal theory then
for feminist approaches to law:
attempts/ to a triocufate specific strategies ·
Third defines our task not only because for reform. In the area of criminal law,
male domination is perhaps the most family law, employment law, social
pervasive and tenacious. system of security law and so on, feminist legal
power in history, but because it is scholars have advocated for both legislative
metaphysically nearly perfect. Its point reform/ and change in the iriterproaches of
·,ese'. i~~;''Y:'.'o of view is the standard for point of the judiciary. Some have focussed on
oi·al~:;:'. " view lessness, its particularity the
!r of'~·.~· 'developing particular legaJ arguments for
if/ meaning of universality. Its force is constitutional challenges to discriminatory
and exercised as consent, its authority as laws. Other have directed their attention to
oral participation, its supremacy as the the courts, articulating· . the kinds of .
ilars paradigm of order, its control as the interpretive approaches ·that the courts
onal definition of.legitimacy. ought to be adopting in particular areas of
of · Whil~ radical feminists such as Mac the law. Yet other have focussed on
sing Kinnon .would argue law's objectivity is formulating specific draft proposals for
egal male subjectivity - law is male through legislative reform.
Utal and through. - other feminists, such as '
The focus on questions of strategy seems
:·~I\e socialist feminists, mighf place greater to. presuppose that law can be used in
t iri' 'emphasis on revealing the multiplicity of feminist struggles for . social · change.
Je~n biases . underlying the law, biases of class, However, this question of whether law can
~ .. lf race, ethnicity, in addition, to gender. in feet be a useful tool- in bringing about
to · At this level the analysis might go well social change remains a contested issue
sien beyond doctrine analysis, and attempt to within feminist legal theory. After almost
,.:.t.
explore questions of the ·relationship 20 years of feminists engaging with the law,
between women, law and relations of some feminist scholars have begun to
oppression. Both. radical and social challenge the centrality of law in feminist
feminists, although very different starting struggles. Some feminist scholars have
rgue' . f assumptions, raise questions regarding for begun to question the efficacy of rights
rn in ~ example the relationship between ·law and discourse in bringing ?b.Q.µt meaningful
:the .1 the state, and between law and ideology, social change for women. Other scholars
. ·-- '
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· have similarly argued that a focus may be the political and social implications of sex
law inherently restricting and that feminist. and discrimination withinsociety. It is an
ought to be concerned with decentering . swareness that the discrimination facing
law. Yet other feminist defend the role of women is not just a concern about
equality among individuals, about is
law in feminist struggles for social change,
systematic. Feminism is a political
within the broader context of a dialectical . commitment to changing the systematic
relationship between law and politics. The force and values inherent in patriarchy.
question of the extent to which feminists Quoted in Christine Boyle, Book Review:
ought to be engaging with that law has Injunctions an Specific Performance : the.
therefore become an important and Law, Da, ages Canadian Ear Review 65
contested area of inquiry for
feminist legal (1985). 427, 429 note 4;
theory. 2. Katherine Bartlett, Feminist Lega
Methods 103 Harv. Law Review 329
IV +Conclusion (1990) at 837-849.
This introductory discussion of feminist 3. nd at 837
legal theory has raised many more 4. nd at 843
questions -than it has answered. It is much 5. Martha Nussbaum .argues that practical
too early in the emergence of feminist wisdom would be arbitrary and empty 'If
approaches to law in general and in the every situation were truly "new and
discussfbn of these issues in Sri Lanka, to non-repeatable" Nussbaum. The fragility
make any definitive conclusions. The of goodness: luck and Fthies in Greek
papers that follows attempt to pursue some Tragedy. and Philosophy (1986);
of the questions, the themes and dilemmas Katherine Bartlett in "Feminist Degal
Methods" 103 Harvard Law Review 829
raised in this overview in greater detail,
(1990), at 856 argues ("feminist methods
and will allow. I hope, for a more indepth
require the process of abstraction, that is
discussion of the both the use and the separation of the significant from the
limitations of feminist legal ·theory for insignificant. Concrete facts has
feminist engaging. with the law in this significance only if they represent some·
country. generalizable also of the case.
Generalization identify what matters and
References
draw connection to other cases".
1. Susan Boyd and Elizabeth Sheehy
Canadian feminist perspectives on law, 6. Elizabeth Schneider "The Dialectices of
· (1986), l3 J. of law· and Society 283, at Rights and Politics : Perspectives frorri
284. The internal quotation is footnoted the Women's Movement" J.Y.U.l. ev 589 . , .
by Boyd and Sheehy to further elaborate (1986), at 602.
·the basis for their definition, at n. 2: This 7. id at 603; the further writers at 604
definition is a composite of two (Theory emerges from practice and
definitions, one provided by Christine practice then informs and reshapes
Boyle 'scholarship which treats women theory. At the same time, because of its
and other concerns as worth writing dialectical cast, feminist theory I
about, Criminal Law. and Procedure: encompasses a notion of process that I
Who·Needs Tenure? Os Gode Hall Law encourages a grounded and · reflective '
[ournal 23 (1-985), 427, 437, t1'e other appreciation of this inter-relationship-its
borrowed by Christine Boyle from Susan p_qssibilities and limits, visions and.
Sherwin: Feminism is an awareness of defeats"),