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A commentary on the essence of anti-essentialism in feminist legal theory

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  1. 1

    I do not mean to imply here that I find this union to be illegitimate. Quite the opposite is true in fact since my primary scholarly interests focus on this very overlap. What I do mean to question in this article is the problem of reconciling very compelling and important critiques of identity politics with feminist strategies for reform of the law. I refer here to Judith Butler's discussion of identity politics inGender Trouble (New York and London: Routledge, 1990).

  2. 5

    For examples of deconstructive theory's influence on and use in legal theory see generally, D. Kairys, ed.,The Politics of Law: A Progressive Critique, (New York: Pantheon, 1982). More specifically, Duncan Kennedy discusses exactly how legal education reproduces a hierarchical power relationship between law and society in “Legal Education as Training for Hierarchy” in Kairys,supra.

  3. 7

    Again I do not wish to minimize ground breaking work that criticizes identity politics. Questioning the construction of gender is an important project, particularly as it reveals the deployment of heterosexuality as a way to make certain power relationships seem “natura”. For a detailed discussion see Butler,supra n. 1.

  4. 8

    The question of how to incorporate “biological” difference into the law has presented a number of problems for feminist legal theorists, starting with cases likeMueller v.Oregon 208 U.S. 412 (1908) and continuing through debates around how to treat the possibility of women becoming pregnant, as inGeduldig v.Aiello, 417 U.S. 125 (1974). The point is that biology is essentialized for women. That is,all women are assumed to inevitably become pregnant at some time, that is the norm, whereas this norm for women is what constitutes a problematicdifference with respect to legal treatment. This construction of womanhood is obviously problematic in that it excludes women who are not and who will not ever become pregnant. See generally, C. MacKinnon, “Reflections on Sex Equality Under the Law”,Yale Law Journal 100 (1991), 1281.

  5. 9

    Battered women's syndrome has tended to construct a “model” of the battered women that does not fit many women's cultural experiences. Furthermore, societal stereotypes and prejudices make it impossible for any woman not conforming to the model of passivity to avail herself of this defense to the killing of a batterer. See E. Schneider, “Describing and Changing: Women's Self-Defense Work and the Problem of Expert Testimony on Battering”,Women's Right's Law Reporter 9 (1986), 195–222.

  6. 10

    Kimberle Crenshaw critiques Susan Brownmiller's standard formulation of rape as lacking a race perspective in “A Black Feminist Critique of Antidiscrimination Law and Politics”, in D. Kairys, ed.,The Politics of Law: A Progressive Critique (New York: Pantheon, 1990), 195–218.

  7. 11

    See, e.g., F. Fanon,Black Skin, White Masks, trans. Charles Lam Markmann (New York: Grove, 1967) and H.L. Gates, “Writing ‘race’ and the Difference it Makes”, inRace, Writing and Difference (Chicago: University of Chicago, 1986), 1–15.

  8. 12

    There is certainly an argument that efforts at achieving equality through civil rights legislation should be abandoned. Professor Derrick Bell explores this very question inAnd We Are Not Saved (New York: Basis Books, 1987).

  9. 13

    D. Cornell,Beyond Accommodation (New York and London: Routledge, 1991), 130.

  10. 14

    Ibid,, at 130.

  11. 15

    I am not sure that Cornell would ask that MacKinnon be dismissed, she in fact begins her discussion by calling Mackinnon's take on reality “... perhaps the most powerful and compelling ...” However, the “but” remains so the reader is left wondering what exactly Cornell is calling for if not for an abandonment of MacKinnon's strategy.Ibid., at 119.

  12. 16

    Although Cornell spends some time discussing the value of Judith Butler's critique of current identity politics, I am not wholly convinced that their positions are fully reconcilable. The idea of a utopian feminine beyond might still be considered to be overly reliant on gender constructions. See generally, J. Butler,Gender Trouble (New York and London: Routledge, 1990).

  13. 17

    In fact MacKinnon cites Irigaray's discussion of psychoanalytic theory to support an argument about the male obsession to control the fetus. C. MacKinnon, “Reflections on Sex Equality Under the Law”,Yale Law Journal 100 (1991), 1281.

  14. 18

    E. Spelman,Inessential Woman (Boston: Beacon Press, 1988), 13.

  15. 19

    A. Harris, “Race and Essentialism in Feminist Legal Theory”,Stanford Law Review 42 (1990), 581.

  16. 20

    MacKinnon,Reflections, supra n 8, at 1294.

  17. 21

    Ibid.

  18. 22

    Ibid.

  19. 23

    C. MacKinnon, “Reflections on Sex Equality Under the law”,supra n. 8, at 1285.

  20. 24

    For an articulation of the debate between “radical” and “libertarian” feminists in the context of female sexuality, see A. Ferguson, “Sex War: The Debate Between Radical and Libertarian Feminists”,Signs 10 no.1 (1984), 106–12.

  21. 25

    The former is what the philosopher Richard Sennett calls “Destructive Gemeinshaft”. See Richard Sennett, “Destructive Gemeinshaft”, inThe Philosophy of Sex and Love, ed. Alan Soble (Totawa, N.J.: Towman and Allan held, 1980), 291–321.

  22. 26

    SeeAmerican Booksellers v.Hudnut, 771 F.2d 323 (7th Circuit 1985) aff'd, 475 U.S. 1001 (1986). See also C. MacKinnon, “Francis Biddle's Sister”, inFeminism Unmodified: Discourses on Life and Law (Cambridge, MA: Harvard, 1987), 163–197.

  23. 27

    C. MacKinnon,Reflections on Sex Equality Under the Law, supra n 8.

  24. 28

    C. MacKinnon, “Difference and Dominance: On Sex Discrimination”, inFeminism Unmodified: Discourses on Life and Law, supra n. 26, at 32–45.

  25. 29

    MacKinnon has been criticized for her argument that “... forced sex is central to sexuality ...” and that “... sexuality is central to women's definition ...”. MacKinnon,Toward a Feminist Theory of the State (Cambridge, MA: Harvard, 1989), 171.

  26. 30

    Here MacKinnon quotes Brownmiller whose work on rape has been much criticized for its own essentialist framework. But note that she earlier herself criticized Brownmiller's casting of rape as not about sex but violence.Ibid. at 1302.

  27. 31

    C. MacKinnon, “Relfections on Sex Equality Under the Law”,supra n. 8

  28. 32

    Ibid. at 1305.

  29. 36

    Many of the issues that are discussed in the context of 1st amendment freedoms with respect to pornography arise similarly in the context of hate speech. For a discussion of the importance and possibilities of regulating hate speech, see M. Matsuda, C. Lawrence, R. Delgado and K. Crenshawe,Words that Wound (Boulder, San Francisco and Oxford: Westview, 1993).

  30. 38

    T. Modleski,Feminism Without Women (New York and London: Routledge, 1991), 20.

  31. 39

    Ibid.

  32. 40

    Ibid. Here she refers to Audre Lorde's critique of Mary Daly.

  33. 41

    Gayatri Spivak, “In a Word”,differences 1/2 (1989), 124.

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Brooks, D.L. A commentary on the essence of anti-essentialism in feminist legal theory. Feminist Legal Stud 2, 115–132 (1994). https://doi.org/10.1007/BF01105174

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  • Social Issue
  • Legal Theory
  • Feminist Legal Theory