What’s Distinctive About Feminist Analysis of Law?: A Conceptual Analysis of Women’s Exclusion from Law

Abstract

What is distinctive about a feminist analysis of law? Conversely, what does it mean to characterize the law as distinctively ‘male’ as a way of criticizing its injustice? It is widely assumed by both feminist scholars and non-feminists or curious onlookers that a feminist analysis of law must have distinctive features that set it off from mainstream\“malestream” theories of law. Feminist scholars often try to ‘sell’ feminist analysis to interested newcomers and try to break down the recalcitrance of those who seem to want to marginalize and dismiss it precisely by claiming a difference of perspective for feminist analysis of which no well educated lawyer or legal commentator can afford to be ignorant. Meanwhile, feminist claims are also challenged by those who think they can reach the same conclusion on independent grounds for therefore not being distinctively feminist: “what makes that particularly feminist” the communitarian, for example, will ask, faced with an argument that feminism is critical of the individualistic bias of the legal system.

Distinctiveness implies not only contrast with some other kind of account, but also internal cohesiveness, some kind of commonality amongst accounts sharing the label “feminist jurisprudence”. Yet the assumption of distinctiveness pervades a literature in which it is increasingly difficult to identify anything that unites all feminists. Originally, the assumption that feminist analysis of law could be grounded in something that all women have in common may have been born of an understandable impatience to bring about immediate change together with the optimistic normative belief that if something (law, policy, etc.) was bad for all women it simply had to be changed. However, articulating feminist distinctiveness in terms of women’s commonality has given rise to an unfortunate dynamic as competing accounts – all at least implicitly claiming to define the meaning of feminism – proliferate. After examining this dynamic and its consequences for healthy debate amongst feminists interested in law, I propose a different way of thinking about what makes feminist analysis of law distinctive – one that shifts away from a substantive level of analysis to the conceptual level.

Keywords: Feminism, Law, Women's Perspective