Feminist Theory in Law: The Difference it Makes
Martha Albertson Fineman
Emory University School of Law
Columbia Journal of Gender and Law, Vol. 2, 2005
Emory Public Law Research Paper Forthcoming
For much of its history, legal feminism has primarily focused on an equality-based strategy, which assumed no legally relevant differences between men and women. Differences between men and women, particularly the belief in women’s unique biological role, has been used as justification for exclusion of women from many public institutions.
This strategy has been criticized by some feminists who have pointed out that “equality” has turned out to be “sameness of treatment,” which actually operates as an obstacle to creating solutions for the economic and societal problems women encounter. Denial of relevant differences serves as an artificial limit on the feminist project in law. A theory of difference is necessary in order to do more than merely open the doors to institutions designed with men in mind.
This paper advances the theory of difference through the idea of gendered life. The concept of gendered life is based on the belief that most differences between the sexes are socially manufactured, not inherent. Additionally, gendered life posits that neutral treatment of different people within a gendered institution does not operate in a neutral matter.
Recognizing difference is necessary to remedy socially and culturally imposed harms to women. While focusing on these differences can be used to divide women, an affirmative politics of difference can allow women to coalesce despite their differences to define the implications and ramifications of the gendered aspects of their lives. This paper is the beginning of a search for pragmatic ways for legal feminists to work with law, recognizing its gendered nature and the need for contexts supplied by considerations of differences.
Number of Pages in PDF File: 24
Keywords: legal feminism, feminism, equality, inequality, theory of difference, politics of difference, gender difference, gendered life, gendered institutions, gender, technology, procreation, reproduction, policy, lawmaking, public sphere, assimilation, discrimination, gender-neutral, perspective
Date posted: July 10, 2012