Reconstructing Equality: Of Justice, Justicia, and the Gender of Jurisdiction

26 Pages Posted: 8 Jul 2003 Last revised: 7 Feb 2011

Abstract

This essay has five themes. First, jurisdiction has gender. Whenever power is being allocated between state and federal courts, one must ask not only how women are treated but how the allocation affects our understanding of the problems that belong to women and to men. By drawing jurisdictional lines, polities may also be drawing gender lines. We must probe both the jurisdiction in gender, and the gender in jurisdiction.

Second, I counsel against assuming that any particular jurisdiction is necessarily a safe harbor for women's equality. Equality is not an artifact of the level of a court or of a government body but of who has power within it and what their commitments are. Therefore, I am opposed to what I have termed "categorical federalism," to rigid equation of any particular level of governance with a particular set of problems or a particular view of them. Laws are not unidimensional but often affect many aspects of a person's life. Opponents of VAWA who wanted to label it a statute about families and about crime were right to understand that it did implicate family life and street crime. But they were wrong to see the provision in only those terms. VAWA was also about the relationships among violence, commerce, and equal citizenship. But proponents of equal citizenship ought not to assume that national or transnational legislation could ever suffice to alter the material conditions of women's lives. They need to look to state as well as national and international efforts to forward those goals.

My third point is to enlarge the frame beyond the arguments that jurisdictions can become gendered and that jurisdictional divides are one of the many mechanisms by which women and men are distinguished. Gender systems are themselves forms of jurisdiction. At its core, the sex/gender system is a system of boundaries. Many of the successes that have advanced women's equality have come by reframing understandings of the range of possibilities of both women and men, by redrawing some boundaries, and by erasing others. To do so has required detaching assumptions of the naturalness of differences between women and men and replacing those assumptions with appreciation for the breadth of capacities that all persons possess.

Feminism has long known that it had much to fix. That women had to come to terms with the political construction of the family has long been obvious. That women had to focus on violence has also been readily evident. What I hope to show is that feminism must also take on the conceptual underpinnings of this federation. We need to understand the assignment of roles within it to state, local, and national institutions and to demonstrate the way in which gender and patriarchal assumptions infuse understandings of the categories of federalism and of the very meaning of the powers permitted to the national government. Thus, and fourth, in addition to projects related to women's work, to violence, and to families, feminists must add questions of federalism to the list of structures and practices requiring refurbishing. Fifth, to work successfully to create women's equality depends upon collaboration - among women, between women and men, and across levels of government.

Keywords: justice, equality, jurisdiction, feminism

Suggested Citation

Resnik, Judith, Reconstructing Equality: Of Justice, Justicia, and the Gender of Jurisdiction. Yale Law School, Public Law Working Paper No. 57. Available at SSRN: https://ssrn.com/abstract=417351

Judith Resnik (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-1447 (Phone)
203-432-1719 (Fax)

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