Introduction to the Research Handbook on Feminist Jurisprudence

Abstract

Contemporary feminist legal theory is a body of scholarship produced over the last half of the twentieth century and the first quarter of this one that proffers explanations of law’s complicity in the ongoing subordination of women and sexual minorities, while also pursuing the possibilities within law for achieving lasting gender and sex equality. Its purpose is thus both descriptive and critical on the one hand, and normative and aspirational on the other. It attempts, descriptively, to map the contours of the ongoing legal supports for genderand sex-based subordination in existing law and to explain the persistence of those supports in an era characterized by a liberal consensus on very basic norms of nondiscrimination and formal equality. It is, thus, a critical theory of law. At the same time, however, feminist legal theory is also embedded in – and very actively participates in – the ideals, aspirations and commitments of contemporary legalism, and feminist legal theory’s goals are accordingly normative as well as critical. Feminist legal theorists both directly and indirectly contribute to the construction of various fields of law – civil rights law, constitutional law, criminal law, tort law, contract law, family law, international law and private law, and those contributions are to varying degrees aimed at ending just that subordination. That degree of engagement itself rests on the bedrock assumption that those efforts can at least sometimes bear fruit. Thus, feminist legal theory taken in its entirety has shown, if not consistently expressed, a view of law as not only a mechanism for the subordination of over half the human community but also a potential vehicle for equalizing and improving the quality of life for women and all gender and sexual minorities. The working assumption is that law is both complicit in gender and sexual subordination and that legal reform is both possible and essential to gender and sexuality justice. As a consequence, broadly construed, feminist legal theory of the last half century has contributed to our understanding of law’s complicity in injustice and its realized and potential contribution to justice and has laid the foundation for our continued study of both. The critical and the normative sides of feminist legal theory bear the mark of the influence of a number of jurisprudential movements that came to prominence during approximately the same period, including, most notably, liberal legalism, critical legal studies, neo-Marxism, postmodernism and critical race theory. The substantial crossfertilization between feminist legal scholarship and general jurisprudence has given rise to various theoretical branches of and within feminist legal theory, while feminism itself continues to serve as the trunk. Liberal feminist legal theory, to take one example that will be discussed in some detail below, has embraced long-standing liberal values as well as the broad liberal descriptions of social life and human nature on which those values rest. Thus, liberal feminism has largely embraced liberalism’s commitment to individualism, according to which all of us are defined primarily by our individual