Pub Date : 2019-01-25DOI: 10.4337/9781786439697.00038
A. Wing
This chapter provides an overview of the intersection between international law and feminism. It predominantly discusses scholarly writing, but also some major documents and institutions. The US has been notoriously narrow in its understanding of and respect for international law. It is not a required course in most law schools, and American courts often refuse to acknowledge relevant international law at all. This myopia has extended to US feminist legal theory. Many feminist scholars focus on US law in their specialty and never mention the international implications. Some feminist anthologies may not even contain one article on international law.1 Interestingly, collections produced in other countries contain more international material, probably paralleling the acknowledgment of international law within their own legal systems. In the future, it would be significant if US feminists extended their coverage or at least cited more fully to the robust international literature.2 This chapter first shows how feminism has developed within various international law subfields. It then focuses on a major offshoot from traditional international legal jurisprudence known as Third World Approaches to International Law (TWAIL). Finally, it highlights global critical race feminism (CRF), with its emphasis on women of color, an area that intersects with every area previously reviewed. The conclusion notes that much work remains to be done.
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Pub Date : 2019-01-25DOI: 10.4337/9781786439697.00010
Chao-ju Chen
This chapter discusses Catharine A. MacKinnon’s theory of sex equality, its application as well as major strands of criticism. Beginning with a radical critique of liberal legalism, feminism and Marxism, MacKinnon conceived a hierarchy-centered theory of substantive equality, shifting the paradigm of equality thinking from questions of sameness and difference to the power structure of dominance and subordination. Drawing on feminist consciousness raising as method, her theory sees gender as an inequality and sexuality as the linchpin of gender inequality. It is also an engaged theory producing sex equality laws to address women’s sexual violations: sexual harassment as a legal injury and a form of sex discrimination; a harm-based civil-rights approach to pornography; an asymmetrical approach to the abolition of prostitution; and an inequality approach to rape as a gender-based crime. Against challenges from anti-essentialist and sex-positive critiques, MacKinnon’s theory embraces intersectionality as a method and pursues equality by resisting sexual oppression.
{"title":"Catharine A. MacKinnon and equality theory","authors":"Chao-ju Chen","doi":"10.4337/9781786439697.00010","DOIUrl":"https://doi.org/10.4337/9781786439697.00010","url":null,"abstract":"This chapter discusses Catharine A. MacKinnon’s theory of sex equality, its application as well as major strands of criticism. Beginning with a radical critique of liberal legalism, feminism and Marxism, MacKinnon conceived a hierarchy-centered theory of substantive equality, shifting the paradigm of equality thinking from questions of sameness and difference to the power structure of dominance and subordination. Drawing on feminist consciousness raising as method, her theory sees gender as an inequality and sexuality as the linchpin of gender inequality. It is also an engaged theory producing sex equality laws to address women’s sexual violations: sexual harassment as a legal injury and a form of sex discrimination; a harm-based civil-rights approach to pornography; an asymmetrical approach to the abolition of prostitution; and an inequality approach to rape as a gender-based crime. Against challenges from anti-essentialist and sex-positive critiques, MacKinnon’s theory embraces intersectionality as a method and pursues equality by resisting sexual oppression.","PeriodicalId":275645,"journal":{"name":"Research Handbook on Feminist Jurisprudence","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115473037","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-01-25DOI: 10.4337/9781786439697.00009
S. Law
{"title":"In defense of liberal feminism","authors":"S. Law","doi":"10.4337/9781786439697.00009","DOIUrl":"https://doi.org/10.4337/9781786439697.00009","url":null,"abstract":"","PeriodicalId":275645,"journal":{"name":"Research Handbook on Feminist Jurisprudence","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128731631","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-01-25DOI: 10.4337/9781786439697.00031
M. Franks
According to First Amendment orthodoxy, we must protect the thought we hate in order to protect the speech we love. Defending the free speech rights of neo-Nazis, pornographers, and cross-burners – the speech of white male supremacy – supposedly secures the free speech rights of women and minorities. Free speech orthodoxy thus urges women and minorities to see themselves, quite literally, in white men. Feminist theory demonstrates, however, that protecting free speech for white men, far from protecting women and minorities, sacrifices and silences them. If free speech for all is the desired outcome, a dramatic reorientation of free speech theory and practice is required. Rather than urging women and nonwhite men to see themselves in white men, white men should be urged to see themselves in women and nonwhite men. When women’s free speech if protected, everyone’s free speech is protected.
{"title":"Beyond ‘Free Speech for the White Man’: feminism and the First Amendment","authors":"M. Franks","doi":"10.4337/9781786439697.00031","DOIUrl":"https://doi.org/10.4337/9781786439697.00031","url":null,"abstract":"According to First Amendment orthodoxy, we must protect the thought we hate in order to protect the speech we love. Defending the free speech rights of neo-Nazis, pornographers, and cross-burners – the speech of white male supremacy – supposedly secures the free speech rights of women and minorities. Free speech orthodoxy thus urges women and minorities to see themselves, quite literally, in white men. Feminist theory demonstrates, however, that protecting free speech for white men, far from protecting women and minorities, sacrifices and silences them. If free speech for all is the desired outcome, a dramatic reorientation of free speech theory and practice is required. Rather than urging women and nonwhite men to see themselves in white men, white men should be urged to see themselves in women and nonwhite men. When women’s free speech if protected, everyone’s free speech is protected.","PeriodicalId":275645,"journal":{"name":"Research Handbook on Feminist Jurisprudence","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129229271","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-01-25DOI: 10.4337/9781786439697.00027
Ôrît Kāmîr
Feminist insights, ideas, initiatives and agendas are not – and should not be – confined to a single, specific value system. Because they are amenable to various theories and ideologies, they may benefit from multiple worldviews and terminologies. Since its modern beginnings in the nineteenth century, feminism has mastered diverse value-languages, each relevant to a particular context. Within the framework of classical liberalism and the assertion of equal rationality and thus autonomy and civil liberties, liberal feminism claimed that all women were equally rational, autonomous and deserving of civil liberties.1 As sensitivity to dominance and the oppression of subjugated classes by hegemonic groups grew, radical feminism set out to eradicate suppressive hegemonic patriarchalism and liberate dominated women as a class.2 With the proud proclamation of minority distinctiveness, relational feminists began demanding that women be acknowledged and celebrated for their nurturing and caring constitution.3 The development of identity politics led to the emergence of black, lesbian, religious and numerous other feminisms, intersectionality, postmodernism, post-colonialism and neoconservatism, all inspiring lively feminist vocabularies and patterns of thought.4 This flexibility, versatility and adaptability has allowed feminism to become relevant to a wide range of audiences across diverse times and places, attesting to the movement’s vitality. And yet, academic feminists have largely neglected the study of human dignity as a central organizing value. This is anomalous. Across the globe, human dignity, the inherent value of humanity per se, is increasingly regarded as the basis of human rights. The United Nations declared, on 10 December 1948, that human dignity is the foundation of universal, fundamental human rights.5 Nourishing contemporary humanism and underlying and framing international human rights discourse, human dignity has, over the decades since, formed the basis of multiple constitutions and treaties.
{"title":"A dignitarian feminist jurisprudence with applications to rape, sexual harassment and honor codes","authors":"Ôrît Kāmîr","doi":"10.4337/9781786439697.00027","DOIUrl":"https://doi.org/10.4337/9781786439697.00027","url":null,"abstract":"Feminist insights, ideas, initiatives and agendas are not – and should not be – confined to a single, specific value system. Because they are amenable to various theories and ideologies, they may benefit from multiple worldviews and terminologies. Since its modern beginnings in the nineteenth century, feminism has mastered diverse value-languages, each relevant to a particular context. Within the framework of classical liberalism and the assertion of equal rationality and thus autonomy and civil liberties, liberal feminism claimed that all women were equally rational, autonomous and deserving of civil liberties.1 As sensitivity to dominance and the oppression of subjugated classes by hegemonic groups grew, radical feminism set out to eradicate suppressive hegemonic patriarchalism and liberate dominated women as a class.2 With the proud proclamation of minority distinctiveness, relational feminists began demanding that women be acknowledged and celebrated for their nurturing and caring constitution.3 The development of identity politics led to the emergence of black, lesbian, religious and numerous other feminisms, intersectionality, postmodernism, post-colonialism and neoconservatism, all inspiring lively feminist vocabularies and patterns of thought.4 This flexibility, versatility and adaptability has allowed feminism to become relevant to a wide range of audiences across diverse times and places, attesting to the movement’s vitality. And yet, academic feminists have largely neglected the study of human dignity as a central organizing value. This is anomalous. Across the globe, human dignity, the inherent value of humanity per se, is increasingly regarded as the basis of human rights. The United Nations declared, on 10 December 1948, that human dignity is the foundation of universal, fundamental human rights.5 Nourishing contemporary humanism and underlying and framing international human rights discourse, human dignity has, over the decades since, formed the basis of multiple constitutions and treaties.","PeriodicalId":275645,"journal":{"name":"Research Handbook on Feminist Jurisprudence","volume":"2012 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121751137","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-01-25DOI: 10.4337/9781786439697.00036
Julie C. Suk
{"title":"Feminism and family leave","authors":"Julie C. Suk","doi":"10.4337/9781786439697.00036","DOIUrl":"https://doi.org/10.4337/9781786439697.00036","url":null,"abstract":"","PeriodicalId":275645,"journal":{"name":"Research Handbook on Feminist Jurisprudence","volume":"113 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132167744","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-01-25DOI: 10.4337/9781786439697.00007
R. West
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 n
{"title":"Introduction to the Research Handbook on Feminist Jurisprudence","authors":"R. West","doi":"10.4337/9781786439697.00007","DOIUrl":"https://doi.org/10.4337/9781786439697.00007","url":null,"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 n","PeriodicalId":275645,"journal":{"name":"Research Handbook on Feminist Jurisprudence","volume":"177 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133497732","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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