The Language of Violence: Feminist Legal Theory

(NOTE: These readings are required for Group A participants)

"Feminist legal theorists, despite differences in schools of thought, are united in their basic belief that society is patriarchal--shaped by and dominated by men. Feminist jurisprudence, then, provides an analysis and critique of women's position in partiarchal society and examines the nature and extent of women's subordination. It explores the role of law in maintaining and perpetuating patriarchy. It also examines methods of eliminating partiarchy. Feminist legal theory essentially has two major components. The first is an exploration and critique of the theoretical issues about the interaction between law and gender. The second is the application of a feminist analysis and perspective to concrete areas of law: for example, family, work, criminal law, reproductive freedom, pornography, sexual harassment with an eye toward effectuating law reform." (from Feminist Legal Theory: Foundations, D. Kelly Weisberg, ed. 1993).

Catharine A. MacKinnon is widely regarded as the foremother of feminist legal theory. Her first book, Sexual Harassment of Working Women: A Case of Sex Discrimination, was published in 1979. While studying at Yale Law School, MacKinnon developed the theory of sexual harassment with a collective of lawyers and activists. The conceptualization of sexual harassment as a legal theory to address the situation that so many women encountered in the workplace and in school is a clear example of the power of feminist legal theory to transform women's lives. Today, women enter the workforce with a new set of entitlements and opportunities.

Many different strands of feminist legal theory have developed through the years. An inherent tension exists between recognizing women as equals before the law, and recognizing that women are differently situated from men regarding economic opportunities, vulnerability to violence, and biology.  For an overview of the types of arguments currently in play, please review:

[NOTE: These sources are optional for Group A participants]

http://www.law.cornell.edu/topics/feminist_jurisprudence.html.

http://web.lexis.com/xchange/Content/Bridge/CriticalTheory/critical3.htm


Feminist legal theory is in some sense an outgrowth of the critical legal studies movement. Duncan Kennedy, a founder of critical legal studies, applies it to an analysis of the problem of male violence against women in his essay "Sexy Dressing, Etc.," an excerpt of which follows. For many reasons, this essay contributes significantly to the discourse over how to eradicate the abusive attitudes and actions of men in their intimate relationships. The excerpt that follows defines the contours of abuse that while legally prohibited, remains largely tolerated in our society.

Duncan Kennedy, "Sexy Dressing, Etc."

Cambridge: Harvard University Press, 1993, Excerpt, pp. 136-8.

The combination of the limits of the formal law and the actual workings of the legal system has the result that men can and do commit large numbers of sexual abuses of women without any official sanction. Although most people would probably regard the conduct as clearly wrong and injurious, there is no punishment and no redress. True, it seems likely that there would be abuse within any conceivable legal system, and clear that even in the complete absence of legal sanctions there would be significant social control of this kind of behavior through other mechanisms. But it also seems reasonable to suppose that the legal system affects the practices of abuse, reducing their incidence (probably) and channeling them into particular forms (secret forms, for example), without coming close to abolishing them.

The crucial point is that some abuse, what I will call the "tolerated residuum," is plausibly attributed to contestable social decisions about what abuse is and how important it is to prevent it. The law defines murder quite clearly, and the "system" devotes substantial resources to catching and punishing perpetrators. It defines rape much less clearly and sometimes devotes fewer resources to it than to less important crimes.

At the extreme, the legal system’s role in the abuse of prostitutes by johns, pimps, and police seems to be more than mere toleration. The system generates the conditions for the abuses that it tolerates by criminalizing prostitution without trying to abolish it. Legalization might make it easier for prostitutes to use the legal system against rape, battery and sexual enslavement. Legalization might also lead to a great increase in the amount of the activity and the proliferation of its forms, including forms little better than what we have now. But it remains that the abuse of prostitutes is a direct consequence of the particular balance the society has chosen, rather than of "human nature" or the "limits of social control."

[What are] the consequences of setting up a legal system to condemn sexual abuse of women by men in the abstract but at the same time operating the system so that many, many instances of clearly wrongful abuse are tolerated[?] … [There are] two ways in which the tolerated residuum is a factor in men’s and women’s lives. First, men and women gain and lose from the practices of abuse, whether or not they themselves are actually abusers or victims. These gains and losses are more far-reaching than is usually implied in the rhetoric either of those who minimize abuse or of those who are mainly trying to identify and condemn it.

Second, partial prevention and partial toleration create a particular set of incentives for potential abusers and potential victims, and for everyone else in the society. These induce behavior different from what would occur either in a society that drastically deterred abuse or in one that legalized it across the board. Men’s and women’s reactions to the particular line we’ve chosen to draw between sanction and toleration have extensive indirect consequences for everything from the details of day-to-day behavior to the formation of male and female identities. [The principal influence on this discussion is Robert Hale, "Coercion and Distribution in a Supposedly Non-Coercive State," 38 Pol Sci. Q. 470 (1923); and idem, "Bargaining Duress, and Economic Liberty," 43 Colum. L. Rev. 603 (1943). See generally Chapter 3 of this volume.]


Other optional resources include:

[NOTE: These resources are optional for Group A participants]

http://www.yale.edu/lawnfem/law&fem.html

http://lark.cc.ukans.edu/~akdclass/femlit/femjur.html

http://www.geocities.com/CapitolHill/2995/

http://www.de.psu.edu/harass/analysis/theory.htm
 
 

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