Feminism - Jurisprudence - GDI Scholars 2005

GDI Scholars 2k5 Patel/Symonds
Feminist Jurisprudence K
Feminist Jurisprudence Kritik

Feminist Jurisprudence Kritik ...............................................................................................................................1
1NC Shell................................................................................................................................................................2
1NC Shell................................................................................................................................................................3
1NC Shell................................................................................................................................................................4
Links- Current System is Male-Dominated..........................................................................................................5
Links- Difference in the Law ................................................................................................................................9
Links- Individuality/Privacy................................................................................................................................10
Links- Right To Life ............................................................................................................................................16
Links- Reason .......................................................................................................................................................17
Links- Deference ..................................................................................................................................................18
Links- Torture.......................................................................................................................................................19
Impacts- Patriarchy=> Nuke Annihilation .........................................................................................................20
Impacts- Patriarchy=> Militarism .......................................................................................................................21
Impacts- Patriarchy=> Subjugation ....................................................................................................................22
Impacts- Patriarchy=> Subjugation ....................................................................................................................23
Impacts- Patriarchy=> Violence..........................................................................................................................24
Alt- Reconstructive Feminist Jurisprudence.......................................................................................................25
Alt- Reconstructive Feminist Jurisdiction ..........................................................................................................26
Alt- Fundamental Contradiction..........................................................................................................................27
Alt- Connection Theory .......................................................................................................................................28
Criticism Solves ...................................................................................................................................................29
2NC AT: Perm......................................................................................................................................................32
2NC AT: Intersectionality ...................................................................................................................................33
2NC AT: Essentialism .........................................................................................................................................34
2NC AT: We Change The Law ...........................................................................................................................35
2AC Answers- Perm ............................................................................................................................................36
2AC Answers- Link Turn ....................................................................................................................................37
2AC Answers- Highlighting Differences Bad....................................................................................................38
2AC Answers- Alt. Fails......................................................................................................................................39
2AC Answers- Patriarchy Will Come Back .......................................................................................................40
2AC Answers- Feminism Bad.............................................................................................................................41
2AC Answers- Privacy Good ..............................................................................................................................42
1
1NC Shell
The affirmative endorses current systems of jurisprudence which are essentially
masculine- the notion of “individual” rights necessarily assumes a separateness that
does not apply to women.
West, professor of law at the University of Maryland, Winter 1998
[Robin. “Jurisprudence and Gender.” University of Chicago Law Review. 55 U. Chi. L. Rev. 1. Lexis]
The first purpose of this essay is to put forward the global and critical claim that by virtue of their shared
embrace of the separation thesis, all of our modern legal theory -- by which I mean "liberal legalism" and
"critical legal theory" collectively -- is essentially and irretrievably masculine. My use of "I" above was
inauthentic, just as the modern, increasing use of the female pronoun in liberal and critical legal theory,
although well-intended, is empirically and experientially false. For the cluster of claims that jointly
constitute the "separation thesis" -- the claim that human beings are, definitionally, distinct from one
another, the claim that the referent of "I" is singular and unambiguous, the claim that the word "individual"
has an uncontested biological meaning, namely that we are each physically individuated from every other,
the claim that we are individuals "first," and the claim that what separates us is epistemologically and
morally prior to what connects us -- while "trivially true" of men, are patently untrue of women. Women
are not essentially, necessarily, inevitably, invariably, always, and forever separate from other human
beings: women, distinctively, are quite clearly "connected" to another human life when pregnant. In fact,
women are in some sense "connected" to life and to other [*3] human beings during at least four recurrent
and critical material experiences: the experience of pregnancy itself; the invasive and "connecting"
experience of heterosexual penetration, which may lead to pregnancy; the monthly experience of
menstruation, which represents the potential for pregnancy; and the post-pregnancy experience of breast-
feeding. Indeed, perhaps the central insight of feminist theory of the last decade has been that woman are
"essentially connected," not "essentially separate," from the rest of human life, both materially, through
pregnancy, intercourse, and breast-feeding, and existentially, through the moral and practical life. If by
"human beings" legal theorists mean women as well as men, then the "separation thesis" is clearly false. If,
alternatively, by "human beings" they mean those for whom the separation thesis is true, then women are
not human beings. It's not hard to guess which is meant.
2
1NC Shell
Moreover, The relationship of domination established in patriarchy and engrained
in our legal system creates the ability to oppress and kill
Williams, associate professor at the University of Wisconsin, 1988
[Patricia J. “On being the object of property.” From Feminist legal theory: readings in law and gender” ed.
Katharine T. Bartlett and Rosanne Kennedy. p. 167]
p.167 “As I reflected…to production”
As I reflected on all this, I realized that one of the things passed on from slavery, which continues in the oppression
of people of color, is a belief structure rooted in a concept of black (or brown, or red) anti-will, the antithetical
embodiment of pure will. We live in a society in which the closest equivalent of nobility is the display of
unremittingly controlled willfulness. To be perceived as unremittingly will-less is to be imbued with an
almost lethal trait. Many scholars have explained this phenomenon in terms of total and infantilizing
interdependency of dominant and oppressed.6 Consider, for example, Mark Tushnet's distinction between slave law's
totalistic view of personality and the bourgeois "pure will" theory of personality: "Social relations in slave society rest upon
the interaction of owner with slave; the owner, having total dominion over the slave. In contrast, bourgeois
social relations rest upon the paradigmatic instance of market relations, the purchase by a capitalist of a worker's
personality. Slave relations are total, engaging the master and slave in exchanges in which each must take
account of the entire range of belief, feeling, and interest embodied by the other; bourgeois social relations
are partial, requiring only that participants in a market evaluate their general productive characteristics
without regard to aspects of personality unrelated to production."7
3
1NC Shell
Our alternative is to reject the affirmative’s discourse of individual rights. We must
use the law as a starting point for imagining new rules that escape the trap of the
current system.
Baer, associate professor of political science at Texas A&M, 1992
[Judith A. “How is Law Male? A feminist perspective on constitutional interpretation” From Feminist
Jurisprudence: The difference debate. Ed. Leslie Friedman Goldstein. p.164-5]
I submit that a feminist constitutional jurisprudence is free to reject these conceptual traps and to devise
new approaches to constitutional reasoning. Conceding that the rules were not invented for the express
purpose of frustrating claims to sexual equality, we can still raise the possibility that they serve that
purpose. In Katharine Bartlett's words (1990), they "drive underground" ideologies. Since feminist ideology
was not present to be driven underground when these rules were developed, feminists are justified in
suspecting that they will frustrate women's claims. This proposal is not so drastic as it may sound. I am not
suggesting that feminists should declare constitutional rights by fiat. What I am suggesting is that feminists
are justified in attempting to reason from preference to conclusion. How could such a process work? I have
argued elsewhere that one way out of the doctrinal traps is to employ the mind's intuitive and imaginative
faculties: to ask, for example, under what circumstances sexual equality could be compatible with the
absence of a right to abortion (Baer, 1990b). Another possible approach for feminist constitutional scholars
is to proceed from things we know as women that are not necessarily known to men, such as the ways in
which society apportions the consequences of the absence of rights like reproductive choice. Other possible
approaches have yet to be envisioned. I am arguing for feminist jurists to give full creative license to the
mind. The boundaries between reality and fantasy, between reason and emotion, between perceived and
proven fact, are as conventional and artificial as the boundaries between neutral and result-oriented
jurisprudence, between state and federal power, between consistency and inconsistency. Those rules served
purposes that women had little if any part in articulating. A central task of feminist jurisprudence is a
willingness to break the rules.
Finally, We need a bottom-up approach that first criticizes the hierarchies inherent
in our legal system- individual criticism spurs action that topples these hierarchies.
MacKinnon, professor of law at the University of Michigan, 2005
[Catharine A. Women’s Lives- Men’s Laws. Harvard University Press. P.57]
The point of the new equality jurisprudence is to institutionalize social equality, rather than inequality,
through legal equality initiatives. It begins by articulating the systematic pervasive, and cumulative absence
of equality throughout society, including in democracies, and by moving to put legal power to redress it
into the hands of affected groups through law. In this vision, law can be something people do, not just
something states do to people. This democratic shift in legal form as well as content called civil rights as
pioneered by the Black movement in the United States, with echoes in the human rights of transnational
law—is appropriate to an aspiration to transform social hierarchy from the bottom up. Beyond clarifying
unnoticed dynamics in law and history, and stimulating needed scholarship and analysis, the goal of this
theory is to close the gap between legal promise and social reality in the equality area. This approach could
be adopted anywhere. A legal regime capable of producing equality of women to men—half the human
race to the other—made up as they are of all existing inequalities, might learn what it needs to know to
produce equality among men as well.
4
Links- Current System is Male-Dominated

Rule of law does not value the existential dilemmas facing women
First, the Rule of Law does not value intimacy -- its official value is autonomy. The material consequence of
this theoretical undervaluation of women's values in the material world is that women are economically
impoverished. The value women place on intimacy reflects our existential and material circumstance;
women will act on that value whether it is compensated or not. But it is not. Nurturant, intimate labor is
neither valued by liberal legalism nor compensated by the market economy. It is not compensated in [*59] the
home and it is not compensated in the workplace -- wherever intimacy is, there is no compensation. Similarly, separation of the
individual from his or her family, community, or children is not understood to be a harm, and we are not
protected against it. The Rule of Law generally and legal doctrine in its particularity are coherent reactions
to the existential dilemma that follows from the liberal's description of the male experience of material
separation from the other: the Rule of Law acknowledges the danger of annihilation and the Rule of Law
protects the value of autonomy. Just as assuredly, the Rule of Law is not a coherent reaction to the existential dilemma that
follows from the material state of being connected to others, and the values and dangers attendant to that condition. It neither
recognizes nor values intimacy, and neither recognizes nor protects against separation.
Current legal theories are dominated by males and, as such, exclude women
The second thing I mean to imply by the phrase "masculine jurisprudence" is that both liberal and critical legal theory, which is about
the relation between law and life, is about men and not women. The reason for this lack of parallelism, of course,
is hardly benign neglect. Rather, the distinctive values women hold, the distinctive dangers from which we
suffer, and the distinctive contradictions that characterize our inner lives are not reflected in legal theory
because legal theory (whatever else it's about) is about actual, real life, enacted, legislated, adjudicated law,
and women have, from law's inception, lacked the power to make law protect, value, or seriously regard our
experience. Jurisprudence is "masculine" because jurisprudence is about the relationship between human beings and the laws we
actually have, and the laws we actually have are "masculine" both in terms of their intended beneficiary and in
authorship. Women are absent from jurisprudence because women as human beings are absent from the
law's protection: jurisprudence does not recognize us because law does not protect us. The implication for this should be obvious.
We will not have a genuinely ungendered jurisprudence (a jurisprudence "unmodified" so to speak) until we have legal doctrine that
takes women's lives as seriously as it takes men's. We don't have such legal doctrine. The virtual abolition of patriarchy is the
necessary political condition for the creation of non-masculine feminist jurisprudence.
5

The law is grounded in male principle and upheld by males- even if women enter the system, they
merely reinforce the male-oriented norms
We can fairly say of American constitutional law what a Jesuit scholar
once said of Latin, one of its ancestor languages: For years, it was
"spoken and written . . . with totally negligible exceptions only by
males" (Ong, 1972, p. 615). The original Constitution and its most
important amendments are documents written and ratified exclusively by
males selected for this task by other males. Constitution applying,
like constitution making, has been an enterprise conducted by males
responsible to other males. Judges—"those who apply the law to
particular cases" (Marbury v. Madison, 1803, p. 175)—have been male,
as have the practitioners, scholars, and students who engage in this
enterprise. Men have written the Constitution, enacted the laws in
pursuance thereof, brought the cases challenging the laws, argued the
cases, written the opinions that dispose of the cases, and criticized
the opinions that settle the cases that challenge the laws that refer
to the Constitution that men wrote.
6

The notion of universal human rights is male-dominated and necessarily excludes women
Charlesworth, professor of law at the University of Adelaide, 1995
[Hilary. “Human Rights as Men’s Rights.” From Women’s rights, human rights. Ed: Julia Peters and
Andrea Wolper. p.103]
Although there is no doubt that the apartheid of gender is considerably more pervasive than the apartheid of race, it has never
provoked the same degree of international concern or opprobrium. The international community usually
couches discussion of the advancement of women in terms of the acquisition and implementation of rights
particular to women. While this is certainly an important and valuable project, it can also obscure some basic elements
contributing to the oppression of women. My central argument is that the current international human rights structure
itself and the substance of many norms of human rights law create obstacles to the advancement of women.
Because the law-making institutions of the international legal order have always been, and continue to be,
dominated by men, international human rights law has developed to reflect the experiences of men and
largely to exclude those of women, rendering suspect the claim of the objectivity and universality of
international human rights law. Until the gendered nature of the human rights system itself is recognized and transformed, no
real progress for women can be achieved.
Human rights law marginalizes women’s rights because it is male-dominated and men don’t
experience the same hardships as women
Why is it problematic that all the major institutions of the international legal order are peopled by men? What is the
value of insisting on the need for significant representation of women? Long-term male domination of all bodies wielding
political power nationally and internationally means that issues traditionally of concern to men are seen as
general human concerns; “women’s concerns,” by contrast, are regarded as a distinct and limited category.
Because men generally are not the victims of sex discrimination, domestic violence, or sexual degradation
and violence, for example, these matters are often relegated to a specialized and marginalized sphere and
are regulated, if at ail, by weaker methods. Unless the experiences of women contribute directly to the mainstream
international legal order, beginning with women’s equal representation in law-making forums, international human rights law loses its
claim to universal applicability: it should more accurately characterized as international men’s rights law.
7

State and international legal systems marginalize women by asserting that crimes directed solely
against women are of less importance
Andrea Wolper. p.107-8]
In a wide range of cultures, significant forms of violence against women such as wife murder, battery, and rape,
are, through (for example) nonprosecution or comparatively lower sentencing practices, treated less seriously than other
violent crimes.’5 One reason for the official toleration of violence against women worldwide is the both
explicitly and implicitly held view that it is a “private” matter, not within the proper scope of national
criminal justice systems.’6 And yet if violence against women is understood not just as aberrant “private”
behavior but as part of the structure of the universal subordination of women, it can never be considered a
purely “private” issue: the distinction between “public” and “private” action in the context of violence
against women is a not a useful or meaningful one. Yet it is by no means clear that the traditional rules of state
responsibility can be invoked to hold states internationally accountable for legal and social systems in which violence and
discrimination against women are endemic and in which such actions are trivialized or discounted.
The traditional construction of civil and political rights, then, obscures the most consistent harms done to
women. While recent developments such as the United Nations’ Declaration on the Elimination of Violence Against Women 17
indicate international concern on this issue, they do not directly challenge the inability of human rights law generally to respond to
injuries sustained constantly by women worldwide. Apart from a brief preambular reference, the Declaration does not define violence
against women as a human rights violation, but presents it implicitly as a discrete category of harm, on a different (and lesser) plane
than serious human rights violations.
8
Links- Difference in the Law

The law fails to recognize issues of inequality and dismisses them as “difference.”
A system-level consequence of this mainstream approach, rectified nowhere, is the failure to see as
inequality issues many that are, especially those that are sexual or reproductive. Sexual violence, because
of the overwhelming predominance of male perpetrators and female victims, and its rootedness in
normative images of sexuality seen as naturally gendered, has tacitly been construed as an expression of the
sex difference, therefore not an issue of sex inequality at all. Because overwhelmingly one sex is the
perpetrators and the other is the victims, sexual violence is not sex discrimination, it is sex, that is, a
“difference.” The law of sexual harassment, which recognizes one form of sexual aggression as sex
discrimination, is a bit of a miracle in this light and in some tension with the mainstream structure, which
hives off sexual abuse into the criminal law, ignoring its inequality dimensions. Similarly, because women
and men contribute differently to reproduction, women’s needs for reproductive rights have been brought
under equality law only partially, as exceptions, with severe doctrinal strain, or, in the case of the right to
abortion, not at all.
9
Links- Individuality/Privacy
As masculine legal theories value autonomy and individuality, the feminine essence is one of
interconnectivity and connection
To pursue my structural analogy to masculine legal theory, then, intimacy and the ethic of care constitute
the entailed values of the existential state of connection with others, just as autonomy and freedom
constitute the entailed values of the existential state of separation from others for men. Because women are
fundamentally connected to other human life, women value and enjoy intimacy with others (just as because
men are fundamentally separate from other human life men value and enjoy autonomy). Because women
are connected with the rest of human life, intimacy with the "other" comes naturally. Caring, nurturance,
and an ethic of love and responsibility for life is second nature. Autonomy, or freedom from the other
constitutes a value for men because it reflects an existential state of being: separate. Intimacy is a value for
women because it reflects an existentially connected state of being.
10
The male ethic of autonomy and individuality is incompatible with the feminine ethic of nurture and
care
Whether we embrace a material or a purely developmental explanation of women's heightened connection
with the other, however, the "story" of women's relationship with the other as told by cultural feminists
contrast in virtually every particular with the story of men's relationship to the other as told by liberals. First, men,
according to the Hobbesian account, are by nature equal. "Nature hath made men so equall, in the faculties of body, and mind; as that
though there bee found one man sometimes manifestly stronger in body . . . ; yet when all is reckoned together, the difference between
man, and man, is not so considerable, as that one man can thereupon claim to himselfe any benefit. . . . [T]he weakest has strength
enough to kill the strongest. . . ." n30 Women, by contrast, are not "equal" in strength to the most important "other"
they encounter: the fetus and then the newborn child. Rather, the fetus and the woman and later the infant
and the mother occupy what might be called a natural, hierarchical web of inequality, not a natural state of
equality: whereas men may be "by nature equal" women are "by nature stronger" than those who are most
important to them and most dependent upon them. The natural physical equality between self and other on which Hobbes
insists is simply untrue of women's natural state. Second, according to Hobbes, "men" are naturally inclined to aggress
against those they perceive as the vulnerable other. Again, women are not: infants are dependent upon
mothers and vulnerable to them, yet the natural mother does not aggress against her child, she breastfeeds
her. And lastly, men respond to the vulnerability of natural equality by developing a morality and a civil
state that demand respect for the equality, rights and freedom of the other. Women [*28] do not. Women
respond to their natural state of inequality by developing a morality of nurturance that is responsible for the
well-being of the dependent, and an ethic of care that responds to the greater needs of the weak. Men
respond to the natural state of equality with an ethic of autonomy and rights. Women respond to the natural
state of inequality with an ethic of responsibility and care.
11
Individual rights are grounded in the notion of separation out of fear of rejection
Critical theorist Peter Gabel has given a perfectly parallel explanation of the attraction of autonomous, rights-focused, individuated
liberal values in spite of the acutely painful longing for connection which in fact permeates men's lives. Gabel's argument structurally
compares with Dworkin's, although it contrasts with it substantively. Thus, whereas Dworkin argues that women deny
their desire for freedom, and distance themselves from it through a false commitment to intimacy, Gabel
argues that human beings deny their craving for attachment with the other, and distance themselves from it
through a false commitment to rights. As women deny their desire for freedom because of a fear that by asserting that desire
they risk violent invasion, so human beings, according to Gabel, deny their desire for attachment because they fear
that by exposing their deeper and truer need for connection, they will leave themselves vulnerable to the
pain of rejection. This fear is rooted in an unconsciously embedded memory from infancy, just as women's fear
of their own desire for freedom is rooted in a memory of male violence. At some point in early infancy, according [*45]
to Gabel, the other (read: the mother) rejected him. That rejection was painful and humiliating. The individual
denies his need for connection because he refuses to risk the reenactment of such a painful, humiliating,
and embarrassing rejection, just as the woman denies her need for physical individuation because she
refuses to risk the reenactment of rape. So instead he creates a false self, defined by liberal "rights." In a
word, he collaborates:
Each of us senses that others are determined to keep themselves at what one might call a threatening
distance, desiring eye contact and yet forbidding this contact. . . . And because this forbidding distance
leads us to mistrust or lose confidence in the desire of the other, we seek to protect ourselves by installing
this same forbidding distance in ourselves. We each become "one of the others" to each other, thus helping
to create the very disconnection that we most wish others would allow us to overcome. . . .
12
The public/private distinction reinforces patriarchal ideas of submission.
Allen, Professor at the University of Pennsylvania School of Law, 1999
[Anita L. “Coercing Privacy.” William & Mary Law Review, L/N accessed 7-20-2005]
The concept of private choice seems to presuppose that social life is divided
into distinguishable public and private spheres, the private sphere being a
realm of individual decisionmaking about sex, reproduction, marriage, and
family. So conceived, "decisional" privacy has origins in classical antiquity.
The Greeks distinguished the "public" sphere of the polis, or city-state, from
the "private" sphere of the oikos, or household. n7 The Romans [*725]
similarly distinguished res publicae, concerns of the community, from res
privatae, concerns of individuals and families. n8 The public realm was
the
sector in which free males with property whose economic status conveyed
citizenship participated in collective governance. n9 By contrast, the private
realm was the mundane sector of economic and biologic survival. n10 Wives,
children, slaves, and servants populated the private sphere, living as
subordinate ancillaries to male caretakers. n11 The classical premise that
social life ought to be organized into public and private spheres survives in
the post-Enlightenment Western liberal tradition, as does the premise that the
private sphere consists chiefly of the home, the family, and apolitical intimate
association.
13
The liberal idea of privacy is flawed: privacy is just another form in which the government controls
its subjects.
Relative to the moral justice liberals demand, privacy and private choice are
indispensable, foundational goods. Neither privacy nor private choice, however,
is an absolute, unqualified good. There can be too much privacy, and it can be
maldistributed. Some liberal feminists take an appropriately skeptical view of
traditional uses of privacy and private choice to subordinate [*726] women.
n12 Likewise, some liberal exponents of law and economics take an appropriately
skeptical view of traditional uses of privacy to conceal adverse information
unreasonably. n13 Characteristically, though, liberals of all stripes proclaim
that a degree of privacy and private choice is beneficial to individuals and a
society marked by aspirations for free, democratic, and reasonably efficient
forms of life. n14
It is no secret that liberals disagree among themselves about the rights of

privacy and private choice that justice requires. Conservative-leaning liberals
disagree with liberal-leaning liberals about whether government is obligated to
permit abortion, gay marriage, drug use, and certain other forms of conduct.
n15 Conservative liberals stress traditional notions of decency and propriety
along with home and family-centered intimate lives. n16 [*727] Liberal
liberals stress the importance of tolerating nonconformity and responsible
departures from traditional modes of private life. n17 All liberals agree,
though, with a general principle of substantial government restraint with
respect to broad dimensions of personal life. n18 Subscription to this rough
principle of public and private is one of the ties that bind competing versions
of liberalism.
The impossible ideal of a private sphere free of government and other outside
interference has currency despite the reality that, in the United States and
other Western democracies, virtually every aspect of nominally private life is a
focus of direct or indirect government regulation. Marriage is considered a
private relationship, yet governments require licenses and medical tests, n19
impose age limits, n20 and prohibit polygamous, n21 incestuous, n22 and
same-sex marriages. n23 Procreation and childrearing are considered private,
but government child abuse and neglect laws n24 regulate how parents must
exercise their responsibilities. The liberal ideal of a private sphere can be no
more than an ideal of ordinary people, living under conditions of democratic
self- government, empowered to make choices about their own lives that are
relatively free of the most direct forms of governmental interference and
constraint.
14
The notion of privacy rights reinforces power structures of male domination over females
Privacy, another abstract doctrine, is regularly code for sexuality, which mobilizes sex and gender as a
power division between women and men, including lesbian women and gay menu Views on the realities of
homosexuality and abortion determine views on privacy, not the other way around, On a substantive
reading, judicial opinions in abortion cases turn on (surprise) views of abortion, which on a sex equality
reading derive in turn from views on the substantive realities of the relative status and treatment of women
and men with a stop en route at “the fetus,”36 producing what is talked about as “privacy.” Views on
sodomy laws similarly reflect experiences and emotions and conclusions predicated on who people know
and love and identify with. “Privacy” becomes the second-order derivative abstract vehicle for that
substance. The point of this discussion is simply to identify which is the tail and which is the dog, and to
observe that legal analysis often has them reversed or feels constrained to pretend that it does.~~
15
Links- Right To Life

A concept of “right to life” excludes women
The primacy traditionally given to civil and political rights by developed nations is directed toward
protection of men within public life, in their relationship with government. But this is not the arena in which women most
need protection The operation of a public/private distinction at a gendered level is seen most clearly in the
definition of those civil and political rights concerned with protection of the individual from violence.
An example of this, often regarded as the most important of all human rights, is the right to life set out in Article 6 of the
International Covenant on Civil and Political Rights. The right is concerned with the arbitrary deprivation of life through public
action. But protection from arbitrary deprivation of life or liberty through public action, important as it is,
does not address the ways in which being a woman is in itself life threatening and the special ways in
which women need legal protection to be able to enjoy their right to life. From conception to old age,
womanhood is full of risks: of abortion and infanticide because of the social and economic pressure in
some cultures to have sons; of malnutrition because social practices give men and boys priority with
respect to food; of less access to health care than men; of endemic violence against women in all states. Yet
the right to life is not regarded as extending to these threats to women’s lives.
16
Links- Reason
The system of reasoning inherent in the constitution is anti-female and exclusionary
p. 151-2. “This set of priorities… male or female?”
This set of priorities—rational over emotional, abstract over concrete, general over particular—has also
been described as a common feature of male thinking.2 Many scholars who would not accept any rejection of reason as
inherently antifemale have nevertheless posited gender differences, whether inherent or acquired, in ways of thinking. Carol Gilligan's
important work In a Different Voice (1982) asserts that women's moral reasoning differs from men's in being more
rooted in the context of concrete experience and relationships. A decade earlier, Philip Slater characterized
"rationalism" as "the inability to perceive wholes," as one of the "disconnector virtues" practiced and prized by men. Slater contrasted
this kind of "icy pathology" with the warmth, nurturance, and awareness of "humanity's embeddedness in a larger organic system"
associated with women (1974, pp. 26, 33, 155; 1970, ch. 3). Legal reasoning is inevitably a variety of moral reasoning. However
conscientiously a judge strives to keep his or her own morality out of a decision, most statutes that judges must interpret reflect some
moral standard. Similarities also exist between legal reasoning and scientific reasoning. Both legal and scientific inquiry represent
efforts to impose order on material. The assumption that "a political world can be constructed and controlled with words" (Harris,
1982, P. 34) is analogous to Francis Bacon's model of scientific research as a quest for mastery over nature (Keller, 1987, pp. 242—
46). Like "mainstream" moral philosophy, "mainstream" philosophy of science has been attacked as male
biased. Some philosophers of science posit the existence of gender differences in scientific reasoning. Evelyn
Fox Keller's study of Nobel prizewinner Barbara McClintock, for instance, contrasts McClintock's emphasis on "letting the material
speak to you" with the attempts of her mostly male peers to "impose an order" on the material in the Baconian model (1987, p. 243;
1983). The idea of a contrast between "abstract, deductive" male reasoning and "concrete, contextualjzed"
female reasoning has become a staple of contemporary feminist epistemology (Bartlett, 1990, p. 832; Binion,
1989; Sherry, 1986). The logical step from this dichotomy to the idea that philosophy, science, and law are
"male" disciplines, antithetical to female ways of thinking and knowing, is a short one. The overwhelming
historical realities_that these disciplines were founded, were monopolized for centuries, and continue to be
dominated by men—lend credence to this conclusion. So does the powerful emotional resonance that works like
Gilligan's and Keller's have had for female scholars. An additional attraction of this kind of theory lies in the fact that control, whether
of the natural or the political world, can become something more threatening. The graphic "gang rape" metaphor trenchantly describes
a feeling that most women will recognize from their own dealings with men, both in public and in private. Consider, for example,
these bits of dialogue: "Name one time when I—_-~," with the response then followed by, "That was a special situation; you cannot
generalize from it"; or, "You're contradicting yourself if you demand both equality of opportunity and maternity leaves"; or, "I
challenge you to find support for Roe v. Wade, in the text of the Constitution, the intent of the framers, or any constitutional doctrine.
Go on, convince me." I am sure that some women, somewhere, have used this ploy. But suppose we encountered statements like these
in a novel, as part of a lengthy passage in which the author expects the reader to know, without being told, which character is
speaking. Would any reader have trouble guessing whether the speaker was male or female?
17
Links- Deference
Link- deference- the concept of “deference” connotes a femininity- implying that the courts are
inherently female when they defer.
Jurisprudence: The difference debate. Ed. Leslie Friedman Goldstein. p.157]
p. 157. “This emphasis… feminine role”
This emphasis on "deference" and "renunciation of power" evokes
demands that have been and continue to be made of women. The
"feminine" role has historically involved a considerable amount of
putting oneself second to others. Now, obviously, a judge is not going
to act like a woman in a subordinate relationship to a man. But
something is going on in this concept of the judicial role that is
similar to certain influential concepts of women's roles. We can even
think of other public and traditionally male roles in which this kind
of selfsubordination to the interests of others plays a part: lawyers
in relation to their clients, for instance. And if the practice of
judicial self-restraint is sometimes more apparent than real, that gap
between appearance and reality hardly distinguishes the judicial from
the feminine role.
18
Links- Torture
Anti-torture laws ignore the systemic torture that happens to women
A similar myopia can be detected in the international prohibition on torture. A central feature of the international legal
definition of torture is that it takes place in the public realm: it must be “inflicted by or at the instigation of
or with the consent or acquiescence of a public official or other person acting in an official capacity.”13
Although many women are victims of torture in this “public” sense,14 by far the greatest violence against women occurs
in the “private,” non-governmental sphere. This is left untouched by the international definition of torture.
19
Impacts- Patriarchy=> Nuke Annihilation

Patriarchy will result in the end of the human race at the hands of nuclear weaponry
Spretnak, MA in English from Berkely ’89
[Charlene, Exposing Nuclear Phallacies, Editor, Diana EH Russel, p.60]
Most men in our patriarchal culture are still acting out old patterns that are radically inappropriate for the
nuclear age. To prove dominance and control, to distance one’s character from that of women, to survive the
toughest violent initiation, to shed the sacred blood of the hero, to collaborate with death in order to hold it
at bay – all of these patriarchal pressures on men have traditionally reached resolution in a ritual fashion on
the battlefield. But there is no longer any battlefield. Does anyone seriously believe that if a nuclear power
were losing a crucial, large-scale conventional war it would refrain from using its multiple-warhead nuclear
missiles because of some diplomatic agreement? The military theater of a nuclear exchange today would
extend, instantly or eventually, to all living things, all the air, all the soil, all the water. If we believe that
war is a “necessary evil,” that patriarchal assumptions are simply “human nature,” then we are locked into a
lie, paralyzed. The ultimate result of unchecked terminal patriarchy will be nuclear holocaust.
20
Impacts- Patriarchy=> Militarism

Patriarchy is the root of all militaristic violence and left unchecked will lead to the annihilation of
humankind
Spretnak, MA in English from Berkely ’89
[Charlene, Exposing Nuclear Phallacies, Editor, Diana EH Russel, p.60]
Women and men can live together and can relate to other societies in any number of cultural
configurations, but ignorance of the configurations themselves locks a populace into blind adherence to the
status quo. In the nuclear age, such unexamined acceptance may be fatal as certain cultural assumptions in
our own society are pushing us closer and closer to war. Since a major war could now easily bring on
massive annihilation of almost unthinkable proportions, why are discussions in our national forums
addressing this madness of the nuclear arms race limited to matters of hardware and statistics? A more
comprehensive analysis is needed-unless, as the doomsayers claim, we collectively harbor a death wish and no not really want to look
closely at dynamics propelling us steadily toward the brink of extinction. The cause of nuclear arms proliferation is militarism. What
is the cause of militarism ? The traditional militarist explanation is that the “masters of war” in the military-
industrial complex profit enormously from defense contracts and other war preparations. A capitalist economy
periodically requires the economic boon that large-scale government spending, capitol investment, and worker sacrifice produce
during a crisis of war. In addition, American armed forces, whether nuclear or conventional, are stationed worldwide to protect the
status quo, which requires vast and interlocking American corporate interests. Suck an economic analysis alone in
inadequate, as the recent responses to the nuclear arms race that ignore the cultural orientation of the
nations involved: They are patriarchies. Militarism and warfare are continual features of patriarchal society
because they reflect and instill patriarchal values and fulfill essential needs of such a system.
Acknowledging the context of patriarchal conceptualizations that feed militarism is first step toward
reducing their impact and preserving life on Earth.
Patriarchy and domination over women is necessary for international militaristic projects
Marshall, co-moderator of the Feminist Peace Network, April 2004
[Lucinda.
The theory of “power over” an “other” provides the common thread between military campaigns and
assaults against women. In order for “power over” to work, an other must be defined by creating
distinctions (no matter how false) between people, cultures, and so on. The other can be a person, country, ethnic
group, etc. Militarism depends on creating an other by declaring distinctions between two groups. The other is
asserted to be “less than.” The other must then be controlled or destroyed.
Commonly, whether implicitly or explicitly, women are the “other.” Consequently, it becomes necessary in the
eyes of those who seek power to control and belittle women. In many cultures, women are viewed as the possessions of
their men. Therefore, when a woman is raped, it is effectively an attack on the “manhood of her man.” Using this reasoning, women
become the targets of war in order to attack the honor of the men of a particular culture, ethnic group, or country. For these
reasons, rape and other forms of sexual assault against women are always a part of war and conflict. When
women are assumed to be possessions that can be attacked, stolen, and dishonored, they become a means of
“feminizing” and degrading the enemy.
21
Impacts- Patriarchy=> Subjugation

Oppressive patriarchy engrained within the law allows for all forms of subjugation
Warren, professor of philosophy at Macalester College, 1993
[Karen J. http://www2.pfeiffer.edu/~lridener/courses/ecowarrn.html ]
A second account expands on the first by housing the problematic value dualisms and value hierarchies in larger, oppressive
conceptual frameworks--ones that are common to all social "isms of domination"(e.g., sexism, racism, classism, heterosexism as well
as "naturism," i.e., the unjustified domination of nonhuman nature (see Warren 1987,1988, 1990, this section) A conceptual
framework is a socially constructed set of basic beliefs, values, attitudes and assumptions that shapes and
reflects how one views oneself and others. It is oppressive when it explains, justifies, and maintains
relationships of domination and subordination. An oppressive conceptual framework is patriarchal when it
explains, justifies, and maintains the subordination of women by men. Oppressive and patriarchal
conceptual frameworks are characterized not only by value dualisms and hierarchies but also by "power-
over " conceptions of power and relationships of domination (Warren 1991b) and a logic of domination, i.e., a
structure of argumentation that provides the moral premise that superiority justifies subordination (Warren 1987,
1990, this section). On this view, it is oppressive and patriarchal conceptual frameworks, and the behaviors that
they give rise to, that sanction, maintain, and perpetuate the twin dominations of women and nature.
The inequalities we address in the law are the root causes of all racism and systems of dominance
Substance, on this theory, centers on society’s divisions of power. If it is perhaps evident that power
divisions drive cases where inequality is involved, where is inequality not involved? This general theory of
inequality is that inequalities are particular. To have a substantive theory of an inequality requires having
an explanatory analysis of its particular content, function, and driving dynamics: what makes it go and why
it exists. If society systematically divides women from men, poor from rich, people of color from white,
gay from straight, young and old from adult, human from nonhuman animals (among others, not
necessarily in that order), to pursue equality on these grounds, one needs to know, in fact, what racism is
really about, where homophobia comes from, why humans treat nonhuman animals as lesser beings,2° why
children are kept so socially powerless and elder adults have less power than middle-aged adults, why the
rich get richer and want to, and all the interconnections between the forces so set in motion. Substance, in
other words, is not an abstraction.
22
Impacts- Patriarchy=> Subjugation

The hierarchies in patriarchy subordinate women to men and disadvantages half of the human race
[Catharine A. Women’s Lives- Men’s Laws. Harvard University Press. P.24-25]
So what is meant by treatment “as women” here? To speak of being treated “as a woman” is to make an
empirical statement about reality, to describe the realities of women’s situation. In the United States, with
parallels in other cultures, women’s situation is made up of unequal pay combined with allocation to
disrespected work, sexual targeting for rape, domestic battering, sexual abuse as children, and systematic
sexual harassment together with depersonalization, demeaned physical characteristics, use in denigrating
entertainment, deprivation of reproductive control, and forced prostitution. To notice that these practices
are done by men to women is to see these abuses as forming a system, a hierarchy of inequality. This situation
has occurred in many places, in one form or another, for a very long time, often in a context characterized by disenfranchisement,
preclusion from property ownership (women are more likely to be property than to own any), ownership and use as object, exclusion
from public life, sex-based poverty, degraded sexuality, and a devaluation of women’s human worth and contributions throughout
society. This subordination of women to men is socially institutionalized, cumulatively and systematically
shaping access to human dignity, respect, resources, physical security, credibility, membership in
community, speech, and power. Comprised of all its variations, the group “women” can be seen to have a
collective social history of disempowerment, exploitation, and subordination extending to the present. To
be treated “as a woman” in this sense is to be disadvantaged in these ways incident to being socially
assigned to the female sex. To speak of social treatment “as a woman” is thus not to invoke any abstract
essence or homogeneous generic or ideal type, not to posit anything, far less anything universal, but to refer
to this diverse and pervasive concrete material reality of social meanings and practices such that, in the
words of Richard Rorty, “a woman is not yet the name of a way of being human.”5
23
Impacts- Patriarchy=> Violence

Legislation is fundamentally discriminatory- this leads to violence
Neither the ERA effort nor Mansbridge’s book inquires into whether an ERA that addressed the deep
realities of women’s condition might have mobilized the kind of uprising of women that only a new vision
of society can do. In a teleological approach to political explanation, when Mansbridge asks why ERA
failed, she does not look at what did not happen but only at what did. What if sex equality were not limited,
as the ERA effort and her book assume, to the way the white male liberal cabal of lawyers, publishers,
professors, the media, and their “domesticated” feminists have defined it? What if, instead, issues of sexual
abuse of children, denial of the abortion choice, rape, battery, prostitution, pornography, and sex-based cle
facto job segregation were core examples around which a critique of the denial of civil rights to women
were forged? What if, when we talked ERA, we talked about state complicity in male violence against
women through writing and administering rape laws from the viewpoint of the reasonable rapist;
misogynist police practices in domestic violence calls that relegate assault on women to the lowest category
of concern; collaboration of law enforcement and law itself in the terrorization and stigmatization of child
victims of sexual abuse, many of them girls; biased enforcement of biased laws against prostitution so that
prostitutes (most of them women) are harassed and violated while pimps and johns (men) are allowed to
ensure that prostitution, something men made a crime, will continue to exist for their pleasure; useless and
dangerous obscenity laws that cover for the pornography industry, provide its design format, and allow
public officials to decry pornography in public while nonenforcement and built-in unenforceability
guarantee its availability in private, ignoring documented harms to women from its production and
consumption?25 What if we called all this “state action” in the sex equality area
24
Alt- Reconstructive Feminist Jurisprudence

We need a reconstructive feminist jurisprudence to incorporate the harms the current system ignores
The goal of reconstructive feminist jurisprudence is to render feminist reform rational. We must change the
fact that, from a mainstream point of view, arguments for feminist legal reform efforts are (or appear to be)
invariably irrational. The moral questions feminist reforms pose are always incommensurable with
dominant moral and legal categories. Let me put it this way: given [*69] present moral categories, women's issues are crazy
issues. Arguments for reproductive freedom, for example, are a little insane: pro-choice advocates can't explain the difference between
reproductive freedom and infanticide; or how this right can possibly be grounded in the Constitution; or how it is that women can
claim to be "nurturant" and at the same time show blatant disregard for the rights and feelings of fetuses. In fact, my sense, drawn
from anecdotal evidence only, is that the abortion issue is increasingly used in ethics as well as constitutional law classrooms to
exemplify the "irrationality" of individual moral commitment. Rape reform efforts that aim to expand the scope of the defined harm
are also perceived, I believe, as insane. Why would anyone possibly object to non-violent sex? Isn't sex always pleasurable? Feminist
pornography initiatives are viewed as irrational, and the surrogate motherhood issue is no better. There's an air of irrationality around
each of these issues.
That air of irrationality is partly real and partly feigned. The reason for the air of irrationality around particular,
substantive feminist legal reform efforts, I believe, is that feminist legal reforms are by necessity advocated
in a form that masks rather than reflects women's true subjective nature. This is hardly surprising: language,
of course, constrains our descriptive options. But whether or not surprising, the damage is alarming, and we
need to understand its root. Arguments for reproductive freedom, for example, are irrational because the categories in which
such arguments must be cast are reflective of men's, not women's, nature. This culture thinks about harm, and violence,
and therefore self defense, in a particular way, namely a Hobbesian way, and a Hobbesian conception of physical harm cannot
possibly capture the gender-specific subjective harm that constitutes the experience of unwanted pregnancy. From a subjective,
female point of view, an abortion is an act of self defense, (not the exercise of a "right of privacy") but from the
point of view of masculine subjectivity, an abortion can't possibly be an act of self defense: the fetus is not
one of Hobbes' "relatively equal" natural men against whom we have a right to protect ourselves. The fetus is
unequal and above all else dependent. That dependency and inequality is the essence of fetus-hood, so to speak. Self-defense doctrine
with its Hobbesian background and overlay simply doesn't apply to such dependent and unequal "aggressors," indeed, the notion of
aggression itself does not apply to such creatures.
Rape reform efforts to criminalize simple rape are also irrational, as Susan Estrich has discovered, and for the same reason: [*70]
subjectively, "simple rapes" are harms, but from the point of view of masculine subjectivity, non-violent acts that don't threaten
annihilation or frustration of projects can't possibly be "harmful." In both cases, we have tried to explain feminist reform efforts
through the use of analogies that don't work and arguments that are strained. The result in both cases is internally inconsistent, poorly
reasoned, weak, and ultimately vulnerable legal doctrine.
"Reconstructive feminist jurisprudence," I believe, should try to explain or reconstruct the reforms necessary
to the safety and improvement of women's lives in direct language that is true to our own experience and
our own subjective lives. The dangers of mandatory pregnancy, for example, are invasion of the body by the fetus and the
intrusion into the mother's existence following childbirth. The right to abort is the right to defend against a particular bodily and
existential invasion. The harm the unwanted fetus does is not the harm of annihilation, nor anything like it: it is not an assault, or a
battery, or a breached contract, or an act of negligence. A fetus is not an equal in the state of nature, and the harm a fetus can do is not
in any way analogous to that harm. It is, however, a harm. The fetus is an "other," and it is perfectly sensible to seek a liberal sounding
"right" of protection against the harm the fetus does.
25
Alt- Reconstructive Feminist Jurisdiction

A feminist jurisprudence must actively work to re-empower women and not just bolster the state
This same new equality theory can be discerned beneath the U.S. Congress’s law against gender-motivated
violence, which makes rape and battering federal sex discrimination claims,~~ as well as in proposals to
make pornography civilly actionable as sex discrimination.~~ The jurisprudence of the approach observes
that sex inequality occurs in civil society, between women and men, and is then backed up and enforced
through law. In many areas of its application, it names equality as the issue there for the first time. This is
changing not only the content of law but potentially law’s relation to unequal social life. Given that the
state form has traditionally embodied male authority, a jurisprudence of equality cannot simply rely upon
further empowering the state. It cannot rest with rules with different content, as big an improvement as that
could be. It must also work structurally to redistribute the state power, by enabling women, with institu-
tional support, to confront and remedy inequalities they encounter, including in intimate settings.
Recognizing women’s human rights on this level has major implications for the law of family, contract, and
crime, as well as for constitutional and international law. As to equality as legal method, this substantive
approach to equality reveals that the “rule of law” has not meant the same equalization for women that it
has meant among men, at least for some of them. Assessment of the logic and outcomes of formal equality
suggests that its “rule of law” form will never produce real positive equality either.
26
Alt- Fundamental Contradiction

Alternative- We should reject the affirmative’s demands upon a male-dominated legal system and
instead recognize the fundamental contradiction of simultaneous connection and alienation within
humankind, especially women
Minimally, I want to suggest that feminists should think about the possibility that the notion of a
"fundamental" experienced contradiction, grounded in the material and existential state of connection with
the other, might help us explain women's subjective lives, as well as close the broadening gap between
cultural and radical feminist theory. The presence of such a contradiction, for example, explains why some
women see the possibility of intimacy in pornographic depictions of female sexual submission while others
see the threat of invasion (and it would explain why many [*55] women see both). The presence of a
contradiction underlying women's subjective lives also clarifies the existential basis of many of the
apparent tensions in feminist legal reforms. It explains why women insist upon and embrace an ethic of
care and the right to have children without economic hardship, while at the same time fighting for rights of
individuation, physical privacy, and freedom. Finally, it explains the complex relationship between the
emerging feminist legal theory and dominant legal theory: it explains, for example, why legal feminists are
both attracted to liberal rights of individuation, physical privacy, and individual security, and at the same
time are threatened by them. The contradiction explains why feminists understand, and even sympathize
with, critical legal theory's rights critique, but will never endorse it.
That women live with a fundamental contradiction between invasion and intimacy is much harder to test than
the parallel claim that men live in a fundamental contradiction between autonomy and alienation for this simple reason: the
fundamental contradiction that characterizes men's lives is manifested absolutely all over the place in
public life. As Kennedy correctly claims, once we are sensitized to it, we see the "fundamental contradiction" in art, literature,
music, and, perhaps most emphatically, in virtually every field of law. The fundamental contradiction that characterizes
women's lives (if it does), by contrast, has no outlet. Women are silent, particularly with respect to the
injuries we suffer. This is, of course, changing: Women speak, write books, compose music, produce art, drama and dance, and
increasingly even legislate, advocate and adjudicate law. But nevertheless, women express their subjectivity with nowhere
near the voice of authority with which men express theirs. Women's subjectivity, unlike men's subjectivity,
is not expressed in the objective world. Women's silence, more than any other single factor, inhibits the
study of women's subjective lives.
27
Alt- Connection Theory

A concept of a “connection thesis” in the legal system is necessary to address the interconnected
nature of women as opposed to men
I think this traditional characterization is wrong on two counts. First, cultural feminists no less than radical feminists are well aware of
women's powerlessness vis-a-vis men, and second, radical feminism, as I will later argue, is as centrally concerned with pregnancy as
it is with intercourse. But again, instead of arguing against this traditional characterization of the divide between radical and cultural
feminism, I want to provide an alternative. My alternative characterization structurally (although not substantively)
parallels the characterization of the difference between liberal [*14] and critical legalism. Underlying both
radical and cultural feminism is a conception of women's existential state that is grounded in women's
potential for physical, material connection to human life, just as underlying both liberal and critical
legalism is a conception of men's existential state that is grounded in the inevitability of men's physical
separation from the species. I will call the shared conception of women's existential lives the "connection
thesis." The divisions between radical and cultural feminism stem from divergent accounts of the
subjectivity of the potential for connection, just as what divides liberal from critical legal theory are
divergent accounts of the subjectivity of the inevitability of separation.
The "connection thesis" is simply this: Women

are actually or potentially materially connected to other human life.
Men aren't. This material fact has existential consequences. While it may be true for men that the individual
is "epistemologically and morally prior to the collectivity," it is not true for women. The potential for
material connection with the other defines women's subjective, phenomenological and existential state, just
as surely as the inevitability of material separation from the other defines men's existential state. Our
potential for material connection engenders pleasures and pains, values and dangers, and attractions and
fears, which are entirely different from those which follow, for men, from the necessity of separation. Indeed,
it is the rediscovery of the multitude of implications from this material difference between men and women which has enlivened (and
divided) both cultural and radical feminism in this decade (and it is those discoveries which have distinguished both radical and
cultural feminism from liberal feminism). As Carol Gilligan notes, this development is somewhat paradoxical: during the same decade
that liberal feminist political activists and lawyers pressed for equal (meaning same) treatment by the law, feminist theorists in non-
legal disciplines rediscovered women's differences from men. n13 Thus, what unifies radical and cultural feminist theory (and what
distinguishes both from liberal feminism) is the discovery, or rediscovery, of the importance of women's fundamental material
difference from men. As we shall see, neither radical feminists nor cultural feminists are entirely explicit in their embrace of the
connection thesis. But both groups, implicitly if not explicitly, adhere to some version of it.
28
Criticism Solves
Changes within the legal system are necessary to mainstream changes

The movement for women through law is not a movement content to rest with dissent on the margins. It
intends to change the mainstream, to make ordinary everyday rules work for ordinary everyday people—
women included-and to give them tomorrow what they do not have today. In whose interest is it for women
to leave a power like this to men? Law can mean community: your people stand behind you, hear you,
support you. It can mean reality: what you say happened is found to have happened; your knowledge is
validated. It can mean vindication: it is wrong that you were wronged; someone took something that
belongs to you; you count.
It means hope: what happened to you might not happen again. Women who use law for women in our time
have tried to ensure accountability for the unspeakable and the unnamed. Law names authoritatively.
Survivors of sexual abuse, torture, genocide, trafficking in human beings, have taken tremendous risks to
say what happened to them to ensure that law calls their abuse by its real name in public. Often they get
little else. Consider the almost-unbelieving ecstasy on the faces of the tortured when former Chilean
dictator Augusto Pinochet was extradited in 1999. Recall the stoicism replaced by bitter uplift on the faces
of surviving families when racist murderers in the U.S. South were brought to justice even decades later.
Remember the crumpled blankness on the faces of raped women when their violators are exonerated, the
look of hope vanquishing disbelief when they are convicted. This—not closure, not incarceration, not
money—is what law can mean. It can give people back the humanity that the violation took away. This is
what gives law the power to change.
29
Criticism Solves
We need to actively criticize the systems that subordinate women to achieve any progress
The movement for the liberation of women, including in law, moves the other way around. It is first
practice, then theory. Actually, it moves this way in practice, not just in theory. Feminism was a practice
long before it was a theory. On its real level, the women’s movement- where women move against their
determinants as women- remains more practice than theory. This distinguishes it from academic feminism.
For women in the world, the gap between theory and practice is the gap between practice and theory. We
know things with our lives, and live that knowledge beyond what any theory has yet theorized. Women’s
practice of confrontation with the realities of male dominance outruns any existing theory of the possibility
of consciousness or resistance. To write the theory of this practice is not to work through logical puzzles or
entertaining conundrums not to fantasize utopias, not to moralize or tell people what to do. It is not the
exercise of authority; it does not lead practice. Its task is to engage life through developing mechanisms
that identify and criticize rather than reproduce social practices of subordination and to make tools of
women’s consciousness and resistance that further a practical struggle to end inequality This kind of theory
requires humility and it requires participation
We who work with law need to be about the business of articulating the theory of women’s
practice~women’s resistance, visions, conscious ness, injuries, notions of community, experience of
inequality. By practice, I mean socially lived. As our theoretical question becomes, What is the :~eory of
women’s practice? our theory becomes a way of moving against and through the world, and methodology
becomes technology.
Reconceptualizing our theories is necessary to change our practices

If we build a theory out of women’s practice, comprised of the diversity of all women’s experiences, we do
not have the problem that some feminist theory has been rightly criticized for. When we have it is when we
make theory out of abstractions and accept the images forced on us by male dominance. The assumption
that all women are the same is part of the bedrock of sexism that the women’s movement is predicated on
challenging. That some academics find it difI~cu1t to theorize without reproducing it simply means that
they continue to do to women what theory, predicated on the practice of male dominance, has always done
to women. It is their notion of what theory is, and its relation to its world, that needs to change.
If our theory of what is “based on sex” makes gender out of actual social practices distinctively directed
against women as women identify them, the problem that the critique of so-called essentialism exists to
rectify ceases to exist. And this bridge, the one from practice to theory, is not built on anyone’s back.
30
Criticism Solves
We need to move beyond the masculine hegemony and criticize the legal system rather than applaud
a hollow “equality” theory
The implications of this critique are far-reaching and transformative. In politics and law, they range from
state theory to doctrine, from jurisprudential theory to positive law, from epistemology to constitutional
interpretation. Once the reality of gender is faced, it becomes clear the extent to which the laws, the legal
system, the state as such, and relations between states have built in the experiences of the dominant and
have been built from the perspective of those who created them. In the sociology of knowledge, this is a
common kind of observation. Those who have created these systems have been the dominant gender group,
the naming of which— men—becomes what is considered an extreme position, particularly when it is
noted that the result has been their systematic hegemony over half the human race. To be clear: this
equality theory is not a conspiracy theory; it relies on no conscious invidious motivation. It assumes, as
other political theories do, only that people act in their own interest, as they see it, when they can. Why
they see their interest as they do, and why they are permitted to act on it unchecked, is a separate question.
The present analysis merely observes a political system of institutionalized interest supported by social
facts of patterned behaviors and its embodiment in legal doctrine and philosophy. Nor is it a moral theory
of who should do what. It is a political analysis of who gets what, how, and why, when that is dramatically
differentially distributed, it is also a critique of terming “equality” the maintenance of that system and
embodying it in legal equality doctrine. It should be noted that the conflict between ranks in a hierarchy
need not be intractable. The sex hierarchy is merely big, old, pervasive, tenacious, denied, and a good many
people are in love with it. Once it is faced as posing a certain division of interest enforced by force, like
other serious inequalities such as race and class (and inextricably interconnected with them), it can be faced
as in need of change through its own solutions.
The Supreme Court of Canada expressly adopted this alternate theory of equality in its first equality
decision under the new Charter of Rights and Freedoms in 1985, in Law Society v. Andrews, a case
adjudicating whether noncitizens could be made to wait longer than citizens before becoming lawyers.25
Interpreting the Charter to effectuate its purposes, the Court determined that the purpose of an equality
provision is to “promote equality.” This does not sound like much, but it is everything: given social
inequality, it requires that law has to move the world to be legal. It no longer leaves equality law standing
neutrally in the face of an unequal world, sorting sameness from difference, reinforcing social inequalities
by law. It requires courts to interpret laws so as actually to produce social equality. One might have thought
this was obvious. The point of equality law is to produce equality. What else is it for—to produce
inequality? That this stance is regarded as a major departure supports the indictment of the prior theory as
status quo—reinforcing.
31
2NC AT: Perm

Liberal jurisprudence and radical feminism are incompatible- the former fears annihilation and the
latter fears displacement. The perm is another link because it denies the differences in individuation
between men and women.
The structural similarity ends there, though. The invasion and intrusion that women dread from the
penetrating and impregnanting potential of the connected other is not the same as the annihilation and
frustration by the separate other that men fear. Men's greatest fear is that of being wiped out -- of being
killed. The fear of sexual and fetal invasion and intrusion that permeates women's lives is not the fear of
annihilation or frustration. The fear of sexual and fetal invasion is the fear of being occupied from within,
not annihilated from without; of having one's self overcome, not ended; of having one's own physical and
material life taken over by the pressing physical urgency of another, not ended by the conflicting interests
of another; of being, in short, overtaken, occupied, displaced, and invaded, not killed. Furthermore, the intrusiveness [*42]
of less damaging forms of intimacy -- "wanted" intimacy -- is not equivalent to the lesser form of
annihilation liberalism recognizes: having one's ends frustrated by the conflicting ends of the other. I do not
fear having my "ends" frustrated; I fear having my ends "displaced" before I even formulate them. I fear that I
will be refused the right to be an "I" who fears. I fear that my ends will not be my own. I fear that the phrase "my ends"
will prove to be (or already is) oxymoronic. I fear I will never feel the freedom, or have the space, to become an ends-making creature.
Similarly, the individuation prized by radical feminism is not the same as the autonomy liberalism heralds,
although it may be a precondition of it. The "autonomy" praised by liberalism is one's right to pursue one's
own ends. "Individuation," as understood by radical feminism, is the right to be the sort of creature who
might have and then pursue one's "own" ends. Women's longing for individuation is a longing for a
transcendent state of individuated being against that which is internally contrary, given, fundamental, and
first. Autonomy is something which is natural to men's existential state and which the state might protect.
Individuation, by contrast, is the material pre-condition of autonomy. Individuation is what you need to be before
you can even begin to think about what you need to be free.
The foundation of the affirmative’s conception of legal rights- individuality- is necessarily excluded
from a concept of interconnectivity, as separation is the greatest harm in a feminist jurisprudence
[*19] Intimacy, the capacity for nurturance and the ethic of care constitute what we might call the "up side" of the subjective
experience of connection. It's all good. Intimacy feels good, nurturance is good, and caring for others morally is good. But there's a
"down side" to the subjective experience of connection. There's danger, harm, and fear entailed by the state of
connection as well as value. Whereas men fear annihilation from the separate other (and consequently have
trouble achieving intimacy), women fear separation from the connected other (and consequently have
trouble achieving independence). Gilligan makes the point succinctly: "Since masculinity is defined through
separation while femininity is defined through attachment, male gender identity is threatened by intimacy
while female gender identity is threatened by separation." n19 Separation, then, might be regarded as the
official harm of cultural feminism. When a separate self must be asserted, women have trouble asserting it.
Women's separation from the other in adult life, and the tension between that separation and our
fundamental state of connection, is felt most acutely when a woman must make choices, and when she must
speak the truth. It is at those times that separation and individuation are at a premium. Gilligan explains:
32
2NC AT: Intersectionality

Although different subcultures experience different power relations, patriarchy is universal
There are problems in speaking about women and their experiences in a global context. Obviously, differences of class,
wealth, race, and nationality will lead to differing power relationships among women. Some feminists of color
and women from developing nations have questioned attempts to universalize a particular understanding of feminism, charging White
Western feminists with inappropriately assuming that their particular concerns are shared worldwide.’ But patriarchy and the
devaluing of women, although manifested differently within different societies, are almost universal. As
Peggy Antrobus, Director of the Women and Development Program at the University of the West Indies, told the 1991 World
Women’s Congress for a Healthy Planet in Florida:
Although we are divided by race, class, culture and geography, our hope lies in our commonalities All
women’s unremunerated household work is exploited, we all have conflicts in our multiple roles, our
sexuality is exploited by men, media, and the economy, we struggle for survival and dignity, and, rich or
poor, we are vulnerable to violence We share our “otherness,” our exclusion from decision making at all
levels.2
Certainly no monolithic “women’s point of view” can be assumed but it is also important to acknowledge
commonalities across cultures In analyzing other cultures, we must interrogate our own assumptions and tools, acknowledge
the partialness of our perspective and regard women from other cultures with, in Maria Lugones’s words, “loving perception” rather
than as objects for theory.~
33
2NC AT: Essentialism

The essentialist critique of feminism is fundamentally incorrect
Asked to explore the interface between feminism and critical race theory, I will instead consider the origins
and consequences of one criticism of feminism by some critical race theorists during critical race theory’s
first decade: the notion that feminism is “essentialist.” In my view, this notion is often wrong and, when
wrong, has created a false antagonism with regressive consequences, one of which has been to surround
analysis of gender with an aura of suspicion and stigma. “Women,” I will argue, is not a racist term. Most
critical race thinkers see straight through the charge that feminism is essentialist to feminism’s analysis of
the reality of male dominance as a social system. But, having become something of a reflex and fixture in
postmodernist litanies,~ the misrepresentation of feminism as intrinsically “essentialist” has been going on
for a decade now, is often repeated, and has at times been leveled regardless of its accuracy.
Turn- Essentialism is treated as a disease inextricable from feminism- it means we throw out the
baby with the bathwater
What I want to say here is this: Sexual abuse is a real problem in the real world, not a move in an
ideological or academic parlor game. Women of color are severely, pervasively sexually abused, including
in racist ways worldwide, They are violated by it, resent it, resist it, want justice for it, and they want it to
stop. Sexually abused women tend to know with real clarity that sexual abuse has everything to do with
being women. It is mainly academics and perpetrators who, along with the law, dens’ it.
Fear of being labeled “essentialist” for identifying the role of gender in sexual abuse has far-reaching
consequences. Those within and outside the academy who know that male power in all its forms remains
entrenched also know they face defamatory attacks and potential threats to their economic survival if they
say so. As ‘essentialism” has become a brand, a stigma, a contagious disease that you have to avoid
feminism to avoid catching, it has become one more way that the connections and coherence of the ways
women are oppressed as members of the group “women” can be covered up. It is silencing when women
cannot tell the truth of what they know and survive; Professor christi cunningham is among the few who
explore the dilemmas of discussing these subjects in public.
Feminism is not essentialist- it does not claim that all women are affected equally by patriarchy,
simply that none are unaffected
Further, feminism does not take the view that gender is all there is. It takes the view that gender is almost
never not there. Feminism claims not that all women are affected the same by male power or are similarly
situated under it. It claims that no woman is unaffected by it. Feminism does not see all women as the
same; it criticizes this view. It claims that all women are seen and treated as women in some way under
male supremacy. This is not to say that feminism is always practiced, even by feminists. It certainly is not
to say that feminism does not need to be more race- conscious; it does. Nor is it to say that some work,
claiming to be feminist, has not been racist; it has. It is to say that some of the feminist analysis that has
been dismissively tagged with what has become the academic epithet of “essentialism,” as exemplary of the
“straight, white, and economically privileged,”1’ is not.
34
2NC AT: We Change The Law

Constitutional interpretation is still locked within the original male biased view of the law – women
are left with a choice of ensuring male dominance or permitting it.
"I am always amused," Alan Dershowitz has written, "by the fact that
so many of those who so loudly proclaim a slavish obeisance to the
narrow intent of the framers are so much like them in background"
(1990, p. 12). Interpreters who look to original intent for guidance
rather than for mandates must still be aware that reference to the
sources of original meaning is, inevitably, reference to male words,
male values, and male purposes. This male monopoly applies also to
text, doctrine, and precedent. Women did not participate either in the
drafting or in the adoption of the original Constitution; throughout
most of American history, women were excluded from participation in
amending the Constitution or applying it to cases. Any constitutional
theorizing that women got to do-and there may have been more than we
know about, as has been proven true for art and literature—did not
survive for us. Therefore, several widely used modes of constitutional
interpretation inevitably bias us in a male direction.
From a feminist perspective, the need for a "living Constitution"
becomes imperative. Rather than producing "a formula for an end run
around popular government" (Rehnquist, 1976, p. 706), efforts to adapt
the text to the times become potential correctives for women's
historic exclusion. But flexibility is not a sufficient condition for
change. It can work as easily to reinforce male bias as to control it.
And within a male-dominated enterprise, we can expect it to work this
way. For feminists, the choice between modes of interpretation may be
a Hobson's choice between the approaches that virtually ensure male
bias and those that permit it.
35
2AC Answers- Perm

Permutation- embrace radical feminist legal theory- the notion of autonomy is necessary to protect
women from the subjugations implicit in intimacy
Second, the description of women's subjective nature, aspirations, and fears drawn by radical feminism is not the same as the
description of "human nature" employed by liberalism. It is not hard, however, to see the basis for this confusion. Both radical
feminism and liberalism view the other as a danger to the self: liberalism identifies the other as a threat to
autonomy and to life itself; radical feminism identifies the other as a threat to individuation and to physical
integrity. It is hardly surprising, then, that radical feminists borrow heavily from liberalism's protective
armor of rights and distance. From the radical feminist point of view, "liberal rights-talk," so disparaged by
critical legalists, is just fine, and it would be even better if it protected women against the dangers that
characterize their lives, as well as protecting men against the dangers that characterize their lives.
36
2AC Answers- Link Turn

Privacy norms are necessary and are consistent with feminism.
What good are the ideals of physical, informational, and proprietary privacy
that survive feminist critique if no one subscribes to them? Everyone should
want privacy, for reasons liberal moralists have stated, and for other reasons
relating to responsibility and participation that they have tended to overlook.
What if, however, some people do not want privacy? "Coercing privacy
"-imposing privacy norms to make sure everyone lives in accordance with a
particular vision of privacy-would be problematic. That kind of intolerant
moralism is part of the problem with the military's "Don't ask, Don't tell"
policy respecting gay service members; that kind of intolerant moralism was part
of the problem with the cult of domesticity. Nonetheless, I suggest that
imposing privacy norms to undergird the liberal vision of moral freedom and
independence is generally consistent both with liberalism and with the
egalitarian aspirations of feminism.
37
2AC Answers- Highlighting Differences Bad

Highlighting differences as the alternative does has empirically justified humanity’s worst atrocities
In practice, legal systems attempting to be progressive try to get around the drawbacks of this equality
approach by carving out what are seen as exceptions to it. predominantly allowed is different treatment
where differences are seen to be real but valuable-such as pregnancy and maternity leaves even though no
man needs one, or affirmative action although members of dominant groups do not qualify for it. The
problem with this kind of exceptionalism, however practically helpful in cushioning the impact of the
standard equality approach, is that the same principle-different treatment for real differences—has not only
squarely rationalized the worst human rights abuses in history; it continues to be used to justify systematic
forms of disadvantage like paying women in the most sex-segregated jobs less money. Women do different
jobs, so they can be paid differently, meaning less. Nothing in Aristotle’s approach prevents treating
someone less well who is “differently situated” or “different” by virtue of being already less well off. That
tautology is precisely equality under this approach, and precisely inequality, worse and more of it, in the
real world.
38
2AC Answers- Alt. Fails

The alternative can never solve- The male-based legal system has mechanisms crafted to destroy
alternative modes of thought
Jurisprudence: The difference debate. Ed. Leslie Friedman Goldstein. p.164]
p. 164 “The question of… emotion for reason”
The question of the existence of intellectual gender differences is
far from settled. Bu t analysis of actual practices suggests no reason
to fear that constitutional interpretation is something women cannot
do as well as men can. The content of existing theories of
interpretation, however, does contain dangers for women; the different
approaches urged on jurists either virtually ensure male-oriented
results or invite them. A brief overview of the content of existing
constitutional doctrine serves to vindicate this prediction. The
doctrine allows some of men's claims to get constitutional status
while some of women's equally important claims do not; there are also
instances of women's interests needing protection when men's do not.
Unfortunately for the feminist jurist who would seek to change the
doctrine, it also has a number of rules and conventions that are
available to discredit such demands. A challenge to the rule that only
deliberate discrimination can violate the equal protection clause
approximates a demand for "result-oriented jurisprudence." The search
for standards that would demand both equal employment rights and
maternity leaves can be characterized as "inconsistent" and therefore
"irrational." A jurisprudence that questions the exclusion of most
divorce and child custody law from the scope of constitutional
guarantees appears to question the principles of federalism and
judicial restraint. A demand for recognition of the right to
reproductive choice can be seen as substituting "asking the woman
question" for "neutral principles." Any claim that cannot be rooted
in
prevailing doctrine can be rejected as substituting emotion for
reason.
39
2AC Answers- Patriarchy Will Come Back

The alternative can neve solve- the systems of patriarchy will reinvent themselves
Whoever says law cannot make change so we should not try might explain why the law should be exempt
in the struggle for social transformation. Some of us suspect that women, in particular, are being told that
not much can be done with law because a lot can be. If law were to be made to work for women, the
relation of law to life, as well as its content, might have to change in the process. As more women become
lawyers and maybe the law starts to listen to women, perhaps the legal profession will decline in prestige
and power. Maybe women using law will delegitimize law, and male supremacy—_in its endless
adaptability and ingenuity— will have to find other guises for the dominance it currently exercises through
law.
40
2AC Answers- Feminism Bad

Radical feminism creates backlash that undoes any progressive momentum.
Weiss, Adjunct Professor at the University of Houston Law Center, 1996
(Michael and Cathy Young, associate policy analyst at the Cato Institute, “Policy Analysis – Feminist
Jurisprudence: Equal Rights Or Neo-Paternalism?”
http://www.cato.org/pubs/pas/pa-256.html)
It is often said that today's radical feminists are trying to roll back the clock to an era when frail women had to be protected from the
harsh world and the natural predatory inclinations of men. That is only partly true. What the radical feminists want is the
traditional special protections women had in more paternalistic days plus all the rights that they have
gained in the quest for equality with men. Their effort to abolish male privilege while preserving and
expanding female privilege is likely to create the very backlash feminists fear. Moreover, most women do not
want their brothers, husbands, or sons to live under a legal system that presumes them guilty; nor do they
believe that sex is rape, freedom is a male plot, and an abused woman can be her own judge, jury, and
executioner.
Feminists won’t stop until we have destroyed civilization.

Letwin, 1991
(Shirley, Law and the unreasonable woman - feminist jurisprudence
National Review, http://www.findarticles.com/p/articles/mi_m1282/is_n21_v43/ai_11597163)
It is true, feminists fearlessly acknowledge, that after extracting the "male biases from our language,
methods, and structures," we "will have nothing--no words, no concepts, no science, no methods, no law."
In short, we will have disposed of civilization. What will be then want in its place?
41
2AC Answers- Privacy Good

Empirically Denied – Privacy exists at the root of democracy.
The conjecture that the taste for privacy and the expectation of privacy are
eroding is consistent with the observation I have made elsewhere that privacy
norms play an expansive role in morals, politics, and law. n36 Privacy is not
dead. In morals, though with significant cultural variations, expectations of,
and mutual respect for, the privacy of certain places, communications, and
behaviors constrain daily intercourse. In politics, particularly in
Western-style democracies, privacy stands virtually on a par with liberty and
equality as a core liberal value. n37 Privacy as a political value, however, is
not limited to liberal thought or liberal regimes. People around the world
consider protecting at least some privacy interests a core function of good
government. n38 In law, virtually every country's written constitution or
comparable basic law contains privacy principles limiting authorized government
access to people and their possessions. n39 The civil law of individual Western
European nations and the official directives of the European Community include
broad privacy protection regulating the disclosure of personal and commercial
information. n40
42

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GDI Scholars 2k5 Patel/Symonds

Feminist Jurisprudence Kritik

Links- Current System is Male-Dominated

Links- Current System is Male-Dominated

Links- Current System is Male-Dominated

Links- Current System is Male-Dominated

Links- Difference in the Law

It is no secret that liberals disagree among themselves about the rights of

Links- Right To Life

Impacts- Patriarchy=> Nuke Annihilation

Impacts- Patriarchy=> Militarism

Impacts- Patriarchy=> Subjugation

Impacts- Patriarchy=> Subjugation

Impacts- Patriarchy=> Violence

Alt- Reconstructive Feminist Jurisprudence

Alt- Reconstructive Feminist Jurisdiction

Alt- Fundamental Contradiction

Alt- Connection Theory

The "connection thesis" is simply this: Women

Changes within the legal system are necessary to mainstream changes

Reconceptualizing our theories is necessary to change our practices

2NC AT: Perm

2NC AT: Intersectionality

2NC AT: Essentialism

2NC AT: We Change The Law

2AC Answers- Perm

2AC Answers- Link Turn

2AC Answers- Highlighting Differences Bad

2AC Answers- Alt. Fails

2AC Answers- Patriarchy Will Come Back

2AC Answers- Feminism Bad

Feminists won’t stop until we have destroyed civilization.

2AC Answers- Privacy Good

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