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Hunter, Rosemary (2013) Contesting the Dominant Paradigm: Feminist Critiques of Liberal Legalism.
In: Davies, Margaret and Munro, Vanessa, eds. The Ashgate Research Companion to Feminist
Legal Theory. Ashgate, Farnham, pp. 13-30. ISBN 9781409418597.

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 Copyrighted Material

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Contesting the Dominant Paradigm

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Feminist Critiques of Liberal Legalism

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Rosemary Hunter

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The concept of liberal legalism refers to a set of assumptions found within law in societies

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and regimes such as the international legal order in which liberalism is the dominant

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political philosophy These assumptions broadly concern a the nature of the legal person

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and b the role of law This chapter will provide an account of both of these aspects of liberal
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legalism and the feminist critiques to which they have been subject Feminist critiques have hg
as
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been mounted from a variety of positions ranging from liberal feminists challenging law
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to live up to its promises to radical and postmodern feminists who for di erent reasons
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trenchantly reject the validity of the assumptions of liberal legalism The chapter focuses
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on feminist critiques of liberal legalism rather than on internal debates within feminism
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although these debates are evident in the di erent diagnoses of and responses to the
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perceived problems of liberal legalism

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The Legal Person

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As Ann scales explains two of the central tenets of liberalism are that the basic unit of society
as
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is the individual who exists prior to social organization and that individuals are rational
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and self interested and use their rationality to achieve their needs and desires
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Consistently with these tenets the legal person envisaged by liberal legalism is rational
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autonomous self contained self possessed self su cient and formally equal before the
as
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law This person relates to others at arm s length through the mechanism of contract In the
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words of Anna Grear the paradigmatic liberal legal subject is a socially decontextualized
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hyper rational wilful individual systematically stripped of embodied particularities in

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order to appear neutral and of course theoretically genderless serving the mediation of
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power linked to property and capital accumulation This makes it possible for a
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corporation as much as a human being to be considered a legal person

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Despite the appearance of neutrality and genderlessness however feminist critiques

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of the liberal legal person have noted its inherent masculinity This argument is sometimes
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historical and empirical and sometimes symbolic and normative In the rst account
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privileged white men have populated law shaped it in their own image and instated their
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experience and view of the world as the legal norm which has then come to be seen as
as
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universal neutral objective inevitable and complete Finley Davies

The second symbolic account draws a ention to the systematic associations within the
Western imaginary between the characteristics of the legal person rationality autonomy

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self interest objectivity assertiveness self su ciency self possession and masculinity

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see for example na ne We can see this masculine norm in the reasonable man

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of tort law and self defence doctrine the rational self interested actor of contract law the

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responsible person of criminal law the unencumbered worker of labour law the rights

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bearing individual of human rights and the standard comparator of equality law Finley

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These legal persons operate autonomously in the public sphere it is di cult

ate
to imagine them for example changing nappies cuddling children or breastfeeding na ne

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as
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ww
A signi cant consequence of the masculinity of the legal person is that women struggle

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to a ain legal subjectivity Again this point may be understood both empirically and

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symbolically empirically to the extent that law is built around an ideal type to which they

as
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do not conform it creates problems for women and fails to take into account their lived

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reality and experiences As ngaire na ne has pointed out for example women s bodies

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are not susceptible to the sort of self mastery required of a self proprietor

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as
and indeed for centuries women s bodies were seen as men s property na ne

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even today liberal legalism s autonomous responsible subject is never pregnant

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and is not a wife na ne And to the extent that they are excluded from legal
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subjectivity women are also diminished since liberal legal theory treats persons not ing hg
as
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the normal model of autonomous competent individual as marginal inferior and di erent
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Minow
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on a symbolic level the construction of the masculine as rational objective and

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universal is premised on a binary construction of the feminine as its opposite as irrational

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subjective and particular Thus the legal person exists in a symbiotic hierarchy with the
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devalued feminine his existence and power depend upon the negation and exclusion
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of the feminine na ne And again as Margaret Thornton has noted liberal

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legalism s essentialist representation of woman as less than rational has been disabling
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for embodied women a empting to exercise legal subjectivity one response

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to this observation has been Luce Irigaray s call for a legal regime that recognizes two
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di erentiated sexes rather than only one universal that is male sex Irigaray
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In her recent work na ne has argued for a more complex account of the legal person
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than that presented above In contrast to her own earlier position she now rejects the
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notion that law adopts a monolithic or singular or static view of the person which either
as
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forces women out or obliges them to conform to it if they are to be regarded as persons
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too Rather she argues that w e need to acknowledge that law s concept of the
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person changes according to the guiding scheme of interpretation that legal persons are
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therefore multiple rather than singular In her book Law s Meaning of Life
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she identi es four views of the legal person rationalist religionist naturalist and legalist
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The rationalist sees the legal person as a rational actor as found in liberal philosophy and
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criminal and contract law whose capacity for reason is their most important characteristic
as
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The religionist sees the legal person as a sacred being whose most important characteristic
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is their human sanctity and inviolability as found in human rights and medical law The
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naturalist emphasizes the sovereign subject the embodied and bounded self with rights to
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bodily integrity while the legalist understands the legal person as simply an abstract device
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for endowing a capacity to bear rights and duties with no xed or essential characteristics
nevertheless na ne concedes that each of these legal persons has a masculine
avour and thus continues to make it di cult for women as women to be persons in law

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In relation to the rationalist position as noted above women have traditionally

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been constructed as the opposite of rational and even though white women

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were admi ed to full public citizenship by the late s pregnant women are still not

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recognized in law as fully rational their capacity for self government in ma ers such as

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abortion remains legally limited one might add that rape law continues at least

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to compromise women s capacity for sexual self government and that family law restricts

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the ability of separated mothers to determine how and where they and their children should

as
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live The religionist version of the legal person as sacred and inviolable also has di culties

ww
accommodating pregnant women na ne The naturalist version of the legal

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person as a sovereign and bounded subject similarly has problems accounting for women s

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sexual and reproductive bodies And according to na ne the legalist view has

as
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di culty maintaining the separation of the legal from the human person in one or other of

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its patriarchal manifestations It might also be observed that within the binary

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hierarchy referred to above abstraction is associated with masculinity while the feminine

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is associated with particularity Thus it would be easier for a legalist to see a man than a

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woman as an abstract legal person

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The empirical masculinity of the man of law in the form of lawyers and judges has led to
ate
calls by some feminists for greater representation of women in the legal profession and in the hg
as
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judiciary For liberal feminists this is an argument for law to nish what it began with the
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formal recognition of women as legal persons and the removal of barriers to women s entry
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to the professions in the early twentieth century and to nally accord equal recognition to
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women s rationality see for example Malleson other feminists have argued that law
as
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needs to incorporate both sexes rather than just one that women have important gendered
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experiences and perspectives to bring to bear that will ensure legal rules and norms respond
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to a wider range of litigants and are more fully human see for example Wilson Hale
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Rackley More controversially some have relied on the

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cultural feminist argument that women reason in a di erent voice characterized by an ethic
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of care discussed below which again has something valuable to o er to a law previously
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focused excessively upon individual rights see for example Menkel Meadow sherry
as
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Wilson
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The notion that women bring something di erent to lawyering and judging may
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however be perceived negatively rather than positively As noted above in the Western
ate
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imaginary woman s di erence has been seen to reside precisely in her non rationality This
as
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has rendered embodied women in Thornton s words fringe dwellers of the jurisprudential
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community not fully accepted as agents of legality due to their association with irrationality
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Moreover the fact that the masculine in law has been universalized and
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appears under the guise of impartiality and neutrality means that women s perspectives
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are understood not as equally universal but as particular biased special interests not
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providing the degree of objectivity required for authoritative judgement Thornton

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Graycar and Morgan Munro see also Graycar and

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Thus women s underrepresentation in the senior judiciary is justi ed due to their lack of the
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necessary merit required for appointment

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one recent development within this debate has been the advent of feminist judgment
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writing projects in which feminist academics and lawyers have wri en alternative
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judgments in prominent cases in order to challenge established modes of legal authority to

highlight the masculinity of existing judgments and to demonstrate the results that a more
inclusive judiciary might produce see h p womenscourt ca www feministjudgments org uk

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Hunter et al notably however these projects have explicitly brought feminist

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perspectives to judging rather than claiming to represent women s perspectives or voices

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They show how feminist legal theory may be applied in a practical context and illustrate

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di erences within feminism but they do not con ate women with feminists This approach

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is consistent with broader calls for judicial diversity which are premised on the notion

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that conversations among judges with a wide range of backgrounds life experiences and

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intellectual predispositions are necessary for law to a ain democratic legitimacy see for

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example etherton

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Another feminist line of a ack on the liberal legal person has been Jennifer nedelsky s

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call to reconceive autonomy nedelsky While other feminist legal scholars have also

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engaged with the concept of autonomy it is important to distinguish nedelksy s work from

as
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theirs Robin West for example in her early article Jurisprudence and Gender argues

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that the separation thesis the notion that human beings are physically separate from

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other human beings and that separateness is epistemologically and morally prior to the

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relationships and cooperative arrangements that an individual may choose to form is

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not true of women Rather women are essentially connected to others both

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materially and existentially through pregnancy sexual intercourse and breastfeeding
she thus posits the connection thesis which holds that w omen are actually or ate
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as
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potentially materially connected to other human life Men aren t This view of a
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fundamental gender di erence based on the presence or absence of connection locates West
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within the school of cultural feminism which seeks both to assert and to valorize women s
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di erence from men

as
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Martha Fineman by contrast argues that all humans are dependent at some stage in
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their lives in childhood illness and old age but caretaking for dependents is seen as
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a family responsibility and is usually undertaken by women Because of this universal

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dependency however caretaking should instead be seen as a collective responsibility and

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care work be er valued and resourced xiii xvii A societal commitment to

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the provision of basic social needs would enable the achievement of true autonomy for all
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individuals based on a position of meaningful and widespread equality In

as
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her later book Caring for Justice West comes closer to this position in acknowledging that
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connectedness is not unique to women but that the bene cial work of maintaining care and
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connections is both disproportionately performed by women and insu ciently supported

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by law and society

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nedelsky goes further than both of these theorists in arguing that liberalism is empirically
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wrong about autonomy in relation to all human beings all of the time While liberal political
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and legal theories take atomistic individuals to be their basic unit they fail to recognize the
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inherently social nature of human beings social relations with others are constitutive
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of the human not an optional add on In nedelsky s view however this insight
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does not entail abandoning the concept of autonomy which she argues remains valuable
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for feminism Rather it is necessary to reconceive autonomy not as an inherent

as
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quality of human beings but as a capacity that must be developed and sustained and which
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can develop only in the context of relations with others Relationships with
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others provide the support and guidance necessary for the development and experience
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By contrast as nedelsky notes the radical feminist view of sexual intercourse as the violation
of a woman s bodily integrity is premised on the classical liberal notion of the bounded self

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of autonomy thus relatedness is not the antithesis of autonomy but a precondition for it

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This feminist version of relational autonomy then focuses a ention on the kinds

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of relationships that promote or diminish autonomy both interpersonal relationships and

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relationships with the bureaucratic state We need to consider how to structure constructive

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relationships so that they foster rather than undermine autonomy

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Finally postmodern feminists have critiqued the way in which liberal legalism s account

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of the legal person does not merely function as a representation of reality but actively

as
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contributes to the construction of gender as a binary system and of limited meanings and

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characteristics for masculine and feminine subjects and subjectivity see for example

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Ahmed Davies Hunter na ne Mary Joe Frug for example

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notes that law produces di erences and hierarchies between the sexes and moreover

as
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produces these essentialized sexual di erences and hierarchies as natural and hence as

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unquestionable Through an analysis of employment discrimination law family

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law and laws relating to sexual assault and prostitution Frug

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demonstrates how law produces the female body as terrorized a body that has learned

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to scurry to cringe and to submit maternalized a body that is for maternity and

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sexualized a body that is for sex with men that is both desirable and rapable
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This construction of the female body in turn a ects how we dress have sex and hg
as
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regard ourselves and others similarly Carol smart argues that law operates
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as a technology of gender a process of producing xed gender identities rather than

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merely applying to already gendered subjects According to smart law brings

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into being both gendered subject positions as well as subjectivities or identities to which
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the individual becomes tied or associated thus Woman is a gendered subject position
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which legal discourse brings into being smart too charts the rise of compulsory
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motherhood showing how successive legislative provisions have constructed motherhood

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as natural and unavoidable for heterosexually active women

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Continuing this theme sara Ahmed illustrates the way in which child support legislation
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constructs women as dependent on men and normalizes the heterosexual family rendering
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women who have chosen to parent alone or in a lesbian relationship invisible and illegitimate
as
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Ratna Kapur shows how the Indian courts interpretations of sexual harassment
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prohibitions have reintroduced notions of sexual morality chastity and the cultural
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idealization of pure modest Indian womanhood with women claimants not conforming
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to these norms being denied protection sally sheldon analyses law s

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gendered constructions of masculine and feminine reproductivity demonstrating how

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uK foetal protection legislation judicial endorsement of foetal protection policies and

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legislation providing di erent degrees of civil liability of women and men for pre natal
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as

injuries caused to children construct the female reproductive body as weak penetrable
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volatile and uncontrollable by contrast with the masculine heterosexual reproductive body
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which is constructed as strong impermeable stable and invulnerable Within this legal
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discourse too men are constructed as breadwinners and women as primary carers Thus
as
w.

for instance it is seen as acceptable for women to be excluded from workplaces involving
ww

high levels of exposure to environmental toxins since the porous female body constitutes a
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potential danger to the foetus and thus requires control surveillance and management and
ate
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since women are always potentially pregnant and their primary role is to nurture and care
as
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for children The idealized heterosexual male body on the other hand is not excluded from
such workplaces because it is considered strong and impermeable and because of men s
primary breadwinning role even though men s sperm are equally if not more vulnerable

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to mutation as a result of environmental toxicity sheldon sheldon also

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contrasts the legal construction of the heterosexual male body with that of the gay male

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body which in its obvious susceptibility to invasion and its consequent dangerousness to

hg
as
other bodies in the context of HIV AIDs becomes feminized and notes also the

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di erential racial and class constructions of potentially dangerous mothers in us and uK

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law which account for di erential forms of legal regulation

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As a consequence of this analysis of law s operation both Frug and smart argue that legal

hg
as
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discourse should be recognized as a site of political struggle over sex di erences Frug

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smart and that feminist strategy should both contest the legal production

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and perpetuation of rigid identity categories that constrain women s ways of being in the

ate
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world and construct an alternative version of reality smart see also Cornell

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Ahmed Hunter The feminist judgment writing projects

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referred to above take up this challenge albeit perhaps not in a way smart might have

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envisaged Hunter by rejecting naturalized gender di erences a empting to open

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as
up broader spaces for women to inhabit within law and writing alternative understandings

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of women s diverse realities into the text of the law The Canadian and uK projects o er

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for example alternative versions to the limited dismissive uncomprehending or punitive
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accounts in the original judgments of infertile women Harris short pregnant workers hg
as
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Horton and James caring mothers Bridgeman Hastings surrogate

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mothers Ashenden lesbian other mothers Diduck lesbian marriage Harding

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surety wives Auchmuty young widows Women s Court of Canada b

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women with learning disabilities Bibbings Barker and Fox young unemployed
as
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women Women s Court of Canada c elderly women Carr and Hunter rape
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complainants McGlynn Canadian Aboriginal women Women s Court of Canada

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a Muslim schoolgirls Malik and abused women in varying cultural contexts

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Bano and Patel Munro and shah edwards Monaghan

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Just as law constructs gender and gendered subjects however so too does feminist
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discourse There is a danger therefore that feminist representations of women may be or

ate
hg

become as rigid limiting constraining totalizing and oppressive as legal representations

as
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In other words feminists risk creating our own normative Woman in place of law s version
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see for example Frug smart Hunter Kapur Halley

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Kotiswaran In order to mitigate this risk feminists need to remain aware of

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our own historical location avoid one dimensional representations present subjects as
as
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complex and multi dimensional and focus on subjects and actions which have the capacity
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to disrupt existing norms Kapur Feminist counter narratives in judgments

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or otherwise must ideally arise from a diversity of feminist voices and must remain
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as

contingent contextualized subject to discussion and debate and open to critical scrutiny
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and revision Hunter These desiderata would appear to be contrary to legal method
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however with its quest for certainty and predictability and its projection of apparently
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common sense and immutable truths They suggest both a more transformative and a more
as
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modest potential for law than liberal legalism would traditionally endorse It is to this
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question of law s role that the chapter now turns

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as
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The Role of Law

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Liberal legalism posits law as an essentially benign neutral and autonomous institution It is

hg
as
connected to society in that its function is to assist in the coordination of social activities and

w.
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the resolution of social problems It does so according to shared moral values and political

m
.co
ideals universal principles rational argument doctrine and logic Law reform is seen as a

ate
hg
valuable tool for resolving new or newly discovered social problems and thus legal change

as
w.
re ects social change At the same time liberalism imposes limits on the permissible scope

ww
of legal intervention in the social particularly in relation to spheres of activity designated

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.co
private in order to maximize individual freedom o Donovan scales

ate
hg
Feminists have rejected this image of law as objective impartial progressive and self

as
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limiting and have instead highlighted its tendencies to maintain and exacerbate inequality

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exclusion and oppression Munro

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one key element of feminist critique has centred on the public private distinction within

hg
as
liberal legalism and its construction of the private as a sphere of legal non intervention and

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ww
one in which universal norms such as equality and human rights do not apply see for

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.co
example Charlesworth Philipps Frances olsen identi es three strands
ate
to this critique rst arguments about where the boundary between public and private hg
as
w.

is drawn secondly arguments that the public private distinction is incoherent and thirdly
ww

arguments that the appeal to privacy is both political and gendered that private freedom
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belongs only to those with power mostly men and without it privacy connotes insecurity
ate
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fear and oppression often for women In practice these strands of critique
as
w.
ww

tend to overlap with the third being a constant refrain

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In relation to the boundary between public and private olsen notes that the concept
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of privacy is not a natural a ribute nor descriptive in a factual sense but rather is a
hg
as

political contestable designation since law plays a crucial role in constructing

w.
ww

and maintaining the division between public and private o Donovan it thus
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.co

operates in a way that is inherently political olsen so for example when

ate
hg

law designates the family as a zone of privacy into which the state does not intrude it
as
w.

e ectively refuses to regulate and thus permits and reinforces power di erentials within
ww

families manifested in internal hierarchies and inequalities okin olsen

m
.co

Auchmuty and in harms to women and children such as domestic violence see
ate
hg

for example Graycar and Morgan Fineman and Mykitiuk marital rape
as
w.
ww

Graycar and Morgan and child sexual abuse Likewise when the state promotes
m

mediation and other forms of private ordering in family law it tacitly sanctions the
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continuation of gendered power relations within the family see for example neave
hg
as

Graycar and Morgan

w.
ww

other examples of law s public private distinctions include the refusal to allow tax
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deductibility of childcare expenses thus constructing those expenses as a ma er of private

ate
hg

rather than state responsibility Graycar and Morgan a responsibility that falls
as
w.

primarily upon women In the international law of armed con ict a distinction is drawn
ww

between rape as an o cial policy of genocide or subjugation and private rapes in war
m
.co

which are not the subject of regulation thus leaving many victims of wartime rape without
ate
hg

redress see for example Charlesworth Moreover the dividing line between
as
w.
ww

public and private tends to be drawn di erently according to one s race class and sexuality
Boyd so for example Indigenous women and their children and those dependent

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on welfare enjoy considerably less family privacy than do white middle class families Boyd

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Graycar and Morgan

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olsen s second strand of critique that the public private distinction is incoherent is

hg
as
based on two arguments The rst is that law in fact intervenes equally in the public and

w.
ww
private spheres it simply does so in di erent ways in order to maintain the ideological

m
.co
distinction between the two The private sphere is the subject of negative regulation and

ate
boundary de nition For example failing to criminalize domestic violence in uences

hg
as
w.
behaviour within the family just as surely as positive criminalization would do Contract

ww
law s presumption that there is no intention to enter into legal relations between family

m
.co
members and thus that agreements made within the private sphere of the family are

ate
hg
unenforceable clearly regulates the nature of the relations that family members can and

as
w.
ww
cannot have with each other Graycar and Morgan Legal policies concerning

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parental responsibility parental authority which groupings constitute a family and so

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on a ect how people form families and how power and roles are distributed within them

hg
as
olsen Far from being unregulated the family is a major concern of the state

w.
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Pateman the notion of non intervention simply obscures state policy choices

m
.co
olsen The second argument that the public private distinction is incoherent is
ate
based on the observation that despite the illusion of separation between them o Donovan hg
as
w.

the public and private spheres are interdependent and mutually constitutive
ww

structures in the public world of work produce power inequalities within the family and
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.co

the gender division of labour within families a ects women s participation in the labour
ate
hg

market Pateman o Donovan Likewise t he guarantees of

as
w.
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justice and equality held out to citizens in the public sphere are worth systematically less
m

to those who are pre politically disadvantaged Lacey Thus a empts to reform
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either the public sphere or family relations are doomed to fail if they do not acknowledge
hg
as

the interconnections and challenge the dichotomy between the two olsen
w.
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o Donovan
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The ideological function of the public private distinction is seen clearly in the neoliberal
ate
hg

turn in political philosophy governance and regulation which has seen a shift
as
w.
ww
m

in the political orientation of the liberal state, whose role and responsibilities in
.co

relation to the life chances of its citizens has been recon gured Responsibility for
ate
hg

individual welfare is less and less considered to be a ma er of collective social or

as
w.
ww

public obligation and is increasingly regarded as a private, individual or, at most, a

m

family or charitable ma er Fudge and Cossman a

.co
ate
hg
as

neoliberalism embraces the notion that the state has inappropriately taken over a wide
w.
ww

range of activities which are be er left to the private sector in the form of the market the
m
.co

community and the family Kline Its central claim is that private choice is
ate
hg

be er than public regulation as a mechanism for allocating resources and ordering social
as
w.

a airs Philipps Fudge and Cossman b Thus we have witnessed the

ww

retrenchment of the welfare state the dismantling of social programmes the privatization of
m
.co

public assets and services and the expansion of the market and voluntary sector to take over
ate
hg

many welfare state functions Boyd Kline Philipps but under

as
w.
ww

signi cantly di erent conditions see for example McDermont discussing the english
case of YL v Birmingham City Council uKHL

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Feminist critiques of neoliberal privatization constitute an important recent development

m
in feminist legal and political analysis Feminist scholars have observed and documented the

.co
ate
highly gendered implications Boyd of privatization which has simultaneously

hg
as
involved the recon guration of the gender order in relation to paid work women s

w.
ww
increased workforce participation and the demise of the male breadwinner while the

m
.co
gender division of labour in relation to social reproduction has remained largely intact and

ate
hg
arguably intensi ed Fudge and Cossman a Lisa Philipps notes for example

as
w.
that Canadian tax reforms since have reinforced the emphasis on individual family

ww
and community responsibility to secure their own welfare impacting on women as market

m
.co
actors caregivers and contributors to the voluntary sector Philipps At the

ate
hg
same time pension reforms have shifted the locus of investment risk from the collective to

as
w.
ww
the individual which has exacerbated long term disadvantages for non standard workers

m
the majority of whom are women who take time out of the workforce work part time

.co
ate
and or are in temporary and precarious employment Condon Family law and social

hg
as
welfare law increasingly emphasize the enforcement of private support obligations within

w.
ww
families via child support spousal maintenance obligations imputed nancial support

m
.co
between adults sharing a household and workfare for single mothers Cossman
ate
These provisions enable society to bene t from women s social reproductive labour while hg
as
w.

disallowing women and children s dependency on the state and enforcing their dependency
ww

on individual men thus reinforcing male power and women s economic vulnerability
m
.co

Barker
ate
hg

Indeed the focus of neoliberal family policy on the family s responsibility for the welfare
as
w.
ww

of its members has encouraged a widening of the scope of family in order to cast the net
m

of responsibility more widely Fudge and Cossman a Barker Thus

.co
ate

nicola Barker argues that legal recognition of same sex relationships ts seamlessly into a
hg
as

neoliberal privatizing agenda Barker as lesbians and gay men are encouraged to
w.
ww

take on the burdens of care nancial support and social reproduction The di erential
m
.co

impacts of privatization policies on racialized women immigrant women women with

ate
hg

disabilities and so on have also been identi ed Fudge and Cossman b Clearly
as
w.

too law continues to play a central role The neoliberal privatization project is not one
ww

of deregulation but of reregulation in the service of a new political agenda Fudge and
m
.co

Cossman a b Philipps
ate
hg

While some feminists have argued that the damaging e ects of the public private
as
w.
ww

distinction for women may be overcome by extending the public values of justice rights
m

and equality to areas traditionally designated as private others have made the reverse
.co
ate

argument that values traditionally associated with the private such as care connection
hg
as

and empathy should be extended to the public sphere A prominent argument here has
w.
ww

been the feminist ethics of care which contends that liberal law s ethics of justice based
m
.co

on the supposedly universal values of rights and formal equality is both impoverished
ate
hg

and founded on false premises White and Tronto Human beings are not abstract
as
w.

disconnected entities but are embodied subjects situated in particular social contexts and in
ww

complex relationships of interdependence with others Gilligan Tronto

m
.co

Held This is similar to nedelsky s argument discussed earlier but unlike nedelsky
ate
hg

feminist care ethicists are not interested in rescuing liberal concepts such as autonomy for
as
w.
ww

feminism but in positing an alternative moral approach based on the value of caring
Di erent versions of the ethics of care have been elaborated over the years earlier s
versions posited the ethics of care as a speci cally feminine ethics derived from women s

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experience of maintaining relationships Gilligan or more speci cally from women s

m
experience of mothering noddings West Later versions have tended to eschew

.co
ate
such essentialist foundations and have described the ethics of care as a feminist ethics

hg
as
Tronto sevenhuijsen Held though compare Drakopoulou which

w.
ww
be er re ects the realities and diversity of women s as well as men s lives and concerns

m
.co
and o ers prescriptions for moral action which are capable of a ending to and addressing

ate
gendered power di erentials and inequalities sevenhuijsen stewart

hg
as
w.
According to selma sevenhuijsen the ethics of care as a moral activity requires

ww
judgements about what is the best course of action in speci c circumstances a question

m
.co
which engages situated contextual reasoning rather than abstract reasoning or the application

ate
hg
of a set of predetermined principles Moral problems are approached from

as
w.
ww
an a itude of caring sevenhuijsen a willingness to deploy emotions such as

m
sympathy empathy sensitivity and responsiveness Held and a commitment to

.co
ate
see issues from di ering perspectives sevenhuijsen Caring involves sustaining

hg
as
relationships Gilligan an ability and willingness to see and hear needs

w.
ww
and to take responsibility for those needs being met sevenhuijsen and recognition

m
.co
of di erences in need Gilligan Joan Tronto has usefully distinguished four
ate
aspects of care caring about taking care of care giving and care receiving hg
as
w.

notably the rst two tend to be performed by the more powerful in society while the last
ww

two are more often done by the less powerful and are socially devalued see
m
.co

also smart and neal Tronto further identi es four core values corresponding to these
ate
hg

aspects of care a entiveness to the needs of others responsibility to care competence in

as
w.
ww

care giving and responsiveness of the care receiver to care

m

In the legal context the ethic of care might be put into practice in a number of ways
.co
ate

Reforms to family law social security law and employment law could invest the work of
hg
as

nurturing and care with greater value West Finley Tronto

w.
ww

In the eld of child custody sevenhuijsen notes that men and women are in a position
m
.co

of mutual dependency and hence mutual vulnerability as parents Instead of

ate
hg

guaranteeing men authority rights to protect them from a potential dependency on

as
w.

women or maintaining the patriarchal view that for men connections can
ww

only be achieved by enforceable rights the law could seek to ensure that
m
.co

men develop greater competence and responsiveness as carers for their children and as
ate
hg

receivers of care At a more conceptual level law could take a di erent approach to familiar
as
w.
ww

dilemmas constructing them not as issues of competing individual rights or interests to be

m

resolved by the application of hierarchical normative principles but as issues of con icting
.co
ate

responsibilities to be resolved by a contextual analysis that pays a ention to relationships

hg
as

needs dependency and care Gilligan Finley Tronto

w.
ww

sevenhuijsen see also McGlynn It should rely less upon abstract rules
m
.co

principles and presumptions such as the right to family life equality or the priority
ate
hg

of biological ties sevenhuijsen and place more emphasis on justice as a

as
w.

process sevenhuijsen that is more cognizant of context and that focuses on

ww

particularity cooperation and connection Munro

m
.co

This last point gives rise to the possibility of judging as a practice of care In its liberal
ate
hg

conception j udging with authority assumes that one stands above a situation free of
as
w.
ww

relationships and intimate ties sevenhuijsen By contrast West argues that the
goal of adjudication should not only be to achieve justice but also to exercise compassion or
care for litigants see also sevenhuijsen she contends that t he judge

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litigant relationship imposes caring constraints on decisions West including

m
the requirement to take into account the individual circumstances and particularity of the

.co
ate
parties rather than universalizing or commodifying them According to West

hg
as
many instances of glaring injustice in judicial decision making could and should have been

w.
ww
avoided by a more compassionate interpretation of the applicable law West s

m
.co
argument and those of the other care theorists noted above bear many resemblances to the

ate
hg
practices if not always the stated intentions of feminist judging identi ed in my analysis of

as
w.
the feminist judgment writing projects and preceding literature Hunter

ww
The discussion of what the ethic of care might mean for law gives rise to the question

m
.co
of the relationship between the ethic of care and the ethic of justice some theorists have

ate
hg
maintained that the two are simply incompatible and the ethic of justice must give way to

as
w.
ww
the superior ethic of care noddings sevenhuijsen others have tried to nd

m
some accommodation between the two by according them more or less salience in di erent

.co
ate
elds Held or seeing them as compatible interrelated and or a necessary corrective

hg
as
to each other Tronto White and Tronto Munro At one

w.
ww
extreme West insists that justice and care are necessary conditions of each other justice

m
.co
must be caring if it is to be just and care must be just if it is to be caring and she
ate
provides numerous illustrations from case law of justice without care which is ultimately hg
as
w.

unjust and care without justice which is ultimately uncaring on the other hand Anne
ww

stewart in a recent analysis of the gendered e ects of globalized commodity chains and
m
.co

the marketization of care takes the view that a care or relational analysis is more useful
ate
hg

than a rights analysis in revealing global gender inequalities and indeed provides a useful
as
w.
ww

critique of both trade and rights discourses which have tended to prevail in discussions of
m

globalization According to stewart the care approach o ers greater potential to

.co
ate

recognize the way in which social and economic relations create injustice and
hg
as

also enables us to see how market institutional family and community relationships may be
w.
ww

changed to avoid injustice

m
.co

The notion of an ethic of care has however been dismissed by radical feminists as simply
ate
hg

women a empting to value what male supremacy has a ributed to us for its own use
as
w.

MacKinnon In the radical feminist view exempli ed by the writings of Catharine

ww

MacKinnon in the s the reality of social life is a gender hierarchy of men s power and
m
.co

domination and women s subordination and submission imposed by force and marked in
ate
hg

particular by men s control over appropriation and objecti cation of women s sexuality
as
w.
ww

MacKinnon Law in this view is one of the

m

institutions of male power The law sees and treats women the way
.co
ate

men see and treat women Liberal legalism s objectivist epistemology re ects the
hg
as

male perspective and legitimizes and reinforces existing distributions of power

w.
ww

Thus when the state is most ruthlessly neutral it will be most male
m
.co

when judges stick most closely to precedent and legislative intent they will most rigorously
ate
hg

enforce male norms In particular liberal law fails to recognize and compensate
as
w.

the harms su ered by women under male supremacy and instead ideologically justi es the
ww

harmful activities and de nes them as not harm MacKinnon

m
.co

Feminism s role then is to expose and try to change the social reality of women s
ate
hg

subordination placing women s experience and the perspective from within that
as
w.
ww

experience at the center of analysis and activism MacKinnon see also

chapter Given the centrality of the appropriation of women s sexuality to the system
of male power radical feminist lawyers have been particularly concerned with laws relating

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to rape sexual harassment abortion pornography and prostitution see for example

m
MacKinnon While liberal legalism constitutes these issues as

.co
ate
being about consent morality free speech and privacy radical feminists see them as being

hg
as
about systemic sex discrimination Radical feminist reforms would claim women s concrete

w.
ww
reality of social discrimination and exploitation by men such as sexual assault pornography

m
.co
and prostitution as forms of sex inequality t he main question would be does a practice

ate
participate in the subordination of women to men and would enable women to de ne

hg
as
w.
and control their own sexuality MacKinnon

ww
This agenda achieved some tentative success in the s with the introduction of the

m
.co
legal claim for sexual harassment a claim which involved taking women s experience of

ate
hg
violation seriously and marking the rst time in history to my knowledge that women

as
w.
ww
have de ned women s injuries in law MacKinnon However local

m
ordinances enacted in Minneapolis and Indiana de ning pornography involving the

.co
ate
graphic sexually explicit subordination of women as a violation of women s civil rights and

hg
as
providing remedies for those injured by pornography MacKinnon were

w.
ww
ultimately defeated by the assertion of the masculine value of constitutionally protected free

m
.co
speech subsequently radical feminist law reform e orts have extended to and enjoyed
ate
somewhat greater success within the international arena with a focus on violence against hg
as
w.

women as a violation of women s human rights see for example MacKinnon united
ww

nations General Assembly rape in the context of war and genocide see for example
m
.co

McGlynn and Munro and action to end the international tra cking of women and
ate
hg

girls for the purposes of sexual exploitation see for example Barry Coalition Against
as
w.
ww

Tra cking in Women

m

A nal feminist challenge to liberal law s account of itself and also to feminist law
.co
ate

reform projects has come from feminist legal theorists in uenced by post colonialism
hg
as

and post structuralism who have focused on the power of law to de ne and exclude its
w.
ww

others Kapur for example has noted that in both the colonial encounter and the post
m
.co

colonial era Third World women have been constructed in law as victims of backward
ate
hg

and uncivilized cultures who exist outside the universal liberal project In order to a ain
as
w.

liberal personhood and thereby obtain equality and rights they require rescue from and
ww

must therefore abandon the oppressive cultural practices in which they are mired But this
m
.co

de nition is itself extremely oppressive for Third World women rendering gender and
ate
hg

cultural relations rigid and immutable and depriving women of the ability to act as agents
as
w.
ww

within their own societies

m

smart has observed the way in which law disquali es other knowledges including
.co
ate

feminist knowledge and has also argued that by continually looking to law
hg
as

to remedy harms to women feminists simply legitimate law itself endorsing its claims to
w.
ww

be a force for good when this is far from empirically evident Rather than seeking to extend
m
.co

the regulatory reach of law feminists should resist the creeping hegemony of the legal
ate
hg

order While she has been careful to point out that this is not a prescription for
as
w.

feminists to disengage from law altogether ma ers already in the legal domain cannot be
ww

abandoned for example smart warns that instead of automatically assuming law s value
m
.co

and e cacy the potential costs and bene ts of deploying law in particular situations should
ate
hg

be weighed up recognizing that in some cases it may not be the best resource available
as
w.
ww

The structures of liberal law and the neoliberal restructuring of the state may
severely limit the transformative potential of law reform e orts smart
Thornton Fudge and Cossman b Hunter The costs of calling

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upon law may include the risks of reproducing and reinforcing limiting and constraining

m
views of women and of cooptation into conservative law and order nationalist religious

.co
ate
and or national security agendas Thornton Kapur esp on the

hg
as
other hand as discussed earlier by focusing on law not in its own instrumental terms but

w.
ww
as a discourse which constructs knowledge and subjects feminists ought to engage with law

m
.co
as a site of discursive struggle upon which to contest meanings about gender culture and

ate
hg
other normative categories smart Kapur

as
w.
In postmodern times however the results of any feminist legal engagements will be

ww
uncertain Law itself cannot be understood as having an essential character It is neither

m
.co
simply an instrument of social coordination nor one of oppression It is a complex and

ate
hg
contradictory force hence engagements with law do not produce certain outcomes a stable

as
w.
ww
subject or clear victories Kapur see also sandland none of this means

m
according to smart that we have to abandon politics But it does mean that we cannot make

.co
ate
promises about what our politics will achieve

hg
as
w.
ww
m
.co
Conclusion
ate
hg
as
w.

Feminist politics clearly has not achieved the displacement of liberal legalism as the
ww

dominant legal form in nation states and international regimes which have inherited the
m
.co

Anglo American legal tradition While some concessions have been made to feminist
ate
hg

critiques liberal legalism s core claims about the role of law and the nature of the legal
as
w.
ww

subject remain largely intact and thus continue to impact adversely on women s lives and
m

gendered subjectivities The extension and recon guration of national and international
.co
ate

legal orders in the interests of neoliberalism and globalization have occurred substantially
hg
as

within the same framework and with obviously gendered e ects Feminist challenges are
w.
ww

therefore also likely to continue

m
.co

This chapter has demonstrated that the nature of feminist critiques and the prescriptions
ate
hg

o ered have varied widely according to broader di erences within feminist theory ranging
as
w.

from calls from liberal feminists for liberalism fully to live up to its ideals recent examples
ww

include nussbaum Mullally Munro to postmodern concerns to

m
.co

grapple with law at the level of discourse Feminists have responded to changes in the
ate
hg

political and legal environment but have also been inventive as seen for example in the
as
w.
ww

hybrid blend of activism and critique represented by feminist judgment writing projects
m

Hunter For all its disappointments and frustrations then it appears that for feminist
.co
ate

legal scholarship the encounter with liberal legalism has been and is likely to continue to be
hg
as

immensely productive
w.
ww
m
.co
ate
hg

References
as
w.
ww

Ahmed s Deconstruction and law s other Towards a feminist theory of embodied

m
.co

legal rights Social and Legal Studies

ate
hg

Ashenden s Re N A Child in Feminist Judgments: From Theory to Practice edited by R

as
w.
ww

Hunter et al oxford Hart Publishing

Auchmuty R Royal Bank of Scotland Plc v Etridge No in Feminist Judgments: From
Theory to Practice edited by R Hunter et al oxford Hart Publishing

Copyrighted Material
T A R C F L T

Copyrighted Material
Bano s and Patel P R v Zoora Ghulam Shah in Feminist Judgments: From Theory to

m
Practice edited by R Hunter et al oxford Hart Publishing

.co
ate
Barker n Not the Marrying Kind A Feminist Critique of Same Sex Marriage Basingstoke

hg
as
Palgrave Macmillan

w.
ww
Barker n and Fox M She eld City Council v E in Feminist Judgments: From Theory to

m
.co
Practice edited by R Hunter et al oxford Hart Publishing

ate
Barry K Female Sexual Slavery new York new York university Press

hg
as
w.
Bibbings L R v Stone and Dobinson in Feminist Judgments: From Theory to Practice

ww
edited by R Hunter et al oxford Hart Publishing

m
.co
Boyd s B Challenging the public private divide an overview in Challenging the Public/

ate
hg
Private Divide Feminism Law and Public Policy edited by s B Boyd Toronto university

as
w.
ww
of Toronto Press

m
Bridgeman J R v Portsmouth Hospitals NHS Trust, ex parte Glass in Feminist Judgments:

.co
ate
From Theory to Practice edited by R Hunter et al oxford Hart Publishing

hg
as
Carr H and Hunter C YL v Birmingham City Council and Others in Feminist Judgments:

w.
ww
From Theory to Practice edited by R Hunter et al oxford Hart Publishing

m
.co
Charlesworth H Worlds apart Public private distinctions in international law in
Public and Private Feminist Legal Debates edited by M Thornton Melbourne oxford ate
hg
as
w.

university Press
ww

Coalition Against Tra cking in Women www catwinternational org Accessed

m
.co

August
ate
hg

Condon M Privatizing pension risk Gender law and nancial markets in Privatization,
as
w.
ww

Law and the Challenge to Feminism edited by B Cossman and J Fudge Toronto university
m

of Toronto Press
.co
ate

Cornell D Beyond Accommodation Ethical Feminism Deconstruction and the Law new
hg
as

York Routledge
w.
ww

Cossman B Family feuds neo liberal and neo conservative visions of the
m
.co

reprivatisation project in Privatization Law and the Challenge to Feminism edited by B

ate
hg

Cossman and J Fudge Toronto university of Toronto Press

as
w.

Davies M Delimiting the Law Postmodernism and the Politics of Law London Pluto
ww

Press
m
.co

Diduck A Re G Children Residence Same Sex Partner in Feminist Judgments: From

ate
hg

Theory to Practice edited by R Hunter et al oxford Hart Publishing

as
w.
ww

Drakopoulou M The ethic of care female subjectivity and feminist legal scholarship
m

Feminist Legal Studies

.co
ate

edwards s A orney General for Jersey v Holley in Feminist Judgments: From Theory to
hg
as

Practice edited by R Hunter et al oxford Hart Publishing

w.
ww

etherton T Liberty the archetype and diversity A philosophy of judging Public Law
m
.co
ate
hg

Fineman M A Cracking the foundational myths Independence autonomy self

as
w.

su ciency American University Journal of Gender Social Policy and Law

ww

Fineman M A The Autonomy Myth: A Theory of Dependency new York new Press
m
.co

Fineman M A and Mykitiuk R eds

ate

The Public Nature of Private Violence: The Discovery

hg

of Domestic Abuse new York Routledge

as
w.
ww

Finley L M Breaking women s silence in law The dilemma of the gendered nature of
legal reasoning Notre Dame Law Review
Frug M J Postmodern Legal Feminism new York Routledge

Copyrighted Material
 C D P

Copyrighted Material
Fudge J and Cossman B a Introduction Privatization law and the challenge to

m
feminism in Privatization Law and the Challenge to Feminism edited by B Cossman and

.co
ate
J Fudge Toronto university of Toronto Press

hg
as
Fudge J and Cossman B b Conclusion Privatization polarization and policy

w.
ww
feminism and the future in Privatization Law and the Challenge to Feminism edited by B

m
.co
Cossman and J Fudge Toronto university of Toronto Press

ate
hg
Gilligan C In a Di erent Voice Psychological Theory and Women s Development

as
w.
Cambridge MA Harvard university Press

ww
Graycar R The gender of judgments some re ections on bias University of British

m
.co
Columbia Law Review

ate
hg
Graycar R Gender race bias and perspective or how otherness colours your

as
w.
ww
judgment International Journal of the Legal Profession

m
Graycar R and Morgan J The Hidden Gender of Law nd edn sydney Federation

.co
ate
Press

hg
as
Grear A sexing the matrix embodiment disembodiment and the law towards the

w.
ww
re gendering of legal rationality in Gender Sexualities and Law edited by J Jones et al

m
.co
Abingdon Routledge
ate
Hale B equality and the judiciary Why should we want more women judges Public hg
as
w.

Law
ww

Hale B Making a di erence Why we need a more diverse judiciary Northern Ireland
m
.co

Legal Quarterly
ate
hg

Hale B Maccabaean lecture in jurisprudence A minority opinion Proceedings of the

as
w.
ww

British Academy
m

Halley J Split Decisions: How and Why to Take a Break from Feminism Princeton nJ
.co
ate

Princeton university Press

hg
as

Harding R Wilkinson v Ki inger in Feminist Judgments: From Theory to Practice edited

w.
ww

by R Hunter et al oxford Hart Publishing

m
.co

Harris short s Evans v Amicus Healthcare Ltd in Feminist Judgments: From Theory to
ate
hg

Practice edited by R Hunter et al oxford Hart Publishing

as
w.

Hastings G Re A Children Conjoined Twins Surgical Separation in Feminist Judgments:

ww

From Theory to Practice edited by R Hunter et al oxford Hart Publishing

m
.co

Held V The Ethics of Care: Personal, Political and Global new York oxford university
ate
hg

Press
as
w.
ww

Horton R and James G Mundon v Del Monte Foods Ltd in Feminist Judgments: From
m

Theory to Practice edited by R Hunter et al oxford Hart Publishing

.co
ate

Hunter R Deconstructing the subjects of feminism The essentialism debate in feminist

hg
as

theory and practice Australian Feminist Law Journal

w.
ww

Hunter R The mirage of justice Women and the shrinking state Australian Feminist
m
.co

Law Journal
ate
hg

Hunter R Can feminist judges make a di erence International Journal of the Legal
as
w.

Profession
ww

Hunter R An account of feminist judging in Feminist Judgments: From Theory to

m
.co

Practice edited by R Hunter et al oxford Hart Publishing

ate
hg

Hunter R The power of feminist judgments Feminist Legal Studies

as
w.
ww

Hunter R McGlynn C and Rackley e eds Feminist Judgments: From Theory to

Practice oxford Hart Publishing

Copyrighted Material
T A R C F L T

Copyrighted Material
Irigaray L Je tous nous Toward a Culture of Di erence translated by A Martin new

m
York Routledge

.co
ate
Irigaray L Thinking the Di erence For a Peaceful Revolution translated by K Montin

hg
as
London Athlone Press

w.
ww
Irigaray L I Love to You Sketch for a Felicity Within History translated by A Martin

m
.co
new York Routledge

ate
Kapur R Post colonial economies of desire Legal representations of the sexual

hg
as
w.
subaltern Denver University Law Review

ww
Kapur R Erotic Justice Law and the New Politics of Postcolonialism London Glass House

m
.co
Press

ate
hg
Kline M Blue meanies in Alberta Tory tactics and the privatization of child welfare

as
w.
ww
in Challenging the Public Private Divide Feminism Law and Public Policy edited by susan

m
B Boyd Toronto university of Toronto Press

.co
ate
Kotiswaran P Dangerous Sex Invisible Labor Sex Work and the Law in India Princeton

hg
as
nJ Princeton university Press

w.
ww
Lacey n Theory into practice Pornography and the public private dichotomy Journal

m
.co
of Law and Society
ate
MacKinnon C A Feminism Marxism method and the state An agenda for theory hg
as
w.

Signs
ww

MacKinnon C A Feminism Marxism method and the state Toward feminist

m
.co

jurisprudence Signs
ate
hg

MacKinnon C A Feminism Unmodi ed Discourses on Life and Law Cambridge MA

as
w.
ww

Harvard university Press

m

MacKinnon C A Toward a Feminist Theory of the State Cambridge MA Harvard

.co
ate

university Press
hg
as

MacKinnon C A Are Women Human? And Other International Dialogues Cambridge

w.
ww

MA Harvard university Press

m
.co

Malik M R Begum v Governors of Denbigh High School in Feminist Judgments: From

ate
hg

Theory to Practice edited by R Hunter et al oxford Hart Publishing

as
w.

Malleson K Justifying gender equality on the bench Why di erence won t do

ww

Feminist Legal Studies

m
.co

McDermont M Commentary on YL v Birmingham City Council in Feminist Judgments:

ate
hg

From Theory to Practice edited by R Hunter et al oxford Hart Publishing

as
w.
ww

McGlynn C R v A No in Feminist Judgments: From Theory to Practice edited by

m

R Hunter et al oxford Hart Publishing

.co
ate

McGlynn C and Munro V eds Rethinking Rape Law International and Comparative
hg
as

Perspectives Abingdon Routledge

w.
ww

Menkel Meadow C The comparative sociology of women lawyers The feminization

m
.co

of the legal profession Osgoode Hall Law Journal

ate
hg

Minow M Making All the Di erence Inclusion Exclusion and American Law Ithaca nY
as
w.

Cornell university Press

ww

Monaghan K EM Lebanon v Secretary of State for the Home Department in Feminist

m
.co

Judgments: From Theory to Practice edited by R Hunter et al oxford Hart Publishing

ate
hg
as
w.
ww

Mullally s Gender, Culture and Human Rights: Reclaiming Universalism oxford Hart
Publishing

Copyrighted Material
 C D P

Copyrighted Material
Munro V Law and Politics and the Perimeter Re Evaluating Key Debates in Feminist

m
Theory oxford Hart Publishing

.co
ate
Munro V and shah s R v Dhaliwal in Feminist Judgments: From Theory to Practice

hg
as
edited by R Hunter et al oxford Hart Publishing

w.
ww
na ne n The legal structure of self ownership or the self possessed man and the

m
.co
woman possessed Journal of Law and Society

ate
hg
na ne n Can women be legal persons in Visible Women Essays on Feminist Legal

as
w.
Theory and Political Philosophy edited by s James and s Palmer oxford Hart Publishing

ww
m
.co
na ne n Who are law s persons From Cheshire cats to responsible subjects Modern

ate
hg
Law Review

as
w.
ww
na ne n our legal lives as men women and persons Legal Studies

m
na ne n Law s Meaning of Life Philosophy Religion Darwin and the Legal Person

.co
ate
oxford Hart Publishing

hg
as
na ne n Women and the cast of legal persons in Gender Sexualities and Law edited

w.
ww
by J Jones et al Abingdon Routledge

m
.co
neave M Resolving the dilemma of di erence A critique of The role of private
ate
ordering in family law University of Toronto Law Journal hg
as
w.

neave M Private ordering in family law will women bene t in Public and Private:
ww

Feminist Legal Debates edited by M Thornton Melbourne oxford university Press

m
.co
ate
hg

nedelsky J Reconceiving autonomy sources thoughts and possibilities Yale Journal

as
w.
ww

of Law and Feminism

m

nedelsky J Law boundaries and the bounded self Representations spring

.co
ate
hg
as

nedelsky J Law s Relations A Relational Theory of Self Autonomy and Law new York
w.
ww

oxford university Press

m
.co

noddings n Caring: A Feminine Approach to Ethics and Moral Education Berkeley

ate
hg

university of California Press

as
w.

nussbaum M C Sex and Social Justice new York oxford university Press
ww

o Donovan K Sexual Divisions in Law London Weidenfeld nicolson

m
.co

okin s M Justice, Gender and the Family new York Basic Books
ate
hg

olsen F e The family and the market A study of ideology and legal reform Harvard
as
w.
ww

Law Review
m

olsen F e The myth of state intervention in the family University of Michigan Journal
.co
ate

of Law Reform
hg
as

olsen F e Constitutional law Feminist critiques of the public private distinction

w.
ww

Constitutional Commentary
m
.co

Pateman C Feminist critiques of the public private dichotomy in Public and Private in
ate
hg

Social Life edited by s I Benn and G F Gaus London Croom Helm

as
w.

Philipps L Tax law and social reproduction The gender of scal policy in an age of
ww

privatization in Privatization Law and the Challenge to Feminism edited by B Cossman

m
.co

and J Fudge Toronto university of Toronto Press

ate
hg

Rackley e Di erence in the House of Lords Social and Legal Studies

as
w.
ww

Rackley e Judicial diversity the woman judge and fairy tale endings Legal Studies

Copyrighted Material
T A R C F L T

Copyrighted Material
Rackley e What a di erence di erence makes Gendered harms and judicial diversity

m
International Journal of the Legal Profession

.co
ate
sandland R Between truth and di erence poststructuralism law and the power of

hg
as
feminism Feminist Legal Studies

w.
ww
scales A Legal Feminism Activism Lawyering and Legal Theory new York new York

m
.co
university Press

ate
sevenhuijsen s

hg
Citizenship and the Ethics of Care: Feminist Considerations on Justice,

as
w.
Morality and Politics London Routledge

ww
sheldon s Reconceiving masculinity Imagining men s reproductive bodies in law

m
.co
Journal of Law and Society

ate
hg
sherry s Civic virtue and the feminine voice in constitutional adjudication Virginia

as
w.
ww
Law Review

m
smart C Feminism and the Power of Law London Routledge

.co
ate
smart C The woman of legal discourse Social and Legal Studies

hg
as
smart C Law Crime and Sexuality Essays in Feminism London sage

w.
ww
smart C and neale B Family Fragments? Cambridge Polity Press

m
.co
stewart A Gender Law and Justice in a Global Market Cambridge Cambridge university
ate
Press hg
as
w.

Thornton M Feminism and the contradictions of law reform International Journal of the
ww

Sociology of Law
m
.co

Thornton M Dissonance and Distrust Women in the Legal Profession Melbourne oxford
ate
hg

university Press
as
w.
ww

Tronto J C Moral Boundaries: A Political Argument for an Ethic of Care new York
m

Routledge
.co
ate

united nations General Assembly Report of the Special Rapporteur on Violence against
hg
as

Women, its Causes and Consequences un Doc A

w.
ww

White J A and Tronto J C Political practices of care needs and rights Ratio Juris
m
.co
ate
hg

Wilson B Will women judges really make a di erence Osgoode Hall Law Journal
as
w.
ww

West R Jurisprudence and gender University of Chicago Law Review

m
.co

West R Caring for Justice new York new York university Press
ate
hg

Women s Court of Canada a native Women s Association of Canada v Canada

as
w.
ww

Canadian Journal of Women and the Law

m

Women s Court of Canada b Law v Canada Canadian Journal of Women and the Law
.co
ate
hg
as

Women s Court of Canada c Gosselin v Qubec A orney General Canadian Journal of

w.
ww

Women and the Law

m
.co
ate
hg
as
w.
ww
m
.co
ate
hg
as
w.
ww

Copyrighted Material