On Feminist Legal Scholarship

Let’s just assume that we all know what ‘Feminist Legal Scholarship’ is more or less about. We could simply say that a feminist legal scholar is a legal scholar that is a feminist. Wouldn’t that be wonderful? If we could just simplify everything, and accept that the easiest answer is the truer? Yet, in a Socratic paradigm, one question gives birth to many others, like: ‘what a feminist is?’ ‘what is legal scholarship?’ and so on and so forth, and “en oida oti ouden oida”.

By exercising logic, we can apparently explain what a legal scholar does, and what a feminist is supposed to be and do. It may also be easier to argue that the combination of these terms refer to a type of legal methodology that is feminist-friendly; or better put, that this “mysterious” legal trend has the scope of feminism as the telos to each legal effort – by assuming that the scope of feminism is justice & fairness, since the essence of this idea is equality. Well, one could also argue that by employing the terms “feminist jurisprudence”, we refer to legal experts who produce knowledge that is meant to contribute into the legal science by utilizing feminist theory’s methodological tools, as well as promote the scope of the feminist movement. While, allow me to say that ideally feminist legal scholarship involves all the above to a certain extend, depending on the subject matter of the legal research.

However, this entire hypothesis presupposes existing knowledge, able to guide us in pointing out the particular scope of the specific feminist movement we aim at utilizing. The emerging keyword is “methodology” again, or the lack of it. Since none of the above can satisfy the need for specific guidelines on methodology, a need stressed by the majority of legal scholars out there; whether they consider themselves feminists or not.

The truth of the matter is that if you ask five different feminist legal scholars what is it that this style of law is all about, you are very likely to receive five different answers. The internalized reflex of being politically correct is a syndrome well spread among legal scholars, while we may not even be conscious of that need of ours. Thankfully, though, we have philosophy to show us the way and lead us into the light once more. The moment we start to critically question norms, and dispute epistemological patterns, this is the instance that philosophy comes into play.

So, the problem as I see it, derives principally from the fact that legal scholarship can be constructed only in respect to specific rules – while the term “feminist” refers to an abstract political idea that has been adopted and thus interpreted by contradictory groups to suit their needs. So, we can observe the legal and the political, struggling to co-exist in a formation where the practical implications are deeply rooted in the contradiction of the specific subject of law and the abstract idea of the political. Therefore, we are witnessing once more the ancient clash of these fraternal twin ideas.

Through the prism of feminist jurisprudence, law is viewed as being an essential actor in the historical subordination of women. So, in simple terms, a feminist legal scholar’s ultimate objective, would be to expose the ways in which law contributed in the previous subordinate status of women. Under this logic, the scope of feminist jurisprudence is devoted to shifting women’s position through a modification of the legal contact to gender.

This line of reasoning, views law in many instances, as the product of centuries of masculine legal thought. What that means is that law reflects in a variety of ways the patriarchal morals that by definition are diminishing the value of women to means for the dominant male’s ends. I am talking about sexist laws, like the rule of thumb for wife-beating, that allowed a man to beat his wife with a stick, as long as it was not thicker than his thumb. Does that sound as radical feminism to you? Wait I have better arguments to put on the table. Take for example the famous “reasonable man test”, and notice the sexist language used in law. Observe the legal literature, and realize that in every hypothetical case, the legal scholars when referring to a human being, are always using “he”, as if “he” is the only subject of law. Take for example the crime of rape, which just like heterosexuality, centers its definition on penetration.

As philosophy teaches, truth is often hidden in language, (See: Heidegger, 1962, p. 261) and the language we use today, is indicative of the criterion used for determining the status of women. I am referring to the simple exercise of comparing it with the status of men. What I mean to argue, is that feminists constantly use the term equality, but what do they mean can only be known by comparing the status of women with the status of men. It is unfortunately impossible to escape from this binary, when dealing with the feminist idea. It makes sense to add in this train of thought the words of Derrida, who famously argued that all we are able to understand is differences.

The need to engage with ‘feminist legal scholarship’ is today more evident and justifiable than ever. As I came to understand it, ultimately refers to: Consciousness raising; Asking the “woman question”; Challenging patriarchy and the legal norms deriving from it; Deconstructing the subject of the legal claim and the traditional binaries as well as hierarchies in law; Addressing gender-based violence; Restoring history through the collection of facts that uncover the cases of female victims; and last but not least addressing that traditionally law has been a male construct, and that the subject of law is male. “For women to be included as subjects of law, their voices have to be listened to and, more importantly, to be heard and acted upon. For too long the law, legal theory and jurisprudence has presented itself as a rational objective ordering of gender-neutral persons, while at the same time subconsciously addressing only the essential male.” (See: H. Barnett, 2013, p. 4).

It is lady-justice-statueinteresting to observe that Lady Justice holds a weighing scale in struggling to bring justice into this world. Justice as well as equality, is portrayed as the balance between different claims. From this standpoint, feminist legal scholars would argue that traditionally the value of women is weighed against to that of men, and justice has yet to be achieved. It seems impossible to escape this comparison, however it seems to me that this way of evaluating and assessing the value of people creates more problems than it actually solves. Comparing human beings is by definition contrary to the synonymous ideas of Justice, Fairness and Human Rights. Nonetheless, we cannot stay in denial, and refuse to acknowledge the persistent inequalities imposed on women simply because of their gender, even today. Because if we take a good look around us, from the place we work and micro-narratives, to overall society and macro-narratives, we do not need to be statisticians to realize that women do not enjoy real equality to men, neither are free from gender-based discrimination.

There is still work to be done!

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