Responding to recent discussions on plans to establish human settlement on Mars and ongoing investigation of life on Mars by NASA, Keina Yoshida and Emily Jones have argued that feminists – feminist international lawyers in particular – have something important to bring to such discussions. This exercise, increasingly becoming more than purely abstract, is very familiar to me. Each year in my undergraduate Legal Theory class I ask students to use the theoretical perspectives they have encountered during the module to design a legal system on Mars. These perspectives range from positivism and natural law to Marxism, queer theory, critical race theory and feminism.

In our discussions students are always very comfortable in engaging the work of the first two of these perspectives – ‘the settlers should enter into a social contract’; ‘they need to implement a legal system made up of rules’; ‘ – no! Law on Mars should be made up of rules and principles’. When it comes to critical perspectives, however, students often get a little stuck. While they identify that critical perspectives would call for a legal system on Mars which embeds equality on grounds such as gender, sexuality, class and race, they struggle to outline how such theories might imagine the nuances of this legal system.

Part of this is of course attributable to familiarity with and the ‘common sensical’ appeal of traditional jurisprudential ideas to law students within the UK legal education system, broadly construed. However, another reason for this under-developed use of critical jurisprudential thought in considering law and constitution-building on Mars is a lack of understanding of the specific tools which critical and, especially, feminist perspectives offer.

Feminism is often perceived as a perspective critiquing the problems of the current system, rather than one that offers foundational building blocks for how a legal system might be constructed from the ground up. This perception, I imagine, is not exclusive to my students, but may also quite conceivably extend to Elon Musk and others pioneering life on Mars.

Yoshida and Jones have, therefore, extended an important invitation to feminist international lawyers to lay down the concrete detail of how feminism might usefully shape law on Mars. There are many building blocks for such which emerge from feminist work. Jones begins this exploration by demonstrating how critical feminist engagement with posthumanism provides one tangible consideration for a feminist-informed legal system on Mars. We might also consider Aoife O’Donoghue and Ruth Houghton’s Manifesto for Feminist Global Constitutionalist Order as offering transferrable lessons for settlement in outer space.

In this post I want to continue this line of thinking by bringing an additional building block into view. Namely, feminist perspectives on alterity. As a general concept, alterity refers to that which is ‘other’. It gestures towards an experience of socio-political ‘otherness’ and, often, exclusion or marginalisation. Alterity is a central concept in much political theory and philosophical thinking. It is detectable in writings as diverse as Jacques Derrida’s differánce, Jacque Rancière’s dissensus, and Ernesto Laclau and Chantal Mouffe’s radical democracy to come.

In terms of feminist engagement with alterity, one key author who provides tools for a gender-aware approach to alterity is Judith Butler. In her thinking on universality, Butler outlines that any dominant universal concept is inherently defined by alterity. In other words, is constituted by that (or who) which it excludes. However, Butler also sees it as possible for alterity to play a role in reworking dominant universals to make them more inclusive. This occurs when a competing universal is advanced in democratic activity, one which challenges the dominant’s status and reveals that which it excludes. In Butler’s approach, dominant and competing universals enter into translational dialogue, giving and receiving from each other, to generate a new universal which is more expansive and attentive to alterity. Of course, the new universal is never final. Rather, this process of translation responding to alterity continues in democratic settings without end.

Butler has made it clear that this model of cultural translation is capable of grappling with gender alterity. For example, Butler characterises the ‘Women’s Rights Are Human Rights’ campaign of the 1980s-90s as an example of such translation whereby the dominant ‘human’ was reworked based on a challenge from what, and who, it excluded. Through such reflections, she appears to suggest that the concept of alterity, and constant attention to it, is relevant to legal systems. Dominant legal universals such as the legal subject, ideas of equality, or conceptions of rights can be critiqued and reworked using the model which she outlines.

How, then, might Butler’s feminist-informed approach to alterity provide tools for feminist constitution and legal system building on Mars? Following the insights above, any healthy legal system must be attentive to the limits of its universals, and must build in processes whereby those limits can be regularly revisited. Alterity – related to gender or otherwise –  is an inevitable feature of our socio-political life, its eradication always remains to come. But through this very fact, we must be attentive to it in an ongoing way. Beginning life on Mars must proceed from the realisation that concepts like ‘equality’, ‘justice’ and ‘rights’ will always be incomplete, and legal actors exist in a democratic context to constantly scrutinise their limits and provide fora where such might be translated anew.

These fora may include courts and legislatures, but they also may involve establishing a more direct link between legal and political activity. For example, enhancing understanding of political and grassroots activity as influencing how law and legal concepts should be understood, or expanding democratic consultation and deliberation around the creation of law and its reform. Similarly, if a conception of human rights were to be established on Mars, Butler’s approach might be adopted as a conscious model through which human rights might be claimed and constantly developed.

Building in this attention to alterity and its translation at the very beginning ensures that human life on Mars is grounded in feminist-inspired attention to social exclusion, marginalisation and the ongoing struggle to challenge such in whatever social and legal system we live within. Alterity will exist on Mars. The feminist challenge is not its complete eradication, but ensuring an ongoing response to it.

Rather than just a critique of existing structures, feminist approaches to alterity may offer foundations for a new legal system. This is one which is more conscious to competing universals to be articulated and feed into legal processes. The conversation on other, complementary feminist building blocks must continue.