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Feminist Philosophy of Law

First published Tue May 19, 2009; substantive revision Mon Mar 11, 2013

Feminist philosophy of law identifies the pervasive influence of patriarchy on legal structures, demonstrates its effects on the material condition of women and girls, and develops reforms to correct gender injustice, exploitation, or restriction. To these ends, feminist philosophy of law applies insights from feminist epistemology, relational metaphysics, feminist political theory, and other developments in feminist philosophy to understand how legal institutions enforce dominant masculinist norms. Contemporary feminist philosophy of law also draws from diverse scholarly perspectives such as international human rights theory, postcolonial theory, critical legal studies, critical race theory, queer theory, and disability studies. Addressing the goals of feminist philosophy of law requires theory development, conceptual analysis, and conceptual revision. romoting freedom and equality for women reflects a profound shift in basic assumptions about the nature of women and their proper place in the world! a shift from inequality to equality of the sexes, along with re"examination of what equality itself requires. #iven the scope and detail of this change, much feminist legal theory proceeds on two levels! one pragmatic, concrete, and particular, and the other conceptual and ultimately visionary. $ome of this writing appears in philosophy journals and monographs, but much also appears in generalist law reviews and the many specialist law journals devoted to issues of gender and justice. This article begins with a brief overview of fundamental themes of feminist legal theory, followed by discussion of the evolution of the concept of equality and needed institutional change in several substantive areas! political equality% marriage, reproductive rights, and commodification of the body% protection from violence% and economic rights.

&. Fundamental Themes in Feminist 'egal hilosophy o &.& The (ule of 'aw
o o o o o

&.) *quality and +ifference &., (easonableness in 'aw &.- ublic and rivate &.. /uman (ights &.0 1ultiple 1ethodologies

). Formal *quality and *qual Citi2enship ,. 1arriage, (eproductive (ights, and Commodification of the 3ody

-. 4iolence Against 5omen .. *quality in $ocial and *conomic 'ife 0. Conclusion 3ibliography 6ther 7nternet (esources (elated *ntries

1. Fundamental Themes in Feminist Legal Philosophy


7n philosophy of law, as in feminist theory more generally, methods, presumptions, and approaches vary considerably. (adical, socialist and 1arxist, relational, cultural, postmodern, dominance, difference, pragmatist, and liberal approaches to feminism are all represented in and provide differing insights to feminist legal philosophy. 1oreover, feminist legal theory has developed over time, with concerns such as equality, dominance and difference, and diversity and globali2ation prevailing at different points 8Chamallas )99,:. +espite all the differences of focus, emphasis, or approach, certain common themes prevail. Common normative assumptions include that all human beings are of equal moral worth, and that beings of equal moral worth are entitled to equal treatment under the law, however this might be understood. Feminist philosophy of law also shares certain basic criticisms of traditional views of the nature of law, of patriarchal assumptions as reflected in law, and of the problems that women have in securing equal justice under law 8$mith, &;;,, ch. 0:. /ow legal systems fall short and what these systems might do to improve raise complex issues about the meaning of equal treatment under law and how it might be achieved. For example, feminist philosophers of law may disagree about the extent to which law should attempt to prevent dominance within intimate relationships and is complicit in oppression if it does not. +ifference and liberal feminists struggle with the meaning of equality under law and whether achieving equality might in some circumstances require different treatment.
1.1 The Rule of Law

1any standard accounts of the nature of law hold that law presumes and reflects a world"view in which the goal is to achieve a set of presumptively coherent propositions. 5hether this aim is understood as <the rule of law= 8see, e.g., the entry on Friedrich /aye>:, as the <internal morality of law= 8see,

e.g., the discussion of Fuller in the entry on natural law theories:, or as <the soundest theory of the settled law= 8see, e.g., the discussion of +wor>in in the entry on interpretation and coherence in legal reasoning:, or in other similar terms, legal systems embody comprehensive and generally long"standing conceptual systems. The coherence of any particular legal system can always be challenged, but on this approach an aspiration of any legal system is coherence. And 8at a minimum: the appearance or illusion of coherence is maintained by requirements of consistency, including following precedent, treating li>e cases ali>e, and maintaining judicial impartiality. Feminist critics point out that conceptuali2ing the rule of law in terms of coherence and consistency tends to reinforce and legitimate the status quo and existing power relationships 8$cales )990% 1ac?innon &;@;:. 7ndeed, one primary purpose of law as traditionally understood is to promote stability and order by reinforcing adherence to predominant norms, representing them not only as the official values of a society, but even as universal, natural, and inevitable. 'aw is thus seen as setting the official standard of evaluation for what is normal and acceptedAwhat is required, prohibited, protected, enabled, or permitted. 7t is accordingly represented as objectiveAfor example, as compelled by precedent and not just a matter of opinion 8see, e.g., 1ac?innon )990, &;@;% $mith )99., &;;,% (hode &;;B% 1inow &;;&:. 4iolations, wrongs, injustices, harms, or infractions are by definition deviations from law, and typically also deviations from the status quo. The status quo is the invisible default standard of law. From these observations, feminist philosophers of law have concluded that law ma>es systemic bias 8as opposed to personal biases of particular individuals: invisible, normal, entrenched, and thus difficult to identify and to oppose 81inow &;;&% (hode &;@;% 1ac?innon &;@;:. $uch systemic bias may be accepted not only by actors within the legal system such as judges but also by its victims as well as its beneficiaries. A primary tas> of feminist philosophy of law is conceptual revision to identify such bias wherever it occurs within the legal system 83artlett &;;9% 1ac?innon &;@;:. Feminist philosophers of law judge the status quo thus enforced as patriarchal, reflecting ancient and almost universal presumptions of gender inequality. This is not a conceptual necessity% law need not be patriarchal. 'aw does, however, reflect power relationships within societies. Throughout history, and in virtually every society, men and women have been viewed not only as different, but also as unequal in status and in power. 5omen were typically cast as opposites to men within an overarching set of dichotomies! men being considered rational, aggressive, competitive, political, dominating leaders% and women being seen as emotional, passive, nurturing, domestic, subordinate followers. 4ersions of this set of assumptions have been widely and pervasively incorporated in long"standing institutions from politics and economic arrangements to educational and religious institutions, to aesthetic

standards and personal relationsAand law is no exception 81ac?innon )990, &;@;% $mith )99., &;;,% 6lsen &;@,:.
1.2 Equality and Difference

A central tas> of feminist philosophy of law is articulating what equality requires against this bac>ground of patriarchy% however, feminists ta>e differing approaches to this problem. For liberal feminists, a primary tas> is achieving the principle of procedural equality articulated by Aristotle that li>e cases should be treated ali>e and different cases differently in proportion to their differences. For other feminists, this focus on procedural justice raises the question of whether there are differences between men and women that the law may justifiably ta>e into account. For many centuries men and women have been viewed as significantly different, and since they are different it has been thought appropriate and justified to treat them differently in law. 7ndeed, one of the reasons for the entrenchment of sexual inequality is precisely the observation that some differences between men and women are real! only women can become pregnant and bear children. /istorically, feminists contend in a variety of ways, such differences were greatly exaggerated, as was their significance and the extent to which they could be attributed to biology rather than being socially constructed. For feminist philosophers of law, an ongoing set of issues has concerned which differences, if any, law may ta>e into account consistently with equal treatment. There are biological differences, such as pregnancy and birth. There are statistical differences! men are taller and stronger% women have longer life expectancies. There are historical differences! women but not men have been systematically subordinated because of their sexAunable to vote, to own property, or to enter into legal contracts. 5omen are much more at ris> to be raped. 5omen are much more li>ely to be responsible for caregiving in the family. 5omen are li>ely to earn less for the same wor>, and li>ely to be segregated in jobs that pay less than wor> that is male dominated. The feminist challenge is whether and how to ac>nowledge certain differences without entrenching stereotypes, reinforcing detrimental customs, promoting sexist sociali2ation, or incurring bac>lash 8(hode &;;B% 1inow &;;&:Aand without compromising equality. This challenge identifies <dilemmas of difference= 81inow &;;&:, which occur when a decision is based on unstated norms that presume the status quo as universal and inevitable when in fact these norms reflect a particular point of view. The structure of a difference dilemma is this! there is a difference, such as that only women become pregnant or that an employer has a history of refusing to promote women. Ta>ing this difference into account seems required for equal treatment! otherwise, women will face disadvantages that men will not. 3ut ta>ing this difference into account also seems to instantiate

unequal treatment, giving women special benefits 8time off wor>, fast"trac> promotions: men do not have. $o it seems there is no way to achieve equality in the face of differences such as these. Countering a difference dilemma requires undermining the way the issue was initially formulated 8more accurately, mal"formulated:. Feminist critics of the view that pregnancy leave is a special benefit, for example, point out that the only way these benefits can be judged special is if the norm against which they are being evaluated is male. 7f the standard was female, or even human, such benefits could not be considered special 8or even unusual: since they are far more commonly needed than, say, benefits for a bro>en leg, or prostate cancer 8neither of which are considered special benefits:. The underlying male standard is invisible because it is traditional for most wor>places, and pregnancy leave would require a change to these norms% but in the view of feminist critics, this underlying standard needs to be exposed as male because in fact it is not equal. 8(hode &;;B% 1inow &;;&: 6nce male norms are recogni2ed as only thatAmale normsAthe presumption of difference must be corrected. 7f the need for correction is ta>en seriously, then legal recognition of difference cannot by itself imply unequal treatment. An assertion of difference is a factual assessment. *quality is a political 8or moral: standard. 6ne does not automatically follow from the other. Thus formulation of the debate in terms of sameness or difference must be transcended by understanding equality. 8$mith )99.% (hode &;;B% 1inow &;;&:.
1. Reasona!leness in Law

'egal standards of reasonableness are another area where feminist philosophers of law strive to reveal male norms. 7n areas of the law from criminal law 8would a reasonable person believe that the threat of harm was sufficient to require the use of force in self"defenseC: to tort law 8did the defendant exercise reasonable careC: to contract law 8what are reasonable commercial standards of fair dealingC: to employment discrimination 8was she reasonably offended by the conduct of others at wor>C:, reasonableness standards play a major role in law. Traditionally, the standard was that of the average reasonable man, a formulation that overtly indicated its gendered nature. Today, the standard is more li>ely to be formulated as that of a reasonable person, but feminists continue to demonstrate how this standard reflects male norms. Feminists have also proposed the standard of an average reasonable woman, which achieved one success in court, Ellison v. Brady, ;)F.)d @B) 8;th Cir. &;;&:. /owever, the presence of a separate legal standard may be critici2ed as unfair or as fragmenting the law into a variety of subjective perspectivesAalthough this conclusion is also subject to critique as an illustration of the difference dilemma. 1ore recent feminist attention has been directed towards de"legitimating masculinist perspectives of reasonableness and achieving equality in the understanding of reasonableness

8Chamallas )9&9:. Areas of law such as tort 8Chamallas and 5riggins )9&9: and contract 8Threedy )9&9: have been reassessed as reflecting bias in their structure, the types of claims they recogni2e, their understanding of injury, and the compensation they provide.
1." Pu!lic and Pri#ate

Another central theme in feminist philosophy of law is the role of the publicDprivate distinction. For liberals, including liberal feminists, there remains a domain of private life that should be reserved for individual choice. (adical feminists raise the concern that patriarchy and sexual dominance pervade private relationships. 'egal structures that permit or reinforce dominance within intimate relationships are thus deeply problematic and must be overturned. 6ne area where this debate has ta>en shape among feminists is the law of prostitution 8see the discussion in the entry on feminist perspectives on sex mar>ets:% some liberals claim that when prostitution is fully voluntary, it should be legally permitted, and the role of law is to prohibit coercive forms of the practice. 6ther feminists argue that legali2ed prostitution simply allows sex traffic>ing to flourish in its shadow 8+empsey )9&9: or more comprehensively that paid sex can never be fully voluntary 81iriam )99.:. An ongoing area of theoretical exploration among feminists is the weight and scope to be given to any distinction between the public and the private in reproduction, family structures, wor> arrangements, sexual relationships, and the li>e.
1.$ %uman Rights

The role of human rights theory is another central area of concern for feminist philosophers of law. 3y the end of the )9th century many societies had officially rejected sexual inequality in law, at least as a matter of basic human rights. /uman rights are now said to apply equally to women and equal protection of the law is seen as applying equally to men and women 8Enited Fations Convention on the *limination of All Forms of +iscrimination Against 5omen GC*+A5H &;B;:. Feminists hail these developments but remain concerned that in many societies commitments to human rights are shallow and laws reflecting patriarchal environments and cultures continue to thrive and flourish. 1oreover, some feminists are directly critical of the role of rights. Feminists associated with the critical legal studies movement, for example, see rights as potentially mas>ing underlying relationships of power and domination 8$cales &;@0:. 6ther feminists, such as those associated with critical race theory, voice the concerns that dominance feminists assume an essentialism that silences the voice of African"American women 8/arris &;;9: and that rights may provide crucial protection to victims of discrimination and oppression 85illiams &;;):. Feminists using an analysis of the intersection between race and sex 8so"called intersectionality theory: discern essentialist

tendencies that gloss the complexities of identity in the wor> of both radical and liberal feminists 8/arris &;;9:. $imilar debates concern rights in international law with liberal feminists defending the gains achieved through the international recognition of human rights and critical theorists joining with some third world feminists to decry the structural bias of international law and the role of rights in continuing to mas> oppression 8*ngle )99.% 6tto )99.:.
1.& 'ultiple 'ethodologies

1ethodologically, feminist philosophy of law draws a great deal from feminist wor> in other areas of philosophy and has bro>en new ground as well. Feminist epistemological discussion of the nature of first person standpoints and the importance of understanding them has informed discussions of victim protection, for example 8$chroeder &;;&:. 5or> in relational metaphysics has helped in analysis of how legal institutions should reflect connections between people, including care relationships 81cClain &;;)% 5est &;@@:. 1any feminist writers in this tradition have ta>en pains to distance themselves from simplistic essentialist assumptions about the way women thin> or the role of women as caregivers, emphasi2ing instead the importance of context to understanding. Feminist theory has inspired and deployed new forms of legal realismAthe view that law reflects its social contextAto critici2e the frequent formalism of approaches to law in terms of economic relationships and rational choice 8Fourse I $haffer )99;:. Feminist scholarship on human rightsAviewed in the abstract as universalAhas also emphasi2ed the importance of lived experiences in context 8/alley et al. )990:. +ebate about whether all forms of prostitution should be prohibited, or whether there is room for a liberal view that would distinguish coerced traffic>ing from voluntary sex wor>, is but one illustration of such scholarship. 'egal archaeology, understood as exploration of cases in their full context, is a method developed by Threedy 8)9&9: and others for critici2ing the formalism of much legal analysis and revealing the extent to which gendered norms permeate legal doctrines such as defenses in contract law. Feminists interested in critici2ing paradigms of rationality and brea>ing down supposed divisions between reason and emotion have questioned whether there is a too"ready willingness to reject emotions in supposedly non"gendered contexts such as the law of evidence where the rules are constructed to eliminate appeals to emotion as irrelevantAbut a too"ready acceptance of emotion in contexts where women are stereotyped and disadvantaged, as with the $upreme CourtJs assertion that the state has an interest in protecting women from partial birth abortion because they might later come to regret their decisions 8Abrams I ?eren )9&9:.

2. Formal Equality and Equal (iti)enship

The mid"twentieth century womenJs movementAso"called second wave feminismAbegan as a liberation movement 8see the entry on feminist political philosophy:. The idea was that women are entitled to be free and equal citi2ensAas free as men to participate in their societies, to pursue their ambitions and determine their own lives. A starting place for achieving equal citi2enship was political equality. +espite the facts that political equality had been defended by the $eneca Falls Convention in &@-@ and by and /arriet Taylor 1ill in the <*nfranchisement of 5omen= in &@.&, and that womenJs suffrage had been achieved in the Enited $tates and in many other countries by the early )9th century, at mid"century political equality remained a radical idea that led to some radical legal reform. And it still is a highly contested concept. 5hile the basic right to political equality is ta>en for granted in many societies today and is explicit in the norms of international law 8C*+A5 &;B;:, in some cultures women are still not equal citi2ens. $ome are unable to vote, hold office, attend school, engage in business, or travel about freely. $ome do not control their own reproductive lives, or access to their bodies, or the opportunity to pursue any life ambition other than marriage, or who their marriage partner will be. $ome women have little control over any major decisions about their lives. 7n some societies they are banned by law from ma>ing all or some such decisions, and thereby are rendered dependent on those who can. Another way to put this point is to recogni2e that all the pursuits named above 8and many others as well: are legally articulated andDor legally authori2ed activities, and the law of some societies ma>es women ineligible to participate in them. 6ne of the most fundamental goals of global feminist jurisprudence is to oppose and reform barriers to womenJs participation in the public sphere. The basic premise is that unequal citi2enship constitutes second"class status and there is no justification for imposing second"class status on women. *qual citi2enship is a presumptive value in the modern world. Feminists argue that anyone who wishes to maintain that half the human race is not entitled to it should at least bear the burden of proof 81ac?innon )990:. roblematically, in law the burden typically lies with the reformer and precedent favors the status quo. 5ith respect to citi2enship, feminist jurisprudence critici2es views that would grant citi2enship to women but do so unequally, that is, without also granting women the same rights as men. 7nternational recognition of human rights has been particularly important as a means to achieve equal citi2enship. Feminist legal scholars have been wor>ing on issues of womenJs human rights internationally for many years, at least since the Enited Fations was founded. C*+A5, adopted in &;B;, sets the international human rights standard against gender discrimination. *specially since the &;@9s, these efforts have

been aided by mass communication, international travel, and the 7nternet 8(hode I $anger, )99-:. 7nternational conferences have promoted dialogue and exchange of ideas on issues ranging from honor >illing to labor law. $ome international groups 8both F#6s and government"sponsored: are specifically focused on 8what are often called: womenJs issues, such as violence against women and girls, womenJs economic viability, or womenJs health and reproductive issues 8see, e.g., the lin>s in the 6ther 7nternet (esources $ection to C(' , Futures without 4iolence, #endercide 5atch, /uman (ights 5atch, Fational Fetwor> to *nd +omestic 4iolence, 5ild for /uman (ights, and 5omen5atch:. The collection of data by social scientists is more accurate and inclusive than ever in history, thus providing better foundations for analysis. Finally, collaborative research and comparative analysis of diverse legal systems and social customs have been increasing for at least thirty years, and in virtually every society more women are available to engage in these efforts and more men have become interested in them 8see Kain )99.% (hode I $anger )99.% $tar> )99-% Fussbaum I #lover &;;.% eters I 5olper &;;.: The cumulative result has been to globali2e both the issues and the approaches to them. roviding a global perspective encourages conditions favorable to the conceptual revision needed for legal reform. As nations join and sign international conventions and treaties that increasingly include rights for women, feminists are supplied with a foundation from which to argue that local laws must comply with these international commitments. For example, signing the +eclaration on the *limination of 4iolence Against 5omen implies that a nation is committed to enacting and enforcing laws against violence toward women. (atifying the E.F. +eclaration of olitical and Civil (ights implies that a nation is committed at a minimum to universal suffrage and more generally to equal citi2enship. 3ecoming a state party to C*+A5 affirms support for equal human rights and for elimination of all forms of discrimination against women. Although a number of states expressed reservations in their acceptance of C*+A5, the E$ did not. Thus, international law and treaty commitments can be used to argue for national or local legal reform 8$chneider )99-% eters I 5olper &;;.:. Let even if the goal of stated legal equality is achieved, law provides no protection unless it is enforced. Feminist legal critics have argued that laws and treaties that exist on paper frequently are ignored in fact when they apply to women and contradict local customs and beliefs 8/usseini )99B% 1ac?innon )990:. An additional concern is that formal acceptance of treaties may mas> failures to implement treaty requirements 8/athaway )99.: 1oreover, the meaning of equal citi2enship beyond equal political participation remains contested. An initial liberal feminist approach was to argue strictly for formal equality, that is, to deny that any sexual difference

was ever relevant to legal doctrine. This strategy, often called the assimilation model, was an effective strategy for challenging overt legal restrictions on women and legally enforced exclusion 8Taub I 5illiams &;;,% $mith &;;,% 3artlett I ?ennedy &;;&:. For example, in the E$ feminist lawyers argued successfully that statutes treating women differently for purposes such as estate administration or age of majority violated constitutional equal protection, following the initial lead of (uth 3ader #insberg as director of the AC'E 5omenJs (ights roject in (eed v. (eed ( 0 !.". #1 (19#1$$. At its most comprehensive, this was the approach of E$ feminists see>ing passage of the *qual (ights Amendment 8*(A: to the Constitution, an amendment that would have put sex on the same fundamental legal footing as race. Achievement of equal citi2enship viewed as the removal of explicit legal barriers leaves open further questions about whether equality requires more. *ven in the Enited $tates, much legal room remains for continuing controversy. The effort to establish full constitutional equal protection through the *(A foundered on assertions that differences matter to issues as diverse as military service, child support, or bathroom utili2ation 81ayeri )9&&% Frug &;;):. This argument fueled conservative opposition to the *(A, but these issues were raised in different forms for feminists as well. Feminists emphasi2ing class differences and labor rights were concerned that hard"won benefits for women could be jeopardi2ed. Critical race theorists were concerned that formal equality for women failed to understand the complex intersectionality of discrimination against women of color 81ayeri )9&&:. Critics of patriarchy insisted that histories of discrimination were critical to understanding the functioning of male norms in social institutions from the family to employment to political structures. At present, in E$ constitutional law what equal protection requires when sex is a category has not been modeled on the strict scrutiny accorded race as a category% sexual differences concreti2ed in law must only pass some level of heightened scrutiny as to their rationale to remain constitutionally accepted. +ebates continue about whether achieving non"discrimination is sufficient for equality or whether more is required to root out the effects of patriarchal assumptions. Across the globe, there are similar debates about what more is required beyond formal equality of citi2enship. C*+A5Js 8&;B;: requirement for the elimination of <all forms= of discrimination against women has been a framewor> for these debates 875(A5"A )9&):. These debates are complicated, however, by concerns that at least certain ways of understanding human rights norms incorporate so"called western values and are incompatible with legitimate cultural differences. 5hether theories of rights can be formulated in a manner that accommodates cultural differences has been given considerable attention by feminist political philosophers 81oo>herjee )99;% Ac>erly )99@: and is centrally relevant to the understanding of international human rights norms and their role in law.

. 'arriage* Reproducti#e Rights* and (ommodification of the +ody


A common presumption in both litigation and politics is that the side that controls the way an issue is formulated is more li>ely to win the debate. 6ne problem for feminist legal reform is that the language of law itself tends to reflect and perpetuate a status quo that disadvantages women and hides discrimination against them. A further problem is that the claims of tradition and custom as well as their justification are often obscured by apparently religious or moralistic language. (eferences to the sanctity of life, the sacred bonds of marriage, or the honor of the family are common examples. /owever, it is not only language that ma>es issues of basic reform so difficult and delicate. 'anguage is symptomatic of the thin>ing about customs or institutions that are ta>en to be fundamental and thus crucial to a particular way of lifeAand consequently, as dangerous to change 8or reform:. /ence, reform proposals that challenge traditional arrangements are often emotionally decried as attac>s on the family, the morality of the community, or accepted ways of life. $uch language can be found in the rhetoric of opposition to movement towards the legal recognition of same sex relationships, civil partnerships, and same sex marriage. 6fficial recognition of same sex marriage is an extension or expansion of the traditional idea of family. Let opponents attac> same sex marriage as destroying the family. 'aws in the E$ that ban same sex marriage or restrict the legal category of marriage to one man and one woman are labeled <+efense of 1arriage= acts 8+61As: not the prohibitions that they are. Feminist scholars have identified several problems with such manipulation of the language. First, it is based on or at least incorporates a false presumption, that preserving the institution of marriage requires restricting it to one man and one woman. This is clearly false since the institution of marriage exists in jurisdictions that do not restrict it in this way 8i.e., those that allow polygamy and the growing number of jurisdictions in the Enited $tates and across the globe recogni2ing same"sex marriage:. Furthermore, the +61A label, if accepted as a correct formulation of the issue, ends debate before it begins, thereby begging the question against opponents. Clearly the language in which the issues are formulated ma>es a difference in how they are perceived 8/usseini )99B% 1ir"/osseini )990% each )99)% (hode &;;B% 1inow &;;&:. 1oreover, viewing the issue of same"sex marriage in traditionalist terms obscures important debates within feminism about marriage itself. 6n the one hand, equality would seem to require extending the institution of marriage to same"sex partners, if it is to be available to opposite"sex partners and there are no relevant differences between the two. This is a predominant liberal view. 6n the other hand, to the extent that marriage institutionali2es problematic forms of dominance, it would seem a mista>e to extend it at allAor at least to

extend it without significant substantive changes in the institution 8?im )9&9:. Assimilationist paradigms both recogni2e the pain of exclusion but fail to problemati2e the role marriage plays in institutionali2ing economic and other forms of inequality 8(obson )99):. (eproductive autonomy is a particularly telling example of the significance of the use of language to control debate. 7t is a plausible claim that women cannot be free and equal citi2ens if they do not control their own bodies, and this is the position ta>en by most feminists. 1uch feminist research has detailed the history and debated the implications of current laws and policies that have allowed or constrained womenJs reproductive freedom 8see, e.g., each )99)% (hode &;;B% Callahan I ?night &;@;% Cohen I Taub &;@-:. aternalistic attitudes towards women have been identified as shaping the structure of the $upreme CourtJs %oe v. &ade 8-&9 E.$. &&, 8&;B,:: decision and subsequent efforts by states to regulate or restrict abortion in the name of protecting womenJs health 8Appleton )9&&% 'aufer"E>eles )9&&:. *ven feminists who personally oppose abortion, or who are critical of some abortions 8e.g. those evidencing disability discrimination: typically argue that it should still be legal. $ome argue that controlling oneJs own body is a necessary condition for any other freedom 8see, e.g., each )99)% *strich )99&% (hode &;;B% 6lsen &;;,:. Let together with paternalistic attitudes about the need to protect women from their emotionality and irrationality in the reproductive process, traditional views of womenJs reproductive roles have shaped law and policy. 'aws permitting abortion remain under attac> and are in some jurisdictions becoming more restrictive. The abortion issue also raises questions about how law should deal with issues of deep moral disagreement within society. 7n the Enited $tates, the protection of womenJs reproductive freedom from restriction by government is based on the right to privacy, understood in terms of liberty. First applied to reproduction in &;0. in the case of 'ris(old v. )onne*ti*ut8,@& E$ -B; 8&;0.:: the constitutional right to privacy protects individuals from state interference with certain decisions affecting their private lives, and particularly decisions about marriage, family, sexual intimacy, and procreation. 5hile 'ris(old itself is jurisprudentially controversial because the right to privacy is not explicitly stated in the Constitution, the constitutional right to privacy in general has become a settled part of American law that is strongly supported in public opinion and highly unli>ely to ever be reversed. 7t reflects a commitment to individual freedom 8or family autonomy: that has been widely recogni2ed as a fundamental right in many societies around the globe and core to liberal societies 8see each )99)% +eCew &;;B% (hode &;;B% Allen &;@@:. 6n the other side of the abortion debate from womenJs reproductive liberty is the question of the moral status of the fetus. /ere, too, feminists have

documented the critical role of framing language. %oe v. &adeJs extension of the right to privacy to a womanJs decision to terminate a pregnancy by elective abortion set off a firestorm of protest and debate that continues over forty years later. %oe is best viewed as a compromise that attempts to balance two contradictory interests! as the Court laid it out, a womanJs interest in controlling her own body and reproductive life versus the stateJs interest in protecting potential life 86lsen &;;,:. 3ut whether an interest in protecting potential life is the same as an interest in protecting life is exactly what is at sta>e. 'abeling the fetus a <pre"born infant= or a <person=Aas some of the attempts to pass so"called personhood amendments have tried to doAbegs exactly this question. 7n %oe, after surveying the many different views about abortion, contraception, the moral status of the fetus 8or its ensoulment according to various religions at various times:, the Court concluded that it had no basis for determining the status of the fetus. Let, the Court asserted that the fact that the fetus is a potential human life is sufficient to support a state interest in protecting it. An argument can be constructed for this position within the context of %oe. 7n %oe the state interest is not actionable until after the fetus is viable in the sense that it can survive outside the motherJs womb, and thus, at least has some claim to be considered a separate individual. $o it is arguable that at that point the state may have an interest in protecting it, as the state may have an interest in protecting the life of any individual. 1any feminists also agree that the state has an interest in protecting the fetus to the extent that it will be born aliveAthat is, that the state has an interest in protecting continuing pregnancies against fetal harm, including harm inflicted by the pregnant woman herselfAalthough feminists also recogni2e that this interest must not be seen to legitimi2e problematic coercive or paternalistic interferences with pregnant womenJs liberty. 7n more recent cases the E$ $upreme Court has held that the state interest in protecting potential life may begin at the moment of conception even though the motherJs interest outweighs it 8+lanned +arenthood v. )asey, .9. E$ @,, 8&;;)::. $ome feminists see this formulation as the tip of a wedge 8 each )99): and indeed later decisions seem to bear out this concern. The $upreme CourtJs most recent word on abortion came in the )99B decision of 'on,ales v. )arhart 8..9 E.$. &)- 8)99B::, upholding the constitutionality of the artial 3irth Abortion 3an Act of )99,. The Act bans what it terms partial birth abortionAlanguage freighted with the imagery of a live"born personAexcept when necessary to save the life of the mother. 7n the decision, the Court weighed substantial state interests in protecting the health of the mother and in preserving fetal life as interests present all along during pregnancy against the burden placed on the womanJs right of reproductive liberty. 6pponents of the Act claimed that its partial birth label concealed the extent of its restriction on pre"viability abortion choices. The CourtJs .M- decision is thought by many

commentators to presage further willingness to grant credence and weight to state statutes restricting abortion. 1any states have passed statutes requiring communications to women about the putative nature and health consequences of abortion, stipulating management of supposed fetal pain, or imposing regulatory requirements on clinics with the asserted aim of protecting maternal health. These statutes invite the Court to restrict %oe further or perhaps to rethin> the decision altogether. 1any of the state statutes, moreover, place such formidable barriers to abortion in practice that it will be effectively unavailable. Feminists point out that analyses of whether such statutes place undue burdens on womenJs rights in terms of formal legal barriers manifest legal formalism that conceals the reality of ongoing oppression or inequality of opportunity. Feminists also critici2e the E$ $upreme CourtJs reasoning in support of the state interest in protecting potential life. 6ne concern is the scope of the supposed interest, for example whether it extends to the sale or distribution of contraceptive devices that prevent implantation after fertili2ation, or that even are claimed to do so in rare cases. Another concern is how any interest in protecting fetal life from the moment of conception can be supported in a secular, liberal state. 7f the answer is that there is some special status accorded to the human embryo or fertili2ed egg that requires its protection from the moment it is fertili2ed, feminists argue, this is a religious view. 7t is an article of faith that any individual is entitled to hold but that should not be enforced upon others through law. Thus, feminists contend, religious beliefs are being smuggled into state laws and the E$ Constitution that have a disproportionate impact upon women. Furthermore, any such laws ought to be invalid in any secular state and are explicitly forbidden by the anti"establishment clause of the E$ Constitution 8 each )99):. 3ut the vague references to protecting potential life, so central to all the $upreme CourtJs decisions on this complex issue, obscure these critical implications and are problematic on many grounds. *ven in a modern, secular, liberal state that is explicitly committed to individual freedom, womenJs fundamental liberties can be obscured and mystified by language and action that uphold and impose longstanding restrictive modes of thought and custom that may not always be recogni2ed as religious in origin but that have no other real explanation. $uch restrictions are often expressed in and defended by the use of religious language 8such as sacred"ness or sanctity: that is applied to controversial religious doctrines as though they were settled, basic and uncontroversial. 8For example, the question of when life begins is a controversial one for Christians. *ven the Catholic Church held different views about it at different times in history. 3ut abortion opponents treat it as if it were religiously settled.: Finally, the aspirational language 8e.g., not fertili2ed eggs or embryos, but potential life or unborn children: tends to obscure the issues and subvert rational argument with emotional appeals.

$ome societies explicitly incorporate religious law into their legal systems, operate dual systems, or are expressly theocratic. 6thers are secular but faced with strong customary elements. To some extent all societies face the problem of customary resistance to reform, as illustrated by the E$ abortion dispute discussed above. 7n nations with a strong religious 8or customary: influence on law, feminists may face difficult issues of how to interpret religious law into language more favorable to womenJs freedom, how to call upon international human rights norms, andDor how to interpret the language of customary law in a way that enables it to absorb feminist reforms over time 8Nuriashi )9&&:. This is a special case of the general problem of entrenchment. 7t may involve several different ways of challenging the religious establishment on matters of interpretation that are 8traditionally: considered settled or fundamental. $ome customary doctrines arguably have no particular basis in religious texts, although they are treated as though they do 8e.g., when life begins:. Furthermore, some doctrines have a very general religious basis 8e.g., women should be modest: but are interpreted to require far more severe or detailed customs 8e.g., women must be entirely covered whenever they are in public:. A further strategy points out that all religious interpretation is selective, so it must be determined whether a passage of text should be considered basic and eternal, or whether it was simply a reflection of particular customs or attitudes relevant to a particular time in history 8e.g., adultery and blasphemy are capital offenses:. $ome innovative wor> has been done on these issues, for example, by exploring the distinction between shari-a 8eternal: law and .i/h 8custom or jurisprudence: in 7slam, and by considering the interplay of dual systems 8Nuriashi )9&&% 1ir"/osseini )99.% (eed I ollitt )99)% Keffrey I 3asu &;;@:. Another topic of extensive discussion among feminist philosophers of law is commodification of the body. 6n the one hand, some liberal theorists urge that if paid sex, paid surrogacy, paid gamete donation, and the li>e can be achieved voluntarily, these are legitimate forms of economic opportunity. To prohibit them is to deprive peopleAprimarily womenAof opportunities that might be of value to them. 7ndeed, if all forms of sexuality, including marriage, were viewed on the model of economic relationships, some argue, equality for women would be furthered 8*rtman )99&:. Feminists critical of this liberal position argue that commodification may misperceive the nature of the body in human life by understanding it as the subject of propertyAdespite the all"too"apparent reality that alternatives to commodification may be worse 8(adin &;;0:. (elatedly, some contend that commodification of the body in practices such as paid surrogacy is inherently exploitative 8+ic>enson )99B:. 1any liberal feminists, too, are opposed to a variety of commodification practices. $ome argue that abolition of even voluntary prostitution is necessary to protect victims of sex traffic>ing, as legali2ed prostitution may mas> continued flourishing of traffic>ing in its shadow 8+empsey )9&9:.

6thers are concerned about the possibility of genuinely voluntary consent in circumstances of poverty or limited opportunities for many women. $everal countries that have legali2ed prostitution, such as the Fetherlands and #ermany, have engaged in vigorous debates about whether legal prostitution is a voluntarily chosen occupation for many, whether legali2ation has bettered the circumstances for prostitutes, and whether legali2ation has been coupled with enhanced enforcement of laws against sex traffic>ing or other sex crimes. 6ther countries, such as $weden, have banned prostitution altogether, spurred by feminist critique of the practice. An ongoing theme in the debates about marriage, reproduction, and the body has been the extent to which these issues should be understood in terms of protecting liberty, and how much they should be understood in terms of protecting equality. For liberal feminists, the extent to which women may exercise uncoerced choice over their bodies and their private lives is the >ey. 7f women choose marriages in which they are dependent economically, ma>e choices about how many children they will have, and spend their lives in uncompensated domestic labor, those decisions should be respected as long as they are not coerced. For other feminists, what is critical is the extent to which even apparently free choices are exercised against a bac>drop of economic inequality or patriarchal dominance. For these feminists, economic dependency and norms of dominance call into question the possibility of genuinely free choice.

". ,iolence -gainst .omen


Fo individual is entitled to inflict gratuitous harm upon another. Fo one should have to live in fear. These are among the few uncontroversial principles accepted in all moral systems% and they form the core of the criminal law in every society. ?eeping peace and order has long been considered to be the fundamental justification for the very existence of the state or legal authority. 1any philosophers have explicitly supported this ideal, even those who argue for limitations on the state. K.$. 1ill, for example, argued that the only legitimate reason for the interference of a state in the affairs of individuals is to prevent one person from harming another. Thomas /obbes argued that peace 8i.e., personal security: is the ultimate political value for which a rational individual would sign on to the social contract justifying state power to protect the security of every man from the potential threat of every other 8see the entry on/obbesJ moral and political philosophy:. And 1ontesquieu defined political liberty as the tranquility of mind that comes from not being subject to fear for oneJs safety. To achieve such tranquility of mind he proposed the separation of 8governmental: powers to retard the abuse of power that could so threaten the security of citi2ens. From Confucius and 'ao T2u to 1ohammed or #andhi, and from the Ten Commandments to the Code of /ammurabi, personal securityAfreedom from

fearAis an uncontroversial value that the state is expected to secure and maintain. Entil the )9th century, however, these commitments did not protect women from one of their most common sources of danger! their husbands, lovers, relatives, friends, or employers. 7ndeed, for all of history these most common threats to the personal security of women were not recogni2ed as threats at all and the most common harms were not recogni2ed as harms. 7nstead, they were frequently ta>en to be inevitable or justifiable. Fot surprisingly, a great deal of feminist legal scholarly attention and reform effort has been directed to revealing and changing the many ways in which law fails to protect women and girls against rape 8including date rape and marital rape:, domestic violence, sexual harassment, and other forms of abuse. The continuing extent and seriousness of violence against women has always been denied, but at this point in time it is irrefutably established. Although some countries refuse to collect official data and the nature and incidence of such violence varies widely by culture, many studies indicate that no society is exempt. The )9&) Enited Fations 1illennium +evelopment #oals (eport observed that although equal numbers of boys and girls are now attending school across the globe, violence against women continues to undermine progress towards all goals. 5ith respect to theori2ing about gendered violence, the possibility of separating the public from the private sphere is a critical theme. /istorically law did not address injuries inflicted by intimates. $o, while the single greatest civil purpose of law has been to >eep men from violating one another 8the only greater being to repel foreign invasion:, much violation of women by men has been considered as a private matter beyond the purview of law. +omestic chastisement was once considered legitimate discipline of oneJs wife and marital rape was excluded from the definition of rape in many criminal law statutes. (ape by an acquaintance was not seen as <real rape= 8*strich &;@B: and was made virtually impossible to prove by strict corroboration requirements and other rules of evidence. 4ictims who did not actively resistAincluding those who were most terrori2ed or who feared harm from resistanceAwere judged to have consented to whatever happened to them, or at least to have reasonably appeared to their attac>ers as consenting 81c#regor )99B:. 4ictims were discouraged from pursuing complaints by rules of evidence that permitted them to be examined about past sexual histories, thus forcing them to reveal intimate private matters and subjecting them to judgment as immoral themselves. 7ncest, li>e rape, was always illegal but rarely admitted, let alone prosecuted. rosecutors were all too willing to drop charges when women chose not to press them, potentially confusing respect for the victimJs choices with her fear of embarrassment or coercion. And sexual harassment 8li>e sex discrimination as well: simply did not exist as legal claims until the &;09s or later 81ac?innon I $iegel )99-%

1ac?innon &;B;:. $o it is clear not only that equal protection of law for women was not recogni2ed until recently, but also that the force of law was used to bac> male dominance. 7f a man were attac>ed on the street he could pursue his attac>er in the courts of law. 7f a woman were attac>ed in her home she had no legal cause of action as it was considered a private matter. 7n important respects such domestic violence amnesia continues to characteri2e how law functions, in the view of many feminist critics 8+empsey )99;:. This is true in both criminal law and the law of private damages, according to feminist critics 8Chamallas I 5riggins )9&9:. 6ver the past ,9 years or so, many jurisdictions across the globe have enacted major improvements in formal legal protections against violence once considered private. (ape laws have been reformed to varying degrees in many societies, although even the best arguably still have far to go 81c#regor )99.% *strich )99&% Taslit2 &;;;% $chulhofer &;;@:. For example, most western nations no longer require corroboration of rape by witnesses. 7n many jurisdictions, consent is no longer presumed from the absence of resistance and far stricter requirements for the relevance of evidence are in place. Feminist lawyers have wor>ed hard to secure these legal reforms and they represent important achievements. 7nternational law too has recogni2ed the rape of women in war as a crime against humanity, and prosecutions for this crime have recently ta>en place for the first time in history. $exual harassment and sex discrimination are now rather widely recogni2ed as wrongful behavior and legal causes of action in a variety of forms. +espite this significant progress in formal law, continuing high crime statistics verify that violence against women remains a problem of major proportions. Conviction rates in no sense reflect a full commitment to punishing these crimes on a par with punishment of other crimes 8*strich )99&% $chulhofer &;;@:. The result of such enforcement failure, feminists contend, is that in practice men have almost the same powers over women that were historically enshrined in law. A woman may no longer be legally required to remain with a husband who beats her, but if she has nowhere to go, no income or employment opportunities but children to support, then her restriction is in practice the same as it was in the past 8see #endercide 5atch%5omen5atch:. #iven long"standing customs of subordination, the traditional disparity of power, and the typical difference in si2e and strength between men and women, the threat of physical harm and the differential exercise of economic and political power are sufficient to maintain male dominance unless the law intercedes to counteract these forces 8/usseini )99B% 1anderson )99,% $chneider )999% (hode &;;B:. 3oth in the E$ and elsewhere, immigrant or undocumented women may be particularly vulnerable both to their partners and to enforcement failures.

$o, why hasnJt the law interceded more successfullyC Feminist theorists give different answers to this question. 'iberal feminists, for example, may focus on biased attitudes of police officers, prosecutors, and judges, the majority of who are male. 6ther feminists point to persistent economic inequality between women and men, with resulting dependency that ma>es it difficult for women to leave abusive relationships or to resist harassment. For example, $chult2 8)99,: argues that opposition to sexual harassment should not be identified with opposition to sex in the wor>place but instead with opposition to practices that tend to exclude women from jobs and with a vision of genuine equality at wor>. +ominance feminists offer the more radical critique that the pervasiveness, seriousness, and tenacity of male threats and the inadequacy of official responses reflect the patriarchal construction of gender itself on a model of dominance and submission. That is, the law reflects a way of thin>ing on which masculinity means strength, forcefulness, aggressiveness, and domination and femininity means delicacy, resistance, submission, and subordination. The distinction between persuasion and force appears as a fine line that is easy to cross. 7f the distinction between normal sexual behavior and rape turns on a last minute decision by a woman to stop resisting and submit, then it will hardly be surprising if rape turns out to be both very pervasive and widely denied 81c#regor )99.% 1ac?innon &;@;:. Furthermore, if the very concept of masculinity is not just strength but domination, then resorting to violence to enforce female subordination is a clear correlate of the model. 7f standards of reasonablenessAwhat it is reasonable to expect partners to understand, to as>, and to doAare male, the boundaries of acceptable behavior will loo> very different than if judgments of reasonableness are understood to be genderedAand, largely, male. Finally, if the natural relation between the sexes is ta>en to be both hierarchical and adversarial, then a male dominated legal system formulated by men from a male perspective is bound to protect the interests of men at the expense of women whenever the two conflict or are perceived to conflict. Thus, the patriarchal construction of gender ma>es domination the model of masculinity and rape 8or at least power and submission: the model of sex 81ac>innon I $iegel )99-% *strich )99&, &;@B% $chneider )999% $chulhofer &;;@% 1ac?innon &;@;:. This dominance critique has been widely misunderstood. Critics of the dominance approach characteri2e it as condemning all sex and indicting all men as rapists, but this criticism is to some extent unfair. A few exaggerated claims made by some feminists, highly publici2ed in the early &;B9s, did condemn all sex. 3ut in a more enduring sense the dominance critique relies on several observations that illustrate the truth of feminist claims about the entrenchment of patriarchy as the status quo and the domination model of sexuality. 1any feminists claim that the use of sex to dominate is pervasive,

affecting how people thin> and interact in all cultures 8$chneider )999% 1ac?innon &;@;:. Critics interpret this observation as a claim that every sexual act is an act of domination 8or rape:, an inference that does not follow from the general observation about the role of sex in oppression. art of the reason for reinterpretation is that once again feminists are arguing against the norm. 7f feminists are correct that domination is the patriarchal model of sexuality and patriarchy is the status quo, then it is not surprising if they appear to be arguing against all sex itself, at least according to anyone who cannot envision an alternative model of sex. *arly on, feminists were divided in how to address the dominance model of sexuality in law and society. Focusing on causes or influences, some feminists attempted to challenge media stereotypes, an approach for which they were critici2ed as censors. $ome challenged the fashion and beauty industry with miniscule impact while suffering considerable personal ridicule for their efforts. $ome focused on opposing pornography 8especially violent pornography: as the symbol of the dominance model and developed model anti"pornography statutes for jurisdictions to enact 8see the entry on pornography and censorship:. 5hen one jurisdictionA7ndianapolisAdid enact a prohibition of violent pornography, it was quic>ly held to be an unconstitutional violation of free speech 801eri*an Boo2sellers v. 3udnut, 8BB& F.)d ,), 8Bth Cir. &;@.::. These efforts turned out to be a losing battle in which the feminist message of opposing female subordination was converted into a 4ictorian condemnation of immoral sex, for which feminists were then critici2ed as prudes. All this, some feminists argue, illustrates the deep entrenchment of the domination model. *very attac> is revised, reformulated, rephrased, reduced and if possible reversed altogether so that it fits the original model with as little conceptual revision or social restructuring as possible 8(hode &;;B:. 7nstead, feminists have suggested developing a better model of masculinity 81ac?innon I $iegel )99-% *strich )99&% (hode &;;B:. Finally, feminist legal scholars have proposed legislation and trial practice procedures that would treat domestic violence as part of a systematic cultural environment that discriminates against women 8$chneider )999:. These proposals are regularly undermined by 8well meaning: therapeutic models that treat domestic violence as individual psychological problems of anger management or substance abuse or the li>e, rather than as part of a widespread social problem. 1edical approaches often depersonali2e the issue as family dysfunction. The male perpetrator seems to disappear and responsibility fades as though the harm were caused by a disease rather than by a violent man, a responsible human agent. Clearly countering entrenched acceptance of male violence against women will ta>e long"term, concerted effort. 7mpressive gains have been made, but much more is needed 81ac?innon )990% /usseini )99B% 1anderson )99,% $chneider )999% /assan &;;@:.

$. Equality in /ocial and Economic Life


Enequal treatment in social and economic lifeAin schools, public accommodations, employment, housing, insurance, pensions, investment, sports, the environment, and moreAhas been another target of feminist legal critique. /ere, too, the question has been what equal treatment under law requires in the face of differences, including supposed biological differences, histories of discrimination, and entrenched social institutions. The law has developed from the removal of outright barriersAmale"only public universities, for exampleAto non"discrimination, to consideration of what conditions and practices adversely affect women to the extent of generating inequalities that ought to be addressed in law. 7n the E$ from the &;-9s on, courts gradually began to enforce the *qual rotection clause of the &-th Amendment to apply strict scrutiny to state"imposed categori2ations based on race% later on, constitutional law began to address whether race and sex could be analogi2ed or even coupled for purposes of analysis 81ayeri )9&&:. 7n &;0,, the E$ Congress passed the *qual ay Act, amending the Fair 'abor $tandards Act to prohibit unequal pay on the basis of sex for <equal wor> on jobs the performance of which requires equal s>ill, effort, and responsibility, and which are performed under similar wor>ing conditions,= ); E.$.C. O)908d: 8)9&):. 8Congress, in a dispute about comparable worth, left open the interpretive question of whether this statute requires the same pay for the same wor> or equal pay for substantially equivalent jobs, a comparable worth standard.: The Civil (ights Act of &;0- followed the next year, explicitly establishing rights not to be discriminated against on the basis of race, sex, religion or national origin in areas that included employment 8Title 477:, education 8Title 7P: and governmental benefits. 1any nations have similar laws 8phrased in varying language: and these have been or could be of considerable benefit to women, especially where bias is overt and provable. Enfortunately, in much of the world today discrimination is far from overt, but no less effective for its increased subtlety. 7n some ways progress toward equality has been substantial in many parts of the world. 3ut in other respects advances have been slow, even in progressive nations. *nshrining equality in law is a far different matter from implementing it in practice. 5omen have been active participants in the public sphere in large numbers in many societies for thirty years or more. Let the great majority of women remains clustered in the bottom or middle ran>s in otherwise male dominated professions, or segregated into traditionally female fields. olitics remain strongly male dominated. And the top echelons of business are still a male preserve! the so"called glass ceiling 8?ellerman I (hode )99B% Fineman I +ougherty )99.% *strich )99&:. +espite increased educational, political and employment opportunities for women, the femini2ation of poverty 8 earce &;B@: continues to increase while equality of power remains elusive. Changes in divorce law and the law of alimony and child support have been factors in

povertyJs femini2ation 8$moc>, 1anning I #upta &;;;:, raising questions for feminist theory about whether equality requires re"institution of protectionist laws. 7n employment, women consistently earn less for comparable wor> in the same field, and female dominated occupations are consistently paid less than male dominated ones, even when the male occupations require less education and involve less responsibility 8?ellerman I (hode )99B% Allen )99.% Fineman I +ougherty )99.% (oberts )99)% *strich )99&% 5illiams )99&% (hode &;;B:. For feminist legal scholars, the overarching question is what roles the law should play in response. 6ne set of issues concerns the effects of bias that cannot be demonstrated to be intentional discrimination! bias that is unrecogni2ed or implicit but that is bias nonetheless. 7n employment and other areas of social and economic life, supposedly objective rules may be applied differently to men and women. For example, a woman may be told the company does not allow part time wor>, but a man may be allowed to cut bac> in order to pursue some valued activity, such as holding political office. And women are often graded or evaluated lower on the basis of gender alone, without the recognition that this is what is ta>ing place. $ymphony orchestras famously discovered that the number of women musicians selected rose dramatically when applicants auditioned anonymously from behind a screen 8#oldin I (ouse )999:. 6ne use of statistical evidence in antidiscrimination law in the E$ is to raise inferences of unrecogni2ed bias, hence discrimination, in situations such as this. A further set of issues concerns how law should address the disparate impact of apparently sex"neutral policies. *ven without explicit or implicit bias, many longstanding policies may affect men and women differently. olicies discouraging or prohibiting part time wor>, when consistently applied to both men and women, may still have quite different consequences for parents with primary responsibility for child care, thus disadvantaging women disproportionately. As 5illiams 8)9&9: points out, the E$ continues to have a wor>place structured on the basis of the norms of the &;.9s, assuming a breadwinner husband and a wife at home ta>ing care of the children. Flexible wor> schedules, predictable shifts, consistent start and stop times, day time wor>, or part time wor> at hourly rates or with benefits proportionately equivalent to those of full time wor>ers simply are not available to much of the wor>force in the E$ or elsewhere. 1oreover, the E$, unli>e other advanced industrial societies, has no general statutory requirement for paid family leave. These many policies pose classic dilemmas of difference and can be deconstructed by understanding the male norms they assume, as discussed in $ection &. *mployment policies concerning pregnancy are notorious examples warranting separate mention. At one point, the E.$. $upreme Court concluded that failure to cover pregnancy under state or employer disability insurance

programs was not discrimination on the basis of sex, as it differentiated between pregnant persons and non"pregnant persons. 8 'eduldi4 v. 0iello, -&B E.$. -@- 8&;B-:% 'eneral Ele*tri* )o. v. 'ilbert, -); E.$. &). 8&;B0::. $ince pregnancy did not affect all women, denying pregnancy benefits did not discriminate against women on the basis of sex, although these policies would certainly have different impacts on women than on men. 1en and women were being treated the same! neither received pregnancy benefits. $o men did not receive any benefits that women did not receive. And women did not receive any benefits that men did not receive. The logical implication was that requiring a benefits program to include pregnancy benefits for women would entitle them not to equal rights, but to special rights% not to equal treatment but to special treatment 86lsen &;;.% $mith &;;,% 3artlett I ?ennedy &;;&:. Feminists were stunned by this argumentAafter all, only women can become pregnantAand the E$ Congress enacted the regnancy +iscrimination Act several years later. 7n addition, some policies that differentiate based on sex may be perceived as just or as beneficial to women. Affirmative action policies designed to root out the lingering effects of prior discrimination are an example of policies differentiating on the basis of sex that may be regarded as just. 6ther policies have been seen justified on a variety of grounds, including benefits to society, benefits to women, or distributive justice. 7n the E$, these have included excluding women from jury duty based on their supposed responsibilities in the home, giving survivorJs benefits to widows but not to widowers, and creating single"sex schools. To some critics, all of these policies violate formal equality. To feminists, underlying issues for achieving equality include determining whether any of these policies enforce stereotypes, entrench prejudice, or treat anyone unfairlyAand whether law should be used to challenge them as a result. 1oreover, sex is not the only ground of legally actionable discrimination. $ome critical race theorists, queer theorists, disability theorists, and other feminist legal philosophers have both clarified and complicated the issue of equality and difference by pointing to discrimination based on race, class, ethnicity, sexual orientation, disability and age 81ayeri )9&&, Fussbaum )990% Allen )99.% Crenshaw &;;0, &;@;% 4aldes &;;.% 1atsuda &;@B:. $uch intersectionality scholarship creates complex pictures of identity and the structure of discrimination. For example, employment discrimination against women of color may not be simply a matter of race"plus or sex"plus, but a phenomenon of interaction between these and possibly other categories. $ome feminists have pointed out as a problem in particular of liberal feminism that much of its focus is directed to the concerns of white, middle class, professional women 85illiams )9&&, &;;B, &;;)% (oberts )99)% Crenshaw et al. &;;0:.

For all these reasons, women remain at a serious disadvantage both at wor> and at home 85illiams )9&9% Fineman and +ougherty )99.% (oberts )99)% 6>in &;;.:. 7n the wor>place it has been noted that despite the many forms of discrimination described above, many women are able to progress quite well as long as they function as perfect wor>ers 8i.e. as men:. These women also have the greatest legal resources to combat discrimination, which shows that the wor>place has changed little and that the standard of evaluation is still male 85illiams )9&9% Fineman )99-% *strich )99&:. This precludes women from being mothers and still being treated as equals in the wor>place. 1any instances of discrimination appear to start when a woman becomes a mother, even if her wor> product has not changed. And many women find themselves in the double bind of being disli>ed and disapproved of as bad mothers or discounted and disrespected as uncommitted wor>ers. This has been identified as discrimination and is often legally actionable. Koan 5illiams 8)99&: has called this additional barrier the <maternal wall= and adds it to the glass ceiling as a form of illegal discrimination. 3ut it remains difficult to prove and difficult to counteract. Feminist philosophers of law have offered a variety of proposals for counteracting it 8Allen )99.% Fineman )99-% *strich )99&% 5illiams )99&% (hode &;;B:. $ome societies handle the coordination of family and wor> better than others, and some progress has been made in some places% but the burdens of domestic labor in the private sphere remain greatly undervalued and largely invisible, and the stereotype of the domestic and nurturing mother is deeply entrenched. The economic disadvantages of women at wor> are reinforced by domestic disadvantages, either as a formal matter of family law or in the implicit biases in how apparently neutral rules are applied. 5hile most societies ideali2e the role of the mother, her domestic wor> is consistently undervalued or unpaid. As a result, often when mothers see> divorce, child custody, and property settlements they are gravely disadvantaged 8Fineman )99-% 5illiams )99&% 5eit2man &;;), &;@B:. 7n some societies the de"valued status of wives and daughters leaves them without inheritance, property, or even without adequate food, health care, or education 8Carr et al. &;;0% 6>in &;;.% $en &;;.% Chen &;;.,&;@,:. 1any feminist legal scholars have offered proposals for revising some family laws with some modest success. $ome have suggested pay scales for traditional domestic duties and alternative models for custody suits and property settlements 85illiams )99&% Kain &;;.% 6lsen &;@,:. And some feminists have analy2ed the domestic ideal itself, suggesting an alternative legal model of the family. 1artha Fineman 8)99-, &;;.: has argued that the state has no reason to reinforce and privilege the sexual familyAthe sexual relation between a man and a woman that is the traditional basis of marriage as a legal institution. (ather, the care"giving relation is what should be encouraged and supported by the state. 6ne problem with the care"giving role is that it ma>es the care"giver dependent on another source of income, typically and traditionally a breadwinner. 7t is this dependent status of the

care"giver that needs to be addressed in law and public policy, assuming that care"giving is a positive and indeed a crucial role in human life. According to this view, the myth of autonomy is an unfortunate side effect of a male perspective that tends to ma>e the private domestic sphere both invisible and de"valued 8Fineman )99-, &;;.:. And this issue is further complicated by the intersection of gender with race and class 8(oberts )99):. This de"valuation and invisibility has contributed directly to the femini2ation of poverty, which is now a problem of global proportions. #lobal poverty is getting worse, and increasingly women bear the brunt of it. Two billion people 8about one out of three: live in extreme poverty on less than two dollars a day. About @99 million go to bed hungry every night, and eight million die from poverty related causes each year. 1ore than seventy per cent of them 8nearly three fourths: are female. $o serious are the effects of extreme poverty on women 8and girls: that the 5orld /ealth 6rgani2ation has named it a disease 8<extreme poverty,= coded Q.;..: and called it <the worldJs most ruthless >iller= 8Kain )99., p. &,@:. The reasons for the femini2ation of poverty are complex and differ in important respects by culture. $ome women are poor because their society is poorAdevastated by natural disasters or war and social turmoil, or sapped by corrupt officials or colonial powers. $ome are refugees, and some are sic>, old, or disabled. 1any of the poor are children. 7t has been noted that extreme poverty for both men and women is attributable to a variety of entrenched traditional structures such as class or caste hierarchies, ethnic or religious discrimination and unequal land distribution 8Carr, Chen I Khabvala &;;0:. And often these long term structural problems are aggravated by globali2ation, world mar>ets, economic restructuring and such recent trends in the world economy. 5omenJs poverty results from all these factors! being part of a poor family, village, or region, but is compounded by the subordination of women within the family, community or social structure at large. 5hen poverty is bad it is worse for women. 5hen food and medicine are short the most deprived are women and girls. Forms of seclusionAexclusion from inheritance, lac> of credit, lac> of training and educationAall disadvantage women and girls. 7n all societies the poorest women carry compounded burdens of discrimination by race, class, caste or religion as well as sex discrimination 8(oberts &;;.% Chen &;;.% Crenshaw &;@;% 1atsuda &;@B:. 1any programs have been proposed and initiated to alleviate this problem. 5omenJs unions and cooperative associations have been formed. Few models of credit and lending are being tested. The EF, various F#6s and 5omenJs 6rgani2ations, as well as national and local organi2ations, have been wor>ing to increase opportunities for literacy and employment for women and girls 8Kain, )99.% Carr, Chen I Khabvala &;;0% Fussbaum I #lover &;;.:. ioneers of micro"lending 1uhammad Lunus and the #rameen 3an> received

the Fobel eace ri2e in )990. Let poverty and polari2ation are increasing in many societies. 1any feminists are now of the view that reform of economic and social institutions is critical to the well being of women. The sharp distinction between public and private labor needs to be recogni2ed as an artificial one 8Fineman and +ougherty )99.:. As noted by Chen 8&;@,, p. ))9: <so long as policy"ma>ers ma>e the artificial distinction between the farm and the household, between paid wor> and unpaid wor>, between productive and domestic wor>, women will continue to be overloo>ed.= Thus, the interaction between private labor and the public good must be, and is beginning to be, ac>nowledged. For example, Chen 8)9&&: argues, contributions of unpaid labor should be included in estimates of #+ s% contributions of wor> in the informal sector 8which tends to be dominated by women and low income men: is increasingly being included in national and institutional studies potentially affecting economic policy% and unpaid domestic labor is now sometimes considered as having monetary value in court cases. $ome feminists have concluded that, li>e the dominance model of sexuality, the domestic model of womenJs unpaid labor may not be addressed by denouncing it directly. 7t may also require incremental erosion by addressing its causes and effects. That is, it must gradually be replaced with a better model. According to Chen 8&;;., &;@,:, for example, 8ideological: arguments for the equality of women in rural 7ndia and 3angladesh were met with great resistance, but when the approach was revised to provide pragmatic assistance for economic development to poor women that substantially improved their lives 8and thus the lives of their families: resistance substantially decreased. +re2e and $en 8&;@;, p. .@: have noted <considerable evidence that greater involvement in outside wor> does tend to go with less anti"female bias in intra"family distribution.= (espect for women arguably increases as their independence increases. Communist societies that purported to institute equality for women from the top down, so to spea>, failed to accomplish their goal precisely by overloo>ing the obvious conflict between the perfect mother and the perfect wor>er. For example, commentators such as 'i 8&;;.: contend that in China the Communist model of equality superimposed a thin veneer of equal gender relations over .,999 year old patriarchal customs that strongly sociali2ed women to the roles of obedient and deferential wife and daughter. Combining these norms with Communist womenJs equal obligations as wor>ers created double obligations for women without any real recognition of the double role as a double burden 8'i &;;.:. $ome feminists have noted that the $oviet Communist idea of gender equality and its post"communist development created a triple burden, as women were expected to function in three roles! wife and mother% good wor>er or professional% and social activist 8 etrova &;;,:. And today, as women enter the public sphere around the globe, they

carry the burdens of the private sphere with them, because the institutional structure has not been changed to accommodate social and economic evolution or to recogni2e the value of traditional womenJs wor> 8Fineman )99-, &;;.:. 1any feminists have concluded at this point that it is critical to mainstream women into the public sphere, thereby increasing their visibility as economic contributors and, thus, their control over their own lives. 7t is crucial to wea>en the publicDprivate distinction to ma>e the general wor> environment more hospitable to parents and caregivers in general. And it is imperative to continue to raise feminist consciousness! to identify the bias of male norms, and yet to attend to the contextual surroundings necessary for an accurate assessment of complex human relations, as well as pragmatic solutions to longstanding entrenched inequality. 'aw is a critical tool in this effort 8$tar> )99-% 5illiams )999% 6>in &;;.:.

&. (onclusion
'aw furthers social stability but may entrench norms of oppression. 'aw can also be a necessary means for reform. 'aw can be an anchor to the past or an engine for the future. *ach function has its place. Feminist legal philosophy is an effort to examine and reformulate legal doctrine to overcome entrenched bias and enforced inequality of the past as it structures human concepts and institutions for the future.

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1ac?innon, C. and (. $iegel 8eds.:, )99-. 6ire*tions in "eCual 3arass1ent, Few /aven! Lale Eniversity ress. 1anderson, '., )99,. Aiolen*e 04ainst &o1en in 0sian "o*ieties , Few Lor>! (outledge. 1atsuda, 1., &;@B. <'oo>ing to the 3ottom! C'$ and (eparations,= 3arvard )ivil %i4htsB)ivil 5iberties 5a( %evie( , ))8):! ,B-M ,@9. 1ayeri, $., )9&&. %easonin4 .ro1 %a*e7 Fe1inis1, 5a(, and the )ivil %i4hts %evolution, Cambridge! /arvard Eniversity ress. 1cClain, '.C., )990. The +la*e o. Fa1ilies7 Fosterin4 )apa*ity, E/uality and %esponsibility, Cambridge! /arvard Eniversity ress. 1inow, 1., &;;&. Ma2in4 0ll the 6i..eren*e7 =n*lusion, EC*lusion ; 01eri*an 5a(, Cambridge! /arvard Eniversity ress. 1ir"/osseini, Q., )990. <1uslim 5omenJs Nuest for *quality! 3etween 7slamic 'aw and Feminism,= )riti*al =n/uiry, ,)! 0);M0-.. 1iriam, ?., )99.. <$topping the Traffic in 5omen! ower, Agency and Abolition in Feminist +ebates over $ex"Traffic>ing,= :ournal o. "o*ial +hilosophy, ,0! &M&B. 1ir2a, N. 8ed.:, )990. =sla1i* Fe1inis1 ; the 5a(, 'ondon! (outledge Cavendish. 1oo>herjee, 1., )99;. &o1en-s %i4hts as Multi*ultural )lai1s7 %e*on.i4urin4 'ender and 6iversity in +oliti*al +hilosophy , *dinburgh! *dinburgh Eniversity ress. Fourse, 4. and #. $haffer, )99;. <4arieties of Few 'egal (ealism! Can a Few 5orld 6rder rompt a Few 'egal TheoryC,= )ornell 5a( %evie(, ;.! 0&M&,B. Fussbaum, 1., )990. Frontiers o. :usti*e7 6isability, Dationality, "pe*ies Me1bership, Cambridge, 1A! /arvard Eniversity ress. Fussbaum, 1. and K. #lover 8eds.:, &;;.. &o1en, )ulture ; 6evelop1ent, 6xford! Clarendon ress. 6>in, $., &;;.. <7nequality 3etween the $exes in +ifferent Cultural Contexts,= in 1. Fussbaum and K. #lover 8eds.: &;;., pp. )B-M);B. 6lsen, F. 8ed.:, &;;.. Fe1inist 5e4al Theory, Few Lor>! Few Lor> Eniversity ress.

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$cales, A., )990. 5e4al Fe1inis17 0*tivis1, 5a(yerin4 and 5e4al Theory, Few Lor>! Few Lor> Eniversity ress. MMM, &;@0. <The *mergence of Feminist Kurisprudence! An *ssay,= 9ale 5a( :ournal, ;.! &,B,M&-9,. $chneider, *., )999. Battered &o1en ; Fe1inist 5a(1a2in4, Few /aven! Lale Eniversity ress. MMM, )99-. <Transnational 'aw as a +omestic (esource,= De( En4land 5a( %evie(, ,@! 0@;MB)-. $chroeder, K., &;;&. <Feminist 1ethodologies and the 'ogic of 7magination,= TeCas 5a( %evie(, B9! &9;M)&9. $chulhofer, $., &;;@. !n(anted "eC7 The )ulture o. =nti1idation ; the Failure o. 5a(, Cambridge, 1A! /arvard Eniversity ress. $chult2, 4., )99,. <The $aniti2ed 5or>place,= 9ale 5a( :ournal, &&)! )90&M)&;,. $chwar2enbach, $. and . $mith 8eds.:, )99,. &o1en ; the !nited "tates )onstitution, Few Lor>! Columbia Eniversity ress. $en, A., &;;.. <#ender 7nequality I Theories of Kustice,= in 1. Fussbaum and K. #lover 8eds.: &;;., pp. ).;M)B,. $mith, ., )99.. <Four Themes in Feminist 'egal Theory! +ifference, +ominance, +omesticity I +enial,= in 1. #olding and 5. *dmundson, +hilosophy o. 5a( ; 5e4al Theory, 6xford! 3lac>well ublishing, pp. ;9M&9-. MMM 8ed.:, &;;,. Fe1inist :urispruden*e, Few Lor>! 6xford Eniversity ress. $moc>, ., with 1. 1anning and $. #upta, &;;;. <The *ffect of 1arriage and +ivorce on 5omenJs *conomic 5ell"3eing,= 01eri*an "o*iolo4i*al %evie(, 0-! B;-M@&). $tar>, 3., )99-. <5omen, #lobali2ation, I 'aw,= +a*e =nternational 5a( %evie(, &0! ,,,M,.0. $under, 1. 8ed.:, )99B. 'ender and Fe1inist Theory in 5a( and "o*iety, Aldershot! Ashgate. Taslit2, A., &;;;. %ape ; the )ulture o. the )ourtroo1, Few Lor>! Few Lor> Eniversity ress.

Taub, F. and 5. 5illiams, &;;,. <5ill *quality (equire 1ore Than Assimilation, Accommodation, or $eparation from the *xisting $ocial $tructure= in . $mith 8ed.: &;;,, pp. -@M.0. Threedy, +., )9&9. <+ancing Around #ender! 'essons from Arthur 1urray about #ender and Contracts,= &a2e Forest 5a( %evie(, -.! B-;MBBB. Enited Fations, Convention on the *limination of All Forms of +iscrimination Against 5omen 8C*+A5:, &;B;, available online. Enited Fations, )9&) Millenniu1 6evelop1ent 'oals %eport 2012, available online. 4aldes, F., &;;.. <Nueers, $issies, +y>es and Tomboys,= )ali.ornia 5a( %evie(, @,! &M,BB. 5al>er, '., &;B;. The Battered &o1an, Few Lor>! /arper I (owe. 5eit2man, '., &;@B. The 6ivor*e %evolution7 The !neCpe*ted "o*ial and E*ono1i* )onse/uen*es .or &o1en and )hildren in 01eri*a , Few Lor>! Free ress. 5eit2man, '. I 1. 1aclean, &;;). E*ono1i* )onse/uen*es o. 6ivor*e7 =nternational +erspe*tives, Few Lor>! 6xford Eniversity ress. 5illiams, K., )9&9. %eshapin4 the &or2BFa1ily 6ebate7 &hy Men and )lass Matter, Cambridge, 1A! /arvard Eniversity ress. MMM, )99&. !nbendin4 'ender7 &hy Fa1ily ; &or2 )on.li*t ; &hat to 6o 0bout =t, Few Lor>! 6xford Eniversity ress. 5illiams, ., &;;B. "eein4 a )olorBBlind Future7 The +aradoC o. %a*e , Cambridge, 1A! /arvard Eniversity ress. MMM, &;;). The 0l*he1y o. %a*e and %i4hts, Cambridge! /arvard Eniversity ress.
-c0nowledgments

The authors would li>e to than> $amara Casewell for assistance with the original bibliography. As of 1arch )9&,, 'eslie Francis has ta>en over updating this entry which was originally written by atricia $mith.