CRITICAL JURISPRUDENCE: MARXISM

WHAT IS CRITICAL JURISPRUDENCE?

Four levels of critique in jurisprudence:
Jurisprudence is critical of legal practice
Jurisprudential theories are critical of other competing theories
Some jurisprudential theories are critical of laws role in securing justice
Some theories are critical of the possibility of theory (radical critique).
Critical jurisprudence mounts a variety of critiques of liberal legalism and liberal legal theory with a tendency
towards radical critique.
WHY DOES CRITICAL JURISPRUDENCE MATTER?
Jurisprudence is a philosophical discourse into two types of question:
1. The descriptive question (what is law?)
2. The normative question (what ought law/ a just law/ a legal system look like?)
The basic normative assumption of liberal jurisprudence is that law has some necessary virtue (the virtue of the
Rule of Law). Law is vital for justice.
This is questioned by non-liberal (critical) jurisprudence. Theres a danger well think we have a just society,
simply because we have, say, representative democracy and the rule of law up and running.
KARL MARX
A) THE HEGELIAN DIALECTIC
Marx was influenced by the philosopher Frederick Hegel (1770-1831) who believed that history develops as a
result of a dialectic: (conflict between ideas). Each new idea is an advancement on the former and each
containing the seeds of transformation to a higher stage. History is a process of thesis, followed by antithesis out
of which there is a crisis, which is then resolved by a synthesis, which becomes a new thesis, which gives rise to
another antithesis, and sot he process continues. History proceeds through negation and this is how we learn.
B) DIALECTICAL MATERIALISM
Marx then wanted to say: well then, clearly the way is open for someone to negate Hegel; and this was his rule.
He negated it by saying no the dialectic does not occur at the level of ideas but at the level of the material world.
What Marx was doing was replacing the central symbol (ideas) with its opposite (materialism). He holds
everything else constant, but negates Hegels central idea. What does this look like?
Marx said at any point in history the forces of production are at a certain level. Because human skill and
technology are constantly expanding, human history is driven forward. If the forces of production expand, this
gives rise to different relations of production (cottages -> factories). These then alter society, and the law.
Marx argued that when changes in the forces of production come into conflict with existing relations of
production, this causes new social relations to smash through existing relations of production, and so one system
is overthrown by another. Revolution occurs historically when the forces ofproduction come into conflict with
existing relations of production, and the existing legal and political system is overthrown.
In feudal times, peasants had economic but not political freedom. They had their own tools but were tied to
lords. When technology expands, Feudalism gave rise to its opposite: capitalism, which overthrew feudalism.
Capitalism gave you political but not economic freedom because capitalists direct how workers labour is
exercised. Theres a lack of economic freedom because in capitalism there is exploitation: the labour is sold for
more than the cost of the labour. This is alienation. The workers dont own the property they made and are
alienated from each other. Because capitalism keeps workers in this condition of alienation, Marx prophesised
that capitalism would collapse by:
(1) the monopoly stage of capitalism (large companies get bigger and bigger and get so bloated that you lose the
benefits of the market forces) and
(2) by being susceptible to economics crises. Cycles of boom and bust. In a boom, workers are complacent. In a
bust you either concede defeat by accepting lower wages and redundancies, or you overthrow the capitalist
system itself.
The proletarians have nothing to lose but their chains. They have a world to win. Workers of the world unite!
(The Communist Manifesto, 1848).
When capitalism is overthrown the result is a synthesis which Marx said was socialism. This is the ideal form of
an economy because its a synthesis of feudalism and capitalism which provides political and economic freedom.
C) THE ROLE OF CLASS
Marxs ideas about forces, relations of production etc are important for his ideas about class and class struggle.
The history of all hitherto existing societies is the history of class struggles (The Communist Manifesto, 1848).
For Marx, understanding your class is about understanding where you are in relation to the relations of
production. The proletariat work for others, that is, the capitalists or the bourgeoisie who own the means of
production. In between these two classes sit the petit-bourgeoisie who own small shops and businesses but do
not have the social wealth or status as the capitalists. The underclass is known as the lumpen proletariat.
Marx predicted that changes in the forces of production would bring about changes in the class structure. A new
class would smash through the existing relations of production, changing the social and legal structure.
MARXIST THEORIES OF LAW
There is no specific account of law in Marxs writings but many references to it. The result is many different ways
of thinking about the relationship between capitalism and law.
The mode of production of material life conditions the social, political and intellectual life processes in general
(Preface to A contribution to the critique of political economy, 1859). Clearly he is going to be arguing that law is
determined by the conditions of material life, because these determine everything its what dialectic
materialism means.
But in what sense does material life condition law?

(A) LAW AND ECONOMIC DETERMINISM (ECONOMI SM/ CRUDE MATERIALISM)
Marx distinguished between:
(1) the economic or material base (the infrastructure) and
(2) the superstructure which arose on the foundations of the economic base. The orthodox view of Marx claims
that there is a causal connection between the base and the superstructure.
The totality of these relations of production constitutes the economic structure of society the real foundation,
on which legal and political superstructures arise and to which definite forms of social consciousness correspond.
The mode of production of material life determines the general character of the social, political and spiritual
processes of life (Marx, Preface to Contribution to Critique of Political Economy, 1859).
So law (being part of the superstructure) reflects the economic material base (e.g. property and employment
law reflect current existing relations of production).
Criticisms:
Its reductionist where does the criminal law fit? Doesnt tell us enough about what law is.
Its crudely determinist. It assumes that the dynamic is a purely causal one, but this may be a misreading.
According to the materialist conception of history, the ultimately determining element in history is the
production and reproduction of real life. More than this neither Marx nor I have ever asserted (Letter by F.
Engels to J. Bloch, 1890).
It doesnt recognise that social relations and ideological framework are in a reciprocal relationship to each
other:
The material base must include a normative dimension (It cant just belong to the superstructure) in order for it
to possess the necessary stability and reliability to last long enough for a social formation to arise upon it. The
law, therefore, appears to function in both base and superstructure and cannot be pigeonholed at the periphery
of a social function (Hugh Collins, Marxism and Law, 1982, p.81)
This is the orthodox account of Marx.
(B) LAW AS A TOOL OF CLASS INSTRUMENTALISM
Legal institutions are understood to exercise a form of control. Whenever we look at instruments of coercion like
prisons, these things are not distinguishable from brute force. Laws are not reflections of the relations of
production, but are constructed by the ruling class to suit their own interest.
The Black Act was directed at the consequences of poaching. If you were found armed where game was
preserved and your face was blackened, that was a felony for which you could be hanged. It created 50 new
offences. This system of institutionalised violence by just one class, was an example of the law being used to
create a class war. One of the main functions of the legal system is to repress those exluded from wealth and
power.
Criticisms:
The government and the ruling class (in Marxs sense) are no longer the same and many laws hamper
class interests (e.g. legislation which advances the legal position of trade unions). It does inhibit the ruling
class. As Thompson concludes: the law mediated class relations through legal forms, which imposed,
again and again, inhibitions upon the actions of the rulers (Whigs and Hunters, reprinted in Lloyds
Introduction to Jurisprudence, 8th edn., p. 1185). Law does appear to have an autonomy. Marxists not
only have to explain autonomy but they also have to show that this autonomy is a relative one (i.e. it
does promote at times interests which work against those of the ruling class and so it is not an absolute
autonomy) and that this relative autonomy itself is determined by the relations of production. So
Poulantzas talks about the relative autonomy of law.
This incorporates two ideas:
(1) that there is in reality less direct manipulation of political power by the dominant class in modern
society than there was in earlier social formations; and
(2) the appearance of autonomy hides deep structural constraints upon the powers of the State
apparatus which ensure that it faithfully pursues the interests of the ruling class (e.g. Nicos Poulantzas,
Political Power and Social Classes). The really difficult question is posed by the fact that bourgeois
democratic society is not entirely a faade and a fraud. If it were its veils and deceits would have been
stripped away long ago. Its strength and persistence result from the fact that in varying degrees it has
successfully combined the continued social, political and economic dominance of the capitalist class with,
at the same time, a significant level of involvement of the exploited classes sufficient to ensure a relatively
high level of acceptance of, and even commitment to, the existing order (Hunt, Law, State and Class
Struggle, p. 187).

The trouble is that class instrumentalism is arguably not a Marxist explanation because it seems to be
about voluntarism (a school of thought that emphasises, as the name suggests, the power of the will, or
the idea that you can stand outside history and impose your will on it).
(C) LAW AS DOMINANT IDEOLOGY
Other Marxists have argued that dominant ideology theory does a better job of explaining relative autonomy
and is a way of out of the problems of class instrumentalism.
Since everything (including ideas) is determined by material reality, a Marxist would argue that even the
framework of thought within which judges and legal theorists work is ultimately determined by the relations of
production and hence by the ruling class:
The dominant ideology thesis itself derives from Antonio Gramsci (1891-1937) who put forward a theory of
ideological hegemony:
the spontaneous consent given by the great mass of the population to the general direction imposed on
social life by the dominant fundamental group (i.e. the ruling class) (Antonio Gramsci, Prison Notebooks).
Law reinforces the dominant ideology. That explains the problem of relative autonomy. If law wasnt seen
as occasionally protecting the weak from the strong, is wouldnt be seen as providing the functions that
the ruling class want it to be seen to provide.
The problem is that this theory is non-falsifiable, because the economic system always changes and so the law
must change in response. Law, Engel says, must be internally coherent and compatible.
The course of legal development consists, in large part, first in the attempt to erect an harmonious
system of law by eliminating the contradictions flowing from the direct translation of economic relations
into jural propositions; and then in the fact that the influence and compulsion exerted by the further
economic development keeps on upsetting the system and plunging it into new contradictions (Letter
from Freidrich Engels to Conrad Schmidt, 1890, repr. in Marx and Engels, Selected Correspondence, pp.
480 484; http://www.marxistsfr.org/history/etol/newspape/ni/vol01/no03/engels.htm).
This is very similar to Dworkins view of law as a coherent vision (law as integrity).
As soon as we start talking about the dominant ideology thesis as being a way in which Marxists think about
law, were recognising that the Marxist critique of law is much more fundamental than just criticising legal
institutions. To talk about ideological hegemony and false consciousness means that Marxists are critical of the
very idea of law. They are attacking fundamental juridical discourse, and the language of justice itself.
Law is not just because it not an accurate reflection of social relations.
3. MARX AND LEGAL DISCOURSE
Marx is hostile to capitalism (because of the way it alienates workers from the value of their labour), but hes
also hostile to ideas of justice. Recht means just, law, and right. Hes attacking not only ideas about law but also
about justice. He argues that the language of justice is characteristic of sick societies. Part of the Marxist critique
of law is not simply about how individual laws came about. Marx also attacks judicial thought and conceptions of
justice. Marx is perhaps best read as saying that the language we regard as essential in other words, the
language of rights and judicial discourse is a limiting one which is characteristic only of certain kinds of
societies.
Cf. Feuerbachs The Essence of Christianity. Three different aspects of the Feuerbachian motif:
Reification. We create something that is entirely a product of ourselves and we treat it as independent
and think it has some power over us; (like God but you could talk about in terms of the state, market, and
economy.)
Alienation. We ascribe to this independent entity (the law) properties that are our own properties,
(justice) even though we dont realise it.
Fetishism. We bow down and worship this creation. The process whereby we attach excessive intrinsic
value to something that cannot have any intrinsic value (e.g. money, the economy).
Alienation is a striving to something that is really a product of ourselves as if it were an independent entity over
us. The task of philosophy is to overcome alienation. Marx saw The State and The Law as an alienating realm
analogous to religion. Alienation runs through all Marxs writing.
*T+he object that labour produces, its product, stands opposed to it as something alien, as a power
independent of the producer. The product of labour is labour embodied and made material in an object, it is the
objectification of labour. The realization of labour is its objectification. In the sphere of political economy, this
realization of labour appears as a loss of reality for the worker, objectification as loss of and bondage to the
object, and appropriation as estrangement, as alienation *T+he worker is related to the product of labour as to
an alien object. For it is clear that, according to this premise, the more the worker exerts himself in his work, the
more powerful the alien, objective world becomes which he brings into being over against himself, the poorer he
and his inner world become, and the less they belong to him. It is the same in religion. The more man puts into
God, the less he retains within himself. The worker places his life in the object; but now it no longer belongs to
him, but to the object The externalisation of the worker in his product means not only that his labour becomes
an object, an external existence, but that it exists outside him, independently of him and alien to him, and begins
to confront him as an autonomous power; that the life which he has bestowed on the object confronts him as
hostile and alien (Marx, Economic and Philosophic Manuscripts of 1844,
http://www.marxists.org/archive/marx/works/1844/manuscripts/labour.htm).
Where the political state has attained its true development, man not only in thought, in consciousness, but in
reality, in life leads a twofold life, a heavenly and an earthly life: life in the political community, in which he
considers himself a communal being, and life in civil society, in which he acts as a private individual, regards other
men as a means, degrades himself into a means, and becomes the plaything of alien powers. The relation of the
political state to civil society is just as spiritual as the relations of heaven to earth. The political state stands in the
same opposition to civil society, and it prevails over the latter in the same way as religion prevails over the
narrowness of the secular world i.e., by likewise having always to acknowledge it, to restore it, and allow itself
to be dominated by it (Marx, On the Jewish Question, 1844,
http://www.marxists.org/archive/marx/works/1844/jewish-question/index.htm).
Marxs objections to bourgeois law are that it is an alienating realm through which human relations are mediated
whereas the communist realm would be one where relationships are transparent. So Marxs theory is essentially
about liberation in the sense of overcoming alienation.
Marxs strand of collective self-determination links Marxs view of Communism with the ancient Greek view of
philosophy which said that one achieved self-realisation collectively. So Marx is really a modern expression of the
ancient view of politics. And the ancient view of politics is very different to our view today.
Ultimately, Marx argues that questions of justice will not be relevant under Communism because under
Communism, communal ownership will be vastly increased so there will be no arguments over human wants,
therell be enough for all and no disputes and therefore no need for justice.
Marx believed that if you change material conditions you change human nature. Was he right?

CRITICAL JURISPRUDENCE: FEMINIST JURISPRUDENCE
Just as Marxists see law and legal institutions as an instrument of the bourgeoisie, or ruling class, so feminists
see law and legal institutions as an instrument of patriarchy, or the dominant male gender.
IS THERE SUCH A THING AS FEMINIST LEGAL REASONING?
Feminists have identified a number of different examples of patriarchy. In Feminist legal methods,tries to
show that in analysing the practice of law by courts and lawyers there are at least feminist legal methods; (1)
asking the woman question, (2) feminist practical reasoning and (3) consciousness-raising.
Lucinda M. Finley, Breaking womens silence in law, (1989). Legal language and reasoning is gendered. The
claim that law is patriarchal does not mean that women have been ignored by law, but that laws cognition of
women is seen through the male eye, rather than through womens experiences.
There are different forms of feminisms; liberal feminism, Marxist feminism, cultural feminism, radical feminism
and postmodern feminism. Depending on what feminist theory you adopt, you develop a different view of legal
theory and of law in general.
THE FIRST WAVE: LIBERAL FEMI NISM
Liberalism emphasises freedom, autonomy, rationality and choice and so its not surprising that the central claim
of liberal feminism is that since men and women are equally rational they should have the same opportunities to
exercise rational choices.
Mary Wollstonecraft, A Vindication of the Rights of Women (1792)
John Stuart Mill and H. Taylor, The Subjection of Women (1869). Mill presented the first petition
to Parliament for womens suffrage in 1866. In 1893, New Zealand was the first country to give
women the vote. In the UK, the vote was granted to women over 30 in 1918, and to all women
over 21 in 1928.
Liberal feminism is only concerned with the content of law (justice), not with its form. Policy objectives are
focused on equality and equal rights in family law and property law; equal of opportunity for women lawyers
(e.g. the liberal feminist campaign for the Equal Pay Act 1970 and the Sex Discrimination Act 1976).
Critique:
The failure of the equality and universality assumptions of liberal legalism?
The focus on equality is seen as misguided by radical feminists.
Patricia A. Cain, Feminism and the Limits of Equality, (1990), repr. in Lloyds Introduction to Jurisprudence, 8th
edn. Pp. 1312 1320: The equality argument is that women are workers just like men. It is this argument of
similarity that makes it possible to extend womens rights. *This is obviously problematic. How does equality
cope with pregnancy, for example?] Radical feminists complain, however, that to argue on the basis of womens
similarity to men merely assimilates women into that unchanged male sphere. In this sense the result is to make
women into men. Liberal feminists focus on equality doesnt go far enough because it doesnt overturn the
dominance of men and male values.

Ann C. Scales, The Emergence of Feminist Jurisprudence: An Essay, (1986), repr. in Lloyds Introduction to
Jurisprudence, 8th edn. Pp. 1300 1312. Critical of US Supreme Courts equal protection approach to sex
discrimination because it makes maleness the norm of that is human.
How do liberal feminists defend themselves against this charge?
Wendy Williams, a leading liberal feminist, says that feminists have only two choices:
a. To claim equality on the basis of similarities between the genders or
b. To seek special treatment on the basis of gender differences.
3. THE SECOND WAVE: MARXIST, CULTURAL AND RADICAL FEMINISM
The second wave of feminists go a lot further than the first wave. Because they do not only think that law is used
to serve male interests, they go beyond this to say that law as we know it is itself gendered.
Liberal legalism has a male bias and is therefore inherently discriminatory towards women.
(A) MARXIST FEMINISM
The bourgeois sees in his wife a mere instrument of production. He hears that the instruments of production
are to be exploited in common, and, naturally, can come to no conclusion other than that the lot of being
common will likewise fall to the women (K. Marx and F. Engels, The Communist Manifesto, 1872).
Janet Rifkin, Toward a Theory of Law and Patriarchy (1980), Harvard Womens Law Journal (pp.
83 97)
Catherine MacKinnon, Feminism Unmodified (1987)
Christine Littleton, Reconstructing Sexual Equality (1987)
Typical policy objectives: affirmative action to protect women from specific harms such as domestic violence and
from objectification by men, such as pornography.
Critique: fails to identify how women are different. Radical feminists would argue that liberal feminist ideas of
equality have focused on public sphere issues like pregnancy in the workplace (important to men), rather than
female experiences such as rape and other forms of sexual assault.
(B) CULTURAL FEMINISM
This is different from Marxist feminism because, although it agrees that gender differences are socially
constructed, it evaluates womans difference from man positively.
E.g. Robin West, Jurisprudence and gender, (1985), repr. in Lloyds Introduction to Jurisprudence, 8th edn. Pp.
1320 1337. West argues that the maleness of the law derives from an assumption of separateness. But
women, she says, unlike men, are more connected. Modern legal theory fails to reflect this essential
connectedness of women.
Carol Gilligan, In A Different Voice: Psychological theory and womens development (1982, Cambridge, Mass.:
Harvard University Press). Moral reasoning is one area where we can accurately distinguish women from men
and its a good example of an affirmative rather than a negative valuation of that difference. The female ethic of
care versus the male ethic of justice.

The moral imperative *for+ women is an injunction to care, a responsibility to discern and alleviate the real
and recognisable trouble of this world. For men, the moral imperative appears rather as an injunction to respect
the rights of others and thus to protect from interference the rights to life and self-fulfilment (In A Different
Voice, pp. 159 160).
Gilligan summarises her findings at the end of her book:
While an ethic of justice proceeds from the premise of equality that every one should be treated the same
an ethic of care rests on the premise of nonviolence that no one should be hurt (p. 174).
Cf. Leslie Bender, From Gender Difference to Feminist Solidarity: Using Carol Gilligan and an Ethic of Care in Law
(1990, Vermont Law Review, Vol. 15).
Typical policy objective: ensure valuation of feminine virtues in e.g. child custody in divorce proceedings.
But this has been criticised by radical feminists because it doesnt break away from male-constructed
conceptions of femininity. Catherine A. MacKinnon, Difference and Domination: On Sex Discrimination, (1987), in
Lloyds Introduction to Jurisprudence, 8th edn. Pp. 1337 1346:
I do not think that the way women reason morally is morality in a different voice. I think it is morality in a
higher register, in the feminine voice. Women value care because men have valued us according to the care we
give them, and we could probably use some. Women think in rational terms because our existence is defined in
relation to men. Further, when you are powerless, you dont just speak differently. A lot, you dont speak All I
am saying is that the damage of sexism is real and reifying it into differences is an insult to our possibilities.
Radical feminists object to cultural feminists here because they dont think that what Gilligan is talking about
really and accurately distinguishes women from men.
If all women are victims of the patriarchy, how can any woman ever claim knowledge of what is truly in
womans best interest?
(C) RADICAL FEMINISM
C. Mackinnon, Feminism, Marxism and Method and the State: An Agenda for Theory (1983) Signs (Vol. 7, pp.
515-544): Sexuality is to feminism, what work is to Marxism: that which is most ones own, yet most taken
away (p. 515).
Do women want to be treated like men? Does equality require different treatment? Are there more important
values than equality? How should feminists define and respond to sexual difference? Should difference be
ignored or emphasised?
(I) CONTRASTS BETWEEN RADICAL AND LIBERAL FEMINISM
(1) Liberal feminists emphasise the individual whereas radical feminists focus on women as a class
Liberal feminists emphasise the individual (men and women as individual human beings), radical feminists focus
on women as a class that is dominated by another class (men). Radical feminists believe that women are entirely
socially constructed. No such thing as a true essence of womanhood. Conflict between liberal feminists and
radical feminists over issues like pornography:
The mass production of pornography universalises the violation of women in it, spreading it to all women, who
are then exploited, used and abused and reduced as a result of mens consumption of it. In societies pervaded by
pornography, all women are defined by it: this is what a woman wants, this is what a woman is (MacKinnon,
Towards a feminist theory of the State, p. 247).
(2) LF emphasises equality whereas RF emphasises difference
Catherine A. MacKinnon, Difference and Domination: On Sex Discrimination, (1987), in Lloyds Introduction to
Jurisprudence, 8th edn. Pp. 1337 1346. Theres a built-in tension between the concept of equality (which
presupposes sameness) and sex (which presupposes difference). Sex equality is a contradiction in terms. Two
approaches:
(I) SYMMETRICAL (OR EQUALITY) MODEL
Denies any significant natural differences between women and men. They can be symmetrically located with
regard to any issue. Its symmetrical because mens differences from women are equal to womens differences
from men. There is an equality here. There are two versions of this:
Assimilation
Women, given the chance, really are or could be just like men. So the law should require social institutions to
treat women as they already treat men. Critique: Patricia A. Cain, Feminism and the Limits of Equality, (1990),
repr. in Lloyds Introduction to Jurisprudence, 8th edn. Pp. 1312 1320. Radical feminists dont like assimilation
theory because it merely assimilates women into an unchanged male sphere. C. Mackinnon, Feminism, Marxism,
Method and the State: Toward Feminist Jurisprudence (1983) Signs (Vol. 8, pp. 635): Law consistently sees and
treats women the way men see and treat women.
Androgyny
Men and women are or could be very much like each other. But equality requires institutions to pick some
golden mean between the two and treat both sexes as androgynous persons would be treated. But
androgynous symmetry is difficult to conceptualise.
(II) ASYMMETRICAL (OR DI FFERENCE) MODEL
Rejects the idea that all gender differences will disappear (or even that they should). Women are judged
according to their lack of correspondence with men.
Special rights model: Women cant be mens equals because equality by definition requires sameness.
Accommodation: Differential treatment of biological differences (pregnancy, breastfeeding) is necessary.
But cultural or hard-to-classify differences (career interests and skills) should be treated under an equal
treatment or androgynous model.
Empowerment: Rejects difference altogether as a relevant subject of inquiry. Sees the key issue as being
one of dominance rather than difference. Shulamith Firestone in The Dialectic of Sex (1970, The Womens
Press). Pregnancy itself, independent of male contempt, is invasive, dangerous and oppressive; it is an
assault on the physical integrity and privacy of the body (Chapter 1 available online
http://www.marxists.org/subject/women/authors/firestone-shulamith/dialectic-sex.htm). MacKinnon:
equality has to be about antidomination.
Christine A. Littleton, Reconstructing Sexual Equality, (1987), repr. in Lloyds Introduction to
Jurisprudence, 8th edn., pp. 1347 1359. Equality suffers from a mathematical fallacy: i.e. the view that
only things that are the same can ever be equal. This is a problem because, in legal analysis, courts
routinely find womens difference a sufficient justification for inequality. Christine Littleton: equality as
acceptance, which stresses the consequences rather than the sources of difference.

(III) AN ATTEMPT AT RECONCILING DIFFERENT STRANDS OF SECOND WAVE FEMINISM
Robin West, Jurisprudence and gender, (1985), repr. in Lloyds Introduction to Jurisprudence, 8th edn. Pp.
1320 1337: All modern theory is masculine because it is based on a view of human beings as primarily
distinct and unconnected to each other. Feminist jurisprudence is about connectedness/ integrating emotive
and intellectual elements.
Underlying both radical and cultural feminism is a conception of womens existential state that is grounded
in womens potential for physical, material connection to human life, just as underlying both liberal and
critical legalism is a conception of mens existential state that is ground in the inevitability of mens physical
separation from the species The connection thesis is essentially this: Women are actually or potentially
materially connected to other human life. Men arent. This material fact has existential consequences. While
it may be true for men that the individual is epistemologically and morally prior to the collectivity, it is not
true for women.
4. THE THIRD WAVE: POSTMODERN FEMINISM
See generally, Christine de Stefano, Dilemmas of Difference: Feminism, Modernity and Postmodernism in
Linda J. Nicholson (ed.), Feminism/Postmodernism (1990, London: Routledge) (Law Library). Carol Smart,
Feminism and the Power of Law (1989).
Postmodern feminism is wary of law and rights and criticises the essentialism of other feminisms. So
postmodern feminism seeks to undermine the category woman. Mary-Joe Frug, A Postmodern Feminist
Legal Manifesto (1992) 105 Harvard Law Review 1045: only when the word woman cannot be coherently
understood, will oppression by sex be fatally undermined (p. 1075).
E.g. Drucilla Cornell, The doubly-prized world: myth, allegory and the feminine (1990) 75 Cornell LR 644.
Critique: The danger with rejecting the stereotypical white, middle-class, educated woman is that creates
another form of essentialism, viz. that the real female struggle can only be experienced, say, by black,
working-class lesbian women. Postmodern feminism shares in the weaknesses of postmodernism generally,
which rejects the idea of unitary truth/ objective reality.
Can feminist jurisprudence become very subjectivist?
Can feminist jurisprudence become exclusive?
Are its political objectives more successful than the need to construct a general theory?
Is feminist jurisprudence limited by the very paradigm it tries to judge?
5. Concluding remarks
Marxism/feminism tries to offer a critique of the rule of law. They expose laws lack of neutrality. People are
not equal in the sight of law. But in what sense is the law supposed to be neutral? The allegation of lack of
neutrality is that when liberals talk about the Rule of Law they present it as if it were part of an arrangement
that benefits everyone equally but in fact it systematically works for the benefit of one class at the expense of
another. But this objection clearly doesnt work. Law does not claim to be morally neutral. When liberals talk
about the Rule of Law they mean the essentially procedural ideas of ascertainable rules that are consistently
applied. These are supposed to have benefits which benefit all. So the claim and benefit of neutrality is linked
to the form but the rules must have some content and that content must benefit some more than others. So
showing that the actual rules benefit some more than others doesnt contradict liberalism. The question is:
when it is not neutral, is it unjust? But that is a separate question.