Gender and Law: Feminist Legal Theory's Role in New Legal Realism

Abstract

The “New Legal Realism” envisions a reconfiguration of the relationship between law, social theory, and policy. A crucial step in bringing together these divergent areas is provided by theory, both in explaining empirical data about social change and in using that information to create new legal policy. This article uses feminist research as a model for bridging together social science with legal theory that will be crucial for formulating a new legal realist paradigm.

Through an outline of feminism as a discipline, this paper describes the points of convergence and the differences among feminist scholars across two different methods of approach. These methods, emphasizing the similarities between genders and building upon the concept of gender difference show where feminist legal theory has performed the mediating role between findings of social science and policy changes.

Feminist researchers have often analyzed the cultural assumptions embedded in scholarly and legal studies to question the natural character of received categories. This critical analysis can be carried further to provide new perspectives from which to formulate family law and policy. Additionally, this perspective allows scholars to move past ideological impasses. Finally, this paper argues that careful thought must be given to the role that theory will play in the new legal realist synthesis of law, social science, and public policy.

Keywords: feminism, legal feminism, legal realism, gender, law, social science, social theory, policy, theory of difference, equality, inequality, theory, public policy, legal theory, gender difference, privilege, empirical research, society, privatization, dependency, power, authority, regulation