Challenging Law, Establishing Differences: The Future of Feminist Legal Scholarship

Abstract

This essay concerns the complex, difficult, and perhaps impossible goal of introducing feminist theory into legal discourse. It analyzes existing and emerging themes that dominate contemporary feminist legal discourse that are of concern because of their limited usefulness in developing a theory of women’s experience within law and legal institutions.

Beginning with the ideally antagonistic interaction of feminist theory and the law, this paper locates discussion between the extremes of grand theory and unique experience. The central task of feminist theory is to challenge existing law and legal doctrines through the articulation of a theory of difference. Establishing differences between men and women is a political and theoretical necessity because it illustrates that the law primarily represents and reflects male experience and norms. Secondly, establishing differences between women themselves encourages women to work together, across differences, so that the similar, shared gendered aspects of their lives do not continue to be invisible and unspoken in law.

Feminist theory must develop free of the restraints imposed by legal concepts of equality and neutrality, or it will be defined by them.

Keywords: feminist legal theory, equality, neutrality, theory of difference, feminism, gender, antiassimilationism, gendered lives, representation