Abstract
In this article the author revisits Carol Smart’s 1989 publication Feminism and the power of law. She engages with Smart’s main claims by way of a number of other thinkers. Following Marianne Constable’s description of contemporary American legal thought as socio-legal, the author tentatively considers if it could be argued that some strains in contemporary legal feminism that adopted a sociological method resulted in a similar absence of justice that concerns Constable. Smart’s caution against the development of a feminist jurisprudence is critically analysed with the benefit of hindsight. Drawing on Deleuze and Guattari, Foucault and Goodrich, the author tentatively considers the becoming of a feminist jurisprudence as a minor jurisprudence.
What we most lack is a belief in the world, we’ve quite lost the world, it’s been taken from us. (Deleuze 1995, 176)
Sociology takes social creation to be the whole of what is and will be. (Constable 1994a, 589)
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Notes
Drucilla Cornell’s ethical feminism since the early 1990s has been an example of feminist legal theory that disclosed possibilities for the development of a feminist jurisprudence (1991, 1993, 1994). See the volume on her contribution Heberle and Pryor (2008) as well as her contribution to feminists@law 2011. See also amongst others Davies (2011), Drakopoulou (2000a, b), Aristodoumou (2000) and Douglas and Gatens (2011).
As noted above (footnote 1) there are examples of exactly this kind of work.
As also noted above I am not claiming that this is true of all feminist engagements. However, my concern is the possible effect that the insistence on empirical proof may have on a feminist concern with justice. Underlying this as noted is the concern with the extent in which law and legal theory have been influenced by the social sciences rather than the humanities.
What exactly the implications of these assertions of Deleuze and Guatari are for woman’s becoming have been discussed and debated widely (see generally Buchanan and Colebrook 2000). Claire Colebrook (2000, 2) engages with the implications by raising two divergent responses. On the one hand their notion of becoming-woman could be regarded as “a final recognition of the function of feminism” and as recognition of feminism’s aim of not only wanting “to redress wrongs within thought, but to think differently” (2). On the other hand it could be perceived as a ‘domestication and subordination’ (3). The influence of Deleuze on feminism raises two broad questions: the first questions the value of a philosophy that does away with the subject; the second is concerned with becoming-woman as being used once again for something that will benefit men, male reason (10–11). Colebrook mentions two important notions to keep in mind when evaluating becoming-woman: the risk of following Deleuzian thought and the result of thought becoming nomadic (11). The implication of the Deleuzian influence in feminist theory could result in thinking “new modes of becoming—not as the becoming of some subject, but a becoming towards others, a becoming towards difference” and a becoming through new questions’ (12). See also Conley (2000, 18), Braidotti (2000, 156) and Grosz (2000, 214) in Buchanan and Colebrook (2000). See also Braidotti (1994), Grosz (1995) and Gatens (1996).
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Van Marle, K. ‘We Exist, but Who Are We?’ Feminism and the Power of Sociological Law. Fem Leg Stud 20, 149–159 (2012). https://doi.org/10.1007/s10691-012-9205-x
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DOI: https://doi.org/10.1007/s10691-012-9205-x