Feminist Philosophy of Law

A short story about the pitfals of a new law, the General Act for the Dismantling of Normalising Power and Structures of Privilege, and, more philosophically, about the problems of institutionalizing progressive politics through law. Published in The Cabinat of Imaginary Laws, by Peter Goodrich and Thanos Zartaloudis: Returning to the map of the island of utopia, this book provides a contemporary, inventive, addition to the long history of legal fictions and juristic phantasms. Aimed at an intellectual audience disgruntled with (...) the negativity of critique and the narrowness of the disciplines, this book will appeal especially to theorists, literati, lawyers, scholars and a general public concerned with the future of decaying laws and an increasingly derelict legal system. (shrink)

The High Court continues to exercise its inherent jurisdiction to make declarations about interventions into the lives of situationally vulnerable adults with mental capacity. In light of protective responses of health care providers and the courts to decision-making situations involving capacitous vulnerable adults, this paper has two aims. The first is diagnostic. The second is normative. The first aim is to identify the harms to a capacitous vulnerable adult’s autonomy that arise on the basis of the characterisation of situational vulnerability (...) and autonomy as fundamentally opposed concepts or the failure to adequately acknowledge the conceptual relationship between them at common law. The second part of this aim is to draw upon developments in analytic feminist philosophy to illustrate how standard approaches to autonomy are ill-equipped to capture the autonomy issues of capacitous vulnerable adults when their decisions regarding care and treatment are at stake. The second (normative) aim is to develop an account of self-authorised, intersubjective autonomy on the basis of analytic feminist insights into the relational practices of recognition. This account not only attempts to capture the autonomy of capacitous vulnerable adults and account for the necessary harms to their autonomy that arise from standard common law responses to their situational vulnerability, it is also predicated on the distinctions between mental capacity, the satisfaction of conditions for informed consent and the exercise of autonomy, meaning that it is better placed to fulfil the primary aim of the inherent jurisdiction – to facilitate the autonomy of vulnerable adults with capacity. (shrink)

¿Cómo pensar lo femenino? ¿Es posible ubicar allí algo del orden de lo identificable que permita inscribirnos como parte de un conjunto? ¿Cómo tramitar las diferencias? ¿Cómo articular una propuesta de acción que soporte lo inasible de la subjetividad misma? ¿Cómo impulsar las condiciones jurídicas que atribuyan un rol activo al Estado en la protección de los derechos de las mujeres frente a la violencia estructural? ¿Cómo desplazar esta esfera de inscripción moderna de la violencia sacrificial que produce día a (...) día cada vez más cuerpos desechables? El presente trabajo pretende abordar estos interrogantes dando cuenta de la necesidad de forjar un feminismo crítico que sitúe los discursos de género lejos de toda lectura fácil y simplista. Este desafío supone consolidar un movimiento feminista que problematice y desarticule ciertas categorías medulares de la teoría jurídica moderna; categorías que: a) han imposibilitado comprender la complejidad y desplazamientos de los procesos de constitución subjetiva. b) han ignorado las micropolíticas de la diferencia y las disputas/ renegociaciones que éstas implican. c) han presupuesto una temporalidad teleológica como marco de acción. d) no han dado cuenta cómo los paradigmas de excepción se han convertido en formas paradigmáticas de gobierno, constituyéndose en una de las esferas de inscripción moderna de la violencia sacrificial. (shrink)

Because gender norms shape the content and application of the law, feminist scholarship has a lot to contribute to the study of law. Gender is also relevant to several problems in normative jurisprudence, and to some problems in special jurisprudence (the study of concepts in the law). But gender has no relevance to general jurisprudence for there is no sense in which the concept of law is ‘gendered’, and no answer to leading problems in general jurisprudence depends on any thesis (...) about gender. Yet some feminist scholars, including prominently Joanne Conaghan, argue that gender is pervasively relevant to jurisprudence, though its relevance has been screened out by methodological errors that characterize what she calls ‘the analytical jurisprudential mind’. I argue that this is incorrect, by examining the relationship between gender and law, the relationship between sex and gender, and the place of sex in the legal concept of marriage. The methodological charges against ‘the analytical jurisprudential mind’ prove unfounded. I also suggest that hostility to analytical methods is likely to be damaging to feminist legal theory, and urge feminist scholars to look again at the resources of analytic legal philosophy. (shrink)

Compulsive smartphone users’ psyches, today, are increasingly directed away from their bodies and onto their devices. This phenomenon has now entered our global vocabulary as “smartphone zombies,” or what I will call “iZombies.” Given the importance of mind to virtually all conceptions of human identity, these compulsive users could thus be productively understood as a kind of human-machine hybrid entity, the cyborg. Assuming for the sake of argument that this hybridization is at worst axiologically neutral, I will construct a kind (...) of phenomenological psychological profile of the type of cyborg which engages in these patterns of behavior. I follow Judith Butler in seeing this identity as the result of performance practices, which as such can be modified or replaced using other performances. Pursing one such alternative, I compose a dancing critique that “reverse engineers” the choreographies implied by these cyborgs’ survival practices. The upshot of this critique is that their movement patterns do indeed align closely to those of horror cinema’s zombies. I therefore conclude by suggesting a few possible choreographic imperatives to facilitate more enabling ways of being for iZombie cyborgs today. (shrink)

The Oresteia is conventionally read as an account of progress from the age of private vendetta to the public order of legal justice. According to G.W.F. Hegel, an influential proponent of this view, the establishment of a court in Athens was the first step in the progressive universalization of law. For feminists and Frankfurt School theorists, in contrast, the Oresteia offers an account of the origins of patriarchy and class domination by legal means. This article examines the two competing interpretations (...) of Aeschylus’s trilogy, arguing that they are not mutually exclusive. Rather than rejecting Hegel’s progressive thesis altogether, the critical theorists discussed here focus on the underside of progress. They make two claims that are explicated and defended in this article: first, that law follows a dialectical progression wherein measures to advance justice simultaneously intensify domination; second, that the dialectic of progress arises from the legal form itself—its presumed universality. (shrink)

The debate regarding the role of conscientious objection in healthcare has been protracted, with increasing demands for curbs on conscientious objection. There is a growing body of evidence that indicates that in some cases, high rates of conscientious objection can affect access to legal medical services such as abortion—a major concern of critics of conscientious objection. Moreover, few solutions have been put forward that aim to satisfy both this concern and that of defenders of conscientious objection—being expected to participate in (...) the provision of services that compromise their moral integrity. Here we attempt to bring some resolution to the debate by proposing a pragmatic, long-term solution offering what we believe to be an acceptable compromise—a quota system for medical trainees in specialties where a conscientious objection can be exercised, and is known to cause conflict. We envisage two main objectives of the quota system we propose. First, as a means to introduce conscientious objection into countries where this is not presently permitted. Second, to minimise or eliminate the effects of high rates of conscientious objection in countries such as Italy, where access to legal abortion provision can be negatively affected. (shrink)

In this paper, I explore how viability, meaning the ability of the fetus to survive post-delivery, features in the law regulating abortion provision in England and Wales and the USA. I demonstrate that viability is formalized differently in the criminal law in England and Wales and the USA, such that it is quantified and defined differently. I consider how the law might be applied to the examples of artificial womb technology and anencephalic fetuses. I conclude that there is incoherence in (...) the meaning of viability and argue that it is thus a conceptually illegitimate basis on which to ground abortion regulation. This is both because of the fluidity of the concept and because how it has been thus far understood in the law is unsupported by medical realities. Furthermore, it has the effect of heavily diluting pregnant people’s rights with overly moralistic limitations on access to healthcare. (shrink)

The Routledge Companion to Feminist Philosophy presents an exciting, comprehensive, and original pluralist presentation of feminist philosophy that is a much-needed update to existing feminist philosophy companions. Students, scholars, independent researchers, and departments interested in feminism and philosophy would do well to make sure they have access to this volume, and it should be a relevant resource for years to come. Reviewing such an expansive presentation of feminist philosophy across differences also raises considerations about the meanings and limits of pluralism (...) and inclusion in feminist philosophy as an ongoing collective project. (shrink)

Second edition of Property in the Body, containing about fifty percent new and updated material, including a chapter on surrogacy.

Interview on the commodified body with Donna Dickenson by Alana Cattapan.

My aim is to extend and complement the arguments that others have already made for the claim that women who are citizens of economically disadvantaged states and who have been trafficked into sex work in economically advantaged states should be considered candidates for asylum. Familiar arguments cite the sexual violence and forced labor that trafficked women are subjected to along with their well-founded fear of persecution if they’re repatriated. What hasn’t been considered is that reproductive rights are also at stake. (...) I explain how reproductive rights are implicated in sex trafficking. Moreover, I contend that sex traffickers’ abuse of women’s reproductive rights is persecutory and that that this persecutory abuse obliges destination states to offer asylum to transnational sex trafficking victims. I start by sketching reproductive human rights doctrine. I then examine studies of women who are in post-trafficking recovery programs in order to ascertain the impact of their past experience of forced sex work on their reproductive freedom and health. On the basis of these findings, I maintain that, among other outrages, sex trafficking systematically violates victims’ reproductive human rights. In view of this abuse, women trafficked into sex work might seem to be prime candidates for asylum in destination states. Yet, economically well-off destination states are not particularly receptive to this idea, and international law provides some justification for their chilliness. Preliminary to challenging them, I explicate four ways in which international anti-trafficking law and international refugee law interfere with viewing women trafficked into sex work as refugees and approving their applications for asylum. The second half of my paper aims to overcome those legal obstacles. In the interest of parsimony and because there are many continuities between U.S. refugee law and anti-trafficking law and the policies of similar destination states, I focus mainly on the U.S. in this part of the paper. To anchor my argument, I spotlight two precedents in refugee law for taking reproductive human rights seriously and several precedents for treating trafficked women as members of a distinct social group as required by refugee law. I then urge that a law enforcement gestalt has gained undue influence over U.S. legal practices where anti-trafficking law intersects with refugee protection law. A human rights gestalt is needed as a counterweight, for otherwise victims of sex trafficking and the reproductive abuse they’ve suffered are erased. Taking up a human rights perspective and mobilizing the precedents I’ve identified, I show that respecting the reproductive human rights of women who have been trafficked into sex work entails that affluent destination states must recognize their right to asylum. (shrink)

Numerous studies have found that many people believe that a provocatively dressed woman is at greater risk for sexual assault and bears some responsibility for her assault if she is attacked. Furthermore, in legal, academic, and public debates about sexual assault the appropriateness of the term ‘provocative’ as a descriptor of certain kinds of women’s clothing is rarely questioned. Thus, there is a widespread but largely unquestioned belief that it is appropriate to describe revealing or suggestive women’s clothing as ‘provocative’ (...) and that women who wear such clothing could provoke sexual assault and harassment from men. Yet it is rarely noted that only women’s clothing is described as sexually provocative. Men’s clothing, no matter how revealing, is never described as provocative. Why is this the case? This Article challenges the assumption that it is appropriate to describe women’s clothing as provocative. Drawing on on models of the legal defense of provocation and research on objectification and responsibility, this Article demonstrates that continued use of ‘provocative’ term normalizes and entrenches deeply problematic attitudes about women’s responsibility for men’s sexual behavior. The social interpretation of women’s clothing as provocative arises from the privileged social and legal status of men’s sexual arousal and the objectification of women’s bodies. Describing women’s clothing as provocative thus reinforces a problematic conception of women’s bodies and sexuality that is connected to women’s experiences of their bodies, their clothes, and shapes their vulnerability to sexual assault and social and legal attitudes to such attacks. (shrink)

Although the obligation to appoint women as judges originates from the constitutional injunction to consider “the need for the judiciary to reflect broadly the racial and gender composition of South Africa,” gender transformation has lagged behind racial transformation of the bench. During the past four years, however, the lack of women appointees has become a more contested issue. This paper investigates the relationship between gender transformation and racial transformation of the judiciary in public debates around the judiciary. Despite the universally (...) voiced concern about the lack of women judges, the most frequent and acrimonious public disputes continue to centre upon racial issues. The imperative to appoint women judges is often articulated as an alternative to appointing black judges, although the statistics show that the greatest need is for the appointment of black African women. Debates on gender transformation of the bench also remain premised on a formal notion of equality that focuses on numbers of women judges rather than on appointing male or female judges who are committed to challenging gender oppression. This means that the entrenched professional cultures, norms and structures that benefit men are left unchallenged. (shrink)

Despite a “spatial imaginary” which constructs Europe as a location of sexual and gender freedom (Rao, 2014), presently, twenty countries in Europe require sterilisation in order to legally recognise transgender people’s gender identities, including four of the seven countries in the INFERCIT study: Greece, Italy, Turkey, and Cyprus (but not Spain, which since 2007 does not require sterilisation for gender identity recognition [see Platero, 2008]. In Bulgaria and Lebanon no gender identity recognition for trans people is provided by law; the (...) latter lies outside the “European” region) (TGEU, 2014). Compulsory sterilisation—classified as a crime against humanity in the Rome Statute of the International Criminal Court (UN General Assembly, 1998: art. 7.1)—is widely in force against transgender people, who constitute “the only known group in Europe subject to legally prescribed, state-enforced sterilisation” (Hammarberg, 2009: 19). However, forced sterilisation of trans people is not generally conceptualised as a eugenicist or genocidal policy, in part because sterilisation is conflated with gender reassignment surgical interventions which, widely considered as that which brings transgender bodies into being, are in turn conflated with embodied transgender subjectivities. On this view, transgender individuals could not exist except through a medicalised process that, by design, precludes their “natural” reproductive capacities and is generally not accompanied by fertility preservation or the provision of assisted reproduction technologies (Plemons, 2014: 38; De Sutter et al., 2002; De Sutter, 2001). Sterilisation laws are justified through a pathologising discourse on transgender lives which constructs gender reassignment interventions as medical “treatment” of gender identity disorder (Suess, Espineira & Crego Walters, 2014: 73-76). Adopting a depathologising perspective enables us to contextualise compulsory sterilisation (which naturalises the sexually dimorphic, cisgender, heterosexual body) as a form of “gendercide” which has historically been instrumental in the imposition of a Euro-colonial binary gender system (Miranda, 2010; Lugones, 2007). The state-imposition of medical interventions on trans people not only has deleterious effects on their reproductive rights, “effectively undermin[ing] their right to found a family” (Hammarberg, 2009: 21; see OHCHR et al., 2014)—as “family” is hegemonically defined by a heteronormative and bio/ logical kinship order (Butler, 2002; van Anders, 2014). I argue that state regulation of transgender reproduction constitutes a form of institutionalised gendered violence inasmuch as it impedes transgender people’s ability to exercise inherent first-person authority over the materiality and meanings of their gendered embodiments (Bettcher, 2009; Spade, 2013). Efforts to renaturalise gender and kinship inextricably intersect (Kantsa, 2006) in the biopolitical attempt to regulate transgender embodiments and reproduction, which conditions the emerging legal recognition of transgender subjects as a rights-bearing minority (Stryker, 2014). (shrink)

This book provides a philosophical examination of the extent to which legalizing same-sex marriage can contribute to ending the discrimination and social stigma faced by LGBT men and women in the Western world.

Michelle Madden Dempsey’s compelling book sets out a normative feminist argument as to why and when prosecutors should continue to pursue prosecutions in domestic violence cases where the victim refuses to participate in or has withdrawn their support for the prosecution. This paper will explore two of the key aspects of her argument—the centrality and definition of the concept of patriarchy, and the definition of domestic violence—before concluding with some final thoughts as to the appropriate parameters of feminist prosecutorial decision-making. (...) The paper argues that Madden Dempsey could offer a more detailed and nuanced argument about the role that patriarchy plays, particularly its relevance in marking out appropriate cases for pursuit; and that her thesis requires a more convincing exposition of the precise reasons for offering such a narrow account of domestic violence. (shrink)

In Prosecuting Domestic Violence: A Philosophical Analysis, Michelle Madden Dempsey focuses on the dilemma prosecutors face when domestic violence victims are unwilling to cooperate in the criminal prosecution of their abusive partners. Starting from the premise that the ultimate goal should be putting an end to domestic violence, Dempsey urges prosecutors to act as feminists in deciding how to proceed in such cases. Doing so, Dempsey argues, will tend to make the character of the prosecutor’s community and state less patriarchal (...) and thus help stamp out domestic violence. This article analyzes two issues arising from Dempsey’s work: first, whether prosecutors can justifiably be viewed as representatives of their states and communities; and, second, how prosecutors committed to using their discretion to battle both domestic violence and patriarchy would go about determining in a particular case whether to pursue criminal charges against the wishes of a victim. (shrink)

The article examines the emergence in the 1990s of the issue of “Comfort women” and the conditions that led to the holding of The Women’s International War Crimes Tribunal for the Trial of Japan’s Military Sexual Slavery. It argues that it was a response both to victims’ needs and to the prevailing revisionism concerning the violence committed during the Asian-Pacific war by the Japanese army, which had been the subject of the Tokyo war crimes trials of 1946-1948. The women’s tribunal (...) represents a significant moment in the recognition and condemnation of the specific violence perpetrated against women in wartime and during armed conflicts: it is both the result of of new paradigms in women’s history and oral history, and the starting point for active support for women victims of violence. L’article examine les conditions qui ont permis la tenue du Tribunal international des femmes de Tokyo pour juger du système de l’esclavage sexuel institué par l’armée impériale japonaise pendant la guerre d’Asie-Pacifique (1937-1945). Il considère qu’il a été à la fois une réponse aux besoins des victimes et au révisionnisme ambiant sur les questions des violences commises pendant la guerre d’Asie-Pacifique et jugées lors du procès militaire de Tokyo en 1946-1948. Moment important pour la reconnaissance et la condamnation des violences exercées à l’encontre des femmes en temps de guerre et lors des conflits armés, il est à la fois l’aboutissement de nouveaux paradigmes en histoire des femmes et histoire orale, et le point de départ pour un soutien actif aux femmes victimes de violence. (shrink)

In this article I will argue that in the last years the way of thinking about gender has undergone a change. I believe that in the Iranian public discourse, ‘the woman question’ has come to be viewed as part of the question of democracy. This is a recent development; until very recently, women’s legal discrimination was perceived in Iranian discourse as a ‘women’s only’ problem.

The public interest in the administration of justice requires access to justice for all. But access to justice must be “meaningful” access. Meaningful access requires procedures, processes, and institutional structures that facilitate communication among participants and decision-makers and ensure that judges and other decision-makers have the resources they need to render fully informed and sound decisions. Working from that premise, which is based on a reconceptualization of the objectives and methods of the justice process, the author proposes numerous specific changes (...) in decision-making processes and practices. These changes are required to achieve a standard of decision-making that is consistent with the public interest in the administration of justice within a constitutional framework under the social and political conditions of the early 21st century. The essay illustrates the application of the principles and methods of legitecture to analysis of problems of institutional design in law. (shrink)

Somerville, Margaret Review of: Scholars turn their minds to marriage : The jurisprudence of marriage and other intimate relationships, by Scott FitzGibbon, Lynn D. Wardle, and A. Scott Loveless, Buffalo, NY: William S. Hein and Co., 2010.

In this paper, I argue that Habermas' proceduralist model of law can be put to feminist ends in at least two significant ways. First, in presenting an alternative to the liberal and welfare models of laws, the proceduralist model offers feminism a way out of the equality/difference dilemma. Both these attempts to secure women's equality by emphasising women's sameness to men or their difference from men have placed the onus on women to either find a way of integrating themselves into (...) existing institutions or to confront the so-called question of women's difference. The proceduralist model renders this dilemma irrelevant. Instead, it proceeds from the fact of sexual difference; a fact that produces competing and conflicting needs and interests that require interpretation by both men and women. This, I argue, marks a change in the very way we conceptualise the so-called problem of women's difference, insofar as the question is no longer framed in these terms. Second, I argue that this deliberative process over the interpretation of conflicting interests affects a fundamental shift in the nature of legal institutions themselves, insofar as law is no longer a vehicle for promoting male interests. (shrink)

In this article I argue that clients who purchase commercial sex from forced prostitutes should be strictly liable in tort towards the sex-slaves. Such an approach is both normatively defensible and doctrinally feasible. As I have argued elsewhere, fairness and equality demand that clients compensate sex-slaves even if one refuses to acknowledge that fault is involved in purchasing sex from a prostitute who might be forced. In this article I argue that such strict liability could be grounded in the tort (...) of conversion, and not only (as argued elsewhere) in battery. Since the quintessential experience of sex-slaves is that of being treated as chattels, the appropriate legal response is to allow them to benefit from the strict liability imposed on those who interfere with an owner’s dominion over his property. Accordingly, sex-slaves should be viewed as both subjects and objects. As subjects they can sue clients for the violation of their sexual autonomy manifested by their treatment as objects. This approach is both advantageous to sex-slaves, in the sense it affords them protection that might not otherwise exist, and fair, since the ultimate response to the objectification of sex-slaves by clients should be to afford the former a proprietary-based claim against the latter. I further explain why my approach is not problematic on conceptual grounds, anti-commodification sentiments or feminist concerns with the symbolic message of my solution: that the law treats women as property. (shrink)

Feminist legal scholars have never cut the first woman appointed to the Supreme Court of Canada as much slack as the second. Yet the first, Justice Bertha Wilson, introduced the contextual method into the Court’s jurisprudence. Her approach to contextualism is consistent with one of three feminist legal methods that Katharine T. Bartlett identifies. More specifically, it is consistent with Bartlett’s feminist practical reasoning. However, Justice Wilson’s contextualism is not without its critics. The most challenging, Ruth Colker, contends it must (...) work in conjunction with a distinctive substantive principle. Justice Wilson took a different approach, aligning the contextual method with the constitutional principle of proportionality. Thus construed, this paper argues, contextualism represents a new approach to feminist judging. (shrink)

The idea of public reason is central to political liberalism's aim to provide an account of the possibility of a just and stable democratic society comprised of free and equal citizens who nonetheless are deeply divided over fundamental values. This commitment to the idea of public reason reflects the normative core of political liberalism which is rooted in the principle of democratic legitimacy and the idea of reciprocity among citizens. Yet both critics and defenders of political liberalism disagree over whether (...) or not the idea of public reason permits citizens to appeal to their comprehensive conceptions of the good in public deliberation over matters of basic justice. Our aim in this paper is to provide a defense of an exclusive idea of public reason, and at the same time we aim to dispel the underlying concerns of two prominent criticisms of the idea of public reason—the concern of alienation from the political process, as expressed by religiously oriented critics, and the concern over women's equality, as expressed by feminist critics. We argue that inclusive accounts of the idea of public reason are not consistent with political liberalism's core commitments. Further, we claim, inclusive accounts of the idea of public reason deepen feminist concerns. We think that, properly understood, an exclusive account of the idea of public reason can address feminist concerns about political liberalism and avoid alienating (reasonable) religious persons in an unacceptable way. Thus, we conclude that an exclusive account of the idea of public reason is our best hope for reconciliation. (shrink)

This book uses contemporary feminist insights to examine aspects of the classic social contractarians' arguments, concentrating upon the work of Hobbes, Spinoza ...

This article examines shifts in the legal, medical, and common-sense logics governing the designation of sex on birth certificates issued by the City of New York between 1965 and 2006. In the initial iteration, the stabilization of legal sex categories was organized around the notion of “fraud”; in the most recent iteration, “permanence” became the measure of authenticity. We frame these legal constructions of sex with theories about the “natural attitude” toward gender.