Feminist Philosophy of Law

¿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)

The practice of screening potential users of reproductive services is of profound social and political significance. Access screening is inconsistent with the principles of equality and self-determination, and violates individual and group human rights. Communities that strive to function in accord with those principles should not permit access screening, even screening that purports to be a benign exercise of professional discretion. Because reproductive choice is controversial, regulation by law may be required in most jurisdictions to provide effective protection for reproductive (...) rights. In Canada, for example, equal access can, and should be, guaranteed by federal regulations imposing strict conditions on the licences of fertility clinics. (shrink)

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.

This article discusses the fortuitous genesis of the book of my conversations with Angela Y. Davis, Abolition Democracy and traces some of the intellectual and philosophical sources that informed the specific questions and approaches that inform the dialogue. Davis’ relationships to Georg Rusche and Otto Kirchheimer, as well as to Foucault, are discussed. Similarly, Davis’ place within a critical black American political-philosophical tradition is analyzed. The essay focuses mainly, however, on the way in which Davis’ work on the prison industrial (...) complex profiles an unsuspected contribution to political philosophy that links up the disciplinary origins of American democracy with its racial contract to give rise to the prison contract. In the tradition of Charles Mills, Davis’ radical theory of penality unmasks and denounces the over-determined relationship between surplus punishment and the racial character of the US polity in terms of theproductivity of the prison system. (shrink)

Although the exclusion of LGBTs from the rites and rights of marriage is arbitrary and unjust, the legal institution of marriage is itself so riddled with injustice that it would be better to create alternative forms of durable intimate partnership that do not invoke the power of the state. Card's essay develops a case for this position, taking up an injustice sufficiently serious to constitute an evil: the sheltering of domestic violence.

This paper juxtaposes Deleuze's notion of the virtual alongside Oyama's notion of a developmental system in order to explore the promises and perils of thinking bodily identity as indeterminate at a time when new technologies render bodily ambiguity increasingly productive of both economic profit and power relations.

Increasing numbers of young mothers in the work force, more and more children requiring extrafamilial care, high rates of divorce, lower rates of remarriage, increasing numbers of female-headed households, growing numbers of zero-parent families, and significant occurrences of child maltreatment are just some of the social indicators indicative of the family in a changing world. These trends and their consequences for children are described and then examined from the perspectives of microeconomic theory, the relative-income hypothesis, sex-ratio theory, and one form (...) of modernization theory. The paper concludes with a preliminary examination of the added explanatory power provided by evolutionary theory. (shrink)

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)

This article speaks of a debate in contemporary India: that surrounding the validity of enacting a civil code that applies uniformly to all communities and religions in the state. In certain feminist arguments, such a code is seen as possibly providing a sphere of rights to Indian women that is alternative to the rights – or wrongs – given to them by the plural religious laws, which form the basis of the civil law in India. India, however, is a heterogeneous (...) polity, encompassing a diversity of cultures and religions, some dominant and others forming minorities. Given these differences, some critics see the feminist call for a Uniform Civil Code as an essentialist move that prioritises gender over other agendas and politics. They argue that the site of the ‚universal’ in this feminist move is a liberal site that inherently excludes marginalised Others and benefits the dominant subjects in India. In my article, I contest this critique and question whether the site of the universal and its authorial subject in postcolonial India is, in fact, an exclusionary liberal ruse of power. I draw insights from the history of the formation of the postcolonial nation-state in India to posit an experience of the state and the universal within it, which is alternative to the Western liberal model. The aim of this article is, therefore, not so much to debate the in/validity of a Uniform Civil Code, as to address certain contemporary post-structuralist critiques of the site of the universal in postcolonial India and posit a departure from them, based on perspectives drawn from history. (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)

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)

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)

: Feminist legal theory provides a healthy skepticism toward legal doctrine and insists that we reexamine even formally gender-neutral rules to uncover problematic assumptions behind them. The article first outlines feminist legal theory from the perspectives of liberal, cultural, and radical feminism. Examples of how each theory influences legal practice, case law, and legislation are highlighted. Each perspective is then applied to a contemporary bioethical issue, egg donation. Following a brief discussion of the common themes shared by feminist jurisprudence, the (...) article incorporates a narrative reflecting on the integration of the common feminist themes in the context of the passage of the Maryland Health Care Decisions Act. The article concludes that gender does matter and that an understanding of feminist legal theory and practice will enrich the analysis of contemporary bioethical issues. (shrink)

This essay identifies areas of analysis which David Garland neglects in The Culture of Control. The essential argument being that greater attention to the influence of feminism and the treatment of female offenders and victims would have enriched his interpretation of the culture of control. The essay suggests that the treatment of women in criminal justice matters exemplifies the apparently dualistic and polarised penal policies that Garland describes so well. The recent huge increases in the number of women sentenced to (...) imprisonment, in particular, are inexplicable, and point to a critical paradox in criminal justice system thinking. The essay also includes with some reflections on the future of crime control in relation to women. One important question is whether or not the future of crime control is inevitably or necessarily gendered. Thus the essay touches on the gender neutral versus gender specific and equality versus difference debates and their irreconcilable elements, as well as on possible ways of dealing with them, and concludes with some thoughts on the potential of renewed interest in the concept of citizenship and justice. (shrink)

The first to use Judith Butlers work as a reading of how the legal subject is formed, this book traces how Butler comes to the themes of ethics, law and ...

: After defining a hate crime as an offense in which the criminal selects the victim at least in part because of an animus toward members of the group to which the victim belongs, this essay surveys the standard justifications for state punishment en route to defending the permissibility of imposing stiffer penalties for hate crimes. It also argues that many standard instances of rape and domestic battery are hate crimes and may be punished as such.

This article discusses the contemporary problem of postmodern feminist legal theory. Through a schematic history of the twin 'subjects' of feminist legal theory (the subject of law, i.e. 'woman', and the subject of critique, i.e. 'law'), the article argues that feminist legal theory is characterised, even constituted, by successive re-conceptualisations of these two inter-related subjects. The article argues that in order to overcome certain perceived methodological problems inherent in the notion of 'postmodern feminist legal theory', further critique and re-conceptualisation of (...) these subjects is called for. The article closes by proposing ways in which a Foucaultian-inspired feminist jurisprudence could contribute to this project. (shrink)