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Feminism and the siren call of law

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Abstract

Feminists have so often declared and celebrated the fecundity of the relationship between feminism and legal reform that critique of legal doctrine and norms, together with proposals for their reconstruction, have become the hallmarks of the modern feminist engagement with law. Yet today the long-cherished ‘truth’ about law’s potentially beneficial impact on women’s lives has started to fade and the quest for legal change has become fraught with problems. In responding to the aporetic state in which feminist legal scholarship now finds itself, this paper offers a recounting of the relationship between feminism and the politics of legal reform. However, in so doing, it seeks neither to support nor to oppose these politics. Instead, it explores the historical contingencies that made this discourse possible. Utilizing Foucault’s concept of episteme, it demarcates the nineteenth century as the historical moment in which this discourse arose, and tracing the epistemic shifts underpinning the production of knowledge, locates its positivities at the interface of the time’s episteme and the discourse of transcendental subjectivity that it engendered.

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Notes

  1. C. Norton, motto for pamphlet English Laws for Women in the Nineteenth Century (Privately published, May 1854), borrowed from the epigraph in Dickens’ Bleak House.

  2. Ibid., at 1.

  3. S. Pennington, An Unfortunate Mother’s Advice to her Absent Daughters, in V. Jones, ed., The Young Lady’s Pocket Library, or Parental Monitor (Bristol: Thoemmes Press, 1790/1995).

  4. A. Laurence, Women in England 1500–1760 (London: Weidenfeld and Nicolson, 1994), 228.

  5. See E.A. M’Arthur, ‘Women Petitioners and the Long Parliament’, The English Historical Review 24 (1909), 698–709.

  6. M. Foucault, The Order of Things (London: Routledge, 1991), xx.

  7. Ibid., at xi, xx–xxiv.

  8. Ideas were divided into simple and complex ones. The former were those not capable of further division; for example the idea of bitterness. The latter were those comprised of a number of simple ones; for example the idea of an apple – a combination of the ideas of colour, taste and smell and so on. See J. Locke, in P.H. Nidditch, ed., An Essay Concerning Human Understanding (Oxford: Clarendon Press, 1689/1979), 119–121, 163–166; D. Hume, in P.H. Nidditch, ed. A Treatise of Human Nature (Oxford: Clarendon Press, 1739–1940/1989), 2, 13; D. Hartley, Observations on Man, His Frame, His Duty and His Expectations (New York: Scholar’s Facsimiles and Reprints, 1749/1976), 56–57, 73–79; H.H. Kames, Essays on the Principles of Morality and Natural Religion (New York: Garland Publishing Inc. 1751/1976), 141–142; J. Beattie, Dissertations Moral and Critical (Dublin: Mess. Exshaw, Walker Beatty et al., 1783), 92–93. For a discussion of the fortunes of the concept of idea in the philosophy of the seventeenth and eighteenth centuries see J.W. Yolton, ‘Locke and the Seventeenth-Century Logic of Ideas’, Journal of the History of Ideas XVI/4 (1955), 431–452; J.W. Yolton, ‘Ideas and Knowledge in Seventeenth-Century Philosophy’, Journal of the History of the Philosophy 13/2 (1975), 145–166; J.W. Yolton, Perceptual Acquaintance From Descartes to Reid (London: Basil Blackwell, 1984a), 3–17; J.W. Yolton, Thinking Matter: Materialism in Eighteenth Century England (London: Basil Blackwell, 1985).

  9. R. Descartes, ‘Rules for the Direction of the Mind’, in The Philosophical Writings of Descartes, vol. I and vol. II, J. Cottingham et al., trans. (Cambridge: Cambridge University Press 1628/1996), 360 18–19, 430–431, 440; Locke, supra n. 9, at 48, 163–164, 180–181.

  10. See Hartley, supra n. 9, at 7–9; J. Gay, ‘Preliminary Dissertation Concerning the Fundamental Principle of Virtue or Morality’, in E. Law, ed., An Essay on the Origin of Evil (Cambridge: W. Thurlbourn & J. Woodyer, 1758), liv; J. Priestley, Disquisitions relating to Matter and Spirit (London: J. Johnson, 1777), 91, 109; Hume, supra n. 9, at 1–7.

  11. Hume, supra n. 9, at 252–253; Hartley, supra n. 9, at 8–12.

  12. Hume, supra n. 9, at 24; D. Hume, ‘Enquiry into the Human Understanding’, in P.H. Nidditch, ed. Enquiries Concerning Human Understanding and Concerning the Principles of Morals (Oxford: Clarendon Press, 1748/1989), 47; G. Turnbull, The Principles of Moral Philosophy: An Enquiry into the Wise and Good Governance of the Moral World, vol 1 (London, 1740), 54, 87–93; Hartley, supra n. 9 at 383–389; Beattie, supra n. 9, at 87–94.

  13. Hume, supra n. 9, at 10–13; D. Hume, in J.M. Keynes and P. Sraffa, eds., An Abstract of a Treatise of Human Nature (Hamden: Archon Books, 1740/1965), 31; Turnbull, supra n. 13, at 81–84; Hartley, supra n. 9, at 3–4, 56–79; Gay, supra n. 11, lvi–lvii; Priestley, supra n. 11; Beattie, supra n. 9, at 95–98.

  14. Hume, supra n. 9, at 11, 14, 142–143, 202–203; Turnbull, supra n. 13, at 93–94; Beattie, supra n. 9, at 98–100. The notion of similitude was conceived of rather loosely, indicating some form of correspondence or analogy between ideas. Thus it was thought to exist when two or more ideas shared some common quality, point of reference, or appeared to be in the service of a common purpose. See Hume supra n. 9, at 256–258.

  15. Hume, supra n. 9, at 11, 14, 29–39; Hartley, supra n. 9, at 58–59; Priestley, supra n. 11, at 54–55; Beattie, supra n. 9, at 95.

  16. Hume, supra n. 9, at 11, 73–94; Kames, supra n. 9, at 385–7–5; J. Beattie, An Essay on the Nature and Immutability of Truth (London: Garland, 1770/1983), 100–120, supra n. 9, at 96–100.

  17. Hume, supra n. 9, at 98–106, supra n. 13, at 40–47; Kames, supra n. 9, at 221–230, 385–387; A. Ferguson, Principles of Moral and Political Science, vol. I (Hildesheim: Georg Olms Verlag, 1792/1975), 231–234.

  18. Hume supra n. 9, at 94–98, 124–130, supra n. 14, at 17–19.

  19. See Hume, supra n. 13 at 8. For his discussion of the significance of the environment in the formation of human nature see D. Hume, ‘Of National Character’, in T. Hill Green and T. Hodge Grose, eds., David Hume. The Philosophical Works, vol. 3 (Darmstadt: Scientia Verlag Aalen, 1742/1964b), 244–258.

  20. J. Gregory, A Comparative View of the State and Faculties of Man with those of the Animal World (London, 1767/1777), 9–10.

  21. Hume, supra n. 13, at 104–108; Hartley, supra n. 9, at 111; A. Ferguson, An Essay on the History of Civil Society, vol. I (Edinburgh: Edinburgh University Press, 1767/1966), 46, supra n. 18, 11–17, 48–61; Gregory, ibid., at 5–10; Priestley, supra n. 11, 109; J. Millar, ‘The Origin of the Distinction of Ranks’, in W.C. Lehmann, ed., John Millar of Glascow 1735-1801. His Life and Thought and his Contribution to Sociological Analysis (Cambridge: Cambridge University Press, 1779/1960), 218.

  22. See Hume, supra n. 13, at 83–86.

  23. See Kames, supra n. 9, at 52–53, 67–68; Ferguson, supra n. 22, at 16–19, supra n. 18, vol. I at 26–32, 204–212.

  24. See Kames, supra n. 9, at 151–62.

  25. The concept of sensibility dominated eighteenth century thought, primarily in physiological, psychological and cognitive contexts, where it reflected the widespread belief that responsiveness was located in the nervous system and its softness and delicacy determined the intensity and quality of feelings, passion and emotions. For a discussion of the meaning, significance and use of the term ‘sensibility’ in the eighteenth century see R.F. Brissenden, Virtue in Distress (London: Macmillan Press, 1974), 11–55 and A.J. Van Sant, Eighteenth-Century Sensibility and the Novel: The Senses in Social Context (Cambridge: Cambridge University Press, 1993), 1–15.

  26. G. Cheyne, An Essay of Health and Long Life (London: George Strahan, 1724), 69–71; G. Cheyne, The English malady or a treatise of nervous diseases of all kinds as spleen, vapours, lowness of spirits, hypochondriacal and hysterical distempers (London: George Risk, George Ewing and William Smith, 1733), 138–141; R. Whytt, Observations on the Nature, Causes, and Cure of those Disorders which have been commonly call’d Nervuous, Hypochondriak, or Hysteric (Edinburgh: T. Becket and P. Du Hond, London and J. Balfour, Edinburgh, 1765), 105, 231; W. Smith, A Dissertation upon the Nerves (London: W. Owen, 1768), 147–148, 176.

  27. Whytt, ibid., 118.

  28. Cheyne (1733) supra n. 27, at viii–x, 184; J. Fordyce, The Character and Conduct of the Female Sex, and the Advantages to be derived by Young Men from the Society of Virtuous Women. A Discourse in three parts, delivered in Monkwell-Street Chapel, 1 January 1776 (London: T. Cadell, 1776), 23–25, 46–47, 75, 272–273.

  29. D. Hume, ‘Of Essay Writing’, in T. Hill Green and T. Hodge Grose, eds., David Hume. The Philosophical Works, vol. 4 (Darmstadt: Scientia Verlag Aalen, 1742/1964), 367; Gregory, supra n. 22, at 16–17.

  30. Hume, supra n. 9, at 370, (1742/1964c), 92. See also J. Fordyce, Sermons to Young Women (2 vols), vol. 1 (London: S. Crowder, C. Ware and T. Payne, 1775), 3–5; (1775) supra n. 29, at 54–57, 82–83.

  31. Addison in the Oxford English Dictionary defines modesty as being ‘such an exquisite Sensibility, as warns a woman to shun the first Appearance of everything which is hurtful’, cited in C. Jones, Radical Sensibility Literature and Ideas in the 1790s (London: Routledge, 1993), 5. See also B. Mandeville, The Fable of the Bees (London: Penguin, 1714/1989), 99–105; Fordyce, supra n. 31, at 36, 47–50; J. Gregory, A Father’s Legacy to his Daughters, in V. Jones, ed., The Young Lady’s Pocket Library, or Parental Monitor (Bristol: Thoemmes Press, 1774/1995), 11–12.

  32. Addison cited in K. Shevelow, Women and Print Culture: The Construction of Femininity in the Early Periodical Culture (London: Routledge, 1989), 136.

  33. Addison cited in Shevelow, ibid., at 136. See also A. Smith, in K. Haakonssen, ed., The Theory of Moral Sentiments (Cambridge: Cambridge University Press, 1759/2004), 40.

  34. W. Wilkes, A Letter, of Genteel and Moral Advice to a Young Lady (Dublin: E. Jones, 1740), 116–18; Fordyce, supra n. 29, at 83–85; Millar, supra n. 22, at 192–193, 219–220; G. Horne, Reflections on the Importance of Forming the Female Character by Education (Dublin: W. Watson & Son, 1796), 4.

  35. For example, hysteria or insanity in women was often explained as a result of the sympathy between womb and brain. See Whytt, supra n. 27, at v–vii, 9–15, 104–105; T. Arnold, Observations on the nature, kinds, causes and prevention of insanity, lunacy, or madness, vol. 2 (Leicester: G. Robinson and T. Cadell, 1782–86), 218–222, 267, 270, 274–275.

  36. Hume, supra n. 9, at 571.

  37. Gregory, supra n. 32, at 49–50; J. Fordyce supra n. 29, at 208; Addison cited in Shevelow, supra n. 32, at 134. The ideas of domesticity and virtue are discussed in great detail in J. Fordyce, supra n. 29, in particular Sermon VI.

  38. Fordyce’s first Sermon is exclusively devoted to the discussion of the positive moral and social influence of women, but see especially Fordyce, supra n. 29, vol. 1 at 7–18, 27–32. See also Fordyce supra n. 31, at 83–85, 93–99; Horne, supra n. 35, at 5–13; J. Bowles, Remarks on Modern Female Manners, as Distinguished by Indifference to Character and Indecency of Dress (London: F. and C. Rivington, 1802), 12.

  39. Steele cited in J. Spencer, The Rise of the Woman Novelist: From Afra Behn to Jane Austen (Oxford: Blackwell, 1986), 15.

  40. I have borrowed the term ‘perceptual acquaintance’ from Yolton, supra n. 9. For a discussion of the constitution of female identity in medieval and seventeenth century thought see Drakopoulou, ‘Women’s Resolutions of Lawes Reconsidered: Epistemic Shifts and the Emergence of the Feminist Legal Discourse’, Law and Critique 47 (2000), 54–57, 61–63.

  41. See H. More, ‘Sensibility: An Epistle to the Honourable Mrs Boscawen’, in The Works of Hannah More, vol. II (London: Cadell and Davies, 1782/1818), 269–287; H.M. Williams, ‘To Sensibility’, in Poems (London: T. Cadell, 1786); A.L. Barbauld, ‘The Rights of Woman’, in W. McCarthy and E. Kraft, eds. The Poems of Anna Laetitia Barbauld (Athens: University of Georgia Press, 1825/1994), 90; F. Greville, ‘A Prayer for Indifference’, in R. Lonsdale, ed., The New Oxford Book of Eighteenth Century Verse (Oxford: Oxford University Press, 1984). For a discussion of the feminism of the bluestockings of the seventeenth century see S.H. Myers, The Bluestocking Circle Women Friendship and the Life of the Mind in Eighteenth Century England (Oxford: Clarendon Press, 1990), 121–150. For an account of the origin of the word ‘bluestockings’ see E. Bodek, ‘Salonieres and Bluestockings: Educated Obsolescence and Germinating Feminism’, Feminist Studies 3, 3–4 (1976), 185–199. Mary Hays accepted innate sensibility as God given, attributing to it the possibility of eternal pleasures through temperance, regularity and self-denial the feminine virtues; see her Letter to Amasia (twelfth essay) in M. Hays, Letters and Essays, Moral, and Miscellaneous (New York: Garland, 1793/1974). In her second essay she argues that women of sensibility are more in favour of political liberty and cites Catharine Macaulay, Mary Wollstonecraft, Anna Barbauld, Ann Jebb, Helen Williams and Charlotte Smith. In the preface of Hay’s novel, Memoirs of Emma Courtney, she valorises female passions and sensibility.

  42. M. Wollstonecraft, A Vindication of the Rights of Women (Aylesbury: Penguin, 1792/1982) recommends passionless friendship between husband and wife. See also "Vindication of the rights of man" in J. Todd and M. Butler, eds., The Works of Mary Wollstonecraft, vols. 5, 22, 24, 31 (London: Pickering, 1987). See also J. West, Letters to a Young Lady (London, 1806), III 12.101, 143; S. Pennington, supra n. 3, at 103. See also Mary Hays, ibid., no. IX essay/letter where she portrays an ideal domesticated and complementary couple in which Hortensia is the female counterpart to her professionalised husband. Also see Hays, Appeal to the Men of Great Britain on behalf of Women (London: J. Johnson, 1798), 127–128. H.M. Williams, “Letters written from France in the Summer of 1790, to a friend in England”, Letters from France, vol. 1 (Dublin: J. Chambers, 1794), 195–196, insists that her support from the Revolution arises from her feminine domestic character and affections. ‘But however dull the faculties of my head, I can assure you, that when a proposition is addressed to my heart, I have some quickness of perception. I can then decide, in one moment, points upon which philosophers and legislators have differed in all ages …’.

  43. M. Wolstonecraft, A Vindication of the Rights of Women (Aylesbury: Penguin, 1792/1982), 116, 131. See also H.M. Williams, Letters Containing a Sketch of the Politics of France from the Thirty-first of May 1793, till the Twenty-eighth of July 1794, and of the Scenes which Have Passed in the Prison of Paris, vols. 1, 138, 213 (London: G.G. & J. Robinson, 1795); H. More, “Strictures on the Modern System of Female Education”, in The Works of Hannah More, vol. VII (London: Cadell and Davies, 1799/1818), 79–80; M. Hays, Letter 7 December 1794, cited in G. Kelly, Women, Writing, and Revolution 1790–1827 (Oxford: Clarendon Press, 1997), 92.

  44. Wollstonecraft, ibid., at 104. ‘Artificial’ sensibility was often mocked as a ‘trick’ or ‘trap’ that men had set for women. Assigning ‘the fair sex’ to ‘the imaginary Empire of Beauty’ was, the Bluestockings argued, a kind of ‘consolation for being excluded from every part in the Government in the State’ and domesticated under the tyranny of men. Montague, 1737/1977, 109 and 130–134; M. Collier, The Woman’s Labour, an epistle to Mr Stephen Duck, in R. Lonsdale, ed. Eighteenth Century Women Poets: An Oxford Anthology (Oxford: Oxford University Press, 1739/1989); Wollstonecraft, supra n. 44, at 100, 104, 132, 144; Hays, supra n. 43. Mary Hays saw the sexual difference in terms of usurped political power, regarded women as forced to create a mask for themselves, and insisted that she was not coming in Wollstonecraft’s Amazonian garb to demand a revolution in female manners, but as a friend of men wishing for a gentle emancipation from error and arguing that its correction would benefit society, Hays supra n. 44. See also Williams, supra n. 44, at 1, 213.

  45. See Wollstonecraft, supra n. 44, at 119, 132.

  46. See, for instance, H. Chapone, Letters on the improvement of the mind, addressed to a young Chapone (London, 1777), 234–237.

  47. See Drakopoulou, supra n. 41.

  48. The words ‘observation’ and ‘cause’ occur frequently in the feminist critical writings of the times. This investigative spirit was not only common in non-fiction but also in novels which often were presented as observations of human passions and characters, in short to ‘treat life as an experiment’ A.J. Van Sant, Eighteenth-Century Sensibility and the Novel (Cambridge: Cambridge University Press, 2004), 54–55.

  49. Although not present in their non-fiction in some novels written by feminist authors there is reference to law, not legal reform, but observations about law’s treatment of women, for example, Maria or the Wrongs of Woman or Hay’s The Memoirs of Emma Courtney.

  50. See, for example, the remarks on subjectivity in Hume 1739–1940/1989, supra n. 9, at 633–636.

  51. See, for example, M. Hays, Appeal to the Men of Great Britain in Behalf of Women (London: Johnson, 1798) and Wollstonecraft, supra n. 44.

  52. T. Reid, The Works of Thomas Reid (Edinburgh: Maclachlan and Stewart, 1764/1880), 157, 198, 236, 305, 373.

  53. Ibid., at I.1.3, I. 293.

  54. I. Kant, The Critique of Pure Reason, N. Kemp Smith, trans. (London: Macmillan, 1781/1993), B xvi 22.

  55. See for example Reid, supra n. 53, at 15.

  56. The embodiment of this novel development par excellence is Kantian philosophy, upon which I primarily draw in support of my analysis. The British ‘philosophers of common sense’ whose prominent exponents were Thomas Reid, James Beattie and Dugall Stuart, moved in the same epistemic plane as Kant. He was aware of their work, especially Reid’s, though he vehemently dismissed Reid’s appeal to common sense as one ‘whereby the dullest windbag can confidently take the most profound thinker and hold his own with him … nothing other than a call to the judgment of the multitude, applause at which the philosopher blushes, but at which the popular wag becomes triumphant and defiant’. I. Kant, ‘Prolegomena to Any Future Metaphysics that will be able to Come Forward as Science’, in H. Allison and P. Heath, eds., Immanuel Kant: Theoretical Philosophy after 1781 (Cambridge: Cambridge University Press, 1783/2002), 56. The inductive principle was thought an innate disposition of the mind (Reid, supra n. 53, at 199, 332). The principle of common sense was invariably described as ‘inner light’ (Reid, supra n. 53, at 422), a natural power of the mind akin to an instinctive and irresistible impulse (Beattie, supra n. 17, at 45) or as reason (Stewart cited in S.A. Grave, The Scottish Philosophy of Common Sense (Oxford: Clarendon press, 1814/1969), 50.

  57. Kant, supra n. 55, at B xvi.

  58. Kant, supra n. 55, at A xi–xii.

  59. For a discussion of the nineteenth century ideas of domesticity see E. Liggins, ‘Good House keeping? Domestic Economy and Suffering Wives in Mrs Henry Wood’s early fiction’, in E. Liggins and D. Duffy, eds., Feminist Readings of Victorian Popular Texts (Aldershot: Ashgate, 2001), 53–68; and B. Caine, English Feminism (Oxford: Oxford University Press, 1997), 70–87. Also for the fate of sensibility in the nineteenth century see A. Digby, ‘Women’s Biological Straightjacket’, in S. Mendoz and S. Rendall, eds., Sexuality and Subordination (London: Routledge, 1989), 192–220.

  60. Kant, supra n. 55, at B 131–132.

  61. Foucault, supra n. 7, at 308–309.

  62. See Foucault, supra n. 7, at 318–322.

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    Maria Drakopoulou

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Correspondence to Maria Drakopoulou.

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This paper was partially developed during my stay at Griffith Law School and I would like to thank the School, and particularly Shaun McVeigh, Bill MacNeil, Pamela Adams, Roshan de Silva and Rosemary Hunter for making it such an enjoyable and intellectually stimulating experience. I wish to give special thanks to Carol Smart, whose questioning of the siren call of law first inspired me to undertake the genealogical project of which this paper is part.

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Drakopoulou, M. Feminism and the siren call of law. Law Critique 18, 331–360 (2007). https://doi.org/10.1007/s10978-007-9019-1

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