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finds that the hierarchical structure of the law, its “combative adversarial
format; and its undeviating bias in favour of rationality over all other
values,” all indicate that the law is “a fundamentally patriarchal insti-
tution” that has no place in progressive society.49 Any concern to preserve
the separation of powers is dismissed by the advocates of critical legalism
as “ideology.” Thus we are told, as in Shapiro™s Law and Politics in the
Supreme Court (1964) and Miller and Howell™s essay “The Myth of
Neutrality in Constitutional Adjudication” (1960), that only a nostalgia
for a childish vision of law inspires the attempt to find impartial legal
standards.50 Such attempts simply refuse to face the truth that the courts
cannot avoid deciding who should get what advantages; the only choice is
whether the judge will do so openly or surreptitiously. What explains the
power of the law is that it constitutes and legitimizes dominant power
relations without appearing to do so.
In keeping with this basic insight of political jurisprudence, the
Critical Legalists have devoted themselves to studying the history of
different aspects of the law in order to produce a well-documented, new
version of legal history in which the idea of law is replaced by a struggle
for power. The law™s perpetuation of a hierarchal social order can be
tied to liberalism™s inability to preserve the rule of law. CLS research,
particularly in the area of contract law, is focused on revealing the
oppression caused by liberal legalism. Concerning contract law, Karl
Klare writes, “The underlying philosophical assumptions of the freedom
of contract doctrine parallel those that characterise the classical liberal


47
Unger, Knowledge and Politics, 3.
48
Peter Gabel, “Intention and Structure, and Contractual Conditions,” Minnesota Law
Review 61 (1977): 601.
49
Diane Polan, “Towards a Theory of Law and Patriarchy,” in Kairys, ed., The Politics of
Law, 301.
50
Miller and Howell, “The Myth of Neutrality,” 689, 659; Shapiro, Law and Politics, 23.
262 The idea of law repudiated

political tradition. . .” that “all values are arbitrary, subjective, and per-
sonal,” that “society is an artificial aggregation of autonomous individuals
who come together solely for the instrumental purpose of maximising
personal satisfactions,” that “the state should do no more than facilitate
the orderly quest for such satisfactions; and that, because values are
arbitrary and subjective, only the concurrence, actual or constructive, of
individual desires can be standards of ethical obligation.”51
In his study of the Wagner Act, Karl Klare explains that freedom of
contract between workers and employers is a snare and delusion. What he
calls “contractualist” jurisprudence either ignores “differences of eco-
nomic or class power” or regards them as legitimate. The tendency of
the freedom of contract doctrine throughout has been to treat as naturally
preordained a historically contingent system of class relations. Klare
praises the New Deal for producing “new doctrinal formulas” that en-
abled “progressive courts to brush aside some of the finer concerns and
details of traditional private adjudication.” In order to make way for the
Wagner Act and other New Deal reforms, the distinction between
public and private that characterized classical liberal theory had to be
removed so as to allow the trade unions, which in the past had been
deemed private, to assume the “functions, attributes or powers of quasi-
governmental agencies. . .”52 This hostility to making any distinction
between the powers of public and private bodies is a persistent theme in
all Critical Legalist writing.
The Wagner Act “became law,” according to Klare™s history, not when
it was promulgated but only when employers were forced to obey its
commands by the “imaginative, courageous, and concerted efforts of
unheralded workers” who “seized control of their destinies and genuinely
altered the course of American history.” To the degree that the legal
reforms were effective, however, they only helped to reenforce the oppres-
sion of the working class, because they reenforced the “institutional bases
of that oppression, however much it improved the material circumstances
of organised workers.”53 And this was only to be expected from law made
by “experts socialised in elite institutions and distant from the lived reality
of everyday life in capitalist society.” The connection of this form of
lawmaking with official violence and coercion, its impersonal, anti-par-
ticipatory character, its insistence on the presentation of all moral judg-
ments in the form of general supra-historical rules and its exaltation of


51
Karl Klare, “Judicial Deradicalization of the Wagner Act and the Origins of Modern
Legal Consciousness,” Minnesota Law Review 62 (1978): 265.
52 53
Ibid., 296. Ibid., 336.
From Realism to feminist jurisprudence 263
property over human dignity, all make it inevitable that the result should
be “a negation of the human spirit, even when the impulse to do justice
and to accommodate to changing social priorities forces its way into the
content of legal decisions. . .”54 And finally Klare tells us that the history
of the Wagner Act produced decisions which are “a chaotic amalgam of
conceptualism and realism, ruleboundedness and ad hoc balancing, def-
erence to non-judicial sources of law and unhesitating faith in the super-
iority of the judicial mind, in short a ˜hodge-podge™ that is characteristic
of the self-divided modern legal consciousness.”55 All this is attributed to
the “rule of law” ideal which separates law from ethics, and leaves people
torn between conflicting aspirations.
While Critical Legal Studies is principally a criticism of liberal legalism
rather than a theory of law, a vague constructive vision can be pieced
together from its literature. A consistent theme in CLS writings is the need
to refocus attention on the importance of group values, such as commu-
nity and solidarity. This suggestion does not amount to a complete
abandonment of liberalism and its focus on individual rights as some
have supposed. CLS thinkers insist that they value liberty, but feel
strongly that liberalism has gone too far in its emphasis of individualism.
Unger thus laments, “the political doctrine of liberalism does not acknow-
ledge communal values.”56 Through a revolution that balances both
individual and group values, Critical Legalists hope to establish a new
egalitarian society free from domination and oppression. No unified
vision or theory for implementing this re-created society exists. Unger
advocates a “theory of organic groups,” with “the bureaucracies of wel-
fare-corporate and socialist states” assuming increased responsibilities.57
Others suggest less radical changes, preferring to reform the present legal
system. Agreement seems to lie only in an opposition to existing legal
practice and the need to reemphasize communal values.
This inability to find a constructive voice, along with other destructive
forces, has seriously weakened the significance of Critical Legal Studies in
today™s legal academy. One major problem has been the movement™s
inability to accommodate the insights of competing critical theories, such
as Critical Race Theory and Feminist Jurisprudence. Consequently, Crit-
ical Legalists lost their distinctive voice, and these alternate critical move-
ments have been taken more seriously. Another deflating influence for
CLS has been the softened stance several of their leaders have taken of
late. Unger and Kennedy in particular have written more acceptingly of


54 55
Ibid., 337“38. Ibid., 334“35.
56 57
Unger, Knowledge and Politics, 76. Ibid., 23.
264 The idea of law repudiated

liberalism and the possibility of the rule of law.58 While once offering
vigorous criticisms of the rule of law, CLS now seems relegated
to watching the Critical Race Theorists and Feminists build on its
foundations.

Feminist legal theory
By the 1980s, Critical Legal Studies had helped give rise to a yet more
aggressive branch of critical theory, feminist jurisprudence. Adopting
the CLS postmodern critique of rationalism, its rejection of the supposed
neutrality and objectivity of law, and its pessimism regarding liberal
individualism, a burgeoning feminist movement quickly armed itself
with the tools needed to undertake a deeper criticism of law and the
legal structure.
By the time the CLS movement had reached its peak in the late 1970s
and early 1980s feminism had undergone a significant revival. Inspired by
the civil rights movement, feminists of the 1960s and 1970s once again
asserted the right to equal protection and opportunity under law. Using
what has come to be known as the classical liberal argument, feminists
scored significant legal victories, from the legalization of abortion to the
inclusion of sexual harassment as a form of sexual discrimination pro-
hibited by law, and from the extension of law into the traditionally
regarded private family sphere to greater protection against workplace
discrimination. Liberal feminists asserted that subordination and in-
equality are caused by legal and social barriers which preclude women
from entering the public sphere. Statutes and norms that discriminate
based on stereotypical gender differences are therefore to be rejected based
on the liberal assumption that all individuals are born equal and deserve
equal treatment under law. The law should be gender blind and the
supposed differences between men and women are stereotypical social
constructions and should be discarded.
The removal of many of the formal legal barriers, however, exposed
more subtle and immanently more pervasive forms of inequality. Femi-
nists turned to arguing that the structure of law itself acted as an informal
source of inequality. As a result, many of these early feminists were forced
to rethink their previous positions, and, taking a far more critical
approach to law and legal theory, they began developing a distinctly
feminine legal theory.

58
Altman, Arguing About Law, 311 n.12. See Duncan Kennedy, A Critique of Adjudication
(Cambridge, MA: Harvard University Press, 1997), and Roberto Unger, What Should
Legal Analysis Become? (London: Verso, 1996).
From Realism to feminist jurisprudence 265
Feminist legal theorists argue that the traditional dichotomy between
rational/irrational, reason/emotion, objective/subjective, principled/
personal, abstract/contextualized, which typifies traditional western
thought, is both sexualized and hierarchized.59 Women have generally
been identified as irrational, emotional, subjective, and personal, while
men are understood as objective, rational, and principled. Furthermore,
the rational, objective side of the dichotomy is granted a dominant
position over its irrational, subjective counterpart. Women are therefore
subjugated to a subordinate status, a status that consequently renders
them unsuited for the practice of law, which is rational, objective, and
principled, or in other words, male. Likewise, feminists assert that the
hierarchical structure of the legal system, its domination by male practi-
tioners, and its ideologies and methodologies are distinctly male and as
such act as informal sources of inequality. The law, they claim, is patri-
archal and both intentionally and unintentionally excludes the voice of
women. It is, in its present form, a male concoction which systematically
oppresses women.60 Feminist legal theorists thus embarked on a crusade
to rid the law of its patriarchal bias, a crusade that would be far more
critical of law and the culture it is part of than was the general feminist
movement which had preceded it.
Intimations of the new crusade first appeared as early as the late 1960s
at a conference on “Women and the Law” in New York. Annual confer-
ences which followed promoted the proliferation of “Women and the
Law” courses in law schools and attacks on “gender discrimination.” In
1988, the Association of American Law Schools officially recognized
Feminist Jurisprudence by devoting to it an entire issue of the Journal
of Legal Education. For some time now, law journals have banned the
pronoun ˜he™ (writing ˜Judge Robert Thomas, she™) and regularly carry
articles on ˜feminist law™ by feminist professors.
As they turned to a theoretical and structural critique of law, feminists
drew heavily from Critical Legal Studies. Accepting the central assump-
tion of both CLS and its predecessor Legal Realism, feminists assert that
law is political; indeed it is political precisely because it is patriarchal. As a
result, the belief that the rule of law is designed to provide even-handed
application of known rules to the facts of cases at law must therefore be
discarded as a deceptive myth. Feminists likewise accept the central tenet


59
See Frances Olsen, “Feminism and Critical Legal Theory: An American Perspective,”
International Journal of Sociology of Law 18 (1990): 199“215.
60
See Robert Gordon, “New Developments in Legal Theory,” in Kairys, Politics of Law,
281. John Schlegel, “Notes Toward an Intimate, Opinionated and Affectionate History
of the Conference on CLS,” Stanford Law Review 36 (1981): 391.
266 The idea of law repudiated

of all political jurisprudence, the tenet inherited from Karl Marx, that the
human world consists of a struggle for power between weak and strong
and that the strong use the legal system as an instrument of domination. To
this view of law, feminists add the proposition that sexism is analogous to
classism and racism, and that inasmuch as capitalism perpetuates class
distinctions, the patriarchal order of society furthers the marginalization
and subordination of women.61
However, the majority of feminists are quick to move beyond a strictly
Marxist/Socialist analysis. They find that the subjection of women cannot
be reduced to the principle of class subordination. Gender is more funda-
mental than class and sexual discrimination will not disappear with the
termination of economic inequality.62 They point to the patriarchal
nature of the social structure as a whole rather than the economic struc-
ture as a source of female subordination.63 Likewise, though originally
called “Fem-Crits,” feminist lawyers soon found the CLS movement
wanting as well. At the CLS Conference of 1983, they complained of
being “ghettoised,”64 and argued that CLS had failed to recognize and
account for the patriarchal bias of law. Accepting the CLS position that
the reformation of law would require a more fundamental restructuring
of society, feminists asserted that this restructuring would require the
dissolution of patriarchy rather than simply reworking the capitalist
socio-economic order.
The revolutionary intentions of feminists are plainly announced. Femi-
nism is “political, methodological, philosophical, and intent upon social
transformation,” Professor Leslie Bender of Syracuse University declares,
though she acknowledges that we cannot know the shape of this brave
new world until domination of women is ended in all institutions.65
Although the fierce denunciations of “patriarchy” and “male domin-
ation” and the determination to end the oppression of women both unify
as well as distinguish feminist legal theory, the methodological ap-
proaches of many feminists, drawing on postmodern and poststructuralist
critiques, propose a much more radical objective “ an attack on all
rational discourse.


61
Catherine MacKinnon, “Feminism, Marxism, and the State: An Agenda for Theory,”
Signs: Journal of Women in Culture and Society 7 (1982): 515.
62
Carole Pateman, The Sexual Contract (Cambridge: Polity, 1988), 134“36.
63
See Diane Polan, “Toward a Theory of Law and Patriarchy,” in The Politics of Law:
A Progressive Critique, 3rd ed., ed. David Kairys (New York: Basic Books, 1998).
64
Carrie Menkel-Meadow, “The Fem-Crits Go to Law School,” Journal of Legal Education
38 (1988): 63.
65
Leslie Bender, “A Lawyer™s Primer on Feminist Theory and Tort,” Journal of Legal
Education 38 (1988): 4.
From Realism to feminist jurisprudence 267
According to Catherine MacKinnon, the primary project of feminism is
to unmask and destroy rationality and objectivity. She asserts that
the point of view of male dominance is “the standard for point-of-view-
lessness, its particularity the meaning of universality. Its force is exercised
as consent, its authority as participation, its supremacy as the paradigm
of order, its control as the definition of legitimacy.”66 Because of what
MacKinnon describes as the near metaphysical perfection of male dom-
inance, she finds hidden behind the apparent rationality and objectivity of
the judicial system a distinctly male superstructure that has marginalized
women by placing “maleness” as the “accepted” norm for public dis-
course. As a result, any attempt to secure sexual equality in the judicial
system requires a comprehensive attack on the objectivity, rationality,
and process of legal reasoning itself. As Professor Bender asserts, the
feminist critique of patriarchy cuts so deep that after extracting the “male
biases from our language, methods, and structures, we will have nothing “
no words, no concepts, no science, no methods, no law,” and there is
nothing to regret in this.67
The feminist rejection of objectivity, however, is not absolute. Many
feminists feel that such a radical attack is unnecessary. Martha Nussbaum,
for example, challenges what she calls the “feminist assault on reason,”
arguing that reason is the weapon of resistance to oppression “ not the
mode of oppression and that abandoning such a tool will unnecessarily
damage the feminist project.68 Liberal feminists claim that the irration-
alities of sexist doctrines can be exposed using the legal system™s own
norms and procedures. The current legal structure therefore need not
be abandoned. However, feminists like Wendy Williams are skeptical
about the judiciary™s ability to expose inequalities.69 Finally, others like
Katherine Bartlett and Martha Minnow assert that inasmuch as the female
voice has been largely excluded from the judicial process, the infusion
of a distinctly feminine rationale would significantly improve legal
reasoning.70
All feminists struggle against the phenomenon of male dominance, but
the objective is often nothing so naive as to give women equal rights with


66
Catharine MacKinnon, “Feminism, Marxism, Method, and the State: Toward Feminist
Jurisprudence,” Signs: Journal of Women in Culture and Society 8 (1983): 638“39.
67
Bender, “Feminist Theory and Tort,” 19.
68
Martha Nussbaum, “Review of Feminist Philosophy,” New York Review of Books
(October 20, 1994): 59, 62.
69
See Wendy Williams, “The Equality Crisis: Some Reflections of Culture, Courts, and
Feminism,” Women™s Rights Law Reporter 7 (1982): 175.
70
See Katharine Bartlett, “Feminist Legal Methods,” Harvard Law Review 103 (1990): 829;
and Martha Minnow, “Justice Engendered,” Harvard Law Review 101 (1987): 10.
268 The idea of law repudiated

men. Although they agree that the terms of social discourse have been set
by men, there is not so clear a consensus when dealing with the ramifica-
tions this has for the concept of equality. Departing from the arguments
of liberal feminism, many relational (or cultural) and dominance feminists
reject the liberal notion that equality can be gained through equal treat-
ment. Rather, they argue that the concept of equality itself is distinctly
male. “Equality” as understood and interpreted by the courts, means “the
same as” men, and “different” thus means unequal.71 Consequently, in
order for women to gain equality they must conform to a male standard,
which would reduce feminists to the banal level of suffragettes, asking
merely to be let in, without correcting the system itself.72 The ambition of
feminist lawyers is, therefore, to purify legal concepts of any male conno-
tations of objectivity and neutrality which, by requiring men and women
to be treated equally, in effect subject women to male standards. Concerns
with formal legal equality thus horrify feminists because it prevents us
from seeing whether actual material conditions have moved closer to
“real” or “substantive equality” measured in empirical terms such as
income or desegregation in employment, schools, and other institutions.73
This feminist attitude toward legal equality is heavily influenced by
the research of Professor Carol Gilligan, a Harvard psychologist, who
argues that girls tend to score poorly on tests measuring the power of
moral reasoning because the tests are based on male norms such as rights
and abstract principles of justice.74 She asserts that the male approach
to morality is to abstract the moral problem from the interpersonal level
by establishing universal values and principles. The female concept of
morality, however, focuses instead on the network of relations wherein
the dilemma occurs and then seeks to secure through communication a
resolution in the best interest of all. The female ethic is an ethic of care,
while the male ethic is an ethic of value or right.75 The girls, therefore, do
badly, according to Professor Gilligan, because their attention is focused
on people™s dependence on one another. Being child-bearers and having
worked as secretaries and cleaning staff, women generally identify with
oppressed groups as they know from experience the evils of being an
“underclass.” But such considerations are necessarily ignored by a system


71
Christine Littleton, “Restructuring Sexual Equality,” California Law Review 75
(1987): 1282.
72
Janet Rifkin, “Toward a Theory of Law and Patriarchy,” Harvard Women™s Law Journal
3 (1980): 85.
73
Bender, “Feminist Theory and Tort,” 26f.
74
Carol Gilligan, In a Different Voice (Cambridge, MA: Harvard University Press, 1982).
75
Gilligan, In a Different Voice, 32, 74.
From Realism to feminist jurisprudence 269
that resolves problems from male vantage points which are distanced,
abstract, and acontextual.
Building on Professor Gilligan™s insights, relational feminists are prone
to divide the world into two kinds of beings: those who “confront prob-
lems contextually” with “particularity and sensitivity to feelings and
physical needs,” and those who think in terms of universals, principles,
rules, distinctions, and consistency. Women, they believe, instinctively
exhibit the former attitude; the latter is the male view, which has domin-
ated civilization. They adopt the traditional dichotomy between rational/
irrational and its sexualization; however, they reject the hierarchical
superiority of rational, objective, and principled, over irrational, subject-
ive, and personal. Equality can therefore only be gained when the legal
system is restructured to accept the female side of the dichotomy as
equally applicable to legal decision-making.
Whereas both liberal feminists and relational feminists focus on the
differences between men and women, thus debating whether women
should be treated the same as, or differently from men, dominance
theorists, led by Catherine MacKinnon, argue that the affirmation of
differences actually guarantees continued inequality. These feminists
therefore abhor the traditional distinctions between male and female.
Distinctions between what is rational and irrational, objective and preju-
diced, principled and arbitrary, as well as private and public, personal and
political are not condemned simply for belonging to the cold male out-
look, they are rejected primarily because they are the vehicles of male
dominance. Catherine MacKinnon explains that the difference approach
of liberal and relational feminists fails to recognize that gender itself is
socially constructed by men to subjugate women. She explains that the
difference between sexes amounts to “the systematic relegation of an
entire group of people to a condition of inferiority and attribute[s] it to
their nature.”76 Gender is in essence “an inequality first, constructed as a
socially relevant differentiation in order to keep that inequality in place,”

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