These questions lie at the heart of contemporary feminist theory, and in this collection they are addressed by a group of distinguished international scholars ...

Feminist legal theory has undergone some significant changes over the past thirty years. This article provides an introductory overview of feminist legal theory, from liberal and radical feminism through to postmodernism. It outlines some of the major current issues within feminist legal thought, notably debates surrounding culture and religion, the relationship of sex and sexuality scholarship to feminist research, and the position of women within transitional societies.

Legal Philosophies has been written to provide a clear guide to the main topics in a jurisprudence or legal theory course with the novice in mind. It provides summaries of the pertinent arguments within these topics, and of the views of leading theorists. This new edition takes a look at the emergence of "Critical Legal Studies" and "Feminist Jurisprudence", whilst there are new sections on "Moral Truth" and "Communitarianism" (a revived theoretical approach).

This chapter contains section titled: The Double Bind of Sameness and Difference Dominance, Feminism, and Legal Protection Domesticity and Institutional Organization Conclusion References Further Reading.

Preparation for the Study of Theories of Law: Non-Universality of Law, Irreconcilable Epistemologies, Ideological Incipience; Theories in Metaphysical-Rational Epistemology: Divine and Prophetic Theories; Natural Law: Early Hindu, Chinese, Greek, Roman, and Modern; Theories in Idealist Epistemology; Theories in Empiricist Epistemology; Positivist: Early Hindu, Chinese, Later Bentham, Austin, Kelsen, Hart; Historical Von Savigny, Maine, Marx and Engels; Sociological Jhering, Ehrlich, Duguit, Jurisprudence of Interests, Free Law; Psychological Petrazycki; American Realist; Philosophical Framework; Expressions; Scandinavian Realist; Phenomenological; The Critical Legal Studies and (...) its Offshoots: Critical Legal Studies, Feminist Jurisprudence, Critical Race Theory; Legal Polycentricity. (shrink)

Critical Legal Theory and the Challenge of Feminism provides both a thorough overview and a refinement of the ideas that underlie critical legal theory. Arguing with the rigor of analytic philosophy and the alertness to paradoxes characteristic of deconstructive philosophy, Matthew Kramer begins by exploring the tangled relations between metaphysics and politics. He then attempts to transform the discourses of the critical legal studies movement by laying out a framework of five general themes: contradictions, contingency, (...) patterning, perspective, and ideology. Kramer calls for a more sophisticated awareness of their paradoxes, explaining why the paradoxes are by no means disabling or demobilizing. Finally, Kramer explores some of feminist theory's major controversies and problems, and argues that feminist theory can profit greatly by giving due attention to inescapable paradoxes. The book is an important contribution to political philosophy, jurisprudence, feminist philosophy and metaphysics, with powerful implications for epistemology and literary theory. (shrink)

Data-driven predictive algorithms are widely used to automate and guide high-stake decision making such as bail and parole recommendation, medical resource distribution, and mortgage allocation. Nevertheless, harmful outcomes biased against vulnerable groups have been reported. The growing research field known as 'algorithmic fairness' aims to mitigate these harmful biases. Its primary methodology consists in proposing mathematical metrics to address the social harms resulting from an algorithm's biased outputs. The metrics are typically motivated by -- or substantively rooted in -- ideals (...) of distributive justice, as formulated by political and legal philosophers. The perspectives of feminist political philosophers on social justice, by contrast, have been largely neglected. Some feminist philosophers have criticized the local scope of the paradigm of distributive justice and have proposed corrective amendments to surmount its limitations. The present paper brings some key insights of feminist political philosophy to algorithmic fairness. The paper has three goals. First, I show that algorithmic fairness does not accommodate structural injustices in its current scope. Second, I defend the relevance of structural injustices -- as pioneered in the contemporary philosophical literature by Iris Marion Young -- to algorithmic fairness. Third, I take some steps in developing the paradigm of 'responsible algorithmic fairness' to correct for errors in the current scope and implementation of algorithmic fairness. I close by some reflections of directions for future research. (shrink)

This book pursues the argument that an attention to emotions produces a more nuanced, and more adequate, feminist account of legal subjectivity. Although the relationship between law and feminism has resulted in a vast body of work, the issue of emotions has not been foregrounded in feminist legal scholarship. Indeed, many feminists have argued that reason and not emotion must provide the foundational basis for all laws and legal reforms; an argument that has led to (...) a division of the legal and the psychic or the emotional into separate and distinct zones. Challenging this separation, the book engages a range of recent criminal law cases and legislation in India in order to advocate a 'feminisation' of law. Drawing on psychoanalytic theory, the book takes up a range of issues surrounding sexual violence in order to propose a shift from viewing law as reason to seeing law as the terrain of messy and contradictory emotional continuums; where legal subjects are viewed in their psychic dimensions, and where law itself is opened up to its own unconscious desires. Foregrounding emotions in this way, the book argues, can offer new insights into the operation of criminal law, and new orientations for feminist ways of responding to, and engaging with, it. This book will be of interest to scholars and students working in the areas of criminal law, legal feminism, and gender studies. (shrink)

At the intersection of law, feminism and philosophy, this book analyses the ways in which certain bodies and 'selves' continue to be treated as monstrous aberrations from the 'ideal' figure or norm. Employing contemporary feminist philosophy to rethink accepted legal ideas, the book is divided into three sections. The first focuses on the different relational ontologies of philosophers Adriana Cavarero and Christine Battersby - also considering their work via a third term: Spinoza. The second turns to (...) diverse feminist engagements with the social contract theorists. The third section employs insights from throughout the book to focus more explicitly on law - and, in particular privacy law and the so-called 'wrongful birth' cases. Bringing together more than twenty years of sustained reflection, this book offers an insightful account of how contemporary feminist philosophy can contribute to a richer understanding of law. It will be of enormous interest to scholars and students working in the areas of legal theory, feminist thought and philosophy. (shrink)

Radical Philosophy of Law represents a cross section of contemporary critiques of the legal establishment—its theoretical foundations and its institutions and processes. Recognizing that proposals for alternatives to mainstream legal theory and practice do not belong to any single discipline, Caudill and Gold select essays by scholars in philosophy, sociology, criminology, and political theory, in addition to law professors and practitioners. Recognizing, as well, that no single perspective dominates radical legal theory, the essays exemplify the (...) approaches associated with Marxian and neo-Marxian analyses, American Critical Legal Studies and Critical Race Theory, radical feminism, semiotics, liberal theology, and psychoanalytic theory and criticism. (shrink)

Providing balanced coverage of abortion, sexual harassment, censorship and pornography, and other timely and controversial subjects, this pathbreaking anthology is the first to offer a comprehensive introduction to feminist legal philosophy. An important resource for courses in women's studies, philosophy, law, sociology, and political science, it provides many stimulating insights into essential topics in jurisprudence, such as the nature and justification of law, judicial reasoning and the process of adjudication, the connection between law and equality, and (...) freedom and justice. (shrink)

Providing balanced coverage of abortion, sexual harassment, censorship and pornography, and other timely and controversial subjects, this pathbreaking anthology is the first to offer a comprehensive introduction to feminist legal philosophy. An important resource for courses in women's studies, philosophy, law, sociology, and political science, it provides many stimulating insights into essential topics in jurisprudence, such as the nature and justification of law, judicial reasoning and the process of adjudication, the connection between law and equality, and (...) freedom and justice. (shrink)

This article investigates the critical potential of a contemporary dystopia, The Handmaid’s Tale (Miller 2017-), a U.S. television series adapted from a popular novel by Canadian author Margaret Atwood (1985). The text is widely understood as a feminist intervention that speaks to ongoing struggles against gender oppression, but in this article I consider the invitations that the show offers its viewers in treating race the way that it does, and consider what it means to refuse these invitations in pursuit (...) of a critical feminist understanding of authority, legal subjectivity, and violence. Drawing on the recent turn to genre, my reading focuses on how whiteness is reproduced through this cinematic text and its inculcation of particular ways of seeing, modes of identification and attachment. The Handmaid’s Tale’s post-racial aesthetic means that its thematic engagement with gender, sexuality and resistance actively disavows national and international histories of racist state violence and white supremacy. Its problematic feminism is thus uniquely instructive for understanding how whiteness is reproduced in contemporary (neo)liberal configurations of legal subjectivity and state authority. (shrink)

This article examines two modalities of law, depicted spatially as the vertical and the horizontal. The intellectual background for seeing law in vertical and horizontal dimensions is to be found in much socio-legal scholarship. These approaches have challenged the modernist, legal positivist and essentially vertical view of law as a system of imperatives emanating from a hierarchically superior source such as a sovereign. In keeping with the socio-legal critical tradition, but approaching it from the perspective of (...) class='Hi'>legal philosophy, my aim is to address three matters. First, why is vertical law problematic for feminists? Second, what are the theoretical characteristics of law in its horizontal register? Third, how is an appreciation of this ‘flat’ law useful for feminist legal theory and practice? In particular, I consider the ways in which feminist legal theory operating in the horizontal dimension can transgress, without transcending, the vertically determined perimeters of the nation state. (shrink)

This review presents a critical reading of Calboli's and Montagnani's _Handbook of Intellectual Property Research_ from the perspective of Applied Legal Linguistics (ALL). It first identifies the lack of discussion from the perspective of applied legal linguistics (ALL), legal semiotics, and discourse analysis, and points out the strong connection between intellectual property (IP) law and language. I seek to convey my insight how legal linguistics is not merely auxiliary but is, in fact, very much intertwined with (...) real-world legal outcomes in IP law. The review focuses on both internal and external questions in IP law, and particularly engages with the question of how language use in various legal contexts shapes the application of IP law. The article presents the four parts of the handbook, each of which examines the intersections of IP law with other areas of inquiry. It is found that the way the handbook’s contents are structurally arranged is likely to help readers maneuver successfully between quite different legal, humanistic, social science, and pluralistic perspectives on IP law. This allows for both a broad overview and targeted research depending on readers’ focus or interest. Part I discusses interactions between IP law and other legal areas, such as international law, comparative law, contract law, tort law, and criminal law, inter alia, and points towards the methodological diversity and the interconnectedness of these areas of legal study. Part II then explores the relationship between IP and the humanities, including but not limited to cultural heritage, history, and philosophy. Part III then shifts focus to empirical social sciences and covers, inter alia, economics, ethnography, and technological analysis. It is shown that data-driven research can deepen one’s understanding of IP law. Finally, Part IV focuses on pluralism, which, amongst other things, includes sustainable development, human rights, and critical theories, such as Critical Race Theory (CRT) and feminist legal theory, which link the role of IP to the notions of social justice and other critical concerns. (shrink)

Modern legal theory contains a wide range of approaches and topics: from economic analysis of law to feminist legal theory to traditional analytical legal philosophy to a range of theories about justice. This healthy variety of jurisprudential work has created a problem: students and theorists working in one tradition may have difficulty understanding the concepts and terminology of a different tradition. This book works to make terminology and ways of thinking accessible. This dictionary covers topics (...) from 'the autonomy of law' to the 'will theory of rights', from 'autopoiesis' to 'wealth maximization', and from 'John Austin' to 'Ludwig Wittgenstein'. The most important concepts and ideas are presented in a simple dictionary format. There are also many longer entries, where the initial definition gives an accessible explanation, but the entry goes on to give more detailed information about the history of an idea and the debates currently surrounding it. (shrink)

In the not-too-distant past, medical assistance in dying was illegal in Canada. Assisted suicide and voluntary euthanasia were prohibited by the Criminal Code. Many attempts were made to change the law. The most famous of these was the case of Sue Rodriguez, who took a Charter challenge of the prohibition to the Supreme Court of Canada. A number of bills were also introduced in the Federal Parliament. All were doomed to failure. But then … change came.First, the province of Quebec (...) passed An Act Respecting End-of-Life Care in 2015 establishing a legal right to MAiD "at the end of life." Then, the Carter case... (shrink)

This article brings together feminist literary theory and law by approaching a number of U.S. Federal cases on sex equality in light of the work of the renowned feminist literary critic Naomi Schor, and shows that literary theory constitutes an under-explored resource for feminist legal critique. Schor’s writings constitute a sustained rumination on the relationship between reading and feminism. Drawing on writings on language and the body by key French feminist theorists, Schor advances a method (...) of interpretation which she terms, provocatively, ‘clitoral reading’, and which focuses on the place of details relating to women’s bodies and desires within literary and cultural discourses. In the course of her career, she analysed texts from domains as diverse as literature, philosophy, visual art, the history of fashion, and photography. I will demonstrate that her work can make a valuable contribution to legal studies by using it as an interpretative lens to re-examine U.S. Federal court judgments. (shrink)

A theme of growing importance in both the law and philosophy and socio-legal literature is how regulatory dynamics can be identified and normative expectations met in an age when transnational actors operate on a global plane and in increasingly fragmented and transformative contexts. A reconsideration of established theories and axiomatic findings on regulatory phenomena is an essential part of this discourse. There is indeed an urgent need for discontinuity regarding what we know about, among other things, law, legality, (...) sovereignty and political legitimacy, power relations, institutional design and development, and pluralist dynamics of ordering under processes of globalisation and transnationalism. Making an important contribution to the scholarly debate on the subject, this volume features original and much-needed essays of theoretical and applied legal philosophy as well as socio-legal accounts that reflect on whether legal positivism has anything to offer to this intellectual enterprise. This is done by discussing whether global and transnational cultural, socio-political, economic, and juridical challenges as well as processes of diversification, fragmentation, and transformation reinforce or weaken legal positivists’ assumptions, claims, and methods. The themes covered include, but are not limited to, absolute and limited state sovereignty; the ‘new international legal positivism’; Hartian legal positivism and the ‘normative positivist’ account; the relationship between modern secularisation, social conventionalism, and meta-ontological issues of temporality in postnational jurisprudence; the social positivisation of human rights; the formation and content of jus cogens norms; feminist critique; the global and transnational migration of principles of justice and morality; the Vienna Convention on the Law of Treaties rule of interpretation; and the responsibility of transnational corporations. (shrink)

Feminist Social Thought brings together key articles by prominent feminist thinkers, offering students sophisticated treatment of the theoretical topics central to feminist social thought. This reader highlights salient concerns in contemporary feminist scholarship and the advances feminist philosophers have made. The editor's introduction outlines alternative routes through the text, allowing instructors to easily adapt this reader to their particular courses and the interests of their students. Each article is prefaced with a short introduction by the (...) editor placing it in context, highlighting the principle issues and the conclusions reached. Students will find these headnotes helpful when tackling the challenging theoretical issues addressed. Representing a spectrum of feminist thinking, Feminist Social Thought is organized around seven topics constructions of gender; theorizing diversity; figurations of women; subjectivity, agency and feminist critique; social identity, solidarity and political engagement; care and its critics; and women, equality and justice. Students will be exposed to a wide variety of feminist philosophy and encouraged to think critically about challenging questions around pivotal subjects including * How are gender norms instilled, enforced, and perpetuated? * What are the relationships between gender and other socially demarcated positions such as race, class and sexual orientation? * What resources do women have at their disposal for recognizing their subordination and resisting it? * What goals should feminist politics pursue? * How can social and legal equality be reconciled with difference? (shrink)

This paper takes a recently published text and, in examining it closely, argues that it exemplifies trends within feminist scholarship in law, which might be characterised asestablishing a form of orthodoxy. The paper explores some of the ways in which thiso rthodoxy is constructed and presented, and argues that it is characterised by a commitment both to `grand theory' and Hegelian dialectics. The adoption of this model of work seems to offer a chance to hold together the triangular figure (...) of women/theory/law reform. The paper will argue that, whilst this model is clearly a valid choice, and attractive to feminist scholars in the promise it seems to hold, the model is not to be presumed but rather should be examined and considered in terms of its potential for feminist scholarship. Both within its own terms, and as part of the construction of an orthodoxy, the paper will argue that it is in fact problematic and that feminist scholarship would be better served by seeking an alternative theoretical model. An alternative is suggested, using the work of Deleuze, but it is acknowledged that this will require the acceptance of a very different theoretical configuration from that suggested by the triangular model of women/theory/lawreform. (shrink)

Habermas’ account of the radically intersubjective constitution of subjectivity is of great use to feminist theorists, as is his defense of the rational character of normative claims. Feminists must however, reject his reductive identification of subjectivity with language and rationality. Some feminists’ concerns insist on continuing to distinguish morality from legality, something that Habermas, despite his own better intuitions and arguments, is sometimes disinclined to do.

This engaging book examines the origins and first effects of the concept ‘legal semiotics’, focusing on the inventor of the term, Roberta Kevelson. It highlights the importance of her ideas and works which have contributed to legal theory, legal interpretation and philosophy of language. Kevelson’s work is particularly relevant today, in our world of global electronic communication networks which rely so much on language, signs, signals and shortcuts. Kevelson could not have foreseen the 21st century, yet (...) the story of her work and influence deserves more attention as it is key to our understanding of modern legal discourse and why law fascinates and is accepted in modern society. The authors draw on Kevelson’s hitherto unknown Office Papers and Notes, and a biographical examination points to key influences in her work such as the early feminist movements of the US East Coast, the philosophy of Charles Sanders Peirce and the semiotics of Thomas Sebeok. This forms the basis for a more encompassing research of Kevelson’s position, work and philosophical background, which the authors call for. A quick and enlightening read, this book interests a wide range of readers with an interest in legal history and the fields which Kevelson both drew on and influenced, including lawyers, students and scholars. (shrink)

This leading anthology contains essays and cases written by some of the most influential figures in legal philosophy, representing the major theoretical positions in the field. Its primary focus is to relate traditional themes of legal philosophy to the concerns of modern society in a way that invigorates the former and illuminates the latter. This classic text is distinguished by its clarity and accessibility, balance of topics, balance of positions on controversial questions, topical relevance, imaginative use (...) of cases and stories, and the inclusion of only lightly edited or untouched legal classics. This revision is distinguished by its inclusion of new material on law and economics, international law, distributive justice, religion and freedom of expression, feminist legal theory, and critical race theory, as well as a greater emphasis on concrete legal problems. (shrink)

Utilising literature as a serious source of challenges to questions in philosophy and law, this book provides a fresh perspective not only upon the inculcation of the legal subject, but also upon the relationship between modernism, postmodernism and how such concepts might evolve in the construction of community ethics. The creation and role of the legal subject is just one aspect of jurisprudential enquiry now attracting much attention. How do moral values act upon the subject? How do (...) moral 'systems' impinge upon the subject - jurist and judged - throughout the 20th century, when religious values are called into question, when 'existential' doubt prevails? To what extent do issues of gender and identity inform these questions? Many sources can provide insights into these issues: this book intends to concentrate upon fiction as just such a resource. However it is not just another law and literature compilation. Spanning the last century, each chapter will attempt to fulfil four objectives: to identify key texts in relation to a given period; to look for linked legal and philosophical developments from that period; to establish fresh links from these sources regarding concrete doctrinal, or practical legal questions, and finally draw a more general inference about the legal subject and the frequently less evident feminine citizen-subject. Central to this approach will be the consideration of contemporary case law and legal materials as social documents of the relationship between law and the wider community. (shrink)

This chapter examines María Lugones’s germane and insightful attempt to theorize “intermeshed oppressions,” which, she argues, have been (mis)represented in women of color feminisms by the concepts of “interlocking systems of oppression” and, more recently, “intersectionality.” The latter, intersectionality, introduced by Black feminist legal scholar Kimberlé Williams Crenshaw as a metaphor (1989) and as a “provisional concept” (1991), has become the predominant way of referencing the mutual constitution of what have been theorized as multiple systems of oppression, constructing (...) the multiplicity of social identities. But Lugones’s analysis, which maintains subtle but important distinctions among the concepts of “intermeshed,” “interlocking,” and “intersecting” oppressions, shows that intersectionality theory often conflates fragmentation with multiplicity, and—by reifying “intersectional identities”—reproduces social-ontological fragmentation at the political and perceptual-cognitive levels of representation. Intersectional accounts redeploy unitary categories (for instance, race, gender, class, sexuality, disability) that are defined to the exclusion of each other by privileging the identities of normative group members. Consequently, they remain within what Lugones calls the “logic of purity,” which erases “curdled,” impure, category-transgressive, border-dwelling, mestiza subjects. Although, according to Lugones, intersectionality enables us to discern how the logic of purity produces “women of color” as impossible beings, she argues that the liminal identities of subjects dwelling in categorial interstices can only be made visible by conceptualizing oppressions as fused or “intermeshed.” However, as I interpret her, Lugones is not merely criticizing intersectionality or seeking to transcend its conceptual limitations by proposing an alternate concept. Rather, the concepts of “intermeshed,” “interlocking,” and “intersecting” oppressions do significantly different work in her account and illuminate different aspects of the social ontology, phenomenology, and epistemology of resistance to oppression. First, I situate Lugones with respect to the current conjuncture in intersectionality studies, in which some scholars are calling for a post-intersectional turn. Then, I reconstruct Lugones’s complex account of intermeshed oppressions, interlocking oppressions, and intersectionality. Finally, I discuss the status of intersectionality in the shift in Lugones’s work from “women of color feminisms” to “decolonial feminism.” Intersectionality is now routinely invoked as a representational theory of multiple identities, but Lugones’s heterodox interpretation helps us to see that it is best understood as a critique of representations based on the logic of purity: specifically, of how categorial axes of oppression (mis)represent intermeshed oppressions. Lugones’s triadic distinction (intersecting/interlocking/intermeshed) points toward a provisional usage of intersectionality, namely, to diagnose the fragmentation of social experiences of multiplicity (which, I would argue, is more consistent with the concept’s original aims). In her visionary philosophy, which attempts to theorize resistance against the grain of fragmentation from a conceptual space outside of the “logic of purity,” we find “glimpses” of a non-fragmented account of oppression, and praxical possibilities for liberatory, decolonial feminist coalitions. (shrink)

The civil rights and feminist movements of the sixties did not leave legal theory untouched. Over the following two decades, the critical legal studies movement--led by the Brazilian philosopher, social theorist and politician Roberto Unger--sought to transform traditional views of law and legal doctrine, revealing the hidden interests and class dominations in prevailing legal frameworks. It remains highly influential, having spawned more recent movements, including feminist legal studies and critical race theory. The Critical (...) Legal Studies Movement develops its major ideas, showing how laws and legal discourse hide the social inequalities and political biases that so interest philosophy and revolutionary politics. (shrink)

"Lesbian feminism began and has fueled itself with the rejection of liberalism.... In this rejection, lesbian feminists were not alone. They were joined by the New Left, by many blacks in the civil rights movement, by male academic theorists.... What all these groups shared was an intense awareness of the ways in which liberalism fails to account for the social reality of the world, through a reliance upon law and legal structure to define membership, through individualism, through its basis (...) in a particular conception of rationality." In tracing how lesbian feminism came to be defined in uneasy relationships with the Women’s Movement and gay rights groups, Shane Phelan explores the tension between liberal ideals of individual rights and tolerance and communitarian ideals of solidarity. The debate over lesbian sado-masochism—an expression of individual choice or pornographic, anti-feminist behavior?—is considered as a test case. Phelan addresses the problems faced by "the woman-identified woman" in a liberal society that presumes heterosexuality as the biological, psychological, and moral standard. Often silenced by laws defining their sexual behavior as criminal and censured by a medical establishment that persists in defining homosexuality as perversion, lesbians, like blacks and other groups, have fought to have the same rights as others in their communities and even in their own homes. Lesbian feminists have also sought to define themselves as a community that would be distinctly different, a community that would disavow the traditional American obsession with individual advancement in the world as it is. In this controversial study of political philosophy and the women’s movement, Phelan argues that "the failure to date to produce a satisfying theory and program for lesbian action is reflective of the failure of modern political thinking to produce a compelling, nonsuspect alternative to liberalism." In the series Women in the Political Economy, edited by Ronnie J. Steinberg. (shrink)

Most mainstream feminist anti-rape scholarship and activism may be described as carceral feminism, insofar as it fails to engage with critiques of the criminal punishment system and endorses law-and-order responses to sexual and gendered violence. Mainstream feminist anti-rape scholars and activists often view increased conviction rates and longer sentences as a political goal—or, at the very least, are willing to collaborate with police and lament cases where perpetrators of sexual violence are given “light” or non-custodial sentences. Prison abolitionists, (...) on the other hand, have tended to insist that most lawbreakers are non-violent and that the “dangerous” are “few”, thus avoiding serious engagement with the widespread phenomenon of sexual violence. Despite the prevalence of carceral feminism, to my knowledge no feminist scholar has explicitly embraced this label, and the closest I have found to a defense of carceral feminism is feminist legal scholar Lise Gotell’s “critique of the critique of carceral feminism”. For this reason, it is with Gotell’s article that I primarily engage in defending anti-carceral feminism and prison abolitionism even in the difficult case of sexual assault. (shrink)

This paper draws upon contemporary feminist philosophy in order to consider the changing meaning of privacy and its relationship to identity, both online and offline. For example, privacy is now viewed by European Court of Human Rights (ECtHR) as a right, which when breached can harm us by undermining our ability to maintain social relations. I briefly outline the meaning of privacy in common law and under the European Convention on Human Rights (ECHR) in order to show the (...) relevance of contemporary feminist thought, in particular the image of selfhood that stresses its relationality. I argue that the meaning of privacy is in the process of altering as a result of a number of contingent factors including both changes in technology, particularly computer mediated communication (CMC), and changes in the status of women. This latter point can be illustrated by the feminist critique of the traditional reluctance of the liberal state to interfere with violence and injustice within the “privacy” of the home. In asking the question: “how is the meaning of “privacy” changing?” I consider not only contemporary legal case law but also Thomas Nagel’s influential philosophical analysis of privacy. Nagel’s position is useful because of the detail with which he outlines what privacy used to mean, whilst bemoaning its passing. I agree with his view that its meaning is changing but am critical of his perspective. In particular, I challenge his claim regarding the traditional “neutrality of language” and consider it in the context of online identity. (shrink)

Deconstruction both by its friends and enemies has come to be associated with a set of cliches that completely misunderstands its ethical aspiration. It is particularly within the field of law that we can see the ethical force of deconstruction, and also illuminate its concrete and practical importance. In The Philosophy of the Limit Drucilla Cornell examines the relationship of deconstruction to questions of ethics, justice and legal interpretation. She argues that renaming deconstruction "the philosophy of the (...) limit" will allow us to be more precise about what deconstruction actually is philosophically and hence to articulate more clearly its significance for law. Cornell explores the ethical and juridical significance of the so-called postmodern rebellion against metaphysics. A shared ethical rebellion links philosophers as different as Theodor Adorno, Jacques Derrida, Jacques Lacan, and Emmanuel Levinas. Together they present a new ethical configuration, new in its difference from both the critical social theory of J$u$urgen Habermas and the analytic jurisprudence of Nagel and Rawls. A key aspect of this newness is the centrality given to the relationship between questions of ethics and sexual difference. Cornell argues that the appeal of Lacan's analysis to feminists is that it helps to explain the profound hold the gender hierarchy has over Western culture, including its theories of political transformation. Under a Lacanian analysis the law of gender identity will be replicated in the laws of an existing legal system. This means that we cannot hope to sustain legal reforms unless the gender hierarchy is challenged. Cornell examines Derrida's position on the significance of the gender hierarchy in philosophy and explores its ethical and political importance. Derrida's intervention against legal positivism has important implications for the legal reforms necessary to protect marginalized groups. His emphasis on the limit, she argues, is crucial to thosewhose well-being and very lives may depend on legal transformation, women and homosexuals, for example. In an important contribution to legal philosophy, Cornell explores the affinities of Derrida's writings with recent liberal analytic jurisprudence. She also explores the differences. Comparing Rawls's and Derrida's accounts of justice, she argues that Derrida gives greater attention to the necessary utopian moment in his insistence on maintaining the divide between law, established norms, and justice. Cornell's focus on the importance of the limit and the centrality of the gender hierarchy allows her to offer a view of jurisprudence different from both critical social theory and analytic jurisprudence. As we watch the long-fought-for civil rights of women systematically overturned, we have reason to think about how the connections she makes shed light on an underlying truth of our social, political, and legal reality. (shrink)

Criminal law practices in the US, including policing and incarceration, have drawn heavy criticism for their disproportionate impact on black people, particularly black men. At the same time, some feminist scholars and activists advocate for increases in criminal law responses to sexual assault, including expanding criminal statutes to cover more instances of sexual assault and increasing sentencing guidelines. These reforms are often justified by claims that criminal law should express more feminist values and reject sexist social schemas. This (...) paper makes the case that criminal legal interventions aimed at changing sexist social schemas, such as ‘rape culture,’ are unlikely to be successful because criminal law is effective at maintaining existing social norms, but bad at introducing novel ones. Similarly, in the US, criminality has been ideologically linked to blackness, so attempts to use the stigma of criminality to combat sexual violence are likely to reinforce anti-black racism. The very meaning of a criminal law depends on related social schemas, and the racist social schemas associated with criminality undermine the ability of criminal legal responses to present anti-sexist values. At best, criminal legal reforms aimed at expressing the equal dignity of women will be ambiguous because their meaning is negotiated by existing sexist and racist social schemas. Thus, penal expressivism cannot offer a justification for using criminal law to combat sexual assault. (shrink)

This article seeks to identify and address the normative void that resides at the heart of postmodernist-feminist theory, and to propose a philosophical framework – beyond postmodernism, but incorporating its central insights – for thinking through the normative questions with which feminists are inevitably confronted in their engagements with positive law. Two varieties of postmodernist-feminism are identified and critically analysed: the ‘corporeal feminism’ of Elizabeth Grosz and Judith Butler, which seeks to ground feminist critical practice in the irruptive (...) capacities of the material body considered as an arte fact of social construction; and the deconstructionist feminism of Drucilla Cornell, for whom ‘the feminine’ is an indeterminate but disruptive force beyond its construction in law and in other social sites. The first component of the argument elaborated here is that each of these approaches ultimately reduces to a form of aestheticism which is incapable of generating a worthwhile and workable feminist approach to the restructuring of politics and law. The second component of the argument involves a return to aesthetics, in particular to the philosophical aesthetics of Kant’s Critique of Judgement. Kant’s aesthetic philosophy, it will be suggested, yields a framework of concepts which, duly re-manipulated, could speak to the very concerns that have inspired postmodernist-feminism: how to attend to (bodily) particularity while avoiding the dangers associated with ‘essentialism’; and how to theorise the propensity of the unrepresentable power of the feminine to exceed both embodied human capacities and the confining rein of socially privileged rationalities. Crucially, however it also responds to a set of preoccupations – those of the feminist lawyer – that cannot be accommodated by postmodernism: how to translate embodied experience into (legal) norms; generalise from the particular; seek consensus; and codify an endless potentiality in the form of law. (shrink)

The studies of politics and law are closely related in that both deal with the use of coercive power in society, yet the two disciplines are often curiously isolated from each other. Political theorists are rarely concerned with the specific content and application of the legislation which they regard as one of the main outputs of a political system, while legal academics are, traditionally at least, noted for their general indifference to the political and economic context of the rules (...) and they seek to explain and systemize. (shrink)