FEMINISM CONFRONTS HOMO ECONOMICUS: GENDER, LAW & SOCIETY

Vol. 15 No.8 (August 2005), pp.754-757

FEMINISM CONFRONTS HOMO ECONOMICUS: GENDER, LAW & SOCIETY, by Martha Albertson Fineman and Terence Dougherty (eds). Ithaca: Cornell University Press, 2005. 536pp. Cloth $60.00. ISBN: 0-8014-4311-3. Paper $29.95. ISBN: 0-8014-8941-5.

Reviewed by Claire E. Rasmussen, Department of Political Science and International Relations, University of Delaware. Email: cerasmus@UDel.Edu .

Law and Economics scholars seek parisimonious explanations for social phenomena and a correspondingly simple legal structure to achieve their relatively simple ends. Feminist scholars, on the other hand, have devoted much time and ink complicating and challenging our understanding of the social world, seeking to root out and remedy social injustice. These two intellectual trends butt heads in the edited volume, FEMINISM CONFRONTS HOMO ECONOMICUS, a substantial anthology that seeks to engage law and economics scholarship from a feminist perspective. In spite of the feminist commitment of the authors included in the collection, the book may offer more to law and economics scholars than to feminists, who may find little that is new.

The first two sections examine the philosophical origins and assumptions of the Law and Economics school, providing a fairly succinct summary of its basic economic and legal principles and examining some general and feminist critiques. The essays address debates about the basic assumptions in economic literature. Authors discuss analytical and normative differences, sometimes challenging the logical consistency of economic approaches to basic differences over competing goals of efficiency or equality. Parts three through five examine some of applications of economic principles. Again, the volume moves from general discussion of the economic premises of the literature into specific feminist concerns, including welfare and the sexual division of labor. The final section of the text addresses the application of economic principles to other arenas of life, especially the family.

The introductory chapter reflects the general incredulity of feminist scholars toward law and economics literature, fearing the claims to scientific and neutral inquiry may mask defense of a sexist status quo. To their credit, editors Martha Fineman and Terence Dougherty have selected a set of authors who reflect a variety of positions relative to the Law and Economics approach. In Chapter Two, for instance, Neil Buchanan and Douglas Kysar engage in a lively debate about the logical consistency of economic analyses and whether feminists will be “colonized” by considering economic methodologies. Deirdre McCloskey defends a re-reading of the economics literature using Adam Smith and rejects oversimplifications such as “utility” calculations that, she argues, ignore the emphasis on ethical questions in Smith. Others attempt to co-opt economic principles for egalitarian purposes. Laura Kessler’s [*755] piece on women’s domestic work presents an argument for commodifying unpaid labor in the home, arguing that the egalitarian outcomes outweigh feminist concerns regarding the nature of care work. In the most law and economics friendly piece, Martha Erman provides a provocative defense of using business models, such as business partnerships, as an alternative legal structure for intimate relationships. The range of feminist perspectives enables the reader to consider critically the possible relationships to homo economicus, from outright rejection to cautious engagement. Whether the law and economics perspective might be “borrowed” by feminists in service of the goals of equality remains an open question.

Feminist critiques of law and economics will be familiar to most feminist scholars. Some of the arguments focus on empirical facts to note women’s exclusion from the intellectual premises of economic scholarship. Not only are women rare in the ranks of economists and law and economics scholars but the framework generally assumes an independent male laborer, though more recent work has also considered this male as the altruistic head of household. In addition, women have hardly fared well in the economic sphere, as articles by Elizabeth Mayes, Regina Austin and others demonstrate. Further entrenching economic norms can only further marginalize already economically disadvantaged women.

The philosophical arguments draw from a long-standing feminist critique of the liberal subject. As the title suggests, feminists have been critics of the idea of homo economicus, or “economic man,” as an empirically and analytically exclusive conception of human relationships. Obfuscating issues of subject-formation and power, the unencumbered subject who makes rational calculations on the basis of self-interest is at best an empirical error and at worst a normative nightmare. Several articles examine Gary Becker’s work on the family as an example of the gender dystopia lurking in the supposedly amoral and neutral economic analysis. Becker, who argues that the nuclear family, in which the male specializes in labor outside of the home while the female specializes in home work, is the most efficient and, therefore, should be supported in law through measures making divorce less desirable and social practices encouraging the sexual division of labor. The authors do not have to do much work to demonstrate the analytical and normative failures of such an argument. Curiously, however, while some authors note that many feminist scholars who are critical of “economic man” also disapprove of liberal political theory and consider the rights claiming subject as a potentially exclusive form of subjectivity, they do not pursue this tension for feminist legal scholars.

A limitation to the volume is the limited scope of the probable audience. The vast majority of contributors come from law schools where Law and Economics has made the greatest inroads. Such a focus, therefore, is not surprising. However, several essays mention the “colonizing” nature of economic analyses across a variety of disciplines where neoclassical economics have colored analysis because of its supposedly scientific status. Feminists in a range of disciplines, including economics, have resisted such [*756] colonization. One of the more interesting articles, Martha McCluskey’s “Deconstructing the State-Market Divide,” engages interdisciplinary scholarship, using literary criticism to examine the ways that economics rhetoric frames debates in limiting ways.

While I hesitate to suggest making a 500 page volume longer, another significant omission is consideration of the gendered implications of Law and Economics in a global context. Regina Austin’s essay is the only one to foreground women of color and and to consider the possibility that different women might have different stakes in economic and legal debates. With the exception of a brief discussion of the WTO in McCluskey’s article, questions of economic development and inequality on a global scale go unaddressed. If Law and Economics scholars can be accused of too much abstraction from the concrete realities of women’s lives, the omission of global gender issues seems to similarly limit the debate to small range of women’s arguments and experiences. The feminist concern that Law and Economics scholars like Becker naturalize and justify gender inequity by assuming the nuclear family is normal (both in the sense of being typical and being correct) could easily be challenged by considering the diversity of relations between gender, law and the economy more globally.

A final, small quibble with the text derives from an argument in the introductory chapter that “under the guise of positivist description, Law and Economics takes normative positions that coincide with late twentieth-century conservative politics” (p.7). I think this statement does not reflect the complexity with which the later authors address the politics of Law and Economics analyses. Chapters on welfare and the family demonstrate how supposedly neutral literature often uncritically echoes moral howls of complaint about single mothers and working women without either being faithful to their own logical principles or examining their own moral principles, making their arguments for social arrangement indistinguishable from, say, Senator Rick Santorum’s moral view of the universe. Several authors, however, see significance in the fact that welfare reform, premised upon economic principles, was undertaken by a Democratic president, in conformity with neoliberalism thus rendering many of the economic policies of liberals as free-market friendly as those of conservatives. Not noted are divisions within conservative politics today in which libertarian impulses are often contradicted by social conservatives. While some conservatives would be fond of Becker’s traditional family, they would likely be uncomfortable with the claims that questions of the family and sexuality are “morally neutral.” For this reason, I would like to have seen greater analysis of the most prominent advocate of the economic approach, Judge Richard Posner. His extension of the economics approach to sexuality has led him to the conclusion that we must view sexuality as morally-neutral and that policies of regulating sexuality (including sodomy laws) are irrational. Legal scholars may have little concern for some of these political points, but feminists should be interested in the possibility of political intervention in this space of tension between the rationality of the market and the morality of the family. [*757]

Several essays included in this volume may provide a useful introduction to the debate between feminist legal scholars and law and economics advocates, while others address substantive issues, like welfare reform, in interesting ways. Students new to either literature may want to read more in both genres before turning to this collection.

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