Vol. 14 No.12 (December 2004), pp.937-940

SELVES, PERSONS, INDIVIDUALS: PHILOSOPHICAL PERSPECTIVES ON WOMEN AND LEGAL OBLIGATIONS, by Janice Richardson. Aldershot: Ashgate, 2004. 169pp. Cloth. $79.95 / £45.00. ISBN: 075462398X.

Reviewed by Catherine Lane West-Newman, Department of Sociology, University of Auckland, New Zealand. 

The title of this book precisely describes its contents.  Read carefully, it also warns prospective readers what they should and should not expect to find within.  In the contemporary climate of sharp identity consciousness Janice Richardson, who researches in feminist legal theory and legal philosophy at the University of Leicester, has created a rich resource for scholars whose work engages in any way with issues of personhood and social, as well as ontological, constructions of identity. It also offers grounds for reflection on the ontological construction of gendered identities that lie beneath legal principles and practices. By positioning her discussion within the field of legal obligations she seeks to marry practical with theoretical considerations in the mode of analysis that she describes as characteristic of second wave feminist theory-making.

“What would it be to think of the self in ways that do not view women as an aberration” (p.14)? This is the question that Richardson believes must be addressed by feminist philosophers from within their own discipline.  The fact that philosophy has been a discipline “largely hostile to women” makes such attention even more desirable. The site of her own investigation is law, yet another field of steadfast resistance to penetration by feminist theory and practice. Legal formalism, which constitutes law as politically neutral, structurally autonomous, and self-defining through its unique internal logic, leaves no space for the epistemological challenges raised by feminist theorizing.

At the heart of Richardson’s project is the problem that has all but exhausted a generation of what, following Judith Butler and Joan Scott’s influential (even foundational) intervention in FEMINISTS THEORIZE THE POLITICAL, we might call feminist theorizers. That is, the longing to assert legal claims for women as a collectivity and yet avoid assimilating difference into hegemonic sameness.  And so her discussion builds on the work of those who have demonstrated that personhood, conceived in law, is gendered and have thereby entered the equality/difference debate. She asks if this debate, generally regarded as unresolvable in its present formulation, might usefully be conceived otherwise.

In this discussion self is defined as an ontological concept, and personhood as a moral and legal construction. Although conscious that “feminist legal theorists who employ Derridean or Lacanian perspectives [often] manage to circumvent their constraints” (p.8), she still deems the  deconstruction and psychoanalysis so frequently deployed under a rubric of postmodernism [*938] inadequate to the task of rethinking women’s personhood or self.  Assuming what seems to me a possibly overdetermined reading of those positions, she declares a theoretical binary that requires us to choose either some form of universal category of selves/persons or resort to radical denial that any categories are possible. As a solution to the problem, so defined, she advocates a situational sensitivity as to which differences are politically relevant in particular practical circumstances. The specificity of ground for judgment means, then, that such matters cannot be predicted theoretically.

In Chapter Two Richardson makes a series of engaging links to construct a middle ground located between “essentialism” and “radical indeterminacy.”  This ontology of self is derived out of an inventive conjunction of ideas from Oyama (philosophy of biology), Clark (philosophy of cognition), and Battersby (feminist philosophy) to find a common thread of reflexive relationship between organisms and environments, nature and culture, self and not-self “carved out gradually through their modes of relationality” (p.136).  But I wonder if, as an ontological basis for strategic interventions within the law, it really takes us much further than the open-ended formulations of Butler and Cornell that it might replace. In effect social construction has simply been replaced by another kind of building process—biological/social interaction in processes of becoming.

The exploration of legal personhood in Chapter Three is similarly concerned with overturning assumptions of male as the norm against which women are measured and replacing them with a norm that involves “the bodies and lives of women.”  Drusilla Cornell’s version of free and equal persons, the (gender undetermined) bearers of legal rights particularly in the context of her work on civil obligations under tort law is seen as ultimately at risk of co-optation into personhood understood as possessive individualism.

In Chapter Four Richardson moves to a discussion of Francois Ewald’s exploration, using a Foucauldian governmentality framework, of insurance as a technique for risk management and argues that this approach can be applied to operation of English tort law. She argues that the risks associated with women’s lives (loss of income on divorce, rape, unwanted birth) demonstrate the limitations of traditional (male oriented) images of personhood. If courts move to award compensation for such harms, then, to the extent that the technique of calculative reason is extended to them, they gain in law but at the cost of being more tightly bound to a self that is grounded in “possessive individualism.” Thus she finds a connection between the view of the self that Ewald criticizes – the prudent, self regulating individual – and the self of “possessive individualism” (the asocial self-produced self that she locates in Hobbes and Nozick). Through this lens she asks again: Is Cornell’s “open” personhood politically destined, in the hands of those ideologically so inclined, to become merely the possessive individual?

In Chapters Five and Six the focus of discussion appears to be reversed as Richardson uses consideration of women’s position to examine how it [*939] might be seen to undermine “philosophical frameworks premised upon an image of possessive individualism.”  While these chapters invoke the work of Carol Pateman on Hobbes and Susan Moller Okin on Nozick, the focus seems to have shifted from direct feminist engagement to the earlier mentioned project of improving philosophy. And so we end with a rather bleak prospect: as possessive individuals, owners of their own abilities, women will increasingly become consumers of welfare, contracting not in marriage to a breadwinner but under obligation to apply those abilities to finding paid employment.  

Feminists working to effect social change for women have, more often than not, been deeply suspicious and critical of theory, even of the feminist variety. Richardson’s project keeps her always within the parameters of law and theory securely embedded in the segregated world of the theorist. But she does at the outset locate herself in the broader context of legal, even social, reform. Positioned carefully in the theory/practice debate Richardson looks to Deleuze and Foucault in conversation as they argue for “a shift away from a dialectical model to a concern to trace the actual ‘relays’ or links between specific areas of thought (not all of which is carried out by ‘intellectuals’) and practice” (p.12). Theory and practice inevitably inform each other. And they do so in ways specific to time, issue, and place. This means that “the question of law’s usefulness is not one that can be dictated in advance by theory” (p.11). Theory does not set up a blueprint to be followed in practice.

In seeking to convey the flavor of this richly detailed and closely argued book, I have struggled to do it justice within review-style brevity. Its construction does not always make for easy identification of a transparent line of argumentation through to the author’s theoretical conclusions. At times it felt more like a series of conversations with and reflections on various ideas that, while clearly linked, are not fully connected for the reader. So, for me at least, the parts were rather more satisfying than the whole. The writing style is mostly clear and engaging, though I noted some failures in proof reading that in prose of this density do hinder author-reader communication.

This is not a book to read in search of what may be pragmatically possible to improve the condition of women.  It is a book for theorists, not for those intent bent on creating change for women who come before the law, as complainants, accused, or even as lawyers. When Carol Smart engages with law and personhood she concludes that, for women, law is probably not the best place to seek substantive justice. It is not, of course, appropriate to criticize a work for its disciplinary location—philosophers do philosophy, and theorists do theory.  Richardson does both, but not anywhere near to the ground on which feminists, distrustful of the remoteness of theory, struggle for change. This means the readership for this book will be an academic audience. Richardson is clear that she has not set out to “write an analysis of law or to produce particular recommendations for legislation” for her purpose is “to intervene in a theoretical debate” (p.17). [*940]

The density of ideas and piling up of theoretical contributions from an eclectic and interesting range of sources make this book unlikely to engage undergraduate attention.  But these same qualities do make it a rich resource and seedbed of ideas for other theorists and quite possibly an excellent focus for study in a graduate seminar in feminist legal/political theory.

REFERENCES:

Battersby, Christine. 1998. THE PHENOMENAL WOMAN: FEMINIST METAPHYSICS AND THE PATTERNS OF IDENTITY. Cambridge: Polity.

Butler, Judith, and Joan Scott (eds). 1992. FEMINISTS THEORIZE THE POLITICAL. New York: Routledge.

Clark, Andy. 1997. BEING THERE: PUTTING BRAIN, BODY AND WORLD TOGETHER AGAIN. Massachusetts: MIT.

Cornell, Drusilla. 1995. THE IMAGINARY DOMAIN: ABORTION, PORNOGRAPHY AND SEXUAL HARASSMENT. London: Routledge.

Cornell, Drusilla. 2000. JUST CAUSE: FREEDOM, IDENTITY AND RIGHTS. Oxford: Rowman and Littlefield.

Ewald, Francois. 1991. “Insurance and Risk” in Burchell, G., Gordon, C. and Miller, P. (eds). THE FOUCAULT EFFECT: STUDIES IN GOVERNMENTALITY. Chicago: University of Chicago Press: 197-210.

Foucault, Michel, and Gilles Deleuze. 1980 “Intellectuals and Power: A Conversation Between Michel Foucault and Gilles Deleuze” in Bouchard, D.F. (ed). LANGUAGE, COUNTER-MEMORY, PRACTICE: SELECTED ESSAYS AND INTERVIEWS BY MICHEL FOUCAULT. London: Cornell University Press: 205-217.

Hobbes, Thomas. 1994. LEVIATHAN. Macpherson, C.B. (ed). London: Penguin Books.

Nozick, Robert. 1974. ANARCHY, STATE AND UTOPIA. Bristol: J.W. Arrowsmith Ltd.

Okin, Susan Moller. 1989. JUSTICE, GENDER AND THE FAMILY. US: Basic Books.

Oyama, Susan. 2000. EVOLUTION’S EYE: A SYSTEMS VIEW OF THE BIOLOGY-CULTURE DIVIDE. Durham: Duke University Press.

Pateman, Carol. 1988. THE SEXUAL CONTRACT. Cambridge: Polity Press.

Pateman, Carol. 2002. “Self-Ownership and Property in the Person: Democratization and a Tale of Two Concepts.” 10 THE JOURNAL OF POLITICAL PHILOSOPHY 20-53.

Smart, Carol. 1989. FEMINISM AND THE POWER OF LAW. London: Routledge.

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© Copyright 2004 by the author, Catherine Lane West-Newman.