Vol. 12 No. 10 (October 2002)

VISIBLE WOMEN: ESSAYS ON FEMINIST LEGAL THEORY, by Susan James and Stephanie Palmer (Editors).  Oxford and Portland Oregon:  Hart Publishing, 2002. 203 pp. Hardback £25.00 ISBN 1-84113-195.

Reviewed by Susan C. Breau, School of Law, Queen’s University, Belfast, Northern Ireland. Email: s.breau@qub.ac.uk.

To the novice feminist legal theory is a daunting subject.  However, this book of essays by noted feminist legal and political theorists is accessible and interesting.  The essays provide an excellent introduction to this field.  They represent a variety of theoretical discussions on the nature of feminism and its relationship to political theory, legal theory and philosophy.  This collaboration across academic disciplines is essential as feminism is at its heart a political movement.  Examining only one facet of the theoretical debate is a great risk as feminist theory in itself should be taught across disciplines, a feature recognised in many gender studies programs. One interesting and novel feature of this collection is that these authors do not attempt to place themselves into any type of theoretical genre—liberal feminism, or radical feminism or post-modernist feminism.  Rather these articles focus on various aspects of the feminist debate, and although some of the writers might be classified as belonging to any one of these theoretical streams, the reader is directed to the various issues that might concern women as persons and women as academics. As Martha Fineman has advocated, these articles examine the basic premises of legal ideology and argue that these tenets are at odds with women’s experiences. This is feminist theory free of the restraints imposed by the legal concepts of neutrality and equality.  

The title of the collection VISIBLE WOMEN reveals the theme that cuts across all of the essays, the issue of identity.  Each of the pieces included in this book examines the various facets of the identity of women.  The only gap that is evident from this study is the lack of an international perspective.  The work of Christine Chinkin and Hilary Charlesworth has gone a long way to incorporating feminist legal theory into international law.   The issue of the identity of women in the international sphere is an important  field of inquiry. 

The first article by Anne Phillips “Feminism and the Politics of Difference” is an excellent discussion of feminist political theory from the standpoint of the movement towards the politics of difference; i.e., feminism in the context of analyses of race, ethnicity and multiculturalism.   Phillips correctly argues that there is a risk in women being concealed again into these multiple axes of identity organised around sex, race, ethnicity, age, religion, language and culture. She agrees with the premise that both feminism and multiculturalism should challenge the assumption that equality means identical treatment as typified in the political theory of John Rawls.  However, she identifies three problems with the politics of difference.  The first is that the recognition of difference can make it hard to articulate any clear sense of women.  On the second and reverse side of this coin, the problem of treating women as a cultural group overstates the homogeneity of women’s culture.  Finally, the connections made between gender and other kinds of difference make it harder to articulate a critique of sexual inequality. Phillips concludes that although emphasis on diversity and difference is important there are risks to the feminist debate.

Kristin Savell’s “The Mother of the Legal Person” moves into the realm of feminist legal theory and examines how the law assigns meaning to physical bodies especially in the context of woman as mother.  This is a fascinating discussion of the implication of the law protecting the foetus inside the legal person.  Savell agrees with Ngaire Naffine who has argued that the body of liberal theory and of criminal law is a bounded, masculine body, but women’s bodies tend not to be regarded as bounded in a similar manner.  This is illustrated dramatically in stories of how pregnant women are treated by the law.  Ravell’s summary of recent United Kingdom and Canadian case law supports her conclusion that a pregnant woman who carries a viable foetus is not a legal person in the sense of a bounded (in control of her body boundaries) self. Control of her body is assumed by other legal authorities who police the boundary between self and foetus. She argues convincingly that the law is not consistent in this regard and there is a danger that recognising the foetus in law could result in oppressive paternalistic interference with pregnant women.   

Following logically from that discussion is Ngaire Naffine’s article “Can Women be Legal Persons?” which reviews the relationship between the law’s version of personhood and its implications in feminist analysis.  Naffine traces the development of legal personality.  Women were excluded from the concept as they were not allowed to be the sovereign, private and rational subjects of the law.  She convinces the reader that the debate is still relevant as the normal legal person is still a sexed male. She illustrates the fact that a sexed female cannot be a legal person by discussing the law with respect to rape and pregnancy. In her conclusion, Naffine argues eloquently that the current modern interpretation of a legal person serves neither sex, as this person is barred from social relations outside the impersonal contractual form. She advocates for a new legal person, encompassing woman, who is not singular but equipped with many natures. 

The next article, Stephanie Palmer’s “Feminism and the Promise of Human Rights:  Possibilities and Paradoxes,” should become required reading in any course on the human rights of women is.  As with all of the articles in this book Palmer provides an excellent summary of history, this time reviewing the relationship between feminism and human rights.  She agrees with many feminist theorists that feminism has been on the periphery of the struggle for human rights.  Another dimension she examines is the difficulty in pursuing equality yet recognising diversity amongst women.  Palmer rightly argues that in spite of the feminist critique of the excessively individualistic and public nature of human rights, the Human Rights Act and the European Convention on Human Rights can be used to advance the feminist agenda in both the public and private sphere.  She illustrates this fact by examining case law from the European Court such as AYDIN v. TURKEY which addressed the concerns of women. The only disappointing fact about this article is an acceptance of the position that the international arena, rather than the regional arena, is not a possible avenue for feminists. However, this is an encouraging article for those who argue that international law and human rights can be a tool to pursue the feminist agenda.   

Nicola Lacey’s article on “Violence, Ethics and Law:  Feminist Reflections on a Familiar Dilemma” moves into a theoretical discussion of law in itself as an instrument of violence: Law as an institutionalisation of force.  Lacey examines this contention through the lense of the post-modern and critical legal theory’s emphasis on legal ethics. Lacey discusses the work of Jacques Derrida and his essay the “Force of Law” and the work of various feminist writers, but she gives particular attention to Luce Irigaray and her argument for women’s access to a distinctive culture. Her key question is whether feminist legal theory can entertain utopian dreams about either an ethical (and hence non-violent) law or an ethical space within and around law.  She asserts that to argue for recontextualization of law may not bring about the desired result and may, in fact, reinforce the very violence it seeks to eliminate. She concludes that feminism must be pragmatic and handle the undifferentiated rhetoric of law’s violence with care.  This piece is an important contribution to the debate surrounding the language of law both in feminist legal scholarship and jurisprudence. 

The article by Seyla Benhabib “Sexual Difference and Collective Identities: The New Global Constellation” moves from the debate concerning the legal definition of personhood to a philosophical discussion about the nature of identity in a globalized and yet culturally fragmented world. With the assistance of Virginia Wolf’s ORLANDO, Benhabib examines the different concepts of the individual and concludes that even in a culturally fragmented world there is merit in a search for coherent accounts of individual and collective identities.  This is a provocative piece with various levels of analysis from the philosophical to the psychological. The only gap is that it would have been useful to expand upon the theory of the universality of feminism and its relationship within the new political environment.

“The Politics of ‘Presence’ and ‘Difference’:  Working Through Spinoza and Eliot” by Moira Gatens introduces the reader to philosophy and psychoanalysis and how this might be viewed from the feminist standpoint.  Her focus is on the politics of embodiment, identity and difference. She also employs literary illustration discussing George Eliot’s DANIEL DERONDA.  Her position is that the work of Benedict Spinoza could provide a fertile philosophical ground for working through the relationship between the politics of presence and ideas. She acknowledges that initial encounters with philosophers such as Spinoza reveal less than flattering views of women, but working through their ideas can assist feminist philosophy.  Her section on Spinoza reveals his negative views of women but at the same time his helpful discussion on human beings being part of a unitary, dynamic and interconnected whole. The concept of imagination is introduced as being part of human collective life.   Gatens then incorporates the ideas found in DANIEL DERONDA and concludes that both Eliot and Spinoza were concerned to study the ethical and political significance of theological, political and ethnic difference.  Gatens argues that both authors assist feminist philosophy by espousing “working through” the way the past dwells in the present and thus opens the future to new possibilities.  Difference can be acknowledged, not as a brute fact of race, ethnicity or sex, but as part of a larger network of institutionalised values which can be worked through and transformed.  

Finally Susan James moves us into further philosophical discussion in her article “Freedom and the Imaginary.”  James asserts that there are two views of the imaginary.  One view held by Michele Le Doeuff and Moira Gatens is that it is a social phenomenon. 

The other is that it is an individual psychic phenomenon.  James illustrates that this division is based on the earlier works of Jacques Lacan and Cornelius Castoriadis.  Lacan sees the imaginary as primarily psychic and for Castoriadis it is social, a name for shared forms of self-understanding. James then moves to a discussion of feminists who study the imaginary specifically LeDoeuff and Gatens, but spends the majority of the analysis reviewing the work of Drucilla Cornell who argues that the imaginary can be protected and nurtured by individual rights. This is an important part of this article in that it delves into the area of a woman’s self-image and how that can be shaped by demanding female bodily norms.  James argues convincingly that Cornell’s discussion of the imaginary raises important questions of whether or not the state or the individual has any control over the imaginary and particularly over the gendered images that might harm us, such as pornography.  She does not agree with Cornell’s strategy of turning the imaginary domain into an individual possession, as it diverts attention away from the broader issues social imagery raises. 

Due to the limitations of space these essays can only provide a glimpse into the various concerns of feminist legal theory.  The book provides the interested reader with an introduction to the works of these women and to a diverse collection of feminist theorists, philosophers and authors.  This important collection serves as an impetus to delve deeper into the various issues raised.

REFERENCES;

Charlesworth, Hilary and Chinkin, Christine 2000. THE BOUNDARIES OF INTERNATIONAL LAW: A FEMINIST ANALYSIS.  Manchester:  Manchester University Press. 

Fineman, Martha Albertson and Thomadsen, Nancy Sweet, eds. 1991. AT THE BOUNDARIES OF LAW.  New York and London:  Routledge.

Naffine, Ngaire ed. 2002. GENDER AND JUSTICE. Aldershot:  Ashgate Publishing Limited.

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

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Copyright 2002 by the author, Susan C. Breau