1.

2.
3.
4.
5.
6.
7.

8.
9.
10.

11.
12.

13.
14.

15.
16.
17.

18.
19.

BOOK EXTRACTS
Women as Minority /Force Declaration of Sentiments
He has compelled her to submit to laws, in the formation of which she had no voice.
He has never permitted her to exercise her inalienable right to the elective franchise.
He has made her, if married, in the eye of the law, civilly dead.
He has taken from her all right to property, even to the wages she earns.
He has so framed the laws of divorce, as to what shall be the proper causes and in case of
separation, to whom the guardianship of the children shall be give, as to be wholly regardless of
the happiness of women the law, in all cases, going upon the false supposition of the supremacy
of man, and giving all power into his hands.
-Ball, Simpson and Ikeda, A Reexamination of William Graham Sumner on Law and Social
Change (14 Journal of Legal Education 299 1962)
The older categorical view stated in classic fashion by the sociologist WGS, was that the law coul
never move ahead of the customs or mores of the pople that legislation that was not firmly
rooted in popular folkways was doomed to failure. The implication was that social change must
always be glacier like in its movement and that mass change in attitudes must precede legislative
action.
..
Second he did not mean that all folkways are conceptually or empirically that is scientifically
correct. He noted that some are due to false inferences or are formed by accident, that is, by
irrational and incongruous action, based on pseudo knowledge. However, he also believed that
even if these erroneous folkways are subsequently subjected to rational or ethical examination
and found to be gross, absurd, or inexpedient, they may still be preserved by
conventionalisation. This process of conventionalisation creates a set of conditions under which
a thing may be tolerated that would otherwise be reject, and he held that there are two ways by
which such conditions can be created: they may be created in fact, or they may be only a fiction
which all agree to respect and to treat as true. These seem to be early formulations of Mrydals
concept of the vicious cycle and Mertons idea of the self fulfilling prophecy.
..
So he also held that many acts of legislation come to of the mores in similar fashion. At this
point the law comes to represent a crystallisation of mores and the collective power. But when a
society reaches the stage of verification, reflection and criticism, then positive law is possible.
(FN in book, Folkways 1906 p62 ///page 35 in the book Sex roles in law and society
------------------------Screen11
Feminism has not changed the status of women. It is not enough to observe that social change is
glacial, law is inadequate to move anything basic, and power is powerful. These truism parade
solipsism, the complacency of privilege, and despair as sophistication, critique, even radical
politics. And to describe a state of affairs is not to explain it. An explanation of the failure of
feminism to change the world for women must be a study in that world as well as of it.
Screen12
There are three phases we can identify in the development of the idea that law is gendered. These
are basically stages of reflection in feminist theory which have provided a foundation of
understanding and have been largely, but not entirely superseded. (FN) The first stage is
eptiomized by the phrase law is sexist, the second by the phrase law is male and finally we
reach the point of arguing that law is gendered. These three levels of arguments may be found to

20.
21.

22.
23.

24.
25.

26.
27.

28.
29.
30.

31.
32.

33.

be deployed simultaneously in some feminist work on law, however it is useful to differentiate

between them in order to see what analytical promise each approach has. ((The Woman of Legal
Discourse) Carol Smart)
Screen13
The shift between taking law as male as taking law as gendered is fairly subtle, and the
transition does not entail a total rejection of all the insights of the former. But while the assertion
that law is male effects a closure in how we think about law, the idea of it as gendered allows us
to think of it in terms of processes which will work in a variety of ways in which there is no
relentless assumption that whatever it does exploits women and serves men. Thus we can argue
that the same practices signify differently for men and women because they are read through
different discourses, [Holloway 1984, 237]
Screen 14
Woman is no longer self evident (R,H,S,B,F) Such a statement is of course, an affront to common
sense which knows perfectly well what women are and reacts keenly should anyone try to blur
the naturally given boundaries between the two sexes. Yet first we must concede a distinction
between Woman and women. This is familiar to feminists who have for some centuries argued
that the idea of Woman (sometimes the ideal of woman) is far removed from real women...
Screen 15 Challenging Law, Establishing Difference
This essay concerns the complex, difficult and perhaps impossible goal of introducing feminist
theory into legal discourse....On the broadest level feminist legal though seems unanchored. It
drifts between the extremes of grand theory which is totalising in its scope and ambitions, and
personal narratives, which begin and end with the presentation of one individuals unique
experience. Neither of these extremes does much to further the discussion of feminist issues
because they obscure more than they illuminate.
Screen 16
This emphasis on specifics relates to my understanding of the insights feminist methodology has
produced for scholars. The real distinction between feminist theory (legal and otherwise) and
more traditional legal theory is this belief in the desirability of the concrete.
...White has stated, [like law, rhetoric invents; and, like law, it invents out of something rather
than out of nothing.]
Screen 17
Feminist analysis, if recognised at all, often is seen as marginal to legal thought. Traditional legal
scholarship tends to view the status quo as unbiased or neutral. This belief in the possibility of a
neutral stance s the logical place for feminist analysis to begin: as an explicit challenge to the use
of the concept of bias, as contrasted with the concepts of perspective and position, when
introducing previously excluded voices into legal discourse and analysis. Feminist theory can
demonstrate that the status quo is not neutral; that is as biased as, and certainly no more correct
than, that which challenges it.
Screen 18
The best feminist legal scholarship is about law in its broadest form, as a manifestation of power
in society, and recognises no division between law and power. Law is not found only in courts
and cases, and legislatures and statutes, but in implementing institutions, such as social work and
law enforcement, as well. Law is found in the discourse used in everyday life. Law is evident in
the belief and assumption we hold about the world in which we live and in the norms and values
and cherish.
Screen 19

34. These gendered experiences may be cultural and linguistic constructions, but they define the
parameters of womens lives even if only as constraints to resist.
35. S20 //
36. Screen 21
37. Feminist theory must develop free of the restraints imposed by legal concepts of equality and
neutrality, or it will be defined by them. Law is too crude and instrument to be employed for the
development of a theory anchored in an appreciation of differences. Law can and should be the
object of feminist inquiry but to position law and law reform as the objective of such theorising is
to risk having incompletely developed feminist innovations distorted and appropriate by the
institutionalised and intractable dictates of law.
38. Screen 22 Feminist Disagreement
39. To do this, the article looks to comparative constitutional case law as a source of guidance as to
how older feminism have been conceptualised in contexts where they have been most successful
in entering the legal mainstream. It identifies three understandings of sex and gender justice in
this context, which it labels disruptive, ameliorative and transformative.
40. S23//s24
41. DOES THE LAWS REASONABLE MAN EMBRACE THE REASONABLE WOMAN?
42. Devoid, in short, of any human weakness, with not one single saving vice, sans prejudice,
procrastination, ill nature, avarice and absence of mind, as carefully for his own safety as he is for
that of others, this excellent but odious character stands like a monument in our courts of justice,
vainly appealing to his fellow citizens to order their lives after his own example.
43. FEMINIST LAWYERING AND LEGAL METHOD
44. Yet to assume a chronic tension between feminist method and legal method that ultimately
condemns the former to failure seems both pessimistic and oddly static. Legal method, however
male identified its current incarnation, is not some brooding imnipresence in the sky. It is rather, a
party cohering collection of professional practices and argumentative conventions employed by
those who make their livings as lawyers.
45. She suggests that it is possible to question the virtually sacrosanct bases of legal persuasion, and
substitute such new building blocks as experiment argument or comprehensive juxtaposition of
alternatives.
46. ..It may be, as MacKinnon suggests, that analytical reasoning and other traditional forms of
arugment are broadly unavailing for feminist persuasion, because the law, even in its aspirational
forms, contains few norms that do not entail subordination.
47. FEMINIST THEORY IN LAW
48. The fact that the law relies so heavily on classification has meant that some part of the feminist
project in law historically and contemporarily has been focused on the question of differences.
The assertion of differences has always been a basis for distinctions in legal treatment. The
negative aspects of difference occupied feminist legal theorists attention until fairly recently.
...Differences can be empowering providing opportunity, not stigma. This assertion is made
without the intent to obscure the fact that a focus on differences hold potential dangers for
women.
49. Perspective scholars begin with the same initial scepticism about the objectivity and neutrality of
law and legal institutions as the legal realists. They also look to the social, cultural and political,
in addition to the legal to provide a context for understanding the operation and impact of law in
our society. The perspective scholars definition of law is broad, and law is to be discovered in
actions as well as in words in the interpretation and implementation of rules as well as in their

formal doctrinal expression. Law is not only something out there an independent body of
principles- but a product of society , acted upon and responsive to political and cultural
forces. ......Perspective scholarship adds nuance to the traditionally rather monotone canvas of
law. It adds the possibility of color and texture to the legal palette by introducing diverse and over
divergent viewpoints based on the social and cultural experiences of race, gender, class, religion,
and sexual orientation, for example.
50. Law as an institution its procedures, structures, dominant concepts, and nroms was constructed
at a time when women were systematically excluded from participation. Insofar as womens lives
and experiences were the subjects of law, they were of necessity translated into law by men.

51. A LAWYERS PRIMER ON FEMINIST THEORY

52. In its most blatant forms, we can all recognize patriarchy and sexism. Men created our political
system, which in the United States left women disenfranchised until 1920.9 Our very language
uses the word "man" as the generic term for all people. Would men feel included if the generic
word for people was "woman"? Would men feel that the "history of woman" was about them?
Law contains similar instances of overt sexism in its doctrine, practice, and language.
53. To extend feminism's challenges beyond the academy, we must apply the insights of feminism
and consciousness-raising to law creation, interpretation, and the training of future lawyers. Law
is a potent force in perpetuating patriarchy and controlling social and political organization. Our
legal system rests on an ethnocentric, androcentric, racist, Christian, and class-based vision of
reality /and human nature, all of which makes it inherently flawed. Feminists value a collective
and dialectical creation of knowledge through sharings of multiple perspectives and reject the
false notion of neutral, objective, unsituated knowledge. We can create a system committed to a
continuous reexamination of our premises and questioning of our assumptions. Feminism values
openness, inclusivity, and equal respect, not exclusivity and hierarchy; diversity and difference,
not uniformity and sameness As British historian Sheila Rowbotham has shown, women were
"hidden from history (FN)
54. This "resolution" of the standard's sexism ignores several important feminist insights. The
original phrase "reasonable man" failed in its claim to represent an abstract, universal person.
Even if such a creature could be imagined, the "reasonable man" standard was postulated by men,
who, because they were the only people who wrote and argued the law, philosophy, and politics at
that time, only theorized about themselves. When the standard was written into judicial opinions,
treatises, and casebooks, it was written about and by men. The case law and treatises explaining
the standard are full of examples explaining how the "reasonable man" is the "man on the
Clapham Omnibus" or "the man who takes the magazines at home and in the evening pushes the
lawn mower in his shirt sleeves. '73 When the authors of such works said "reasonable man," they
meant "male," "man" in a gendered sense.74 The legal world that generated the "reasonable man"
was predominantly, if not wholly, male
55. Perhaps we have gone astray in tort-law analysis because we use "reason" and caution as our
standard of care, rather than focusing on care and concern. Further study of feminist theory may
help to suggest how a feminist ethic can affect our understanding of standards of care in

56.

57.
58.

59.
60.

61.
62.

negligence law. But first one more aspect of the relationship between sex and gender needs
exploration.
Patriarchy's Dualistic Ontology Even though the sex/gender distinction may have been necessary
in order to rid ourselves of the shackles of biological determinism, the dichotomy is not
congruent with our experiences. Feminist theory admonishes us to examine constantly the
relationship between theory and experience and to generate theory from experience rather than
vice versa. The creation of the sex/gender dichotomy illustrates how easily we fall prey to
defining the world in false oppositions and should stimulate us to question other dualisms that
shape our perceptions.
THE WOMANS POINT OF VIEW
A crucial contribution of recent theory has been its emphasis on diversity of race, class, age,
ethnicity, and sexual orientation." Requests for "the woman's perspective" tend to obscure that
diversity, and risk perpetuating a homogenized view of women's identity and a reductive analysis
of women's interests. Such requests point up a central paradox for contemporary feminism. Much
of the theoretical and political force of the feminist movement stems from its aspiration to
identify values and perspectives that grow out of women's distinctive experience. Yet one of the
critical lessons of that experience is its diversity, which demands attention to differences as well
as commonalities.
WOMAN AS A MINORITY GROUP
For the two types presented above: (1) those who do not know that they are being discriminated
against on a group basis; and (2) those who ac-knowledge the propriety of differential treatment
on a group basis, the subjective attributes of a minority group member are lacking. They feel no
minority group consciousness, harbor no re-sentment, and, hence, cannot properly be said to
belong in a minority group. Although the term "'minority group" is inapplicable to both types, the
term "minority group status" may be sub-stituted. This term is used to categorize persons who are
denied rights to which they are entitled according to the value system of the observer
FEMINIST THEORY IN GRAND STYLE
MacKinnon argues that efforts to treat gender as a question of difference are misguided and that
gender should be understood to be a matter of domination and subordination

63. A third feminist objection is not to theory as such but rather to grand theory. Grand theory tends
to be reductionist; insofar as it depends upon creating tidy categories, it may suppress the
complexity and ambiguities of life in order to fit lived experiences into these tidy categories. It
oversimplifies experience, and in a sense cannot possibly be true. Grand theory also tends toward
closure in that it claims to discover an ultimate meaning or truth of that which it investigates and
seemingly does not admit further critique; the major work of theorizing might seem to be over.89
A grand theorist may be primarily focused on getting out the main thesis and be unlikely to
encourage others to expose the fissures, gaps and ambiguities in her theoretical structure.90
Moreover, if one can generalize from Marxism, there seems to be an irresistible urge to vulgarize
(and thus to misunderstand) grand theory. Finally, individual struggles to improve the status of
women are not global but local and many involved in such local struggles are skeptical of claims
to create totalizing theory or grand theory.
64. Grand theory can act as the ladder that Wittgenstein wished his readers to throw away after
use.96 Theory can be a form of practice, a step in a dialectical process aimed at
improvement of the lives and status of women. Such theory (even if it may be said to be

65.
66.

67.

68.

69.

wrong, in the sense of being an oversimplification) can be useful, not merely in an

instrumental or opportunistic way, but more creatively.
FOUCAULT LAW AND LEGAL FEMINISM -- V INTERESTING
"It was a matter not of studying the theory of penal law in itself, or the evolution of such and such
penal institution, but of analysing the formation of a certain punitive rationality!.. .instead of
seeking the explanation in a general conception of the law, or in the evolving modes of industrial
production... it seemed to me far wiser to look at the working of power". Power has long been a
feminist issue because it lies at the core of the hierarchical social organisation that, in turn,
dominates Western culture. Feminists have traditionally concentrated on documenting and
circumventing the effects of repressive power structures on women, whereas Foucault theorises
the source of power and uncovers the connection between power and the law
He seeks to point the finger at conventional conceptions of law and to question a dominant
approach (or paradigm) on jurisprudence and political science, a view which Foucault refers to
variously as the 'classical juridical', the 'sovereign-juridico' or the 'sovereignty' view; typically
defined as rules commanding behaviour backed by threats of coercive sanctions.
As we shall see, Foucault insists that the traditional understanding of power (as state power over
individuals) is radically one-dimensional because it wrongly assumes that power must be
repressive (as opposed to productive). Foucault points out that this classical conception of power
is more fitting for a pre-moden than a modem society because modem forms of power are not
necessarily aligned with state power but are a complex net emanating from disparate sources. The
'self' or 'subject' is merely what results from these forces, not something apart from them; there is
no Cartesian cogito, no Kantian 'transcendental ego', as had been supposed by the social contract
theory".
Nietzsche's point is that a civil state, which exists under the rule of law, obtains its stability by
virtue of the tension of power relations among individuals. Nietzsche would claim that our
smoothly running society is itself held together by a dramatic tension between claims of power,
with the forces of 'slave morality' struggling against the last vestiges of 'master morality'.
According to Nietzsche, democracy, no less then fascism, is a system of power relations.

70. This package (social contract ideology and a Roman legal system) served the monarchs well
because it provided a basic framework for the management of a large, centralised state: "Western
monarchies... were constructed as systems of law, they expressed themselves through theories of
law, and they made their mechanisms of power work in the form of law"".
71. By the late 19h and 20" centuries, however, it was no longer the state that was the exclusive
source of control and regulation; according to Foucault, power had become diffuse ('capillary'),
issuing from various sources. The rise of the disciplines had created new forms of power, which
cannot be understood according to the social contract model.
a. In essence, Foucault calls for a shift away from the juridicopolitical theory of sovereignty
to a study of the way in which individuals are shaped by non-juridical forces
72. The classic example of law in this period was the criminal code, consisting of a set of
prohibitions issued from the state to the individual. But, in the modem era a system of discipline
has arisen to complement the old system of law, and this new system is far more intrusive than

the premodern repressive legal system. This new network of power relations is a seamless web
that never leaves the individual alone but actually constitutes the subject as a subject
73. While the jurists were busy establishing the formal rights of equality, liberty, and fraternity, the
disciplines were eroding the formal liberties by creating a carceral society, a 'panopticon' in which
each person is watching the other: "The social contract may have been regarded as the foundation
of law and political power; panopticism constituted the technique, universally widespread, of
coercion.. the Enlightenment, which discovered the liberties, also invented the disciplines."25
Foucault goes on to characterise the disciplines as 'counter law' " and 'anti-law' since the law
purports to set a limit beyond which the individual cannot be coerced, yet the disciplines pass
beyond this limit, invade individual autonomy, and thus pervert the letter of the law. The rise of
the disciplines allowed subjects to be controlled without utilising the force of the sovereign. By
creating a system of 'subsidiary judges', the disciplinary era fragmented the legal system into a
constellation of mini-punishing tribunals
74. Unlike the repressive laws of the old regimes, the new system of disciplines and quasi-law is, in
Foucault's view, all-pervasive, monitoring thoughts and behaviours, which the repressive law
could never control.
75. "I do not mean to say that the law fades into the background or that the institutions of justice tend
to disappear, but rather that the law operates more and more as a norm, and that the juridical
institution is increasingly incorporated into a continuum of apparatuses (medical, administrative,
and so on) whose functions are for the most part regulatory
76. This new type of power is more diffuse, decentralised and involves constant monitoring and
normalisation, which can be seen, for instance, through the media, economy, fashion-trends or
advertisement. Foucault's overarching theme is that there is a 'dark side' of the Enlightenment and
calls into question the Enlightenment notion that reason is a neutral court of appeal32 Instead, we
should see reason as a tool, a tactic, employed for specific ends
77. Foucault's point is that one cannot use juridical principles (e.g. the law) as a defence against
discipline because the law is, in fact, part of the disciplinary network. The disciplines are
coercive, but so are the laws, which purport to protect the individual from the disciplines.
78. That is, liberal jurisprudence focuses too much on the elimination of state power over the
individual instead of focusing on the way in which the legal system permits other forms of
domination. There is some truth to this observation, but this way of thinking doesn't leave
Foucault with many options for changing or reforming a legal system. Foucault sees power
relations as so pervasive that there is no coherent possibility of escape: 'there is no outside' to the
'carceral network', condemning us to the ever-increasing microphysics of power relations." It
could be taken from this that his approach is more a 'negative utopia' than a very optimistic
perspective for women in their struggle against domination, subjugation and power in the hands
of men.
79. Much of Foucault's work seems to play out the Nietzschean theme that 'the highest values
devalue themselves.'' Foucault wants to show that what seemed like progress in politics (the
arrival of democracy, the power of reason, and the humanitarian reform of the prison) is in fact an
excuse for repression and discipline. That is, the social changes made in the name of humanity (as
well as freedom, truth, and liberty) have led to the creation of a society which is just as coercive
as the barbaric practices from which humanity was trying to liberate itself, although it is
barbarism of a subtle sort. This new type of power is more diffuse, decentralised and involves

constant monitoring and normalisation, which can be seen, for instance, through the media,
economy, fashion-trends or advertisement. Foucault's overarching theme is that there is a 'dark
side' of the Enlightenment and calls into question the Enlightenment notion that reason is a
neutral court of appeal32 Instead, we should see reason as a tool, a tactic, employed for specific
ends.
80. ON POST MODERN FEMINIST THEORY ARTICLE
81. The concept of discourse therefore marks the intersection of language, knowledge and power.
82. Further, the dominance model totalizes the grasp of patriarchy and misses the myriad ways in
which women, in actual fact, diverge from dominant images of the feminine s One consequence
of MacKinnon's monolithic view of power is that she cannot explain the emergence of a feminist
viewpoint. In Drucilla Cornell's words, "[ilfwomen as a gender are defined as victims, as
fuckees, as voiceless, and if, as MacKinnon argues, the feminist 'point of view' is an impossibility
within our system of male dominance, then it would be impossible to provide the condition for
repair."39
83. For Derrida, discourse does not have a stable meaning because it has no fixed link to some stable
referent, or object whose meaning is definite. Instead, language itself consists of signifiers that
endlessly refer one to another without closure. In Cornell's words, "Derrida shows us again and
again, [that] this linguistic code cannot be frozen because of the slippage of meaning inherent in
the performative aspect of language."5 2
84. Finished at p23..
85. EVE WAS FRAMED 1992 BOOK
86. Most legislation and case law nowadays has the semblance of neutrality, and some legislative
changes are designed to improve the position of women, but the letter of the law can too easily
become a cloak for the reality. 26
87. Myths are tent pegs which secure the status quo. In the law mythology operates almost as
powerfully as legal precedent in inhibiting change. Women are particularly at its mercy, although
men do not escape its force, especially when issues of class and race emerge. 32
88. Christ Tchaikovsky, the director of Women in Prison, has no doubts about the different criteria
used in assessing women and in dealing with their perceived aberrations. Rebellious girls are, in
her words, disciplined, infatilised, feminised, medicalised and domesticised. 78

89. THE LEGAL RELEVANCE OF GENDER BOOK 1998

90. (The legal relevance of gender: some aspects of sex based discrimination/shelia a m mclean)
91. It is not therefore, sufficient merely to strike at laws which are obviously discriminatory.
Attention must also be paid to those laws whose terminology seems value neutral, but whose
implications may seriously affect the capacity of individuals, and the groups to which they
belong, to participate fully and feely in the life of society. 2

92. Michael Foucault Mark Cousins and Athar Hussain 1984

93. An oft repeated theme of Foucaults remarks on power is that relations of power are open
textured: they are exercised from innumerable points, not limited to one particular domain; they
take a wide variety of forms and are only partially coordinated. 228
94. Given the special privilege Foucault has accorded to the question how is power exercised?, the
answer he is able to give to the question what is power can be no definite than power means
relations, a more or less organised, hierarchical, coordinated cluster of relations (PK 198) or ,
perhaps a bit more precisely, power denotes the ensemble of actions exercised by and bearing on
individuals, which guide conduct and structure its possible outcomes.
95. For Foucault does remark that power is omni present that power is everywhere, though not
without some explanation. 229
96. The interesting feature of the techniques of power (disciplinary techniques) to which Foucault
draws attention in Discipline and Punishment is that they have not been peculiar to a specific
form of the State; on the contrary, they permeate all forms of modern state. 240
97. FEMINISM UNMODIFIED MACKINNON1987
98. (On exceptionality : women as women in law) 1982
99. We are not allowed to be women on our terms. Justice Holmes (without quoting whom no
discussion on law seems complete) said in 1881, The life of the law has not been logic: it has
been experienced. 71
100.
FEMINISM AND EMPOWERMENT A CRITICAL READING OF FOUCAULT
101.
By demanding that we look to the productive character of power and to the existence of
multiple power relations- rather than to dualistic, top-down force-Foucault helps us move from a
"state of subordination" explanation of gender relations, which emphasizes domination and
victimization, to a more textured understanding of the role of power in women's lives. Viewing
power as constitutive has helped many of us to grasp the interweaving nature of our social,
political, and personal relationships.

102.
Staking out a middle ground between the criticisms of Fraser and Hartsock and the
generosity of Sawicki and Hekman, I would like to argue that Foucault's agonistic model of
power is double-edged. It is useful for feminists to the extent that it disengages us from
simplistic, dualistic accounts of power; at the same time, however, it obscures many important
experiences of power specific to women and fails to provide a sustainable notion of agency. This
is not an easily negotiated tension for feminists; as one critic comments, Foucault's "lack of a
rounded theory of subjectivity or agency conflicts with a fundamental aim of the feminist project
to rediscover and reevaluate the experiences of women."26
103.
3 Unlike her earlier "woman-as-Panopticon" analysis, Bartky's theorizing on shame
posits women as active subjects capable of a range of responses to social power. Bartky also
discusses sources of disempowerment for women often omitted from accounts of power and

powerlessness: unreciprocated emotional labor, nurturing, and caregiving. This kind of

disempowerment, because it "is more subtle and oblique, one that is rooted in the subjective and
deeply interiorized effects upon women ourselves both of the emotional care we give and of the
care we fail to get in return," 34 is, I think, easily obscured by Foucault's agonistic model of
power, because it reflects neither outright domination nor the intersubjective play of power
between two free agents.
104.
FOUCAULT ON LAW
105.
The rise of new forms of knowledge in the Enlightenment has created new methods of
domination which are more subtle and insidious than the blunt repression which was once doled
out by the all-powerful sovereign. The new forms of domination strike at the body of the subject
(and hence constitute a "bio-power" and "anatomo-politics,"71) but they also strike at the
subject's internal world. The new form of domination is both repressive and constitutive of the
individual; it creates at the same time that it prohibits.
106.
Foucault claims that there are two pivotal points around which power is exercised today:
the state and the disciplines. These two types of power are quite different, because state power
emanates from a particular locus, whereas disciplinary power consists of normalizing techniques
issuing from a plurality of sources: The discourse of discipline has nothing in common with that
of law, rule, or sovereign will ... The code they [the disciplines] come to define is not that of law
but that of normalisation . . . It is human science which constitutes their domain, and clinical
knowledge their jurisprudence
107.
This new network of power-relations forms a seamless web that never leaves the
individual alone, but actually constitutes the subject as a subject: In fact, power produces; it
produces reality; it produces domains of objects and rituals of truth. The individual and the
knowledge that may be gained of him belong to this production
108.

LEGAL FEMINISM AND FOUCAULT A CRITQUE OF THE EXPLUSION

109.
Hence, Foucaultian theory shares with feminism a common orientation towards analysis
of the operation of power and its significance as a means of normative social control. Although
united by this common concern to theorize the phenomenon of power and power relations,
however, the manner in which Foucault develops his thesis provides a substantial divergence
from the dominant feminist framework
110.
.
111.
While much feminist theory, still strongly influenced by the powerful rhetoric and
ideology of radical feminism, 4 has maintained a negative conception of power as a commodity
held firmly in the hands of patriarchy and systematically denied from the ownership of women,
the Foucaultian thesis presents power as a positive social presence which exerts itself in all
aspects of life and in all directions. While feminist theorists such as MacKinnon have denounced
patriarchy as the most pervasive system of power to take hold of society, Foucault has
emphasized the notion of power as a fluid source of both oppression and resistance attaching to
various agents in the social field
112.
Challenging the dominant trend of interpretation on Foucault, Tadros suggests that
it was never in fact his intention to equate these terms or the concepts that they represent.
Indeed, the term 'juridical' was intended to apply to a conception of power relations which
one may call Austinian or command-based. This was not, however, intended to imply that
all law is necessarilyjudicial in the Foucaultians sense of that word, nor that the only way in
which juridical power can manifest itself is within the legal arena.35 On this reading,

Foucault uses the term 'juridical' to describe both a discursive understanding of power and
a particular network of power relations

113.
114.
115.

Law. Smart expressly attributes to Foucault the claim that 'it is

more fruitful to study the processes of power outside legal institutions
because the power of legal discourse is diminishing'

116.
Several feminist legal theorists have recognized the merits of the Foucaultian approach,
embodied in Smart's descriptive thesis, which highlights the constructive aspects of social power
and their effects upon the micro levels of personal and communal experience. Like Smart, many
such theorists have sought to illustrate the extent to which these constructive aspects of social
power originate from and are manifest within the normative expectations encapsulated within
prevailing legal doctrines. In the fields of medical law and rape, for example, the extent to which
cultural norms pertaining to the body and to the appropriate standard of conduct for the 'proper'
woman are embodied within the law has increasingly been recognized within contemporary
analysis.52 Likewise, the extent to which cultural norms pertaining to the imperatives of the man
as sexual aggressor are embodied within the law have also been highlighted.53 Regardless of the
legitimacy or otherwise of its claims to modification of Foucault, the descriptive thesis presented
by Carol Smart has doubtless provided much of the impetus and inspiration behind these
emerging conceptual pursuits

117.
DECONSTRUCTION, FEMINISM AND LAW: CORNELL AND MACKINNON
118.
As suggested above, perhaps its primary feature is the tendency to assume the
intercontextual validity of truth claims. A claim about man, for instance, would automatically
be understood to be a claim about people in general. Initially, such a claim might exclude
women.24 Later, especially in liberal thought, such a claim might include women, but only as a
subset of men. The language of rights, so vital to the constitutional history of the United States
and liberal-democratic political philosophy, is a powerful legacy of such thinking. The idea that
universal claims about man might be gendered, or skewed by the position of the speaker, or by
the product of social, racial, or class affiliation was not merely unconsidered, but unthinkable. As
Foucault puts it, there was simply no epistemic space for such considerations.
119.
Law is, in effect, the single most powerful metanarrative of culture. Its truth, in the
sense of the validity of its role and authority in culture, is unassailed even at those moments of its
most hideous excesses. Law as a principle and practice of guiding human behavior is never in
question. What receives questioning, instead, is the functionthe performative effectivityof
particular laws. But law as metanarrative remains unchallenged. As such, the metanarrative, with
all its coercive, reductive tendencies, and especially with its claim to value-neutrality, continues
in its power to deform those subjects who live within it. A woman, for instance, held up to the
cold cunning of law, is not a woman; she is a subject.
120.
One of the central premises of Jacques Derridas deconstructive theory rests upon his
infamous and powerful phrase, There is nothing outside of the text.50 This phrase, the subject
of virtually infinite commentarysome decrying it as the worst form of idealism, suggesting that
it denies anything but the written and is thus a springboard to nihilism, others embracing it as the
victory of unencumbered (and thus engaged) imagination over the real has at its essence a

relatively simple and unobjectionable claim: the idea that human experience is available to us
only in the form of some kind of narrative
121.
Or, to put it another way, reason requires violence in order to exist: [I]t has always been
thought that the center, which is by definition unique, constituted the very thing within a structure
which while governing the structure, escapes structurality. This is why classical thought
concerning structure could say that the center is, paradoxically, within the structure and outside it.
The center is at the center of the totality, and yet, since the center does not belong to the totality
(is not part of the totality), the totality has its center elsewhere. The center is not the center.60 If
we substitute the word Man, or the masculine, for the word center in this passage, we have
a telling example of the ways in which thought is imbued with violence, and of the ways in which
a gendered notion of reason has come to be accepted as the norm. Man, for Derrida, is that
unique entity which both governs the structure of thinking and yet which somehow escapes the
scrutiny of that very thinking. Man is both at the heart of Western thought, life and law, and yet is
somehow outside it.
122.
Men become the standard of authority and control as well as the perspective from which
reality is enumerated and judged. Cornell, citing Simone de Beauvoir, summarizes this by saying
that men are in the right for being men.88 She continues: The identification of their [mens]
perspective as objective is what gives their vision ethical credibility. It is not one viewpoint on
reality amongst others; it becomes the standard of accuracy itself.89
123.
FOUCAULT AND LEGAL FEMINISM
124.

"In fact, power produces; it produces reality; it produces domains of objects and rituals of truth.
The individual and the knowledge that may be gained of him belong to this production."

125.
126.

THE LAW AND POLITICS OF ABORTION SCHNEIDER/VINOVSKIS 1980