At its most basic, feminist legal theory offers a thoroughgoing critique of law's

claim to be impartial and objective. At the root of some feminist criticisms of the
public/private dichotomy was the contention that the law's reluctance to intrude
into the private sphere in practice simply reinforced men's de facto power within
familial and sexual relationships. The feminist critique, then, is a direct attack on
the idea of public and private spheres,
which it sees as a politically and ethically inadequate realization of liberal
arguments about individual freedom and the proper role of the state.

1. Radical feminism.
Radical feminism, which has also been called "dominance theory," by Mackinnon,
focuses on the power relationship between men and women.
Radical feminism rejects what it regards as the liberal illusion of the
neutrality of the law.
Carol Smart denies that the law can produce real equality. Ann
Scales is eloquent in her dismissal of change through the form of
law: Christine Littleton advocates ‘equality as acceptance’, which
emphasizes the consequences rather than the sources of difference,
an approach that has obvious legal consequences in respect of equal
pay and conditions of work. Radical feminism seeks to expose the domination of
women by ‘asking the woman question’ to expose the gender implications of rules
and practices that might otherwise appear to be impartial or neutral.

Most radical feminists write about sexual issues like rape, pornography,
sexual harassment, reproductive freedom, (like MacKinnon) and "voluntary"
sexualintercourse. (Andrea Dworkin).
Their basic thesis is that because all of these sexual practices have been controlled
by men, they all contribute to the subordination of women. Rape is viewed as an
inevitable result of the subordination of women and radical feminists depart from
the currently accepted concept that rape is a crime of violence, not sex.(Susan
Brownmiller). They say that rape is both-that it is caused by the hatred and sexual
tension most men feel toward women. (McK)
Radical feminist legal theory has been associated with the claim that the law in
general, and legal theory in particular, are both male. Unlike liberal feminists
whose focus tended to be on individual laws that disadvantaged women, and
women's exclusion from the legal profession, radical feminists argue that legal
reasoning itself reinforces men's power over women. In short, law's commitment to
'Rule of Law' values such as neutrality and formal equality works to disguise its
own partiality.
According to radical feminism, objectivity privileges a perspective which - under
conditions of pervasive male power - will inevitably embody the dominant and
therefore male point of view Perhaps the most controversial theory of radical
feminism is the argument that pornography violates the civil rights of women.74
CatharineMacKinnon, who also developed the now accepted idea that sexual
harassment is a form of sex discrimination, 7 argues forcefully that pornography is
a type of gender violence. By presenting women as objects, it dehumanizes and
silences them.76 She sees a direct causal relationship
between pornography and crimes against women: “Pornography sexualizes rape,
battery, sexual harassment, prostitution, and child sexual abuse; it thereby
celebrates, promotes, authorizes, and legitimizes them.”. MacKinnon has been the
driving force behind the enactment of statutes which restrain various forms of
pornography.
While cultural feminists celebrate connection and relationships, radical
feminists fight to be free of intrusive male dominance in all forms. According to
Robin West, that same potential for connection in radical feminists is the source of
women’s debasement, subjugation, and powerlessness.
Radical feminists believe that cultural feminism perpetuates the pattern of women's
subordination by affirming traits that contribute to women's willing collaboration
with their oppressors. (McK). Andrea Dworkin argues that even so called
"voluntary" heterosexual intercourse is not a form of genuinely chosen intimacy,
but yet another type of intrusion by men, and that women who do not recognize
this are engaging in denial. She says that ‘violation is a synonym for intercourse’.

Radical feminism has many critics, and both MacKinnon and Dworkin have been
accused of hating men. Liberal feminists argue that even if pornography is always
harmful, a proposition which some of them do not dispute, it cannot and should not
be controlled by restrictions on free speech. The first amendment, they contend,
has been instrumental in the women's movement-and if we weaken it through
"censorship," eventually women's speech will also be suppressed.
- main critiques of radical feminism;
1. Radical feminism, with its tendency to find the origin of patriarchy in sexual
difference, and its concentration upon sex inequality in isolation, has been
accused of both types of essential ism. i.e. that differences in male and
female treatment arise because of biological differences within them.
According to Cornell: social construction or not, the constitution of the
world through the male gaze as reinforced by male power totalizes itself as
our social reality. Thus: if MacKinnon clearly rejects naturalism, she
nevertheless remains a specific kind of essentialist. Under this patriarchal
social reality, women's imposed 'sex' is women's 'essence', her only 'being'.
 2. Limited substantive focus of radical feminism: i.e. feminist lawyers typically
focus around issues like sex, sexuality, reproduction and ecology. typically
and as a direct result of their analysis is of sex as the root of women's
oppression, they show less interest in economic and political questions.

3. The second group of feminists is liberal feminists.

Liberal feminism perceives individuals as autonomous, rights-bearing agents, and
stresses the values of equality, rationality, and autonomy. Since men and women
are equally rational, it is argued, they ought to have the same opportunities to
exercise rational choices. (This emphasis on equality, as we shall see, is
stigmatized by radical feminists as mistaken, because asserting women’s similarity
to men assimilates women into the male domain, thereby making women into
men.) Liberal feminism accentuates equality, while radical feminism is concerned
with difference. Among the most critical anxieties of liberal feminists is the border
between the private and the public domain. This is largely because women tend to
be excluded from the public sphere where political equality is realized. Likewise,
the private domain of the home and office is the site of the subordination and
exploitation of women. Crimes of domestic violence normally occur within the
home into which the law is often reluctant to intrude. Liberalism may itself
therefore be implicated in the subjugation of women, according to radical
feminists.

Christine Littleton calls them symmetrics - the law must

be symmetrical, in the sense that it should not specifically recognize sex-based
distinctions. They support the proposition that the central goal of
feminism is formal equality-women must be treated exactly the same as
men in every way. Therefore, they generally oppose laws which would
provide special benefits for pregnant women as continuing an illegitimate
disparate treatment for women (e.g. Wendy Williams).
The disagreement between cultural feminists, who support "special" laws for
women, like pregnancy benefits, and liberal feminists is commonly described as
the "sameness/difference debate. Critics of liberal feminism, who include both
cultural and radical feminists, are concerned that liberal feminists accept men's
experience as the norm and expect women to conform to it. They characterize this
approach as an "assimilation model"-women, in order to enjoy full equality, must
become just like men. These critics argue that by accepting the rhetoric and
reasoning of patriarchal jurisprudence, liberal feminists have given up any chance
of real change in the status of women; in the powerful words of Audre Lorde, "the
master's tools will never dismantle the master's house. "they do conveniently
ignore one significant aspect of liberal feminism: to a limited extent, it works.
Liberal feminists who talk about "rights" and "equality" are speaking in the
language that the legal system understands best. If nothing else, liberal feminism
cannot be completely discounted as a litigation strategy. Wendy Williams, in a
recent defense of symmetrical feminism, makes an important point: that to
some extent the ideas that feminists find most appealing depend on when
they entered the feminist movement.63 Thus, women awakened to feminist
thought in the early 1970s encountered a number of laws explicitly
relegating women and men to separate spheres and restricting women's
opportunities for growth. For them, removal of these laws was their first
priority. In contrast, women entering the feminist movement after 1978
saw a series of facially "neutral" laws which continued to disadvantage
women and concluded that "neutrality" alone would not eliminate women's
lack of power. (Wendy Williams)

Olsen: liberal dualisms – have a hierarchy. i.e. rational/irrational etc,

power/sensitivity etc. Law is identified with the hierarchically superior, 'masculine'
sides of the dualisms.
'Justice' may be depicted as a woman, but, according to the dominant ideology, law
is
male, not female. Law is supposed to be rational, objective, abstract and principled,
like men; it is not supposed to be irrational, subjective, contextualized or
personalized,
like women.

Liberal Feminism critique:

1.fromCultural-differencefeminism: Difference feminism moves beyond standard
'Rule of Law' values such as neutrality and formal equality. It criticises liberal
feminism as being limited by its essentially comparative standard, the underlying
strategy of which is said to be assimilation of
women to a standard set by and for men
2. radical feminism: Liberalism accords no space for the
revaluation of the feminine envisaged by radical feminism, and courts the constant
danger of subtler disadvantage and discrimination being hidden behind the veil of
neutrality.

3. Cultural Feminism (West)

begins with the premise that women are different from men in a number of
significant ways and that these differences deserve to be celebrated and
encouraged, not obliterated. Difference feminism is therefore associated with a
shift of emphasis towards a questioning of the very idea of gender neutrality, as
both ideal and as possibility; and towards a new focus not only on law's reflection
of pre-legal sexual difference, but also on law's dynamic role in constructing,
underpinning and maintaining sexual ·difference. Difference feminism is a more
complex and a more radical legal critique than was liberal feminism, and it is now
the dominant approach within feminist legal theory. Instead, difference feminism
endeavours to reveal the unstated premises of the law’s substance, practice, and
procedure by
exposing the miscellaneous kinds of discrimination implicit in the
criminal law, the law of evidence, tort law, and the process of legal
reasoning itself. This includes an attack on, for example, the concept of the
‘reasonable man’, the male view of female sexuality applied in rape cases. Carol
Gilligan’s work in A Different Voice is particularly celebrated in this context.
Gilligan's psychological study of the contrasts in men and women's thought which
has had an incredibly powerful influence on feminist writing. argues that studies of
children's development focus solely on men's method of reasoning and ignore the
counter-story of women's method of reasoning. Carol Gilligan’s work uses the
example of two eleven year old children Jake and Amy to show the differences in
their thinking, as one is more hierarchial, placing one moral value over the other,
while Amy (being a female) is web like, and more contextualizing. Gilligan points
out that Gilligan, in contrast, views the two responses as simply different, with one
not necessarily "better" than the other. Women's voices, they assert, emphasize
positive values such as caring, nurturing, and empathy instead of competition,
aggressiveness, and selfishness. Women look to context, where men appeal to
neutral, abstract notions of justice. In particular, she argues, women endorse an
‘ethic of care’ which proclaims that no one should be hurt. This morality of caring
and nurturing identifies and defines an essential difference between the sexes.
Women intuitively seek connection and relationships, while men struggle for
autonomous individualism. In more concrete terms, cultural feminists
advocate a recognition of women's contributions to society, such as child-raising or
care-giving. A great deal of their work emphasizes the need for laws such as
mandatory child-raising leaves which will encourage these activities.
Critics of the difference theory, who include both traditional liberal
feminists and radical feminists, charge that it reinforces stereotypes of women that
women have struggled for years to escape. McK attacks the difference theory as
reinforcing submissive relationships. Patricia Smith argues that Gilligan’s theory
simply reinforces the Victorian virtues and attributes associated with women: the
subordination of women, and can still be interpreted that way. She gives the
example of the case EEOC v Sears 1986 where feminist scholars cited Gilligans
court in work to automatically purport women into low paying clerking positions
rather than higher paying commission selling positions by showing that women
were not interested in such positions, contrary to even the women who applied.

5. Postmodern feminism
Postmodernists, we have seen, generally reject the idea of the ‘subject’. And they
exhibit an impatience with objective truths such as ‘equality’, ‘gender’, ‘the law’,
‘patriarchy’, and even ‘woman’. Indeed, the very idea that things have properties
which they must possess if they are to be that particular thing (i.e. that they have
‘essences’) is repudiated by many postmodernists. This ‘essentialism’ is discerned
by postmodern feminists in the approach of radical feminists such as Catharine
MacKinnon who argues that below the surface of women lies ‘precultural woman’.
Drucilla Cornell and Frances Olsen draw on the work of Jacques Derrida and Julia
Kristeva to construct what Cornell calls an ‘imaginative universal’ which
transcends the essentialism of real experience and enters the realm of mythology.
The maleness of law – the ‘phallocentrism’ of society – is a central theme in
postmodern feminist writing. Katherine Bartlett identifies at least three feminist
legal methods that are used in investigating the legal process: ‘asking the woman
question’, ‘feminist practical reasoning’, and ‘consciousness-raising’. The first
attempts to expose the gender implications of rules and practices that may appear
to be neutral. Feminist practical reasoning challenges the legitimacy of the norms
that, through rules, claim to represent the community, especially in cases of rape
and domestic violence cases. Thirdly, consciousness-raising seeks to understand
and reveal women’s oppression.

5. critical legal theory / race theory

There are multicultural and Critical race theory's critique of the legal subject
represents one instance of a broader critique of the conceptual framework of legal
practice which is structurally similar to that articulated within feminism. For the
structure of family or social welfare law is premised on a model of the family
which fails to fit many families and which is particularly inapposite for certain
ethnic groups. A key example here would be the statistical predominance of
female-headed households
in Afro-Caribbean communities. As a result, the diagnosis of single motherhood as
a sign of deviance or disorder is particularly stigmatising to these groups
Moreover, the feminist image of women as passive or vulnerable is specific to
white Europeans, and is inappropriate within certain cultural groups - for example
to African Americans, who generally see women as strong and powerful. But black
feminist thought has been
much more cautious than has white feminism about giving up conceptions of
agency and subjectivity (as well as legal rights). Its tone tends to be more
optimistic, and it asserts that recognizing the ways in which our identities are
fragmented.

Essentialism:
Essentialism is a contested topic within feminist discourses. Feminist theorists
critique traditional, essentialist accounts of woman. One could argue that
contemporary Western feminism began with the publication of Simone de
Beauvoir's (1908–1986) The Second Sex (1949). De Beauvoir asserts that woman
is made, not born, and proceeds to delineate recurrent attempts within Western
culture to reduce woman to her putative, biological essence. Since at least
Aristotle, philosophers have claimed that woman has an essence and that this
essence is a material one. Woman is matter; she is defined by her unique physical
property (reproduction). The identity of each individual, actually existing woman is
ultimately and necessarily determined by this essence.

Feminist discourse extends this critique into an investigation of the

interdependence of gender arrangements, gender-based asymmetries, heterosexism,
and the "essential" or natural, factual meanings of body, matter, nature, and sex.
Judith Butler's work is especially influential. Butler argues that "sex" is an effect of
gender and heterosexism. How we understand bodies and matter and what is
assigned to categories of "natural" and "social" fact, indeed these very categories,
must be deconstructed into the social and linguistic practices and power relations
that generate them. An adequate response to essentialist constructs of woman
requires a strategy different from disconnecting the social (gender) and the
biological (sex) and claiming that the biological does not determine the social. To
claim that woman is made is still to assume that "woman" exists. Furthermore, it
leaves sex undisturbed as a natural kind, inaccessible to genealogical investigation.

The main criticisms of radical feminism focus on four features. First, critics have
noted the dangers of its actua l or apparent essentialism.This is a term wh ich
seems to be used with increasing frequency by feminists, although it is important
to acknowledge that its meaning may have shifted somewhat in recent years.
Biological essentialism used to be synonymous with biological determinism.Th is
is the idea that gender inequality has its origins in the bas ic biological
differencesbetween women 's and men's bodies. So to be essentialist was to see
biology as the originating cause of women's oppression. And, of course, if gender
inequality results from the natural differences between the sexes, it is in some
sense presocial and arguab ly resistant to political change. More recently, essentia
lism has tended to refer to the accusation that certa in femini sts have tended to
privilege or reify gender di scrimination at the expense of a nuanced account of the
interaction between multiple vectors of .ineq ua lity, such as race, disability and
class. Women 's experiences of their gender, It is now contended, vary
dramatically, and so a single account of the origins and effects of sex inequality
cannot accommodate the fragmented, fluid and variable reality of gender
difference. Rad ical fem inism, with its tendency to find the origin of patriarchy in
sexual difference, and its concentration upon sex inequality in isolation, has been
accused of both types of essential ism. It is, however, important to remember that
not all forms of
radical femi nism have embraced essential ism in this way. Rather, some have
based their assertion of the primacy of sex difference on historical or
psychoanalytic arguments which are, in principle, constructionist.
Many feminist writers in this tradition have taken pains to distance themselves
from simplistic essentialist assumptions about the way women think or the role of
women as caregivers, emphasizing instead the importance of context to
understanding. Feminist theory has inspired and deployed new forms of legal
realism—the view that law reflects its social context—to criticize the frequent
formalism of approaches to law in terms of economic relationships and rational
choice (Nourse & Shaffer 2009).

Feminists using an analysis of intersections between race, sex, and other identity
categories discern essentialist tendencies that gloss
the complexities of identity in the work of both radical and liberal feminists
(Crenshaw 2012, Harris 1990)

The Distinctive Project of Critical Race Theory

ANTl-ESSENTIALISM: At root, therefore, critical race theory diagnoses
essentialism within feminism; a priority for sex difference which represses
diversity. By contrast, critical race theory is radically anti-essentialist and tends to
both recognise and, positively, to use diversity as a resource for affirmation and
reconstruction. But black feminist thought has been
much more cautious than has white feminism about giving up conceptions of
agency and subjectivity (as well as legal rights). Its tone tends to be more
optimistic, and it asserts that recognising the ways in which our identities are
fragmented.