Document Type

Review

Publication Date

1991

Abstract

In the 1970s feminist legal theory furthered feminist legal practice. Feminist lawyers saw themselves as advocates of "women's rights," interested in winning legal victories in particular cases. Because their attention was focused on reform through legislation or litigation, the theory they developed was deliberately, if uncritically, grounded in what would be persuasive to those who held power in government institutions. They built directly upon the precedent made in race cases, precedent which assumed that the appropriate goal for social change was equality and defined equality as the similar treatment of similarly situated individuals. The key to the early legal victories of the second wave was the assertion that women and men are similarly situated for all legally relevant purposes.

In the last decade, however, feminist jurisprudence has become less interested in arguing to judges. Instead, its attention has turned to the critique of law itself as a construct of patriarchy. As a prac- tical matter this shift was provoked by the apparent deficiencies of the ostensibly neutral, formal equality strategy in cases involving problems, like pregnancy, that judges thought reflected bedrock biological differences between women and men. Legal scholars, influenced by feminist critical theory in other disciplines, began to ask whether the standard methods of legal analysis necessarily distort what is at stake for women. In a move that parallels the feminist criticism of science, these scholars challenge the assumption that law establishes a neutral procedural framework that provides a fair hearing for all points of view.

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Reproduced with permission

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