Hostname: page-component-586b7cd67f-tf8b9 Total loading time: 0 Render date: 2024-11-23T22:19:09.115Z Has data issue: false hasContentIssue false
  • English
  • Français

What's Distinctive about Feminist Analysis of Law?: A Conceptual Analysis of Women's Exclusion from Law

Published online by Cambridge University Press:  16 February 2009

Denise G. Réaume
Denise G. Réaume
Affiliation:
University of Toronto
Get access Rights & Permissions [Opens in a new window]

Extract

What is distinctive about a feminist analysis of law? Conversely, what does it mean to characterize the law (or a law) as distinctively “male” as a way of criticizing its injustice? It is widely assumed by both feminist scholars and nonfeminists or curious onlookers that a feminist analysis of law must have distinctive features that set it off from mainstream/“malestream” theories of law. Feminist scholars often try to “sell” feminist analysis to interested newcomers and try to break down the recalcitrance of those who seem to want to marginalize and dismiss it precisely by claiming a difference of perspective for feminist analysis of which no well-educated lawyer or legal commentator can afford to be ignorant. Meanwhile, feminist claims are also challenged by those who think they can reach the same conclusion on independent grounds for therefore not being distinctively feminist; “What makes that particularly feminist?” the communitarian, for example, will ask, faced with an argument that feminism is critical of the individualistic bias of the legal system.

Type
Articles
Information
Legal Theory , Volume 2 , Issue 4 , December 1996 , pp. 265 - 299
Copyright
Copyright © Cambridge University Press 1996

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. The dissipation of feminist solidarity is lamented in many of the essays in Conflicts in Feminism (Hirsch, Marianne & Keller, Evelyn Fox eds., 1900)Google Scholar. For evidence of a similar tension among feminist legal scholars, see Dubois, Ellen C., Dunlap, Mary C., Gilligan, Carol J., MacKinnon, Catharine A.. & Menkel-Meadow, Carrie J., Feminist Discourse, Moral Values, and the Law—A Conversation, 34 Buff. L. Rev. 11 (1985)Google Scholar. See also, Delmar, Rosalind, What Is Feminism?Google Scholar, in What Is Feminism? (Mitchell, Juliet & Oakley, Ann eds., 1986).Google Scholar

2. This latter belief is evidenced, I think, by the frequency with which the rhetorical move of deploring the mistreatment of “more than half the human race” is employed in feminist literature.

3. MacKinnon, Catharine, Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence, 8 Signs 635 (1983)CrossRefGoogle Scholar; Wuhik, Heather Ruth, To Question Everything: The Inquiries of Feminist Jurisprudence, 1 Berkeley Women's L.J. 64, 68 (1986)Google Scholar; Littleton, Christine A., In Search of a Feminist Jurisprudence, 10 Harv. Women's L.J. 1, 3 (1987).Google Scholar

4. Bender, Leslie, A lawyer's Primer on Feminist Theory and Tort, 38 J. Leg. Ed. 3 (1988)Google Scholar; Scales, Ann, The Emergence of Feminist Jurisprudence: An Essay, 95 Yale L.J. 1373 (1986).CrossRefGoogle Scholar

5. Crenshaw, Kimberle, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory, and Antiracist PoliticsGoogle Scholar, and Harris, Angela, Race and Essentialism in Feminist Legal Theory, inGoogle Scholar Feminist Legal Theory: Readings in Law and Gender (Bartlett, Katharine T. & Kennedy, Rosanne eds., 1991)Google Scholar. Spelman, Elizabeth, Inessential Woman: Problems of Exclusion in Feminist Thought (1988)Google Scholar; Duclos, Nitya (now Iyer), Lessons of Difference: Feminist Theory on Cultural Diversity, 38 Buff. L. Rev. 325 (1990)Google Scholar; Kline, Marlee, Race, Racism, and Feminist Legal Theory, 12 Harv. Women's L.J. 115 (1989).Google Scholar

6. Childers, Mary and bell hooks, A Conversation About Raer and Class, inGoogle ScholarConflicts in Feminism, supra note 1.Google Scholar

7. Cain, Patricia, Feminist Jurisprudence: Grounding the Theories, inGoogle ScholarFeminist Legal Theory, supra note 5.Google Scholar

8. Smart, Carol, The Quest for a Feminist Jurisprudence, in Feminism and the Power of Law 70–71 (1989)Google Scholar; Comments by Dunlap, Mary in Dubois, et al. , supra note 1, at 75–76Google Scholar; bell books, Black Women: Shaping Feminist Theory and Sisterhood: Political Solidarity Between Women, in Feminist Theory from Margin to Centre (1984)Google Scholar; Romany, Celina, Ain't I a Feminist?, 4 Yale J.L. & Feminis. 23 (1991).Google Scholar

9. MacKinnon, , Feminism Unmodified: Discourses on Life and Law (1987)Google Scholar; MacKinnon, , Towards a Feminist Theory of the State 117 (1989).Google Scholar

10. Ironically, the authority claim implicit in the statement of the definitive feminist position is perversely mirrored by the facile assumption among non-feminists that any issue on which women disagree must not be a gender issue and therefore does not require a distinctively feminist analysis. This exacerbates the sense that it is important to present a united front.

11. See, for instance, Rosalind Delmar's claim that “it now makes more sense to speak of a plurality of feminisms than of one.” Supra note 1, at 9.

12. Rich, Adrienne, On Lies, Secrets and Silence 299 (1979)Google Scholar. See also Spelman, , supra note 5. at 116.Google Scholar

13. Minow, Martha. Beyond Universality, U. Chi. Legal F. 115, 115 (1989)Google Scholar. Tins is not to say that these efforts have necessarily been satisfactory to women who experience themselves to have been traditionally left out. There have been many complaints that white, midd1e-class, heterosexual feminists' commitment to other women is limited to the inclusion of a standard paragraph acknowledging female diversity. See, e.g., Childers, and Hooks, , supra note 2Google Scholar; Lugones, Maria C., On the Logic of Pluralist Feminism, inGoogle Scholar Feminist Ethics (Card, Claudia ed., 1991)Google Scholar. One worries that the “standard paragraph” approach is grounded in a facile assumption that, in the end, some means can be found easily to reconcile women's competing interests.

14. Minow, , supra note 1, at 132Google Scholar; Bartlett, Katharine T., Feminist Legal Methods, 103 Harv. L. Rev. 829, 833–34 (1990)CrossRefGoogle Scholar; Rhode, Deborah L., The Woman's Point of View 38 J. Leg. Ed. 39 (1988)Google Scholar; Rhode, , Gender and Jurisprudence: An Agenda far Research, 56 U. Cin L. Rev. 521 (1987).Google Scholar

15. Menkel-Meadow, Carrie, Mainstreaming Feminist Legal Theory, 23 Pacific L.J. 1493 (1992)Google Scholar; Bartlett, , supra note 14Google Scholar; Minow, , supra note 13Google Scholar; Dnlton, Clare, Where We Stand: Observations on the Situation of Feminist Legal Thought, 3 Berkeley Women's L.J. 1 (1988)Google Scholar; Wishik, , supra note 3Google Scholar; Smart, , supra note 8Google Scholar; Bender, , supra note 4Google Scholar. Finley, Lucinda M.'s Breaking Women's Silence in Law: The Dilemma of the Centered Nature of Legal Reasoning, 64 Notre Dame L. Rev. 886 (1989)Google Scholar. is framed as the flip side of the description of a feminist analysis of law, namely, and explication of why the law is “male.”

16. Minow, Even, supra note 13, al 131–32Google Scholar, and Bartlett, , supra note 14, at 833–34Google Scholar, who seem explicitly to disavow disiinctivcncss as an ambition, reject only a particular “male” sense of distinctiveness. Both arc nevertheless nt pains to show what feminist legal theorists have in common and what sets them apart from mainstream approaches to the analysis of law.

17. See, e.g., Alcoff, Linda, Cultural Feminism Versus Post-Structuralism: The Identity Crisis in Feminist Theory. 13 Signs 405 (1988)CrossRefGoogle Scholar; Held, Virginia, Feminist Morality Transforming Culture, Sociest, and Politics 12–19 (1993)Google Scholar;Spelmnn, , supra note 5Google Scholar; de Lauretis, Teresa, Upping the Anti (sic) in Feminist Theory, inGoogle Scholar Conflicts in Feminism, , supra note 1Google Scholar; Frye, Marilyn, The Possibility of Feminist Theory, inGoogle Scholar Theoretical Perspectives of Sexual Difference (Rhode, Deborah ed., 1990).Google Scholar

18. Examples include Linda Alcoff, id.; Haraway, Donna, A Manifesto for Cyborgs: Science, Technology, and Socialist Feminism in the 1980s, inGoogle Scholar Feminism/Postmodernism (Nicholson, Linda J. ed., 1990)Google Scholar; de Lauretis, id. From a legal perspective, Bartlett takes up this debate in Feminist Legal Methods, supra note 14.

19. E.g., Frye, Marilyn, supra note 17.Google Scholar

20. Scott, Joan, Deconstruting Equality-Versus-Differenee: Or, the Uses of Poststructuralist Theory for Feminism, inGoogle Scholar Conflicts in Feminism, , supra note 1Google Scholar; Williams, Joan C., Deconstructing Gender, inGoogle ScholarFeminist Legal Theory, supra note 5Google Scholar; Young, Iris Marion, Justice and the Politics of Difference (1990).Google Scholar

21. Snitow, Ann, Gender DiaryGoogle Scholar, in Conflicts in Feminism, , supra note 1.Google Scholar

22. I acknowledge that there is a great deal of skepticism about abstract analysis in much feminist writing—see, e.g., Scales, , supra note 4Google Scholar. Some may be inclined to slop reading now for that very reason. However, I employ abstraction not to purport to solve any of the substantive debates within feminism or to obscure their significance, but rather to illuminate the nature of those debates and at the same time to provide feminist legal theory with a basis upon which a variety of contributions to the debate can be recognized as feminist despite the disagreements engendered. If the framework I propose does not accomplish this it may provide further evidence to some that abstraction is indeed to be eschewed. To skeptics, I can only say: The proof of the pudding is in the tasting.

23. See Rawls' discussion of the distinction between the concept of justice and competing conceptions. Rawls, John, A Theory of Justice 5–6 (1973)Google Scholar. Although I suspect this approach has analogues in other areas of feminist scholarship, I have tailored my analysis to the role of feminist analysis in law.

24. This is analogous to the way that H.L.A. Hart identifies the concept of law as having to do with (1) its relationship to and difference from orders backed by threats; (2) the connection between legal and moral obligation; and (3) its relationship to rules, by drawing out common questions that characterize attempts in the literature to grapple with the question “What is law?” Hart's own conception of law as the union of primary and secondary rules is then contrasted with Austin's command theory, Kelsen's sanction theory, and the Realists' account of law as the prediction of the behavior of the courts. Hart, H.L.A., The Concept or Law 1–17 (2nd ed. 1991).Google Scholar

25. The articles I bave round most helpful have been Menkel-Meadow, , Finley, , and Dalton, , supra note 15Google Scholar; Minow, , supra note 13Google Scholar; Bartlett, , supra note 14Google Scholar; and Wishik, , supra note 3.Google Scholar

26. Bartlett also notes that a focus on exclusion can be used to draw a link between exclusion on tlie grounds of sex and on multiple or intersecting grounds. Supra note 14, at 847–19.

27. In this effort, I am drawing on Jean Grimshaw's similar analysis of the significance of feminist thinking to philosophy in Philosophy and Feminist Thinking (1986).

28. This focus on exclusion from the design and application of law seems to me to suit law's instrumental role in social ordering. There may be embedded in this a particular concept of law with which not everyone, including not all feminist legal scholars, will agree. However, I leave this to be explored on another occasion.

29. Because of the law's power to regulate everything, even if only by choosing not to regulale, even lesbian separatist or other separatist arguments can be brought under the exclusion rubric. A separatist argument is an argument for not being included in the operation of the existing rules, but since a particular group can be exempted from existing rules only by the operation of law itself the separatist argument can be rephrased as a critique that the interests or needs of the separatist group have not been taken into account in determining the scope of application of certain laws.

30. As Minow puts it, supra note 13, at 136:

[F]eminists join in challenging historic exclusions and devaluations of women. This shared commitment underlies apparently contrasting efforts to improve women's positions and opportunities by revaluing traditional feminine traits or by demonstrating that women, too, can achieve traditionally male accomplishments.

While she appears to share my ambition in this article, I shall argue below that she does not abstract enough from substantive commitments, thus conceptualizing feminist jurisprudence too narrowly.

31. Grimshaw, , supra note 27, ch. 2Google Scholar. Grimshaw uses the exclusion idea to organize feminist critiques of philosophical theories according to whether the latter relied on explicitly misogynistic conceptions of woman that excluded women from key philosophical ideals such as rationality, or implicitly incorporated masculine gender traits into those ideals to the exclusion of traits associated with women. As I hope will become plain, my analysis builds upon Grim-shaw's conception of implicit exclusion by expanding it in a number of directions. Analogously to Grimshaw's examples of theorists who have incorporated masculine characteristics into philosophical ideals, I outline below some examples in which the argument is made that masculine characteristics have been incorporated into legal ideals. As befits the wide variety of forms and areas of legal regulation, I want to expand this idea of implicit exclusion to include the encapsulation of anything typically male and the exclusion of anything typically female: not just stereotypically gendered character traits, but also physical attributes and typical lived experiences that result in a particular conception of needs or interests, and also gendered modes of reasoning and sets of values.

32. This survey does not pretend to the comprehensiveness of Menkel-Meadow, 's recent effort, supra note 15Google Scholar. In the interests of brevity I highlight issues around which there has been concentrated discussion. However, as I will argue below, I believe the exclusion framework to be applicable to all of the themes and trends canvassed by Menkel-Meadow.

33. I use “American” here in the larger sense of North American; hence, it includes the Canadian legal system. Indeed, most of my examples throughout this article will be drawn from Canadian law and jurisprudence, although most have close parallels in other jurisdictions.

34. See Backhouse, Constance B., Married Women's Property Law in 19th c. Canada, 6 Law & History Rev. 211 (1988)CrossRefGoogle Scholar. Both these exclusions were abolished by the various Married Women's Property acts enacted in most jurisdictions over the course of the nineteenth century. See, e.g., Ontario's Married Women's Property Act, 1872, 35 Vict., ch. 16.Google Scholar

35. See, e.g., in Canada. The Electoral Franchise Act, 1885, 48–49 Vict., ch. 40Google Scholar, which specifically confines “persons” who may vote in federal elections to male persons, and Chorlton v. Lings 1868, L.R. 4 C.P. 374 (Eng.)Google Scholar, which interpreted the word “person” in a voter-eligibility statute to exclude women. World War I brought in its wake the enfranchisement of most women in most jurisdictions, but not all everywhere. E.g., Aboriginal women were not given the vote federally in Canada until 1960, and women were excluded provincially from the vote in Québec until 1940.

36. Chorlton v. Lings, id.

37. In re French, Mabel (1905), 37 N.B.R. 359 (N.B.S.C.)Google Scholar; Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1873)Google Scholar. In Ontario, Para Brett Martin fought the same battle for admission to the bar, ultimately succeeding without litigation in 1897. For an account of Martin's struggle, see Backhouse, Constance B.. To Open the Way for Others of My Sex: Clara Brett Martin's Career as Canada's First Woman Lawyer, 1 C.J.W.L. 1 (1985–1980)Google Scholar; Roth, Theresa, Clara Brett Martin—Canada's Pioneer Woman Lawyer, 18 Law Soc'y Upper Canada Gazette 323 (1984).Google Scholar

38. On these kinds of disabilities generally, see Eberts, Mary, The Rights of WomenGoogle Scholar, in The Practice of Freedom: Canadian Essays on Human Rights and Fundamental Freedoms (Macdonald, R.St.J. & Humphrey, J.P. eds., 1979).Google Scholar

39. For an argument tving this exclusion to the desire to preserve the gender hierarchy of the traditional marriage relationship, see Hunter, Nan D., Marriage, Law, and Gender: A Feminist Inquiry, 1 Law & Sexuality 9, 16–19 (1991).Google Scholar

40. Woolf, Virginia, Professions for Women, inGoogle Scholar Woolf, Women and Writing (Barrett, Michèle ed., 1979).Google Scholar

41. Boyd, Susan R., Child Custody and Working MothersGoogle Scholar, in Equality and Judicial Neutrality id; Boyd, , Child Custody, Ideologies, and Employment, 3 C.J.W.L. 111 (1989–1990).Google Scholar

42. See Macklin, Audrey, Foreign Domestic Worker: Surrogate Housewife or Mail Order Servant?, 37 McGill L.J. 681 (1992).Google Scholar

43. Leopold, Margaret and King, Wendy, Compulsory Heterosexuality, Lesbians, and the Law: The Case for Constitutional Protection, 1 C.J.W.L. 163, 171 (1985–1986)Google Scholar; Gross, Wendy L., Judging the Best Interests of the Child: Child Custody and the Homosexual Parent, 1 C.J.W.L. 505 (1985–1986)Google Scholar; Arnup, Katherine, Mothers Just Like Others: Lesbians, Divorce and Child Custody in Canada, 3 C.J.W.L. 18 (1989–1990)Google Scholar; Hunter, Nan D. & Polikoff, Nancy D., Custody Rights of Lesbian Mothers: Legal Theory and litigation Strategy, 25 Buff. L. Rev. 691 (1975–1976).Google Scholar

44. Field, Martha, Controlling the Woman to Prptect the Fetus, 17 Law, Medicine & Health Care 114 (1989)CrossRefGoogle ScholarPubMed; Dawson, Brettel, Re Baby R: A Comment on Fetal Apprehension, 4 C.J.W.L. 265 (1990–1991).Google Scholar

45. Id.

46. Roberts, Dorothy, The Future of Reproductive Choice for Poor Women and Women of Color, 2 Women's Rts. L Rep. 59 (1990)Google Scholar; Kingdom, Elizabeth, Consent, Coercion and Consortium: The Sexual Politics of Sterilization, J. L. & Soc'y 19 (1985).CrossRefGoogle Scholar

47. Clark, Lorenne & Lewis, Debra, Rape: The Price of Coercive Sexuality (1977)Google Scholar; Wriggins, Jennifer, Rape, Racism, and the Law, 6 Harv. Women's L.J. 103 (1983)Google Scholar; MacKinnon, , supra note 3, at 646–55.Google Scholar

48. As Joan C. Williams points out, although these rules are sex-neutral, they are often not gender-neutral. That is, they assume a masculine norm, one grounded in traditional gender stereotypes or roles. Williams, , supra note 17, at 112.Google Scholar

49. As MacKinnon puts it in Feminism, Unmodified 36 (1087).:Google Scholar

Men's physiology defines most sports, their needs define auto and health insurance coverage, their socially designed biographies define workplace expectations and successful career patterns, their perspectives and concerns define quality in scholarship, their experiences and obsessions define merit, their objectification of life defines art, their military service defines citizenship, their presence defines family, their inability to get along with each other—their wars and rulerships—define history, their image defines god, and their genitals define sex.

50. Minow, Martha, Supreme Court Forward: Justice Engendered, 101 Harv. L. Rev. 10 (1987)Google Scholar; Minow, , Making All The Difference: Inclusion, Exclusion, and American Law (1990)Google Scholar; Finley, Lucinda, Transcending Equality Theory: A Way Out of the Maternity and the Workplace Debate, 86 Colum. L. Rev. 1118 (1986)CrossRefGoogle Scholar; Lahey, Kathleen,… Until Women Thrmselves Have Told All That They Have to Tell…, 23 Osgoode Hall L.J. 519 (1985)Google Scholar; Bender, supra note 4, at 18–27.Google Scholar

51. See White, Julie, Women and Part-Time Work (1983)Google Scholar; Williams, Joan C., supra note 17, at 106–10Google Scholar; Holtmaat, Riki, The Power of Legal Concepts: The Development of a Feminist Theory of Law, 17 Inti. J. Soc. L. 481 (1989).Google Scholar

52. Ch. 44, 1940 S.C (Can.).

53. Unemployment Insurance Act, 1071, ch. 48 1970–1971–72 S.C. 30 (Can.).Google Scholar

54. The fact that a separate regime was set up for maternity benefits, separate, that is, from benefits for other sorts of temporary absences from work, meant that the lengthier eligibility requirements applied even if a woman did not take advantage of any of the “special” provisions of the maternity benefits scheme, such as the availability of a longer period of coverage. In 1978 the Supreme Court of Canada held that this was not discriminatory. Bliss v. A.G. Canada 92 D.L.R. (3d) 417 (1978) (Can)Google Scholar. See Réaume, Denise G., Women and the Law: Equality Claims before Courts and Tribunals, 5 Queen's L.J. 3 (1979)Google Scholar; and Martin, Sheilah L., Persisting Equality Implications of the “Bliss” Case, in Equality and Judicial NeltralityGoogle Scholar (Martin, Sheilah L. & Mahoney, Kathleen E. eds., 1987).Google Scholar

55. See Martin, Diane L. & Mosher, Janet E., Unkept Promises: Experiences of Immigrant Women with the Neocriminalization of Wife Abuse, 8 C.J. W.L. 3 (1994–1995)Google Scholar and literature cited therein.

56. Rogerson, Carol, Winning the Battle, Losing the War The Plight of the Custodial Mother After JudgmentGoogle Scholar, in National Themes in Family Law (Hughes, E. & Pask, E.D. eds., 1988)Google Scholar; Weitzman, Leonore, The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America (1985)Google Scholar; Bailey, Martha, Pelech, , Caron, , and Richardson, , 3 C.J.W.L. 615 (1989–1990)Google Scholar. That this result has been taken to support a return to the fault standard is criticized by Melli, Marygold, Constructing a Social Problem: The Post-Divorce Plight of Women and Children, Am. Bar Found. Res.J. 759 (1980)Google Scholar. For an analysis of how immigrant status affects a woman's ability to achieve self-sufficiency, see Sheppard, Colleen, Uncomfortable Victories and Unanswered Questions: Lessons from Moge, 12 Can. J. Fam. L. 283 (1995)Google Scholar. However, for an argument that family law reform in the areas of property division and maintenance can only ever benefit a small class of women whose partners are wealthy enough to support two households at above the poverty level, see Eichler, Margrit, The Limits of Family Law Reform or the Privatization of Female Poverty, 7 Can. Fam. L. Q. 59 (1991).Google Scholar

57. [1990] 1 S.C.R.852 (Can.).

58. Id. at 876.

59. Martha, Shaffer R. v. Lavallée, : A Review Essay, 22 Ottawa L. Rev. 607 (1990)Google Scholar; Schneider, Elizabeth, Describing and Changing: Women's Self-Defence Work and the Problem of Expert Testimony on Battering, 9 Women's Rts. L. Rep. 195 (1986).Google Scholar

60. Shaffer, Schneider, id.

61. Stubbs, Julie & Tolmie, Julia, Race, Gender, and the Battered Woman Syndrome: An Australia Case Study, 8 C.J.W.L. 122 (1994–1995).Google Scholar

62. MacKinnon, , supra note 3Google Scholar; Dawson, T. Brettel, Sexual Assault Law and Past Sexual Conduct of the Primary Witness: The Construction of Relevance, 3 C.J.W.L. 310 (1988–1989)Google Scholar; Estrich, Susan, Real Rape (1987)Google Scholar. See the recent amendments to the Canadian Criminal Code for an attempt to temper this lopsidedness of Perspective: Criminal Code, ch. 38, 1992 S.C. §§ 1, 2 (Can.). Cairns-Way, Rosemary, Bill C-49 and the Politics of Constitutional Fault, 42 U.N.B.L.J. 325 (1993)Google Scholar; Hughes, Patricia, From a Woman's Point of View, 42 U.N.B.L.J. 341 (1993)Google Scholar. Kimberle Crenshaw has corrected the white solipsism of the conventional feminist analysis by pointing out that black men accused of rape, particularly of the rape of white women, tend not to reap the benefit of the law's usual adoption of the accused's perspective: Demarginalizing the Intersection of Race and Sex, supra note 5.

63. For an analysis of the data suggesting that sexual assaults against black women are treated less seriously than those against other women, see Crenshaw, Kimberle, Mapping the Margins: Inter-serlionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241 (1991).CrossRefGoogle Scholar

64. Cooper-Stevenson, Ken, Damages for Loss of Working Capacity for Women, Sask. L. Rev. 7 (1978–1979)Google Scholar; Réaume, Denise, Rethinking Personal Injury Damages: Compensation for Lost Capacities, 67 Can. B. Rev. 82, 89–90 (1988)Google Scholar. Graycar, Regina, Compensation for Loss of Capacity to Work in the Home, 10 Sydney L. Rev. 528 (1985).Google Scholar

65. This is confirmed by Ihe fact that injured men are frequently able to recover for the ralue of unpaid labor that they do around the house. Far example, see Boyles v. Landry 30 N.B.R. (2d) 1 (New Brunswick T.D. 1980)Google Scholar, in which a man recovered the expense ofhaving siding put on his house because his injury rendered him unable to paint it regularly; and Gehrmann, v. Lavoie, [1976] 2 S.C.R. 56 (Can.)Google Scholar, in which the male plaintiff was compensated for his inability to do home renovations.

66. For a similar argument applicable to succession law and social security law, see Graycar, Regina, Legal Categories and Women's Work: Explorations for a Crass-Doctrinal Feminist Jurisprudence, 7 C.J.W.L. 34 (1994–1995)Google Scholar. In the context of the calculation of the GDP, Marilyn Waring makes the same argument that only male-associated work is counted: If Women Counted: A New Feminist Economics, chs. 8–12 (1990).

67. In my own reconsideration of these issues, I argue for a change in label from “earning capacity” to “working capacity” to mark clearly that it is not only remunerated activities that count as work. Réaume, , supra note 64.Google Scholar

68. 36 D.L.R. (2d) 159 (1962) (Can.).

69. Id., quoted by Cartwright, J. at 163Google Scholar, emphasis added. Although the Supreme Court upheld the Court of Appeal's reversal of the trial judgment, the court did so by narrowly construing the defense of volenti and made no comment upon the standard implicit in the Campbell, J.'s finding.

70. Leslie Bender, with Lawrence, Perette, Is Tort Law Male?: Foresecability Analysis and Property Managers' Liability for Third Party Rapts of Residents, 69 chi-Kent L. Rev. 313 (1993)Google Scholar. The case is reported at 845 S.W.2d 173 (1992) (Tennessee S.C.).

71. Miller v. Jackson [1977] 3 All E.R. 338 (C.A. (Eng.)) at 345Google Scholar. See also the judgment of Cumming-Bruce, L.J., at 351.Google Scholar

72. Id. at 340–41.

73. Gilligan, Carol, In a Different Voice: Psychological Theory and Women's Development (1982)Google Scholar; Chodorow, Nancy, The Reproduction of Mothering: Psychoanalysis and the Sociology of Gender (1978)Google Scholar; Dinnerstein, Dorothy, The Mermaid and the Minotaur (1977).Google Scholar

74. Menkel-Meadow, Carrie, Portia in a Dijferent Voice: Speculations on a Women's Lawyering Process, 1 Berkeley Women's L.J. 39 (1985).Google Scholar

75. Bender, , supra note 4, at 21.Google Scholar

76. Id. at 30.

77. Id. at 31.

78. Id.

79. Id. at 32.

80. West, Robin, Jurisprudence and GenderGoogle Scholar, in Feminist Legal Theory supra note 5, at 201.Google Scholar

81. Id. at 207.

82. Also demonstrating the potential of this form of argument to be generalized across the legal system, Menkel-Meadow's survey of feminist scholarship turns up work arguing for a new approach to public administration based on interdependence and connection rather than autonomy, a new approach to corporate ownership and control based on self-governance and concern for the effects of corporate decisions on others rather than concern exclusively with profit, new ideas about how unions should be structured based on women's propensity for caring for others, and new approaches to commercial and tax law based on women's different values. Supra note 15, at 1524–30.

83. West, , supra note 80, at 230–31Google Scholar. See also Finley, , supra note 15, at 896.Google Scholar

84. Finley, , supra note 15, at 893.Google Scholar

85. Some of Finley's concrete examples of women's exclusion from the law are, however, equally consistent with an analysis in tenus of the exclusion of typical female life conditions without the epistemological gloss.

86. Bender, , supra note 4, at 10–11.Google Scholar

87. MacKinnon, , Towards a Feminist Theory of the State 122 (1989).Google Scholar

88. Id. at 128.

89. Id. at 110–13.

90. Id. at 119.

91. Id. at 114.

92. Feminism, Unmodified, supra note 9 at 148Google Scholar. See also Toward A Feminist Theory of the State, id. at 139.

93. MacKinnon, , supra note 87, at 167.Google Scholar

94. Id. at 162.

95. See also Scales, , supra note 4.Google Scholar

96. MacKinnon, , supra note 87, at 121.Google Scholar

97. Id. at 242. See also Feminism, Unmodified, supra note 9, at 54.Google Scholar

98. MacKinnon, , supra note 87, at 110.Google Scholar

99. See, e.g., MacKinnon's analysis of sexual harassment as a legal wrong in Sexual Harassment of Working Women (1979), and her analysis of the dissemination of pornography as discrimination on the basis of sex in Pornography: On Morality and Politics, in MacKinnon, , supra note 87.Google Scholar

100. MacKinnon, , supra note 87, at 116–18.Google Scholar

101. Id. at 120–21.

102. See works cited supra note 15.

103. Finley, , supra note 15, at 888.Google Scholar

104. Id. at 802.

105. Bartlett, , supra note 14, at 831.Google Scholar

106. Id.

107. Id. emphasis added.

108. Id.For example, at 866 she says,

The primary significance of consciousness-raising, however, is as meta-method. Consciousness-raising provides a substructure for other feminist methods—including the woman question and feminist practical reasoning—by enabling feminists to draw insights and perceptions from their own experiences and those of other women and to use these insights to challenge dominant versions of social reality.

109. Menkel-Meadow, , supra note 15, at 1515–18.Google Scholar

110. The exception here is Menkel-Meadow, 's survey, supra note 15Google Scholar, which because of its explicitly descriptive ambition does not commit itself to any particular version of feminism.

111. Bartlett, , supra note 14, at 830 n. 3.Google Scholar

112. Id. at 831.

113. Id. at 855.

114. Id. at 857.

115. Id.

116. Id. at 833.

117. Wishik, , supra note 3, at 67.Google Scholar

118. Minow, , supra note 13.Google Scholar

119. Id. at 136.

120. Id. at 120.

121. Id. at 129.

122. Although not writing in a legal context, bell hooks explicitly makes this argument in favor of an exclusively radical definition of feminism in Feminism: A Movement to End Sexist Oppression, in Feminist Theory: From Margin to Centre (1984).Google Scholar

123. Bartlett, , supra note 14, at 833.Google Scholar

124. Minow, , supra note 13, at 115–16.Google Scholar