feminist theory jurisprudence

feminist jurisprudence

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Feminist jurisprudence is a philosophy of law based on the political, economic, and social issues of equality. As a field of legal scholarship, feminist jurisprudence began in the 1960s. It now holds a significant place in U.S. law and legal thought and influences many debates on sexual and domestic violence , inequality in the workplace, disability rights, and issues of discrimination . Through various approaches, feminists have identified gendered components and gendered implications of seemingly “neutral” laws and practices. Laws impacting  employment ,  divorce , reproductive rights / abortion , rape , domestic violence , and sexual harassment have all benefited from the analysis and insight of feminist jurisprudence.

Feminists believe that history was written from a Western c is -male point of view and does not reflect anyone else’s role in making history and structuring society. This male-written history has created a bias in the concepts of human nature, gender potential, and social arrangements. The language, logic, and structure of the law are male-created and reinforce Western male values and power dynamics. Creating a “binary ” of male and female also creates an implied hierarchy. By presenting male characteristics as a "norm" and anything/anyone outside of that as deviation from the "norm" (otherness), the prevailing conceptions of law reinforce and perpetuate patriarchal power. Feminists challenge the belief in the biological and social concepts of a gender binary. Gender is a social construct on a spectrum, and is not biological. Sex determines a reproductive capacity, but not psychological, moral, or social traits.

Though feminists share common commitments to equality, feminist jurisprudence is not uniform; there are many schools of thought within feminist jurisprudence. 

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• Kimberlé Crenshaw on Intersectionality, More than Two Decades Later
• Crenshaw, Kimberle (1989) "Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics," University of Chicago Legal Forum: Vol. 1989: Iss. 1, Article 8.
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Feminist Political and Legal Theories

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• First Online: 03 January 2023

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• Antonio Álvarez del Cuvillo 4 ,
• Fabio Macioce 5 &
• Sofia Strid 6 , 7  

Part of the book series: Springer Textbooks in Law ((SPTELA))

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This chapter presents an overview of feminist legal and political thought, aiming at discussing the different perspectives within feminist thought. In the first part, basic concepts in feminist thought such as gender, patriarchy, and feminism are explained, and a brief overview of the historical evolution of feminist movements is provided. The other two sections focus in greater detail on political and legal theories, respectively, including a critical analysis of the influence of patriarchy on mainstream legal and political discourses. The chapter will further provide a description of how classical concepts of political or legal tradition have been reconsidered from a feminist point of view, and a short presentation of the most important issues at stake in both these fields.

Authors are listed in alphabetical order. Antonio Álvarez del Cuvillo has written Sect. 3.1 and 3.2 ; Sofia Strid has written Sect. 3.3 and Fabio Macioce has written Sect. 3.4 and 3.5 . The authors would like to thank Mareike Fröhlich, Thomas Giegerich, Julia Ricarda Jungfleisch and Dragica Vujadinović for their valuable comments and engagement with the chapter. Antonio Álvarez would like to thank Fabio Macioce, Asunción Aragón and Sofia Strid for the comments on his section. The contents of this chapter are based on the syllabus for the course Feminist Political and Legal Theories, by Dragica Vujadinović, Miodrag Jovanović, Tanasije Marinković, Bojan Spaić, Antonio Álvarez del Cuvillo, Asunción Aragón, Fabio Macioce, Sofia Strid and Zara Saeidzadeh.

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• Feminist jurisprudence
• Feminist political theory
• Feminist legal theory

1 Introduction

This chapter will present an overview of what is usually called, feminist jurisprudence , that is to say, feminist legal theory. As legal theory is deeply intertwined with political theory, especially with regard to the critical analysis of the law, we have seen fit to include the latter in the study.

This text provides a basic theoretical framework, which is necessary to apply gender mainstreaming to the different branches of law. While other chapters of the book are mainly focused on empirical material, such as positive law or court decisions, this chapter focuses on theories and ideas. Before beginning to analyse legislation and cases, it is necessary to go in depth into various fundamental issues; the concept of gender, the relevance, the purpose of gender mainstreaming and the different approaches or methodologies that can be adopted. Besides this theoretical chapter, the chapter on Sociology of Law in Gender Perspective as well as to a certain extent the chapter Gender Issues in the Comparative Legal History deal with the most relevant concepts and phenomena, but by placing them in a social-political or historical-political context instead of this mostly theoretical one.

This chapter is mainly focused on feminist theories, and the basic distinction between women and men. LGBTQIA+ and other non-binary aspects are addressed with more detail in the Sociology of Law chapter.

In this brief summary of feminist legal and political theories, this chapter tried to acknowledge the great diversity of perspectives that exists within feminist thought, including debates that have taken place about some essential problems. In that context, the reader is advised to maintain a critical attitude, not only toward the dominant legal discourse but also toward feminist theories themselves and, of course, toward the views adopted by the authors of this chapter.

The contents are divided into three main sections. First, the chapter explains certain basic concepts in feminist thought such as gender , patriarchy , and feminism . In this section, the chapter explores the historical evolution of the feminist movement and the different types of feminism. The other two sections refer to political and legal theories, respectively, following a similar structure, which includes a critical analysis of the influence of patriarchy on mainstream discourse, a reconsideration of the classical concepts of political or legal theory from a feminist point of view, and a short presentation of the most important issues in each field.

2 Gender, Patriarchy and Feminism

2.1 patriarchy and gender.

It is usually accepted that, from a biological or reproductive point of view, the human species has two sexes, because there are two types of gametes. Footnote 1 Commonly, there are anatomical, morphological and physiological disparities between females and males , many of which are easily noticeable by human perception. For that reason, in every society, perceived sex is used to delimit two social groups, women and men. Invariably, this distinction has economic, social, political and cultural relevance.

Binary opposition between women and men is ubiquitous as a cultural mechanism, however it is neither absolute nor continuous. Throughout history, there have been many variations and interpretations of gender and sex. Further, there are cultures or societies that currently recognise additional gender categories that incorporate individuals who do not fit with specific contemporary or traditional gender roles; e.g. third and further genders. Nevertheless, these categories presuppose the binary distinction, in order to be intelligible: for instance, in Zapotec cultures a muxe would be a person assigned ‘male’ at birth that assumes social roles normally attributed to ‘females’. Even the ‘non binary’ category itself implies that there is a binary distinction in society.

This differentiation between men and women is not neutral from the perspective of power or dignity. Indeed, in all known human societies there is some type of male dominance that implies significant inequalities in symbolic status, economic functions, political power, freedom of choice, life opportunities and access to society’s resources. These inequalities are structural and systemic because they are not related to isolated behaviours, but firmly interwoven in society’s patterns, rules, and the structures of power. Therefore, in every society there is a system of male domination; a set of representations, beliefs, values and practices that tends to maintain and reproduce women’s subordination. In Feminist Theory, this structure of power which generates systemic inequalities between women and men is usually called patriarchy . The subsections will delve into the notion of patriarchy in Sects. 3.3.1 (political theories) and 3.4.1 (legal theories).

Every domination system presents itself as an objective reality stemming from the natural order of things. In all societies, the subordinate position of women has been historically considered inherent to the biological distinction between the sexes. For instance, in Western culture, until very recently, the greatest male philosophers and thinkers explicitly legitimized male dominance on the basis of divine will, natural order, or pure reason.

Consequently, the political aim of women’s emancipation necessarily requires denaturalising women’s subordinate position in the social structure, dissociating it from anatomical differences or metaphysical essences. This strategy is present in the eighteenth century in the discourse of Mary Wollstonecraft, who highlighted the importance of education in women’s subjugation, but is particularly well expressed in the mid-twentieth century by Simone de Beauvoir in her famous quote, “One is not born, but rather becomes a woman”. Footnote 2

Throughout the twentieth century, beginning with Margaret Mead’s classical anthropological work, Footnote 3 social scientists have gathered a good deal of evidence that proves the features, personality traits, characteristics, values and social roles attributed to women vary widely across history and cultures, and thus they are not linked to biological differences. Although women have almost always held a subordinate position, the social expectations attributed to them are not the same from one society to another.

Since the late 1970s, the category gender has been used in feminist theory and the social sciences to depict this critical differentiation between sex as a biological reality and the contingent social and cultural patterns attributed to each sex. In the 1950s and 1960s, the term had evolved from grammar to psychiatry and psychoanalysis, in reference to individuals’ gender identity . In contrast, the anthropologist Gayle Rubin coined the term to designate a social structure (the sex-gender system ), defined as “the set of arrangements by which a society transforms biological sexuality into products of human activity”. Footnote 4 Hence, we could define gender as determined social roles and expectations, even as the set of stereotypes, prejudices and cognitive biases that different societies and cultures attribute to each biological sex, that are not a necessary consequence of physiological differences between men and women. In conclusion, whereas sex is biological and relatively objective, gender is a social construct. Footnote 5

Some authors have suggested that perhaps even the category sex could be a social construct. Footnote 6 This claim is very controversial as biologists use the label as a scientific category to represent an objective reality that supposedly exists, regardless of human representations, related to the phenomenon of sexual reproduction that characterises most living species, including humans. Of course, all linguistic categories are social constructions, however this assertion in particular could be interpreted as a relativistic denial of the current scientific consensus about human biology. Footnote 7 Furthermore, from the perspective of social sciences, the deconstruction of sex could dilute the importance of the sex/gender distinction, which has been useful for understanding how social differences are produced on the basis of an individual’s perceived sex. On the other hand, the hypothesis of sex as a social construction could help us to be aware that, in many cases, when we are talking about biological sex in social discourse or in legal reasoning, we are in fact attributing social, cultural, or legal significance to the perceived sexual attributes of a person. In that sense, perhaps we are referring to gender instead of pure biological sex.

In this context, it is useful to differentiate between gender identity and gender . Gender identity is the self-conception that a person has of being a man, a woman, both, or neither. Most people are cisgender , i.e., they identify themselves with the sex assigned at birth. Some people are labelled as transgender , identifying as members of either the opposite gender category or outside the binary classification. While gender identity is a purely subjective experience, gender is a social, intersubjective phenomenon that normally operates regardless of the individual’s self-identification. Gender expectations, roles and stereotypes linked to the social category of women or men will be applied to every person socially perceived as female or male , even if they do not identify themselves as such or if their chromosomal sex does not match their phenotypical feminine or masculine features.

Gender-fluid people that are socially-perceived as women because of their physical appearance could be victims of sexual harassment or sexist discrimination at work, regardless of their personal self-identification as non-binary people.

Gender has a direct connection with patriarchy; the subordination of women and the inequalities of power are supported by a set of psychological dispositions, cultural values, social roles and expectations, that tend to reproduce systemic inequalities. In other words, gender patterns form the basis of symbolic violence, sex discrimination, and gender violence.

Symbolic violence occurs when the cognitive schemes available to women for perceiving themselves and their social relationships with men are “the embodied form of the relation of domination”. Footnote 8 In that context, social inequalities or the conditions that reproduce such inequalities are internalised, naturalised, or accepted by its victims. When symbolic violence is not sufficient for maintaining the subjugation of women, discriminatory practices, including gender violence, come into play. Footnote 9 Of course, these practices are sustained by gender stereotypes and prejudices. Therefore, discrimination and gender violence could be described, not only as consequences of the system of masculine domination, but also as mechanisms that contribute to perpetuating it.

Due to its links with the reproduction of patriarchy, gender is usually considered an oppressive and alienating force in feminist literature; for some authors, the final aim of feminism would be to create a genderless society in which sexual anatomy was irrelevant, Footnote 10 although this is not a unanimous opinion. For instance, gender difference is appreciated by cultural feminism, and self-perceived gender identity could be relevant for personality development. Gender patterns could also be detrimental to men in some way, since they are imposed on the individual regardless of their preferences or personal needs. In this way, Bourdieu states that male privilege is a trap since it gives every man the duty to “assert his manliness in all circumstances”. Footnote 11

Gender is not the only factor that determines social position, discrimination, and privilege. In fact, it interacts with other personal characteristics, including, but not limited to, social class, race or ethnic origin, age, disability, sexual orientation and gender identity. Experience modulated by the intersection of different categories or social circumstances is not merely the sum of these categories. Footnote 12 In that context, intersectionality is the analytical perspective that takes into account the combination of different aspects of people in order to understand their position in the social structure.

2.2 Feminism

Feminism is a philosophical and political movement aimed at ending women’s oppression, Footnote 13 encompassing both theory and activism. Since patriarchy is characterized by systematic inequalities, the basic goal of feminism is to achieve equality between women and men. Footnote 14

2.2.1 History of Feminism

Throughout history and across cultures, people have advocated for women’s rights and against misogyny, or have defended women’s capability to do certain things that were not considered appropriate in the context of patriarchy. This kind of discourse could be called protofeminism , since modern feminism, as an organized movement, appeared in the late nineteenth century in Europe and North America.

This movement has its ideological roots in the philosophical principles of the Enlightenment of the seventeenth and eighteenth centuries, even though in that period masculine domination was not challenged by most authors. Footnote 15 In the late eighteenth century, the declarations of rights resulting from the bourgeois revolutions in the United States and France proclaimed that all “men” were born free and equal; this did not imply the inclusion of women, proletarians or ethnic minorities. In fact, the subordination of women in the public and private spheres was considered natural and implicit in the social order regardless of formal proclamation of the principle of equality. Trying to criticize this contradiction, the revolutionary Olympe de Gouges wrote a pamphlet titled “Declaration of the Rights of Woman and of the Female Citizen” (Déclaration des droits de la femme et de la citoyenne) in 1791, in imitation of the 1789 “Declaration of the Rights of Man and of the Citizen”. In 1792, Mary Wollstonecraft published a protofeminist essay “A Vindication of the Rights of the Woman: With Strictures on Political and Moral Subjects” in Britain and later, in the nineteenth century, authors like Harriet Taylor Mill and her husband, John Stuart Mill, published dissertations which advocated for women’s equality, specially concerning education and politics.

The history of the feminist movement is usually divided into waves , characterized by the main objectives pursued in each historical period. Of course, this distinction is a simplification and should not be considered absolute. There is a great deal of diversity regarding the objectives pursued in each wave, and at the same time, there are many overlaps between them. Footnote 16

- The first wave is identified with the suffrage movement from the late nineteenth century to the first decades of the twentieth century. It is usually considered that the suffrage movement was born at the Seneca Falls Convention, in the state of New York in 1848. Later, in the 1860s it expanded to the United Kingdom and to other countries thereafter.

Besides women’s suffrage, which was clearly the main goal, Footnote 17 the feminist movement in this period was focused on women’s access to higher education and other basic civil rights that nowadays are taken for granted, like the right to own property. Footnote 18

- The second wave is usually related to the feminist movement in the 1960s and 1970s, although some authors consider it began with the publication of Simone de Beauvoir’s essay, The Second Sex, in 1949. Footnote 19 This new impetus of the feminist movement had its roots in the failure of the promises of independency and fulfilment that the dominant liberal ideology of this time granted to women. Footnote 20 Formal equality had essentially been achieved in the United States and other countries, nevertheless, gender inequalities were pervasive. In this period, the feminist movement was mainly divided into two main currents. Footnote 21 On the one hand, many efforts were made to fight discriminatory practices in the public sphere, especially discrimination in the labour market and sexual harassment at the workplace. On the other hand, a new emphasis was placed on analysing personal, sexual and family life from a radical feminist perspective. In this regard, the most famous feminist slogan of this era was “the personal is political”, which is explored in the following sections.

- The third wave is considered to have begun in the 1990s. This stage was characterized by an increase of the diversity of perspectives within feminism. Even though the other waves were not monolithic, criticism was raised concerning the overrepresentation of the interests and views of white, middle-class, professional, cisgender and heterosexual women in high-income countries in the previous configuration of the feminist movement. A new focus was placed on intersectional feminism that drew on the connection between gender, class, race and other personal characteristics. Movements like transfeminism or postmodern feminism have even questioned the meaning or the significance of basic concepts of feminist theory like women, gender or even sex.

- Some authors identify a fourth wave of feminism, from 2012–2013 to the present day, that implies a new impetus in the movement. This is mainly concerned with diverse online/offline forms of gender violence (domestic violence, rape culture, sexual harassment), body shaming and women’s representation in the media and Internet. Footnote 22 Online activism and social media are particularly important in this wave, providing rapid global dissemination to initiatives, such as the #MeToo movement. Intersectionality is still highly relevant in the fourth wave, perhaps even more so than in the third wave.

2.2.2 Types of Feminism

Feminism is very diverse. In fact, it could be considered not as a single movement or ideology, rather as a set of different social movements and theories that share the same basic goal of defeating the systemic oppression of women. Feminist theories vary and often contradict or complement each other due to epistemological, ideological, or strategic differences. Such a plurality gives rise to many heated debates regarding concrete practical issues, such as the regulation of prostitution or the inclusion of trans women. A classification of theories could allow a better understanding of this complexity, however it should be approached with caution due to the diversity within each type of feminism, and there being many combinations of these different approaches, both in theory and in practice.

The most common classification distinguishes liberal feminism, Marxist feminism, radical feminism, cultural feminism and postmodern feminism as different types. Footnote 23 In the last decades, ecofeminism has also become popular.

Liberal feminism agrees with political liberalism, and for that reason, it claims the basic values of freedom and equality should be applied to women as well as to men. Women should enjoy the same legal and political rights as men, since they are rational beings. Footnote 24 However, they are sometimes excluded from the public sphere (employment, politics and legal field) without proper justification, given that they are equally capable to fulfil these roles. In that context, the main concern of the liberal feminist is fighting discrimination without challenging the dominant ideology, the liberal democracy, the meritocratic principle or the market economy. Footnote 25

Marxist feminism relates women’s oppression to the social relations of production that cover basic human needs in all societies. Although classical Marxism is indeed concerned with women’s subordination, this topic has usually been subsumed under class oppression, Footnote 26 which implies that gender relations have often been ignored or marginalised in classical studies. Footnote 27 However, subsequent studies in the last decades have used Marxist analysis to address the situation of women as a central political issue. Footnote 28 It should be remembered that, in Marxist theory, the material basis of society is constituted not only by the production of material goods, but also by the reproduction of human life. In that vein, the subjugation of women would be related to the division of productive and reproductive labour that implies some kind of appropriation of the domestic and reproductive work of women. Marxist feminism is also called Socialist feminism , although some Socialist theories are not particularly linked with Marxist methodology.

Radical feminism focuses on the unequal power relationships between men and women, embedded in the core structure of the society and supported by law. Footnote 29 Whereas in liberal feminism , women’s exclusion from formal institutions is the main cause of gender inequality, in radical feminism, it is a consequence of the deeper structures of male domination. Footnote 30 Patriarchy is seen as the most ancient and pervasive system of domination Footnote 31 and it is firmly attached to society, not only in the public sphere, but also in family life and private relationships. Therefore, women’s liberation is not only achieved through legal reform, but also through awareness of the systematic relations of domination in everyday life. Hence, the slogan of second wave feminism, quoted above, “the personal is political”.

Cultural feminism (or difference feminism ) highlights and celebrates physical and psychological differences between women and men, Footnote 32 such as female sexuality, attitudes considered to be feminine or the experience of motherhood. As seen above, feminist theories and movements usually tend to emphasise substantial equality between women and men, denaturalising gendered expectations about the essence of masculinity or femininity. Conversely, cultural feminism values and appreciates women’s experiences and feminine attitudes, detaching them from the social position of inferiority that women historically have suffered. In some cases, it implies that “womanly” attributes like emotional sensitivity, nurturance and cooperation, are valued over attitudes related to masculinity such as competitiveness or aggressiveness. Footnote 33 Some cultural feminists consider that there is an actual feminine essence, derived from biological facts, however not all of them are essentialist. Indeed, it is possible to recognize that gender patterns are contingent, and, at the same time, to have a positive understanding of the real experiences and values developed by women in gendered societies.

Postmodern feminism is characterized by a general mistrust of the pursuit of objectivity, certainty or ultimate truths. Footnote 34 It denies the universal validity of global explanations and meta-narratives Footnote 35 and embraces complexity, uncertainty, particularities and diversity of perspectives. As this chapter has mentioned earlier, basic concepts relevant in feminist theory like sex, gender, women or feminism itself are often criticised, questioned, or deconstructed. Postmodernism is also related with queer theory , a critical academic discourse that claims gender identity and sexual orientation are fluid and variable rather than fixed and discrete, thus undermining the boundaries between the sexes, the genders and the sexual orientation categories. Footnote 36

Ecofeminism: explores the connections between patriarchy, exploitation of nature and all forms of violence. Footnote 37 Therefore, it blends feminism and environmentalism, and sometimes, pacifism too. Footnote 38 There are different approaches to ecofeminism (for instance, cultural ecofeminism, radical ecofeminism, socialist ecofeminism) Footnote 39 and some branches are interested in spirituality or religion, whereas others are not. Footnote 40

3 Feminist Political Theory

3.1 patriarchy in feminist political theory: an overview.

If we focus on political theories, the concept of patriarchy, as well as the many terms used to denote the contested concept, has a long history: it has been used by feminists like Virginia Woolf, the Fabian Women’s Group and Vera Bitten. Footnote 41 The concept itself goes back much further, being at the core of feminist political theory, either as the explanans or the explanandum, until relatively recently. Footnote 42

Patriarchy can be conceptualised as a system or systems producing and reproducing gendered and intersectional inequalities, and men’s power and women’s subordination. It is a system of social, political and economic structures and practices, in which men as a group/category govern, oppress and exploit women as a group/category. Footnote 43 The concept refers to both the greater aggregate social, economic, and political power men as a group have over women as a group and over further genders as a group, and to the power hierarchies between both individual men and between groups of men. Footnote 44 Patriarchy is simultaneously structural and ideological, a hierarchical organisation of social institutions and social relations: “structurally, the patriarchy is a hierarchical organization of social institutions and social relationships that allows men to maintain positions of power, privilege, and leadership in society. As an ideology, the patriarchy rationalizes itself. This means that it provides ways of creating acceptance of subordination not only by those who benefit from such actions but also by those who are placed in such subordinate positions by society”. Footnote 45

Whether advanced as an analytical tool or the focus of substantial critique, the concept of patriarchy has formed a constant feature of feminist academic and activist work. Politically, feminists have used the concept in the search for an explanation of experiences and feelings of oppression and subordination, and in the desire to transform these into political practices. Analytically, patriarchy has been used to address and explore the basis of women’s subordination and to analyse the variations of the basis/bases. In feminist theory emerging in the 1960s, patriarchy became a crucial framework for explaining the persistence of gender inequality at a systemic level. Footnote 46 The concept was used by Millet in the seminal book Sexual Politics published in 1969 to refer to male domination and to the power relationships by which men dominate women, Footnote 47 and the year after by Firestone in The Dialectic of Sex to capture the “sexual class system”, which she argues predates and runs deeper than any other form of oppression. Footnote 48 A few years thereafter, Mitchell used patriarchy in Psychoanalysis and Feminism (1974), to analyse the effects of kinship systems where men exchange women, and of fathers’ symbolic power in those systems on the psychology of women. Footnote 49 Hartmann used it to define men’s power over women and to analyse the relationship between men’s power over women and capitalism. Footnote 50 In Eisenstein’s defence of liberal feminism, patriarchy was used to describe the sexual hierarchy manifested in the many roles of women within the family, e.g. as mother, domestic labourer and consumer. Footnote 51 To Jónasdóttir, patriarchy is a historically specific form of men’s exploitation of women in formally equal and developed democracies, captured by the concept of love power, Footnote 52 to mention a few. Footnote 53

Feminist theories of patriarchy, or feminist theorising patriarchy, include the attempts to formulate a coherent theory of the basis, or rather bases, of the subordination and oppression of women. These include Millet’s aforementioned deployment of sexuality, Footnote 54 Hartmann’s use of capitalism, Footnote 55 and additional bases of oppression, including biology; Footnote 56 sexuality; Footnote 57 the domestic mode of production; Footnote 58 kinship pattern; Footnote 59 biological reproduction and the care of dependent children; Footnote 60 reproduction more generally; Footnote 61 and sex/affective production (the production of sexuality, bonding, and affection as the core processes of society). Footnote 62

While noting the variety of theoretical approaches and attributed bases to patriarchy, it is also clear that the exact form, in terms of structures, processes and actions, that patriarchies take varies across societies and cultures, and varies historically. There is a vast literature on historical analyses on patriarchy, or patriarchies, ranging from Elshtain’s classic expositions of the patriarchal line from God(s), to monarch/emperor, to fathers and to other men Footnote 63 through to historical change from private or domestic patriarchy to public or modern patriarchy. Footnote 64 These latter historicizations of patriarchy can be seen in part as a response to some (feminist) critiques of broadbrush and overgeneralized analyses of patriarchy. Footnote 65 Such broad historical accounts have sometimes been complemented by attention to the historical diversification of structures and domains within different societal forms of patriarchy, in which violence exists alongside other domains, for example, sexuality, work/capitalism, family/procreation, civil society, polity, culture/ideology/discourse. Footnote 66 There have been further developments of a strong class take on patriarchy and of ‘patriarchy-capitalism’. Footnote 67 More recently, there has been further engagement of patriarchy with neoliberalism, as, for example, in Campbell’s ( 2014 ) coining of ‘neoliberal neopatriarchy’ Footnote 68 and globalization, postcolonialism, and processes of transnationalization, as in ‘global patriarchy’, Footnote 69 ‘trans(national)patriarchies’, Footnote 70 ‘postcolonial patriarchy’, Footnote 71 various transitional forms of patriarchy, Footnote 72 ‘racialized patriarchy’ and the inherent racism of patriarchy. Footnote 73 Hence, there is wide variation in the meaning and use of both term and concept. Footnote 74

The debates about the usefulness of patriarchy as a concept are often arguments about ontology, methodology or politics, and the usefulness in understanding and enabling the analysis of various relations, processes and sites/domains as structure. Hence, the concept of patriarchy offers an axis for understanding female subordination throughout premodern history. However, the logic of patriarchy without the logic of emancipation embedded in modernity (connected with political revolutions, industrial revolution, emerging of mass education, and the suffragette and feminist movements) cannot serve as the analytical tool for understanding contradictory status of gender relations in modernity. The conclusion is, then, that it is not enough to use only the logic of patriarchy in the context of modernity, rather the dialectic of patriarchy and emancipation from patriarchy must be used as the methodological axis and analytical tool for understanding gender relations in modernity and contemporaneity. Footnote 75

3.2 Central Concepts of Political Thought Reconsidered

Feminist political theory challenges some of the most established and taken for granted concepts in the history of political thought, including public and private, equality/inequality, freedom, justice, citizenship and democracy—to mention a few. This subsection first considers the central role of the political , deriving from the second wave feminist argument regarding the interrelation of the private and public, personal and political. This concept and its consequences are central to feminism, feminist theory and feminist political theory, laying the foundations for how we can think politically whilst challenge prevailing patriarchies, labelled gender orders (as used by R.W. Connell), gender systems (as used by Yvonne Hirdman) and gender regimes (introduced by Sylvia Walby). Footnote 76 It then introduces the concepts of equality/inequality, freedom, justice, citizenship and democracy, including the feminist critique of them (?).

For most of its history, political theory has ignored women and women’s experiences. Consequently, most of the history of feminist political theory has attempted to remedy this. The inclusion of women, women of colour, women of different social classes, women of different sexualities, women of differently abled bodies and ages and so forth has been a key achievement for feminist political theory over the past 60 years. A second key achievement for feminist political theory, and an ongoing unifying commitment, is the expansion of the boundaries and enlargement of the scope of the political sphere. Footnote 77 The political argument, turned into famous slogan, of the student movement and second wave feminist movement of the late 1960s, “the personal is political”, which was mentioned in the first section, points towards this expansion. The core of the argument is that politics takes place in the personal, in the private, in women’s everyday experiences of subordination and inequality, and what happens in the personal, private sphere, in women’s everyday life, has political importance. The political argument underlines the interrelations between personal experience and the larger social and political structures, thereby challenging both the nuclear family and family values. Footnote 78 Further, the expression “the personal is political” emphasised that issues that were considered women‘s personal issues were in fact political issues and in need of political intervention to generate change. Such issues included: sex(uality), reproduction and birth control, childcare and housework, bodily integrity and intimate partner violence. Finally, “the personal is political” connects to the idea of a global sisterhood, a perception that women share common needs or interests irrespective of ethnicity, race, class, culture, marital status, sexuality and (dis)ability, although the specific content of that shared commonality has long been debated. Footnote 79

The distinction between private and public, personal and political, has been pivotal and one of the “grand dichotomies” in western political theory and thought. Footnote 80 Since Aristotle, the ‘political’ has been constructed as the realm of reason and rationality. It was in the political sphere that social and cultural institutions could be questioned and changed, a place for reasoned and rational discussion and deliberation. However, as feminist political theorists Jane Mansbridge Footnote 81 and Susan Moller Okin Footnote 82 write, when Aristotle defined politics as the affairs of the polis, he simultaneously defined the household, the home and the private as other, as the non-political, thereby as a realm that could neither be questioned nor changed. Footnote 83 The influence of Aristotle, often considered next to Plato as a founding figure of political philosophy whose writings constitute canon literature in political philosophy and political theory, on western political thought and its consequences for the position of women and women’s rights cannot be overestimated. Aristotle’s definition of the polis as public, distinct from the private, set the boundaries of political thought and intervention up until, and in part including, the twentieth century, thereby excluding much of women’s lives and experiences from political questioning and state interventions. It further excludes women (and others, e.g. enslaved men, non-athenians) from citizenship: to Aristotle, citizenship was linked from public participation, to involvement in politics. For example, the division of private and public, where state interventions are considered illegitimate in the private, has long term and serious, sometimes deadly, consequences for women victims/survivors of men’s violence: as will be discussed in the Sect. 3.4 , devoted to legal feminism, such a distinction effectively sanctioned and legitimised marital rape, sexual violence, forced marriage, female genital mutilation and other forms of violence against women. These were considered for a long time as private matters, sacred in the realm of the family—and by no means a matter for the polis or democracy itself.

Feminist political theorists showed, in their critique, that what had been considered the private realm was saturated with unequal power relations: the household was, as shown by Susan Moller Okin, structured by gender hierarchies, domination and inequalities. Footnote 84 The hierarchies of the household and its effect on women’s capacity to participate in the public led to an argument that the very distinction fuelled the domination of women by men. The sexual division of labour in the household led Carol Pateman to conclude that the “Sexual Contract” between women and men preceded the “Social Contract” between equal and independent men, as introduced by Hobbes, Locke and Rousseau. Footnote 85 Drawing on the notion of the social contract Pateman, and others (e.g. Iris Marion Young, Sheyla Benhabib, Ruth Lister and Rian Voet), developed a key critique of the concept of citizenship and illustrated how it was gendered: the history of the concept and practice of citizenship is built on an abstract gendered subject who is male, white, and able-bodied, hence excluding women, minority groups and marginalised groups. Citizenship is therefore constructed around men, male and masculinity, and rests on the separation/dichotomy of public and private – on patriarchy. Women can only access it by resolving the so-called Wollstonecraft’s dilemma, which presents two alternatives: “either women become (like) men and so full citizen, or they continue at women’s work, which is no value for citizenship.” Footnote 86 To Young, the solution lies not in resolving Wollstonecraft’s dilemma, but in a model of a heterogeneous public, which situates women as a group among other marginalised groups, such as ethnic minorities, the poor, and the aged. According to Young, these groups are prevented from participation in the public arena,—preventing from exercising ones citizenship, due to the liberal emphasis on homogeneity, impartiality, and normative rationality. Footnote 87 Instead of highlighting similarity and sameness, Young emphasises group difference.

The basis of women’s access to full citizenship hence draws attention to issues of sameness and difference, and the concept of equality in feminist political theory. At its core, feminist theory (and feminism) theorises political, economic and social equality between sexes and genders—albeit that different feminist theories and movements have different visions of what equality means and what strategies to deploy to achieve it. Gender equality can first, be categorised as either a vision and a goal in its own right, or as a strategy and a means to some other goal, for example economic development in contemporary capitalism. Gender equality has been defined in three ways: (i) sameness, (ii) difference, and (iii) transformation. Sameness, here, means that since men and women are fundamentally the same, they should be treated equally. Hence, equality means equal treatment. This leads to understanding equality as equal opportunity and resonates with a liberal feminist vision of equality. Difference, here, means the equal valuation of different contributions: men and women are fundamentally different and may contribute differently, however those contributions should not be valued differently. The transformation approach to gender equality does not focus on the extent to which men and women are the same or not, but rather on the social, political and economic systems and forces that enable, or not, change. Instead of comparing contributions, the focus is on the transformation of structures that can cause change, and transform gender equality. Footnote 88

The centrality of the private/public dichotomy in political thought and the feminist challenge of these boundaries have consequences for our thinking and understanding of further central concepts, not only democracy, citizenship and equality as outlined above, but the very notions of freedom and justice that develop from this distinction (see Sect. 3.4.2 below).

3.3 Central Feminist Political Issues

Feminist political theory concerns not only women or gender, rather, a range of topics and concerns including: power relations and how these are gendered; and how they intersect with class, disability, ethnicity, gender identity, nation, race, religion, sexual orientation, and masculinity. Feminist political theory questions the seemingly natural and natural objects, including the self, the family, and sexuality, thereby questioning the power relations embedded in these seemingly natural institutions. Feminist political theory offers a critique of the history of political philosophy; its norms and theories, and is inherently diverse, plural and characterised by its rejection of essentialism, as “a notion that social categories are unchangeable with essences that map onto given characteristics and inequalities”. Footnote 89 Following on from the logic of the section on feminist political theory, starting in patriarchy and continuing with the notion of “the personal as political”, issues of central concern in this subsection are violence, pornography, prostitution and (hetero)sexuality. Other key central feminist issues, such as the division of labour, gender and economics etc., are discussed in the chapters on Labour Law and Gender and Economics in this textbook.

There is a long tradition of feminist and intersectional research on men‘s violence against women. Footnote 90 Violence is key to understanding social inequality and gender relations: men’s violence against women is often understood as both cause and consequence of unequal power relations between men and women. Footnote 91 Feminist understandings of violence against women are not limited to use or threats of physical force, but also include sexual, psychological, verbal, and economic forms of violence and financial abuse, as well as coercion, control, harmful traditional practices, and in online/offline contexts.

The UN Secretary General’s widely cited definition of gender-based violence against women goes beyond physical injury, defining it as:

“violence that is directed against a woman because she is a woman, or violence that affects women disproportionally. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty”. Footnote 92

Further, and contrary to conventional psychology and criminology, feminist and intersectional analyses of violence make visible how violence is being directed from the relatively powerful to the relatively powerless. Footnote 93

Such feminist definition and understanding of violence links sexual violence with prostitution/sex work and pornography. This is a central issue and debate in feminism, dubbed the ‘sex wars’ or the ‘porn wars’ in the late 1970s and 1980s, it continually influences and positions contemporary feminist theory. Footnote 94 The differences spanned across various issues related to sexuality, sexual activities, and sex, including pornography, erotica, prostitution, LGBTQIA+ and the role of transgender women. Feminists such as Andrea Dworkin and Catherine MacKinnon are positioned on the critical side, declaring that pornography and prostitution were exploitation and violence rather than sexual preference or orientation. In contrast, Ellen Willis and Gayle Rubin declared these issues to be a matter of preference and choice. Some commentators have announced the sex wars as the end of the second wave and beginning of the third wave feminism. Footnote 95 Although contested, sex and sexual violence tend to be pictured as two radically different phenomena. Footnote 96 In contrast to this, contemporary feminist researchers have highlighted that it is often unclear where to draw the line between just sex and sexual violence. Notions of ‘grey zones’ and debates around consent have arisen, not least after the feminist campaigns and social movements #talkaboutit and #metoo. Footnote 97 They have pointed out that, in so far as (hetero)sexual scripts are organized in line with a gendered logic that has much in common with the dynamics of sexual violence, “[m]any rapes merely extend traditional heterosexual exchanges, in which masculine pursuit and female reticence are familiar and formalized”. Footnote 98 Catharine MacKinnon famously took this insight to its logical extreme, virtually erasing the distinction between (heterosexual) sex and violence. MacKinnon’s disturbing question still resonates: If sexual and gendered reality is socially constructed in a way that eroticizes male power and female submission, how can we possibly distinguish sex from violence? In a less reductionist form, the observation that normative (hetero)sexuality is infused with violent dynamics has been articulated as a continuum of sexual violence, whereby “‘typical’ and ‘aberrant’ male behaviour shade into one another”. Footnote 99 Other central feminist issues are discussed towards the end of this chapter.

4 Feminist Legal Theory

4.1 patriarchy in legal thought and legal practice: an overview.

When considering the legal aspects of feminism, the effects of patriarchy in law are pervasive and well-established. As Luce Irigaray clearly highlights, “Their [men’s] discourses, their values, their dreams and their desires have the force of law, everywhere and in all things. Everywhere and in all things, they define women’s function and social role, and the sexual identity they are, or are not, to have”. Footnote 100 Accordingly, it is not surprising that feminism has devoted a wide range of studies to the analysis of the influence of patriarchy and patriarchal norms on the conditions of women, extending to those who do not conform to these male, heterosexual, and cis-gender norms. And since, as has already been argued, patriarchy is not merely a form of social organisation in which males are the head of the family, rather where the whole of society is governed by male rules, male hierarchies, male desires, and gendered social structures. Feminist legal scholars have focused on the intersection of gender and law, contemporaneously discussing strategies to correct gender injustice, exploitation, or restriction. In this vein, feminist scholars have analysed legal systems and institutions starting from the recognition of their intrinsic patriarchal structure, which creates a subtle duality between men, who are the “Subject”, and women, who are the “Other”. Footnote 101 In relation to law, this pervasive dualism produces oppression and the invisibility of women, creating difficulties in making their voices heard and acted upon: all this, behind a veil of objectivity and neutrality that hides the orientation of law towards the needs and goals of male subjects.

In a 1992 essay, the British sociologist Carol Smart identifies three phases of feminist positions on law. These phases are linked to the three “waves” of feminism, which have been analysed in the subsection devoted to the history of feminism (Sect. 3.2.2.1 ). Although they are not reducible to them: “the first stage is epitomized by the phrase ‘law is sexist’, the second by the phrase ‘law is male’, the third by the phrase ‘law is gendered’.”. Footnote 102 Therefore, starting from the recognition of such a patriarchal orientation of law, the first phase feminist legal scholarship focused on the consequences of patriarchy in terms of exclusion of women from public life, what some scholars labelled as the male monopoly of law. Footnote 103 In this phase, those positions which criticise the law prevail because it is not (as it claims to be) objective, rational, and impartial. Rather, by distinguishing between men and women, the law discriminates against women by distributing fewer resources to them, denying them equal opportunities, and refusing to recognise the offences against them. Consequently, the debate on patriarchy takes the form of the quest for equality in the professions as well as in politics, attempting to remove existing rules that operated to the detriment of women, without criticising the basic assumptions of the legal system itself (its consideration of subjects as gender-neutral individuals, holding gender-neutral rights). Footnote 104

It is in the second phase that legal feminism explicitly addresses the male orientation of law; feminist legal scholars criticize the impartiality and objectivity of legal systems, uncovering the male standards and assumptions that permeate these concepts. MacKinnon, for instance, argues that ideals such as objectivity and neutrality, which are typical of Western legal culture, are actually masculine values that have been taken as universal values. Thus, with respect to the approach “the law is male”, this means that when a woman stands before the law, the law applies fundamentally masculine criteria. Footnote 105 Similarly, feminist legal scholars highlight the male standards underlying criteria such as the “reasonable person”, and how these standards mask male construct and male standards, thereby consolidating male dominance. Analyses thus focus more on the societal structure which is the legal systems’ background, than on specific rules that unequally affect women. Within these perspectives, both radical and Marxist feminists argue that inequalities arise from the gendered structure of the whole of society (rather than from single bad laws), and that the relationship between the sexes is determined and shaped by the oppression of women by men, in addition to the structure of privilege and oppression. Footnote 106

The third phase does not simply question the gendered structure of society and legal systems, but the role of law itself, adopting postmodernist philosophies and deconstructionist approaches. In this third phase, the condition of women is analysed with greater attention to the local dimension and specific context. The critique of the effects of patriarchy on the condition of women is carried out without referring to mono-causal theories; the impossibility of reducing the condition of women to a single set of factors is emphasised, and the possibility of highlighting ‘essential’ elements useful in defining the condition of women is denied, highlighting instead the importance of factors such as class, race and age. As some scholars have pointed out, Footnote 107 the deconstructionist approach tends to question certain assumptions of previous feminist theories, and in particular the implicitly white, heterosexual, and middle-class point of view that underpin these theories. What is criticised, as highlighted in the Sect. 3.2.2.2 on the “types” of feminism, are not the conclusions reached by these theories, instead the very claim to be able to elaborate a theory of patriarchy that is adequate for all women regardless of race and class differences, and the ethnocentrism of some theories of women’s oppression in non-Western cultures. More generally, any theory which fails to attend to the diversity of women’s condition is criticised, claiming that in order to understand the many different forms that patriarchy can take, the importance of contextual analyses, of subjective narratives, and of individual experiences must be stressed. Therefore, the substantial irreducibility of the experience of women of colour to that of white women is reaffirmed, including the impossibility of talking about patriarchy and the oppression of ‘women’ in general, and the need to include different experiences and points of view in the debate. Footnote 108 At the same time, lesbian feminists point out that patriarchy and oppression, as theorised by prevailing theories, presuppose an underlying heterosexual binarism, which neglects the condition of lesbian women and their needs. Footnote 109 In the same vein, postmodernist theories deconstruct the very concepts of gender and sex, and the binarism (man-woman, subject-other, oppressed-oppressor) that they presuppose. The results of this approach, while significant in philosophical terms, have nevertheless been criticised politically, and in relation to their ability to affect the legal structures and institutions that are the source of inequality and oppression. As Bordo points out, Footnote 110 the postmodernist critique risks delegitimising feminism as a theory, so as to make the claim of rights and opportunities more difficult: in other words, even though convincing on a theoretical level, the postmodernist approach risks neglecting the everyday difficulties that women encounter on a legal and political level.

4.2 Central Concepts of Legal Thought Reconsidered

Since law determines the fundamental values of a society, and codifies what is (allegedly) universal and objective, legal feminism is aimed at unmasking the systemic prejudices on which the law is based, which condition not only the subjects charged with applying the law, but also the life of every individual. In order to fulfil this task, feminist scholars reconsidered and renamed personal experiences and legal concepts, applying methodologies such as conceptual analysis and normative critique. The work of MacKinnon has been pivotal, as already seen in Sect. 3.3.3 , in renaming sexual harassment, pornography and rape from the point of view of those who suffer these offences, and in conceiving this point of view as collective. Footnote 111 Even if she has been accused of blindness to the differences between women, and a totalising view of the ‘domination’ of men over women, her use of legal concepts nonetheless enhances both their practical and symbolic implications. Similarly, Olsen reflected on a series of oppositional pairs that emerge in the liberal tradition, such as active/passive, rational/irrational, objective/subjective, thought/feeling, reason/emotion, power/sensibility, culture/nature etc. As already observed in the Sect. 3.3.2 , while the first terms of these pairs have been traditionally associated with the masculine, and within the world of law, the second have been linked with the feminine. As a consequence, not only have women’s traits generally been stereotyped and regarded as alien to law, but women’s access to and influence in law have been limited. Footnote 112 On this basis, the sexualisation of law can either be rejected as such, claiming the full capacity of women to be rational, active, etc., and use the law for their own ends, or it can be rejected in its hierarchical structure, claiming the importance of “feminine” values and their importance in law. A third approach, which Olsen calls ‘androgyny’, tends to highlight how both character groups are present in both men and women, and to problematize their very content and boundaries. In other words, feminist approaches to legal studies have been characterised by the assumption of a gender perspective (aimed at unmasking the alleged neutrality of law); by a critical orientation (oriented towards the promotion and emancipation of women through legal norms); and by a desire to reframe the relationship between theory and practice (in order to eschew abstractions in legal interpretations and offer effective solutions to real-life needs).

One of the concepts that has long attracted the attention of feminist legal scholars is certainly that of equality, and the relationship between equality and difference. In considering the conceptual relationship between equality and difference, the reformulation of these concepts in the search for an equality that may be realised through the enhancement of differences, as well as the consequences in terms of political and legal choices, have long occupied feminist literature. The principle of procedural justice articulated by Aristotle that like cases should be treated alike, and different cases differently in proportion to their differences, has been taken as a critical starting point, in considering what equality requires against a patriarchal legal background. This notion of equality, although apparently neutral and objective, has proved problematic for women because of the circumstances in which women are not like men (such as sexuality, reproduction), and of their different social, political, and economic background. Therefore, the concept of equality has been crucial in eighteenth and nineteenth century to promote the idea that women (as any human being) are by nature free, equal, and endowed with the same inalienable rights as man, thereby challenging their inferior legal status. In contrast, feminists challenged the concept of equality by arguing that equality takes man as the standard (equal to whom ?), presuming that men and women should be similarly situated in society, contemporaneously ignoring both the differences between the sexes and those amongst women themselves. Consequently, with regard to the equality/diversity pair, feminists not only elaborated subtle analyses on the alternative between formal and substantive equality, they further expanded the concept in terms of equality of opportunity, equality of results or outcome, equality of condition, equality of power, and social equivalence Footnote 113 but also argued for an intersectional approach in order to better acknowledge the way in which race, class, gender and other systemic oppressions work together. Footnote 114

The debate over the pair equality/difference aimed, among other things, at unravelling the biases and male basic assumptions that underlie the traditional legal understanding of equality, thus advocating for a reconsideration. Feminist scholars stressed that when women are compared to men in order to assess whether they have been treated equally or not, the outcome may be the pathologisation of women themselves; such an approach uses the male as a comparator. In doing so, this normalizes his experiences, measuring women’s experiences against male standards.

In the debate on policies related to pregnancy and motherhood of women workers, it is affirmed that maternity protection regulations serve to protect women and to shift the costs of reproduction (in terms of career, time, opportunities) onto society. However, many feminists believe that this kind of legislation favourable to working mothers tends to brand women as ‘problematic’ and reinforces the idea that only mothers should take care of children. Footnote 115 In Italy, for example, maternity leave is only granted—albeit extensively consisting of a minimum of 5 months—to women. If, from a formal point of view, this guarantees job protection, from a substantial point of view this tends to disadvantage women at the time of recruitment, and in income levels. It may represent women as ‘costly’ from the employer’s point of view, compared to their male colleagues.

In this vein, some feminists argued for a reconsideration of the equality/difference dilemma outside the logic of hierarchy. Such logic, as highlighted by Mackinnon, stems from the overlapping of biological difference and societal gender hierarchy, whilst hiding underlying asymmetries of power and systems of domination. Footnote 116 Equality, in her view, should be understood as a counter-balancing force, a way to reshape power asymmetries between groups and individuals, dismantling the domination of some (historically, men) over others. What is at stake, as highlighted in Sect. 3.3.2 , is not merely an asymmetrical and detrimental treatment , rather an asymmetrical distribution of power : equality, in this perspective, is almost a function of empowerment. Therefore, as in legal analyses, the discussion on equality goes beyond the alternative between what is “same” and what is “different”: it requires that male domination be uncovered and balanced, by constructing a legal standard that takes the perspective of women and their possibilities to act in society into account. MacKinnon’s works on sexual harassment of working women Footnote 117 and violent pornography Footnote 118 have been pioneering in this regard.

A second, fundamental goal of feminist jurisprudence has been the pair oppression/discrimination, in order to oppose and reform barriers to women’s participation in the public sphere, with specific regard to legal structures that put disproportionate burdens on women. Accordingly, MacKinnon’s analyses on male domination urged feminist legal scholars to focus on the legal structures of oppression, rather than on specific rights-related discriminations. In contrast from discrimination, oppression is produced in a systemic way; it operates through social, political and economic systems that simultaneously limit women’s opportunities and penalise them in different but inevitable ways. With an instructive metaphor, Frye describes oppression as “a birdcage”. “If you look very closely at just one wire, you cannot see the other wires. If your conception of what is before you is determined by this myopic focus, you could look at that one wire, up and down the length of it, and be unable to see why a bird would not just fly around the wire (…) it is only when you step back, stop looking at the wires one by one, microscopically, and take a macroscopic view of the whole cage, that you can see why the bird does not go anywhere; and then you will see it in a moment”. Footnote 119 Additionally, oppression targets groups rather than individuals. Unlike discrimination, which can affect individuals as well as groups, oppression primarily involves groups. Individuals are consequently affected by oppression because they belong to a group; legal, social and cultural norms, institutional mechanisms, practices and habits, symbols and mechanisms of mass communication. Each of these forces can represent a vehicle for oppression, from a structural perspective, regardless of individual conditions and resources. Footnote 120

One of these sources of women oppression, and a third central focus of feminist critique over the years, has been the distinction between the public and private spheres. The political relevance of this distinction has been already discussed in Sect. 3.3.2 . Focusing on the legal consequences, it is possible to highlight the assumption of a clear-cut distinction between the public and the private realm entails the idea that personal relations are a site of legal non-intervention, a sphere where individuals are sovereigns, and a boundary which the law cannot (normally) cross. Accordingly, feminist scholars attempted to overcome the distinction itself, criticising ideologies that assign men and women to different spheres on the basis of their natural characteristics, inevitably confining women to positions of inferiority, and hiding abuses and oppression from judicial scrutiny and redress. Footnote 121 Contemporaneously, other scholars insisted that it should be preserved, both to protect women’s interests in matters like child custody and reproductive freedom, and to protect a site of women’s empowerment against discrimination, especially for non-white women. Footnote 122 For that reason, some scholars attempted to reconsider the distinction, highlighting the relations between the domestic sphere with both the state, the official-economy of paid employment, and the arenas of public discourse. Footnote 123 Others argued for a different rethinking of both the private and the public sphere, by drawing attention to the many aspects of family life that, in spite of the rhetoric of privacy, are in fact hedged with legal regulation, such as marriage, divorce, child custody, and social welfare rules. The fact that even if state’s regulation may be less relevant, there are non-state power and non-state bodies at work, which are linked with each other. Footnote 124 In more recent times, feminist legal scholars argued for a deconstruction of such a hierarchically ordered dichotomy, rejecting any either/or analysis: for instance, struggles for the integration of same sex relationships into marriage had the effect of both proposing different definitions of marital relations and the notion of spouses, and gaining access for gay and lesbian people within the public realm, thereby reconsidering the public/private divide rather than abolishing it.

The understanding of the public sphere as the realm of reason, required in order to take part in public debates and linked to an alleged standard of objectivity, prompted feminist scholars to scrutinize the concepts of reason and reasonableness, with specific regard to their legal use. If knowledge and rational argumentations claim objectivity, the rational/objective standards in both civil and criminal law, the so called “reasonable person”, if not explicitly “reasonable men”, are modelled around a person who is both gendered (as a male), and specified in terms of class, ethnicity, and more. Feminists’ analyses focused on these biased legal standards, both to unveil and to reconsider them. In this perspective, the reasonable-unreasonable dichotomy and the objective-subjective dichotomy are criticised as working together when objective standards are implemented to determinate reasonableness, and reasonableness is used to better understand objectivity. This overlap underlies court jurisprudence and its patriarchal power structures; as long as the courts maintain the appearance of rational and objective actors and hide their biased positioning. As Noddings exclaimed, law has long used a “reasonable man” standard to evaluate human actions, for instance in criminal trials. Even if in recent years it has been renamed the “reasonable person” standard, such a change was developed in a masculine and patriarchal culture, still reflecting its values. Footnote 125 From Criminal Law to Tort Law, extending to other areas of legal systems, the reasonable person worked to answer relevant questions (did the defendant exercise reasonable care? Did the person comply with a reasonable standard of fair dealing? etc.) by using a gendered perspective, both because it arose from a male culture, and because it has been enforced by courts that are still largely made up of men. In other words, the ‘reasonable person’ represents a community ideal of reasonable behaviour, which dismisses gender, age, and intellectual ability as relevant subjective characteristics to a court’s evaluations. Consequently, not only are standards of behaviour set, which entire subpopulations (not just women) tend not to exhibit, but society’s majoritarian prejudices concerning normalcy are used to draw the picture of such a ‘standard’ person (male, heterosexual, white, able-bodied, etc.).

In sexual harassment law and battered women’s self-defence cases, as well as in rape law, the standard of the “reasonable person” implicitly requires women to conform to a certain image and to certain modes of conduct, for their experiences to be legally recognised as crime. Otherwise, to the extent that their behaviour does not match what could be expected of a reasonable person, largely conditioned by male biases and ideals, they are blamed for provoking or seducing men, thereby disempowering the female victims. For instance, a “reasonable” victim is expected to cry, to try to escape, not to be dressed provocatively, to denounce immediately, etc.[…] She is expected to correspond to an abstract ideal of a victim, elaborated in a patriarchal culture. These stereotypes can affect judges’ understanding of who is a victim and who is not, can influence their views about the credibility of witnesses, and permit irrelevant or prejudicial evidence to be admitted. Footnote 126

The reasonable person standard has been reconsidered by feminist scholars to include the experiences of both women and other excluded groups. A first strategy has been that of proposing the “reasonable woman” standard, which requires thinking from the perspective of a woman’s reaction in a given situation, rather than that of the standard/average man. However, since the interpretation of the standard is left to white, male judges, such a different standard may merely represent a change in language with no positive consequence, perpetuating stereotyped representations of women themselves. Footnote 127 A second strategy has been to reformulate reasonableness, in both an intersectional and contextual perspective, which focus on the person’s experiences and needs, avoiding the stereotypes imposed by any particular theoretical standard. Footnote 128 With specific regard to rape, sexual harassment, or domestic violence cases, extending to cases concerning employment discrimination, the victim’s perspective must be taken into account, requiring that she exposes her feelings in a non-judgmental and unbiased environment.

4.3 Central Feminist Legal Issues

It is possible to argue that feminist analysis of law “is, negatively, an analysis of how some or all women have been excluded from the design of the legal system or the application of law, and positively, a normative argument about how, if at all, women’s inclusion can be accomplished”. Footnote 129 Thus, while in the 1970s the main objective of feminist legal scholarship was to affirm equality of treatment among men and women in all legally relevant purposes, by the 1980s feminist legal scholars focused on the analysis of structures and systems that undermined the inclusion of women in any areas, extending to practices and norms that prevented substantive equality. Within this framework, scholars addressed specific challenges and topics, by taking the ‘dilemma of difference’ into account, i.e. recognising that women’s disadvantage might be reinforced both by ignoring the difference and by acknowledging it. If measures are taken to compensate the disadvantage, stereotypes are acknowledged that perpetuate the disadvantage; if no measure is undertaken, and women are not stereotyped, they do entirely bear the cost of the disadvantage. Footnote 130 In this phase, scholars argued that such a dilemma arises on a biased premise, which implies that the status quo is natural and good, and that only specific differences are to be addressed: however, women are different only if men are taken as the standard, and women need special rules only because the rules they are confronted with have been formulated by and for men.

A first issue that has been crucial in feminist legal scholarship, and clearly illustrates this evolution, is the economic subordination of women. Within this field, specific questions and topics came to the fore: among the many, the equality of opportunity in access to the public sphere and in the labour market has been considered. Restrictions on women’s participation in certain professions, such as the judiciary, the military, and many others, have been the target of feminist scholars in a first phase, with the aim of opposing barriers that bolstered a second-class citizenship for women. However, even if these struggles led to an increase in female participation in the workforce, substantial disparities remained. Not only women were largely confined to certain ‘female’ occupations (nursing, teaching, secretarial, etc.) with lower wages and fewer career prospects, when they entered traditionally ‘male’ fields (law, medicine, business, etc.) their treatment remained disproportionally worse. Footnote 131 Therefore, feminists focused on the analysis of rules and practices that adversely affect women, so as to generate inequalities at a substantial level. A first challenge concerned the application of supposedly objective rules, and the pressure of unrecognized biases (for instance, in recruitment procedures, or in workers’ evaluation). Secondly, a reconsideration of norms that ruled workplaces by assuming the ‘male breadwinner’ with no care burden as a standard, has been deemed necessary: norms concerning flexible work schedule or part time work, as well as affirmative actions, have been proposed as corrective measures. Thus, whilst, legal scholars argued that cases of discrimination in the labour force are rooted in both cultural beliefs and gender stereotypes (which may affect women, as well as LGBTQIA+ people, people of colour, immigrants, etc.), and organizational structures, policies, and practices. In contrast, feminist scholars highlighted the biased premise of these arguments: the so-called ‘culture of domesticity’ underpinning the workplace, within which the perfect worker is available to work overtime, and to travel, without being restricted by personal and familial responsibilities (since his personal life depends on the unpaid work of a woman/wife). Therefore, some feminists argued it is not only necessary to challenge the current organisation of the workload and the masculine standards operating in the workplace, family norms and entitlements. This can be done either by recognizing the value of parental care, in order not to leave women impoverished and constantly dependent due to their domestic work, or by suggesting alternative models of family and marriage as a legal institution. Footnote 132

A second group of topics in the legal feminist agenda concerned the status of the female body, sexual relations, self-determination of women over it, and in more general terms the regulation of sex and sexuality: pornography, reproductive rights, domestic violence, sexual harassment, and rape, to name only a few issues, figure centrally in feminist legal theory. The political relevance of these topics has been discussed in Sect. 3.3.3 . Paying specific attention to legal consequences, feminist scholars analysed these against the background of the patriarchal social structure which leads to the stereotyped construction of the woman as the ‘good’ battered wife, the ‘bad’ mother, the ‘real’ rape victim. Footnote 133 Such a culture coerces women and penalises them for corresponding to the image invoked by law, as well as for failing to correspond to it. Until recently (twentieth century) women did not properly own their bodies, not having a voice, legally, in decisions concerning reproduction, sex, intimate relationships, and without protection from harms inflicted by their intimate partners (husbands, lovers, as well as employers). To be more precise, it is the very nature of harm that was disputed within a male culture which considered these actions as either inevitable or justifiable. Therefore, a crucial task for legal feminism has been to explore the ways in which law fails to protect women from abuses and violence. Even if all Western states recognize spousal rape and physical violence occurring within marriage as crimes today, both are sometimes considered as less serious than violence occurring outside of marriage. All these crimes have been analysed by feminists starting from different perspectives (cultural feminists, race theorists, dominance feminists) and with different approaches, however a common theme was identified being the biased regulation of these crimes. Feminist scholars highlighted that interpretations of both the force and lack of consent required a woman to offer the “utmost resistance” or “reasonable resistance”, thereby making the verbal resistance, crying, begging, saying “no”, not enough to manifest the lack of consent. In a parallel way feminist scholars focused on domestic violence, and what is now labelled as femicide. On one view, they deemed the law to be inadequate to protect against being coerced into sexual intimacy, as elements of these crimes are still vague if not favourable to the defendant. Contrarily, feminists highlighted the extent to which social attitudes about sex, and intimate relationships are pervasively biased to favour male dominance, holding necessary reforms back. For instance, scholars who analysed pornography Footnote 134 tended to see it as a reinforcement of the patriarchal culture and of male dominance that results in rape, harassment, and violence. Contemporaneously, it is important to emphasise that reflections on domestic abuse have been discussed from an intersectional perspective: while initially the ‘battered woman’ was perceived as essentially white and involved in heterosexual relationships, subsequent studies focused on the intersection of race, class, ethnicity, language, and sexual orientation, highlighting the difficulties faced by gay men or lesbians to defend themselves from violence and abuse.

Another area of interest was certainly that of reproductive rights, on the assumption that if a woman is not free with regard to self-determination over her own body and sexuality, she is not free at all. While abortion has certainly been one of the first and most significant issues debated by legal feminism, other issues arose in the following decades. The debate on abortion, which has been heightened and thoughtful inside and outside feminism, raised moral, religious, philosophical and legal issues. Among these, it has been questioned whether the best foundation on which to base a right to terminate pregnancy is privacy or equality.

Norma McCorvey, known in her lawsuit under the pseudonym “Jane Roe”, was born in Louisiana in 1947. At the age of 16, she married a violent man with whom she had two daughters. While pregnant with her third child, Norma began her lawsuit to assert her right to an abortion. The US Supreme Court was asked whether the Federal Constitution recognises a right to abortion even in the absence of health problems of the woman, the foetus and any other circumstances other than the woman’s free choice. In a landmark decision Footnote 135 (made by a majority of 7 judges in favour and 2 against), the Supreme Court based the right to abortion on the fundamental right of privacy, interpreted as “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy”, thereby fuelling the criticisms concerning the state’s abdication of women and its unaccountability for the disadvantages shouldered by women as a group. Footnote 136 If abortion belongs to the private realm, state interference is avoided, however the state does not have to support these private choices with public funds or institutions.

Alternative solutions have been adopted across the world, depending on the political circumstances and cultural traditions of the different countries, the availability of a more or less extensive welfare state, and other political factors (across the European Union, 24 countries have legalized abortion on a woman’s request or broad social grounds, and two Footnote 137 allow it on social and economic grounds. More restrictive regulations are emerging in Poland, where abortion is now allowed only on grounds of woman’s health, incest or rape, Footnote 138 and Malta is the only EU country were abortion is illegal. Other limitations are present in several EU Member States, including mandatory waiting periods for abortion on request, mandatory counselling or information prior to abortion, and refusals of care on grounds of conscience and religion). It is worth noting, however, that while non-feminist arguments about abortion mainly focused on the morality and/or legality of performing abortions, feminist scholars also considered other questions, which are deemed relevant in overcoming the oppression of women and in meeting their needs. Among the many, questions were posed concerning the accessibility and delivery of abortion services, the legitimacy of unnecessary and burdensome conditions on abortion providers, doctors’ conscientious objection, as well as many other measures aimed at restricting access or availability of abortion procedures. These are only some of the issues debated.

The debate on abortion did not exhaust the issues raised in the field of reproductive rights; the rise in medical technologies was accompanied by both an increased medicalisation of reproductive issues, and increased regulation of this field, where women’s rights to exercise control over their bodies are placed in competition with the claims of others (the state, the husband, the unborn, etc.). The availability and safety of means of contraception, the management of pregnancy and childbirth, sterilisation (both its positive side, as a right to self-determination, and its negative side, as in cases of sterilisation programs performed on minority groups and on mentally incompetent adults), the use and misuse of caesarean sections, are only a few issues debated by legal feminists. Recently, questions concerning surrogacy have been debated within and outside feminist scholarship, often engaging arguments similar to those already proposed in the debate concerning prostitution and the commodification of the female body. Proponents of surrogacy argue that surrogate mothers, if allowed to use their reproductive capacity by entering into these contracts, may increase their income and improve their education, in addition to helping others by transforming procreative labour into a market asset. Opponents highlight the conditions of exploitation and poverty in which surrogate mothers find themselves, and interpret these choices as the result of oppression and subordination by others, rather than a sign of freedom. Footnote 139

Postmodern feminism approached these and other issues through both a criticism of the false essentialism of classical approaches, and a more nuanced analysis of subjectivity and power relations. The postmodern critique of the idea of the subject, labelled by Susan Bordo as “feminist skepticism” about gender, Footnote 140 accuses the latter of being a totalising fiction. In this vein, multiculturalists complained that Western feminists excluded and ignored non-Western women and their worldviews, thereby rejecting any all-embracing assumption on woman’s identity and patriarchy. While from a Western perspective the decision of a Muslim woman to wear a hijab may represent an internalization of patriarchy, from a non-Western point of view it might denote the rejection of the equation between “uncovering” and “liberating” women inflicted by Western patriarchal culture. Footnote 141 Contemporaneously, lesbian and gay theorists highlighted the links between heterosexism and sexism—in addition to the marginalisation of their perspective by the mainstream feminist movement, and the peculiar challenges they face, from a legal point of view. Footnote 142 These include; the right to assume more childcare responsibilities, to obtain custody of their children, and not to be excluded by employment rights that are granted to straight women. Additionally, gay and lesbian theorists argued that sexual orientation meets the standards established (in the US) by Supreme Court jurisprudence for suspect classification and should receive strict scrutiny under the Fourteenth Amendment equal protection analysis. Similarly, other challenges arose from queer and postmodern theories, which questioned the dominant binarism in law. Footnote 143 From the registration of gender on official documents, to marriage laws and anti-discrimination laws, legal systems still tend to identify people according to a twofold distinction between men and women. Therefore, transgender and intersex people raised questions concerning the right not to be identified by law as either male or female, and argued for the legal recognition of multiple identities, extending to the abolition of sex as a relevant legal category. Footnote 144 Even if feminist scholarship seemed to be generally sympathetic towards these claims, by refusing a biologically determined model of gender and sexuality, some authors emphasized that such a fragmentation of human identity into multiple frames risks undermining feminist claims and the struggle against the oppression of women. Further, the self-determination of gender identity is at odds with the definition of feminist political goals and its political community. Footnote 145

5 Conclusion

The aim of this chapter was to present an overview of feminism, with a specific focus on legal and political challenges. Therefore, the chapter provided a basic theoretical framework, which is necessary to explore feminist analyses of the different branches of law, as well as related political questions.

The chapter did not offer to the reader a unitary definition of feminism, not even in its legal or political applications. Rather, feminism has been presented in its internal complexity, and its multifaceted understanding. Even if feminist theories aimed at ending women’s oppression, encompassing both theory and activism, they should be considered a set of different social movements and theories that share the same basic goal of defeating the systemic oppression of women, rather than a single movement or ideology. Consequently, the chapter presented the “types” of feminism, and its “waves”, highlighting the multiple combinations of these different approaches, both in theory and in practice.

The chapter discussed many of the typical themes of feminist reflection, and in particular, focused on those that are most relevant from a political and legal point of view. Of particular relevance here have been the analysis of the binary opposition between women and men, the distinction between sex and gender, and the notion of patriarchy. All these notions and categories are interwoven with inequalities in symbolic status, political power, life opportunities and access to society’s resources, within a system of rules, values and practices that tend to maintain and reproduce women’s subordination, thereby being pivotal for any attempt of legal and political emancipation of women.

Specific topics and concepts have also been discussed in the second and third part of the chapter. This section was devoted to the analysis of how feminist political theory explored fundamental concepts of Western political thought, including the distinction between public and private realm, equality, freedom, citizenship and democracy, specifically considering the interrelation of the private and public, personal and political. Moreover, this chapter argued that feminist political thought not only unravelled unequal power relations behind these concepts and distinctions but also struggled for the inclusion of women, women of colour, women of different social classes, women of different sexualities, women of differently-abled bodies and ages within the political realm, gaining women’s access to full citizenship and enabling social change. Specific attention has been further devoted to the issues of violence, pornography, prostitution and (hetero)sexuality, interpreting them as both cause and consequence of unequal power relations between men and women.

The final part of this chapter has been dedicated to the analysis of legal feminism, once again starting from the notion of patriarchy and the consequences that this social and cultural structure has on the law. This section highlights the consequences of patriarchy in terms of exclusion of women from public life (epitomized by the phrase ‘law is sexist’), the false impartiality and objectivity of legal systems, which covers the male standards and assumptions that permeate legal concepts (epitomized by the phrase ‘law is male’), and the importance for legal theories of contextual analyses, subjective narratives, and individual experiences, criticising the binarism man-woman, subject-other, oppressed-oppressor (epitomized by the phrase ‘law is gendered’). The application of these theoretical approaches to legal discussions and analyses are manifold: among the many, the chapter offered a discussion of traditional policies and rules aimed at promoting equality (and their male biases), the male standards behind the concepts of reason and reasonableness, with specific regard to their legal use, the status of the female body and self-determination of women over it, and in more general terms the legal regulation of sex and sexuality.

This chapter has many limitations. First, it does not explore all the relevant issues, and not all those that are analysed are analysed with the necessary depth. Second, it focuses on the European and US context, and largely neglects non-Western cultures and legal systems. Third, it does not delve into the historical, cultural and political context in which feminist claims and reflections were elaborated. These limitations depend, of course, on the limits of space as well as on the expertise of the authors; but above all, they depend on the aim of the chapter itself, which, as said, was to offer an overview of the theoretical and philosophical assumptions of legal feminism, whose specific aspects will be discussed in the following chapters of this book.

However, there is a common thread throughout the chapter: it is the idea that, first, we live in a world where women’s oppression is still at stake, not only because the vast majority of women across the world lack basic rights and legal protection, rather, even in Western countries major inequalities remain. Second, we live in a world that is still, largely, male. As de Beauvoir argued, the construction of society, of language, of law, all rests on male assumptions and male standards, thereby relegating the women to a condition of otherness and exceptionality (or deficiency). Women’s priorities, feelings, and practices are marginalised as ‘different’ and neglected as inferior, in a dichotomous conception of gender and identities that hierarchically assign rights, roles, and behaviours. Exploring this assumption was, from different perspectives, the aim of the chapter. Challenging this structure, and rethinking society and law from a different, non-male perspective, is the ever-present challenge of all feminism, and legal feminism in particular.

In your view, what are the advantages and the disadvantages of the distinction between sex and gender? Do you believe that it is useful at the present time? Do you think that sex is really binary in human biology?

Do you consider that fourth-wave feminism has emerged?

Do you think that the different schools or branches of feminism are complementary or contradictory? Justify your answer.

What is the difference between the three phases of legal feminism, which have been labelled as law is sexist’, ‘law is male’, and ‘law is gendered’? In what sense the second phase addresses the “male orientation of law”?

Describe the origins and implications of the slogan “the personal is political”, and use it to justify the state’s intervention in the family.

What are the three notions of gender equality, and how does each relate to different feminist waves and feminist political theories?

What are the arguments for the exclusion/inclusion of women and marginalized groups in the concept of citizenship?

Why, according to many scholars, does the “reasonable person” standard work to answer relevant legal questions through the use of a gendered perspective? What alternative strategies have been proposed in order to reconsider such a standard?

Why many feminists criticised the decision of the US Supreme Court to recognise the right to abortion on the basis of the right to privacy?

Why legal scholars argue that cases of discrimination in the labour force are rooted not only in cultural beliefs and gender stereotypes, but also in organizational structures? Can you provide some example?

This idea does not imply necessarily that every individual could be objectively classified in one of the sexes, as we will see later. In this sense, the binary distinction between the sexes is widely challenged in the academic literature. Also, there are some authors who argue that sex, and not just gender, could be a social construct, which we will discuss in this section.

de Beauvoir ( 1949 ), p. 285.

Mead ( 1935 ).

Rubin ( 1975 ).

Fletcher ( 2002 ), p. 9.

Butler ( 1990 ), pp. 8–10. See also the “Sociology of Law and Gender Equality” Chapter in this book (subsection 1.1).

Marinov ( 2020 ).

Bourdieu ( 2002 ), p. 35.

Millet ( 1969 ), p. 43.

Bourdieu ( 2002 ), p. 50 .

Crenshaw ( 1989 ), p. 140.

Mikolla ( 2008 ).

Lorber ( 2010 ).

Bryson ( 1992 ), p. 18.

Hewitt ( 2010 ).

Bryson ( 1992 ), p. 87.

Lorber( 2010 ), p. 1 .

Ibid ., p. 3.

Bryson ( 1992 ), p. 159.

Legates ( 2001 ), pp. 347–364.

Munro ( 2013 ), pp. 22–25; Negar, Kharazmi ( 2019 ), pp. 129–146.

Barnett ( 1998 ), pp. 121–204; Bryson ( 1992 ), pp. 2–7; Lorber ( 2010 ), pp. 9–13.

Ibid. , p. 2.

Barnett ( 1998 ), pp. 124–134.

Ibid ., p. 137; Bryson ( 1992 ), p. 3.

Barnett ( 1998 ), pp. 137–138.

Bryson ( 1992 ), pp. 232–260.

Barnett ( 1998 ), pp. 14, 163–164.

Bryson ( 1992 ) , p. 194.

Barnett ( 1998 ), p. 143.

Lorber ( 2010 ), p. 11.

Bryson ( 1992 ), pp. 5–6.

Barnett ( 1998 ), p. 18.

Lorber ( 2010 ), p. 13.

Mies and Shiva ( 1993 ), pp. 13–16.

“Ecofeminism […] grew out of various social movements — the feminist, peace and the ecology movements […] We see the devastation of the earth and her beings by the corporate warriors, and the threat of nuclear annihilation by the military warriors, as feminist concerns”, Ibid. , pp. 13–14.

Lorenzen and Eaton ( 2002 ), p. 1.

“[…] some tried to revive or recreate a goddess-based religion; spirituality was defined as the Goddess. Some call it the female principle, inhabiting and permeating all things — this spirituality is understood in a less ‘spiritual’, that is, less idealistic way […] Many women, particularly those who combine their critique of capitalism with a critique of patriarchy and still cling to some kind of ‘materialist’ concept of history, do not easily accept spiritual ecofeminism”, Mies and Shiva ( 1993 ), pp. 17–18..

Beechey ( 1979 ), pp. 66–82.

DeKeseredy ( 2020 ), pp. 621–638.

Walby ( 1990 ); Hunnicutt ( 2009 ), pp. 533–573; Bryson ( 1999 ), pp. 311–324.

Strid and Hearn ( 2021 ); DeKeseredy ( 2021 ).

DeKeseredy ( 2021 ), p. 3; See e.g., Sheila Rowbotham who confirms this statement with the notion of “interiorization of subordination/slavery”, meaning that women traditionally have interiorized and accepted subordination (Rowbotham ( 1979 ), p. 402).

Bryson ( 1999 ).

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Eisenstein ( 1981 ).

Jónasdóttir ( 1991 ).

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Delphy ( 1977 ); Delphy ( 1984 ).

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Hearn ( 1987 ); Vogel ( 1983 ).

Ferguson ( 1989 ); Ferguson and Folbre ( 1981 ), pp. 313–318.

Elshtain ( 1981 ).

Brown ( 1981 ), pp. 239–268; Dworkin ( 1981 ); Walby ( 1990 ); Hearn ( 1992 ).

Rowbotham ( 1979 ), pp. 970–971.

Hearn ( 1987 ); Hearn ( 1992 ); Walby ( 1986 , 1990 ).

Messerschmidt ( 1988 ).

Campbell ( 2014 ).

Parekh and Wilcox ( 2020 ), https://plato.stanford.edu/entries/feminism-globalization/ , last accessed 5 October 2021.

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Bosch-Vilarrubias ( 2014 ), pp. 205–217; Kocabicak ( 2020 ).

Ortner ( 2014 ), pp. 530–549; Ortner ( 2020 ).

We are indebted to unpublished work by the author and Jeff Hearn, Örebro University, for this paragraph.

We are indebted to Professor Dragica Vujadinovic, Belgrade University, for this analysis and paragraph.

Hirdman ( 1990 ).

Tucker ( 2011 ), pp. 1033–1036.

McCann and Kim ( 2013 ).

Geoghegan and Wilford ( 2014 ), pp. 179–120. For an early debate about the shared interests or needs of women, see Jónasdóttir ( 1991 ); Diamond and Hartsock ( 1981 ); Sapiro ( 1981 ); Mansbridge ( 1999 ); Philips ( 1995 ); Young ( 1997 ).

Squires ( 2018 ), https://doi.org/10.7765/9781526137562.00015 , last accessed 5 October 2021.

Catharine MacKinnon adopts one of the most directly hostile stances in relation to the public/private distinction itself, arguing that the idea of a private realm is ‘a means of subordinating women’s collective needs to the imperatives of male supremacy’: MacKinnon ( 1989 ), p. 188.

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del Cuvillo, A.Á., Macioce, F., Strid, S. (2023). Feminist Political and Legal Theories. In: Vujadinović, D., Fröhlich, M., Giegerich, T. (eds) Gender-Competent Legal Education. Springer Textbooks in Law. Springer, Cham. https://doi.org/10.1007/978-3-031-14360-1_3

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The Law That Shapes Us: "Contemporary Feminist Jurisprudence"

Chelsea Wallis DPhil Law

Law DPhil candidate, Chelsea Wallis , examines contemporary feminist jurisprudence as part of The Law That Shapes Us.

The task of assessing the impact of feminist approaches to the law and to legal institutions is not a simple one. As with many social justice movements, promising developments towards substantive gender equality in some parts of the world are counterbalanced by equally significant regressions elsewhere: the progress made towards securing the rights of women and girls has never advanced in a straight line. Feminist activism and jurisprudence too have evolved in waves, gradually incorporating and eventually recentring the lived realities of the most marginalised at the core of feminist thinking by adopting a dynamic, intersectional perspective on oppression. This article considers the shape that contemporary feminist legal theory and methodology have taken, before exploring key issues in which a feminist lens has been applied to the law. These examples span both the Global North and the Global South, including reproductive autonomy and domestic abuse, as well as sexual harassment and the reverberations of #MeToo upon the criminal law and on defamation. 

Contemporary feminist jurisprudence is informed by thinkers as temporally and theoretically diverse as Mary Wollstonecraft and Kimberlé Crenshaw, united by a shared recognition of the barriers which continue to hinder gender equality within changing social, cultural, and political contexts. A key insight from feminist legal analysis is that the entrenched demarcation between public (traditionally masculine) and private (traditionally feminine) spheres continues to pervade the law, explaining how the reluctance to intervene in family life impedes the effective regulation of issues such as domestic abuse or marital rape. As Sandra Fredman explains in Women and the Law, the liberal legalism on which the public/private distinction is premised also ‘renders invisible the value and significance of reproductive labour and ignores the role of the family as one of the chief means of educating and socialising future citizens’ (17).

In the language of human rights, the consequent privileging of negative liberty – civic freedom from interference by the State – over positive duties – which oblige the state to provide for the social and economic rights of its citizens – has an abiding impact on women’s lives, including the unequal burden of domestic labour and the pressure of fulfilling unpaid caring responsibilities.  

These impacts are, predictably, felt most keenly by those who lack the resources to advocate for their rights, especially women and families in poverty, a group disproportionately comprised of people already subject to chronic marginalisation on grounds of race, class, migrant status, or disability. As well as adopting an intersectional perspective, feminist legal thinking is thus also concerned with the nexus of capitalism and patriarchy; the project of achieving substantive gender equality is intricately intertwined with the pursuit of social justice more broadly. Consequently, in addition to supplying important theoretical insights, feminist jurisprudence is a praxis and a call to action, as exemplified by grassroots groups such as India’s Gulabi Gang , Australia’s Sisters Inside ,  and the UK-based Read and Resist! collective. Within the adjacent realm of academic activism, the Feminist Judgments Project , which rewrites the judgements in key cases through a feminist lens, is ‘a political intervention which seeks to challenge the ongoing exclusion of women from legal subjectivity … Rather than accepting our (feminine) invisibility and powerlessness, we have exercised collective agency to attempt to leave a female-gendered mark on the law’ (8).

These themes of collectivisation and solidarity are equally present in feminist empirical work: Oxford DPhil candidate Ellie Whittingdale’s article on becoming a feminist methodologist foregrounds the importance of reciprocity and reflexivity in sociolegal research and within legal spaces themselves. 

The emphasis on trusting and valorising women’s voices, and especially those silenced due to intersectional oppression, is central to feminist jurisprudential thought with respect to reproductive autonomy. The traditional conceptualisation of the right to abortion solely in the negative terms of ‘privacy’ – effectively, a woman’s right to abjure interference from the State in determining whether to terminate a pregnancy – fails to appreciate the inherently context-specific social, political and cultural factors which affect the accessibility (and the stigmatisation) of abortion. It is those women who are already underprivileged that will face challenges in actualising their negative liberty. Rather, a positive, feminist approach to abortion regulation places obligations on the state to provide and facilitate access. It is critical that the right to abortion be considered as an equality right in terms of the social reality women face, not only in relation to equality with men in terms of bodily autonomy, but also in relation to the differential privilege experienced across demographics of women within and between cultures. Similarly, the reluctance of the judiciary to hold medical professionals to account in cases of negligent sterilisation resulting in ‘wrongful conception’ demonstrates the same paternalistic and patriarchal attitudes towards women’s bodily autonomy as those exercised in policing abortion access. 

The treatment of domestic abuse is also a key site of feminist legal inquiry. Now widely recognised as a  human rights issue , domestic abuse is a form of gender-based violence produced by systemic patriarchy and maintained by a legal system designed to regulate the public sphere rather than the private domain. Recent debates over the criminalisation of coercive control have revealed important cracks in the regulatory apparatus: within Australia, a focus on criminalisation, with parallels to the Council of Europe’s  Istanbul Convention , risks targeting communities that are already vulnerable to the misuse of police power. In particular,  advocates for indigenous communities have contended  that policymakers must recognise and address the intergenerational trauma that many Aboriginal women – Australia’s fastest growing incarcerated demographic  – have experienced at the hands of police, as these victims risk being disbelieved by authorities and often face pernicious stereotypes when reporting domestic violence. Similar concerns have been raised by  migrant Australians  and representatives of  minority religions . These same themes emerge from Roychowdhury’s study in the radically dissimilar context of West Bengal, where women who seek police assistance confront not only misogynistic prejudice and social alienation, but crippling systemic pressures which disable them from seeking justice. Judicial and police passivity exacerbates discrimination, inevitably privileging those who are strong enough to advocate relentlessly on their own behalf and maligning women who lack this resilience or have fewer social or financial resources.

In the decades since the second-wave feminist movement, both gender-based violence and sexual harassment have been framed as flagship causes in the struggle for women’s social, political and economic equality. Sexual harassment reifies the same patriarchal values and preoccupation with control as in domestic abuse, although it is principally perpetrated in the public sphere. Sexual harassment is not about sex, but about the performativity of masculine dominance. A feminist jurisprudential lens is able to capture the gendered hegemony that underpins both issues; although not all harassment or abuse is perpetrated against women or nonbinary individuals, all its manifestations are nonetheless united by patriarchal values. Moreover, only an intersectional feminist framing is able to excavate the layers of oppression which operate on women of colour, those from poor and under-educated backgrounds, linguistic minorities, non-cis or non-heterosexual women, disabled women, and refugees, among others. The publicity attached to the #MeToo movement has catapulted the issue of sexual harassment in recent years, exposing the gender-based nature of the issue, but the high-profile cases of white, middle-class women have not been matched by the publicity accorded to the less privileged. These issues reflect pervasive social discourses, as MacKinnon comments : ‘#MeToo is cultural, driven principally by forces other than litigation, and is surpassing the law in changing norms and providing relief for human rights violations that the law did not – in some ways in current form could not, although law is embedded in culture and can and will change with it.’ 

Five years after #MeToo, how far has awareness and support for survivors of sexual harassment and violence progressed? To judge from the vitriolic, prejudiced, and horrifyingly misogynistic responses to the Depp v Heard defamation trial , the task of changing attitudes and understandings of gender-based violence is far from over. As Natasha Stott Despoja writes in her tract  On Violence , eliminating the abuse and harassment of women and girls ‘requires a conscious and critical conversation about gender relationships, power, and what builds and changes culture’, situating feminist jurisprudence at the juncture of law, social activism, and academic inquiry. This conversation is a continuing, dynamic enterprise that demands attention and effort from all of us, both within and beyond legal spaces. It requires that we centre the voices of diversely-oppressed women, whose contributions have so often been elided. Equally, it demands that we consider how we enact feminism in our daily lives, our homes, and our workplaces, as well as through our political and judicial will. Yet as feminist jurisprudence evolves and continues to confront the project of dismantling structural, systemic inequality, it also deserves to celebrate the collective resilience emanating from a shared dedication to ending gendered injustice on a global scale. 

Follow Chelsea on Twitter  @chelseawallis_  as well as conversations about The Law That Shapes Us via our official hashtag #TheLawThatShapesUs. 

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The Development of Feminist Jurisprudence

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Feminist Theory in Law: The Difference It Makes

By martha albertson fineman.

“This essay is a consideration of the feminist project in law and two contemporary legal feminist approaches to the historical construction of women as “different”– a characterization that has had implications in regard to the way in which women are understood as objects and subjects of law. These competing feminist responses are based on similar conclusions about women’s uneasy relationship to law as well as to other institutions of power in our society. They differ, however, in their analyses of the nature and extent of the difference between women and men and the conceptual and theoretical implications of differences.

Until fairly recently, legal feminism was primarily an equality-based strategy, which assumed no legally relevant differences between men and women. This emphasis was perhaps determined by the many ways in which the law historically both facilitated and condoned women’s exclusion from the public (therefore, overtly powerful) aspects of society. Difference was the rationale and the justification for this exclusion which was based on the belief that women’s unique biological role demanded their protection from the rigors of public life. It was no surprise, therefore, that when significant numbers of women began to make inroads into public institutions such as the law, they sought to dismantle the ideology which had excluded them-assimilation became the goal and equality the articulated standard.

Recently, some feminists have called attention to the fact that “equality” tends to be translated as “sameness of treatment” in American legal culture and, for that reason, actually operates as a conceptual obstacle to the formulation and implementation of solutions to the unique economic and societal problems women encounter.’ These “post-egalitarian feminists” urge a reconsideration and reconstruction of differences-this time from a feminist perspective. Those feminists who now want to move beyond equality and establish affirmative theories of difference recognize that initial adherence to an equality concept was necessary in taking the first steps to change the law and legal institutions. The lesson some of us have learned from the results of the past several decades of equality feminism, however, is that a theory of difference is necessary in order to do more than merely open the doors to institutions designed with men in mind. Arguing for a theory of difference questions the presumed neutrality of institutions, calling into question their legitimacy because they are reflective of primarily male experiences and concerns. In that way, a theory of difference has the potential to empower women. This essay begins with a consideration of the development of the current debate over differences which continues to characterize much of legal feminist writing. I attempt to address some of the limitations I think feminists encounter when law is the subject about which they write. In the latter half of this essay I expand on a notion of “gendered life” which I first began to develop in an earlier article.  I am developing this concept in order to facilitate a discussion of differences that is both grounded in concrete and empirical experiences of significant numbers of women as well as reflective of the dominant ideological presentation of women as constructions of our culture and its institutions.

The idea of a gendered life is not the same as asserting the notion of “essential” femaleness. The concept of a gendered life is based on the belief that most differences between the sexes are socially manufactured, not inherent. This realization, however, should not obscure the overwhelming nature of the task faced by feminists seeking change in social and cultural representations of women. Changing society is not an easy task. In fact, in some ways it might be easier were differences the result of nature or biology. In that instance technology might prove of assistance. Culture and society are not easily manipulated and change occurs slowly if at all. Even what appears to be progress is often the superficial adjustment of institutions undertaken only to maintain old hierarchies in the face of challenges.’

Finally, I suggest that the concept of a “gendered life” can be helpful in urging cooperation among women across our differences in areas where social and cultural definitions of “Woman” operate to potentially oppress us all. The notion of women’s experiences is problematic when consideration is given to the differences among women. This aspect of the debates about difference is currently of particular interest to the legal feminist community. This last section of the essay is ultimately a plea that the feminists who are engaged in writing theory about law not “unique” ourselves out of existence as an analytic category-as “women.” My argument is based on the assumption that as feminist women we have an important and unrepresented perspective with which to assess and critique the law. It is further based on the assertion that as privileged women we have the obligation to help other women who suffer in their gendered lives in our culture but have no access to legal institutions and discourse.”

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Feminist Legal Theory

Jurisprudence: feminist legal theory.

• Critical Legal Theory
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• Political jurisprudence - Positivism
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Subject search terms to find books and ebooks on SOLO

Feminist jurisprudence

Feminist theory

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Oxford University based discussion group

• Feminist Jurisprudence Discussion Group The Group brings together feminists at the Faculty of Law as well as more broadly at the University of Oxford, generating collaborative projects that advance Feminist Jurisprudence at Oxford. The Group is open to anyone (including undergraduates) with an interest in feminism, where all participants and the insights and experiences that they bring are respected. To this end, the Group selects texts which highlight feminism’s intersections with race, class, disability, gender identity, and sexual orientation, in order to reflect diverse members of the Faculty’s experiences and perspectives

Useful material on the free web

• IEP : Feminist Jurisprudence Article in Internet Encyclopedia of Philosophy (ISSN 2161-0002) an open access resource hosted by the University of Tennessee at Martin.
• Feminist Philosophy of law (Stanford Encyclopedia of Philosophy) Article in Stanford Encyclopedia of Philosophy.Open access to read online. Oxford University is a member of the Stanford Encyclopedia of Philosophy International Association (SEPIA), formed to support the SEP’s drive to sustainable open access. Only individual members of The Friends of the SEP Society have download access to high quality PDF (Portable Document Format) versions of SEP entries.
• Feminists@Law Free resource. From Kent Law School (Canterbury UK). feminists@law is a peer-reviewed online journal which aims to publish critical, interdisciplinary, theoretically engaged scholarship that extends feminist debates and analyses relating to law and justice (broadly conceived).
• Gender Legislative Index (GLI) Open Access resource. "The Gender Legislative Index is a tool to rank and score legislation against global standards for women’s rights. It highlights the power of the law to deliver concrete change to fulfill women’s rights. The GLI facilitates a comparison of laws addressing the same issues, or of legislation across different areas of the law, or comparisons across countries." more... less... "The Gender Legislative Index is aimed at helping legislators, activists and advocates to build a body of legislation that works better for women."

Feminist Analysis of specific cases etc

Below is a sample only. To search SOLO to discover more go to the advanced search screen and combine the topic you are interested in AND Feminist jurisprudence

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2 Liberal Feminist Jurisprudence: Foundational, Enduring, Adaptive

Linda C. McClain is the Robert Kent Professor of Law at Boston University School of Law. She writes and teaches in the areas of feminist legal theory, gender and law, family law, and civil rights. The author of several books, including Who’s the Bigot?: Learning from Conflicts over Marriage and Civil Rights (Oxford University Press, 2020) and The Place of Families (Harvard University Press, 2006), she is currently working on the forthcoming Routledge Companion to Gender and COVID-19 (with coeditor Aziza Ahmed).

Brittany K. Hacker is a VOCA Staff Attorney at Legal Services of Northern Virginia. She specializes in representing survivors of domestic violence in family law litigation.

• Published: 14 February 2022
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Liberal feminism remains a significant strand of feminist jurisprudence in the United States. Rooted in nineteenth- and twentieth-century liberal and feminist political theory and women’s rights advocacy, it emphasizes autonomy, dignity, and equality. Liberal feminism challenges unjust gender-based restrictions based on assumptions about men’s and women’s proper spheres and roles. Second-wave liberal legal feminism, evident in Ruth Bader Ginsburg’s constitutional litigation, challenged pervasive sex-based discrimination in law and social institutions and shifted the Supreme Court’s interpretation of the Equal Protection Clause to a more skeptical review of gender-based classifications. Liberal feminists have developed robust conceptions of autonomy, liberty, privacy, and governmental obligations to promote gender equality, including in the family. Addressing internal feminist critiques, liberal feminism shows the capacity to evolve. Maintaining its focus on disrupting traditionally conceived gender roles and fostering meaningful autonomy, it adopts more a complex, nuanced discourse about sex, gender, and the gender binary and embraces new demands for inclusion and equality.

Liberal feminism is a significant strand of feminist jurisprudence (or feminist legal theory) in the United States and elsewhere. The relationship between liberalism and feminism, however, is complex. As an historical matter, there is little doubt that liberal political philosophy serves as an important foundation for feminist political and legal thought. Feminists have divided, however, between viewing liberalism and feminism as “incompatible” and its doctrines as best relegated to the past and arguing that the better feminist response is to “reconfigure, rather than reject, liberalism.” 1

Any assessment of liberal feminism as a strand of feminist legal theory starts with the liberal and liberal feminist concepts of individual liberty, autonomy, dignity, and equality and recognition of the injustice of gender-based restrictions based on men’s and women’s proper spheres and roles. 2 A prominent example of the influence of these concepts and commitments is the sex equality litigation of the 1970s undertaken by Justice Ruth Bader Ginsburg and the ACLU’s Women’s Rights Project, which challenged the pervasive sex-based discrimination in law and society’s basic institutions. 3 These gender-based challenges transformed the U.S. Supreme Court’s interpretation of the Equal Protection Clause of the Fourteenth Amendment and ushered in a more skeptical judicial review of gender-based classifications, known as intermediate scrutiny.

Under intermediate scrutiny, legislatures may not rely on “fixed notions” about “the sexes” and must offer an “exceedingly persuasive justification” for using sex-based classifications. 4 This gender revolution continues to shape understandings of constitutional equality and the interpretation of statutory civil rights laws, such as Title VII. 5 Within “liberal feminism,” there are feminist legal scholars who, similar to Ginsburg, argue for symmetry or “formal equality” in law, even when dealing with evident differences between women and men—such as pregnancy—because of the risk of protectionism and a return of harmful gender ideology. 6

Another body of liberal feminist legal theory builds upon liberal legal and political theory and liberal feminist political philosophy, ranging from John Stuart Mill and Harriet Taylor Mill, in the nineteenth century to John Rawls and Susan Moller Okin in the twentieth century. These scholars have explored the tension between liberal ideals and gender injustice in marriage and family law and argued for governmental obligation to foster the preconditions for and address the obstacles to meaningful personal and political self-government. 7 Such theorists have also advocated law reform to advance values such as dignity, self-expression, and sexual privacy, particularly as newer technologies, such as the Internet, bring both new possibilities and new forms of gendered injury. 8

This chapter begins with liberal feminism’s historical roots in liberal and feminist political philosophy. It then considers the role of liberal feminism in law and legal thought and its relationship to other strands of feminist legal theory. It addresses how liberal feminism responds to internal feminist and external critiques and suggests the generative role of key liberal feminist tenets in ongoing struggles over sex equality.

According to one view, the contribution of liberal feminism is mostly of historical interest in light of subsequent generations of feminist legal thought. According to another, however, liberal feminism continues to inform feminist legal thought and legal advocacy, although its present-day exemplars engage in a more complex and nuanced discourse about sex, gender, and the gender binary than their forebears did a half century ago. This chapter concludes that the latter view is the more persuasive one. Liberal feminism can offer an inclusive and adaptive theory that provides insight in such diverse contexts as articulating the meaning of liberty and determining the scope of discrimination based on “sex,” including transgender rights. Because liberal feminism aims at “disrupting—or bursting asunder” historical and rigid links between “biological sex and particular roles or ways of thinking associated with particular genders,” liberal feminism has the potential to adapt as ideas about sex, gender, and identity continue to evolve. 9

I. Defining Liberal Feminism

A commonplace criticism of liberalism is the slipperiness of the concept and the difficulty of defining it. The broad “family of positions” described as “liberalism” includes positions “profoundly different” from each other, such as Kantian or Rawlsian liberalism, on the one hand, and, on the other, classical utilitarianism liberalism and present-day neoliberalism. 10 For this reason, feminist defenders of liberalism have argued that feminist critics often attack a caricatured or oversimplified picture of liberalism. 11 What, then, is “liberal” in liberal feminism and what makes it “feminist”? Answering these questions begins with visiting the roots of liberal feminism and tracking its emergence as a distinct strand of feminist legal thought through to its current relevance.

A. Historical Roots: Nineteenth-Century Liberal Feminists

Liberal legal feminism has roots in both liberal and feminist political theory. “Modern Western feminism,” Ruth Abbey asserts, “grew up as a sister doctrine to liberalism.” 12 Classic liberal political theory, such as that of John Locke, challenged patriarchal authority with respect to political power. Pioneering “feminist liberals,” including Mary Wollstonecraft, Harriet Taylor Mill, and John Stuart Mill, extended Locke’s critique to private power. Such early feminists, including American feminists such as Elizabeth Cady Stanton and Lucretia Mott, applied “liberal commitments to women” as a “matter of justice.” 13 Those “liberal commitments” include such values as

individual freedom; equality before the law; equal opportunity; moral equality; personal autonomy; being rewarded (or punished) on the basis of merit rather than birth; the rejection of arbitrary and unearned power and hierarchy and its replacement with the idea that the exercise of power by one individual over another must be rationally defended; consent to rule by those ruled; and freedom of conscience. 14

Such liberal ideals are evident in Abigail Adams’s famous plea to her husband John Adams, in 1776, to “Remember the Ladies, and be more generous and favourable to them than your ancestors,” as he and other male politicians constructed a “new Code of Laws.” Abigail Adams urged: “Do not put such unlimited power into the hands of the Husbands. Remember that all men would be tyrants if they could.” 15 John Adams responded that he “cannot but laugh” at her “extraordinary Code of Laws” and “saucy” letter. But the answer, in any case, was no: “Depend upon it. We know better than to repeal our Masculine systems.” 16 John Adams asserted that men held such power more in theory than practice, and would “dare not exert” it in “its full Latitude;” nonetheless, to yield their power would subject men to “the Despotism of the Petticoat.” 17

Rather than abolishing coverture marriage (the gender hierarchical common law model of marriage that traveled from England to the colonies), the revolutionary-era political leaders enlisted marriage as an emblem or “analogue to the legitimate polity.” 18 They drew on Locke’s idea that political legitimacy rested on individual consent to be governed; marriage, they reasoned, was a social contract to which women freely consented. 19

In the nineteenth century, women’s rights advocates continued to challenge coverture and called for full civil and political rights. They employed liberal political ideals of individual self-determination and being “free … from the constraints of an ascribed status and separate sphere” to shape feminist demands. 20

Many activists in the movement for women’s rights began as “ardent abolitionists” and their experience in the antislavery movement—including gender discrimination within the movement—led them to draw parallels between abolition and women’s rights. 21 Such women’s rights reformers “contended that both institutions, slavery and marriage, harbored inequalities inconsistent with American principles of liberty and equality.” 22 The reformers applied Locke’s theory that each person had a property in his own person to argue that because both the slave and the wife under coverture lacked such self-possession, they were denied the natural right to self-ownership. 23 Abolitionist sisters Angelina and Sarah Grimké, for example, pointed out parallels between the master/slave and husband/wife relationship but disclaimed an exact comparison between “free women” and enslaved persons, given enslaved women’s greater “suffering,” “degradation,” and denial of any legal status. 24

Defenders of slavery, in turn, appealed to the parallels between slavery and marriage to justify both systems of white men’s “mastership over their households.” 25 In the pre-Civil War constitutional order, states’ primary responsibility to regulate their “domestic institutions” referred “simultaneously to family and to slavery.” 26

The campaign for women’s suffrage enlisted liberal principles to attack both the unjust structure of family governance and the exclusion of women from the franchise as inconsistent with democratic and constitutional ideals. 27 Illustrative is the Declaration of Rights and Sentiments, which emanated from the Seneca Falls Convention of 1848. It invoked the “liberal premises” of the Declaration of Independence: “created equal,” women had “certain inalienable rights,” which were “usurped” by “man” claiming the “right to “assign” women a “sphere of action,” when that right belonged to “her conscience and her God.” 28 To arguments that gender hierarchy and the separate roles of men and women derived from “nature” and the “Creator,” feminists responded with their own appeals to divine order.

The Declaration of Sentiments foreshadowed twentieth-century liberal feminism by stressing the equal capabilities of women and men as a basis for equal rights and by condemning the legal disabilities imposed on women. 29 While radical for its time in some respects, the Declaration also “reflected its time”; some of its arguments for women’s rights “elevated white women above male immigrants, free black men and women, and the destitute who lacked the advantages many middle-class women possessed.” 30

The appeal to women’s equal capacities also featured in arguments that separate spheres ideology denied women the right to choose their own “proper sphere.” 31 Such critiques of sex inequality invoked the influential work of John Stuart Mill and Harriet Taylor Mill. 32 In The Subjection of Women (1869), John Stuart Mill wrote that “the legal subordination of one sex to the other” as an organizing principle was “wrong” and should be replaced by “a principle of perfect equality, admitting no power of privilege on the one side nor disability on the other.” 33

Mill’s On Liberty (1859) supported liberal feminist arguments about the value of personal and political self-government and antipaternalism. Further, in explaining misunderstandings of liberty, Mill criticized the “almost despotic power of husbands over wives,” arguing that “wives should have the same rights, and should receive the protection of law in the same manner, as all other persons.” 34

While liberalism was a dominant influence on nineteenth-century feminism, another prominent strand of feminism used “the rhetoric of natural roles” to argue for including women in public life. 35 This appeal to gender differences stressed that “women’s special attributes” as mothers and housekeepers would improve public life. 36 After ratification of the Nineteenth Amendment, these tensions over how best to secure women’s full civil, political, and social rights recurred in disagreements over the Equal Rights Amendment, first written in 1923, and over sex-specific protective labor legislation. 37 At issue was the question of whether formal equality (or gender neutral laws) as a constitutional mandate was a better path to “true” equality than an approach that considered the “actual biological, social, and occupational differences between men and women.” 38

B. Feminists Engage Twentieth-Century Liberalism

In the twentieth century, liberal political philosopher John Rawls reinvigorated liberal thought for many political and legal theorists, including liberal feminists. A Theory of Justice (1971) and Political Liberalism (1993) offered, respectively, an argument about “justice as fairness” that distilled key liberal social contract traditions and a conception of a “political” liberalism that could support a “stable and just society of free and equal citizens profoundly divided by reasonable religious, philosophical, and moral doctrines.” 39 Rawls posited that free and equal citizens have two moral powers relating to self-government: (1) the capacity for a conception of justice, which allows democratic self-government (or “deliberative democracy”), and (2) the capacity to form, act on, and revise a conception of a good life, which allows personal self-government (or “deliberative autonomy”). 40

Feminist political philosophers and legal theorists took up and critiqued Rawls’s work. 41 In Justice, Gender, and the Family , liberal feminist Susan Moller Okin highlighted the inattention to gender and family in prominent theories of justice. 42 Rawls, she observed, assumed that, as a basic institution in a well-ordered society, families were just and could form children into self-governing members of such a society. Contradicting that assumption, however, were forms of injustice within “gendered marriage,” such as domination and family violence, an unequal division of labor between husbands/fathers and wives/mothers during marriage, and divorce law that failed to recognize that inequality. 43 But Okin also argued that aspects of Rawls’s theory—such as his construct of the “original position” in which people (behind a “veil of ignorance”) determine what is a just outcome without knowing their social position in the society, including their sex—could be a powerful tool for feminist criticism of contemporary institutions. 44 Okin proposed that government could promote—but not compel—egalitarian marriage and adopt family law reforms so that marriage no longer contributed to women’s “socially created vulnerability.” 45 Responding to Okin and other feminist critique, Rawls clarified that, according to his account, the family was not a space exempt from justice but instead “the equal rights of women and the basic rights of children as future citizens are inalienable and protect them wherever they are.” 46

Gender injustice within the family was also a central concern of philosopher and law professor Martha Nussbaum’s “human capabilities approach” to human development, which she characterized as reflecting both a form of political liberalism (akin to Rawls’s) and a universalist feminism. 47 Nussbaum attempted to address feminist critiques of liberalism for inattention to the moral virtues linked to care as well as the practical reality that the family has been a “major site of the oppression of women.” 48 To value care, her approach accorded the capabilities for love and care a prominent place in a political conception of justice and made them “important goals of social planning.” 49 To guard against risks that women will not be treated as ends in themselves but as instrumental beings (e.g., as “reproducers and caregivers”), she insisted that, within the family, the focus should be on “each person,” akin to the liberal tradition’s focus “on the individual as the basic political subject.” 50

II. Liberal Legal Feminism in the Second Wave

The political roots of twentieth-century liberal feminism are often situated in the organized women’s movement (the “second wave”) that focused on “achieving equality through litigation and legislative reform.” 51 In 1966, Betty Friedan (author of The Feminine Mystique ) and civil rights activist and feminist lawyer Pauli Murray were instrumental in forming the National Organization for Women (NOW), born out of frustration over the Equal Employment Opportunity Commission’s failure to enforce Title VII’s prohibition against sex-based employment discrimination. NOW’s purpose (famously scribbled by Friedan on a napkin) was “to take action to bring women into full participation in the mainstream of American society now, assuming all the privileges and responsibilities thereof in truly equal partnership with men.” 52 That equal partnership reached beyond the “public world” to include the conventionally “private” realm of marriage, entailing “an equitable sharing of the responsibilities of the home and children and of the economic burdens of their support.” 53 NOW’s purposes were liberal feminist in arguing that because sexism and gender stereotypes harmed women and men, both had a stake in restructuring work, family, and other basic social institutions and in ratifying the Equal Rights Amendment. 54

A. Ruth Bader Ginsburg Helms the Women’s Rights Project

A similar premise about the harms of gender inequality and sexism informed Ruth Bader Ginsburg’s constitutional litigation conducted with the ACLU’s Women’s Rights Project (WRP) while she was a professor at Rutgers. 55 Frequently described as a leading example of “early liberal feminist theorists in America,” 56 Ginsburg does not seem to have used the label “liberal feminist” to describe herself. However, she drew on the liberal philosophy discussed above to dismantle legally enforced sex inequality. For example, in speaking of “the unfinished business of equality for women,” Ginsburg quoted Mill’s argument that “the legal subordination of one sex to the other” should be replaced by “a principle of perfect equality, admitting no power of privilege on the one side, nor disability on the other.” 57

Ginsburg’s approach to equality is “liberal” because it insisted that people should not be disadvantaged based on membership in a group and instead should be evaluated based on their individual capacity. As Ginsburg explained the “fundamental premise” of the 1970s cases she litigated: “the law’s differential treatment of men and women, typically rationalized as reflecting ‘natural’ differences between the sexes, historically had tended to contribute to women’s subordination—their confined ‘place’ in man’s world—even when conceived as protective of the fairer, but weaker and dependent-prone sex.” 58 Ginsburg’s strategy exemplified liberal feminism in identifying how sex role stereotypes and “fixed notions” about the sexes rationalized women’s legal subordination. Ginsburg sought to help the Supreme Court perceive this inequity and move it toward a “constitutional principle that would provide for heightened, thoughtful review of gender classifications.” 59 The challenge was formidable. To use Ginsburg’s memorable image about constitutional interpretation at the time the WRP began: “Except for the vote [the Nineteenth Amendment], the Constitution remained an empty cupboard for people seeking to promote the equal stature of women and men as individuals under the law.” 60

The full story of Ginsburg’s successful constitutional litigation challenging gender discrimination is amply told elsewhere. 61 This chapter briefly reviews a few cases in that campaign to highlight what they reveal about the contours of liberal feminism. 62 The tale usually begins with Reed v. Reed , in which Ginsburg coauthored the plaintiff’s brief, and, for the first time, the U.S. Supreme Court held that a law using a gender-based classification violated the Equal Protection Clause. 63 An important prequel that shaped the winning argument in Reed , however, was Moritz v. Commissioner of Internal Revenue , which Ginsburg successfully argued with her husband, tax lawyer Marty Ginsburg, before the Court of Appeals for the Tenth Circuit. 64   Moritz illustrates a striking feature of Ginsburg’s litigation strategy: bringing claims by male plaintiffs to show how a sex-based classification violated the Equal Protection Clause. The plaintiff in that case, Charles E. Moritz, lived with his eighty-nine-year old mother and paid someone to care for her when he could not. The Internal Revenue Service (IRS) denied him a dependent care deduction because he was a never married man; he would have received the deduction had he been a daughter, widower, or a husband to a woman in need of care. This strange scheme suggested that “the idea that a man on his own might be responsible somehow for caregiving apparently never crossed the government’s mind.” 65 The Tenth Circuit unanimously held that the IRS rule violated principles of equal protection because the classification, “premised primarily on sex,” lacked any justification: Congress could have achieved its evident purpose of giving relief to persons “in low income brackets and bearing special burdens of dependents” without resorting to “invidious discrimination based solely on sex.” 66

Fortunately, when Solicitor General Erwin Griswold urged the U.S. Supreme Court to overrule the Tenth Circuit, he unwittingly provided Ginsburg a roadmap for attacking discriminatory laws. Included in his filing was a computer-generated list of hundreds of federal “laws and regulations that treated men and women differently, and, thus, were at risk of being found unconstitutional if the Court did not reverse. 67

In Reed v. Reed , the first of Ginsburg and the WRP’s cases brought before the U.S. Supreme Court, the gender-based law at issue was an Idaho statute giving preference to men as administrators of estates when more than one qualified person was available. Sally Reed sought to administer her deceased son’s estate, but, under that statutory preference, the child’s father (an abusive husband from whom she was separated) received the appointment. 68 Ginsburg’s brief argued that “the sex line drawn by [Idaho’s law], mandating subordination of women to men without regard to individual capacity, created a ‘suspect classification’ requiring close judicial scrutiny.” 69 The brief drew analogies to race, already a suspect classification, arguing that, in both instances, an “unalterable trait of birth” should not be the basis for legislative discrimination. 70

Liberal feminist emphases on the individual, on biology not determining a woman or man’s societal roles, and on removing gender-based obstacles to full participation in society were evident in Ginsburg’s brief:

Laws which disable women from full participation in the political, business and economic arenas are often characterized as “protective” and beneficial. Those same laws applied to racial or ethnic minorities would readily be recognized as invidious and impermissible. The pedestal upon which women have been placed has all too often, upon close inspection, been revealed as a cage. 71

In comparing race and gender discrimination, Ginsburg drew on the insights of Pauli Murray, who, as a Black woman, experienced both race and sex discrimination and theorized their connection. 72 In Jane Crow and the Law , Murray had argued: “That manifestations of racial prejudice have been more brutal than the more subtle manifestations of prejudice by reason of sex in no way diminishes the force of the equally obvious fact that the rights of women and the rights of Negroes are only different phases of the fundamental and indivisible issues of human rights.” 73 To acknowledge that Ginsburg stood “on [the] shoulders” of Murray and Dorothy Kenyon (with whom Murray had successfully litigated civil rights cases that “put their theories of the parallels and intersections of race and gender into practice”), Ginsburg listed their names on the Reed brief. 74

The Burger Court unanimously held the Idaho statute was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment because it treated similarly situated applicants differently. The Court, however, did not embrace the heightened standard of review that Ginsburg sought; instead, it claimed merely to be applying a rational basis standard. 75

Two years later, in Frontiero v. Richardson , argued by Ginsburg for amicus ACLU, the Court came within one vote of adopting strict scrutiny for classifications based on sex when it struck down a federal statute that automatically gave men in the military an allowance for healthcare and housing for their wives but allowed women that allowance only if they proved their spouse was financially dependent on them. 76 Justice Brennan’s plurality opinion recognized the close relationship between sex-role stereotypes and discrimination diagnosed by liberal feminism. He also invoked the pedestal/cage imagery first used in Ginsburg’s Reed brief to declare that, “traditionally,” sex discrimination “was rationalized by an attitude of ‘romantic paternalism,’ which, in practical effect, put women, not on a pedestal, but in a cage.” 77 Referring to “our Nation[‘s] … long and unfortunate history of sex discrimination,” Justice Brennan observed how notions about women’s proper place led to “our statute books gradually [becoming] laden with gross, stereotyped distinctions between the sexes,” drawing parallels between such laws and “pre-Civil War slave codes.” 78 Applying suspect classification criteria, his opinion characterized sex, like race, as immutable and determined by an “accident of birth.” Declaring that “the sex characteristic frequently bears no relation to ability to perform or contribute to society,” Brennan concluded that individuals must be judged on their capacity, not group membership. 79 While powerful, Brennan’s race/sex comparisons came to illustrate the problem of treating “woman” and “black” as mutually exclusive categories, thus omitting Black women. 80

In 1976, the Court finally settled on a new test for sex-based classifications: “intermediate scrutiny.” Ginsburg briefed and argued Craig v. Boren, in which Justice Brennan—this time writing for a majority—interpreted Reed and other cases to establish that “classifications by gender must serve important governmental objections and must be substantially related to achievement of those objectives.” 81 Under that test, as the Court subsequently elaborated, government must offer an “exceedingly persuasive justification” for such classifications. 82

Ginsburg would bring and win more equal protection cases challenging gender-based classifications, often featuring male plaintiffs. 83 As Irin Carmon and Shana Knizhnik summed it up: Ginsburg “firmly believed that for women to be equal, men had to be free.” 84 On this liberal, egalitarian view, equal treatment of men and women in law was the best path to freedom and equality.

B. Justice Ginsburg on the Supreme Court

After she was elevated to the U.S. Supreme Court in 1993, Justice Ginsburg had the extraordinary opportunity to explain the gender revolution in the Court’s equal protection jurisprudence that she helped to launch. In 1996, in United States v. Virginia , Ginsburg declared that “[s]ince Reed, the Court has repeatedly recognized that neither federal nor state government acts compatibly with the equal protection principle when a law or official policy denies to women, simply because they are women, full citizenship stature—equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities.” 85 Her majority opinion’s emphasis on individual capacity, equal opportunity, and antistereotyping marked her approach as liberal feminist. Ginsburg explained that sex-based classifications “may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women,” but may be used “to compensate women ‘for particular economic disabilities [they have] suffered, to ‘promot[e] equal employment opportunity,’ [and] to advance full development of the talent and capacities of our nation’s people.” 86

The Court struck down the Virginia Military Institute’s (VMI) male-only admissions policy and concluded that its proposed remedy of offering young women a chance to attend the newly created Virginia Women’s Institute of Leadership (VWIL) did not cure the constitutional violation. Ginsburg concluded that Virginia offered no “exceedingly persuasive justification for excluding all women” from VMI’s “citizen-soldier training,” 87 insisting that “generalizations about ‘the way women are,’[and] estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description.” 88

Noting the long history of excluding women from central societal institutions based on assumptions about their capacities, Ginsburg wrote: “State actors controlling gates to opportunity, we have instructed, may not exclude qualified individuals based on ‘fixed notions concerning the roles and abilities of males and females.’ ” 89 Accordingly, for those women who “want a VMI education and can make the grade,” VWIL was not a sufficient constitutional remedy. 90

Two decades later, in Sessions v. Morales-Santana , Justice Ginsburg drew on VMI ’s antistereotyping premises to hold unconstitutional a gender-based difference in a 1940 citizenship law that favored “unwed U.S.-citizen mothers” over “unwed U.S.-citizen fathers,” based on “stunningly anachronistic” gender role assumptions that only unwed mothers will care for their children. 91 Ginsburg’s opinion stressed the dynamic nature of constitutional interpretation: “ ‘new insights and societal understandings can reveal unjustified inequality … that once passed unnoticed and unchallenged.’ ” 92 This case illustrates Ginsburg’s liberal feminist conviction that women and men benefited from freedom from “fixed notions” about gender roles continued throughout her judicial career.

Bostock v. Clayton County (2020) also suggests the capacity of liberal feminism’s commitment to antistereotyping to extend to newer understandings of gender. At issue in Bostock was whether an adverse employment action based on an employee’s gender identity or sexual orientation was discrimination on the basis of “sex” under Title VII. 93 The employer who fired Aimee Stevens, a transgender woman, stated, in misgendering language, that he did so because “he” wanted to “represent himself” and “dress like a woman.” 94 In finding for Stevens, the Sixth Circuit reasoned: “a person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes.” 95 At oral argument before the Supreme Court, Justice Ginsburg observed that “the [precedential] cases have said that the object of Title VII was to get at the entire spectrum of sex stereotypes. ” 96 While conservative Justice Gorsuch, writing for the majority, did not elaborate a robust gender stereotyping theory, he readily perceived the problem as sex discrimination: “it is impossible to discriminate against a person for being [gay] or transgender without discriminating against that individual based on sex.” 97 The Court’s ready perception that gender identity and sexual orientation discrimination are sex discrimination testifies to the success of the liberal feminist project of shaking loose fixed notions about “the sexes.”

C. The Limits of Formal Equality Through Courts

Even as Ginsburg’s constitutional litigation campaign enjoyed success in the courts, liberal legal feminists debated the limits of formal equality and the respective capacities of courts versus legislatures to further substantive equality. One prominent example was the sameness/difference—or equal treatment/special treatment—debate over how to accommodate pregnancy in the workplace. 98 Accounts of this debate use the term “liberal” or “liberal feminist” to characterize the equal treatment or formal equality position taken by such scholars as Wendy Webster Williams or Nadine Taub who, similar to Ginsburg, warned of the risks of judicial protectionism and of reinforcing, rather than challenging, gender stereotypes. 99 Williams related this formal equality approach and its skepticism about “gender-based” or “formally asymmetrical laws”—even if designed to benefit women—to her generation coming of age when gender-based laws “sort[ed] the world by gender in ways that defined us into the single role of wife/mother/dependent and which overtly and explicitly privileged men in the public and private spheres.” 100

In the face of critiques by “special treatment” and other feminists that formal equality required women to assimilate into a “pre-existing, predominantly male world” and left untouched a legal status quo that expressed “white male middle-class interests and values,” liberal feminists made an institutional argument. 101 Formal equality as a constitutional principle, Williams argued, was what courts were best equipped to deliver; it was “a necessary, although not sufficient, condition for substantive equality of the sexes.” 102 As did Ginsburg, Williams believed that legislatures were the best place for feminists to pursue substantive equality in pregnancy, work/family issues, and a wide range of areas. 103

III. Defending and Reconstructing Liberalism

Justice Ginsburg and “symmetrists” like Williams did not explicitly describe themselves as liberal feminists. Other feminist legal theorists expressly have done so, locating their theories and law reform proposals as growing out of critical conversation with, and feminist reconstruction of, liberal commitments and principles. Although liberalism “became a suspect doctrine” for many feminist theorists “in the second half of the twentieth century,” liberal feminist political theorists continued to engage in constructive critique of liberal political theory. 104 Rather than discard liberalism, they argued that the problem was the failure to extend and realize key liberal principles in the context of modern gender equality.

A. Reconstructing the Value of Autonomy and Privacy

Contemporary liberal legal feminists have developed robust conceptions of autonomy, liberty, and privacy and theorized foundations for reproductive rights. They have emphasized governmental obligations to promote gender equality and to address inequality in the family. For example, one of the authors (McClain) has drawn on Rawls and Okin to argue that gender equality, including within and among families, is a public value that government should promote. She has argued that a feminist reading of Rawls supports recognizing care as a public value that is part of a formative project of fostering capacity for democratic and personal self-government. 105 On the other hand, some liberal feminist legal scholars, such as Maxine Eichner, find Rawlsian liberalism inadequate to ground a robust argument for government’s responsibility to support families. 106 Notably, both McClain and Eichner enlist liberal principles, but they also argue for an expanded list of liberal goods to “facilitate caretaking and human development.” 107 Such liberal feminists disagree with perfectionist feminist theorists who argue that liberalism’s commitment to “neutrality,” toleration, and a conception of negative rights prevents government from taking measures necessary to further women’s meaningful liberty and substantive equality. 108

In the face of feminist skepticism about privacy, liberal legal feminists have also articulated how privacy, rightly understood, is necessary to protect women’s autonomy, self-determination, and individual personhood. 109 In her pioneering book, Uneasy Access , philosopher and legal scholar Anita Allen acknowledged that privacy, in many instances, historically isolated and oppressed women, but she made a normative argument that women need forms of privacy that foster women’s capacities and ability to “participate as equals.” 110 While privacy once meant “confinement of women in the private household as subservient caretakers,” Allen and other liberal feminists deployed the value of privacy to empower women’s “decisional privacy,” and in turn enable “legal autonomy concerning sexuality, marriage, and the family.” 111 Thus, Allen argued, “privacy and private choice have survived appropriately strenuous feminist critique, re-emerging in beneficially reconstructed forms.” 112 Through bodily and decisional privacy, privacy becomes a means for gender equality. 113

Liberal feminists have articulated the importance of sexual privacy in the wake of new forms of technology, such as the Internet and social media. Danielle Citron builds on Allen and McClain’s work to advance a conception of sexual privacy as “egalitarian, liberal feminist.” 114 Citron defines sexual privacy as the ability to “manage the boundaries around our bodies and intimate activities” and control information about the human body, sex, sexuality, gender, and intimate activities. 115 The values of sexual privacy include securing autonomy, enabling intimacy, and protecting equality. 116 Citron explains that, on the one hand, the Internet can foster these values, including for women, LGBTQ persons, and people of color; on the other, because these groups disproportionately experience privacy violations on the Internet, the Internet can hinder their agency and autonomy. 117 Citron proposes remedies for the gendered and intersectional harms caused by “revenge porn,” “deep fakes,” and other online abuses. 118

Liberal feminists have also theorized how decisional privacy in the sense of autonomy is critical to reproductive choice and reproductive justice. The pivotal case of Planned Parenthood v. Casey stated that “the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” 119 Liberal feminists have related reproductive autonomy to an individual’s personhood, liberty of conscience, self-determination, and individual identity. 120 They have elaborated a conception of privacy that is liberal in its aspiration for informed, morally autonomous choice, and egalitarian and feminist in its insistence that educational, economic, and sexual equality are a requirement for meaningful choice. 121

B. Responses to Dominance and Relational Feminism

These liberal feminist theorists have sought to address two distinct critiques from other legal feminists. Through reconstructing conceptions of privacy, they respond to dominance feminists arguments that “the private” is a site of inequality for women, such that, in the words of Catharine MacKinnon, “the right of privacy is a right for men ‘to be let alone’ to oppress women one at a time.” 122 They also counter dominance feminists’ contention that autonomy is an illusion for women under conditions of subordination. Similar to MacKinnon, liberal feminists recognize how private power distorts the development of autonomy, but they argue that government has a responsibility to secure the preconditions for developing human capacity or human capabilities. 123 For liberal feminists, government must play an affirmative role in addressing forms of private power that hinder this development of autonomy.

Liberal feminists also engage relational, or difference, feminists’ arguments that construe autonomy as atomistic and contend that liberal models of the self and of self-government fail to recognize care, interdependency, and connection. 124 Liberal feminists respond that when they emphasize liberty, the value of individual autonomy, or self-government and self-determination, they do not mean atomism or an unrealistic self-sufficiency. They offer notions of autonomy that mirror feminist models of “relational autonomy” in recognizing that “it is by virtue of a person’s participation in relationships of nurture and care, initially within families and eventually in other forms of association, that he or she is able to develop the capacity for autonomy.” 125 Thus, relationships in families and other parts of civil society—as well as the broader social structure—play a formative role in shaping a person’s identity and cultivating and enabling the self.

C. Responses to Antiessentialist and Intersectional Critiques

By the late 1980s, feminist legal theory, including liberal feminism, faced internal criticism for a lack of inclusivity. The “essentialism” critique, prominently associated with Angela Harris, centered on feminism’s assumed claim “that a unitary, ‘essential’ women’s experience can be isolated and described independently of race, class, sexual orientation and other realities of experience.” She contended that such accounts of women’s experiences ignored the experiences of Black women and many others, silencing the voices of minority women in an effort to craft a unified message of what “feminism” is. 126

Similarly, Kimberlé Crenshaw’s intersectionality critique faulted feminist discourse for leaving out the experiences of Black women, emphasizing that individuals may face discrimination or disempowerment on multiple fronts, such as race, age, class, sexual orientation, or gender identity. She argued that the intersection of various harms based on these identities can create unique and serious disadvantages. Like Harris, Crenshaw critiqued feminism that “purports to speak for women of color through its invocation of the term ‘woman,’ ” while excluding “women of color because it is based on the experiences and interests of a certain subset of women.” 127

Liberal feminism is compatible with, and strengthened by, these critiques, given its attentiveness to individual capacity and the rejection of stereotypes. Notably, such critiques have largely targeted dominance and relational feminism rather than liberal feminist theory. 128 Liberal feminism is flexible enough to admit and accept the essentialism critique and to develop intersectionally to support an inclusive and antiracist conception of gender equality. Decades ago, Anne Dailey predicted that, informed by such critiques, a “renewed feminist liberalism” could utilize the power of narratives to destabilize “prevailing legal discourse” and develop a richer understanding of diversity based on empathetic listening. 129 This prediction remains apt: liberal feminism embraces the individuality of each person and their choices and stands stronger as it evolves to include people of all races, ethnicities, and gender identities in their full diversity.

IV. Conclusion

Liberal feminism’s project aims at “disrupting—or bursting asunder—the historical linkage between sex and gender, or between biological sex and particular roles or ways of thinking associated with particular genders.” 130 This theme of disruption offers a point of continuity with newer forms of feminism, even as those newer forms address a “much broader range of linkages and identity categories.” 131 Further, evolving understandings of gender can extend that promise beyond the gender binary itself, deepening the capacity of liberal feminism to adapt to new demands for liberty, inclusion, and equality.

1. Amy R. Baehr , Introduction , in Varieties of Feminist Liberalism 1 ( Amy R. Baehr ed., 2004) (arguing that the incompatibility of liberalism and feminism has been “arguably the dominant view among feminist scholars over the past thirty years”); Ruth Abbey , The Return of Feminist Liberalism 2, 4 (2011) (“reconfigure”).We generally use the term “liberal feminist political philosophy” to distinguish it from liberal feminist legal thought, but at times simply the term “liberal feminism” or “feminist liberalism” when the context makes our meaning clear.

2. See   Allison M. Jaggar , Feminist Politics and Human Nature 47–48, 173–84 (1988 ed.).

3. Ruth Bader Ginsburg & Barbara Flagg , Some Reflections on the Feminist Legal Thought of the 1970’s , 1989 U. Chi. Legal F . 9, 11 (1989).

Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724–25 (1982).

78 Stat. 255, 42 U.S.C. § 2000e-2(a)(1).

6. Wendy W. Williams , Notes from a First Generation , 1989 U. Chi. L. F. 99 (1989).

7. See, e.g. , Linda C. McClain , The Place of Families: Fostering Capacity, Equality, and Responsibility (2006).

8. See, e.g. , Anita L. Allen , Coercing Privacy , 40 Wm. & Mary L. Rev . 723 (1999) ; Danielle Keats Citron , Sexual Privacy , 128 Yale L.J. 1870 (2019).

9. Rosalind Dixon , Feminist Disagreement Comparatively Recast , 31 Harv. J. L. & Gender 277, 315 (2008).

10. Martha C. Nussbaum , Sex and Social Justice 57 (1999).

11. Linda C. McClain , “Atomistic Man” Revisited: Liberalism, Connection, and Feminist Jurisprudence , 65 S. Calif. L. Rev . 1171 (1992) ; Nussbaum,   supra note 10 , at 57.

Abbey , supra note 1 , at 1.

13. Id. ; see also   Deborah Rhode , Gender and Justice 12 (1989) (liberalism was the “most dominant influence” on “American feminism”).

15. Abigail and John Adams Converse on Women’s Rights, 1776 , Am. Yawp Reader , https://www.americanyawp.com/reader/the-american-revolution/abigail-and-john-adams-converse-on-womens-rights-1776/#:~:text=The%20American%20Revolution%20invited%20a,the%20limits%20of%20revolutionary%20liberty (last visited June 30, 2021).

18. Nancy Cott , Public Vows: A History of Marriage and the Nation 16 (1999).

19. Id. at 14.

Rhode,   supra note 13 , at 12.

21. See   Sally G. McMillen , Seneca Falls and the Origins of the Women’s Rights Movement 35–70 (2008) ; Rhode , supra note 13 , at 12.

Cott,   supra note 18 , at 63.

23. Id. at 64.

24. Id. at 60–66; s ee also   Lisa Pace Vetter , The Political Thought of America’s Founding Feminists 128, 132, 139–41 (2017) (explicating Sarah Grimké’s “Quaker liberalism”).

26. Mark E. Brandon , States of Union: Family and Change in the American Constitutional Order 83 (2013).

27. See   Reva B. Siegel , The Nineteenth Amendment and the Democratization of the Family , Yale L.J. F . 450 (Jan. 21, 2020).

Declaration of Right and Sentiments, reproduced as Appendix A in   McMillen,   supra note 21 , at 237–38; Rhode,   supra note 13 , at 12.

Declaration of Right and Sentiments, supra note 28 , at 237–41.

30. McMillen,   supra note 21 , at 91 (quoting the Declaration’s argument “that men withheld rights from women but gave the same rights ‘to the most ignorant and degraded men—both natives and foreigners’ ”). Susan B. Anthony’s angry, racist criticisms of the Fifteenth Amendment’s extending the franchise only to African American men drew on “ethnic and racial stereotypes and negative views about immigrants [and women] that were common currency in late nineteenth-century America.” Virginia Sapiro , The Power and Fragility of Social Movement Coalitions: The Woman Suffrage Movement to 1870 , 100 B.U. L. Rev . 1557, 1604–06 (2020) (giving example of Frederick Douglass’s criticism of opponents of Black male suffrage as “drunken Irishmen and ignorant Dutchmen”).

31. Wendell Phillips , Speeches, Lectures, and Letters (1884) (“Woman’s Rights,” speech made at Convention held in Worcester, Massachusetts, on October 15 and 16, 1851).

32. Id. at 12 (praising John Stuart Mill).

33. John Stuart Mill , The Subjection of Women (1869), in John Stuart Mill & Harriet Taylor Mill, Essays on Sex Equality ( Alice S. Rossi ed., 1970).

34. John Stuart Mill , On Liberty 97 (1859) ( David Spitz ed., 1975).

Rhode , supra note 13 , at 14.

36. Id. at 14. On Jane Addams’s idea of civic, or municipal, housekeeping, see   Jean Bethke Elshtain , Jane Addams and the Dream of American Democracy 161–68 (2002).

Rhode , supra note 13 , at 34–50. See Julie C. Suk, “The Equal Rights Amendment, Then and Now,” chapter 12 , in this volume.

Rhode , supra note 13 , at 36–37.

39. John Rawls , Political Liberalism xxv (1993). Rawls distinguished this “political liberalism” from a “comprehensive liberalism” that would rest on or seek agreement on such doctrines.

40. Id. at 19; McClain , supra note 7 , at 17 (citing James E. Fleming , Securing Constitutional Democracy 1 (2006) ).

41. See generally Baehr, supra note 1 ; Abbey , supra note 1 ; Amy Baehr , Liberal Feminism , in   Stanford Encyclopedia of Philosophy (Sept. 30, 2013), https://plato.stanford.edu/entries/feminism-liberal .

42. Susan Moller Okin , Justice, Gender, and the Family (1989).

43. Id. at 93–97.

44. Id. at 101.

45. Id. at 168–86.

46. John Rawls , The Idea of Public Reason Revisited , 64 U. Chi. L. Rev . 765, 791 (1997).

47. Martha C. Nussbaum , Women and Human Development: The Capabilities Approach 4–8 (2000).

48. Id. at 242–43.

49. Id. at 245.

50. Id. at 245–46.

51. Rhode,   supra note 13 , at 59; see also   Patricia A. Cain , Feminism and the Limits of Equality , 24 Ga. L. Rev . 803, 829 (1990) ; Jaggar,   supra note 2 , at 188–89 (describing NOW’s liberal feminist focus on “equality of opportunity” and rational capacity).

52. Founding: Setting the Stage, NOW, https://now.org/about/history/founding-2/ (last visited July 4, 2020); Pauli Murray , Song in a Weary Throat: Memoir of an American Pilgrimage 468–80 (2018 ed.).

53. Jane Mansbridge , Why We Lost the ERA 99 (1986) (quoting NOW’s 1966 founding statement of purpose).

Rhode,   supra note 13 , at 59–60.

Ginsburg & Flagg, supra note 3 , at 11. Ginsburg cofounded the WRP with attorney Brenda Feigen.

Dixon, supra note 9 , at 298; Cain, supra note 51 , at 829 (associating liberal feminism in legal academy with Ginsburg, Herma Hill Kay, Wendy Williams, and Nadine Taub).

57. See   Ruth Bader Ginsburg (with Mary Hartnett & Wendy W. Williams), My Own Words 119 (quoting Mill in an epigraph to Ruth Bader Ginsburg , Women and the Law: A Symposium Introduction , 25 Rutgers L. Rev . 1 (1971) ).

Ginsburg & Flagg, supra note 3 , at 11.

60. Id. at 13.

61. See   id. ; Irin Carmon & Shana Knizhnik , Notorious RBG 51 (2015) ; RBG (CNN Films 2018); On the Basis of Sex (Focus Features 2018) ; Linda Greenhouse , Ruth Bader Ginsburg, Supreme Court’s Feminist Icon, Is Dead at 87 , N.Y. Times (Sept. 18, 2020).

62. Ginsburg authored the briefs for Reed v. Reed, 404 U.S. 71 (1971); Struck v. Secretary of Defense, cert. granted , 409 U.S. 947, judgment vacated , 409 U.S 1071 (1972); Turner v. Dep’t of Emp’t Sec., 423 U.S. 44 (1975). She authored the brief and presented oral argument for Frontiero v. Richardson, 411 U.S. 677 (1973); Kahn v. Shevin, 416 U.S. 351 (1947); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975); Edwards v. Healy, 421 U.S. 772 (1975); Califano v. Goldfarb, 430 U.S. 199 (1977); and Duren v. Missouri, 439 U.S. 357 (1979). She also wrote amicus briefs for numerous other cases in this time period. Ruth Bader Ginsburg , The Progression of Women in the Law , 28 Val. U. L. Rev . 1161 (1994).

Reed , 404 U.S. 71.

Moritz v. Comm’r of Internal Revenue, 469 F.2d 466 (10th Cir. 1972). In April 1971, Ginsburg sent the brief she and Martin Ginsburg wrote in Moritz to Mel Wulf, at the ACLU, who was then working on Sally Reed’s appeal to the U.S. Supreme Court, commenting: “Some of this should be useful for Reed v. Reed .” Wulf solicited her help on Reed.   Carmon & Knizhnik,   supra note 61 , at 52.

Carmon & Knizhnik,   supra note 61 , at 1.

66. Moritz , 469 F.2d at 470. The Tenth Circuit relied on Reed for the need to subject sex-based classifications to “scrutiny under equal protection principles.” Id. at 470.

Carmon & Knizhnik,   supra note 61 , at 58–59.

68. Id. at 52.

69. Id. at 56 (quoting the brief).

71. Id. at 57.

72. See   Pauli Murray & Mary O. Eastwood , Jane Crow and the Law: Sex Discrimination and Title VII , 34 Geo. Wash. L. Rev . 232 (1965–66). On Murray’s contributions, see Serena Mayeri , Pauli Murray and the Twentieth-Century Quest for Legal and Social Equality , 2 Ind. J. L. & Soc. Equality 85 (2014) ; My Name is Pauli Murray (Participant 2021).

Murray & Eastwood, supra note 72 , at 235.

Carmon & Knizhnik , supra note 61 , at 54–55.

Reed , 404 U.S. at 76–77.

Frontiero , 411 U.S. at 678, 682.

Id. at 684.

Id. at 685.

Id. at 686.

80. For example, Justice Brennan stated: “although blacks were guaranteed the right to vote in 1870 [the Fifteenth Amendment], women were denied even that right … until the adoption of the Nineteenth Amendment half a century later.” Id. at 686. For legal feminist critique of this problem with categories, see   Kimberlé Crenshaw , Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color , 43 Stan. L. Rev . 1241, 1244 n.8 (1991).

Craig v. Boren, 429 U.S. 190, 197 (1976) (holding that Oklahoma could not justify higher age for males to drink 3.2 percent beer (21) than for females (18)).

Mississippi University for Women , 458 U.S. at 724.

See, e.g. , Weinberger , 420 U.S. 636 (holding unconstitutional rule not giving widowers same Social Security benefits as widows); Califano , 430 U.S. 199 (holding unconstitutional Social Security provision giving survivor benefits under Social Security Act only to widows).

Carmon & Knizhnik , supra note 61 , at 71–72.

United States v. Virginia, 518 U.S. 515, 532 (1996) [hereinafter VMI ].

Id. at 533 (emphasis added).

Id. at 534.

Id. at 572 n. 2.

Id. at 541.

Id. at 555.

137 S. Ct. 1678, 1693 (2017).

Id. at 1690 (quoting Obergefell v. Hodges, 576 U.S. 644, 673 (2015)).

Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020).

EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 569 (6th Cir. 2018) (drawing on Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)).

Id. at 577.

Transcript of Oral Argument at 50–51, R.G. & G.R. Harris Funeral Homes, Inc., v. EEOC, (No. 18-107) (argued Oct. 8, 2019) (emphasis added).

Bostock , 140 S. Ct. at 1741.

For example, they debated the best interpretation of the Pregnancy Discrimination Act, Congress’s 1978 amendment to Title VII. See Deborah A. Widiss, “Pregnancy and Work—50 Years of Legal Theory, Litigation and Legislation,” chapter 24 , in this volume.

99. Anne Dailey , Feminism’s Return to Liberalism , 102 Yale L.J. 1265, 1267–68 (1993) ; see, e.g. , Williams, supra note 6 , at 99–100 (for “symmetrist/asymmetrist” terms to describe equal treatment/special treatment positions, crediting Christine Littleton , Reconstructing Sexual Equality , 75 Calif. L. Rev . 1279 (1987) ).

Williams, supra note 6 , at 110–11.

101. Wendy W. Williams , The Equality Crisis: Some Reflections on Culture, Courts, and Feminism , 7 Women’s Rts. L. Rep . 175 (1982).

Williams, supra note 6 , at 110.

103. Id. at 99–100; see also Ginsburg & Flagg, supra note 3 , at 18.

Abbey , supra note 1 , at 1–2.

McClain,   supra note 7 .

106. Maxine Eichner , The Supportive State: Families, Government, and America’s Political Ideals (2010).

107. Id. at 70.

108. See, e.g. , Kimberly Yuracko , Toward Feminist Perfectionism: A Radical Critique of Rawlsian Liberalism , 6 UCLA Women’s L.J . 1, 47–48 (1995) ; Robin West , Foreword: Taking Freedom Seriously , 104 Harv. L. Rev . 43 (1990) ; Catharine A. Mackinnon , Feminism Unmodified 93–102 (1987). For a liberal feminist response, see   Linda C. McClain , Toleration, Autonomy, and Governmental Promotion of Good Lives: Beyond “Empty” Toleration to Toleration as Respect , 59 Ohio St. L.J . 19 (1998).

109. Linda C. McClain , The Poverty of Privacy , 3 Colum. J. Gender & L. 119, 124 (1992) ; Allen, supra note 8 , at 754.

110. Anita L. Allen , Uneasy Access: Privacy for Women in a Free Society 180–81 (1988).

111. Anita L. Allen & Erin Mack , How Privacy Got Its Gender , 10 N. Ill. U. L. Rev . 441, 446 (1990).

Allen, supra note 8 , at 728.

See   Allen,   supra note 110 , at 180–81.

114. Citron, supra note 8 , at 1876 n. 17 (2019) (referring to work of Allen and McClain). See   Anita L. Allen , Gender and Privacy in Cyberspace , 52 Stan. L. Rev .1175 (2000) ; Linda C. McClain , Reconstructive Tasks for a Liberal Feminist Conception of Privacy , 40 Wm. & Mary L. Rev . 759, 790 (1999).

Citron, supra note 8 , at 1870.

116. Id. at 1874, 1878.

117. Id. at 1874–75.

118. Id. at 1908–28, 1944–54. See also   Danielle Keats Citron , Hate Crimes in Cyberspace (2014) ; Danielle Keats Citron & Mary Anne Franks , Criminalizing Revenge Porn , 49 Wake Forest L. Rev . 345, 346 (2014).

119. Planned Parenthood v. Casey, 505 U.S. 833, 856 (1992). The language from Casey quoted in text, as well as the argument that reproductive autonomy is crucial to the goals of reproductive justice, featured prominently in amicus briefs submitted by reproductive justice scholars and organizations in Dobbs v. Jackson Women’s Health Organization, in which Mississippi—in defending its ban on abortion after the fifteenth week of pregnancy—has argued that the Supreme Court should overrule both Roe v. Wade , 410 U.S. 113 (1973), and Casey. Amici argued that the impact of overruling such cases and denying women’s right to “bodily autonomy and reproductive agency” would fall disproportionately on Black women. Brief of Amici Curiae Reproductive Justice Scholars Supporting Respondents at 6, Dobbs v. Jackson Women’s Health Organization, No. 19-1392; see   id. at 28-30 (explaining how Casey recognized two key prongs of reproductive justice: the right not to have a child and the right to have a child).

McClain, supra note 109 ; McClain,   supra note 7 , at 223–55; Allen, supra note 8 .

Allen, supra note 8 , at 754.

Mackinnon,   supra note 108 , at 102.

Nussbaum,   supra note 47 ; McClain,   supra note 7 .

124. An important influence on relational, or cultural, feminism was Carol Gilligan , In a Different Voice (1982). For an overview of relational feminist critiques of liberalism and a liberal feminist response, see McClain, supra note 11 . For a feminist argument that “autonomy” obscures dependency, see   Martha Albertson Fineman , The Autonomy Myth: A Theory of Dependency (2004).

McClain,   supra note 7 , at 18.

126. Angela P. Harris , Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev . 581, 585, 598 (1990) (calling MacKinnon’s approach “essentialist” and “’color-blind’ ”). For MacKinnon’s response, see   Catharine A. MacKinnon , Keeping It Real: On Anti-“Essentialism,” in Women’s Lives, Men’s Laws 84 (2005).

127. Crenshaw, supra note 80 , at 1244 n.8 (1991). Notably, Crenshaw and MacKinnon have proposed an “Equality Amendment” embracing an intersectional and substantive approach to equality. See   Catharine A. MacKinnon & Kimberlé W. Crenshaw , Reconstituting the Future: An Equality Amendment , Yale L. Forum . 343, 363 (Dec. 26, 2019).

Harris, supra note 126 , at 585 (critiquing construction of “women” in work by MacKinnon and Robin West).

Dailey, supra note 99 , at 1284–85.

Dixon, supra note 9 , 315.

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Feminist Jurisprudence and Its Impact In India. An Overview

Feminist legal theory, also known as feminist jurisprudence, is based on the belief that the law has been fundamental in women's historical subordination. The project of feminist legal theory is twofold. First, feminist jurisprudence seeks to explain ways in which the law played a role in women's former subordinate status. Second, feminist legal theory is dedicated to changing women's status through a rework of the law and its approach to gender. Feminist jurisprudence is a philosophy of law based on the political, economic, and social equality of sexes. As a field of legal scholarship, feminist jurisprudence began in 1960s. It influences many debates on sexual and domestic violence, inequality in the workplace, and gender based discrimination. Through various approaches, feminists have identified implications of seemingly neutral laws and practices. Laws affecting employment, divorce, reproductive rights, rape, domestic violence, and sexual harassment have all benefited from the analysis and insight of feminist jurisprudence. History Feminists believe that history was written from a male point of view and does not reflect women's role in making history and structuring society. Male-written history has created a bias in the concepts of human nature, gender potential, and social arrangements. The language, logic, and structure of the law are male-created and reinforce male values. Deviation from the norm By presenting male characteristics as a norm and female characteristics as deviation from the norm the prevailing conceptions of law reinforce and perpetuate patriarchal power. Feminists challenge the belief that the biological make-up of men and women is so different that certain behavior can be attributed on the basis of sex. Gender, feminists say, is created socially, not biologically. Sex determines such matters as physical appearance and reproductive capacity, but not psychological, moral, or social traits. Three major schools Though feminists share common commitments to equality between men and women, feminist jurisprudence is not uniform. There are three major schools of thought within feminist jurisprudence.

• Traditional, or liberal, feminism asserts that women are just as rational as men and therefore should have equal opportunity to make their own choices.
• Another school of feminist legal thought, cultural feminists, focuses on the differences between men and women and celebrates those differences; this group of thinkers asserts that women emphasize the importance of relationships, whereas men emphasize abstract principles of rights and logic. The goal of this school is to give equal recognition to women's moral voice of caring and communal values.
• Radical or dominant feminism focuses on inequality. It asserts that men, as a class, have dominated women as a class, creating gender inequality. For radical feminists gender is a question of power. Radical feminists urge us to abandon traditional approaches that take maleness as their reference point. They argue that sexual equality must be constructed on the basis of woman's difference from man.

Feminist Jurisprudence

• Examination of legal concepts, rules, doctrines and process with reference to women’s experiences.
• Examination of the underlying assumptions of law based in male female and ostensibly gender neutral distinctions.
• Examination of mismatch, distortion or denial created by the deference between women’s life experience and the laws assumption or imposed structures.
• Patriarchal interest served by the mismatch.
• Reforms to be made in the law to eliminate patriarchal influences.

Feminism into four schools, namely, liberal, radical, cultural and postmodern and the early theme and pursuit of feminists about law was equality.

Liberal Feminism

Radical feminism, cultural feminist, post modern feminism, hedonic jurisprudence, indian perspective over feminism, fundamentals rights, directive principles of state policy, protectionist interpretation of laws for women.

• Feminist Legal Theory: An Anti-Essentialist Reader, ed. by Nancy E. Dowd and Michelle S. Jacobs, New York Univ. Press, 2003, ISBN 0-8147-1913-9
• Nancy Levit, Robert R. M. Verchick: Feminist Legal Theory: A Primer (Critical America (New York University Paperback)), New York University Press 2006, ISBN 0-8147-5199-7
• Christina Villegas, True Feminism and the Constitution Are Compatible, The Daily Signal, available at www.dailysignal.com/2016/08/26/true-feminism-and-the-constitution-have-always-been-compatible/
• Constitution Itself Is Feminist Justice Chandrachud on Transformative Constitution & Feminism, Live Law, available at www.livelaw.in/constitution-itself-is-feminist-justice-chandrachud-on-transformative-constitution-feminism/
• Richards, David A. J. Women, Gays, and the Constitution: the Grounds for Feminism and Gay Rights in Culture and Law, (1998).
• Versha Sharma, Constitutional Provisions Relating to Women and International Instruments on Rights. 16-17 ALJ (2001-02).
• Justice Deepak Mishra, Women Empowerment and Gender Justice, Special Training Programme for all District Judges and Chief Judicial Magistrates. Special Training Programme for all District Judges and Chief Judicial Magistrates, Tamil Nadu, Tamil Nadu State Judicial Academy(2013) 3 LW (JS) 45.
• MP Jain, Indian Constitutional Law With Constitutional Documents, (6th Edn., 2010).
• Taslima Monsoor, Gender in Law: Five Decades of Struggle for Empowerment, (2001) 12 DULJ 39.
• MacKinnon, Catharine. “Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence.” Signs, vol. 8, no. 4, 1983. JSTOR, www.jstor.org/stable/3173687
• Matsuda, Mari J. "When the First Quail Calls: Multiple Consciousness as Jurisprudential Method." Women's Rights Law Reporter, vol. 11, no. 1,
• 1989, Online, https://heinonline.org/HOL/P?h=hein.journals/worts11&i=11.
• Wikipedia Available At https://en.wikipedia.org/wiki/Feminist_legal_theory
• https://blog.ipleaders.in/feminist-jurisprudence-indian-constitution/

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Stormy Daniels Takes the Stand

The porn star testified for eight hours at donald trump’s hush-money trial. this is how it went..

This transcript was created using speech recognition software. While it has been reviewed by human transcribers, it may contain errors. Please review the episode audio before quoting from this transcript and email [email protected] with any questions.

It’s 6:41 AM. I’m feeling a little stressed because I’m running late. It’s the fourth week of Donald J. Trump’s criminal trial. It’s a white collar trial. Most of the witnesses we’ve heard from have been, I think, typical white collar witnesses in terms of their professions.

We’ve got a former publisher, a lawyer, accountants. The witness today, a little less typical, Stormy Daniels, porn star in a New York criminal courtroom in front of a jury more accustomed to the types of witnesses they’ve already seen. There’s a lot that could go wrong.

From “The New York Times,” I’m Michael Barbaro. This is “The Daily.”

Today, what happened when Stormy Daniels took the stand for eight hours in the first criminal trial of Donald J. Trump. As before, my colleague Jonah Bromwich was inside the courtroom.

[MUSIC PLAYING]

It’s Friday, May 10th.

So it’s now day 14 of this trial. And I think it’s worth having you briefly, and in broad strokes, catch listeners up on the biggest developments that have occurred since you were last on, which was the day that opening arguments were made by both the defense and the prosecution. So just give us that brief recap.

Sure. It’s all been the prosecution’s case so far. And prosecutors have a saying, which is that the evidence is coming in great. And I think for this prosecution, which is trying to show that Trump falsified business records to cover up a sex scandal, to ease his way into the White House in 2016, the evidence has been coming in pretty well. It’s come in well through David Pecker, former publisher of The National Enquirer, who testified that he entered into a secret plot with Trump and Michael Cohen, his fixer at the time, to suppress negative stories about Trump, the candidate.

It came in pretty well through Keith Davidson, who was a lawyer to Stormy Daniels in 2016 and negotiated the hush money payment. And we’ve seen all these little bits and pieces of evidence that tell the story that prosecutors want to tell. And the case makes sense so far. We can’t tell what the jury is thinking, as we always say.

But we can tell that there’s a narrative that’s coherent and that matches up with the prosecution’s opening statement. Then we come to Tuesday. And that day really marks the first time that the prosecution’s strategy seems a little bit risky because that’s the day that Stormy Daniels gets called to the witness stand.

OK, well, just explain why the prosecution putting Stormy Daniels on the stand would be so risky. And I guess it makes sense to answer that in the context of why the prosecution is calling her as a witness at all.

Well, you can see why it makes sense to have her. The hush money payment was to her. The cover-up of the hush money payment, in some ways, concerns her. And so she’s this character who’s very much at the center of this story. But according to prosecutors, she’s not at the center of the crime. The prosecution is telling a story, and they hope a compelling one. And arguably, that story starts with Stormy Daniels. It starts in 2006, when Stormy Daniels says that she and Trump had sex, which is something that Trump has always denied.

So if prosecutors were to not call Stormy Daniels to the stand, you would have this big hole in the case. It would be like, effect, effect, effect. But where is the cause? Where is the person who set off this chain reaction? But Stormy Daniels is a porn star. She’s there to testify about sex. Sex and pornography are things that the jurors were not asked about during jury selection. And those are subjects that bring up all kinds of different complex reactions in people.

And so, when the prosecutors bring Stormy Daniels to the courtroom, it’s very difficult to know how the jurors will take it, particularly given that she’s about to describe a sexual episode that she says she had with the former president. Will the jurors think that makes sense, as they sit here and try to decide a falsifying business records case, or will they ask themselves, why are we hearing this?

So the reason why this is the first time that the prosecution’s strategy is, for journalists like you, a little bit confusing, is because it’s the first time that the prosecution seems to be taking a genuine risk in what they’re putting before these jurors. Everything else has been kind of cut and dry and a little bit more mechanical. This is just a wild card.

This is like live ammunition, to some extent. Everything else is settled and controlled. And they know what’s going to happen. With Stormy Daniels, that’s not the case.

OK, so walk us through the testimony. When the prosecution brings her to the stand, what actually happens?

It starts, as every witness does, with what’s called direct examination, which is a fancy word for saying prosecutors question Stormy Daniels. And they have her tell her story. First, they have her tell the jury about her education and where she grew up and her professional experience. And because of Stormy Daniels’s biography, that quickly goes into stripping, and then goes into making adult films.

And I thought the prosecutor who questioned her, Susan Hoffinger, had this nice touch in talking about that, because not only did she ask Daniels about acting in adult films. But she asked her about writing and directing them, too, emphasizing the more professional aspects of that work and giving a little more credit to the witness, as if to say, well, you may think this or you may think that. But this is a person with dignity who took what she did seriously. Got it.

What’s your first impression of Daniels as a witness?

It’s very clear that she’s nervous. She’s speaking fast. She’s laughing to herself and making small jokes. But the tension in the room is so serious from the beginning, from the moment she enters, that those jokes aren’t landing. So it just feels, like, really heavy and still and almost oppressive in there. So Daniels talking quickly, seeming nervous, giving more answers than are being asked of her by the prosecution, even before we get to the sexual encounter that she’s about to describe, all of that presents a really discomfiting impression, I would say.

And how does this move towards the encounter that Daniels ultimately has?

It starts at a golf tournament in 2006, in Lake Tahoe, Nevada. Daniels meets Trump there. There are other celebrities there, too. They chatted very briefly. And then she received a dinner invitation from him. She thought it over, she says. And she goes to have dinner with Trump, not at a restaurant, by the way. But she’s invited to join him in the hotel suite.

So she gets to the hotel suite. And his bodyguard is there. And the hotel door is cracked open. And the bodyguard greets her and says she looks nice, this and that. And she goes in. And there’s Donald Trump, just as expected. But what’s not expected, she says, is that he’s not wearing what you would wear to a dinner with a stranger, but instead, she says, silk or satin pajamas. She asked him to change, she says. And he obliges.

He goes, and he puts on a dress shirt and dress pants. And they sit down at the hotel suite’s dining room table. And they have a kind of bizarre dinner. Trump is asking her very personal questions about pornography and safe sex. And she testifies that she teased him about vain and pompous he is. And then at some point, she goes to the bathroom. And she sees that he has got his toiletries in there, his Old Spice, his gold tweezers.

Very specific details.

Yeah, we’re getting a ton of detail in this scene. And the reason we’re getting those is because prosecutors are trying to elicit those details to establish that this is a credible person, that this thing did happen, despite what Donald Trump and his lawyers say. And the reason you can know it happened, prosecutors seem to be saying, is because, look at all these details she can still summon up.

She comes out of the bathroom. And she says that Donald Trump is on the hotel bed. And what stands out to me there is what she describes as a very intense physical reaction. She says that she blacked out. And she quickly clarifies, she doesn’t mean from drugs or alcohol. She means that, she says, that the intensity of this experience was such that, suddenly, she can’t remember every detail. The prosecution asks a question that cuts directly to the sex. Essentially, did you start having sex with him? And Daniels says that she did. And she continues to provide more details than even, I think, the prosecution wanted.

And I think we don’t want to go chapter and verse through this claimed sexual encounter. But I wonder what details stand out and which details feel important, given the prosecution’s strategy here.

All the details stand out because it’s a story about having had sex with a former president. And the more salacious and more private the details feel, the more you’re going to remember them. So we’ll remember that Stormy Daniels said what position they had sex in. We’ll remember that she said he didn’t use a condom. Whether that’s important to the prosecution’s case, now, that’s a much harder question to answer, as we’ve been saying.

But what I can tell you is, as she’s describing having had sex with Donald Trump, and Donald Trump is sitting right there, and Eric Trump, his son, is sitting behind him, seeming to turn a different color as he hears this embarrassment of his father being described to a courtroom full of reporters at this trial, it’s hard to even describe the energy in that room. It was like nothing I had ever experienced. And it was just Daniels’s testimony and, seemingly, the former President’s emotions. And you almost felt like you were trapped in there with both of them as this description was happening.

Well, I think it’s important to try to understand why the prosecution is getting these details, these salacious, carnal, pick your word, graphic details about sex with Donald Trump. What is the value, if other details are clearly making the point that she’s recollecting something?

Well, I think, at this point, we can only speculate. But one thing we can say is, this was uncomfortable. This felt bad. And remember, prosecutor’s story is not about the sex. It’s about trying to hide the sex. So if you’re trying to show a jury why it might be worthwhile to hide a story, it might be worth —

Providing lots of salacious details that a person would want to hide.

— exposing them to how bad that story feels and reminding them that if they had been voters and they had heard that story, and, in fact, they asked Daniels this very question, if you hadn’t accepted hush money, if you hadn’t signed that NDA, is this the story you would have told? And she said, yes. And so where I think they’re going with this, but we can’t really be sure yet, is that they’re going to tell the jurors, hey, that story, you can see why he wanted to cover that up, can’t you?

You mentioned the hush money payments. What testimony does Daniels offer about that? And how does it advance the prosecution’s case of business fraud related to the hush money payments?

So little evidence that it’s almost laughable. She says that she received the hush money. But we actually already heard another witness, her lawyer at the time, Keith Davidson, testify that he had received the hush money payment on her behalf. And she testified about feeling as if she had to sell this story because the election was fast approaching, almost as if her leverage was slipping away because she knew this would be bad for Trump.

That feels important. But just help me understand why it’s important.

Well, what the prosecution has been arguing is that Trump covered up this hush money payment in order to conceal a different crime. And that crime, they say, was to promote his election to the presidency by illegal means.

Right, we’ve talked about this in the past.

So when Daniels ties her side of the payment into the election, it just reminds the jurors maybe, oh, right, this is what they’re arguing.

So how does the prosecution end this very dramatic, and from everything you’re saying, very tense questioning of Stormy Daniels about this encounter?

Well, before they can even end, the defense lawyers go and they consult among themselves. And then, with the jury out of the room, one of them stands up. And he says that the defense is moving for a mistrial.

On what terms?

He says that the testimony offered by Daniels that morning is so prejudicial, so damning to Trump in the eyes of the jury, that the trial can no longer be fair. Like, how could these jurors have heard these details and still be fair when they render their verdict? And he says a memorable expression. He says, you can’t un-ring that bell, meaning they heard it. They can’t un-hear it. It’s over. Throw out this trial. It should be done.

Wow. And what is the response from the judge?

So the judge, Juan Merchan, he hears them out. And he really hears them out. But at the end of their arguments, he says, I do think she went a little too far. He says that. He said, there were things that were better left unsaid.

By Stormy Daniels?

By Stormy Daniels. And he acknowledges that she is a difficult witness. But, he says, the remedy for that is not a mistrial, is not stopping the whole thing right now. The remedy for that is cross-examination. If the defense feels that there are issues with her story, issues with her credibility, they can ask her whatever they want. They can try to win the jury back over. If they think this jury has been poisoned by this witness, well, this is their time to provide the antidote. The antidote is cross-examination. And soon enough, cross-examination starts. And it is exactly as intense and combative as we expected.

We’ll be right back.

So, Jonah, how would you characterize the defense’s overall strategy in this intense cross-examination of Stormy Daniels?

People know the word impeach from presidential impeachments. But it has a meaning in law, too. You impeach a witness, and, specifically, their credibility. And that’s what the defense is going for here. They are going to try to make Stormy Daniels look like a liar, a fraud, an extortionist, a money-grubbing opportunist who wanted to take advantage of Trump and sought to do so by any means necessary.

And what did that impeachment strategy look like in the courtroom?

The defense lawyer who questions Stormy Daniels is a woman named Susan Necheles. She’s defended Trump before. And she’s a bit of a cross-examination specialist. We even saw her during jury selection bring up these past details to confront jurors who had said nasty things about Trump on social media with. And she wants to do the same thing with Daniels. She wants to bring up old interviews and old tweets and things that Daniels has said in the past that don’t match what Daniels is saying from the stand.

What’s a specific example? And do they land?

Some of them land. And some of them don’t. One specific example is that Necheles confronts Daniels with this old tweet, where Daniels says that she’s going to dance down the street if Trump goes to jail. And what she’s trying to show there is that Daniels is out for revenge, that she hates Trump, and that she wants to see him go to jail. And that’s why she’s testifying against him.

And Daniels is very interesting during the cross-examination. It’s almost as if she’s a different person. She kind of squares her shoulders. And she sits up a little straighter. And she leans forward. Daniels is ready to fight. But it doesn’t quite land. The tweet actually says, I’ll dance down the street when he’s selected to go to jail.

And Daniels goes off on this digression about how she knows that people don’t get selected to go to jail. That’s not how it works. But she can’t really unseat this argument, that she’s a political enemy of Donald Trump. So that one kind of sticks, I would say. But there are other moves that Necheles tries to pull that don’t stick.

So unlike the prosecution, which typically used words like adult, adult film, Necheles seems to be taking every chance she can get to say porn, or pornography, or porn star, to make it sound base or dirty. And so when she starts to ask Daniels about actually being in pornography, writing, acting, and directing sex films, she tries to land a punch line, Necheles does. She says, so you have a lot of experience making phony stories about sex appear to be real, right?

As if to say, perhaps this story you have told about entering Trump’s suite in Lake Tahoe and having sex with him was made up.

Just another one of your fictional stories about sex. But Daniels comes back and says, the sex in the films, it’s very much real, just like what happened to me in that room. And so, when you have this kind of combat of a lawyer cross-examining very aggressively and the witness fighting back, you can feel the energy in the room shift as one lands a blow or the other does. But here, Daniels lands one back. And the other issue that I think Susan Necheles runs into is, she tries to draw out disparities from interviews that Daniels gave, particularly to N-TOUCH, very early on once the story was out.

It’s kind of like a tabloid magazine?

But some of the disparities don’t seem to be landing quite like Necheles would want. So she tries to do this complicated thing about where the bodyguard was in the room when Daniels walked into the room, as described in an interview in a magazine. But in that magazine interview, as it turns out, Daniels mentioned that Trump was wearing pajamas. And so, if I’m a juror, I don’t care where the bodyguard is. I’m thinking about, oh, yeah, I remember that Stormy Daniels said now in 2024 that Trump was wearing pajamas.

I’m curious if, as somebody in the room, you felt that the defense was effective in undermining Stormy Daniels’s credibility? Because what I took from the earlier part of our conversation was that Stormy Daniels is in this courtroom on behalf of the prosecution to tell a story that’s uncomfortable and has the kind of details that Donald Trump would be motivated to try to hide. And therefore, this defense strategy is to say, those details about what Trump might want to hide, you can’t trust them. So does this back and forth effectively hurt Stormy Daniels’s credibility, in your estimation?

I don’t think that Stormy Daniels came off as perfectly credible about everything she testified about. There are incidents that were unclear or confusing. There were things she talked about that I found hard to believe, when she, for instance, denied that she had attacked Trump in a tweet or talked about her motivations. But about what prosecutors need, that central story, the story of having had sex with him, we can’t know whether it happened.

But there weren’t that many disparities in these accounts over the years. In terms of things that would make me doubt the story that Daniels was telling, details that don’t add up, those weren’t present. And you don’t have to take my word for that, nor should you. But the judge is in the room. And he says something very, very similar.

What does he say? And why does he say it?

Well, he does it when the defense, again, at the end of the day on Thursday, calls for a mistrial.

With a similar argument as before?

Not only with a similar argument as before, but, like, almost the exact same argument. And I would say that I was astonished to see them do this. But I wasn’t because I’ve covered other trials where Trump is the client. And in those trials, the lawyers, again and again, called for a mistrial.

And what does Judge Marchan say in response to this second effort to seek a mistrial?

Let me say, to this one, he seems a little less patient. He says that after the first mistrial ruling, two days before, he went into his chambers. And he read every decision he had made about the case. He took this moment to reflect on the first decision. And he found that he had, in his own estimation, which is all he has, been fair and not allowed evidence that was prejudicial to Trump into this trial. It could continue. And so he said that again. And then he really almost turned on the defense. And he said that the things that the defense was objecting to were things that the defense had made happen.

He says that in their opening statement, the defense could have taken issue with many elements of the case, about whether there were falsified business records, about any of the other things that prosecutors are saying happened. But instead, he says, they focused their energy on denying that Trump ever had sex with Daniels.

And so that was essentially an invitation to the prosecution to call Stormy Daniels as a witness and have her say from the stand, yes, I had this sexual encounter. The upshot of it is that the judge not only takes the defense to task. But he also just says that he finds Stormy Daniels’s narrative credible. He doesn’t see it as having changed so much from year to year.

Interesting. So in thinking back to our original question here, Jonah, about the idea that putting Stormy Daniels on the stand was risky, I wonder if, by the end of this entire journey, you’re reevaluating that idea because it doesn’t sound like it ended up being super risky. It sounded like it ended up working reasonably well for the prosecution.

Well, let me just assert that it doesn’t really matter what I think. The jury is going to decide this. There’s 12 people. And we can’t know what they’re thinking. But my impression was that, while she was being questioned by the prosecution for the prosecution’s case, Stormy Daniels was a real liability. She was a difficult witness for them.

And the judge said as much. But when the defense cross-examined her, Stormy Daniels became a better witness, in part because their struggles to discredit her may have actually ended up making her story look more credible and stronger. And the reason that matters is because, remember, we said that prosecutors are trying to fill this hole in their case. Well, now, they have. The jury has met Stormy Daniels. They’ve heard her account. They’ve made of it what they will. And now, the sequence of events that prosecutors are trying to line up as they seek prison time for the former President really makes a lot of sense.

It starts with what Stormy Daniels says with sex in a hotel suite in 2006. It picks up years later, as Donald Trump is trying to win an election and, prosecutors say, suppressing negative stories, including Stormy Daniels’s very negative story. And the story that prosecutors are telling ends with Donald Trump orchestrating the falsification of business records to keep that story concealed.

Well, Jonah, thank you very much. We appreciate it.

Of course, thanks for having me.

The prosecution’s next major witness will be Michael Cohen, the former Trump fixer who arranged for the hush money payment to Stormy Daniels. Cohen is expected to take the stand on Monday.

Here’s what else you need to know today. On Thursday, Israeli Prime Minister Benjamin Netanyahu issued a defiant response to warnings from the United States that it would stop supplying weapons to Israel if Israel invades the Southern Gaza City of Rafah. So far, Israel has carried out a limited incursion into the city where a million civilians are sheltering, but has threatened a full invasion. In a statement, Netanyahu said, quote, “if we need to stand alone, we will stand alone.”

Meanwhile, high level ceasefire negotiations between Israel and Hamas have been put on hold in part because of anger over Israel’s incursion into Rafah.

A reminder, tomorrow, we’ll be sharing the latest episode of our colleague’s new show, “The Interview” This week on “The Interview,” Lulu Garcia-Navarro talks with radio host Charlamagne Tha God about his frustrations with how Americans talk about politics.

If me as a Black man, if I criticize Democrats, then I’m supporting MAGA. But if I criticize, you know, Donald Trump and Republicans, then I’m a Democratic shill. Why can’t I just be a person who deals in nuance?

Today’s episode was produced by Olivia Natt and Michael Simon Johnson. It was edited by Lexie Diao, with help from Paige Cowett, contains original music by Will Reid and Marion Lozano, and was engineered by Alyssa Moxley. Our theme music is by Jim Brunberg and Ben Landsverk of Wonderly.

That’s it for “The Daily.” I’m Michael Barbaro. See you on Monday.

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• May 13, 2024   •   27:46 How Biden Adopted Trump’s Trade War With China
• May 10, 2024   •   27:42 Stormy Daniels Takes the Stand
• May 9, 2024   •   34:42 One Strongman, One Billion Voters, and the Future of India
• May 8, 2024   •   28:28 A Plan to Remake the Middle East
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• May 3, 2024   •   25:33 The Protesters and the President

Hosted by Michael Barbaro

Featuring Jonah E. Bromwich

Produced by Olivia Natt and Michael Simon Johnson

Edited by Lexie Diao

With Paige Cowett

Original music by Will Reid and Marion Lozano

Engineered by Alyssa Moxley

Listen and follow The Daily Apple Podcasts | Spotify | Amazon Music | YouTube

This episode contains descriptions of an alleged sexual liaison.

What happened when Stormy Daniels took the stand for eight hours in the first criminal trial of former President Donald J. Trump?

Jonah Bromwich, one of the lead reporters covering the trial for The Times, was in the room.

On today’s episode

Jonah E. Bromwich , who covers criminal justice in New York for The New York Times.

Background reading

In a second day of cross-examination, Stormy Daniels resisted the implication she had tried to shake down Donald J. Trump by selling her story of a sexual liaison.

Here are six takeaways from Ms. Daniels’s earlier testimony.

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Jonah E. Bromwich covers criminal justice in New York, with a focus on the Manhattan district attorney’s office and state criminal courts in Manhattan. More about Jonah E. Bromwich

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