This paper has arisen from my interest in questions ofsubjectivity of primary concern to contemporaryfeminist jurisprudence. Rather than side with anyparticular view represented in the debates surroundingthese questions, I have used Foucault's concept ofepisteme to explore the tradition of feministlegal thought. By focusing upon seventeenth-centurywomen's writings in which the earliest statementslinking law to women's oppression are to be found, thepaper argues that knowledge claims about law'sassociation with women's oppression are predicated notupon the positing of a sovereign feministconsciousness, but upon the (...) specific positivities ofknowledge which existed at the time. Theunderstanding of the birth of the feminist legaldiscourse in terms of the specific conditions of itspossibility, although historically contextualised,raises questions about the hitherto seeminglyunassailable adherence to subjectivist epistemologywhich the current feminist engagement with lawmaintains. (shrink)

This article examines the way in which the sublime comes to matter within various eighteenth century legal discourses, particularly in the work of Thomas Hobbes, John Locke and Edmund Burke. The essay seeks also to relate the theoretical works of these philosophers and lawyers to practical legislative developments of the period, in particular, the passage of the Black Act in1726 and the Marriage Act in 1753. The sublime comes to matter to the law in this period in the sense (...) that philosophical conceptualizations of the sublime in terms of power and transcendence become increasingly significant to representations of the nature and function of English law. Such theoretical accounts of the law as are found in the work of Hobbes, Locke, and Burke, moreover, translate into juridical practices designed to affirm the status of the law as a transcendentally sublime source of political authority in the eighteenth century. This article subjects that understanding of the law to a feminist critique that draws upon the work of the French philosopher, Luce Irigaray. It will be shown that the sublime within Western thought is generally associated with a sense of dread as to the possibility of the annihilation of consciousness. This ontological dread entails, in Jean Francois Lyotard’s terms, a recognition of the possibility of “nothing further happening” to the subject. Within Western discourse, this dread is projected onto, or made material in the form of, some ‘other’ that is, in Irigaray’s estimation, most usually feminine. Thus, the sublime comes to matter in this second, ontological sense and it is within this context that the transcendental sublime emerges as a response to a sense of dread that is projected on to some material, feminine, or feminised, ‘other’. In eighteenth century legal discourse, this ‘other’ take the form of the ‘state of nature’, or the revolutionary mob, or the revolutionary female who signifies more than anything a return to animality and chaos –an ontological and political fall from grace. The Black Act and the Marriage Act, with their shared emphasis upon the preservation of political stability and patriarchal property rights, may in this context be regarded as manifestations in the legal domain of the metaphysical principles of the transcendental sublime – with its emphasis upon an escape from, and a control of, the dreadful, feminine ‘other’. (shrink)

ABSTRACT Republic Act 9710, or the Magna Carta of Women (MCW), is considered the Philippine version or national law translation of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Using the concept of impact translation as a framework and the Feminist Critical Discourse Analysis (FCDA) approach, this article examines the MCW and the minutes of committee meetings, particularly the bicameral conference committee meeting where lawmakers agreed on the finalized version of the bill. It (...) applies the concept of gender relationality in examining how legislators negotiated the provisions of the MCW, particularly those on reproductive health and the definition of gender. The analysis shows that these provisions challenged Catholic doctrines specifically on gender, childbearing, and pre-marital sexual relations. It argues that the Catholic conception of gender norms and women’s role in society shaped the law’s final version, disregarding the CEDAW Committee recommendations on abortion. Findings suggest that the legislators’ fear that the law’s ratification would serve as an opening for the legalization of abortion led to a weakened version of the law, particularly the section on women’s reproductive health. (shrink)

Habermas’ account of the radically intersubjective constitution of subjectivity is of great use to feminist theorists, as is his defense of the rational character of normative claims. Feminists must however, reject his reductive identification of subjectivity with language and rationality. Some feminists’ concerns insist on continuing to distinguish morality from legality, something that Habermas, despite his own better intuitions and arguments, is sometimes disinclined to do.

Critical Legal Theory and the Challenge of Feminism provides both a thorough overview and a refinement of the ideas that underlie critical legal theory. Arguing with the rigor of analytic philosophy and the alertness to paradoxes characteristic of deconstructive philosophy, Matthew Kramer begins by exploring the tangled relations between metaphysics and politics. He then attempts to transform the discourses of the critical legal studies movement by laying out a framework of five general themes: contradictions, contingency, patterning, perspective, (...) and ideology. Kramer calls for a more sophisticated awareness of their paradoxes, explaining why the paradoxes are by no means disabling or demobilizing. Finally, Kramer explores some of feminist theory's major controversies and problems, and argues that feminist theory can profit greatly by giving due attention to inescapable paradoxes. The book is an important contribution to political philosophy, jurisprudence, feminist philosophy and metaphysics, with powerful implications for epistemology and literary theory. (shrink)

In the age of neoliberalism, feminists strongly disagree on the ideal legal status of prostitution while the pro-prostitution lobby endeavours to keep their male-dominated business running smoothly. Feminist debates should be concerned with the sex buyers' belief system about women, which is likely to have practical consequences in the way they behave with women (prostituted and non-prostituted) in terms of sexuality and, therefore, for feminist purposes of equality, on a broader scale. A Critical Discourse Analysis of (...) buyer-authored online reviews of prostituted women provides the opportunity to verify whether the relationship they establish with them is based on democratic mutual equality or gendered power relations driven by domination and subordination.En la era del neoliberalismo, no hay consenso entre las feministas acerca del estatus legal que debería tener la prostitución; mientras, el lobby pro-prostitución intenta proteger tan lucrativo negocio. Los debates feministas deben abordar críticamente el sistema de creencias de los sujetos prostituyentes, en tanto que afecta a cómo actúan con las mujeres (prostituidas y no prostituidas) dentro del marco de la sexualidad y, por tanto, al potencial logro de la igualdad fáctica a nivel social. El análisis crítico del discurso online de los sujetos prostituyentes sobre las mujeres prostituidas permite comprobar si las relaciones que establecen con ellas están basadas en términos igualitarios o en la dicotomía dominación-subordinación característica de las relaciones de poder de género. (shrink)

Over the last decade, legal recognition of same-sex relationships in Canada has accelerated. By and large, same-sex cohabitants are now recognised in the same manner as opposite-sex cohabitants, and same-sex marriage was legalised in 2005. Without diminishing the struggle that lesbians and gay men have endured to secure this somewhat revolutionary legal recognition, this article troubles its narrative of progress. In particular, we investigate the terms on which recent legal struggles have advanced, as well as the ways (...) in which resistance to the legal recognition has been expressed and dealt with. We argue that to the extent that feminist critiques of marriage, familial ideology, and the privatisation of economic responsibility are marginalised, conservative and heteronormative discourses on marriage and family are reinforced. Our case studies include two pivotal moments in the quest for legislative recognition of same-sex relationships: the Hearings of the Canadian House of Commons Standing Committee on Justice and Human Rights on Bill C-23, The Modernization of Benefits and Obligations Act, in 2000 and the hearings on Same-Sex Marriage in 2003. We find that the debates operated within a narrow paradigm that bolstered many existing hierarchies and exacerbated conditions for those who are economically disadvantaged. (shrink)

This article analyses feminist discourses on the criminalisation of violence against women in Ecuador, after the enactment of a “post-neoliberal” constitution. It responds to arguments in feminist legal theory, which affirm that penal expansion thrives through neoliberal globalisation, and that certain feminists have sponsored this carceral-neoliberal alliance, over and above redistributive concerns. However, in Ecuador, many feminists who participated in a recent criminalisation process also endorsed the post-neoliberal government’s social redistribution programme. Ecuadorian feminism therefore complicates current discussions (...) on carceral and governance feminism, which link penal expansion with neoliberalism and an absence of redistributive concerns. Ecuadorian left-leaning feminists use rights-based frameworks to reconcile penal interventions with potential abuses of coercive power. This allows them to regard criminal justice as minimally problematic within the redistributive agenda they endorse. At the same time, the penal approach of Ecuadorian feminists runs the danger of marginalising legally pluralistic approaches to justice. (shrink)

ABSTRACT The performance Un violador en tu camino [A rapist in your way] created by the Chilean feminist collective Las Tesis received global media attention during the 2019/2020 Chilean protests against inequality and human rights violations. Drawing on insights from Feminist Critical Discourse Studies, Corporeal Sociolinguistics and Multimodal Critical Discourse Studies, we analyse three video recordings of Las Tesis’ performances in three capital cities in Latin America: Santiago, Buenos Aires, and Mexico City. We study how sounds, (...) lyrics, body movements, and accessories work together to defy institutional, material, and symbolic violence against women. We also analyse how intertextual strategies in the Santiago/chilean performance and their recontextualization in Buenos Aires and Mexico City were employed to resist structural patriarchal norms. The analysis reveals that through an adaptation of the song lyrics and the performances, the following social actors are explicitly identified as the instigators of violence against women: the police and the President, judges opposed to the legalization of abortion and the Catholic Church. This study advances understanding of feminist emancipatory and resistance discourses in Latin America. (shrink)

North American scholarship has charted resonances between 1990s legislative and feminist discourse concerning violence against women. Feminist critique of official discourse surrounding the Protection from Harassment Act 1997 suggests that 1990s resonances did not reach the UK: however, an examination of the Hansard debates suggests this under-estimates the influence of feminist discourse. Halley’s discussion of “bad faith” helps to explain both the tendency of feminists to under-estimate their influence and why this matters. A commitment (...) to an understanding of themselves as powerless may encourage feminists to underplay similarities between feminist and official discourse, leading feminists to find only what they expect. Such an understanding gives feminism the capacity to change social life without acknowledging, let alone agonising over, the full range of its distributive effects. This is most troubling in relation to “carceral” feminism, since under-assessment of feminist impact encourages amplification and intensification of the carceral message. (shrink)

This engaging book examines the origins and first effects of the concept ‘legal semiotics’, focusing on the inventor of the term, Roberta Kevelson. It highlights the importance of her ideas and works which have contributed to legal theory, legal interpretation and philosophy of language. Kevelson’s work is particularly relevant today, in our world of global electronic communication networks which rely so much on language, signs, signals and shortcuts. Kevelson could not have foreseen the 21st century, yet the (...) story of her work and influence deserves more attention as it is key to our understanding of modern legal discourse and why law fascinates and is accepted in modern society. The authors draw on Kevelson’s hitherto unknown Office Papers and Notes, and a biographical examination points to key influences in her work such as the early feminist movements of the US East Coast, the philosophy of Charles Sanders Peirce and the semiotics of Thomas Sebeok. This forms the basis for a more encompassing research of Kevelson’s position, work and philosophical background, which the authors call for. A quick and enlightening read, this book interests a wide range of readers with an interest in legal history and the fields which Kevelson both drew on and influenced, including lawyers, students and scholars. (shrink)

This article presents and reflects upon the results of a survey involving a sample of women who have experienced gender-based violence and who have turned to an institutional centre to tackle their situation. In aiming to move beyond a descriptive treatment, we consider the plurality of user types and their remote use patterns in relation to the resources offered by virtual feminist communities designed to promote increased sociopolitical mobilisation in the fight against violence against women. We will observe the (...) progressive emergence of protest actions organised by Spanish virtual feminist communities, which make use of new technologies to contribute productively to the debate and to political action in innovative organisations and formats. The article discusses how feminist virtual communities are using digital spaces for their work combatting violence against women, and whether this work is apparent to those who experience this violence. Finally, we tackle the implications of this work for online feminist activism in terms of a more interactive and social constructivist model of activism, as well as considering its relationship to institutional-legal discourse and public policies that require women to recognise themselves as victims. (shrink)

This article explores the epistemological and strategic issues facing feminists embarking upon narrative explorations into women's experiences. It considers the implications for feminist epistemology of acknowledging women's participation in dominant ideologies about their social role. Focusing upon questions of women's agency, it asks how this `conforming knowledge' might complicate postmodernist feminist notions of resisting and reconstructing law's categorisation of `Woman'. It also represents an attempt to clarify, in advance of my own analysis of women's agency in abortion decision-making, (...) why postmodern feminists might talk to women – the `subjects' of law's constructive power. It seeks additionally to open a discussion among a wider audience of feminists about what we might do with the information uncovered through listening to women's own stories in an area pronounced upon authoritatively by a multitude of discourses. (shrink)

This article brings together feminist literary theory and law by approaching a number of U.S. Federal cases on sex equality in light of the work of the renowned feminist literary critic Naomi Schor, and shows that literary theory constitutes an under-explored resource for feminist legal critique. Schor’s writings constitute a sustained rumination on the relationship between reading and feminism. Drawing on writings on language and the body by key French feminist theorists, Schor advances a method (...) of interpretation which she terms, provocatively, ‘clitoral reading’, and which focuses on the place of details relating to women’s bodies and desires within literary and cultural discourses. In the course of her career, she analysed texts from domains as diverse as literature, philosophy, visual art, the history of fashion, and photography. I will demonstrate that her work can make a valuable contribution to legal studies by using it as an interpretative lens to re-examine U.S. Federal court judgments. (shrink)

Legal judgment writing mobilises a process of story-telling, drawing on existing judicial discourses, precedents and practices to create a narrative relevant to the specific case that is articulated by the presiding judge. In the Feminist Judgments projects feminist scholars and activists have sought to challenge and reinterpret legal judgments that have disadvantaged, discriminated against or denied women’s experiences. This paper reflects on the process of writing as a feminist judge in the Australian Project, in an (...) intimate homicide case, R v Middendorp. Drawing on the work of Judith Butler on intelligibility, iterability and the communality of violence and vulnerability, this article argues that feminist judgments necessarily require some uncomfortable compromises with unjust gendered institutions. While ‘donning the robes’ may be an uncomfortable process, a feminist re-articulation of the law’s carceral power serves to unsettle and challenge some aspects of gendered oppression, even though it cannot unsettle the operation of the institution. The article concludes that effective feminist interventions by members of the judiciary may require donning robes that are not entirely comfortable in order to persuade and advocate for change. (shrink)

Discourse ethics represents an exciting new development in neo-Kantian moral theory. William Rehg offers an insightful introduction to its complex theorization by its major proponent, Jürgen Habermas, and demonstrates how discourse ethics allows one to overcome the principal criticisms that have been leveled against neo-Kantianism. Addressing both "commun-itarian" critics who argue that universalist conceptions of justice sever moral deliberation from community traditions, and feminist advocates of the "ethics of care" who stress the moral significance of caring for (...) other individuals, Rehg shows that discourse ethics combines impartiality with solidarity. He provides the first systematic reconstruction of Habermas's theory and explores its relationship to the work of such contemporary philosophers as Charles Taylor. His book articulates a bold alternative to the split between the "right" and the "good" in moral theory and will greatly interest philosophers, social and legal scholars, and political theorists. (shrink)

The civil rights and feminist movements of the sixties did not leave legal theory untouched. Over the following two decades, the critical legal studies movement--led by the Brazilian philosopher, social theorist and politician Roberto Unger--sought to transform traditional views of law and legal doctrine, revealing the hidden interests and class dominations in prevailing legal frameworks. It remains highly influential, having spawned more recent movements, including feminist legal studies and critical race theory. The Critical (...) Legal Studies Movement develops its major ideas, showing how laws and legal discourse hide the social inequalities and political biases that so interest philosophy and revolutionary politics. (shrink)

A theme of growing importance in both the law and philosophy and socio-legal literature is how regulatory dynamics can be identified and normative expectations met in an age when transnational actors operate on a global plane and in increasingly fragmented and transformative contexts. A reconsideration of established theories and axiomatic findings on regulatory phenomena is an essential part of this discourse. There is indeed an urgent need for discontinuity regarding what we know about, among other things, law, legality, (...) sovereignty and political legitimacy, power relations, institutional design and development, and pluralist dynamics of ordering under processes of globalisation and transnationalism. Making an important contribution to the scholarly debate on the subject, this volume features original and much-needed essays of theoretical and applied legal philosophy as well as socio-legal accounts that reflect on whether legal positivism has anything to offer to this intellectual enterprise. This is done by discussing whether global and transnational cultural, socio-political, economic, and juridical challenges as well as processes of diversification, fragmentation, and transformation reinforce or weaken legal positivists’ assumptions, claims, and methods. The themes covered include, but are not limited to, absolute and limited state sovereignty; the ‘new international legal positivism’; Hartian legal positivism and the ‘normative positivist’ account; the relationship between modern secularisation, social conventionalism, and meta-ontological issues of temporality in postnational jurisprudence; the social positivisation of human rights; the formation and content of jus cogens norms; feminist critique; the global and transnational migration of principles of justice and morality; the Vienna Convention on the Law of Treaties rule of interpretation; and the responsibility of transnational corporations. (shrink)

Debates in India following on from the Shah Bano case highlight the extent to which gender equality may be compromised by yielding to the dominant voices within a particular religion or cultural tradition. As the Indian Supreme Court noted in Danial Latifi & Anr v Union of India, the pursuit of gender justice raises questions of a universal magnitude. Responding to those questions requires an appeal to norms that claim a universal legitimacy. Liberal feminist demands for a uniform civil (...) code, however, have pitted feminist movements against proponents of minority rights and claims for greater autonomy for minority groups. Against the background of growing communal tensions, many feminists have argued for more complex strategies—strategies that encompass the diversity of women's lives and create a sense of belonging amongst women with diverse religious-cultural affiliations. Liberal theories of rights that abstract from the concrete realities of women's daily lives have not always addressed the institutions and procedures necessary to build that sense of belonging. This article examines the contribution made by discourse ethics theorists to debates on models of multicultural arrangements. It argues that deliberative models of democracy recognize the need for ‘difference-sensitive’ processes of inclusion, potentially assisting feminism in resolving the apparent conflict between the politics of multiculturalism and the pursuit of gender equality. (shrink)

Metaphors are common in legal discourse because they reify abstract legal concepts. The game metaphor, sometimes used to characterise legal trials, tends to be associated with legal professionals’ work in court. This metaphor portrays a legal trial as a competitive, hostile and masculine process that excludes victims from participating in the trial. In this article, I analyse interviews with victims of rape who have had their case prosecuted in the courts in Norway. The victims (...) use the game metaphor to characterise both the trial and their participation in it. I investigate how the game metaphor adds meaning to rape victims’ understanding and experience of a legal trial and creates room for agency in relation to the prosecution of their rape case. (shrink)

This article observes that one of the most interesting developments in tort scholarship during recent years has been the emergence of a literature analyzing tort problems from feminist perspectives. The article looks at three of the areas that feminist writers have explored: the possibility of a "reasonable woman" standard as an alternative to the "reasonable man"; the possible recognition of a duty to rescue, which allegedly would be in harmony with feminist ethics; and the issue of how (...) the tort system should respond to types of harms that are disproportionately suffered by women. The article concludes that the feminist discussions of these topics have enriched the discourse of tort. Still, those discussions have been, in significant respects, inadequate. They have failed, for example, to take advantage of the relevant empirical information; and certain key issues relating to legal history and legal theory have remained underdeveloped. (shrink)

Metaphysical considerations aside, today’s inheritors of the tradition of natural philosophy are primarily scientists. However, they are oblivious to the human factor involved in science and in seeing how political, religious, and other ideologies contaminate our visions of nature. In general, philosophers observe human (historical, sociological, and psychological) processes within the construction of theories, as well as in the development of scientific activity itself. -/- In our time, feminism—along with accompanying ideas of identity politics under the slogan “diversity, inclusion, equity”—has (...) emerged in science policies. The vast majority of scientists (including myself) are convinced that discrimination is reprehensible. We also believe that all individuals of any sex, race, ethnic group, or ideology should be valued in academia solely based on his or her merits and potential through equality programs. However, as I will show in this article, political indoctrination has inadmissibly undertaken the struggle for equality in academic institutions in Western countries. I argue here that universities and research institutes should be politically free (neutral) to encourage academic freedom. -/- One negative aspect of equality programs is that worldwide, scientists are harassed for expressing opinions related to the “gender” issue. This situation severely restricts scientists’ freedom of expression, even within the limits of the law. Codes of conduct extending beyond legal boundaries are examples of this issue. Scientists who express their views about “gender” are often harassed, bullied, and socially or academically excluded. Thus, we are witnessing a wave of proselytizing in research institutes and science-associated media. Today, there is widespread biased propaganda of “victimhood”. This propaganda proposes positive discrimination and increasing women’s participation in unnatural ways. It also bends the history of science by overvaluing the creations of forgotten women, offering lectures on indoctrination, organizing congresses on gender and science, and persecuting anyone who sees the subject differently. All of this covered by a multitude of associations that financially benefit from these discourses through succulent subsidies of public money. Apparently, feminism is no longer about fighting against discrimination. Instead, it is about imposing an ideology and giving more power to one group of people. Thus, we must ask whether the end justifies the means. (shrink)

Sex change surgery has been practised in Iran under Ayatollah Khomeini’s fatwa in 1982. Therefore, a medical and judicial process of transition has been regulated accordingly. However, this has not resulted in either the legalization of sex change surgery, nor in the recognition of transsexual identity within Iranian substantive law. Sex change surgery is allowed through Islamic law, rather than substantive law, in response to the existing social facts and norms, on the one hand, and structural cooperation with medical system, (...) on the other. In this article, I argue that the Iranian heteronormative law’s understanding of transsexuality has amounted to the misrecognition of trans persons’ status within law and society. Using semi structured interviews, intersectional content analysis, and feminist methodologies, the findings indicate that transsexual bodies have gained meaning through religious and medical discourses within a framework of power relations, and that Iranian transsexual persons have reconstructed and redefined gender and gender relations in a way that informs their understanding of gender and sexuality beyond the existing Islamic legal and social norms. Moreover, intersectional analysis of the interviews demonstrates how the legal misrecognition of transsexuality creates space for a discourse which in itself leads to the misrecognition of other gendered identities, such as homosexuals and transwomen. (shrink)

This article extends and develops themes from my book, Women’s Activism, Feminism, and Social Justice, in response to commentary by Professors Aragon and Nagel. In my remarks I explore what I call “the tricky territory of rights,” as well as feminism, identity, intersectionality, heterogeneity, and complexity, and alternative epistemologies. My interlocuters and I are all skeptical about the notion of human rights for a range of reasons: rights discourse can be too narrow, focusing mainly on legal and political (...) rights; rights can overemphasize the individual at the expense of the collective; rights are part of state apparatus and may be the instrument of despotic leaders; rights as state apparatus are part of the carceral regime and rights may inhibit broader ways of thinking about justice such as human dignity or Ubuntu. In spite of these legitimate criticisms I advocate a strategic use of rights. I also explore themes of identity, intersectionality, heterogeneity, and complexity. (shrink)

With technological advances in reproduction no longer confined to the laboratory or involving only the isolated individual, women and men are increasingly resorting to a variety of technologies unheard of a few decades ago to assist them in becoming parents. The public at large, and feminists as a group, are confused and divided over how to view these technologies and over what positions to take on the moral and legal dilemmas they give rise to. Farquhar argues that two perspectives (...) have tended to dominate feminist discussions of these issues. She labels these: "fundamental feminism" and "market liberalism." By linking a theoterical approach with a practical set of issues, Farquhar's The Other Machine provides a rigorous analysis of contemporary feminist debates. (shrink)

Women's Power To Be Loud: The Authority of the Discourse and Authority of the Text in Mary Dorcey's Irish Lesbian Poetic Manifesto "Come Quietly or the Neighbours Will Hear" The following article aims to examine Mary Dorcey's poem "Come Quietly or the Neighbours Will Hear," included in the 1991 volume Moving into the Space Cleared by Our Mothers. Apart from being a well-known and critically acclaimed Irish poet and fiction writer, the author of the poem has been, from its (...) beginnings, actively involved in lesbian rights movement. Dorcey's poem "Come Quietly or the Neighbours Will Hear" is to be construed from a perspective of lesbian and feminist discourse, as well as a cultural, sociological and political context in which it was created. While analyzing the poem, the emphasis is being paid to the intertwining of various ideological and subversive assumptions, their competing for importance and asserting authority over one another, in line with, and sometimes, against the grain of the textual framework. In other words, Dorcey's poem introduces a multilayered framework that draws heavily on various sources: the popular culture idiom, religious discourse, the text even employs, in some parts, crime and legal jargon, but, above all, it relies upon sensuous lesbian experience where desire and respect for the other woman opens the emancipating space allowing for redefining of one's personal and textual location. As a result of such a multifarious interaction, unrepresented and unacknowledged Irish women's standpoints may come to the surface and become articulated, disrupting their enforced muteness that the controlling heteronormative discourse has attempted to ensure. In Dorcey's poem, the operating metaphor of women's silence, conceived of, at first, as the need to conceal one's sexual identity in fear of social ostracism and contempt of the "neighbours," is further equated with the noiseless, solitary and violent death of the anonymous woman, the finding of whose body was reported on the news. In both cases, the unwanted Irish women's voices of either agony, during the unregistered by anybody misogynist bloodshed that took place inside the flat, or the forbidden sounds of lesbian sexual excitement, need to be censored and stifled, not to disrupt an idealized image of the well-established family and heteronormative patterns. In the light of the aforementioned parallel, empowered by the shared bodily and emotional closeness with her female lover, and already bitterly aware that silence in discourse is synonymous with textual, or even, actual death, the speaker in "Come Quietly or the Neighbours Will Hear" comes to claim her own agency and makes her voice heard by others and taken into account. (shrink)

This article examines three divergent constructions about the salience of legal gender in lay people’s everyday lives and readiness to decertify gender. In our interviews (and survey data), generally participants minimised the importance of legal gender. The central argument in this article is that feminist socio-legal scholars applying legal consciousness studies to legal reform topics should find scrutinizing the construction of interview talk useful. We illustrate this argument by adapting and applying Ewick and Silbey’s (...) (1998) ‘The Common Place of Law: Stories from Everyday Life', ‘before’, ‘with’ and ‘against’ typology to interview talk about legal gender, and critique their cognitivist approach by offering a constructionist alternative. In our analysis, we offer a detailed discursive explication of three key legal consciousness themes. These themes offer a balanced representation of a dataset problematically ‘skewed’ towards sex-based rights feminist perspectives, namely that ‘before’ legal gender is an anti-decertification account, decertification would be risky for natal females; a ‘with’ legal gender construction is neither for nor against decertification per se, though the impact of decertification is produced in accounts as limited and unimportant; and ‘against’ legal gender is a pro-decertification classification, as not abolished legal gender is constructed as harmful to already marginalised groups. In concluding, we explore the reasoning for the lack of readiness for decertification currently, and return to the value of examining the construction of lay discourse about legal matters as talk is a form of social action. We suggest that applying discursive analysis to themes in legal consciousness studies enables a refocusing on the how rather than purely the what of divergent legal consciousnesses, and that this approach is a fruitful addition to feminist socio-legal studies. (shrink)

This article examines law’s representation of embodied female identity in the context of two medical law cases, R. v. Human Fertilisation and Embryology Authority, ex parte Blood andB v. Croydon Health Authority. Through an examination of contemporary critiques of female embodiment, in particular the work of Judith Butler, two discursive strategies are suggested for their potential to reconfigure the sexed subject within legal discourse. Firstly, the act of transgression – the flight from purportedly fixed subject positions – can (...) be read in the case of Bloodand calls into question law’s ability to contain and sustain sexed identity as prediscursive and immutable. Secondly, the exposure of the historical formation of the female subjects of legal discourse, demonstrated through a genealogical reading of B v. Croydon Health Authority, contributes to the feminist theoretical project to destabilise traditional gender categories and enables us to think beyond the category of ‘Woman’. (shrink)

Emphasizing the relevance of celibate singleness for the French women's movement, Ly affirmed that "more and more, we will recruit the elite of our adepts and militants from these noble freethinkers, these inspiring rebels" who were not legally "under their husbands' authority" or otherwise restricted by familial obligations.1 Given the early twentieth-century context of heightened national fears about France's flagging birth rate and the degeneration of the French "race," Ly's argument for political spinsterhood hardly encountered a popular reception, either within (...) liberal or feminist circles. Citing passionate fears of female political activism and the New Woman against an anxious background of nationalistic and conservative revival, scholars have underscored the French movement's need to present a nonviolent and "feminine" image to the public, one that did not openly challenge women's primary sexual, marital, or reproductive roles.5 Historian Karen Offen has most notably argued that the majority of feminists in France emphasized women's "maternal and nurturant functions" and stressed the notion of "equality-in-difference" rather than espousing a more individualistic Anglo-American philosophy.6 Although maternity and sexual difference were certainly dominant tropes in French feminist discourse, focusing on the question of single women allows us to view the French movement from a different angle. (shrink)

This article explores some of the issues raised by Munchausen’s Syndrome by Proxy (MSbP) and the relationship between medicine and law, specifically the discourses which feature in the courtroom portraying motherhood and expectations of parenting. These discourses are often hidden yet play a determining role in prosecutions for alleged maltreatment of children involving medically unexplained infant death syndrome. We offer a critique of MSbP and seek to unveil the assumptions about mothers, the parent predominantly affected by the ‘diagnosis’, and mothering (...) that underlie the association of women accused of deliberating harming their children. We suggest such insights are valuable because although the syndrome has never acquired a clear medical or legal definition, it has had repeated appearances in the literature and courtroom over the last 25 years and has more recently attracted attention from government, health care practitioners, academics and the media. We explore these issues through an examination of two recent Court of Appeal decisions in England: those of Sally Clark and Angela Cannings. (shrink)

In recent years, rather than addressing the needs of sex workers themselves or of trafficked persons, international anti-trafficking law has been mobilised towards an ideological end, namely the abolition of sex work. The vulnerability of ‘third world’ female sex workers in particular has provided a potent image for justifying state intervention backed by the full force of the criminal law. Moral legitimacy has been afforded to this by a radical feminist discourse which views sex workers as nothing but (...) hapless victims. Drawing on the work of Martha Fineman and legal realists like Robert Hale, this article redeploys vulnerability in trafficking debates to depart from its narrative of victimhood and to offer a renewed critique of liberal legalism, which has in the trafficking context been characterised by legal strategies of criminalisation and the attendant rescue and rehabilitation of trafficked persons. Specifically, it examines how three Indian social legislations regulating bonded labour, contract labour and inter-state migrant labour, and targeted at the domestic trafficking of men, conceptualise vulnerability in substantially different ways when compared to the 2000 Palermo Protocol on Trafficking (at least as it has been enforced to date). To the extent that these Indian laws construe the vulnerability of labour as systemic, trafficking is understood as a problem of labour migration to be addressed primarily by labour law. As such, this view of vulnerability, I argue, not only helps to de-exceptionalise trafficking as always equivalent to the trafficking of women for sex work, and therefore sex work, but also to substantively address the vulnerability of both male and female workers in other labour markets. (shrink)

In order to recuperate these two representatives of medieval frauenlieder, The Wife’s Lament and Wulf and Eadwacer, a feminist poetics must acknowledge the medieval attitudes toward authority and authorship that allow the medievalist to privilege the voice of the text over the historical author or implied author. The modern concept of authorship, derived from a modern concept of the text as private property, valorizes the signature of the author and the author’s presumed control over and legal responsibility for (...) his or her text. With reference to modern literature, contemporary theory has interrogated this “author-function” quite aggressively in an attempt to pry the text away from the author and to valorize the functions of the reader, as Roland Barthes’s “Death of the Author” illustrates,13 or to reconsider the privileges of the subject, in order to “seize its functions, its interventions in discourse, and its system of dependencies,” as Michel Foucault’s essay “What Is an Author?” propoes.14 Foucault’s proposals concerning the place of the subject and the author-function directly challenge modern assumptions about the text as the property of an author: “We can easily imagine a culture where discourse would circulate without any need for an author. Discourses, whatever their status, form, or value, regardless of our manner of handling them, would unfold in a pervasive anonymity.”15 13. See Roland Barthes, “The Death of the Author,” Image, Music, Text, trans. Stephen Heath , pp. 142-48.14. Michel Foucault, “What Is an Author?” Language, Counter-Memory, Practice: Selected Essays and Interviews, trans. Donald F. Bouchard and Sherry Simon, ed. Bouchard , p. 137.15. Ibid., p. 138. Indeed, Foucault does press his argument to the limits of its implications for the subject, and he ends his essay with a question that challenges the voice of a text as well as its author: “‘What Matter who’s speaking?’” . Nancy K. Miller engages directly in the implications of this position for feminist theory. She states: “What matter who’s speaking? I would answer it matters, for example, to women who have lost and still routinely lose their proper name in marriage, and whose signature—not merely their voice—has not been worth the paper it was written on” . Marilynn Desmond is an assistant professor of English, general literature, and rhetoric at the State University of New York—Binghamton. She is the author of Reading Dido: Textuality and Sexuality in the Late Medieval Reception of Aeneid 4 ; her current work is a study of ekphrasis in late medieval literature. (shrink)

The Repeal campaign articulated new and transformative relationships between law, reproduction and the political in Ireland. During the campaign, ordinary people took ownership of and participated in mutual teaching and critique of law on a wide scale. Art, along these lines, was often used to document and archive the injustices worked by the 8th Amendment. However, art also became a means of imagining law otherwise. In this piece, I use Jacques Rancière’s work on the relationship between aesthetics and politics to (...) analyse artistic contributions to feminist legal discourses associated with Repeal. (shrink)

This article engages the views of PRC Confucian scholars who responded to the United States Supreme Court Justice Anthony Kennedy's citing of Confucius in his majority opinion on same-sex marriage in 2015. It questions their separation of tolerance for homosexuality from legalization of same-sex marriage and argue that tolerance is not enough. The arguments in the mainland Confucian discourse about same-sex marriage highlights the historical and persistent entanglement of Confucianism with patriarchy. Instead of reviving traditional patriarchal society, further entrenching (...) and increasing gender inequality, contemporary Confucianism could shape its own unique modern society that aspires to (and hopefully one day achieving) gender equality together with sexual inclusivity by deconstructing the patriarchal Confucian family and reconstructing a different Confucian family ideal. Accepting same-sex marriage would lend weight to the latter, and there are Confucian reasons for legalizing same-sex marriage and recognizing its ethical value. (shrink)

This paper explores how embryos have been representedin law. It argues that two main models haveunderpinned legal discourse concerning the embryo. Onediscourse, which has become increasingly prevalent,views embryos as legal subjects or persons. Suchrepresentations are facilitated by technologicaldevelopments such as ultrasound imaging. In additionto influencing Parliamentary debate prior to thepassage of the Human Fertilisation and Embryology Act1990, images of embryos as persons featureprominently in popular culture, including advertisingand films, and this discourse came to the fore in (...) the`orphaned embryo' debate in 1996. The main opposingdiscourse dismisses embryos as commodifiable objects,which fits with a trend towards legal recognition thatreproductive materials such as sperm may be classifiedas property which may be donated or sold. In thecase of cryo-preserved embryos these competingperspectives have resulted in litigation over thestatus of frozen embryos. In this paper I argue thatit might be productive to shift the debate from thispolarised dispute over whether embryos matter or not,whether they are pre-persons or commodities. Instead,I suggest that we should attempt to locate them in abiotechnological milieu, where cyborg metaphors may beutilised, and questions of how we should treat embryoswould be contextualised alongside our response toother cyborgs. (shrink)

In this review of Bourne’s and Derry’s Gender and the Law, we reflect on how legal discourses constitute and are constitutive of gender and sexuality norms. We find that Bourne’s and Derry’s book is firmly grounded in both historical legal analysis and contemporary critique and challenges the notion of gender neutrality, which is commonplace in many legal system. It argues for a multifaceted understanding that draws on feminist, queer, as well as transgender theories. Bourne and Derry (...) revisit the discursive power of law through which gender norms are perpetuated and scrutinise its role in reinforcing oppressive gender stereotypes across different legal domains including employment, relationships, and criminal law, inter alia. Their work is divided into eleven chapters. Each of the chapters explores a different facet of gender and law, ranging from historical perspectives on women’s rights to practical implications and issues of implementation in relation to consent and reproductive rights, to name but two. The book represents a useful contribution to the research in discourse analysis on gender and law and offers a helpful foundation for further empirical research in legal linguistics and legal semiotics. At the same time, it is a plea in favour of rigorously dismantling of systemic patriarchal and heteronormative structures within legal discourse locally, regionally, and globally. We suggest that while Bourne’s and Derry’s focus is primarily on the UK and European context, the insights presented clearly have global relevance. This is particularly evident when assessing the social critique the book pursues when assessed against the normative catalogue of the Sustainable Development Goals (SDGs). Based on the insights gained from Bourne and Derry’s work, we call for the transformative integration of gender-critical perspectives into research in legal linguistics and legal semiotics and point out the need to address gender biases in legal discourses with a view to achieving justice and equality for all in legal systems around the globe. (shrink)

The opposition of ‘culture’ and ‘rights’ is not uncommon in feminist legal discourse. This article argues that such an approach is fraught with danger as it creates an extremely restrictive framework within which African women can challenge domination; it limits our strategic interventions for transforming society and essentially plays into the hands of those seeking to perpetuate and solidify the existing structures of patriarchy. Drawing examples from a parallel research on Gender, Law and Sexuality, I propose that (...) a more critical and interpretative approach to these two concepts may present a different perspective to portrayals of ‘tradition’ as constraining and/or fixed often displayed in mainstream feminist legal thinking. (shrink)

This article discusses the issue of abortion in the context of the dispute between progressive and neoconservative political forces in Brazil. The article analyses ADPF 442, a legal instrument known as a Motion of Noncompliance with a Fundamental Precept, which was lodged with the Supreme Court as part of a feminist litigation strategy in the country. The motion calls for the Supreme Court to decide on the constitutionality of the decriminalisation of abortion within the first 12 weeks of (...) gestation. Methodologically, the analysis combines a literature review with participant observation and corpus linguistics analysis. ADPF 442 is considered a key event in the use of judicialisation to voice demands for women’s rights in current-day Brazil, and this work examines the testimonies as representative of the discourse and strategies at play in the broader field of abortion and its major actors, both for and against its decriminalisation. (shrink)

While the turn to vulnerability in law responds to a recurrent critique by feminist scholars on the disembodiment of legal personhood, this article suggests that the mobilization of vulnerability in the criminal courts does not necessarily offer female drug mules a direct path to justice. Through an analysis of sentencing appeals of female drug mules in England and Wales, this article presents a feminist critique of the dispositif of the person and its relation to vulnerability. Discourses on (...) drug mules’ vulnerability mobilize the trope of the colonial victim in need of protection, which is often translated into legal mercy. But mercy is rather an expression of biopower which inscribes not only fragility onto the bodies of drug mules by figuring them as exemplar paradigms of colonial subjectivity, but also reinvigorates the dispositif of gender implicit in the legal person. In this set-up, it would appear as if law and politics totalize the registers of life, in this case the contours of vulnerable body. The article suggests we must revisit the image of the wounded body in order to carve out a space for resistance. Drawing on Elaine Scarry and Judith Butler, it suggests vulnerable bodies are marked by a semiotic openness, which renders them subject to appropriation but also able to signify the precarity produced by the law through their resistance to representation. (shrink)

In 2000, the Netherlands became the first European country to legalize prostitution, a policy supported by Dutch feminists. It distinguishes forced from voluntary prostitution, defining the latter as ‘sex work’, in contrast to feminist positions viewing it as ‘sexual domination’. This article examines the discourses used by parliamentarians in the debates since the 1980s and charts the shift from a traditional moral view to the sex-work frame, creating new meanings of ‘ prostitutes’, ‘clients’ and ‘brothel keepers’ in the process. (...) The new discourse allows for an active female sex worker but desexualizes the nature of the prostitution exchange. Neither does it offer an account of why it is mainly men buying sex from women. The analysis also highlights the contradictions created by the forced/voluntary distinction when speaking of the trafficking of women from poor countries and current anti-migration discourse, as well as the near obliteration of the racial differences between ‘clients’ and ‘workers’ in parliamentary discourse. (shrink)

Building upon an ethnographic exploration of the pedagogy and alternative dispute resolution activities of an Islamic feminist movement in India called the Indian Muslim Women’s Movement, this article speaks to the tension between Saba Mahmood’s influential account of religion and gendered agency, and a liberal feminist conception of gender equality. Anthropological explorations of Muslim women’s pious commitments as well as liberal feminist engagements with religion and culture are premised upon a presumed dichotomy between ethical engagements with religion, (...) and a commitment to gender equality. Yet there is little analysis in existing scholarship of how gender equality is constituted by social movements premised on a religious identity, such as Islamic feminist movements. This article moves beyond thinking about gender equality merely as an abstract liberal normative good to explore how the discourse of gender equality is constituted in a movement that brings together everyday ethical commitments inspired by notions of piety and concerted everyday struggles against social and legal inequality. The ethnographic vignettes show how gender equality connotes social and legal equality between men and women premised on their equal spiritual status as God’s creations, their equal pious obligations irrespective of gender and the equal imperative of ethical conduct on both men and women based on Quranic values of compassion and justice. The pursuit of gender equality also entails reinterpretation of social norms in the light of ethical conduct, and an ethical commitment to collective struggle against gender discrimination in state and non-state forums. (shrink)

"Lawyers and the law have long been the object of popular criticism and satire for the obscurity and incomprehensibility of their language. Legal Discourse provides a novel historical and systematic account of the language of the legal institution together with a sustained criticism of legal exegesis and `legalese' more generally. In the first part of the work the doctrinal history of the legal discipline and its concepts of language, text and sign are examined and assessed. (...) In the second part the contemporary disciples of linguistics, discourse analysis and communication studies are brought to bear upon the task of constructing a theory of legal discourse as a linguistics of legal power" -- Backcover. (shrink)

The present work discusses the complex nature of the term ‘gender’ in legal discourse, in the wake of the recent pushbacks that the 2011 Istanbul Convention has received from anti-feminist movements and nations that have not signed/ratified the document or have withdrawn from it. Though its original aim was to protect women’s rights, the debate has eventually surfaced deeply-rooted problems linked to gender-related vocabulary. For this reason, the study will analyse the use of the terms ‘gender’ and (...) ‘sex’ in the 1995 UN Beijing Declaration, the 1998 Rome Statute, and the 2011 Istanbul Convention, from a synchronic and diachronic perspective. It aims to provide a critical comparison of the definitions, translations, and interpretations of the term ‘gender’, in an attempt to overcome some of the issues involved in the harmonisation of EU documentation, which could certainly help guarantee fundamental rights and convince more states to sign/ratify the Convention, or at least, not allow them to use issues not related to women’s rights to not accept the document. The interpretation of gender-related violence is still ‘in progress’, and the lack of harmonisation could eventually hinder fundamental human rights instead of helping the Istanbul Convention save lives. (shrink)

Although "objectivity" is a term used widely in many areas of public discourse, from discussions concerning the media and politics to debates over political correctness and cultural literacy, the question "What is objectivity?" is often ignored, as if the answer were obvious. In this volume, Allan Megill has gathered essays from fourteen leading scholars in a variety of fields--history, anthropology, philosophy, psychology, history of science, sociology of science, feminist studies, literary studies, and accounting--to gain critical understanding of the (...) idea of objectivity as it functions in today's world. In diverse essays the authors provide fascinating studies of objectivity in such areas as anthropological research, corporate and governmental bureaucracies, legal discourse, photography, and the study and practice of the natural sciences. Taken together, Megill argues, this volume calls for developing a notion of "objectivities." The absolute sense of objectivity--that is, objectivity as a "God's eye view"--must be supplemented, and in part supplanted, by disciplinary, procedural, and dialectical senses of objectivity. This book will be of great interest to a broad range of scholars as it presents current thinking on a topic of fundamental concern across the disciplines in the humanities and social sciences. Contributors. Barry Barnes, Dagmar Barnouw, Lorraine Code, Lorraine Daston, Johannes Fabian, Kenneth J. Gergen, Mary E. Hawkesworth, Barbara Herrnstein Smith, Evelyn Fox Keller, George Levine, Allan Megill, Peter Miller, Andy Pickering, Theodore M. Porter. (shrink)

U.K. regulation of sexual identity within a marriage context has traditionally been linked to biological sex. In response to the European Court of Human Rights decisions in Goodwin and I.,2 and in order to address the question of whether a transsexual person can be treated as a “real” member of their adoptive sex, the U.K. has recently passed the Gender Recognition Act 2004. While the Act appears to signal a move away from biology and towards a conception of sexual identity (...) based on gender rather than sex, questions of sexual identity remain rooted in medico-legal assessments of the individual transsexual body/mind. In contrast, because transsexual people in some parts of Canada have been able to marry in their post-operative sex since 1990, contemporary debates on the sexual identity of transsexual people in British Columbia and Ontario do not focus on the validity of marriage, and more frequently centre upon the provision of goods and services, in human rights contexts where sex is said to matter. Currently in Canada this is prompting questions of what it means to be a woman in society, how the law should interpret sex and gender, and how, if at all, the parameters of sexual identity should be established in law. This article seeks to compare recent U.K. legal conceptualisations of transsexuality with Canadian law in this area. As human rights discourse begins to grow in the U.K., the question remains as to whether or not gender will become an adequate substitute for sex. (shrink)

This brief article introduces a special issue of Feminist Legal Studies addressing gender, sexuality and human rights, and comprising papers drawn from an E.S.R.C.-funded workshop held at the University of Kent in June 2004 on the theme of “Gender-Auditing the Human Rights Act”. The article begins by situating the themes of the special issue within the broader context of feminist engagement with rights discourse. It goes on to consider the introduction of the Human Rights Act 1998 (...) into the U.K. with a view to assessing its implications in terms of engendering a positive legal and political culture for equality-seeking initiatives. The article concludes with a survey of the contributions to the special issue, highlighting the possibilities for feminist theory and strategy posed by a wider intersectional engagement with rights issues. (shrink)

This article proposes that feminist legal critics need to be able to explain how some rape cases succeed in securing convictions. The means by which rape cases are routinely disqualified in the criminal justice system have received widespread attention. It is well established in feminist legal critique that female complainants are discredited if they fail to conform to an archaic stereotype of the genuine or ‘real’ rape victim. This victim is not only morally and sexually virtuous (...) she is also cautious, unprovocative, and consistent. Defence tactics for discrediting rape testimony involve exposing the complainant's alleged failure to comply with the sexual and behavioural standards of the normative victim.This understanding of how rape complain(an)ts are disqualified is not predictive, however, of the complainants whose cases succeed in securing convictions. This article reviews some successful Australian rape cases and considers the ways in which they disturb feminist understandings of how rape complaints are discredited in the criminal justice system. It proposes that recent research analysing the discourse of rape trials provides a way of explaining the apparent discrepancies between the ‘ideal’ rape victim and successful complainants. (shrink)