Feminist and Critical Race Theory PDF

Feminist and Critical Race Theory By: ABAD, Jayne Kathlyn V. ESPAÑOL, Joel Questions: 1. Should we give special privileges to pregnant women 2. Do you consume pornography? 3. Regardless of the state of our justice system, do you think it is fair to give the penalty of death...

Feminist and Critical Race Theory By: ABAD, Jayne Kathlyn V. ESPAÑOL, Joel Questions: 1. Should we give special privileges to pregnant women 2. Do you consume pornography? 3. Regardless of the state of our justice system, do you think it is fair to give the penalty of death to rapists? 4. Do you agree that the Western assimilation of Filipinos overseas is for mere survival? 5. Do you agree that the Filipino diaspora increased the internal racism in this country? Summary Sexism and racism have long been abhorrent facts of life. White males generally dominate political and legal discourse Challenges/Objectives: 1. It examines key elements of feminist legal theories; 2. Outlines the principal claims of Critical Race Theory.  Feminist legal theories Origins of feminism Four schools of thought for legal Outline feminism Critique of feminism Critical race theory I. Feminist Legal Theories (in general) Conventional Legal Theories tend to be gender-blind ○ Neglect, or even ignore the position of women ○ Condemns women and their experience to oblivion ○ Example: Ronald Dworkin’s liberal theory: “questions of membership and power are quite simply not on the theoretical agenda…” Response of the feminist jurisprudence? ○ Silence - Deafening ○ Reflected in the extraordinary impact not only in university courses, but on the law itself Key Questions ○ The role and function of the law - academic ○ Inequalities on the Criminal Law (Rape and Domestic Violence cases, Family Law, Contract, Tort, Property, and other branches of Substantive Law [public law and public international law) Literature for feminist legal theories is gargantuan Feminist Legal Theories (in general) Feminist writings are unashamedly polemical - expressing or constituting a strongly critical attack on or controversial opinion about someone or something ○ Focus is injustice ○ “The personal is political” A rejection of the ostensible radicalism of social movements Not one single voice “Difference Feminism” ○ Share a number of elements with Critical Race Theory ○ One element: Uneasiness with the dominance of white men Origins of feminism 1. Mary Wollstonecraft a. “A Vindication of the Rights of Woman,” 1792 i. First Feminist Manifesto 1. Addressed to a French Diplomat as the new French constitution being drafter excluded women for free education 2. Women were rational and thus able to perform civic duties 3. She did not maintain that this entitled women to exercise full political rights b. Early feminism did not pursue the right of political equality i. Egalitarian genesis of feminism - Replaced by broad and complex range of feminisms - Sharply antagonistic and yet intricately bound together Origins of feminism 2. Equality and Rationality Liberal Feminists “Other” feminists Equality of women as rational beings Regarded the claim of human rationality [in entails a single, undifferentiated, the context of women equality] as gender-neutral conception of citizenship neglecting the social and biological differences between the sexes - Such differences reduce women’s opportunities to exercise their political and legal rights - Ending women’s subordination does not end with the acknowledgement of equal rationality between the sexes, and hence establishing formal equality. - Rationality - a gendered claim, not an embodiment of a universal truth - Adoption to rationality - tantamount to accepting that a woman has a right to be like a man Origins of feminism 3. Essentialism - Enterprise of a feminist jurisprudence that seeks to obliterate women’s subservience must find an impartial concept of ‘woman’ in a society that adopts an oppressive view - Thus, rising to the difficulty of essentialism - reducing women to a universal essence and thereby overlook the particulars of female diversity - Example: Clitodirectomy/wearing of veils in Islamic societies? - Does a rejection of these practices rest on Western conceptions of gender oppression? - When these practices are tolerated, are feminists implicitly holding non-Western cultures to a lower standard? Origins of feminism - Ngaire Naffine - Per Naffine, “A person’s sex may not always be the most fundamental marker of either their oppression or advantage. Sometimes race, for example, might assume a greater priority and so a woman might feel a greater allegiance with a man of her own race than a woman from another.” - Feminist jurisprudence and Critical Race Theory - A recognition and rejection, of the preoccupation of feminists with a stereotypical white, middle-class, educated woman Origins of feminism 3. Essentialism (cont’d) - Dread of essentialism -> expression of highly personal accounts - by women of their experience of subordination - Fear of essentialism -> different form of essentialism - That the ‘true’ female predicament can be experienced only by working-class, black women - Presents a danger: It can entail a reluctance to condemn other cultural practices which harm women and consequently generate ethical relativism, rather than ethical vigour. 4. While there is a degree of dissonance between feminists, the arguments are subtle and elaborate - Four major schools of thought of feminist jurisprudence - designed to highlight the richness and intricacy of feminist legal theory - It should not be regarded as a complete or straightforward summary of feminist jurisprudence Four schools of Liberal Feminism Radical Feminism thought of legal Postmodern feminism feminism Difference feminism Liberal Feminism Liberalism ○ Importance of individual rights, both civil and political ○ Extensive sphere of personal freedom that ought not to be intruded upon by the state ○ Liberals such as Dworkin, Hart and Rawls the significance of liberty, equality, and individual rights Liberal Feminism ○ All Persons… Autonomous Right-bearing agents ○ The values of equality, rationality, and autonomy are accentuated ○ CENTRAL CLAIM: Since women and men are equally rational they ought to have the same opportunities to exercise rational choices Radical feminists: to argue on the basis of women’s similarity to men merely assimilates women into an unchanged male sphere. In a sense, the result is to make women into men. Liberal Feminism Resistance of the liberal feminist ○ Patriarchy existing in the legal and political system Central feature of the radical agenda ○ Prefer to wage war within the existing institutional framework of discrimination ○ Wendy Williams Prefers equal to differential treatment of women There are two choices available to women: to claim equality on the ground of similarity to men, or to seek special treatment on the basis of their essential differences Liberal Feminism The equality approach is the better one Great costs of the special treatment (Williams used pregnancy as a focal point) ○ Conceptualizing pregnancy as a special case permits unfavourable as well as favorable treatment of pregnancy. ○ Treating pregnancy as a special case divides us in ways that are destructive in a particular political sense as well as a more general sense ○ what appear to be special ‘protections’ for women often turn out to be, at best a double-edged sword. ○ Our freedom of choice about the direction of our lives is more limited than that of men in significant way Liberal Feminism Public-Private Division ○ One of the most crucial issues for liberal feminists ○ Demarcation of public and private spheres ○ The extent to which the law might legitimately intrude upon the ‘private’ is a recurring theme “One of the central goals of nineteenth-century legal thought was to create a clear separation between constitutional, criminal and regulatory law—public law—and the law of private transactions—torts, contracts, property and commercial law.” ○ Radical feminists have discerned the failure of the law to intrude into the home to address crimes of so-called ‘domestic’ violence on women Increasing regulation of the private sphere is an inexorable feature of the modern welfare state and hence of the actual subjugation of women ○ It assists the subordination of women by virtue of the fact that political equality is largely a function of the public sphere—one from in which women tend to be excluded Radical Feminism Catharine MacKinnon ○ Pre-occupation with difference Challenges the view that, since men have defined women as different, women can ever achieve equality Power - men dominate women, the issue is of power Radical Feminism Differences between men and women A good deal of this world is (according to Olsen) manufactured by males: ○ Phallocentric ○ Oppressive MacKinnon advocated for a ban on pornography for its depiction of women as sex objects MacKinnon does not repudiate the law as a vehicle of radical change The question [of equality] seems to be one of redefining woman, and seeking to explain and understand the world from her perspective Radical Feminism Resisting the charms of the law ○ Recurring theme in radical feminism ○ Reforming the law can satisfy the demands of women at work, in the home, or simply as human beings, is regarded as moot Equality as acceptance ○ Stresses the consequences rather than the sources of difference. Per Ann Scales: ○ “...The injustice of sexism is not irrationality; it is domination. Law must focus on the latter, and that focus cannot be achieved through a formal lens.” “Woman Question” ○ Seeks to expose other forms of the domination of women ○ Designed to identify the gender implications of rules and practices ○ Reveals the ways in which political choice and institutional arrangement contribute to women’s subordination Postmodern Feminism Reject the idea of the “subject” ○ Concepts such as ‘equality’, ‘gender’, and even ‘woman’ are treated with profound scepticism. So-called ‘essentialism’ is detected by postmodern feminists in the work of radical feminists Challenging existing distributions of power ○ Focus on gender equality and the conviction that it cannot be obtained under existing ideological institutional structures. ○ Overlaps with other critical approaches (Critical Legal and Critical Race Scholarship) “Imaginative Universal” ○ Created by Drucilla Cornell and Frances Olsen ○ Transcends the essentialism of real experience and enters the realm of mythology The maleness of law, the phallocentrism of society, are important themes in postmodern feminist writing Postmodern Feminism Feminist Legal Methods ○ Conceptualized by Katherine Bartlett in the analysis of practice of law by courts and lawyers a. Asking the “women question” - seeks to uncover “the gender implications of rules and practices which might otherwise appear to be neutral or objective.” b. Feminist practical reasoning - challenges the legitimacy of the norms of those who claim to speak, through rules, for the community c. Consciousness-raising - an interactive and collaborative process of articulating one’s experiences and making meaning of them with others who also articulate their experiences Positionality ○ recognizes the contingency of values and knowledge ○ rejects the perfectibility, externality of truth ○ conceives of truth as situated and partial Difference Feminism Rejects a sympathetic view of formal equality and gender Seeks to to uncover the unstated premises of the law’s substance, practice, and procedure ○ Difference feminists expose the diverse forms of discrimination implicit in the criminal law, the law of evidence, tort law, and the process of legal reasoning itself ○ An attack on the concept of “reasonable man” the male view of female sexuality deployed in rape cases, and the very language of the law itself Luce Irigaray ○ The written law is a law established for a society of men—amongst—themselves ○ The pretext of the neutral individual does not pass the reality test… ○ The exceptions to the rule or custom are not valid objections as long as society is for the most part run by men, as long as men are the ones who enact and enforce the law. Difference Feminism Equality is a more complex and ambiguous aspiration ○ Carol Gilligan’s seminal study, In a Different Voice: Psychological Theory and Women’s Development WOMEN MEN - tend to stress responsibility - emphasize rights - look to context - appeal to neutral, abstract notions of justice Women’s “ethic of care” ○ No one should be hurt ○ Morality of caring and nurturing identifies and defines an essential difference between the sexes ○ Critique: essentialism; treating these characteristics as natural when they are a consequence of male domination Difference Feminism Law in general, and rights in particular, reflect a male viewpoint characterized by objectivity, distance and abstraction MacKinnon: Abstract rights... authorise the male experience of the world Elizabeth Kingdom recommends abandoning the concept of rights as a means of pressing feminist claims in law Appeals to rights often conceal inadequate theories of law in respect of women’s social position ○ Tend to be essentialist Robin West ○ Woman has a discoverable natural essence ○ Maleness of the law derives from an assumption of separateness ○ Unlike men, women are more ‘connected’—through the biology of pregnancy, breastfeeding, and even sex Other Feminism List of other feminisms: ○ Marxist ○ Socialist ○ Existentialist ○ Structuralist Feminism ○ Post-structuralist ○ Deconstructionist ○ Linguistic schools Oppression of women plainly lends itself to a cornucopia of explanations and this is evident in the range of available theories Questions of biology, language, politics, and economics cannot simply be roped off and designated ‘male’ or ‘female’ Critique of Involves a range of internal and external perspective. Feminism INTERNAL CRITICISM Representation and Inclusivity Liberal vs. Radical Feminism Criticized for its focus on white, North Liberal Feminism: Criticized for potentially American perspectives, neglecting the overlooking systemic injustices experiences of black, lesbian, and working-class women… Radical Feminism; Expresses concerns about the acceptance of gender neutrality in the law  EXTERNAL CRITICISMS Universality of Feminist Legal Ethical Relativism and Efficacy of Law and Feminist Exclusivity and Utopianism Theory Contextualism: Legal Theory Failing to acknowledge the Potential mask for injustice; The legal system may not be the Exclusivity of feminist broader complexities of human potential for "positionality" to be most effective tool for achieving jurisprudence may defeat its experience and legal principles; misused and contribute to the social change and that feminist noble purpose; grand theories Feminist legal theory might not perpetuation of oppression legal theory might overestimate may not be as effective as more be applicable to all situations its power practical strategies, such as and may inadvertently outlawing sexual harassment, in marginalize other groups achieving real change.  An intellectual movement that emerged in the United States in the Critical Race late 1980s. It has been described as an heir to both Critical Legal Studies Theory (CLS) and traditional civil rights scholarship. ORIGINS AND INTELLECTUAL ROOTS Critical Race Theory (CRT) emerged as a reaction against the perceived deconstructive excesses of Critical Legal Studies ○ Law and legal institutions perpetuate racial inequality ○ This focus on race distinguishes CRT from CLS and aligns it with the legacy of traditional civil rights scholarship Conference held in Madison, Wisconsin in 1989 ○ "Outsider jurisprudence"/"jurisprudence of construction" Lived experiences and perspectives of marginalized groups CRT is characterized by several tenets that shape its analysis of race and racism ○ Race as a social construct ○ Systemic Racism ○ Intersectionality ○ Importance of Narrative ORIGINS AND INTELLECTUAL ROOTS Critical Race Theory (CRT) emerged as a reaction against the perceived deconstructive excesses of Critical Legal Studies ○ Law and legal institutions perpetuate racial inequality ○ This focus on race distinguishes CRT from CLS and aligns it with the legacy of traditional civil rights scholarship Conference held in Madison, Wisconsin in 1989 ○ "Outsider jurisprudence"/"jurisprudence of construction" Lived experiences and perspectives of marginalized groups CRT is characterized by several tenets that shape its analysis of race and racism ○ Race as a social construct ○ Systemic Racism ○ Intersectionality ○ Importance of Narrative CENTRAL THEMES OF CRT Critique of Liberalism ○ Color-blind policies and formal equality often fail to address the underlying structures of systemic racism Storytelling and Counter-storytelling ○ Importance of subjective accounts of racism in challenging dominant narratives and exposing the lived realities of racial inequality Revisionism ○ Legal reforms have often failed to achieve true racial equality and may even have served to perpetuate racial hierarchies Understanding Race and Racism ○ Understand the social and cultural roots of racism, exploring its historical development, its role in shaping social structures, and its impact on individual lives Structural Determinism ○ Examines how the structure of legal concepts and thought influences its content CENTRAL THEMES OF CRT Race, Sex, and Class ○ These factors combine to create unique experiences of marginalization and discrimination Anti-Essentialism ○ Challenges the notion of a monolithic "black community" or other racial groups Cultural Nationalism ○ Promoting the interests of racial minorities, examining the potential benefits and challenges of separatist movements Legal Institutions ○ Exploring the ways in which legal systems can be reformed to promote racial justice CRT AND THE FUTURE OF RACIAL JUSTICE Promotion of division, guilt, and victimhood ○ However, proponents maintain that it is essential for understanding and addressing the persistent problem of racial inequality in society. Understanding the complex and enduring nature of racism in law and society ○ Emphasis on systemic racism, intersectionality, and the importance of lived experiences CRT provides a crucial foundation for ongoing dialogue, critical reflection, and the pursuit of a more just and equitable society. CRT AND FEMINIST THEORY Dissatisfaction with mainstream legal theories that perpetuated dominant societal norms ○ Feminism - oppression of women ○ CRT - historical legacies of slavery, segregation, and the civil rights movement in the United States Kimberlé Crenshaw ○ Highlighted the need to address the limitations of mainstream feminist discourse, which often centered on white, middle-class, educated women ○ Challenges the view of discrimination ○ Urges a shift towards a more intersectional analysis that places the experiences of the most marginalized, particularly Black women, at the forefront CRT AND FEMINIST THEORY An illustration of these antinomies is set out in Table: CRT AND RADICAL FEMINISM PUBLIC-PRIVATE DIVIDE IN THE CONTEXT OF GENDER AND RACE RELATIONS Radical Feminists CRT Critique the public-private partition Views the public-private divide through a racial - perpetuating the reluctance of the law lens - Primarily reflects the experiences of a white to address crimes of domestic women violence against women - Portrayal of women as domesticated and passive = challenges faced by white, - this partition enables the systemic middle-class women oppression of women within their - Fails to capture the struggles of homes and fails to provide adequate economically disadvantaged black women who have historically worked outside the legal protection home - Challenges essentialist views - White-centric models of females, femininity, and sexuality =/= accurate representation of the diverse experiences of women, especially WOC CRT AND RADICAL FEMINISM Intersectional Analysis ○ Reveals how race intersects with gender to shape the experiences of women ○ CRT highlights the complexities of women's experiences and challenges essentialist narratives CRT AND POSTMODERNISM Involves a nuanced exploration of their shared and divergent perspectives on law, race, and social justice Shared critiques: ○ Both CRT and postmodernism challenge key ideas of the Enlightenment Individual rights, equality, and justice that are central to modernist thought ○ Postmodernism often rejects the Kantian concerns about individual rights and justice, reflecting a broader skepticism towards grand narratives and essential truths ○ Interrogates established norms and values within the legal system CRT unveils the underlying racism within the law postmodernist approaches to critique and subvert dominant narratives Engagement with Subjectivity and Legal Rights ○ Postmodernism - challenges the notion of the stable and coherent subject ○ CRT - navigates a more nuanced relationship with the concept of the subject within legal discourse ○ CRT scholars may utilize postmodern tools like deconstruction to unveil the racist foundations of legal systems CRT AND POSTMODERNISM Engagement with Subjectivity and Legal Rights (cont’d) ○ CRT acknowledges the importance of legal rights in the pursuit of equality and justice some scholars embracing modernist values of equality and rights within the legal context Ambiguity and Interpretation ○ Interaction between CRT and postmodernism gives rise to a certain ambiguity in CRT's theoretical framework CRT shares some critical perspectives with postmodernism It also maintains a commitment to addressing systemic racism and promoting equality through legal channels END!!! 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