By Reason of Their Sex Feminist Theory Postmodernism and

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BY REASON OF THEIR SEX FEMINIST,THEORY POSTMODERNISM AND JUSTICE. Tracy E Higginst,Introduction 1537,I Gendered Legal Categories Drawing Lines and Re. creating Boundaries 1541,A Legitimating Difference The Search for a. M etanarrative 1541, 1 Separate Spheres and the Law of the Creator 1542. 2 Social Facts and Legal Norms 1544,3 Sex Gender and Biological Difference 1550.
B By Reason of Their Sex Defining Equality,Recognizing Misogyny 1554. II Feminist Theory and the Challenge of,Postmodernism 1560. A Identity Politics and Internal Conflict 1560,1 Telling Woman s Story 1563. 2 Questioning the Stoyteller 1569, B Pregnancy Abortion and the Crisis of Authority 1573. III Gender Contested Postmodemism As Solution or,Dissolution 1579.
A Embracing the Postmodern The End of,Innocence 1580. B Feminist Epistemology Telling Better Stories 1587. Conclusion 1594, t Associate Professor of Law Fordham University School of Law A B 1986. Princeton University J D 1990 Harvard University I would like to thank Deborah Denno. Jill Fisch Martin Flaherty James Fleming Abner Greene Robert Kaczorowski James. Kainen Maria Marcus Michael Martin Frank Michelman Russell Pearce Linda Sugin. William Treanor and Georgene Vairo for helpful comments and suggestions I am also. grateful to my research assistants Helena Dolan Carolyn Goodzeit and Robye Shaw I. especially thank PeterYu for his thoughts his editing and his encouragement Portions of. this Article were presented at the Feminism and Legal Theory Workshop at Columbia Uni. versity School of Law in December 1993 and at the 1993 Law and Society Annual Meeting. in Chicago My research was supported by a summer grant from Fordham University. 1995 FEMINIST THEORY 1537, Nothing can serve as a criticism of a final vocabulary save another. such vocabulary there is no answer to a redescription save a re. redescription,Richard Rorty PrivateIrony and Liberal Hope. Woman must put herself into the text as into the world and into. history by her own movement,Hlne Cixous The Laugh of the Medusa2.
INTRODUCTION, Woman is a troublesome term in feminism and in law 3 The. category is neither consistently nor coherently constituted in linguis. tic historical or legal contexts Yet the framework through which wo. men have sought and gained improvements in their legal. economic and social status depends upon the ascription of meaning. to the term Each claim under the Equal Protection Clause or civil. rights statutes implies an affirmative though perhaps unstated. redescription of the category Feminist theorists in turn offer alter. native redescriptions of the term as a critique of categories within. both law and feminism As multiple redescriptions of woman com. pete for acceptance in law and in feminist legal theory the question of. the authority of the descriptive voice arises Wherein lies the legiti. macy of any particular claim about woman Is there a transcendent. truth a metanarrative 4 of sexual difference that is a narrative that. exists outside of contingent historical notions of gender against. which we may measure the validity of such a claim If not upon what. basis are we to choose among competing redescriptions. Both the Supreme Court s jurisprudence of gender and feminist. legal theory have generally assumed that some identifiable and de. 1 Richard Rorty PrivateIrony and Liberal Hope in CoN iNcENCv IRONY AND SOLIDARY. 2 H1lne Cixous The Laugh of the Medusa in NEW FRENCH FEMiNISMS 245 Elaine. Marks Isabelle de Courtivron eds 1981, 3 Judith Butler recently made a similar observation see JUDrrH BUTLER GENDER. TROUBLE vii ix 2 3 1990 but it has been at the core of much feminist theory throughout. this century Virginia Woolf commented on the troubling nature of woman as reflected in. the interest men have shown in defining her making her the most discussed animal in the. universe VIRGINIA WooLu A ROOM OF ONE S OwN 39 1931 Similarly two decades. later Simone de Beauvoir asked What is a woman and proceeded to explain the trouble. created by any particular answer to that question SIMONE DE BEAUVOIR THE SECOND SEX. xv xvi 1953 Feminists more recently have suggested that to ask the question What is a. woman is itself to invite trouble See BUTLER supraat 3 LUCE IRiGARAY THIS SEX WHICH IS. NOT ONE 78 Catherine Porter trans 1985 It is the inevitable asking and answering of. this question in law that is the subject of this Article. 4 Lyotard uses the term metanarrative or metadiscourse to refer to the legitimat. ing explanation of truth claims for example the Enlightenment metanarrative in which. the hero of knowledge works toward a good ethico political end universal peace See. JEAN FRANCOIS LYOTARD THE POSTMODERN CONDITION A REPORT ON KNOWLEDGE xxiii xxiv. Geoff Bennington Brian Massumi trans 1984,1538 CORNELL LAW REVIEW Vol 80 1536. scribable category of woman exists prior to the construction of legal. categories For the Court this woman whose characteristics admit. tedly have changed over time serves as the standard against which. gendered legal classifications are measured For feminism her exis. tence has served a different but equally important purpose as the sub. ject for whom political goals are pursued To the extent that the. definitions of the category diverge the differences among definitions. are played out in feminist critiques of the Court s gender jurispru. dence and occasionally in the Court s response to those critiques. Despite such differences both the Supreme Court and its femi. nist critics have largely treated the analysis of gender categories as a. problem of accuracy For the Court the validity of gender classifica. tions depends upon their correspondence to a set of gendered norms. that the Court accepts as true or real or in some sense independent of. legal categories The response of feminist legal theorists to this analy. sis has been either to challenge the Court s conclusions about the ac. curacy of the correspondence 5 or more recently to challenge the set. of norms against which the gender categories are measured 6 Neither. response displaces the Court s basic construction of the problem as. one of assessing the accuracy of a particular account of gender differ. ence Indeed feminist efforts to offer truer or better stories of wo. men s experience and to justify those stories through feminist. method assume that there is an underlying truth to be told. To the extent that these legal accounts of gender both main. stream and feminist endeavor to assess the accuracy of gender catego. ries they represent a mode of argument that tracks foundationalist or. objectivist assumptions about knowledge 7 That is their authority or. persuasiveness rests upon their perceived correspondence to a reality. that exists independent of legal discourse 8 These accounts depend. 5 See e g Wendy W Williams Equality s Riddle Pregnancy and the Equal Treatment. Special Treatment Debate 13 N Y U REv L Soc CHANGE 325 1984 85 challenging the. Court s treatment of pregnancy as gender difference and arguing that pregnancy should. be understood in a gender neutral functional way, 6 See e g CATHARINE A MACKINNON FEMINISM UNMODIFIED DiscouRsEs ON LIFE AND. LAw 32 45 1987 noting the way in which discrimination doctrine c onceal s the. substantive way in which man has become the measure of all things. 7 Foundationalism may be defined simply as the attempt to find some sort of ground. ing for our ultimate truth claims The rejection of foundationalism has a long pedigree. but has been perhaps most fully elaborated by Richard Rorty in PHILOSOPHY AND THE MIR. ROR OF NATURE 1979 Rorty explains the quest for foundations as the desire to get. behind reasons to causes beyond argument to compulsion from the object known to a. situation in which argument would be notjust silly but impossible To reach that point. is to reach the foundations of knowledge Id at 159. 8 I do not mean to imply that the legal arguments discussed in this Article necessarily. reflect a commitment to a foundationalist theory of knowledge Indeed I wish to distin. guish my analysis of legal discourse from a broader philosophical critique of epistemology. This Article does not attempt to address the philosophical debate over the nature of rea. son Instead it explores the implications for legal analysis of constructing arguments pre. 1995 FEMINIST THEORY 1539, therefore upon the identification of secure foundations for gender.
knowledge that are in some sense free of historical political or social. contingency Such modernist 9 or objectivist assumptions have been. under attack for decades within the academy 10 More recently leftist. legal critics have borrowed the insights and tools of antifoundational. ist philosophy to call into question law s claim to rationality and legiti. macy Even more recently some scholars have begun to question. whether the postmodern 12 or antifoundationalist view of knowledge. as contingent promotes or threatens progressive social movements. such as feminism whatever its usefulness in challenging the validity of. existing legal norms 3, mised on objectivist assumptions about gender Cf Daniel A Farber Legal Pragmatismand. the Constitution 72 MINN L Ray 1331 1334 1988 suggesting that floundationalism. has been the prevailing style of recent constitutional scholarship. 9 I define modernism loosely as a form of thought that seeks to create a general. theory about the representation of nature in the mind The modernist or foundationalist. theory of representation provides a cross cultural and trans historical account of truth and. rationality that in turn serves as a basis for social criticism See Roarv supranote 7 at 131. 10 Within continental philosophy see e g JAcQuEs DEmDA OF GRAMMATOLOGY 6 65. Gayatri C Spivak trans 1976 LYOTARD supra note 4 Within the Anglo American tradi. tion see e g THOMAS S KUHN THE STmucruRE OF SciENric REVOLUTONS 2d ed 1970. RoRT supra note 7, 11 See e g Clare Dalton An Essay in the Deconstruction of ContractDoctrine 94 YAu LJ. 997 1985 Gerald E Frug The Ideology of Bureaucracy in American Law 97 HIAv L REv. 1276 1984 Mark G Kelman Trashing 36 STAN L REv 293 1984 Joseph William. Singer The Player and the Cards Nihilism and Legal Theory 94 YAE LJ 1 1984. 12 Postmodernism is a disputed term one not susceptible to simple definition For. the purposes of this Article I am concerned with the relationship between ideas and social. practices and particularly with postmodernism s denial that ideas exist apart from the prac. tices in which they are embodied SeeLYoTARD supranote 4 at xxiv defining postmodern. ism as incredulity toward metanarratives In addressing the utility of. antifoundationalism to legal arguments I discuss both self described postmodernists such. as Lyotard and philosophers who reject the term such as Richard Rorty See Richard. Rorty Feminism and Pragmatism in 13 THE TANNER LEcruRES oN HuMAN VALUES 1 13 n 18. Grethe B Peterson ed 1992 explaining that he is not fond of the term postmodernism. but conceding certain similarities between his positions and those of Lyotard. 13 CompareJohn Stick Can Nihilism Be Pragmatic 100 HARv L Rxv 332 399 1986. arguing that scholars should stop focusing on questions of methodology and instead. address questions of social change and social justice directly and Lynn A Baker 9ust Do. It Pragmatismand ProgressiveSocial Change 78 VA L REv 697 1992 arguing pragmatism. is of little use for achieving progressive social change with Mar J Matsuda Pragmatism. Modfied and theFalse Conscioumess Problem 63 S CAi L Ray 1763 1763 64 1990 arguing. that pragmatism has the potential to empower the least powerful social groups Martha. Minow Elizabeth V Spelman In Context 63 S CAi L REv 1597 1601 1990 arguing. for contextual understanding of the issue and rejecting arguments that such an ap. proach risks powerlessness or political paralysis Dennis Patterson Postmodernism Femi. nism Law 77 ComELL L Rrv 254 1992 arguing that feminist jurisprudence cannot. afford to ignore the lessons of postmodernism Margaret Jane Radin The Pragmatistand. the Feminis4 63 S CAL L Ray 1699 1699 1700 1990 suggesting that pragmatism rather. than a general theory provides the only solution for feminists in a world of nonidealjus. tice Joseph W Singer Property and Coercion in Federal Indian Law The Conflict Between. Criticaland ComplacentPragmatism 63 S CAL L REv 1821 1821 22 1990 arguing that for. 1540 CORNELL LAW REVEW Vol 80 1536, Rather than addressing the abstract critique of reason that is at. the heart of the postmodernist project this Article attempts to link. the critique of epistemology implicit in that argument to the more. immediate issue of the utility of the postmodern position to feminist. legal theory I am less concerned therefore with law s broad claims. of objectivity and rationality than with the ways in which those claims. affect particular legal arguments Thus this Article does not address. the possibility of objectivity in a philosophical sense but the conse. quences for legal theory of adopting objectivist modes of argument. Whatever the epistemological status of knowledge claims about gen. der when those claims are translated into the legal realm they as. sume a regulatory function Thus while feminist philosophers debate. the status of rationality and objectivity 14 the critical question for femi. nist legal theorists is not a metaphysical one but a practical one when. this Article were presented at the Feminism and Legal Theory Workshop at Columbia Uni versity School of Law in December 1993 and at the 1993 Law and Society Annual Meeting in Chicago My research was supported by a summer grant from Fordham University 1536

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