Feminist legal theory

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The ‘essentialism’ critique has posed a serious challenge to Feminist Legal Theory. Can the challenge be overcome? The importance of feminism to legal theory as a whole is, and always should be, the highlighting of hidden social and legal norms that society and legal scholars ignore behind a façade of neutrality. The problem for feminism as a foundationalist attack on the assumptions of law, rather than law in itself, is its status as a ‘social movement that radically challenges existing hierarchies’[1]. The main problem of a ‘movement’ such as feminism is that they are generally their own worst enemies in that seeking to replace existent norms they put in place ones that have just as many hidden dialectics as the previous norms. In many ways feminist legal theory has never quite been sure of itself, there is an underlying dissatisfaction with the treatment of women in society generally but no clear way forward. Grosz[2] pointed out that feminist legal scholars who had initially fought for equality quickly discovered that equality merely meant equality at male standards and had to swap equality-discourse for autonomous-discourse, namely an adherence to liberal principles of self-determination for women and men to create their own experiences. In the initial stages of this realisation the feminist ‘movement’ seemed to falter at the enormity of the iceberg of which they had discovered the tip. The current critiques of feminism fundamentally question the aim and possibility of any concept of feminism just as they discovered with equality, the question this work fundamentally attempts to answer is whether there is any potential for redemption of feminist theory. The problem is that a theory can only reach a certain abstraction before it becomes of any use, Minow has argued the anti-essentialist critique of feminism points out the ‘un-stated reference points that hide from view a preferred position and shield it from challenge by other plausible alternatives’[3] have been uncovered within feminism. This means that the enormity of the task that was facing feminists when challenging merely the male reference points within law has increased exponentially in constructing a sensible view of feminism, however a subject such as this was always going to be ripe for a post-modern critique. It is as well to understand the fundamental arguments at stake and begin to fully articulate what we mean by the critique of essentialism and it’s meaning for feminist accounts of law. The idea of essentialism can be fundamentally described as ‘the notion that there is a monolithic ‘women’s experience’ that can be described independent of other facets of experience like race, class and sexual orientation’[4]. The use of meta-narratives is a common tool within all western legal theory and is supposed to have come from much of enlightenment thought, the fundamental idea of the enlightenment was that humans could describe and comprehend their own existence without reference to a God. This desire in rational scholars to reduce theories to meta-narratives has been exposed in recent years by scholars that wish to show how these meta-narratives have inherent assumptions that underpin them.

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