Graham Ferris, External Supervisor NLS, https://www.ntu.ac.uk/staff-profiles/law/graham-ferris
Thoughts inspired by the 40th anniversary of the Feminism and Legal Theory Project
Feminist Approaches to State and Governance
December 15-16, 2023, Emory University School of Law, Hybrid Workshop
Do we need feminism now we have equal rights?
Well, yes, because feminism is about challenging unfair power structures and transforming our society to one that respects all its citizens, men, women, and children.
Radical, or revolutionary, feminism seeks the transformation of society rather than merely the improvement of the position of women in our current society. In the formulation of bell hooks:
“From the outset, there has been a struggle within the feminist movement between the reformist model of liberation, which basically demands equal rights for women within the existing class struggle, and more radical or revolutionary models, which call for fundamental change in the existing structure so that models of mutuality and equality can replace old paradigms.”
It was to advance radical feminism that the Feminism and Legal Theory Project was launched 40 years ago. This December it is holding a workshop at Emory University in Georgia USA that is asking big questions about the law, the state and the contributions a feminist legal theory can make to our discussion, and politics, and lives.
One well known contribution comes from Vulnerability Theory a legal theory set out by Martha Albertson Fineman. Several scholars at NTU have used this theory to highlight problems faced by legal students, academics, and young lawyers. NTU hosted a workshop on Vulnerability Theory and academic labour in 2019 which led to a special issue of The Law Teacher in 2021. But why do we need a feminist legal theory?
Legal theory enables us to conceptualise society as a structure in which individual agents act, injustice might dwell at the structural level, or derive from the actions of individuals, or both. One aspect of legal theory is the identification of the sources of injustice. Identification of injustice that stems from patriarchal assumptions, practices, institutions, and ideologies is a major concern of a radical feminism. However, it has another aspect, one usually described as the concern with distributive justice.
As we have been reminded by scholars such as Michael Sandel the State distributes or redistributes not just economic assets but also symbolic or honorific assets. Thus, on the positive side the state awards honours (in the UK knighthoods, OBE's, peerages etc); it recognises bravery (through medals, citations, and awards); it invites people or companies to prestigious events; it reproduces the words of people as exemplary. On the negative side the state makes some conduct criminal (anti-social behaviour orders); through its spokespeople it describes conduct, or even status, as shameful or worthy of condemnation (illegal immigrants); it presents misfortune as being the result of blameworthy behaviour (a lifestyle choice). The state also, through public regulation and endorsement and funding, endorses the distribution of honours by non-state organisations, such as schools and universities and sporting bodies. Such reforms as the recognition of gay civil partnership and gay marriage had major impact in the symbolic realm.
Justice in distribution and redistribution is therefore about more than simply economic assets, the focus of most discussions of distributive justice. As we have been reminded by scholars such as Hannah Arendt, power is also distributed, as is power’s ugly sibling control over the means of violence. These three processes are conjoined, honour justifies disproportionate material rewards, and disproportionate power and influence. Material success justifies honour and access to power. Power permits the appropriation of material assets and honour.
Radical feminism requires an articulated programme of distributive justice theory.
As Arlie Russell Hochschild pointed out in The Time Bind: When work becomes home and home becomes work:
“The more women and men do what they do in exchange for money and the more their work in the public realm is valued or honoured, the more, almost by definition, private life is devalued and its boundaries shrink. For women as well as men, work in the marketplace is less often a simple economic fact than a complex cultural value.”
The demands and rewards of the workplace render the home and family a devalued and bothersome distraction, because reproductive labour is not honoured or rewarded. Many of us in our lives have taken on and internalised state and social valuations and allowed them to profoundly influence our lives.
We feel the pressures of this distribution of honour – and dishonour – as our own private failings and struggles. We need feminism to identify the fact that family and work balance is not a personal life-style choice, but is structured by public and market forces in ways that are badly suited to people. When we start to flail, then we are seen as failing. Whilst in reality - and under vulnerability theory - we are all vulnerable, in our public discourse “admitting” to vulnerability is seen as weakness and failure. We need to break out of the thought traps of our dysfunctional system.
Society is structured and those structures must be challenged if feminism is to realise its radical promise. We can use non-state organisations and institutions in this process. However, the state is our collective institution for governance, coordination, and public valuation of activities. Collectively we have created it to do our will and the state is a powerful set of institutions that can distribute honour, resources and power.
We still need feminism because the world is still being run on assumptions and power relations that are unjust and all too often inhumane.
You can register for the workshop here:
Further Reading:
Graham Ferris, ‘Undermining resilience: how the modern UK university manufactures heightened vulnerability in legal academics and what is to be done’ (2021) 55 The Law Teacher 24 (not open access)
Graham Ferris, ‘Law-students wellbeing and vulnerability’ (2022) 56 The Law Teacher 5; open access at : https://www.tandfonline.com/doi/full/10.1080/03069400.2021.2005347
Jane Ching, Graham Ferris, and Jane Jarman, ‘To act is to be committed, and to be committed is to be in danger’: the vulnerability of the young lawyer in ethical crisis’ (2022)
25 Legal Ethics 44; open access at: https://www.tandfonline.com/doi/full/10.1080/1460728x.2022.2111153
bell hooks, Where We Stand: Class Matters (Routledge 2000),
Iris Marion Young, Justice and the Politics of Difference (Princeton University Press 2011)
Amartya Sen, The Idea of Justice (Penguin 2010)
Arlie Russell Hochschild The Time Bind: When work becomes home and home becomes work (Metropolitan Books 1997)
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