Female voices in manly courts

Unspeakable Subjects
April 30, 1999

The essays in this collection are modified versions of papers that explore questions of law and gender, primarily from the perspectives of feminist and critical legal theory. The main title of the work refers to the notion, stemming from the poststructuralist critique of language, that the repressed have no voice, that what is different is unspeakable. The implication of this critique, given the assertion by many feminists that women are marginalised and silenced, is that in speaking, women are engaging in the impossible. One of the achievements of this book is to speak the unspeakable. Another is to show how it is possible, and why it is important to do so.

The collection is organised into two parts. The first focuses critically on liberal individualism. One set of criticisms revolves around the conception of the paradigm subject of law and considers the feminist argument that, far from being neutral, it is gendered and that its characteristics are associated with the masculine. A second set focuses on theories of justice and on the concept of equality in liberal thought. Women, it is said, have not been well served by liberalism. Its focus on the individual, abstracted from social context, means that issues such as family responsibility and the division of labour are left out of account. Liberalism, for example, is blind to the inadequacies of state welfare provision, and of formal equality for women generally, in the context of material inequality and power differentials.

The second part explores feminist methodology. The essays address the question of what kind of project feminist legal theory should undertake and examine the relationships between feminist legal theory, critical legal studies and socio-legal scholarship.

The book's scope is broad, covering issues such as group rights, the welfare state, pornography and sex in the context of sexual offences. The essays traverse some well-trodden ground, but only to establish the frameworks within which Nicola Lacey develops her arguments. She draws on a range of theoretical orientations. And while the subject matter of the essays is diverse, a number of themes and perspectives is discernible.

A dominant perspective is that of "difference feminism", which, Lacey argues, poses a significant challenge to conventional legal scholarship. She is, however, critical of some of its central claims. She asserts that the feminist version of the liberal subject is to some extent exaggerated; that feminists are in danger of being seduced by, and so overestimating the relevance of, their analysis of legal doctrine in terms of gendered binary oppositions such as mind/body or public/private; and that greater contextualisation within law can lead to stigmatisation and exclusion. Communitarianism is also subjected to Lacey's criticism. She points to the oppressive and exclusionary potential inherent in communitarianism and evident in community justice. Yet Lacey is careful to avoid simply trashing the theoretical approaches with which she engages, arguing, for example, for a reconceptualisation of normative concepts such as rights and equality.

It is the possibility of reconceptualisation and also Lacey's insistence on distinguishing between political and reformist tasks that appear to open the most significant avenues of exploration for feminism. The project of "normative reconstruction" is, she suggests, an important one, and she draws on the work of Drucilla Cornell, premised on the openness of language, to show that it is not an impossible task. Meaning is never closed, and the possibility of alternative meanings, and so of speaking the unspeakable, can be discerned in discursive gaps. Moreover, Lacey argues, the project of normative reconstruction should extend to legal theory and law.

While some feminist commentators have espoused postmodernism as the only tenable theoretical stance, Lacey advocates rejecting the modernist/postmodernist dichotomy and looks to the interpretivist method of communitarianism as promising a way forward. And while some question the utility of fighting within the legal arena, Lacey rightly contends that the argument that law is unreconstructible is contradicted by the constructionism that informs legal theory. But, she says, engagement with law as opposed to politics must be premised on the reconstruction of economic, political and social relations, for legal reform in advance of such change may have negative implications.

This is a densely written, scholarly collection that offers valuable insights to those interested in political and social theory. In particular, it offers hope to those feminist scholars who might see themselves as poised between the modernist and postmodernist projects, uncertain of which way to jump.

Felicity Kaganas is lecturer in law, Brunel University.

Unspeakable Subjects: Feminist Essays in Legal and Social Theory

Author - Nicola Lacey
ISBN - 1 90136233 7 and 34 5
Publisher - Hart
Price - £25.00 and £15.00
Pages - 3

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