ELEMENTOS DE SOFTWARE DEL CARLIKE DESARROLLADO EN

Feminist jurisprudence began with an attempt to cure

women's obscurity and even invisibility in the law. This

was reflected in the "women and the law"^ approach of the

1970s, an approach that soon demanded a shift in methodolo­ gy as it became evident that to "add women and stir" was inadequate, frequently functioning only descriptively and

rarely prescriptively.^ These attempts were nevertheless

helpful initially, as they drew attention to women and put some of their concerns on the political agenda, being particularly instrumental in the early development of discrimination doctrine.^ However, carried to its logical conclusions, the approach often proved problematic because

See generally, e.g., Su s a n At k i n s a n d Br e n d a Ho g g e t t,

Wo m e n a n d t h e La w (1984); Karen Offen. Feminism and Sexual

Difference in Historical Perspective, in Th e o r e t i c a l Pe r s p e c­

t i v e s ON Se x u a l Di f f e r e n c e (Deborah Rhode, ed. 1990) ; Wendy

Williams, Equality's Riddle: Pregnancy and the Equal

Treatment/Special Treatment Debate, 13 N.Y.U. Re v. L. So c.

Ch a n g e 325 (1984) .

See, e.g., Wishik, To Question Everything, supra

note 3, at 67-68 (mere inclusion is not the goal of

feminist jurisprudence).

See generally Rh o d e, Ju s t i c e a n d Ge n d e r, supra n o t e 20, at ch. 5, 81-107.

as the sameness vs. difference and special treatment vs. equal treatment debates often evolved, women (along with what had been labeled "feminine" values) were often left judged by both male (biologically speaking) and masculine

(socially speaking) standards.^

The next wave of feminist analyses sought to overcome

the limitations of its predecessors by shifting

epistemological and methodological focus. Feminists found

themselves unable to ignore methodology, having learned that challenging existing power structures with the same methods that defined those structures risked recreation of

different, but equally illegitimate frameworks.^ Includ­

ed in these second-stage approaches have been relational or cultural feminism's "celebration of difference,"^ radical

This dilemma is well reflected in the debate surrounding the quest for ratification of the Equal Rights

Amendment to the U.S. Constitution. From 1972 when the

U.S. Senate and House of Representatives passed the amend­ ment until the 1982 state ratification deadline, the campaigns for and against ratification often focused upon

gender difference rather than upon gender

disadvantage/hierarchy, conferring more importance upon

formal rights than upon cultural context. See generally

Rh o d e, Ju s t i c e a n d Ge n d e r, supra note 20, at 63-80, 306-307.

See also, e.g., El i z a b e t h Wo l g a s t, Eq u a l i t y a n d t h e Ri g h t s

OF Wo m e n (1980) ; Elizabeth Schneider, The Dialectic of Rights

and Politics : Perspectives from the Women's Movement, 61

N . Y . U . L . Re v. 589, 634-35 (1986) [Schneider, Dialectic of

Rights and Politics]; Lucinda Finley, Transcending Equality Theory: A Way Out of the Maternity and the Workplace Debate, 86 Co l u m. L. Re v. 1118 (1986); Ann E. Freedman, Sex Equality, Sex Difference and the Supreme Court, 92 Ya l e L.J.

913 (1983); Lacey, Beyond Neutrality, supra note 18, at 6;

Catherine MacKinnon, Excerpts from MacKinnon/Schi afly

Debate, 1 La w & In e q u a l i t y: J. Th e o r y & Pr a c. 341-42 (1983) ;

Wendy Williams, The Equality Crisis: Some Reflections on

Culture, Courts and Feminism, 7 Wo m e n's Rt s. L. Re p. 175 (1982) .

28

1 1

.

See Bartlett, Feminist Legal Methods, supra note

^ See generally, e.g., Ca r o l Gi l l i g a n, In a Di f f e r e n t Vo i c e (1982) [hereinafter Gi l l i g a n, Di f f e r e n t Vo i c e]; Carrie Menkel-

Meadow, Portia in a Different Voice: Speculations on a

Women's Lawyering Process, 1 Be r k e l e y Wo m e n's L.J. 39 (1986);

feminism's gendered hierarchy/dominance framework,^ and the public-private (market-family) dichotomy.^ Other less prominent analyses have included mostly variations on and even combinations of these themes.^ A few, however, merit

Constitutional Adjudication, 12 Va . L . Re v. 543 (1986); West,

Jurisprudence and Gender, supra note 13.

See generally, e.g., Rh o d e, Ju s t i c e a n d Ge n d e r, supra

note 20, at 1-6, 81-86, 305-21 (specifically preferring the term "gender disadvantage" to MacKinnon's "gender domi­ nance") ; Ca t h e r i n e Ma cKi n n o n, To w a r d a Fe m i n i s t Th e o r y o f t h e St a t e

(1989) [hereinafter Ma cKi n n o n, Fe m i n i s t St a t e] (constructing a theory of gender hierarchy and dominance) ; Ca t h e r i n e Ma cKi n n o n, Fe m i n i s m Un m o d i f i e d: Di s c o u r s e s o n Li f e a n d La w (1987) [hereinaf­

ter Ma cKi n n o n, Fe m i n i s m Un m o d i f i e d] . See also Marie Ashe,

Mind's Opportunity: Birthing a Postructuralist Feminist Jurisprudence, 38 Sy r a c u s e L. Re v. 1129 (1987) [hereinafter

Ashe, Mind's Opportunity].

See generally, e.g., Su s a n Mo l l e r Ok i n, Ju s t i c e, Ge n d e r

AND THE Fa m i l y (1989) [hereinafter Ok i n, Ge n d e r a n d Fa m i l y];

Ka t h e r i n e O ' Do n o v a n, Se x u a l Di v i s i o n s i n La w (1985) ; Nadine Taub

and Elizabeth Schneider, Perspectives on Women's Subordina­

tion and the Role of Law, in Th e Po l i t i c s o f La w: A Pr o g r e s s i v e

Cr i t i q u e 117 (David Kairys ed., 2d ed 1990) ; Ca r o l e Pa t e m a n, Th e

Se x u a l Co n t r a c t (1988) ; Nancy Dowd, Work and Family: The

Gender Paradox and the Limitations of Discrimination Analysis in Restructuring the Workplace, 24 Ha r v.C.R.-

C.L.L . Re v. 79 (1989); Elizabeth Fox-Genovese, The Legal

Status of Families, 77 Co r n e l l L. Re v. 992 (1992); Jane E.

Larson, The Sexual Injustice of the Traditional Family, 11

Co r n e l l L. Re v. 997 (1992) ; Fran Olsen, The Family and the

Market: A Study of Ideology and Legal Reform, 96 Ha r v. L.

Re v. 1497 (1983) [hereinafter Olsen, Family and Law],

See also Ma r i l y n Wa r i n g, If Wo m e n Co u n t e d (1988); Su s a n

At k i n s a n d Br e n d a Ho g g e t t, Wo m e n a n d t h e La w, ch. 6 (1984) ; Regina

Graycar, Hoovering as a Hobby: The Common Law's Approach

to Work in the Home, 28 Re f r a c t o r y Gi r l 22 (1985) ; Sylvia Law,

Women, Work, Welfare and the Preservation of Patriarchy,

131 U . P A . L . Re v. 1249 (1983).

One exception might be that stated by Robin West, who asserts that both radical feminists and cultural feminists implicitly embrace some version of what she calls

a "connection thesis." This thesis is that "[w]omen are

actually or potentially materially connected to other human

life [while m]en aren't." West, Jurisprudence and Gender,

supra note 13, at 14. West identifies this in cultural feminism's emphasis upon women's subjectivity, their value of intimacy, and their capacity for nurturing and care of

"others" to whom they are connected. She identifies this

independent mention, such as Tove Stang Dahl's "women's law", which incorporates what she calls realist, experien­

tial method and social science.^ Others include a social

injury approach, discussed primarily by Adrian Howe, but also included within the work of many other writers/* and a standpoint/positionality approach, generally advocating consciousness raising and legal narrative or story-telling as method, and focusing on women's experience to inform

solutions.* The categories are not static, and the doc­

trinal combinations are seldom simple.*

the female body. Id. at 15.

Furthermore, some commentators have found merit in both systems of thought, finding them not necessarily to be

mutually exclusive. Jenny Morgan at the University of

Melbourne has written that both Gilligan and MacKinnon are correct— the former because theory about women's different approaches to problem solving validates the feelings many women have had about legal education and practice, and the latter because she doubts that women are inherently differ­ ent in their approaches to decision making and is skeptical that women would embrace such an ethic of caring if they

really had a choice. See Jenny Morgan, Feminist Theory as

Legal Theory, 16 U. o f Me l b o u r n e L. Re v. 743 (1988) .

* See generally To v e St a n g Da h l, Wo m e n's La w— An In t r o d u c­

t i o n TO Fe m i n i s t Ju r i s p r u d e n c e (R.L.Craig, trans. 1987); Tove

Stang Dahl, Taking Women as a Starting Point, 14 In t'l J. o f

So c'y o f La w 239 (1986) (addressing feminist perspectives

within the tradition of black letter law). See also Agnete

Weis Bentzon, Comments on Women's Law in Scandinavia, 14

In t'l J. o f So c'y o f La w 249 (1986) ; Smart, Feminist Jurispru­

dence, supra note 1, at 1 (commenting upon Dahl's work). * See generally Howe, 'Social Injury' Revisited, supra note 2; Mari Matsuda, Considering the Victim's Story, infra note 129.

* See generally Ma r t h a Mi n o w, Ma k i n g Al l t h e Di f f e r e n c e:

In c l u s i o n, Ex c l u s i o n a n d Am e r i c a n La w (1990) ; Bartlett, Feminist

Legal Method, supra note 11; Mari Matsuda, When the First Quail Calls: Multiple Consciousness as Jurisprudential Method, 11 Wo m e n's Rt s. L. Re p. 7 (1987) ; Patterson,

Postmodernism/Feminism, supra note 16.

* An example of the complimentary nature of these

various theories and analyses can be seen in Catherine

MacKinnon's work. Although I categorize her as a radical

To better understand these primary theories and how each has contributed to the shaping of a broader, more comprehensive feminist jurisprudence, further consideration

is necessary. Additionally, viewing all these various

phases of development and feminist theories along a time line is useful for assessing their roles and significance in the development of a feminist jurisprudence.