school (progressive, co-ed), when I decided I wanted to he a lawyer, the
careers mistress said told me it was not a career for a woman. At 13 it
was my first direct experience of discrimination. I decided to go ahead
despite her advice and as a challenge. I had formulated an idea, I don't
know on what it was based, that many women clients, particularly in family
law cases, would prefer a woman lawyer. I tried this idea out on friends
but they thought it improbable. No one in this progressive school credited
my wish, as a woman, to be a lawyer.
I read law at university with a strong sense of having decided to become
a lawyer despite being a woman and because of being a woman, I also knew
that I wanted to be a radical lawyer. In the early 1970s the beginning
of the law-centre movement had given a profile to the idea of 'lawyers
for the people'. The combination of personal anger and political commitment
which motivated me I later found was common among the feminist lawyers
I met and worked with after I graduated. The struggle for the right to
make our own choices, moving against the stereotypes imposed upon us,
matched with a sense of wanting to improve conditions for others as well
as ourselves, seem to me to be the foundation of feminism,
Feminism is rooted in the experience of our own lives. It is not a political
programme or an academic study, but it can produce both. It is not one
creed or philosophy. But some try to claim that they have the true feminism.
It is not a movement or a party. But when one woman begins to name herself
she will find others with whom she identifies in a common experience and
Feminism begins in our own biographies. I cannot begin to talk to you
by constructing an abstract rendition of feminism, neither can I simply
presume it and write of women in law. I have to begin with our own origins,
experiences and expectations. What brings us together in this book is
working with law. To make gender relations visible I have to address primarily,
but, importantly, not exclusively, women and the position of women.
Women in Law ...
things have changed remarkably since I was an undergraduate. Women now
represent not only c 50 per cent of law undergraduates but also c 50 per
cent of those taking professional examinations and are far more visible
in both branches of the profession. We have our first Court of Appeal
judge and first Law Commissioner. In universities and polytechnics women
form a good proportion of the staff. There are even some professors who
are overt feminists. Law courses are taught with such titles as women
and law, gender and law, and feminist perspectives on law. Feminism is
a recognised presence in the more progressive law schools. It would seem
that both as women and as feminists we have begun, in the words of the
Irish President, lawyer and feminist Mary Robinson, to move on from rocking
the cradle to rocking the system. However, the full picture is more complicated
and attempting to unravel the many threads highlights the problems and
paradoxes of rocking either cradle or system for contemporary feminists.
The increasing number of women entering law has to be placed against what
the Equal Opportunities Commission has (infuriatingly) referred to as
women's 'under-achievement'. Even taking into account the time-lag following
the rise in women entrants, proportionally women are under-represented
in the top ('high fee-earning? jobs. The Law Society has become concerned
not only with this uneven profile but also with figures which show that
the number of women leaving the profession is out of proportion to men.
In the last decade the declining number of school-leavers entering the
labour market led to a climate in which it was not only acceptable but
seen as imperative to encourage women into key sectors of employment and
keep them there. Feminist Pressure for flexible employment patterns and
provision for childcare became matched and strengthened by an incremental
concern with employment figures.
For the immediate future women seemed to have a great deal to look; forward
to: we were gaining not only formal equality but a recognition of our
needs and concerns as carers. However, the year 1990/1 has begun to throw
this picture into confusion. After a period of boom, particularly in the
south-east, the recession has hit a large number of firms and the Bar.
Significant numbers of young lawyers have been made redundant. While the
profession deals with retrenchment and restructuring, flexible work patterns
and subsidised childcare are now seen by some as a luxury we? cannot afford.
The terms of the debate have been set by the market economy. The boom
seemed to make possible so much we had fought for on the basis of principle
but had won on the basis of good economic practice; the recession makes
the frailty of this even more visible.
We have to be aware of structural limitations and not be easily persuaded
by superficial improvements. How far can we achieve real change within
the present socioeconomic, political structure? Our economic system is
based on a market economy; the extent to which this places constraints
on change must be realised but equally cannot be used to ignore or belittle
the potential for improvements now, Even within a market system we are
able to ask questions about what we are willing to pay for and subsidise.
A commitment to allowing women (and men) to combine career and caring
requires a financial contribution that must be borne by all earners. Even
within our present economic and political structures there are fundamental
choices to be made. Constructing those choices depends on our ability
to create an agenda.
The climate of demands and expectations for us as lawyers is set as soon
as we begin to study law (Rifkin,1985; Bottomley,1987). It is as undergraduates
that we are initiated into the possibilities and limitations of law and
lawyering. Unless and until gender issues are taken seriously in academic
institutions, nothing will change. Look around you - to What extent do
you see an active questioning of gender and legal relations in your law
courses and among your colleagues?
Courses which use feminist material are too often simply subject areas
deemed to be about women - most obviously family law. Even in these courses,
when standard texts do refer to feminist material it is often introduced
with a health warning against taking the arguments too far. Courses using
feminist materials are usually taught by women, taken by women, and are
presumed by our colleagues to be simply about women. A lecture on feminism
may be given on other courses but is often seen as 'a lecture' and given
by a woman lecturer invited in. The so-called core courses still ignore
(with some notable exceptions) the rich seam of material available that
would raise key issues usually rendered invisible in the subject area
leg, Pateman,l988). Feminism has not really penetrated law schools; in
some law schools it is now tolerated, in most it is ignored or, at best,
marginalised. In as far as it is tolerated it is those aspects of feminism
which most fit the prevailing orthodoxy that are encouraged and given
credence by patronising male colleagues.
Recognising the fit between aspects of feminism and the prevailing orthodoxy
is important. For many feminism is simply about women's rights. The emphasis
on 'women' and on 'rights' are examples of a double bind - it is both
right and terribly wrong. To concentrate on these is to presume that the
problem for women is simply to achieve the benefits which men have; this
presumes that all is basically right with the world if only we had equal
access to it. ?'his suits the prevailing political orthodoxy and the commonly
held assumption that feminism is simply about giving women more chances
rather than radically challenging men's lives as well. Feminism does insist
on women's rights but equally calls for a fundamental questioning of the
basis of our social order.
However, it is the struggle against discrimination which is the easiest
concept for most people to identify with. This is not surprising - not
only is it in the living memory of our mothers and grandmothers that overt
discrimination was a regular feature of their lives, but the modern history
of women's rights has to a great extent centred on the demand for equality.
The nineteenth century resounds with battles against discrimination -
exclusion from education and the professions, exclusion from the right
to vote and to hold property. The culmination of this struggle was finally
marked by the passing of the 1975 Sex Discrimination Act and Equal Pay
The struggle for formal equality cannot be belittled - it was strongly
fought over and each victory important. For many of our sisters in other
countries the battle is still central to their agenda. We are privileged
in the sense that we can afford to see the very constraints of the ideas
of discrimination and equality. This is not to dismiss them as unimportant
but rather to place them within a broader agenda and a more profound analysis
of gender divisions. Equality means simply and only the right to be treated
in the same way and given the same opportunities as those who already
have them - in the case of gender equality the right to be treated as
men, as if men are the norm and as if the present organisation of social
relations is all we aspire to.
To recognise both the benefits and limitations of a formal equality programme,
and that one aspect of feminism fits neatly into an extension of orthodoxy,
allows us to understand why some sections of the left critique feminism
as being simply a liberal programme. It is true that some feminists seem
to go no further than a formal equality argument or to concentrate on
this, but it is a fundamental misconception to equate feminism with no
more than an extension of liberalism. It is too easy for those who already
have the privileges of formal equality, and the benefits of structural
inequality, to belittle the efforts of feminists to extend and use the
tools and strategies that are available to improve women's position here
and now. Further, for some contemporary feminists there is an attraction
in taking the ideas of equality and discrimination and really pushing
them to the limits - looking if you like for a radical programme of 'true'
equality and truly tough anti-discrimination strategies that go far beyond
the ideas and practices of orthodox liberal traditions.1
is difficult to try to define the different elements of feminism, and
the differences between them, with brevity. I have already indicated one
stream, of liberal-feminism, but this label is often used pejoratively
and at best covers a wide range of differences.
In England, a major influence within feminism, unsurprisingly given our
political heritage, has been Marxist theory and/or socialist commitment
and practice. A great deal of literature in the 1970s and early 1980s
was addressed to the question of the relationship between the politics
and practices of the left and the women's movement. Unravelling the positions
that were hammered out at this time is difficult, but simply we can identify
one stream of feminism that is concerned with continuing to examine contcmporary
legal discourse as an aspect of state and class relations. For some this
led on to an argument about the specificity of women's oppression; the
model of a materialist analysis became one way to analyse the exploitative
relations between men and women. Interestingly, in two examples (Delphy
in France and MacKinnon in the United States), beginning with a Marxist
model of class and state relations and moving then to an account of gender
relations led them to posit theories in opposition to a Marxist explanation.
Delphy remains a classic materialist in her concern to give special priority
to economic relations between men and women (she has particularly looked
at the marriage contract) but MacKinnon was more radical and moved on
to argue that the fundamental relation between the genders is based on
the exploitation of sexuality and that men bring to, and derive from,
that exploitative relationship not simply power but the power of violence
(she has written on rape, pornography and sexual harassment).
At this point we have moved away from forms of analysis identified with
Marxism or socialism and towards work which tends to be associated with
the term radical feminist: but again this needs to be handled with care.
For some it does mean identifying men or maleness as the main enemy, for
others such language is crude and there major divisions in both theory
and strategies. What holds radical feminism together is a concentration
on relations of sexuality, power and violence. What divides is an argument
about origins and consequently about the possibilities for change.
Within this framework both marxist-fcminist and radical-feminist positions
attempt to understand causes. Put another way, it is about trying to find
a model to explain the reasons as well as describe the effects; for most
this model is found in patriarchy. The actual use of the term differs
considerably between theorists but at its simplest it is used to explore
relations of power and exploitation between men and women. Problematically,
it seems to suggest that not only can a final explanation be found but
further that it will be found in material conditions.
A concern that such a search might be too essentialist began to emerge
among feminists in the 1980s.'This fitted with trends in academic work
as well as, to a great extent, mirroring the 'crisis on the left': people
began to question whether one final reason could ever explain a complex
web of social relations. Many feminists began to feel easier with the
term patriarchal relations, used descriptively, rather than patriarchy."2
Paradoxically, at the same time as theory seemed to be loosening up in
terms of building models, many (intellectual) feminists became influenced
by ideas of gender differences in the use of language and modes of reasoning.
This created a new equality/difference argument focused on the concept
of a phallocentric society, concerned with the way in which language,
symbols and modes of representation construct and utilise the masculine
as the norm and the feminine as 'the other', the outside and the fatal
allure of all things dangerous.3
This was a rediscovery not simply of the vulnerability of women but of
the fear men have of the female, drawing on psychoanalytical material
as well as work on language. For some this became another form of structuralism,
for others it is placed within a context of postmodernist thinking which
is attractive because of the basic critique it offers of any form of essentialism.
The paradox is that at each extreme the insistence on looking at the very
deep divide in the way in which men and women think and understand their
worlds seems to provoke the fear that it will either lead back into structuralism
or, equally problematically, fall into a relativism :hat would make any
form of decisive action impossible. I can share this concern, particularly
when I look at some aspects of the intersection between feminism and postmodernism.4
However, for feminists the grounding of any theory must come back to the
combination of lived experience with a commitment to change. For that
reason feminists are now strongly involved in debates about a revival
of (for want of a better term) ethics: a language and mode of reasoning
which allows us to make judgements and take stands leg, Braidotti,l991)
without being caught in the claim to final truths.
I have attempted this brief mapping exercise to expose the care needed
when dealing with the term 'feminism'. We need to understand the different
streams, and at the same time realise that it is often difficult to separate
them. Some feminists do associate themselves With specific positions and
the way in which they deal with legal issues is explained by this. Socialist-feminists
often work within the area of labour relations, whereas radical-feminists
often deal with issues of sexual violence in criminal law. Understanding
differences in this sense is important but we should not overdraw them.
Some feminists are quite eclectic and see it as valid to draw on different
aspects and strategies, recognising that what holds feminists together
is their radical questioning of gender relations. In terms of work on
law, what is important is the constant reworking of 'strategies now' with
a utopian vision, which keeps open and alive debates within feminism and
between feminism and other radical critiques. Feminism can never be reduced
to a series of external-to-feminism reference points; it cannot be gauged
by simple judgement of one of its many aspects. It is the voice of women
saying 'but ...'.
the Position of Women ...
return to the Equal Opportunities Commission and specifically the question
of women lawyers: if women are under-achieving, is this evidence of our
failure to live up to the challenge or perhaps evidence of continued discrimination
which eventually wears us down? Perhaps it is evidence of the quality
of life we aspire to and, in the case of committed feminists, believe
worth fighting for. In other words, we may be unwilling to be judged on
how we lead our lives in terms that were designed by men." 5
Are you willing to work all hours of the day? Are you willing to indulge
in tactics and modes of argument that run contrary to your instincts as
to what is right and fair? Are you willing to defend an accused rapist,
and if so will you be willing to use the classic tactic of attacking the
victim? Are you willing to help a husband hide his assets to Protect them
against the claims of a wife? Are you willing to play law as men play
games - a game of strategy in which to win is all? Do you want to have
children? Do you have someone to look after them when they are sick? Do
you want to be more than simply a success at your job? Are you willing
to be frightening to men? Are you prepared for the sexual allure that
many men manage to read into a business suit or, even better, black robes
... (think of the images of women lawyers in film, LA Law and other media
representations). Realise that men, many men, have real difficult~ in
dealing with you as an equal ... and do you want that anyway?
Yes, it is a cheap trick. I have posed a series of rhetorical questions
and chosen extreme examples as well as commonplace ones. But all these
issues have come up over and over again when I have talked with women
friends. For feminists this dilemma is more acute because we are so much
more aware of it - that it is our double bind. We wanted to be lawyers
despite and because of being women. We realise that the fundamental struggle
is still very much with us and takes us both back into our role as lawyers
as well as beyond it. My careers teacher was so wrong and so right. It
is that paradox that feminism has to engage with. Can we, will we, when
and how will we rock the system?
thanks to those who read, commented, cajoled and helped me understand
the mysteries of writing on a new magic screen - Bclinda and Derek Meteyard,
Christopher Stanley and Andy Dart. To Gian Giuliani for keeping a home
It is important to distinguish between different political traditions.
The radical-liberal position is popular among certain Americans (eg, Eisenstein,
1988) and often written from an academic background in Political theory
leg, Pateman, 1988). It is also recognisable in some of the Scandinavian
work; notably Dahl (1987). For an argument about the need to recognise
the juridico-political base see Gibson (1990). I would add to this the
need to recognise the academic discipline women bring to their work.
This movement is visible in Smart's work - from a concern with the missing
dimension (1976), through an argument: that patriarchy as a system only
benefiting men doesn't exist but important aspects of male privilege do
and therefore 'relations' is a better term (1984), to a preference for
an analysis of power relations based on Foucault (1989, 1991). Interestingly
she increasingly dismisses law as a dangerous power game which can offer
nothing to women, whereas in 1984 she was open to the argument that law
can offer a number of strategies for the improvement and defence of women's
position. The use of closed models is very visible in her work - at present
a closed model of law which, I would argue, is as Problematic as a closed
model of patriarchy.
The influence of such ideas is visible in eg Gibson (1990) and Young (1990).
For an introduction to some of the basic themes see Jardine (1987).
The problems of men working with feminist ideas and with feminists are
explored in Jardine & Smith (1987).
It is fundamental to me, as a feminist, to argue that the present advantages
which accrue to men are nothing compared to the denial and warping that
individual men undergo to conform to the image of the masculine. The future
project must be about the radical transformation of the lives of both
genders and of relations between them. This can only be to the advantage
of all of us although the loss of male privilege will not be easy for
most men to face. (What an understatement! Even the most radical men I
know can still hardly glimpse the extent and depth to which they hold
and use power; let alone begin to struggle with it.) For some clues see