Discovering Feminism...

At 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 commitment.
 
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 ...

Superficially 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 Act.
 
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

Mapping Feminism ...

It 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 ...'.


Reworking the Position of Women ...

To 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?


Acknowledgements

With 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 fire burning.

Notes

1. 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.

2. 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.

3. 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).

4. The problems of men working with feminist ideas and with feminists are explored in Jardine & Smith (1987).

5. 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 Olivier (1989).