I read a journal article yesterday from the Harvard Law Review, (Vol 103, February 1990, No.4:829), by Professor of Law at Duke University, Katherine Bartlett. It has been 24 years since the article was written; yet it reflects very cogent and relevant themes for the feminist historian/legal theorist in 2014.
Bartlett argues that methodological issues matter because methods shape one’s view of the possibilities for legal practice and reform. She argues that it is important to consider how certain elements of existing legal doctrine disadvantage women and other minorities and she rejects the difference between the so called male reasoning, which is apparently abstract and deductive, with so called female reasoning, which is concrete and contextualised.
Legal methods, argue Bartlett, place a high premium on predictability, certainty and fixity of rules, where as feminist legal methods suggest that the existing rules overrepresent our current power structures, place a higher value on rule flexibility and the ability to find and illuminate missing points of view.
In this article, Bartlett employs a philosophical approach, suggesting that the theory of knowledge is a starting point for questioning the validity and underlying assumptions inherent in the law. Theory of knowledge, (or epistemology) is a branch of philosophy that is concerned with the nature and scope of knowledge. In employing epistemology and applying it to legal reasoning we have to ask ourselves such questions as: What is knowledge? From where do we get our knowledge? How are our beliefs justified? How do we perceive the world around us? Do we know anything at all?
The Stanford University Encyclopaedia of Philosophy explains it thus: “Defined narrowly, epistemology is the study of knowledge and justified belief.” Of course Bartlett is approaching the study of epistemology from the feminist viewpoint and applying her knowledge to substantive legal reasoning. She supports her claims via reference to a number of interesting cases which raise important questions about what is equitable, (if indeed we can say that something is unequivocally “equitable”) and how the facts of a case may be perceived by the varied actors, due to their diversity of experience.
Bartlett commences with a criticism of the use of labels, such as “feminist” or “woman.” She contends that in using such terms we may in fact be reinforcing what we, as feminists, are seeking to abolish; the “stigmatization of women.” However, Bartlett accepts that these labels are useful “as gender remains a category that can help analyse and improve our world.” (Bordo: Feminism 1990).
Essentially, a feminist, or a feminist lawyer will approach law in the same way as any other lawyer. They will examine the facts of a legal issue/dispute; they will identify the core features of those facts, determine which legal principles should be applied and ultimately, apply the selected principles to the facts. However, Bartlett suggests that a feminist lawyer might also apply “the woman question” and feminist practical reasoning. In law, argues Bartlett, the “woman question” will require us to make enquiries as to whether women have been left out of consideration and if found to be so; how might the omission be corrected and what difference might it make to the outcome if it were to be corrected?
In law, posits Bartlett, “asking the woman question means examining how the law fails to take into account the experiences and values that seem more typical of women than of men…and how existing legal standards and concepts might disadvantage women.” Bartlett refers to such ideas as the early exclusion of women from practicing law, the preference given to males in matters of the administration of estate (see Reed v Reed, 404 U.S 71 (1971), statutory rape law (see Michael M v Superior Ct., 450 U.S. 464 (1981) and workplace discrimination against women who are pregnant, (see Geduldig v Aiello, 417 U.S. 484 (1974). Bartlett rightly cites that feminists are split over whether women have more to lose than to gain from singling out pregnancy for different treatment, however, the essence of the argument is thus: “what are the consequences for women of specific rules or practices?”
The questions Bartlett raised in 1990 are still being debated in society today. Why, for example does the defence of consent in rape cases focus on the perspective of the defendant and what he “reasonably” thought the woman wanted, why is the conflict between work and family responsibilities considered a private matter to be resolved by (mainly women), within their respective families, rather than a public matter involving restructuring of the workplace? What is suggested is that in asking the “woman question”, we are revealing how the position of women reflects the organisation of society, as opposed to the inherent characteristics of women themselves.
Bartlett is certainly not suggesting that a better method to approaching the law would be to impose arbitrary or unjustified constraints, such as requiring a judge or decision maker to decide in favour of all female claimants. In contrast, Bartlett argues that by asking the “woman question” a justifiable relationship to legal substance is established. The judge needs only to search for gender bias and to “reach a decision in the case that is defensible in light of that bias.” What the application of the “woman question” seeks to illuminate is disadvantage based upon gender. By asking these questions we are not imposing any substantive consequences, unless it is found that the law is not gender-neutral.
Bartlett is not oblivious to the question of race or socio-economic status within her approach. In asking the “woman question”, we are often utilising a category of women that is exclusionary, because it treats “as universal to women the interests and experiences of a particular group of women – namely white and otherwise privileged women.” Bartlett refers to the work of Spelman (Inessential Women 1988), who says that in speaking of “women”, the speaker should name explicitly which “women” she means. Essentially, Bartlett is arguing that we need to go outside of the narrow model of simply asking the “woman question” and open ourselves up to see the broader elements of discrimination or exclusion, (and their possible impact upon the law). She asks: “What assumptions are made by law (or practice or analysis) about those whom it affects? Whose point of view do these assumptions reflect? Whose interests are invisible or peripheral? How might excluded viewpoints be identified and taken into account? In approaching these questions from an epistemological viewpoint, we have to ask ourselves the question; can we ever recognise oppression that we ourselves have not experienced? Bartlett is convincing where she posits that unity is possible only when feminism’s underlying assumptions speak the truth for many and not just a privileged few.
Carol Gilligan, (In a Different Voice 1982), argues that females approach the reasoning process in a different manner than do males. Accordingly, they are more sensitive to situation and context and more apt to reject universal principles and generalisations. Bartlett explores these themes through a discussion of what she terms a “feminist discussion of practical reasoning.” According to Bartlett the feminist version of practical reasoning combines aspects of “a classic Aristotelian model of practical deliberation with a feminist focus on identifying and taking into account the perspectives of the excluded.” The idea is that problems are approached as dilemmas with multiple perspectives, contradictions and inconsistencies and that via this application new facts will present opportunities for improved understandings, (which can then be applied to the law).
Bartlett postulates that practical reasoning tends to “favour less specific rules or standards, because of the greater leeway for individualised analysis that standards allow.” Bartlett is not suggesting that practical reasoning in law reject rules, simply that “rules leave room for new insights and perspectives generated in new contexts.” According to the legal realist view, “rules allow a certain range of manipulation,” where as practical reasoning demands more than just “some reason” for a decision; there must be an actual reason. The existence of “rules” does not imply that the judge or decision maker should bear less responsibility for their decision, but rather, that they have choices available to them, and they must make their choice and go on to defend it.
Law is, by necessity, situated in a context of practices and values (Burton: Symposium 1989). Law making will always reflect, to some degree, our collective past and our community norms, however, Bartlett suggests that feminists have considered the concept of community a problematic one, as the law has tended to reflect existing structures of power and ultimately, no one community can legitimately speak for all others. Despite these arguments, Bartlett is not suggesting that feminist practical reasoning is the polar opposite of the “male deductive model of legal reasoning.” All major forms of legal reasoning, argues Bartlett, “encompass processes of both contextualisation and abstraction.” The identification of a legal problem, selection and application of precedent, all require an understanding of the details of the case and how they relate to one another. When the details change, so will the rule and its application.
Accordingly, “feminist practical reasoning deems relevant facts related to the women question – facts about whose interests particular rules or legal resolutions reflect and whose interests require more deliberate attention.” Bartlett uses the example of a marital rape case and suggests that in applying feminist legal reasoning, she may determine that it is relevant that the wife did not want sexual relations on the day of the alleged rape by her husband. Feminist rationality acknowledges greater diversity in human experience, thus opening up the distribution of power.
Bartlett refers to the 1981 Supreme Court case, State v Smith (85 N.J. 193, 426 A.2d 38) and the rejection of the defendant’s marital-exemption defence. I will not go into the details of this case, but suffice to say it calls into question the history of exemption, the surrounding social and legal context, and the particular actions of the defendant, (which include that fact that he and his wife were separated and that he broke into her apartment in the middle of the night, beat her and forced her to have sexual intercourse). The martial exemption argument was found to have no relevant foundation in the period under question (1981). Further justifications put forward by the counsel for the defence included a woman being the “property of her husband or father”, the concept of the husband and wife as being “one person” and the justification that “a wife consents to sexual intercourse with her husband”, (presumably, upon taking her marriage vow). The Smith case is typical of many judicial opinions that interpret the common law and statutes by delving deeply into historical and policy considerations (Eisenberg: The Nature of the Common Law 1988). Bartlett makes use of this particular case as it demonstrates a useful model upon which feminist practical reasoning can usefully build.
The facts in a case before a judge or decision maker do not just present a problem to be solved, but rather, give the judge instruction about what the means and ends of the law ought to be. Bartlett rightly questions that if a judge were to be faced with an abstract question of whether marital exemption to rape should be available to husbands who have separated from their wives, most judges will not immediately bring to mind a case where the estranged husband breaks into the wife’s home, beats her and forces sexual intercourse upon her. The concrete facts of Smith help to inform judges about the practicalities of legal rules. Further, Bartlett argues that the case aptly shows how the practical reasoning approach respects, but does not blindly adhere to legal precedent.
Bartlett makes two suggestions regarding the usefulness of feminist practical reasoning and legal decision making. She says that “if one assumes that methods can and should screen out political and moral factors from legal decision making, then practical reasoning is not an appropriate mode of legal analysis”. On the other hand, she says that “if one assumes that one neither can nor should eliminate political and moral factors from legal decision making, then feminist practical reasoning is relevant”, as it seeks to make the political (and moral), more visible. The first suggestion, it is argued, disadvantages women. If women are disadvantaged by a hidden bias, then legal reasoning that exposes and opens up debate concerning the underlying political and moral considerations is welcome.
Bartlett argues that much of the legal reform that has benefitted women has come about through expanding the lens of legal relevance to encompass the missing perspectives of women. Very convincingly, Bartlett suggests that by applying feminist practical reasoning to a case, we ensure the continued expansion of the “woman perspective”. Bartlett goes on to introduce her third argument, hypothesizing that consciousness raising has consequences for both the law and decision making. Bartlett theorizes that consciousness raising challenges the concept of knowledge. Here, her argument falls into an epistemological line of debate, where one questions “rightness”, how we will know when we have “it” “right” and what it means to be “right”. Accordingly, if one states that “being right means having discovered some final, objective truth based in a fixed physical or moral reality, then verification is impossible.” In contrast, if being right means that “one has expressed one’s personal tastes or interests which have no greater claim to validity than those of anyone else, then being right is a rhetorical device used to assert ones own point of view and verification is pointless.”
Bartlett goes on to explore feminist explanations of what it means to be right in the law, looking at a range of positions that have emerged within feminist theory. Feminists, she says, operate from a rational/empirical position that assumes that the law in not objective and that through identifying and correcting mistaken assumptions, it can be made more objective. Bartlett makes specific reference to state laws designed to address the possible disadvantages experienced by pregnant women in the workplace. She defers to Estrich who has argued that a correction of certain factual inaccuracies can better achieve the purposes of rape law and she refers to feminists who argue that particular reforms in child custody law would “more rationally meet the laws express purpose of protecting the best interests of the child.”
What is important to Bartlett’s argument, is that all of the examples she refers to share the premise that “knowledge is accessible and when obtained, can make the law more rational.” It is important to note that empirical or rational arguments tend to challenge the existing societal assumptions about reality. Case in point being the stereotyping of women in our society. However, what Bartlett is really trying to persuade her reader of, is the “problem of knowability”, that what women know has been determined by male culture. Bartlett makes reference to standpoint epistemology, which seeks to make the viewpoint of women the standard point of departure. Simply spoken; Bartlett suggests that “feminist standpoint epistemology identifies the woman’s status as that of victim, and then privileges that status by claiming that it gives access to understanding about oppression that others cannot have.” Holistically, by experiencing victimhood, truths are revealed about reality that the non-victim cannot possibly see.
Bartlett contends that standpoint epistemologists impose too broad a view of gender and “tend to presuppose too narrow a view of privilege.” Bartlett disagrees with the notion that victimhood gives a “special access to truth,” arguing that whilst victims clearly know something of victimization that non-victims do not, the position of others, (passive by-standers, co-victims, even victimizers), also yields a certain “special knowledge” that those who seek to end oppression must understand.
Further to the argument on perspective, it does not account for women having varied interpretations, (even those women who are similarly situated). Bartlett goes on to break down one argument for this, which suggests that the hold of patriarchal ideology limits feminist consciousness and causes a “false consciousness,” which Bartlett also rejects. Importantly, Bartlett sees standpoint epistemology as adversarial: the victims (“we”) stand in stark contrast to others (“they”); men are evil, corrupt and irredeemable, conspiring to protect male advantage and to perpetuate the subordination of women (MacKinnon: Sexuality 1989).
Whilst not emphatically stating that the aforementioned theories are wrong, Bartlett suggests that these adversarial positions hinder feminist practice, rather than advancing it. What Bartlett advances is that women and men, “in different but interrelated ways, are confined by their gender.”
In contrast, the postmodern critique questions the possibility of knowledge, including knowledge about “categories of people, such as women.” Where standpoint epistemology relocates the source of knowledge from the oppressor to the oppressed, the postmodern critique “rejects essentialist thinking as it insists that the subject, including the female subject, has no core identity but rather is constituted through multiple structures and discourses that in various ways overlap, intersect and contradict each other” (Alcoff: Cultural Feminism 1988).
Referring to the critical studies movement, Bartlett suggests that projects situated in the critical studies field have argued that “not only law itself, but also the criteria for legal validity and legitimacy, are social constructs rather than universal givens.” Further, she writes, “although the postmodern critique of foundationalism has had considerable influence on feminist legal theory, some feminists have cautioned that this critique poses a threat not only to existing power structures, but to feminist politics as well.”
Why is any of this relevant? Because, argues Bartlett, feminists need a theory of knowledge that affirms and directs the construction of new meanings. Feminists must be able to deconstruct and construct knowledge. In essence, this all leads to Bartlett’s theory of positionality. Positionality is a stance from which a number of apparently inconsistent feminist “truths” make sense. In line with standpoint epistemology, “positionality retains a concept of knowledge based upon experience.” What is special about positionality however, is that it rejects “perfectibility, externality, or objectivity of truth and instead conceives of truth as situated and partial. The premise is that the truth is partial and no individual can understand except from some limited perspective. To put it plainly; no one’s truth can be deemed total or final and the only way in which we can increase out knowledge is via extending our limited perspective.
“To be sure, I cannot transcend my perspective; by definition, whatever perspective I currently have limits my view. But I can improve my perspective by stretching my imagination to identify and understand the perspectives of others.” (Smith: Contingencies of Value 1988).
As an example; Bartlett refers to feminists who oppose restrictive abortion laws being compelled by positionality to “make an effort to understand those whose views about the sanctity of potential human life are offended by the assertion of women’s unlimited right to choose an abortion”, or in the case of feminists who debate a legal alternative of joint custody at divorce, “positionailtiy compels appreciation of the desire by some fathers to be responsible, co-equal parents.” Bartlett is not suggesting that positionality is a strategy of process and compromise that seeks to reconcile all competing interests, (nor does she suggest that you need to accept other points of view as your own “truth”), she does, however, urge her reader to impose upon themselves a twin obligation to make commitments based on the current truths and values that have emerged from methods of feminism, but also to be open to previously unseen perspectives that might come to alter these commitments.
From Bartlett’s positional stance, “any resolutions that emerge are the product of human struggle about what social realities are better than others.” If there is such a thing as ultimate or objective truth, Bartlett argues, then we can never, in our own lifetime, be absolutely sure that we have discovered it.
Positionality compels feminists to make constant efforts to test the extent to which they project their experiences upon others, (even if they do so without intention). According to Bartlett, “from the positional stance, I can attain self-knowledge through the effort to identify not only what is different, but also what I have in common with those who have other perspectives.” This effort becomes a “foundation” for further knowledge. (Cornell: Toward a Modern/Postmodern Reconstruction of Ethics 1986).
Overall, Bartlett contends that all three of the methods she discusses in her article; (asking the “woman question”, feminist practical reasoning and consciousness raising), are enhanced by positionality. Bartlett writes that:
“positional understanding requires efforts both to establish good law and to keep in place, and renew, the means for deconstructing and improving that law. In addition to focusing on existing conditions, feminist methods must be elastic enough to open up and make visible new forms of oppression and bias. Reasoning from context and consciousness-raising are self-renewing methods that may enable continual new discoveries. Through critical practice, new methods should also evolve that will lead to new questions, improved partial insights, better law, and still further critical methods.”
The goal of feminism (and feminist legal theory), argues Bartlett, is to be involved with others in a critical and transformative process, where by we seek further knowledge through considering the perspectives of others, in turn, gradually expanding our own limited perspective. In so doing, we may affect change in the law that is beneficial for all.