ArticlesVolume 2, Number 1 (1992)

Feminist Theory in Law: The Difference It Makes

Abstract

This essay is a consideration of the feminist project in law and two con- temporary legal feminist approaches to the historical construction of women as “different”-a characterization that has had implications in regard to the way in which women are understood as objects and subjects of law. These competing feminist responses are based on similar conclu- sions about women’s uneasy relationship to law as well as to other institutions of power in our society. They differ, however, in their analyses of the nature and extent of the difference between women and men and the conceptual and theoretical implications of differences.

Until fairly recently, legal feminism was primarily an equality-based strategy, which assumed no legally relevant differences between men and women. This emphasis was perhaps determined by the many ways in which the law historically both facilitated and condoned women’s exclusion from the public (therefore, overtly powerful) aspects of society. Difference was the rationale and the justification for this exclusion which was based on the belief that women’s unique biological role demanded their protection from the rigors of public life. It was no surprise, therefore, that when significant numbers of women began to make inroads into public institutions such as the law, they sought to dismantle the ideology which had excluded them-assimilation became the goal and equality the articulated standard.