Angela Livingstone
JD Candidate, 2019
“If a unitary “women’s experience” or “feminism” must be distilled, feminists must ignore many women’s voices…In feminist legal theory, the pull of the second voice, the voice of abstract categorization, is still powerfully strong.”
– Angela Harris, 1990[1]
Feminists continue to face external and internal criticism. To those outside, we are subversive man-haters, insatiable, hardline extremists.[2] More concerning, however, are the criticisms from the women within, women who have become disillusioned with the potential of feminism to go beyond establishing formal equality for “the sisterhood.” Here, feminists are criticized for a myopic focus on gender as the primary source of oppression, leaving them unresponsive to other relations of power.
Feminist legal theory is not immune to these criticisms. Feminist legal scholars and practitioners are frequently accused of simply adding the category of “women” into the existing legal framework, effectively replacing the voice of the objective, rational man with that of an objective, rational (white, straight, middle class) woman who claims to speak for all.[3] The experiences of women who do not fit this normative framework are ignored, the women themselves betrayed, and ultimately unmoved by the pleas of feminist legal theorists to join the cause.[4]
Yet feminist legal theory has transformative potential. Feminist legal scholars work to destabilize presumed impartiality in applying the law, drawing attention to the barriers women continue to face.[5] And as legal professionals, feminists are best positioned to shift the culture of legal practice, and to address systemic discrimination and poor representation both within the profession, and with respect to the society the profession serves.[6]
In a very real sense, then, the quotation by Angela Harris is confounding. Three key questions emerge. First, why are feminist legal theorists drawn to what Harris refers to as the second voice? Second, whose voices are ignored when the second voice speaks loudly, and why does this matter? And third, is it necessary to distill a unitary “women’s experience,” or can we accommodate difference while moving forward as distinctly feminist legal theorists and practitioners?
Why are some feminist legal theorists drawn to the second voice?
The second voice is the abstract voice of objectivity that animates our allegedly impartial legal system.[7] Feminists have challenged the ability of this voice to speak for women, but rather than unpacking assumptions about objectivity in the law, this challenge has often amounted to simply replacing the objective male voice with an objective female.[8] The power of this voice comes from the compelling arguments that it can advance, arguments that demand better representation or equal rights for women. While rhetorically useful, these arguments generally result in formal, rather than substantive equality gains because they are practically divorced from real women’s lives. The female second voice is also intimately tied to gender essentialism, the idea that there is a universal women’s experience with oppression, and that this experience can be understood independently of other social relations of power.[9] Arguably, not all gender essentialism inevitably requires the permanent transcending of difference; however, unquestioned, self-protecting gender essentialism is highly problematic.[10] Without being open about the categories we are strategically employing, without critically examining all relationships of power, and the points at which they intersect, it is easy to frame white, middle class women’s experience as objective truth, and thus to speak with the second voice.
Who is ignored by the second voice, and why does this matter?
Relying on the second voice ignores the lived realities of the vast majority of women, severely limiting the transformative potential of feminist legal theory. Insisting on an objective knowledge based on a shared experience of gendered oppression, “perpetuates the visibility of only certain women” in the legal framework, silencing those who do not fit the norm.[11] For example, in discussions concerning systemic violence against women, the stories of non-white, poor, or transgender women are often not heard, even though these women are more likely to experience gendered violence.[12] Similarly, mainstream conversations about rape culture say little about the unique effect of rape culture on the lives of Indigenous women.[13] As well, focusing on gender as distinct from other relationships perpetuates a legal fiction tied to the idea that it is possible to compartmentalize the multiple oppressions women are experiencing. Yet women do not experience their categories of identity separately.[14] Indeed, there is a compounding effect to these multiple intersecting oppressions, which can further marginalize women.[15] Finally, relying on an objective women’s voice precludes the possibility of substantively changing the current legal system. It is impossible, for instance, to appropriately address bias in legal processes and legal decision-making without understanding the multiple intersecting relations of power and privilege that impact all actors within the justice system.[16]
Do we need a unified women’s experience, or can we proceed with difference?
In order to realize the transformative potential of feminist legal theory, I suggest we move away from the voice of the objective universal woman, and instead look to an intersectional ethic based on a principle of relationality. At first glance, it may be difficult to see how feminist legal theory can recognize difference, and yet remain committed to making the legal system more responsive to the needs of women. Indeed, one criticism of intersectionality is that in emphasizing difference, it dilutes the feminist movement.[17] However, when we start to imagine the differences as enriching, rather then impeding our efforts, we turn these differences into strengths.[18] An intersectional ethic, supported by a relational ontology, identifies the different relationships of power and privilege in women’s lives. This ethical perspective then asks feminist legal theorists to consider the nature of these connections, their impact, and how we can use our knowledge of these connections to promote relationships marked by respect and dignity.[19] For example, acknowledging the different relationships that shape and impact women helps to reveal assumptions made in legal decision-making, and subsequently helps feminists to destabilize the idea of the law as impartial. Overall, a better understanding of these intersecting relationships of power and privilege helps feminists to build a better justice system, one that is genuinely relevant to the lives of the women it purports to serve.[20]
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[1] Angela P Harris, “Race and Essentialism in Legal Theory,” Stanford Law Review, 42: 581 at 587.
[2] CBC, “The F Word: Who Wants to be a Feminist?” CBC Doc Zone, original airdate: March 2, 2011.
[3] Supra note 1at 588; see also Trina Grillo, “Anti-Essentialism and Intersectionality: Tools to Dismantle the Master’s House” (1995) 10 Berkeley Women’s LJ 16-30.
[4]Tracey Lindberg, “Not My Sister: What Feminists Can Learn about Sisterhood from Indigenous Women” (2004) 16 CJWL at 345.
[5] Susan B Boyd, “Spaces and Challenges: Feminism in Legal Academia,” in National Association of Women and the Law (NAWL), The Gender and the Law Manual: An Introductory Handbook for Law Students (Ottawa: The National Association of Women and the Law Charitable Trust for Research and Education, 2011).
[6] Rosemary Cairns Way, “Reconceptualizing Professional Responsibility: Incorporating Equality,” National Association of Women and the Law (NAWL), The Gender and the Law Manual: An Introductory Handbook for Law Students (Ottawa: The National Association of Women and the Law Charitable Trust for Research and Education, 2011).
[7] Nagire Naffine, “Blind Justice” in T. Brettel Dawson, ed, Women, Law and Social
Change, 5th ed (Concord: Captus Press, 2009) 57-65.
[8] Supra note 1 at 588.
[9] Trina Grillo, “Anti-Essentialism and Intersectionality: Tools to Dismantle the Master’s House” (1995) 10 Berkeley Women’s LJ at 19.
[10] Ibid at 21.
[11] T. Brettel Dawson, “Feminist Legal Studies: A Primer” in T. Brettel Dawson, ed, Women, Law and Social Change, 5th ed (Concord: Captus Press, 2009) at 89.
[12] Jarune Uwujaren & Jamie Utt, “Why Our Feminism Must be Intersectional (and 3 Ways to Practice It)” everyday feminism (11 January 2015) online: http://everydayfeminism.com/2015/01/why-our-feminism-must-be-intersectional/.
[13] Sherene H Razack, “Gendered Racial Violence and Spatialized Justice: The Murder of Pamela George” (2000) 15 Can J L & Soc 91-130.
[14] Patricia Monture, “Standing Against Canadian Law: Naming Omissions of Race, Culture, and Gender” in Elizabeth Comack, ed., Locating Law: Race/Class/Gender/Sexuality Connections (Halifax: Fernwood Publishing, 2006) 73-93.
[15] Kimberlé Crenshaw, “The Urgency of Intersectionality,” TED talk, online: <https://www.youtube.com>.
[16] Lorne Sossin, “Should Canada have a Representative Supreme Court” (Institute of Intergovernmental Relations, School of Policy Studies, Working Paper, 2009) at 4.
[17] Supra note 12.
[18] Supra note 10 at 28; see also Audre Lorde, “The Master’s Tools Will Never Dismantle the Master’s House” in Audre Lorde, Sister Outsider (Berkeley: Ten Speed Press, 1984) at 111.
[19] Jennifer J. Llewellyn, “Restorative Justice: Thinking Relationally About Justice,” National Association of Women and the Law (NAWL), The Gender and the Law Manual: An Introductory Handbook for Law Students (Ottawa: The National Association of Women and the Law Charitable Trust for Research and Education, 2011).
[20] Ibid.
University of Ottawa Association of Women and the Law 