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Feminist Theory Brenda Cossman Faculty of Law University of Toronto Fall 1999 These materials are distributed solely for classroom use by students in the Faculty of Law, University of Toronto. BORA LASKIN LAW LIBRARY -UNIVERSITY OF TORONTO Feminist Theory Brenda Cossman Faculty of Law University of Toronto Fall 1999 These materials are distributed solely for classroom use by students in the Faculty of Law, University of Toronto. Digitized by the Internet Archive in 2018 with funding from University of Toronto https://archive.org/details/feministtheoryOOcoss 1 I changed my mind. When a piece of work is not also an attempt to change what one thinks and even what one is, it is not very amusing. What can the ethics of an intellectual be...if not this: to make oneself permanently capable of detaching oneself from oneself....To be at once an academic and an intellectual is to try to manipulate a type of knowledge and analysis that is taught and received in the universities in such a way as to alter not only others’ thoughts, but also one’s own. This work of altering one’s own thought and that of others seems to be the intellectual’s raison d’etre. The work of the intellectual is not to shape others’ political will; it is, through the analyses that he carries out in his own field, to question over and over again what is postulated as self-evident, to disturb people’s mental habits, the way they do and think things, to dissipate what is familiar and accepted, to reexamine rules and institutions and on the basis of this problematization (in which he carries out his specific task as an intellectual) to participate in the formation of a political will (in which he has his role as citizen to play). Michel Foucault^ Philosophy, if it cannot answer so many questions as we could wish, has at least the power of asking questions which increase the interest of the world, and show the strangeness and wonder lying just below the surface even in the commonest things of daily life. Bertrand Russell^ {A\ll theory is, by its nature, critical, and therefore, on this reading, practical, whether it be about the natural world, the cosmos or human society itself. All theory, that is to say, is practice not just in the trivial sense that it is something that people make, but in the sense that it may have real and direct repercussions on our lives and beliefs. No theory, whatever it is about, is ever “neutral” so far as our beliefs are concerned. Well-supported theories may and frequently do undermine or overthrow widely held beliefs, or at least threaten to do so unless defensive action is taken. John Kane^ ’ “The Concern for Truth: An Interview by Francais Ewald” in Foucault: Politics, Philosophy, Culture: Interviews and Other Writings 1977-84, ed. Lawrence Kritzman (1988) ^ The Problems of Philosophy (1912) ^ Theory and Practice, Ian Shapiro and Judith Wagner DeCew, eds. New York: New York University Press, 1995 ii “ Critical theory is a mode of discourse which projects normative possibilities unrealized but felt in a particular given social reality. Each social reality presents its own unrealized possibilities, experienced as lacks and desires. Norms and ideals arise from the yearning that is an expression of freedom: it does not have to be this way, it could be otherwise. Imagination is the faculty of transforming the experience of what is into a projection of what could be, the faculty that frees thought to form ideals and norms. In his notion of interpretation as social criticism, Michael Waltzer endorses a similar approach to moral reflection. The social critic is engaged in and committed to the society he or she criticizes. She does not take a detached point of view toward the society and its institutions, though she does stand apart from its ruling powers. The normative basis for her criticism comes from the ideals and tensions of the society itself, ideals already there in some form, in espoused principles that are violated, for example, or in social movements that challenge hegemonic ideas. The criticism of the social critic “does not require detachment or enmity, because he finds a warrant for critical engagement in the idealism, even if it is a hypothetical idealism, of the actually existing moral world.” Iris Marion Young'^ The belief that we can start with pure observations alone, without anything in the nature of a theory, is absurd. Sir Karl Raimund Popper^ Philosophy is to be studied, not for the sake of any definite answers to its questions, since no definite answers can, as a rule, be known to be true, but rather for the sake of the questions themselves; because these questions enlarge our conception of what is possible, enrich our intellectual imagination, and diminish the dogmatic assurance which closes the mind against speculation. Bertrand Russell^ Justice and the Politics of Difference, New Jersey: Princeton University Press, 1990 ^ Conjectures and Refutations (1963) ^ The Problems of Philosophy {1912) Ill Doing theory and inculcating it in others can also habituate people to high standards that make them dissatisfied with the inadequacies they and others exhibit in practice, unless, of course, there is so much false consciousness that they cannot notice true practice. This dissatisfaction is worthwhile in its own right, I believe, even if it has no further consequences, for at least we then can evaluate ourselves and our failings correctly. But this dissatisfaction may also lead to a desire for improvement, and may at least lead to tolerance and perhaps some admiration...These are indirect practical effects which the theory could still have even if it didn’t motivate much action directly. Frances M. Kamm^ The practice of law is theory-laden. In their day-to-day work, many lawyers and judges are actually making theoretical claims. In some ways, it is most unfortunate that this point is not recognized more often. The absence of self-consciousness about the theoretical claims may conceal those claims from view and make it harder to see that they represent a choice among plausible alternatives. The attack on legal formalism is above all an insistence that legal work that purports to be mechanical is actually based on controversial substantive claims. Those claims ought to be brought out into the open and evaluated. Cass R. Sunstein* ’’ Theory and Practice, Ian Shapiro and Judith Wagner DeCew, eds. New York: New York University Press, 1995 ® Ibid. ■M: -.■islI.'C.'i'S k I" “ ■^V ^TF.' ^ ' 'rP^ I'-*- If,.'', . '>j 1 ♦'jju - im'fV' .lylf . fca!"' .,‘i'tr ~.;si^T,4' f.," rrf ■ '■ i "'■ „' ■■' ,.’’■ *■ ■' Ji-.... i" .'.• ' "iSS*: e .A.:.^--ca (iSS'S I''. ,-'■ r^o; A M ' '^'ts4 'if:;- ::-",',;is" - £ ■: :.,.iv*. J'm "'.g Feminist Theory Fall 1999 Table of Contents Elizabeth Comack "Theoretical Excursions" in Comack, ed., Locating Law: Race/Class/Gender Connections (Halifax; Femwood, 1999).1 Carol Smart, “The Women of Legal Discourse,” (1992) 1 Social and Legal Discourse.27 l/" Angela Harris, “Race and Essentialism in Legal Theory,” (1990) 42 Stanford Law Review 581, 581-601, 605-616.43 Dianna Fuss, Essentially Speaking: Feminism, Nature and Difference (New York; Routledge, 1989) pp. xi-xii, 1-6, 18-21.76 ^ 'f Kimberle Crenshaw, “Mapping the Margins; Intersectionality, Identity, Politics and Violence Against Women of Colour,” (1991) 43 Stanford Law Review 1241.86 Nitya Iyer, “Disappearing Women; Racial Minority Women in Human Rights Cases,” (1993) 6; 1 Canadian Journal of Women and the Law 25.130 Susan Williams, “Feminist Legal Epistemologies,” (1993) 8 Berkeley Women’s Law Journal.150 Susan Glaspell A Jury of Her Peers (1917).193 Carol Smart, “Proscription, Prescription and the Desire for Certainty; Feminist Theory in the Field of Law,” (1993) 13 Studies in Law, Politics and Society 37.201 Wendy Brown, “Feminist Hesitations, Postmodern Exposures,” (Spring 1991) Differences 3.214 Shelley Gavigan, “Morgentaler and Beyond; The Legal Regulation of Reproduction,” in J. Brodie, S. Gavigan and J. Jenson, The Politics of Abortion (Toronto; Oxford University Press, 1992).229 Susan Boyd, “(Re)Placing the State; Family, Law and Oppression,” 9 Canadian Journal of Law and Society 39 (1994).262 Elizabeth Schneider, “The Dialectics of Rights and Politics; Perspectives from the Women’s Movement,” (1986) 61 New York University Law Review 589.296 Judy Fudge, “The Effect of Entrenching a Bill of Rights Upon Political Discourse; Feminist Demands and Sexual Violence in Canada,” (1989) International Journal of the Sociology of Law 17, 445-463.306 Lise Gotell, “Litigating Feminist ‘Truth’; An Antifoundational Critique,” (1995) 4 Social and Legal Studies 99.320 Lise Gotell, “Shaping Butler: The New Politics of Anti-Pornography,” in Bad Attitudes On Trial, Brenda Cossman, Shannon Bell, Lise Gotell, and Becki Ross, (University of Toronto Press, 1997).344 Brenda Cossman, “Feminist Fashion or Morality in Drag? The Sexual Subtext of the Butler Decision,” in Bad Attitudes on Trial, Cossman et al. (University of Toronto Press, 1997).403 Roxanne Mykitiuk, “Fragmenting the Body,” (1994) 2 Australian Feminist Law Journal 63.425 Diane Klein, “Ally McBeal and Her Sisters: A Quantitative and Qualitative Analysis of Representations of Women Lawyers on Prime-Time Television” (1998) Loyola of Los Angeles Entertainment Law Journal.453