Vol. 10 No. 1 (January 2000) pp. 56-59.
OUR LIVES BEFORE THE LAW: CONSTRUCTING A FEMINIST JURISPRUDENCE by Judith A. Baer. Princeton: Princeton University Press, 1999. 276 pp.
Reviewed by Leslie Friedman Goldstein, Department of Political Science and International Relations, University of Delaware.
Judith Baer, author of two other fine books on women-related issues in American law (Baer 1978; Baer 1996) and one book on the history and interpretation of the Fourteenth Amendment (Baer 1983), has produced yet another well-done book on women-related issues in law. This one specifically engages the arguments of scholars who were writing in the field of feminist jurisprudence during the 1980s and 1990s. Although it takes issue with many of their conclusions and approaches, it too aims to develop a legal theory true to feminist commitments.
What is it (one might ask) that justifies a partial or partisan legal theory -- one deliberately supportive of the aspirations of only a part of the American community, its females? Her (and their) answer is that to date most legal scholarship -- i.e. mainstream (or in her phrase "conventional") jurisprudence, and official Supreme Court legal doctrine, has been dominated by males and therefore by the concerns and the perspectives of males. If only to provide more balance (not to mention "equal justice under law" as per the engraved motto over the entrance to the U. S. Supreme Court) a self-consciously feminist jurisprudence is needed, one the takes seriously women's lives as they experience the law. Hence, her title is, WOMEN'S LIVES BEFORE THE LAW. Whether a jurisprudential perspective that aims to provide ballast to an underweighted side of the ship of state, can be an adequate stopping point for the jurisprudential endeavor, in the final analysis, is a question to which this review will return below. But Baer's book provides ample evidence that even at this stage, some 25 to 30 years after the doctrinal revolution in the constitutional law of gender equity, launched by the Supreme Court in the 1971-1976 period, such a jurisprudence can still provide fruitful insights about imperfections, to put it far more mildly than does Baer, in American constitutional law.
The book devotes five chapters (1 through 4 and 8) to elucidating a feminist jurisprudence that can avoid the pitfalls which Baer has uncovered in the works of others, and three chapters (5 through 7) to showing how Baer's own approach to feminist legal theory would apply to three concrete questions in American constitutional law. These three are (1) the issue of how to apply the equal protection clause to differential treatment of men and women, (2) how to develop adequate constitutional principles to shape the law of abortion, and (3) how to discern constitutional principles to guide fetal protection policy. I found the theory chapters more engaging and successful than the "applied" chapters.
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After an introductory chapter that more or less summarizes the book, Baer uses Chapter Two to distinguish two prevalent modes of feminist legal theory: as she terms them, "difference theory"(which term she later alters to "character theory") and "dominance theory" (which term she later alters to "situation theory"). She sets forth "three organizing premises of feminist theory: that conventional theory is male-biased; that reality is gendered; and that female-specific theory is a necessary corrective." But she then immediately asserts, "None of these premises can be accepted without qualification" (p. 38). Of course, Baer who herself articulates some of these needed "qualifications" (as do other feminist critics of difference feminism, such as Joan Williams) is also a "feminist theorist," which facts render Baer's blanket use of the term "feminist theory" throughout the book puzzling on certain occasions (where the context would seem to call for some qualifying term such as "difference-oriented feminism"). That quibble aside, the real strength of the book is in the trenchant and insightful critiques that it provides of difference feminism, even as it ably and fair-mindedly explains some of the important perceptions difference feminism has helped to reveal.
In brief, "difference feminism" specifically claims that women experience life in ways fundamentally different from those of men, and consequently reason differently, learn differently, judge morality differently, prefer different occupations, and so on. Since the world of dollars, law, and letters is still run mainly by men according to rules designed with men in mind, women get short-changed (i.e., there is institutionalized sexism, even where fair-minded men are in charge). Difference feminism sees its tasks as persuading people to edesign powerful institutions so that they will give a fairer shake to women's ways, as in such reforms as comparable worth which posits that the mere fact that a job such as nursery school teacher is typically done by females is not a good reason to pay low wages for it.
Part of Baer's response to this general approach to reform is, in so many words, "Don't hold your breath." As a practical matter, she offers the incisive argument that convincing men in power that X or Y task is intrinsically "female" or "feminine" is more likely to hurt than to help women. "Nothing in the allegedly new, allegedly feminist theory assures us that it can lead to change in this assignment of roles" (p. 51); doubts arise because history shows an opposite pattern. The more any task is understood as "women's work" the less has (male dominated) society valued it (p. 48). Secondly, one should doubt "that there can be any such thing as a voluntarily adopted female ethic of care" (p. 51), since nurturing responsibilities are imposed on females as a matter of societal expectation from the moment of the obstetrician's announcement, "It's a girl." The real strength of this work is its insistence that "feminist theory is hampered [to the degree that] it  focus [es] on doubtful and dangerous presumptions of gender differences and ... fail[s] to move from a female to a human stance"(pp. 38 and 78). Chapter Three continues the critique of the two regnant theories of feminist jurisprudence, difference (character) and dominance (situation) jurisprudence, in such a way as to introduce Baer's original contribution to the debate. Baer inclines toward what she prefers to call "situation jurisprudence," a blend of Catherine MacKinnon's theory of sexual exploitation
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and Nancy Hartsock's theory of economic exploitation, which includes reproductive work as among economic functions. Nonetheless, she faults it for having done a poor job of public relations. Its critics, she asserts, tend to see it as implicitly blaming women's situation on women (pp. 58-62). Baer believes that her own analysis can alleviate this feminist tendency to misread scholars like MacKinnon, because Baer reorients the reader's attention toward the ways in which the premises of Western liberal theory, and the ethos of our society, distribute rights and responsibilities in gender-loaded ways. Despite, or perhaps because of, talk about" all men" possessing inalienable rights, the practical assurance of such rights has been toward "men" in the specifically male (rather than the universally human) sense of the word. Meanwhile, responsibilities have been, as a matter of societal norms even more effectively than by formal laws, disproportionately imposed on women: "[Men] are [held] responsible for preserving themselves, not for helping others.... Women are [held] responsible both for themselves and others" (p. 66). Baer attempts to refocus both our language and our thinking on this subject. Rather than speaking in terms of "battered women" for example, attentiveness to who is really responsible would push social analysts to speak of the problem as one of "men who beat up women." Although I find Baer's critique of liberal theory provocative and salutary, I confess to doubts that such a responsibility-focused reorientation can save MacKinnon from her critics, for it is hard to think of a writer more blunt than MacKinnon is about just who is responsible for what.
Chapter Four basically makes the point that supposedly feminine ways of thinking, intuiting, and reasoning have been openly and not infrequently utilized by male judges from time immemorial. A version of this chapter has appeared in print elsewhere (Goldstein 1992). Chapters Five through Seven purport to apply Baer's insight about rights and responsibilities to the concrete questions of law listed in the third paragraph of this review. While these chapters demonstrate Baer's welcome strengths of clarity of argument, thought provoking insights, and challenges to thinking-as-usual, I found them less successful at demonstrating a clear linkage between her theory and the policy conclusions she favors. Chapter Eight provides a helpful recap of the rest of the book. It then moves beyond it to assert that jurisprudence, or political philosophy for that matter, ought to transcend the bounds of liberalism to come up with a theory of human needs, and the needs of human society. She calls such a theory "imperative jurisprudence" and also calls it "feminist postliberalism." It is not a bad idea. This reviewer would suggest that a good place to start for some helpful contributions to such a theory would be the pre-liberal philosopher who focused most preeminently on the question of what is needed to live a good life, namely Aristotle.
Baer, Judith. 1978. THE CHAINS OF PROTECTION: THE JUDICIAL RESPONSE TO
WOMEN'S LABOR LEGISLATION. Westport, CT.: Greenwood Press.
______. 1983. EQUALITY UNDER THE CONSTITUTION: RECLAIMING THE FOURTEENTH
AMENDMENT. Ithaca: Cornell University Press.
______. 1996. WOMEN IN AMERICAN LAW: THE STRUGGLE TOWARD EQUALITY
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FROM THE NEW DEAL TO THE PRESENT. 2d ed. New York: Holmes and Meier.
Goldstein, Leslie Friedman, Ed. 1992. FEMINIST JURISPRUDENCE: THE DIFFERENCE
DEBATE. Lanham, Md.: Rowman and Littlefield.
Copyright 2000 by the author.