LEGAL FEMINISM

Vol. 16 No. 12 (December 2006) pp.960-963

LEGAL FEMINISM: ACTIVISM, LAWYERING AND LEGAL THEORY, by Ann Scales. New York: New York University Press, 2006. 240pp. Cloth. $35.00. ISBN: 0814798454.

Reviewed by Emily Albrink Hartigan, St Mary’s University Law School, San Antonio, TX. Email: hartigan [at] gvtc.com.

In LEGAL FEMINISM: ACTIVISM, LAWYERING AND LEGAL THEORY, Ann Scales returns to the scene of feminist jurisprudence, one that she reminds us that she named, with considerable intellectual force and a lovely, wry sense of humor. What she does not bring back, however, is her singing voice. She has become a Rorty-citing pragmatist with her eye on practice and litigation. Her analysis is subtle, rich and quick, although it lacks some scope and lilt. To me, it seems that her humor, frequent and charming, might benefit from more of the “joke work” that Homi K. Bhabha suggests as a postmodern strategy for the disempowered, making fun of feminism rather than those with whom she disagrees. As Scales is intensely, illuminatingly concerned with power and its relation to knowledge, she might consider several categories of the postmodern that she gives short shrift, even as she demonstrates more than sufficient intellectual acumen to get to the limn of the space to which the best of postmodernism points. Despite any shortfalls, however, the book is excellently crafted, eminently readable, and both courageous and fortuitous in its timing.

In a move that seems familiarly feminist, Scales includes in her introductory chapter a discussion of what she means when she uses “we” in her text. As she indicates, sometimes she means and says “we lawyers,” but she also hopes to mean the community of text and reader – and in the end the “we” she considers perhaps most controversial is the groups that are, as she identifies herself, “women, lesbians, ‘outsiders,’ feminist lawyers working together since the 70’s, children of the 1960’s, and political progressives” (p.12). The bulk of her text manages, like a seasoned trial lawyer, to speak in several voices at once, and very persuasively. Scales reveals a good deal of her “subject position” yet navigates the texts of the patriarchs in a way that often tends to clarify rather than obscure – but it is a distinctly analytic clarification.

When I first taught law, I aspired to bring my classroom alive and was stunned and emboldened by Scales’ “An Absolutely, Positively True Story: Seven Reasons Why We Sing” (1986). In that piece, she and her co-teacher tell the story of beginning their first-year class with song, having invited the dean. Although Scales leavens her book with an engaging autobiographical thread, she does not reveal why law no longer sings for her, although the emergence of the lingo of a seasoned litigator with a deft habit of interspersing witty vernacular with her philosophy gives the book a very effective style. The interaction between style and substance, or theory and practice, or method and content [*961] must arise in feminist work, and Scales’ method may not seem overtly feminist, although her intricate discussion of the feminisms (particularly postmodern and what she calls “pre-postmodern”) abroad in legal theory gives the reader a perspective from which that tension may be evaluated.

Scales begins with self-deprecating section titles to disarm reader hostility to both “feminism” and “theory” that she labels “the f-word” and “the t-word” respectively. This confess-and-defend move is distinctly legal and in my experience may arise from law students’ (and some, usually male, colleagues’) dismissals of both. Thus for the academic reader who has not been not caught in professional school anti-intellectualism, the initial parts of the book may seem unnecessary. The quality of the patter more than makes up for these moves for this reader, however, and suggests an answer to Scales’ frustration with feminists like Judith Butler. Although Scales dismisses Butler’s language as unintelligible in the ordinary political world, and declines to attempt parody, she actually performs what she bewails as impossible. The very phrase of Butler’s that Scales jokes that she cannot use to a legislator – she uses herself, in her rather dazzling dance on the gender question, with the reader. Thus, she could, as Bhabha invites, use self-critical humor (as she does at the start) embracing the notion that the stereotypes (feminist, woman law professor and litigator) hold some (but misleading) truth – that is, if she hopes to engage readers other than her (formidable) allies.

Scales relies primarily on male sources of “authority” along with Catherine MacKinnon. The patriarchs she cites are a mixture – Rorty, Kant, Wittgenstein, Lon Fuller. As Scales notes in considering the ever-turning issues of gender, there is a time when we must generalize, even stereotype, to save time – and sometimes using Kant directly to discuss the antinomies may be the most pragmatic, to borrow a word. However, it does not avoid the problems of pragmatism, Scales’ chosen stance. First, pragmatism is a porous justificatory/epistemic system and falls into the same potentially directionless plurality of possibilities that Scales attributes to postmodernism. Second, pragmatism always leaves the questions, “works for whom and by what values?” And, third, the “pragmatic” consequences of using so many men (and not even the oldest of the progenitors of “intractable” questions, as Socrates had his play with each of the four, and more, of Kant’s antinomies that Scales chooses for focus) must include the reaffirmation of a highly male-dominated textual ground. I happen to be fond of some of the male authors Scales uses extensively (and note that at least Wittgenstein was gay), but that simply reflects that Scales and I likely had similar experiences in what was a highly male-analytic academy of the ’60s. This cant toward male authors puts the text at tension, as Scales participates in challenging Reason as master of epistemic matters while using Kant and Fuller as pivotal exemplars. At the same time, this initial male cant situates her text closer to the mainstream, and although she continues to identify as an outsider, she claims to [*962] address law students, many of whom are heading straight for the belly of the beast. She struggles brilliantly, and informatively but does not, for instance, seem to get beyond philosophical liberalism, despite fragmentary affirmations of solidarity. Nowhere does the reader find affirmations of narrative feminists, spiritual feminists, web-of-connection feminists – all of whom even write in law journals.

The possible method in this madness may be revealed about half-way through the book when she says, after having skillfully discussed some very heavily distinction-laden toxic tort cases, the following:

The reader may wonder what all this has to do with feminist jurisprudence, and the answer is “everything.” The institutions, the rules, and the “facts” are all engineered by people who, consciously or not, are serving the patriarchal corporate masters. There. I said it. (p.60)

Now perhaps things can pick up. But I am not sure they do. A stance based on her underlying frustration never comes out directly.

The text has some quite sophisticated discussions of various feminist camps and Scales’ take on their consequences. I confess that I am postmodernist, but not in the way many of those Scales cites are. This is key to why Scales’ loss of song seems so important. She simply ignores major aspects of what legal feminism has brought to the conversation. Although she discusses the rationalist denigration of emotion (versus the fabled “right reason”) as crucial to feminism, she completely omits the calls to the aesthetic and the spiritual that feminist (and women-friendly male pomo) legal writers such as Patricia Williams, Marie Failinger and Marie Ashe have been spinning from their intricate postmodern subjectivities informed by the best of deconstruction and post-Enlightenment thought. Thus, Scales does a particularly clear and even-handed version of the “Limits of Liberalism” but not one that is perceptibly feminist, aside from one pointed quotation from Mari Matsuda (although reading the endnotes after the text, one can see a powerful subtext that is more revelatory of feminist roots). It is in this chapter that she declares: “These days, systems of oppression are not usually consciously maintained” (p.74). This points to what I found the most interesting chapter of the book.

False consciousness (she questions the phrase itself, manifesting once again the consistently impressive level of her conceptual delving) is central to any attempt to persuade another of something we think they do not already fully grasp. And Scales does not seem stable on whether those patriarchal corporate masters are culpably unconscious. To remedy the dilemmas of false consciousness, Scales forthrightly, even brilliantly, sets out the paradoxes, but she does not embrace them as sources of creative tension. At some point the answer is not one of reason, but of other things: beauty, spirit, respect, even mystery. Or song.

Until Scales is moved to try again to sing in public, we will have to be satisfied with a riveting combination of analytical [*963] elegance, comic timing, and informed passion for the legal status of gender issues. I can only hope that she will risk her outsider voice’s more fragile side. Without it, she is left concluding that “[n]either professional education and prestige, nor even confirmation by the United States Senate, bestows the power of flight. Lawyers cannot soar above social life” (p.151). A lyrical, analytic brilliant social critic, Stanley Cavell, occasions from one commentator the accolade that he writes into “the medium of uplift” with his reflections on the development of meaning in society. Scales ends saying we should “get on with the business at hand” – with scant space for law whose excellence is justice, and part of how we humans may make meaning together.

REFERENCE:

Johnson, Carl, and Ann Scales. 1986. “An Absolutely, Positively True Story: Seven Reasons Why We Sing.” 61 NEW MEXICO LAW REVIEW 344.

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