Our Lives Before the Law

Our Lives Before the Law: Constructing a Feminist Jurisprudence

Judith A. Baer
Copyright Date: 1999
Pages: 272
https://www.jstor.org/stable/j.ctt7rj9b
  • Cite this Item
  • Book Info
    Our Lives Before the Law
    Book Description:

    According to Judith Baer, feminist legal scholarship today does not effectively address the harsh realities of women's lives. Feminists have marginalized themselves, she argues, by withdrawing from mainstream intellectual discourse. InOur Lives Before the Law, Baer thus presents the framework for a new feminist jurisprudence--one that would return feminism to relevance by connecting it in fresh and creative ways with liberalism.

    Baer starts from the traditional feminist premise that the legal system has a male bias and must do more to help women combat violence and overcome political, economic, and social disadvantages. She argues, however, that feminist scholarship has over-corrected for this bias. By emphasizing the ways in which the system fails women, feminists have lost sight of how it can be used to promote women's interests and have made it easy for conventional scholars to ignore legitimate feminist concerns. In particular, feminists have wrongly linked the genuine flaws of conventional legal theory to its basis in liberalism, arguing that liberalism focuses too heavily on individual freedom and not enough on individual responsibility. In fact, Baer contends, liberalism rests on a presumption of personal responsibility and can be used as a powerful intellectual foundation for holding men and male institutions more accountable for their actions.

    The traditional feminist approach, Baer writes, has led to endless debates about such abstract matters as character differences between men and women, and has failed to deal sufficiently with concrete problems with the legal system. She thus constructs a new feminist interpretation of three central components of conventional theory--equality, rights, and responsibility--through analysis of such pressing legal issues as constitutional interpretation, reproductive choice, and fetal protection. Baer concludes by presenting the outline of what she calls "feminist post-liberalism": an approach to jurisprudence that not only values individual freedoms but also recognizes our responsibility for addressing individuals' needs, however different those may be for men and women.

    Powerfully and passionately written,Our Lives Before the Lawwill have a major impact on the future course of feminist legal scholarship.

    eISBN: 978-1-4008-2333-8
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. PREFACE
    (pp. ix-xiv)
  4. ACKNOWLEDGMENTS
    (pp. xv-xviii)
    Judith A. Baer
  5. PART I: LAW THROUGH WOMEN’S LIVES
    • ONE INTRODUCTION
      (pp. 3-15)

      WOMEN ARE more vulnerable and more responsible than men, but they are less free. Like men, women are vulnerable to state and corporate power. But women are also more vulnerable to private violence: as girls, as adults, even in old age. Like men, women are responsible for meeting their own needs. But women are also more responsible for meeting others’ needs: for maintaining, nurturing, satisfying (sexually and otherwise), and—the all-purpose term—caring. Even where women enjoy equal formal rights with men, special risks and obligations weaken and compromise women’s rights. “So long as we live, there can be no...

    • TWO IS LAW MALE? THE FOUNDATIONS OF FEMINIST JURISPRUDENCE
      (pp. 16-38)

      THE IDEA that conventional thought has a fundamental male bias is at the core of feminist theory. The historical fact that conventional theories have primarily been the product of male minds, thinking in male supremacist societies, makes this premise highly plausible on its face. What is plausible is also demonstrable. Feminist scholars have shown that Nancy Hartsock’s insight about one Western political theory holds for Western jurisprudence in general. “Day one of taking gender into account” was the day theory was structured around the idea of a person with no household responsibilities, no necessary close personal ties, and the ability...

    • THREE WHAT MAKES LAW MALE? GENDERED JURISPRUDENCE AND FEMINIST CRITIQUE
      (pp. 39-70)

      FEMINIST jurists agree that law is male, that legal theory must come from women’s lives, and that legal reality is gendered. We disagree among ourselves about what makes law male, how to derive theory from experience, and what about law is gendered. While feminist jurisprudence is far too rich and diverse to be contained within neat categories, two distinct theories of the source and nature of law’s maleness emerged in the 1980s. Catharine MacKinnon—who is definitely not a disinterested critic—labels these approaches “difference” and “dominance” theory.¹ Difference theory maintains that law disadvantages women because it derives from male...

    • FOUR HOW IS LAW MALE? GENDERED METHOD AND FEMINIST RESPONSE
      (pp. 71-94)

      ANGLO-AMERICAN law—like Latin, one of its ancestor languages—was long “spoken and written … with totally negligible exceptions only by males.”¹ Men wrote the constitutions, enacted the laws in pursuance thereof, argued the cases challenging the laws, wrote the opinions which disposed of the cases, and criticized the opinions which settled the cases which challenged the laws which referred to the constitutions which men wrote. Law’s “heavenly chorus” has sung not only “with a strong upper-class accent” but also in a low pitch.²

      The exceptions to this generalization are no longer negligible. They include almost half the nation’s law...

  6. PART II: WOMEN’S LIVES THROUGH LAW
    • FIVE RECONSTRUCTING EQUALITY: FEMINIST CONSTITUTIONAL DOCTRINE
      (pp. 97-123)

      WOMEN’S LIVES do not fit into American constitutional law. Gender is a deviant case, a doctrinal outlier, in the law of equality. Early in this century,Muller v. Oregonput sex discrimination outside the scope of equal protection law, placing “woman … in a class by herself.”¹ As the century ends, woman is still in a special class.

      Women’s rights cases constitute an exception to almost every generalization which can be made about the Supreme Court in the last fifty years. The Court cared less about individual rights under Chief Justice Warren Burger (1969–86) than under Earl Warren (1953...

    • SIX RECONSTRUCTING RIGHTS: FEMINIST REPRODUCTIVE FREEDOM
      (pp. 124-150)

      ROE V. WADE confounded the expectations of ideologues and the predictions of experts.¹ Its right to reproductive choice did not survive the Reagan–Bush years intact, but it did survive. Even asPlanned Parenthood v. Caseyallowed states to discourage abortion, the Supreme Court plurality reaffirmed “Roe’s concept of liberty in defining the capacity of women … to make reproductive decisions.”² While no branch of the national government seems eager to make abortion more convenient, neither have the states rushed to make it less available. A marginally pro–choice Democratic president and an uneasily antichoice Republican Congress lurch toward deadlock...

    • SEVEN RECONSTRUCTING RESPONSIBILITY: FEMINIST FETAL PROTECTION
      (pp. 151-175)

      THE 1960S AND 1970S brought a radical departure from the traditional jurisprudence of human reproduction. All three branches of the national government took part in effecting this change. Supreme Court decisions likeGriswold,Eisenstadt, andRoeused law to enhance women’s control over their reproductive functions instead of using women’s reproductive functions to justify restrictive law. In 1964, Congress renderedMuller v. Oregonobsolescent by prohibiting sex discrimination in employment. In 1979, the bureaucracy did the same forBuck v. Bellwith regulations governing the use of public funds for sterilization.¹

      But the old jurisprudence of reproduction is far from...

    • EIGHT TOWARD A FEMINIST POSTLIBERALISM
      (pp. 176-202)

      THIS BOOK has studied several ongoing debates within feminist scholarship. The participants agree that prefeminist theory is male-biased, that reality is gendered, and that the corrective for implicit male bias is to produce explicit female theory. The important controversies center around gender difference, male dominance, and intellectual method. Feminist scholars have disputed the relative importance of gender difference and male dominance ad infinitum and ad nauseam. But feminist theorists of gender difference have not said much of substance that their pre–, non–, or antifeminist predecessors had not already said, nor have they figured out how to claim the...

  7. NOTES
    (pp. 203-246)
  8. BIBLIOGRAPHY
    (pp. 247-264)
  9. GENERAL INDEX
    (pp. 265-272)
  10. INDEX OF CASES
    (pp. 273-276)