by Rosemary Hunter (ed). Portland: Hart Publishing, 2008. 204pp. Hardback. $94.50/£45.00. ISBN: 9781841138404. Paperback. $46.00/£22.00. ISBN: 9781841138398.
Reviewed by Adam L. Kress, Department of Political Science, University at Albany. Email: alk58 [at] cornell.edu.
This edited volume’s stated purpose is to assess the nuances of modern feminism and articulate the challenges it presents. That is, women are not monolithic and, as the debate advances, neither is their struggle. Rather, in addition to attempting to gain formal agency in the public sphere, women are also attempting to gain substantive fairness as a result of this struggle. This latter category requires the notion of difference to be invoked and often codified in order to respect women’s uniqueness and not always compare them to the masculine baseline. For this baseline is not neutral, it is rather just what we are accustomed to, and formal equality in accordance with that baseline, as Rosemary Hunter points out in her introduction, has given little purchase to the advancement of feminism. She also contends that the articulation of difference, while it seems to hold promise, has had an arduous and troubled journey gaining traction in the law. The crux of the volume’s purpose, then, is to sort out how concepts of equality have been used in different legal endeavors and also to provide some examples of how women use concepts of gender and equality within the legal profession. For example, the volume includes a piece by Mary Jane Mossman who shows that, while women wrapped themselves in gendered rhetoric as a means to be let into the legal profession, once assimilated they seemed to distance themselves from their gender, allowing it to fall away, and to accept the given (masculinized) professional norms. This latter piece comes out of the third of three parts and serves as a practical exemplar of how gender and the legal profession interface. In addition, Part I, ‘Equality Projects in the Law,’ seeks to gain leverage on how notions of equality are used in movements, politics and processes, and Part II, ‘Constitutional Equality Projects,’ as its name suggests, looks at rights guarantees absent or present in national legal context (not necessarily federal).
In Chapter One, “The Married Women’s Property Acts: Equality Was Not the Issue,” Rosemary Auchmuty contends that the richness associated with the equality and difference debate is often lost on the legal profession, and specifically with regard to the Married Women’s Property Acts. These acts are hailed retrospectively as a great advance for British Women, chiefly because they allowed for separate marital property rights, effectively dealing a blow to masculine coverature. However, Auchmuty uncovers evidence to show that proponents of this act were not driven by concepts of equity in our modern sense, but rather by Victorian notions of feminine inferiority. That is, they passed these acts to protect married [*69] women, who were vulnerable and inferior, from further exploitation within the marital covenant. In light of this, Auchmuty then considers whether first wave feminists got the story wrong or were naïve, but ultimately she settles on an interpretation that would cast the members of this movement as aware and wise – realizing that this was a symbolic measure which would help move the feminist agenda along (pp.17-18). Auchmuty also details early notions of equality in outcomes, and I think shows how gender difference can be employed strategically to achieve desired policy outcomes. She buttresses her claim with a lengthy discussion of the work of Frances Power Cobbe and how it centered on refuting idealized and practical views of marriage with privilege given to men by law, which Cobbe herself is careful to divorce from equity, grounding it instead in notions of justice and practicality. These arguments, of course, hinge on the image of the deflected drunkard husband and therefore ultimately harken back to notions of protective rather than equalizing legislation. Hence, according to Auchmuty, we are left with a strategic movement led by Cobbe and others which ultimately rejects equality and embraces difference in an effort to persuade Victorian era men to exact policies that would have the effect of advancing women.
In the next chapter, Heather Douglas looks at equality and difference as they relate to domestic violence in her piece, entitled “The Demise of the Provocation Defense and the Failure of Equality Concepts.” Douglas details the masculine origins of the provocation defense and contends that women seeking to use it typically in abuse-provoked killings of their partners had trouble making arguments which were congruent to those made by men who usually invoked provocation differently. She details a number of sequentially related reforms, including trigger incidents, demonstration of fear vs. anger, and sudden temporary loss of control. The problem with each of these refinements on the provocation defense was that they were often hard to prove conclusively or did not match the facts closely enough to allow prosecution arguments to explain away the protection, such as with the Hill case referenced by Douglas, wherein Mrs. Hill was waiting for her husband to return from a drinking bout. The abuse was present, and she was at a critical breaking point, but given that she was waiting for a period of time, there was some dispute as to whether this was a sudden temporary loss of control (p.49). Thus, in the end, Douglas argues that these reforms often did not have the intended effect, frequently broadening protections on attackers at the same time they negatively stereotyped women as weak and irrational (p.53). In sum, this chapter nicely points out how equality benchmarked against men is problematic, and, at the same time, difference can be misused once it is codified in law.
Following this is a chapter by Susan Boyd, entitled “Is Equality Enough Father’s Rights and Women’s Rights Advocacy,” wherein she assesses arguments for equality and difference as they relate to child custody. She attempts to give fair consideration to the paternalist rights movement, showing how this effectively uses arguments for equality among the sexes to gain purchase. However, she is not [*70] convinced that the moment of divorce is the right time to lend credence to this type of equal rights claim, especially given incidences of abuse or the feminization of poverty (meaning men typically have more financial wherewithal) which often comes bundled with divorce cases (p.73). What is evident from her analysis of the Canadian family court system is that leaving gender aside for a system proffered on strict gender equality under the law may not serve women’s interests. While Boyd does not want to dismiss partner rights or same-sex marriage rights, she does illustrate the need for some discretion within family law and shows how feminism, as it evolves, might not constitute a debate that is solely about equality. That is, there are times gender matters and circumstances are unique; however, she realizes this potentially contradicts the classic aims of feminism. In short, she presents a good illustration of the complexity of the gender equality debate and how it is not always clear which side feminist advocates want to take, as in certain circumstances, arguments of difference are needed to produce fair and just outcomes. That said, on the whole her argument can be taken as one which is truly neutral, looking to provide protections for the major caregiver regardless of gender, arguing that law should be holistic, looking at the family structure and history, rather than trying to infuse equality at the point of its rupture.
Rosemary Hunter attempts to make sense of the concepts of equality and difference as they relate to feminism of the past, as well as to the post-modern feminism of the future. In her ‘Alternatives to Equality’ monograph, which concludes Part I, she begins by rooting equality in the history of the feminist discourse, articulating how different or unequal treatment has long been synonymous with marginalization and subjugation in feminist as well as other contexts. This notion has also underpinned much of the rhetoric associated with the feminist movement, helping it gain traction by detailing how women are dispossessed and subjugated by men. This abusive power dialogue, however, is perhaps short-sighted and outmoded for dealing with many contemporary feminist concerns in the public sphere. Hunter contends that the political landscape has changed, and, while the roots of early feminism are important, often addressing specific nuances of women’s experiences (specifically abuse and mistreatment), they need to be refocused to pay homage to the changing status of women in law and society (p.83). To illustrate her point, Hunter looks to equal pay and provision of state services. She ultimately concludes that both examples show a need for a more nuanced look at women’s issues in context, as well as dedication of more resources to facilitate remedies (pp.100-101).
Shifting gears, Part II seeks to narrow the scope of argument, presenting two pieces dealing specifically with Constitutional issues. The first, “Equality Rights: What’s Wrong?” by Reg Graycar and Jenny Morgan, looks at equality through the Australian Legal System, which, despite its conspicuous lack of a Bill of Rights, seems in their view actively to debate if not protect civil liberties (p.106). Their hypothesis is that the lack of a Bill of Rights will produce better and more innovative policies; thus, they turn to the discourses [*71] surrounding same-sex couples and abortion rights to bear out their claims (p.106). The authors attempt to use same-sex couples to refute the claim made by Australian proponents of same-sex rights that a Bill of Rights would hasten and smooth the national codification of equal rights legislation (p.113). For this their benchmark is primarily the United States, though they also look at South Africa. Graycar and Morgan provide a good literature review of gay rights struggles stateside, relying heavily on the work of Carl Stychin, but they fail to relate this adequately to their primary case. Moreover, a similar dynamic happens in their discussion of abortion. They contend that lack of a Bill of Rights unconstrains the Austrian legislature, allowing it to transcend the bonds of formal equality for a better, more nuanced, approach, yet they bring to bear little evidence for the Austrailian case to demonstrate why it is indeed better (p.121). In sum, this chapter brought to bear a good theory that was short on evidence.
Concluding this section is a theoretical piece by Karin Van Marle, entitled “Haunting (In) Equalities,” which seeks to articulate that the law inherently excludes and limits, rather than empowers, women (p.125). For this, she relies on Jacques Derrida and Karl Kare, respectively, for concepts of equality and transformative constitutionalism. She then applies these concepts to the South African Constitution and in-so-doing is able to further parse her concepts bearing out monumental vs. memorial constitutionalism and their links to formal and substantive equality (p.145), an exercise which, for her, supports the claim that law is an insufficient end to achieving substantive equality and in the end ultimately breaks down (p.146). Her argument is well grounded and her concepts are clearly defined; thus, she is able to lodge a compelling critique of the limits of law, seemingly pointing perhaps to less formalized rights and more innovative legislating.
The third and final section of the book assesses cases of women attempting to bring change to the legal profession. The first piece is Mary Jane Mossman’s “Gender Equality and the Legal Profession,” which, as I stated at the outset, does a fine job of showing how women used gender to break into the legal profession, but then distanced themselves from gendered associations once they joined the ranks. This piece is buttressed by Hillary Sommerland’s work, entitled “That Obscure Object of Desire: Sex Equality and the Legal Profession.” Sommerland’s major contention is that women have changed over the decades and are perhaps no longer uniform outsiders seeking entry, but rather vastly different individuals grouped by sex, who may no longer have trouble gaining entry to and navigating the legal profession (pp.171-172). Her work is deeply rooted in theory where she attempts to articulate through a post-modern moment that seems liberating but, in fact, places the onus for discrimination on the individuals who, in this case, either accept subjugation or fail to use their gender roles effectively to gain liberation (p.174). That said, the crux of her argument is practical, as she wants to bring the theory to bear on real law students’ experiences. She does this by employing a longitudinal study of 90 law students (30 part-time and 60 full-time), with a series of survey and ethnographic methods to gain purchase on her theoretical claims (p.179). [*72] Ultimately she does find some evidence that norms relating to women are changing; however, at the same time, there is some sense of a need to belong and a need to emulate long established professional norms. Sommerland’s work, on the whole, becomes more than just assessing traditional in-group/out-group norms. Through her discursive methods she presents a rich picture of how identity is formed, which helps to explain the failure of a great shift in the legal profession per individualism rather than collective subjugation.
In conclusion, this edited volume comes together as a good primer to a rich set of theoretical arguments and debates, providing a solid overview, not just of international legal development through a feminist lens, but also feminist thought more generally. The extensive footnotes will be prized by law and APD scholars, as well as those looking at projects relating to the expression of gender in institutions more broadly. The collection represents a great effort by Hunter and her colleagues.
© Copyright 2009 by the author, Adam L. Kress.