by Shelley A.M. Gavigan and Dorothy E. Chunn (eds). Oxford, England, and Portland, Oregon: Hart Publishing, 2010. 290pp. Cloth $90.00/£45.00. ISBN: 9781841133140. Paperback $44.00/£22.00. ISBN: 9781841133157.

Reviewed by Elizabeth Bussiere, Department of Political Science, University of Massachusetts Boston. Email: elizabeth.bussiere [at]


THE LEGAL TENDER OF GENDER originated in a workshop conducted in June 2007 at the Onati Institute for the Sociology of Law in Spain. Editors Shelley A.M. Gavigan and Dorothy E. Chunn explain that the contributors were “asked to historicize and theorize the changing nature of states (i.e. liberal state, post-Keynesian state, and neo-liberal state), the gendered nature of their socio-legal policies, and the analytical frames that feminist scholars deploy to document and explain these historical forms and social relations” (p.1). Examining the roots and trajectories of the welfare states of Canada, Israel, and the United States through the multi-disciplinary lenses of history, law, social policy, social work, and sociology, the authors zero in on the “increasingly punitive treatment” of poor women under contemporary “neo-liberal” regimes (p.1).

With an introduction and ten substantive chapters, the volume has four parts: I. “Historicizing Social Reproduction, Welfare and Neo-liberalism”; II. “Women’s Agency and Activism in the Welfare State: Comparative and Historical Perspectives”; III. “The Precarious Citizenship and Legal Construction of Poor Women;” and IV. “Reconceptualizing State Forms and Socio-Legal Policy.” A very useful introductory chapter states the volume’s “central argument: “. . . the examination of the relation between women, work, and the state must be contextualized within particular economic, social and historical circumstances [and] . . . focus on the particularities of gender relationships in a specific society, paying attention to issues of power and ideology” (p.7). Although the authors see the global economic crisis as a disaster, they also believe it provides an opportunity to place social justice at the core of debates over poverty policy.

In Part I, Mimi Abramovitz mines a wealth of U.S. economic data, and she examines changes in Social Security, Unemployment Insurance, and Aid to Families with Dependent Children/Temporary Assistance for Needy Families. Using the concepts of “social reproduction” and “care work,” she argues that government responses to the economic crises of the 1930's and 1970's were significantly different. While acknowledging the serious shortcomings of New Deal and post-World War II social welfare programs, Abramovitz establishes empirically that Keynesian policy promoted equality by redistributing income downwards and introduced a quite robust conception of the public sphere. By contrast, the federal government’s neo-liberal [*497] responses to the economic crisis of the 1970's redistributed income upwards in the course of denigrating public obligations towards the poor and trumpeting market solutions. Compellingly, Abramovitz explicates the contradiction between the U.S.’s collective need to reproduce generations of healthy workers and its adoption of neo-liberal policies that put the caretaking onus on impoverished women whose low wages and public assistance fail to meet their families’ needs.

In contrast to Abramovitz, Gavigan and Chunn emphasize the continuities in Canadian welfare policy and challenge feminist claims that Keynesian policy embraced a significantly more respectful notion of public responsibilities than classical or neo-liberalism. Instead of introducing privatization as something “completely new,” neo-liberalism has simply entrenched existing forces of privatization (p.69). Gavigan and Chunn are especially insightful in interrelating changes in welfare policy with developments in family law, sketching how the increasing privatization of both areas of law has discernibly harmed indigent women and children. They concur with Abramovitz in concluding that caretaking has “vanished as a social good” and that welfare policy is principally a means of moving the unemployed into the labor market (p.71).

Felice Batlan’s chapter, which opens Part II, analyzes how poor women helped to change the discourse and material benefits of tenement law in New York City, and she correctly widens scholarly lenses to incorporate municipal governments in looking at the early American welfare state(s). She reveals how poor women, not just their middle-class counterparts, took legal and political action to establish at least a fledgling notion of the right to a decent home long before the 1960's. Women tenement activists drew upon images of a healthy home life (including privacy) and spoke in a political language that linked the poor’s housing “rights” to the “public good,” which inspired government officials to revamp public housing. While Batlan’s archival research reveals that city officials subjected female tenement residents to moral scrutiny, it also showcases poor women’s early use of the court system and city government to inculcate new conceptions of the public/private relationship and of government’s obligation to provide minimally decent housing for the good of the poor and the general public.

Premilla Nadasen likewise highlights U.S. poor women’s political acumen and activism in her analysis of the welfare rights movement of the 1960's. African-American welfare recipients played a major role not only in attempting to secure a right to welfare but also in challenging welfare regulations that embodied pernicious stereotypes of black women. In addition to laying out the sophisticated strategy of the welfare rights movement, Nadasen aptly relates its grassroots effort and mobilization to the racial and gender politics of the 1960's and early 1970's. For African-American women whose enslaved ancestors had been robbed of autonomy over their families’ lives and knew the indignities of Jim Crow laws, claiming the right to receive
welfare while staying at home to care for their own children was a dramatic test of dominant racial and ascendant gender norms. In response to the [*498] voluble rhetoric of “welfare dependency,” black welfare mothers characterized public assistance as a source of “liberation from patriarchal relationships and low wage menial labour . . . and from control by the welfare bureaucracy” (p.120). Although never achieving a guaranteed income, African-American welfare mothers generated a vigorous debate over the interlocking nature of motherhood, women’s rights, and children’s rights.

Launching Part III, Mimi Ajzenstadt examines how Israeli labor-market practices and global economic developments have bred women’s inequality. She sharply contrasts contemporary neo-liberal policies with the communitarian and egalitarian gender ideology of early Zionist discourse. The kibbutz was intended to “ensure gender equality by establishing ‘nursing’ homes to attend to children’s needs, which would liberate mothers to work together with male members of the communal societies” (p.123). With gender equality more dream than reality, however, Israel’s female parliamentarians persuaded the Knesset to pass laws to advance gender equality in the labor market. But with Israel confronting global economic competition, “support for the welfare state gradually lessened and health, education and welfare services were privatized” (p.127). Like other contributors to this volume, Ajzenstadt argues persuasively that neo-liberalism has led to substantial cutbacks in public assistance and established an ideology in Israel that gives the state the power to construct and to produce citizens whose chief task is to be productive workers. Her excellent discussion of women’s cases in the labor court demonstrates that government protections of women workers are poorly enforced, and their inequality is exacerbated by social norms that assign to them the primary role in child care.

Karen Swift’s analysis of child protection law in Ontario and British Columbia reinforces a recurrent theme of this volume: neo-liberalism reduces governments’ financial responsibility to assist the poor and yet simultaneously gives the state more regulatory power to “monitor” them.
Her chapter focuses on the introduction of “risk assessment” in child-protection law and services; the idea is that officials can scientifically establish a mother’s “risk,” allowing appropriate and even preemptive measures to be taken to avoid harm to her children. Relying on interview data, legal documents and other sources, Swift finds that the negative construction of impoverished single mothers has worsened under neo-liberal policies. Indigent women of color are especially suspected of being both lazy and (potentially) dangerous to their children, requiring the state’s watchful eye. Yet, by allocating more resources for risk-assessment and “rehabilitative” programs for single mothers while cutting public assistance, governments have, paradoxically, created the very conditions that make financially strapped and stressed out women more likely to engage in harmful behavior like substance abuse. Swift comes to the grim conclusion that public policy fosters the hardship that increases the probability of “risky” behavior, impelling government to spend money policing the risk rather than providing sufficient financial support to needy families in the first place. [*499]

Focusing on neo-liberal welfare-to-work and other reforms in Ontario, Janet Mosher also examines the state’s increased power over poor women’s intimate relationships as well as their work lives. In a thorough and often subtle analysis of court decisions, legislative reactions, and bureaucratic regulations and practices, she traces how anti-“welfare fraud” measures and similarly intrusive neo-liberal policies regulate women’s intimate relationships. Mosher argues that “[t]he sweep and depth of surveillance, the ready acceptance of demeaning stereotypes and the pervasive characterization of non-criminal conduct as ‘fraud’ has created a dense, intractable web of control over women’s relational lives. Forming an intimate relationship . . . is profoundly fraught for single women on welfare, risking as they do being cut off benefits, forced into relationships of financial dependency, assessed with overpayment liabilities and charged criminally” (p.167). Most chillingly, Mosher’s research exposes that abusive former spouses sometimes deliberately misinform government officials so that they will end public assistance and make the women dependent on, and submissive to, their abusers. But even in less horrific circumstances, she observes, welfare mothers trying to comply with policy regulations while also fulfilling their children’s basic needs are subjected to constant financial and psychological strain.

Joan Gilmour’s chapter on social assistance for disabled women in Ontario exposes the gap between the policy rhetoric of “inclusion” and the reality of exclusion. She criticizes the medical model of disability because it ignores the impairments to daily living arising from poverty and inequality. Those with poverty-induced health problems are relegated to welfare assistance, which has even more burdensome regulations and lower grant levels than disability policy. Gilmour examines initial eligibility determinations and also meticulously follows women’s appeals to bureaucratic agencies and courts. While provincial courts and the Supreme Court of Canada have sometimes ruled in favor of plaintiffs, the judiciary has rejected broad constitutional challenges to the system of social assistance itself. This prompts Gilmour’s thoughtful discussion of the current scholarly debate in Canada, which parallels that in the U.S., over whether disability activists should continue to use litigation or to pursue other strategies of social change. She recommends that activists strive to inject “legal norms into initial policy making and administrative determinations” and to raise “awareness of the linkages between health and human rights” (p.213). She also sees a continued role for equality claims based on the Canadian Charter of Rights and Freedoms, especially since the Canadian Supreme Court has recently moved away from a narrow and formalistic definition of “discrimination.”

As the volume’s final section, the last two chapters look to the future. Hester Lessard urges caution before embracing “universalist” approaches to social provision and child care because, as it did in 2006, Canada’s Conservative government coopted the language of universalism for inegalitarian ends when it proposed universal child care benefits. Although that plank sounded good, it masked a “programme aimed at universalizing a conservative conception [*500] of the family, subsidizing private market and familial ‘choices,’ and further eroding the already meager public infrastructure for accessible non-parental, centre-based child care” (p.218). Citing data on the unequal effects of the Conservative government’s tax- and choice-based “universal” approach, Lessard shows that the greatest child care benefits go to traditional nuclear families and the least to single-parent families. In addition, universalism elides the cultural differences that underlie exclusionary practices. However, rather than reject the language and socio-legal forms of universalism, Lassard effectively deploys substantive-equality rights to flesh out a “substantive conception of universality” that “retains the commitment to redistribution associated with universal social provision while at the same time foregrounding difference across social, cultural and economic locations” (p.245). And following the work of Nancy Fraser, Lassard concludes that social justice requires policies that not only have egalitarian outcomes, but also enlarged spaces for the poor to participate meaningfully in child care debates.

Finally, Margot Young’s chapter offers a sharp-eyed evaluation of the idea of a guaranteed income, which has the support of some conservatives and progressives in Canada. Young offers the most searching and insightful analysis of the problems and promises of a guaranteed income that I have ever encountered. Mindful of how tax-driven guaranteed income policies disproportionately benefit the non-poor, she supports such a benefit when “financed through general state revenue funds, delivered by the national government directly to all residents in Canada” (p.256). The guarantee would be unconditional – a right of citizenship – and not dependent on individuals’ satisfying behavioral requirements that are a part of welfare law’s “disciplinary” function. Despite being universal and unconditional, Young’s guaranteed income plan would be downwardly redistributive and would allow indigent single mothers to choose to care for their children full time, thereby eroding the divisive distinction between the “deserving” and “undeserving” poor. Young also respectfully discusses both conservative and feminist opposition to the notion of a guaranteed income, but she ultimately advocates it. Reworking Virginia Woolf’s idea of a woman’s need for “‘a room of one’s own,’” Young evocatively concludes her chapter: “The feminist ideal of a guaranteed income endorses and expands Woolf’s ‘opinion’, recognizing the importance – even if not the sole importance – of ‘money of one’s own’ to women’s social, economic, and political emancipation” (p.275).

This volume makes a substantial contribution to the scholarly literature on the welfare state, elucidating the socio-legal forms of neo-liberalism and their adverse effects on poor women in Canada, Israel, and the U.S. The book is well organized, the chapters show painstaking research, and the authors make powerful arguments. Commendably, the contributors connect the material and the discursive aspects of the changing welfare state. While the volume’s feminist and Foucauldian frameworks are unlikely to resonate with non-Left scholars, the authors marshal rich empirical evidence of rising inequality, harsher (but not better) [*501] welfare policies, and the stress to which the poor are subjected under neo-liberal policies.

Another strength is the volume’s coherence and cohesiveness. Each author anchors socio-legal and policy developments in their historical contexts; explores the gendered nature of political changes; examines interactions among the social, economic, legal, and political spheres; and wrestles with the broader significance of neo-liberalism for vulnerable people. The book presents a clear portrait of the pre-Keynesian, Keyesian, and neo-liberal responses to the problems of poverty and inequality, pointing up both continuities and ruptures with the past. While the authors never shy away from discussing the poor’s struggles, parts of the book also highlight the “agency and activism” of poor women. And, moving from theoretical abstractions to policy details, the authors show how neo-liberalism has constructed poor people as subjects to be watched, “disciplined,” and transformed into productive workers. Yet, moving beyond critique, the last two chapters envision new approaches to public assistance that place social justice front and center.

Finally, the volume should be of particular interest and value to law and courts scholars. Many contributors discuss the interactions of the courts with other institutional branches and the content of important court rulings, which will prove instructive for scholars of all methodological and ideological stripes. Still, the book will be most compelling to feminist, critical legal, and critical race scholars because of its Foucauldian and neo-Marxist conceptions of socio-legal practice and its sustained focus on gender inequality.

The volume’s strengths dwarf its weaknesses, but they deserve mention. First is the absence of an explicitly comparative examination of the Canadian, Israeli, and U.S. welfare states under neo-liberal regimes. The reader comes away from the volume lacking an understanding of the key factors that explain the differences and not just the similarities among the three neo-liberal states. Second, having a better geographic balance – e.g., of the ten substantive chapters, three focus on the U.S. and only one on Israel – by including a chapter on European welfare states would have enhanced the book’s utility to comparative law scholars. For example, one wonders to what extent the global economic crisis is effecting the “Americanization” of the comparatively generous European welfare states and what the long-term consequences will be for the poor. And given the contributors’ consensus on the importance of progressive social movements to fostering greater equality and inclusiveness, devoting a chapter to Europe might have elucidated the social and political conditions under which right-wing or left-wing populist movements are more apt to be influential.

Third, the volume would have been more valuable to the readers of this journal had it contained more explicit discussion of the interaction of law and the courts, especially the dynamics of judicial and legislative interpretations of relevant constitutional and statutory provisions. For example, as R. Shep Melnick has argued, for complex institutional reasons many “liberal” [*502] statutory interpretations rendered in the U.S. during the era of the Warren Court endured beyond the rise of a more conservative judiciary (and of neo-liberalism itself). Intricate interactions have often occurred among congressional committees, lower courts, and program advocates that made progressive policies less vulnerable to reversal during and after the Reagan era than one might expect. Do such institutional dynamics complicate the notion of a “neo-liberal regime” that the contributors to this volume embrace? Also, to what extent did the Warren Court’s rejection of a constitutional right to welfare influence Canada’s Supreme Court to do the same?

Although many chapters in the volume do discuss institutional actions, the lack of attention paid to structural differences among the Canadian, Israeli, and U.S. polities is odd since law is (re)produced in no small measure through political institutions. Does it matter that Canada and Israel have parliamentary systems, whereas the U.S. has a presidential system with a separation of powers at the national level (albeit with a concentration of executive power)? Or that U.S. courts generally have more power than courts in Canada, where legislative prerogative is a fundamental principle? Or that U.S. federalism gives more power to its states than Canadian federalism gives to its provinces, and that the Israeli national government is more centralized than the federal governments of the other two nations? Do the factors in the U.S. that have fostered interest-group politics and discouraged broad-based coalitions of the economically disadvantaged also exist in Canada and Israel? If these institutional differences ultimately do not explain the evolving neo-liberal state across the three countries, why not? Having a political scientist address some of these questions would not only have expanded this volume’s audience to include behavioralist and (new) institutionalist legal scholars, but also would have made more concrete the Foucauldian concept of “the state.”

Nevertheless, this is an intellectually rich volume, both theoretically and empirically, that deserves to become a staple of scholarly research and graduate courses across several disciplines.

Melnick, R. Shep. 1994. BETWEEN THE LINES: INTERPRETING WELFARE RIGHTS. Washington, D.C.: Brooking Institution.

© Copyright 2010 by the author, Elizabeth Bussiere.