'Ideology' after 'discourse': A reconceptualization for feminist analyses of law

Journal of Law and Society

Volumn 23, Issue 2, 1996, Pages 173-197

  Fegan, Eileen ^a  

^a NEW COLLEGE   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0038413545     PISSN: 0263323X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1410415     Document Type: Article

References (117)

1. J. Butler and J.W. Scott (eds.), Feminists Theorize the Political (1992), introduction at xiv.
2. M. Barrett and A. Phillips (eds.), Destabilizing Theory: Contemporary Feminist Debates (1992), introduction.
3. The ideology of motherhood has been used in feminist legal (most notably Canadian) and non-legal analyses of child custody, child welfare and child-rearing responsibilities, female socialization, birth control restrictions, and the regulation of women's behaviour during pregnancy and parturition. See n. 31 below and accompanying text.
4. While ideology has been used predominantly by feminists identifying themselves as 'Marxist' or more recently, 'socialist', its usage has been expanded beyond the immediate concern with class relations, appearing in a plethora of accounts as a descriptive term highlighting the subtleties of the continued unequal status of women. It is therefore difficult to list the usages or label the alliances to which I refer in this article. In any event it is questionable whether such categorization of feminist theoretical work is a help or a hindrance to what must remain our joint primary goal - political practice. For further comment on this, see L. Weir, 'Left Popular Politics in Canadian Feminist Abortion Organizing, 1982-1991' (1994) 20 Feminist Studies at 264, who claims that '[t]ypological approaches to the understanding of feminism impede recognition of the ways in which political tendencies within feminism establish complex relations of work and interdependency.'
5. For an account of the other strands of feminist thought which sought different monocausal explanations for women's 'oppression' during the 1970s and '80s, see Barret and Phillips, op. cit., n. 2. While my ensuing analysis shares something of the socialist feminist focus upon the structural exploitation of women, the revised notion of ideology upon which it is built marks a significant move away from the idea of an 'original and founding cause' (id., p. 3) due partially to the post-structuralist recognition that, since women experience oppression in complex, varied and even contradictory ways, it is problematic to theorize it as a linear system of universal subjection (see nn. 7, 8, 11 below) or to attribute women's social position to any one particular social practice.
6. C. Smart, 'Feminism and Law: Some Problems of Analysis and Strategy' (1986) 14 International J. of the Sociology of Law 109.
7. C. Smart, Feminism and the Power of Law (1989) 76-8.
8. Marxist feminists' model of law as an instrument of patriarchy has been described by C. Smart, 'The Woman of Legal Discourse' (1992) 1 Social and Legal Studies 29, at 30, as 'a recipe for despair, given that theorizing everything as an effect of a monolithic patriarchy rendered feminism itself little more than false consciousness at best, or a device for sustaining patriarchy at worst.'
9. M. Foucault, The Archaeology of Knowledge, (1972) 21-7.
10. Smart, op. cit., n. 6, in particular has made an enormous contribution to this increased sophistication of feminist approaches to law through her presentation of a case for conducting analysis within law as a discourse which makes (suspect) claims to 'truth', as opposed to merely investigating the effects of its substantive content. See also Smart's later work, op. cit., n. 7, which locates law's power in its 'production' of not only the gendered subject but also, of additional gendered 'subjectivities or identities', such as the 'bad mother'.
11. For example, S. Hekman, Gender and Knowledge: Elements of a Postmodern Feminism (1990) and J. Butler, Gender Trouble: Feminism and the Subversion of Identity (1990). Leading examples of earlier work (not specifically identified as post-structuralist) responsible for the exposing and challenging the middle-class, ethnocentric, and essentialist assumptions inherent in feminist claims made on behalf of 'women' as a unified category are: M. Kline, 'Race, Racism and Feminist Legal Theory' (1989) 12 Harvard Women's Law J. 115 and A. Harris, 'Race and Essentialism in Feminist Legal Theory' (1990) 42 Stanford Law Rev. 581.
12. For example, S. Hekman, Gender and Knowledge: Elements of a Postmodern Feminism (1990) and J. Butler, Gender Trouble: Feminism and the Subversion of Identity (1990). Leading examples of earlier work (not specifically identified as post-structuralist) responsible for the exposing and challenging the middle-class, ethnocentric, and essentialist assumptions inherent in feminist claims made on behalf of 'women' as a unified category are: M. Kline, 'Race, Racism and Feminist Legal Theory' (1989) 12 Harvard Women's Law J. 115 and A. Harris, 'Race and Essentialism in Feminist Legal Theory' (1990) 42 Stanford Law Rev. 581.
13. For example, S. Hekman, Gender and Knowledge: Elements of a Postmodern Feminism (1990) and J. Butler, Gender Trouble: Feminism and the Subversion of Identity (1990). Leading examples of earlier work (not specifically identified as post-structuralist) responsible for the exposing and challenging the middle-class, ethnocentric, and essentialist assumptions inherent in feminist claims made on behalf of 'women' as a unified category are: M. Kline, 'Race, Racism and Feminist Legal Theory' (1989) 12 Harvard Women's Law J. 115 and A. Harris, 'Race and Essentialism in Feminist Legal Theory' (1990) 42 Stanford Law Rev. 581.
14. For example, S. Hekman, Gender and Knowledge: Elements of a Postmodern Feminism (1990) and J. Butler, Gender Trouble: Feminism and the Subversion of Identity (1990). Leading examples of earlier work (not specifically identified as post-structuralist) responsible for the exposing and challenging the middle-class, ethnocentric, and essentialist assumptions inherent in feminist claims made on behalf of 'women' as a unified category are: M. Kline, 'Race, Racism and Feminist Legal Theory' (1989) 12 Harvard Women's Law J. 115 and A. Harris, 'Race and Essentialism in Feminist Legal Theory' (1990) 42 Stanford Law Rev. 581.
15. R. Sandland, 'Between "Truth" and "Difference": Poststructuralism, Law and the Power of Feminism' (1995) 3 Feminist Legal Studies 3.
16. In L. Martin, H. Gutman, and P. Hutton (eds.), Technologies of the Self: A Seminar with Michel Foucault (1988) 19.
17. R.W. Connell, Gender and Power: Society, Person and Sexual Politics (1987) 242.
18. id., p. 243. Connell refers in particular to the sustenance of the belief that husbands are the breadwinners in families where the wife is earning a wage - even when she earns more than he does - and the preponderance of the ideology of women's 'natural' incapacity for certain types of work in the face of actual evidence of their success in carrying it out.
19. The strategic importance of developing such an understanding has recently been highlighted by M. Deveaux, 'Feminism and Empowerment: A Critical Reading of Foucault' (1994) 20 Feminist Studies 223, for whom the assertion in some post-structuralist feminist work that: 'women internalize the feminine ideal so profoundly that they lack the critical distance necessary to contest it and are even fearful of the consequences of "non-compliance"' serves to obscure the necessity of focusing upon processes of empowerment, id., at 226. This necessarily implicates a discussion of the place of the subject in theories of ideology and discourse, and to some extent therefore pre-empts the ensuing discussion on reconceptualizing ideology, in which some pertinent questions regarding the participation of women themselves in sex-biased ideology are raised. While, admittedly, a theoretically informed treatment of the relationship between women's 'experience' and dominant discursive constructions of feminity must form part of any feminist attempt to utilize ideology as a tool of women's empowerment, the need to impose workable limits on this current, largely exploratory project, restricts me to considering how a revised understanding of ideology may provide the critical first step toward achieving that 'critical distance'.
20. The strategic importance of developing such an understanding has recently been highlighted by M. Deveaux, 'Feminism and Empowerment: A Critical Reading of Foucault' (1994) 20 Feminist Studies 223, for whom the assertion in some post-structuralist feminist work that: 'women internalize the feminine ideal so profoundly that they lack the critical distance necessary to contest it and are even fearful of the consequences of "non-compliance"' serves to obscure the necessity of focusing upon processes of empowerment, id., at 226. This necessarily implicates a discussion of the place of the subject in theories of ideology and discourse, and to some extent therefore pre-empts the ensuing discussion on reconceptualizing ideology, in which some pertinent questions regarding the participation of women themselves in sex-biased ideology are raised. While, admittedly, a theoretically informed treatment of the relationship between women's 'experience' and dominant discursive constructions of feminity must form part of any feminist attempt to utilize ideology as a tool of women's empowerment, the need to impose workable limits on this current, largely exploratory project, restricts me to considering how a revised understanding of ideology may provide the critical first step toward achieving that 'critical distance'.
21. See, for example, Z. Maharaj, 'A Social Theory of Gender: Connell's Gender and Power' (1995) 49 Feminist Rev. 50-65; K. Bartlett, 'Feminist Perspectives on the Ideological Impact of Legal Education upon the Profession' (1994) 72 North Carolina Law Rev. 1259; M. Kline, 'Child Welfare Law, "Best Interests of the Child" Ideology and First Nations' (1992) 30 Osgoode Hall Law J. 375. On the ideology of motherhood specifically, see, also, n. 31 below.
22. See, for example, Z. Maharaj, 'A Social Theory of Gender: Connell's Gender and Power' (1995) 49 Feminist Rev. 50-65; K. Bartlett, 'Feminist Perspectives on the Ideological Impact of Legal Education upon the Profession' (1994) 72 North Carolina Law Rev. 1259; M. Kline, 'Child Welfare Law, "Best Interests of the Child" Ideology and First Nations' (1992) 30 Osgoode Hall Law J. 375. On the ideology of motherhood specifically, see, also, n. 31 below.
23. See, for example, Z. Maharaj, 'A Social Theory of Gender: Connell's Gender and Power' (1995) 49 Feminist Rev. 50-65; K. Bartlett, 'Feminist Perspectives on the Ideological Impact of Legal Education upon the Profession' (1994) 72 North Carolina Law Rev. 1259; M. Kline, 'Child Welfare Law, "Best Interests of the Child" Ideology and First Nations' (1992) 30 Osgoode Hall Law J. 375. On the ideology of motherhood specifically, see, also, n. 31 below.
24. Deveaux, op. cit., n. 16, p. 226, argues that Foucauldian insights into the less tangible exercises of power over women - in particular, the understanding that the female subject is constructed - should not cause us to lose sight of continuing overt forms of domination over women in the social, economic, and political spheres.
25. This is apparent in Maharaj's assertion, op. cit., n. 17, p. 57, that the organization of power relations is a product of a complex interrelation of historically specific and ever-changing 'ideologies of gender, race, class, ethnicity and other relevant ideologies of superiority or systems of social stratification'.
26. The term 'idéologue' was first used in post-revolutionary France by Napoleon, as a derogatory description of those whose doctrines he believed were contributing to the country's downfall. Upon an understanding of such origins, it has been widely argued that 'ideology' must have a necessarily negative and political meaning. See S. Sayers, 'Knowledge as a Social Phenomenon' (1989) 52 Radical Philosophy 34 at 35, who states that, '[t]o describe ideas as "ideological" is often simply to reject them as partial, relative and false.'
27. As A. Hunt points out in 'The Ideology of Law: Advances and Problems in Recent Applications of the Concept of Ideology to the Analysis of Law' (1985) 19 Law and Society Rev. 11, at 13, since Marx himself used the concept in a variety of ways, it is misleading to assert that this, or any other definition, is the 'correct' one from a reading of his texts. Furthermore, any claim as to what Marx really meant by 'ideology', being simply an interpretation, could paradoxically, be claimed to be ideological in itself.
28. For more recent critiques on ideology as false consciousness see T. Eagleton, Ideology: An Introduction (1991), and J.B. Thompson, Studies in the Theory of Ideology (1984).
29. For more recent critiques on ideology as false consciousness see T. Eagleton, Ideology: An Introduction (1991), and J.B. Thompson, Studies in the Theory of Ideology (1984).
30. Thompson, id., p. 5.
31. id., p. 4, uses the concept 'discourse' to describe this essential relation between ideology and language.
32. Eagleton, op. cit., n. 22, pp. 28-31, acknowledges that at least six meanings can be unproblematically assserted in any attempt to conduct ideological analysis.
33. id., p. 22.
34. C. Ramazanoglu, Feminism and the Contradictions of Oppression (1989) 46-7.
35. As D. L. Rhode, 'Feminism and the State' (1994) 107 Harvard Law Rev. 1181 states, at 1185, 'to treat women as a class obscures other characteristics, such as race and economic status, that can be equally powerful in ordering social relations.'
36. M. Barrett, in The Politics of Truth: From Marx to Foucault (1991) 11, challenges the assumption that Marx's theory of ideology is necessarily tied to the concept of social class, suggesting that a recognition of the importance of other social divisions - such as gender and race - forces contemporary theorists of ideology to rethink what is actually meant by the term 'ruling class'.
37. Ramazanoglu, op. cit., n. 27, p. 47. I would depart from Ramazanoglu at the point where she characterizes this dominance as 'male'. In recognition of the complexity of the processes through which women are denied power in society, it is arguably more instructive to see it as a product of the interaction of the dominant social institutions - medical, religious, economic, and legal - albeit that they are (still) male-dominated.
38. Analytical treatment of the dominant social practices and beliefs associated with motherhood is often subsumed within feminist discussions of familial ideology as, for example, in F. Olsen, 'The Politics of Family Law' (1984) 2 Law and Inequality 1; M. Barrett and M. McIntosh, The Anti-Social Family (1982). Works dealing more specifically with the ideology of motherhood include: B. Wearing, The Ideology of Motherhood: A Study of Sydney Suburban Mothers (1984), relating it to a set of ideas and 'mythical assumptions about women's "maternal instinct'" which operate to legitimate the sexual division of labour within the family, and to restrict women's ability to compete equally with men in the market and political spheres of society (p. 16); L. Gordon, Woman's Body, Woman's Right: A Social History of Birth Control In America (1977), explaining the processes of female socialization to the maternal role; S.B. Boyd, 'Child Custody, Ideologies and Employment' (1989) 3 Canadian J. of Women and the Law 11, analysing the judicial denial of child custody to women who do not conform to traditional expectations of 'the good mother'. For more recent discussions, exploring the dominant notions of sexuality, race, and class embedded in the concept see: M. Kline, 'Complicating the Ideology of Motherhood; Child Welfare Law and First Nation Women' (1993) 18 Queen's Law J. 306; A. Diduck, 'Legislating Ideologies of Motherhood' (1993) 2 Social and Legal Studies 461. It is to be noted that the authors cited do not necessarily use the ideology of motherhood in the same way, nor indeed to point to the same theoretical or strategic conclusions about the law's relation to women or reproduction. This (by no means exhaustive) list of references is therefore intended as a guide to the earlier and contemporary feminist usages of the term which have influenced my own understanding of it and of the needs of a feminist reconceptualization of ideology itself. For a concrete application of the meaning upon which I rely (in analysing the judicial treatment of motherhood in Canadian abortion cases), see E.V. Fegan, '"Fathers", Foetuses and Abortion Decisionmaking: The Reproduction of Maternal Ideology in Canadian Judicial Discourse' (1996) 5 Social and Legal Studies 72. Reflecting a similar understanding of law's role in reinforcing oppressive images of motherhood (though without using the term 'ideology'), S. Sheldon, 'Who is the Mother to Make the Judgement?' (1993) 1 Feminist Legal Studies 3, provides an enlightening analysis of the impact of dominant medical constructions of 'Woman' upon British abortion legislation.
39. Analytical treatment of the dominant social practices and beliefs associated with motherhood is often subsumed within feminist discussions of familial ideology as, for example, in F. Olsen, 'The Politics of Family Law' (1984) 2 Law and Inequality 1; M. Barrett and M. McIntosh, The Anti-Social Family (1982). Works dealing more specifically with the ideology of motherhood include: B. Wearing, The Ideology of Motherhood: A Study of Sydney Suburban Mothers (1984), relating it to a set of ideas and 'mythical assumptions about women's "maternal instinct'" which operate to legitimate the sexual division of labour within the family, and to restrict women's ability to compete equally with men in the market and political spheres of society (p. 16); L. Gordon, Woman's Body, Woman's Right: A Social History of Birth Control In America (1977), explaining the processes of female socialization to the maternal role; S.B. Boyd, 'Child Custody, Ideologies and Employment' (1989) 3 Canadian J. of Women and the Law 11, analysing the judicial denial of child custody to women who do not conform to traditional expectations of 'the good mother'. For more recent discussions, exploring the dominant notions of sexuality, race, and class embedded in the concept see: M. Kline, 'Complicating the Ideology of Motherhood; Child Welfare Law and First Nation Women' (1993) 18 Queen's Law J. 306; A. Diduck, 'Legislating Ideologies of Motherhood' (1993) 2 Social and Legal Studies 461. It is to be noted that the authors cited do not necessarily use the ideology of motherhood in the same way, nor indeed to point to the same theoretical or strategic conclusions about the law's relation to women or reproduction. This (by no means exhaustive) list of references is therefore intended as a guide to the earlier and contemporary feminist usages of the term which have influenced my own understanding of it and of the needs of a feminist reconceptualization of ideology itself. For a concrete application of the meaning upon which I rely (in analysing the judicial treatment of motherhood in Canadian abortion cases), see E.V. Fegan, '"Fathers", Foetuses and Abortion Decisionmaking: The Reproduction of Maternal Ideology in Canadian Judicial Discourse' (1996) 5 Social and Legal Studies 72. Reflecting a similar understanding of law's role in reinforcing oppressive images of motherhood (though without using the term 'ideology'), S. Sheldon, 'Who is the Mother to Make the Judgement?' (1993) 1 Feminist Legal Studies 3, provides an enlightening analysis of the impact of dominant medical constructions of 'Woman' upon British abortion legislation.
40. Analytical treatment of the dominant social practices and beliefs associated with motherhood is often subsumed within feminist discussions of familial ideology as, for example, in F. Olsen, 'The Politics of Family Law' (1984) 2 Law and Inequality 1; M. Barrett and M. McIntosh, The Anti-Social Family (1982). Works dealing more specifically with the ideology of motherhood include: B. Wearing, The Ideology of Motherhood: A Study of Sydney Suburban Mothers (1984), relating it to a set of ideas and 'mythical assumptions about women's "maternal instinct'" which operate to legitimate the sexual division of labour within the family, and to restrict women's ability to compete equally with men in the market and political spheres of society (p. 16); L. Gordon, Woman's Body, Woman's Right: A Social History of Birth Control In America (1977), explaining the processes of female socialization to the maternal role; S.B. Boyd, 'Child Custody, Ideologies and Employment' (1989) 3 Canadian J. of Women and the Law 11, analysing the judicial denial of child custody to women who do not conform to traditional expectations of 'the good mother'. For more recent discussions, exploring the dominant notions of sexuality, race, and class embedded in the concept see: M. Kline, 'Complicating the Ideology of Motherhood; Child Welfare Law and First Nation Women' (1993) 18 Queen's Law J. 306; A. Diduck, 'Legislating Ideologies of Motherhood' (1993) 2 Social and Legal Studies 461. It is to be noted that the authors cited do not necessarily use the ideology of motherhood in the same way, nor indeed to point to the same theoretical or strategic conclusions about the law's relation to women or reproduction. This (by no means exhaustive) list of references is therefore intended as a guide to the earlier and contemporary feminist usages of the term which have influenced my own understanding of it and of the needs of a feminist reconceptualization of ideology itself. For a concrete application of the meaning upon which I rely (in analysing the judicial treatment of motherhood in Canadian abortion cases), see E.V. Fegan, '"Fathers", Foetuses and Abortion Decisionmaking: The Reproduction of Maternal Ideology in Canadian Judicial Discourse' (1996) 5 Social and Legal Studies 72. Reflecting a similar understanding of law's role in reinforcing oppressive images of motherhood (though without using the term 'ideology'), S. Sheldon, 'Who is the Mother to Make the Judgement?' (1993) 1 Feminist Legal Studies 3, provides an enlightening analysis of the impact of dominant medical constructions of 'Woman' upon British abortion legislation.
41. Analytical treatment of the dominant social practices and beliefs associated with motherhood is often subsumed within feminist discussions of familial ideology as, for example, in F. Olsen, 'The Politics of Family Law' (1984) 2 Law and Inequality 1; M. Barrett and M. McIntosh, The Anti-Social Family (1982). Works dealing more specifically with the ideology of motherhood include: B. Wearing, The Ideology of Motherhood: A Study of Sydney Suburban Mothers (1984), relating it to a set of ideas and 'mythical assumptions about women's "maternal instinct'" which operate to legitimate the sexual division of labour within the family, and to restrict women's ability to compete equally with men in the market and political spheres of society (p. 16); L. Gordon, Woman's Body, Woman's Right: A Social History of Birth Control In America (1977), explaining the processes of female socialization to the maternal role; S.B. Boyd, 'Child Custody, Ideologies and Employment' (1989) 3 Canadian J. of Women and the Law 11, analysing the judicial denial of child custody to women who do not conform to traditional expectations of 'the good mother'. For more recent discussions, exploring the dominant notions of sexuality, race, and class embedded in the concept see: M. Kline, 'Complicating the Ideology of Motherhood; Child Welfare Law and First Nation Women' (1993) 18 Queen's Law J. 306; A. Diduck, 'Legislating Ideologies of Motherhood' (1993) 2 Social and Legal Studies 461. It is to be noted that the authors cited do not necessarily use the ideology of motherhood in the same way, nor indeed to point to the same theoretical or strategic conclusions about the law's relation to women or reproduction. This (by no means exhaustive) list of references is therefore intended as a guide to the earlier and contemporary feminist usages of the term which have influenced my own understanding of it and of the needs of a feminist reconceptualization of ideology itself. For a concrete application of the meaning upon which I rely (in analysing the judicial treatment of motherhood in Canadian abortion cases), see E.V. Fegan, '"Fathers", Foetuses and Abortion Decisionmaking: The Reproduction of Maternal Ideology in Canadian Judicial Discourse' (1996) 5 Social and Legal Studies 72. Reflecting a similar understanding of law's role in reinforcing oppressive images of motherhood (though without using the term 'ideology'), S. Sheldon, 'Who is the Mother to Make the Judgement?' (1993) 1 Feminist Legal Studies 3, provides an enlightening analysis of the impact of dominant medical constructions of 'Woman' upon British abortion legislation.
42. Analytical treatment of the dominant social practices and beliefs associated with motherhood is often subsumed within feminist discussions of familial ideology as, for example, in F. Olsen, 'The Politics of Family Law' (1984) 2 Law and Inequality 1; M. Barrett and M. McIntosh, The Anti-Social Family (1982). Works dealing more specifically with the ideology of motherhood include: B. Wearing, The Ideology of Motherhood: A Study of Sydney Suburban Mothers (1984), relating it to a set of ideas and 'mythical assumptions about women's "maternal instinct'" which operate to legitimate the sexual division of labour within the family, and to restrict women's ability to compete equally with men in the market and political spheres of society (p. 16); L. Gordon, Woman's Body, Woman's Right: A Social History of Birth Control In America (1977), explaining the processes of female socialization to the maternal role; S.B. Boyd, 'Child Custody, Ideologies and Employment' (1989) 3 Canadian J. of Women and the Law 11, analysing the judicial denial of child custody to women who do not conform to traditional expectations of 'the good mother'. For more recent discussions, exploring the dominant notions of sexuality, race, and class embedded in the concept see: M. Kline, 'Complicating the Ideology of Motherhood; Child Welfare Law and First Nation Women' (1993) 18 Queen's Law J. 306; A. Diduck, 'Legislating Ideologies of Motherhood' (1993) 2 Social and Legal Studies 461. It is to be noted that the authors cited do not necessarily use the ideology of motherhood in the same way, nor indeed to point to the same theoretical or strategic conclusions about the law's relation to women or reproduction. This (by no means exhaustive) list of references is therefore intended as a guide to the earlier and contemporary feminist usages of the term which have influenced my own understanding of it and of the needs of a feminist reconceptualization of ideology itself. For a concrete application of the meaning upon which I rely (in analysing the judicial treatment of motherhood in Canadian abortion cases), see E.V. Fegan, '"Fathers", Foetuses and Abortion Decisionmaking: The Reproduction of Maternal Ideology in Canadian Judicial Discourse' (1996) 5 Social and Legal Studies 72. Reflecting a similar understanding of law's role in reinforcing oppressive images of motherhood (though without using the term 'ideology'), S. Sheldon, 'Who is the Mother to Make the Judgement?' (1993) 1 Feminist Legal Studies 3, provides an enlightening analysis of the impact of dominant medical constructions of 'Woman' upon British abortion legislation.
43. Analytical treatment of the dominant social practices and beliefs associated with motherhood is often subsumed within feminist discussions of familial ideology as, for example, in F. Olsen, 'The Politics of Family Law' (1984) 2 Law and Inequality 1; M. Barrett and M. McIntosh, The Anti-Social Family (1982). Works dealing more specifically with the ideology of motherhood include: B. Wearing, The Ideology of Motherhood: A Study of Sydney Suburban Mothers (1984), relating it to a set of ideas and 'mythical assumptions about women's "maternal instinct'" which operate to legitimate the sexual division of labour within the family, and to restrict women's ability to compete equally with men in the market and political spheres of society (p. 16); L. Gordon, Woman's Body, Woman's Right: A Social History of Birth Control In America (1977), explaining the processes of female socialization to the maternal role; S.B. Boyd, 'Child Custody, Ideologies and Employment' (1989) 3 Canadian J. of Women and the Law 11, analysing the judicial denial of child custody to women who do not conform to traditional expectations of 'the good mother'. For more recent discussions, exploring the dominant notions of sexuality, race, and class embedded in the concept see: M. Kline, 'Complicating the Ideology of Motherhood; Child Welfare Law and First Nation Women' (1993) 18 Queen's Law J. 306; A. Diduck, 'Legislating Ideologies of Motherhood' (1993) 2 Social and Legal Studies 461. It is to be noted that the authors cited do not necessarily use the ideology of motherhood in the same way, nor indeed to point to the same theoretical or strategic conclusions about the law's relation to women or reproduction. This (by no means exhaustive) list of references is therefore intended as a guide to the earlier and contemporary feminist usages of the term which have influenced my own understanding of it and of the needs of a feminist reconceptualization of ideology itself. For a concrete application of the meaning upon which I rely (in analysing the judicial treatment of motherhood in Canadian abortion cases), see E.V. Fegan, '"Fathers", Foetuses and Abortion Decisionmaking: The Reproduction of Maternal Ideology in Canadian Judicial Discourse' (1996) 5 Social and Legal Studies 72. Reflecting a similar understanding of law's role in reinforcing oppressive images of motherhood (though without using the term 'ideology'), S. Sheldon, 'Who is the Mother to Make the Judgement?' (1993) 1 Feminist Legal Studies 3, provides an enlightening analysis of the impact of dominant medical constructions of 'Woman' upon British abortion legislation.
44. Analytical treatment of the dominant social practices and beliefs associated with motherhood is often subsumed within feminist discussions of familial ideology as, for example, in F. Olsen, 'The Politics of Family Law' (1984) 2 Law and Inequality 1; M. Barrett and M. McIntosh, The Anti-Social Family (1982). Works dealing more specifically with the ideology of motherhood include: B. Wearing, The Ideology of Motherhood: A Study of Sydney Suburban Mothers (1984), relating it to a set of ideas and 'mythical assumptions about women's "maternal instinct'" which operate to legitimate the sexual division of labour within the family, and to restrict women's ability to compete equally with men in the market and political spheres of society (p. 16); L. Gordon, Woman's Body, Woman's Right: A Social History of Birth Control In America (1977), explaining the processes of female socialization to the maternal role; S.B. Boyd, 'Child Custody, Ideologies and Employment' (1989) 3 Canadian J. of Women and the Law 11, analysing the judicial denial of child custody to women who do not conform to traditional expectations of 'the good mother'. For more recent discussions, exploring the dominant notions of sexuality, race, and class embedded in the concept see: M. Kline, 'Complicating the Ideology of Motherhood; Child Welfare Law and First Nation Women' (1993) 18 Queen's Law J. 306; A. Diduck, 'Legislating Ideologies of Motherhood' (1993) 2 Social and Legal Studies 461. It is to be noted that the authors cited do not necessarily use the ideology of motherhood in the same way, nor indeed to point to the same theoretical or strategic conclusions about the law's relation to women or reproduction. This (by no means exhaustive) list of references is therefore intended as a guide to the earlier and contemporary feminist usages of the term which have influenced my own understanding of it and of the needs of a feminist reconceptualization of ideology itself. For a concrete application of the meaning upon which I rely (in analysing the judicial treatment of motherhood in Canadian abortion cases), see E.V. Fegan, '"Fathers", Foetuses and Abortion Decisionmaking: The Reproduction of Maternal Ideology in Canadian Judicial Discourse' (1996) 5 Social and Legal Studies 72. Reflecting a similar understanding of law's role in reinforcing oppressive images of motherhood (though without using the term 'ideology'), S. Sheldon, 'Who is the Mother to Make the Judgement?' (1993) 1 Feminist Legal Studies 3, provides an enlightening analysis of the impact of dominant medical constructions of 'Woman' upon British abortion legislation.
45. Analytical treatment of the dominant social practices and beliefs associated with motherhood is often subsumed within feminist discussions of familial ideology as, for example, in F. Olsen, 'The Politics of Family Law' (1984) 2 Law and Inequality 1; M. Barrett and M. McIntosh, The Anti-Social Family (1982). Works dealing more specifically with the ideology of motherhood include: B. Wearing, The Ideology of Motherhood: A Study of Sydney Suburban Mothers (1984), relating it to a set of ideas and 'mythical assumptions about women's "maternal instinct'" which operate to legitimate the sexual division of labour within the family, and to restrict women's ability to compete equally with men in the market and political spheres of society (p. 16); L. Gordon, Woman's Body, Woman's Right: A Social History of Birth Control In America (1977), explaining the processes of female socialization to the maternal role; S.B. Boyd, 'Child Custody, Ideologies and Employment' (1989) 3 Canadian J. of Women and the Law 11, analysing the judicial denial of child custody to women who do not conform to traditional expectations of 'the good mother'. For more recent discussions, exploring the dominant notions of sexuality, race, and class embedded in the concept see: M. Kline, 'Complicating the Ideology of Motherhood; Child Welfare Law and First Nation Women' (1993) 18 Queen's Law J. 306; A. Diduck, 'Legislating Ideologies of Motherhood' (1993) 2 Social and Legal Studies 461. It is to be noted that the authors cited do not necessarily use the ideology of motherhood in the same way, nor indeed to point to the same theoretical or strategic conclusions about the law's relation to women or reproduction. This (by no means exhaustive) list of references is therefore intended as a guide to the earlier and contemporary feminist usages of the term which have influenced my own understanding of it and of the needs of a feminist reconceptualization of ideology itself. For a concrete application of the meaning upon which I rely (in analysing the judicial treatment of motherhood in Canadian abortion cases), see E.V. Fegan, '"Fathers", Foetuses and Abortion Decisionmaking: The Reproduction of Maternal Ideology in Canadian Judicial Discourse' (1996) 5 Social and Legal Studies 72. Reflecting a similar understanding of law's role in reinforcing oppressive images of motherhood (though without using the term 'ideology'), S. Sheldon, 'Who is the Mother to Make the Judgement?' (1993) 1 Feminist Legal Studies 3, provides an enlightening analysis of the impact of dominant medical constructions of 'Woman' upon British abortion legislation.
46. Analytical treatment of the dominant social practices and beliefs associated with motherhood is often subsumed within feminist discussions of familial ideology as, for example, in F. Olsen, 'The Politics of Family Law' (1984) 2 Law and Inequality 1; M. Barrett and M. McIntosh, The Anti-Social Family (1982). Works dealing more specifically with the ideology of motherhood include: B. Wearing, The Ideology of Motherhood: A Study of Sydney Suburban Mothers (1984), relating it to a set of ideas and 'mythical assumptions about women's "maternal instinct'" which operate to legitimate the sexual division of labour within the family, and to restrict women's ability to compete equally with men in the market and political spheres of society (p. 16); L. Gordon, Woman's Body, Woman's Right: A Social History of Birth Control In America (1977), explaining the processes of female socialization to the maternal role; S.B. Boyd, 'Child Custody, Ideologies and Employment' (1989) 3 Canadian J. of Women and the Law 11, analysing the judicial denial of child custody to women who do not conform to traditional expectations of 'the good mother'. For more recent discussions, exploring the dominant notions of sexuality, race, and class embedded in the concept see: M. Kline, 'Complicating the Ideology of Motherhood; Child Welfare Law and First Nation Women' (1993) 18 Queen's Law J. 306; A. Diduck, 'Legislating Ideologies of Motherhood' (1993) 2 Social and Legal Studies 461. It is to be noted that the authors cited do not necessarily use the ideology of motherhood in the same way, nor indeed to point to the same theoretical or strategic conclusions about the law's relation to women or reproduction. This (by no means exhaustive) list of references is therefore intended as a guide to the earlier and contemporary feminist usages of the term which have influenced my own understanding of it and of the needs of a feminist reconceptualization of ideology itself. For a concrete application of the meaning upon which I rely (in analysing the judicial treatment of motherhood in Canadian abortion cases), see E.V. Fegan, '"Fathers", Foetuses and Abortion Decisionmaking: The Reproduction of Maternal Ideology in Canadian Judicial Discourse' (1996) 5 Social and Legal Studies 72. Reflecting a similar understanding of law's role in reinforcing oppressive images of motherhood (though without using the term 'ideology'), S. Sheldon, 'Who is the Mother to Make the Judgement?' (1993) 1 Feminist Legal Studies 3, provides an enlightening analysis of the impact of dominant medical constructions of 'Woman' upon British abortion legislation.
47. See K. Pollitt, 'Are Women Morally Superior to Men?' The Nation, 28 December 1992, 799 for whom the entire notion of women being granted a public voice on account of the superior qualities of care, gentleness, and empathy they possess in their capacity as mothers - a theme by pursued by 'difference' feminists in the early 1980s - amounts to a pathetic demand that 'women be admitted into public life and public discourse not because they have a right to be there, but because they will improve them'. In response she cautions, '[b]y promising to assume that responsibility [we] lay the groundwork for excluding women again, as soon as it becomes clear that the promise cannot be kept' (p. 807).
48. Such a threat is evident in Britain, in the use of criminal law to regulate (and in Northern Ireland to prohibit) women's access to abortion. Yet even in other western jurisdictions where this explicit legal sanction on women's reproductive decision-making has been removed, there remains a subtle implication that law will intervene to prevent women straying too far from the ideals of proper motherhood - as evidenced in the sympathetic Canadian judicial response to abortion injunction claims by fathers, and in the increasingly harsh legal treatment in the United States of America of pregnant women whose everyday conduct (from sex to alcohol consumption) is considered to be a morally reprehensible (and therefore punishable) endangerment of foetal health. For further discussion of these issues, see Fegan and Diduck, op. cit., n. 31, and American Association of University Women, A Note: 'Rethinking (M)otherhood: Feminist Theory and the State Regulation of Pregnancy' (1990) 103 Harvard Law Rev. 1325.
49. Barrett and McIntosh, op. cit. n. 31, p. 12. The authors deal specifically with 1980s British Conservative policies on the family, but their arguments might be considered equally applicable to any political impulse in which ideological representations are utilized to gain popular support and sustain momemtum.
50. Gordon, op. cit., n. 31.
51. M.D. Freeman, 'Legal Ideologies, Patriarchal Precedents and Domestic Violence' in The State, the Law, and the Family, ed. M.D. Freeman (1984) 56.
52. Thompson, op. cit., n. 22, p. 4.
53. Ramazanoglu, op. cit., n. 27, p. 47 , refers to such a concept in terms of 'patriarchal' ideology. It may already be noted that in this paper I have retained some of the descriptive language - such as 'oppression' - of earlier feminist theorists from whose work I have departed on a deeper theoretical level. My motivation in relation to that particular term is pragmatic - despite its association with the earlier problematic Marxist and radical feminist theories of ideology referred to above, I believe it is excusable for contemporary feminists (however labelled) to continue using it simply to describe the phenomenon of women's continued unequal position in society relative to that of men, in so far as this may deter us from searching for more academically permissible terminology at the expense of devising analyses and strategies to address it. However, I would not endorse the continued use of 'patriarchy', since I believe it implies an unfortunate (categorical) reliance upon a framework of analysis which assumes a unity of dominant interests and their location in monolithic sources of power, for example, 'the state'. For further criticism along these lines, see Rhode, op. cit., n. 28, pp. 1185-6.
54. C. MacKinnon, 'Feminism, Marxism, Method and the State: An Agenda for Theory' (1982) 7 Signs 515, and Feminism Unmodified: Discourses on Life and Law (1987). As suggested at the outset, Marxist feminists tended to assume that women could be 'written into' orthodox ideological analyses simply by treating patriarchy, like capitalism, as the base determinative of social (super-)structures such as law, and by treating men as the 'ruling class' who organized a system of reproductive relations (akin to those of material production) beneficial to themselves. This of course meant that women, like the lower classes, participated in the exploitation of their reproductive (labour) power only because they were falsely conscious of their own interests in maintaining this oppressive system.
55. C. MacKinnon, 'Feminism, Marxism, Method and the State: An Agenda for Theory' (1982) 7 Signs 515, and Feminism Unmodified: Discourses on Life and Law (1987). As suggested at the outset, Marxist feminists tended to assume that women could be 'written into' orthodox ideological analyses simply by treating patriarchy, like capitalism, as the base determinative of social (super-)structures such as law, and by treating men as the 'ruling class' who organized a system of reproductive relations (akin to those of material production) beneficial to themselves. This of course meant that women, like the lower classes, participated in the exploitation of their reproductive (labour) power only because they were falsely conscious of their own interests in maintaining this oppressive system.
56. Smart, op. cit., n. 7, p. 77-9.
57. One of MacKinnon's most renowned claims to this effect is that some women eroticize dominance or want to believe that they 'already have [consensual sex] more than they actually have it,' suggesting that patriarchal ideology encourages women to view coercive sex as consensual. MacKinnon, op. cit. (1987), n. 39, p. 217. For a fuller discussion on overcoming the problems of determinism in feminist critiques of ideology, see K. Abrams, 'Ideology and Women's Choices' (1990) 24 Georgia Law Rev. 760.
58. 'Socialist' is the affiliation most often attributed (by the authors themselves) to the work of feminists who continue to use ideology as a progressive analytical tool: see S. Gavigan, 'Paradise Lost, Paradox Revisited: The Implications of Familial Ideology for Feminist, Lesbian and Gay Engagement to Law' (1993) 31 Osgoode Hall Law J. 589; D. Herman, Rights of Passage: Struggles for Lesbian and Gay Legal Equality (1994). No attempt is made here to categorize or limit use of the concept by reference to the value of socialism. Rather, it is hoped that the re-employment of ideology in this article may illuminate a commonality in the theoretical difficulties currently facing feminists of various political allegiances.
59. 'Socialist' is the affiliation most often attributed (by the authors themselves) to the work of feminists who continue to use ideology as a progressive analytical tool: see S. Gavigan, 'Paradise Lost, Paradox Revisited: The Implications of Familial Ideology for Feminist, Lesbian and Gay Engagement to Law' (1993) 31 Osgoode Hall Law J. 589; D. Herman, Rights of Passage: Struggles for Lesbian and Gay Legal Equality (1994). No attempt is made here to categorize or limit use of the concept by reference to the value of socialism. Rather, it is hoped that the re-employment of ideology in this article may illuminate a commonality in the theoretical difficulties currently facing feminists of various political allegiances.
60. See S. Boyd, 'Some Post-Modernist Challenges to Feminist Analyses of Law, Family and State: Ideology and Discourse in Child Custody Law' (1991) 10 Can. J. of Women and the Law 79, who cautions against the traditional functional usage of ideology in feminist analyses. For her, it is less important for feminists to provide 'monocausal explanations for women's oppression' than to seek an understanding of the ways and processes through which different groups of women are oppressed (emphasis added). While thus acknowledging the importance of a focus on law as a 'discourse', she maintains that 'ideology' is still useful in order to avoid 'completely particularistic analyses', and to analyse why and in what ways women themselves may participate in, or resist, their own oppression (pp. 84-5).
61. Barrett and McIntosh, op. cit., n. 31, p. 27.
62. id., p. 35.
63. The English Abortion Act 1967, s. 1(1) (as amended by Human Fertilisation and Embryology Act 1990, s. 37) regulates access to abortion by requiring the agreement of two doctors that one of a given number of medically or socially acceptable reasons exist for permitting termination of the pregnancy, including risks to the 'physical or mental health of the pregnant woman or any existing children of her family'. For a detailed discussion of the 'fictional' constructions of 'Woman' and particular deviant female identities inherent in the English law, see Sheldon, op. cit., n. 31.
64. Barrett and McIntosh, op. cit., n. 31, p. 27.
65. Wearing, op. cit., n. 31, p. 16. In acknowledgement of the insights proffered by black feminists, that women suffer from various and often overlapping sources of oppression, it cannot be claimed that women are uniformly oppressed by dominant social institutions. However, I believe it may still be contended that women are materially affected as a result of the institutional manipulation of gender-biased ideology. (This is of course not to assume that men as a dominant group either benefit exclusively from, or are wholly responsible for perpetrating such ideology. As discussed above, the effectiveness of gender ideology is in part a result of some women's identification with, and desire to live up to its ideals.) For a discussion of the differential effects of the ideology of motherhood upon variously situated women, see Boyd, op. cit., n. 43 and, on the interplay of the forces of class, race, and patriarchy in complicating different women's relationships with governing institutions, see Rhode, op. cit., n. 28.
66. Wearing, id.
67. The need to re-inform ourselves about the often taken-for-granted role of social institutions in the creation and maintenance of ideology is highlighted by Connell, op. cit. n. 14, p. 242, who observes, '[n]eglecting institutions, economics and the routines of politics means that analyses of ideology are often parked on top of crude categorical assumptions about power and the relation between person and group.'
68. Barrett and McIntosh, op. cit., n. 31, p. 20. In respect of the difficulties often experienced by feminists in resisting the oppressive effects of familial ideology, the authors acknowledge that 'most women are very committed to the family' (p. 16). It might be argued that this is true of all successful ideologies, in that without the participation (or in some cases, 'passionate enthusiam' - Barrett, op. cit., n. 29, p. 10) of their subjects, they must necessarily involve an element of coercion which, in being easier to expose, are more difficult to sustain in the long term.
69. Barrett and MacIntosh, id.
70. See Foucault, op. cit., n. 9. As Barrett, op. cit., n. 29, p. 126, contends, discourse thus enables us to understand how 'what is said fits into a network that has its own history and conditions of existence'.
71. Barrett, id., p. 30.
72. M. Foucault, Power/Knowledge: Selected Interviews and Other Writings, 1972-1977, ed. Colin Gordon (1980) 118.
73. A. Hunt, 'Marxism, Law, Legal Theory and Jurisprudence' in Dangerous Supplements: Resistance and Renewal In Jurisprudence, ed. P. Fitzpatrick (1991) 102, at 115. In Hunt's later co-authored article (A. Hunt and T. Purvis, 'Discourse, ideology, discourse, ideology, discourse, ideology...' (1993) 44 Brit. J. of Sociology 473, at 474) there is a further acknowledgement that 'ideology and discourse refer to pretty much the same aspect of social life - the idea that individuals participate in forms of understanding, comprehension or consciousness of the relations and activities in which they are involved.' However, the latter work makes a more convincing case for retaining both concepts, in arguing that the continued (Neo-Marxist) use of ideology involves 'the attempt to understand how relations of domination are reproduced with only minimal resort to direct coercion' while the employment of discourse in modern social theory is an attempt to 'grasp the way in which language and other forms of social semiotics not merely convey social experience, but play some major part in constituting social subjects... their relations and the field in which they exist.'
74. A. Hunt, 'Marxism, Law, Legal Theory and Jurisprudence' in Dangerous Supplements: Resistance and Renewal In Jurisprudence, ed. P. Fitzpatrick (1991) 102, at 115. In Hunt's later co-authored article (A. Hunt and T. Purvis, 'Discourse, ideology, discourse, ideology, discourse, ideology...' (1993) 44 Brit. J. of Sociology 473, at 474) there is a further acknowledgement that 'ideology and discourse refer to pretty much the same aspect of social life - the idea that individuals participate in forms of understanding, comprehension or consciousness of the relations and activities in which they are involved.' However, the latter work makes a more convincing case for retaining both concepts, in arguing that the continued (Neo-Marxist) use of ideology involves 'the attempt to understand how relations of domination are reproduced with only minimal resort to direct coercion' while the employment of discourse in modern social theory is an attempt to 'grasp the way in which language and other forms of social semiotics not merely convey social experience, but play some major part in constituting social subjects... their relations and the field in which they exist.'
75. Connell, op. cit., n. 14, p. 244.
76. See op. cit., n. 51 and accompanying text.
77. Boyd, op. cit., n. 43, p. 97.
78. id., p. 89.
79. id., p. 79.
80. Thompson, op. cit., n. 22, p. 5.
81. Boyd, op. cit., n. 43, p. 98.
82. According to Thompson, op. cit., n. 22, p. 2, the theory of ideology must necessarily be enriched through a reflection on language, since 'ideas circulate in the social world as utterances, as expressions, as words which are spoken or inscribed.' Eagleton, op. cit., n. 22, p. 9, further contends that ideology 'concerns the actual uses of language between particular human subjects for the production of specific effects.'
83. Re K (Minors) [1977] 1 All E.R. 655.
84. Hunt, op. cit., n. 21, pp. 14-22.
85. K. O'Donovan, Sexual Divisions in Law (1985). See also S.A.M. Gavigan, 'Law, Gender and Ideology' in Legal Theory Meets Legal Practice, ed. A. Bayefsky (1988) 283, who concedes that the two levels of inquiry necessary to expose law
86. K. O'Donovan, Sexual Divisions in Law (1985). See also S.A.M. Gavigan, 'Law, Gender and Ideology' in Legal Theory Meets Legal Practice, ed. A. Bayefsky (1988) 283, who concedes that the two levels of inquiry necessary to expose law as a site of ideological struggle for feminists - form and substance - may well be co-extensive.
87. K. O'Donovan, 'Engendering Justice: Women's Perspectives and the Rule of Law' (1988) University of Toronto Law J. 127, at 130, refers specifically to the form of the British sex discrimination legislation (Sex Discrimination Act 1975, s. 5 (3)), which, in requiring the plaintiff to prove that she was less favourably treated than a man in a similar situation, makes it almost impossible to redress unequal treatment where 'differences' actually exist - for example, in those areas involving pregnancy and child-rearing responsibilities - where women arguably need law's support most.
88. Concern with these issues has been a feature of feminist work on the law for the last decade and has indeed produced some invaluable insights into the tensions reform strategies create between resistance to and co-optation within law's own (oppressive) terms of reference: see Smart, op. cit., n. 7 and n. 8; and M. Thornton, 'Feminism and the Contradictions of Law Reform' (1991) 19 International J. of the Sociology of Law 453. Recent criticism, however, throws into question the desirability of wholly deconstructionist strategies which have been developed in response to (in particular, Smart's) reform critique: see Sandland, op. cit., n. 12. My ensuing discussion of the possibilities provided through ideological analysis of law seeks to address, though by no means fully alleviate, this concern.
89. Gavigan, op. cit., n. 67, p. 290.
90. id.
91. These notions are arguably synonyms for 'dominant ideology', which Hunt, op. cit., n. 56, p. 116, describes as 'the prevailing influence which comes closest to forming the "commonsense" of the period and thus appearing as natural, normal and right.' He adds that it normally reflects some form of accommodation of the interests of various social groups, and therefore, embodies to some extent the ideas of less socially powerful groups. This assists in understanding the dominant ideology of motherhood which, as argued above, to some degree consists of women's own desires, practices, and beliefs about child-bearing.
92. O'Donovan, op. cit., n. 67, p. 202.
93. id., p. 122.
94. When dominant ideas are expressed in the courts, they are not only given implicit acceptance there, but may also be re-formulated by the judiciary in accordance with historic and prevailing legal conventions and their own beliefs. They are subsequently absorbed back into society where they are given further meanings by competing interest groups. In this dialectical process the dominant meanings are then re-absorbed by the courts and applied both explicitly and implicitly in the resolution of disputes around the issue involved. See Herman, op. cit., n. 42, p. 6. For further illustrations of this in the Canadian abortion debate, see Fegan, op. cit., n. 31.
95. S.A.M. Gavigan, 'Beyond Morgentaler: The Legal Regulation of Reproduction' in The Politics of Abortion , eds. J. Brodie, S. Gavigan, and J. Jenson (1992) 290.
96. O'Donovan, op. cit., n. 67, p. 200.
97. id., pp. 19-20.
98. Gavigan, op. cit., n. 76, p. 295.
99. id.
100. This is not to negate the benefits in terms of organization, visibility, and so on that the use of law has brought to movements such as lesbian and gay rights collectivities. For further comment see Herman, op. cit., n. 42.
101. Yet, even in such cases law has operated as a double-edged sword. In Eves v. Eves [1975] 1 W.L.R. 1338, for example, the woman's arduous renovation works to the shared home were considered sufficient to support the existence of a beneficial interest in the property, only because such activity went beyond what would normally be expected of her 'as a wife and mother.'
102. Gavigan, op. cit., n. 67, p. 289.
103. See Fegan, op. cit., n. 31.
104. See op. cit., n. 69 and accompanying text.
105. Brodie et al., op. cit., n. 76, p. 9.
106. S. Silbey, 'Loyalty and Betrayal: Cotterrell's Discovery and Reproduction of Legal Ideology' (1991) 16 Law and Social Inquiry 809, at 817.
107. Sandland's recent critique, op. cit., n. 12, makes an invaluable contribution to the debate on the relevance of post-structuralist critiques to feminist legal theory. I necessarily rely on this in unravelling some of the complications of deconstruction as a basis for future feminist legal strategy.
108. C. Smart, 'Feminist Jurisprudence' in Fitzpatrick, op. cit., n. 56, p. 156.
109. Sandland, op. cit., n. 12, pp. 14-21, argues that the very idea of 'post-structuralist feminism' demands some form of negotiation between feminist deconstructive impulses and modernist discourses, such as law, which make unsustainable claims to truth. He therefore disputes deconstructionists' abandonment of politics and values 'as lesser forms of, or contaminated knowledge' (p. 20).
110. Connell, op. cit., n. 14, pp. 285-6.
111. N. Lacey, 'Closure and Critique in Feminist Jurisprudence: Transcending the Dichotomy or a Foot in Both Camps?' in Closure or Critique: New Directions in Legal Theory, ed. A. Norrie (1993) 194, at 197, identifies this as a 'liberal' approach which, in feminist theory, has traditionally been translated into demands for formal legal equality, equal opportunity, or the inclusion of women's concerns in law - see O'Donovan op. cit., n. 68. While acknowledging this history, I see no reason, following Lacey's own definition of 'critique' as 'going beyond the superficial appearance of legal practices' (p. 195), why immanent critique should not be utilized in the more radical aim of exposing law's role as a discourse of construction, which is self-legitimating insofar as its power to construct is sustained by its own ideological claims to truth.
112. M. Salter and J. Shaw, 'Towards a Critical Theory of Constitutional Law: Hegel's Contribution' (1994) 21 J. of Law and Society 464, at 465.
113. id.
114. Freeman, op. cit., n. 36, p. 64.
115. id., p. 63. See L.M. Finley, 'Breaking Women's Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning' in Feminist Jurisprudence, ed. P. Smith (1993) 571, at 575, who argues that '[b]ecause it is embedded in a patriarchal framework that equates abstraction and universalization from only one group's experiences as neutrality, legal reasoning views male experiences and perspectives as the universal norm around which terms and entire areas of law are defined.'
116. id., p. 63. See L.M. Finley, 'Breaking Women's Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning' in Feminist Jurisprudence, ed. P. Smith (1993) 571, at 575, who argues that '[b]ecause it is embedded in a patriarchal framework that equates abstraction and universalization from only one group's experiences as neutrality, legal reasoning views male experiences and perspectives as the universal norm around which terms and entire areas of law are defined.'
117. E.P. Thompson, Whigs and Hunters (1975) at 263.