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Feminist Theory, Equality, and the Law the FEMALE BODY and the LAW by Zillah Eisenstein

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Feminist Theory, Equality, and the Law the FEMALE BODY and the LAW by Zillah Eisenstein Review Essay Difference, Dominance, Differences: Feminist Theory, Equality, and the Law THE FEMALE BODY AND THE LAW By Zillah Eisenstein. Berkeley: Uni- versity of California Press, 1989. Pp ix, 235. $9.95. Reviewed by Beth Bernsteint In literary criticism and in philosophy, the attempts to enrich femi- nist theory by integrating postmodemist and deconstructive insights have been developing for over a decade.I In the social sciences and in legal studies, however, such attempts have thus far been relatively few.2 This is not altogether surprising, given that much of postmodernist writ- ing concerns itself with informal configurations of power, rather than studies "centered on nothing more than the statement of the law and the t Associate Editor, The Mark Twain Papers, University of California at Berkeley; BA 1989, University of California at Berkeley. I am grateful to several friends who read through early drafts and offered advice and criticism. Special thanks to Kristin Luker, discussions with whom contributed significantly to my thinking on these issues. The terms "postmodernism," "poststructuralism," and "deconstruction" are often used vari- ously to refer to diverse strains of contemporary theory. Specifically, they describe the pos- tures of anti-essentialism and indeterminacy associated with the work of, among others, Jacques Derrida, Michel Foucault, and Jacques Lacan. For a general introduction to postmodernist thinking, see John Sturrock, ed, Structuralism and Since. From Levi-Strauss to Derrida (Oxford U Press, 1979). Summary treatments of "postmodernist feminism" can be found in Toril Moi, Sexual! Textual Politics (Methuen, 1985); Rosemarie Tong, Feminist Thought: A Comprehensive Introduction (Westview, 1989); Chris Weedon, Feminist Practice and PoststructuralistTheory (Basil Blackwell, 1987); Irene Diamond and Lee Quinby, eds, Feminism and Foucault (North- eastern U Press, 1988); and the articles in the "Deconstruction Issue" of 14 Feminist Studies (1988). 2 For other recent efforts to apply deconstructive insights to legal theory, see Drucitla Cornell, Post-structuralism,the Ethical Relation and the Law, 9 Cardozo L Rev 1587 (1988); Drucilla Cornell, The PoststructuralistChallenge to the Ideal of the Community, 8 Cardozo L Rev 989 (1987); J. M. Balkin, Deconstructive Practice and Legal Theory, 96 Yale L J 743 (1987); Mar- tin F. Katz, After the Deconstruction: Law in the Age of Poststructuralism,24 U W Ont L Rev 51 (1986). BERKELEY WOMEN'S LAW JOURNAL THE FEMALE BODY AND THE LAW operation of taboos." 3 A second problem is that the postmodern "disso- lution of the subject" often brings with it the negation of the possibility of a "voice" or stance upon which to ground political activity and change.4 In her recent book, The Female Body and the Law,5 Zillah Eisen- stein, a political scientist, makes an ambitious attempt to come to terms with these difficulties, opening up the domain of feminist political and legal theory (and specifically, the equality/difference debate)6 to some of the contributions of recent French thinking. In brief, Eisenstein aims towards a reconceptualization of equality which will take into account the specificity of the female body: deconstruction, she argues, is the tool which will allow us to affirm "the biological particularity of the female body without endorsing the historical contingencies of its engendered form" (p 4).7 It will enable us to subvert the binary opposition "same- ness/difference" with a radical pluralist vision of equality, and to replace our "phallocratic" symbolic order by one in which differences abound.' Eisenstein painstakingly works through the epistemological and methodological complexities that ensue, but for all of her diligence, I am 3 Michel Foucault, 1 The History of Sexuality 85 (Vintage 1980). Quoted in Carole Pateman, The Sexual Contract 16 (Stan U Press, 1989). Drawing upon Foucault's work, Irene Diamond and Lee Quinby conclude: "Given the contemporary political context, legal rights cannot be ignored, but we want to suggest that significant political change does not rest here." Diamond and Quinby, American Feminism and the Language of Control, Feminism and Foucault at 201 (cited in note 1).French femi- nists such as Julia Kristeva, Helene Cixous, and Luce Irigaray-more indebted to postmodernist theory than their American counterparts-have concerned themselves with aesthetic practices and femininejouissance rather than with legal modes of change. Moi, Sex- ual/Textual Politics (cited in note 1);Elaine Marks and Isabelle de Courtivron, eds, New French Feminisms (Schocken, 1981). 4 Mary Hawkesworth summarizes this position in the following way: The very idea of the "subject" has been castigated for incorporating assumptions about the "logic of identity" that posits knowers as undifferentiated, anonymous, and general, possessing a vision independent of all identifiable perspectives. Indeed, the conception of the knowing "subject" has been faulted for failure to grasp that rather than being the source of truth, the subject is the product of particular regimes of truth. Mary E. Hawkesworth, Knowers, Knowing, Known: Feminist Theory and the Claims of Truth, 14 Signs 550, 551 (1989). Embracing this critique, some Critical Legal Scholars have objected to the work of femi- nist and minority theorists on the grounds that it returns to a "naive" or "primitive" notion of subjectivity and identity. See Critical Legal Studies Past and Future: A Roundtable Debate with Robert Gordon, Thomas Grey, Thomas Heller, Mark Kelman, and William Simon, Mod- erated and Introduced by Richard Perry, I Stan Humanities Rev 85 (1990). 5 Zillah Eisenstein, The Female Body and the Law (U Cal Press, 1989). 6 For other attempts in this direction, see Seyla Benhabib and Drucilla Cornell, eds, Feminism as Critique (U of Minn Press, 1987); Martha Minow, Justice Engendered, 101 Harv L Rev 10 (1987); and Joan Scott, Gender and the Politics of History (Colum U Press, 1988). 7 All parenthetical page references are to Eisenstein, The Female Body and the Law (cited in note 5). 8 The terms "phallocratic" and "symbolic order" derive from the French psychoanalytic theo- rist, Jacques Lacan. In Eisenstein's gloss, " 'Phallocratic' describes the male-oriented symboli- zation of biological difference." Eisenstein, The Female Body and the Law at 21 (cited in note 5). In Lacan's work, "the Symbolic Order" refers to the interconnected symbols and rituals that regulate society. Jaques Lacan, Ecrits: A Selection 64-66 (W.W. Norton, 1977). See also the introductions to Juliet Mitchell and Jacqueline Rose, eds, Feminine Sexuality: Jacques Lacan and the icolefreudienne (W.W. Norton, 1985). BERKELEY WOMEN'S LAW JOURNAL not sure that she arrives at a satisfactory resolution. She rejects the rela- tivising elements of postmodernist theory that are problematic to her analysis, leaving us with a set of important, but not novel, assertions which should not need the vocabulary of postmodernism for their legiti- macy. Furthermore, once she leaves the realm of abstraction, her articu- lations of theory have little bearing on concrete issues. This review follows the format of Eisenstein's own argument. In the first section, I summarize and evaluate Eisenstein's claims for a feminist deconstructive epistemology and method. In part two, I examine the effi- cacy of these claims as applied to three public policy issues: sex discrimi- nation law, pornography, and abortion. The final part of this essay considers what feminists might gain or lose by shifting their emphasis (whether from "difference" or "dominance") to deconstruction and "differences." I. "DECENTERING THE PHALLUS" AND "DECONSTRUCTING DIFFERENCE": EISENSTEIN'S RADICAL PLURALIST EPISTEMOLOGY AND METHOD. For feminism, the epistemological problem is a real one. As the feminist philosopher Sandra Harding explains, that which "cannot be shown to serve the best interests of social progress by appeal to objective, dispassionate, impartial, rational knowledge-seeking ... in our culture ... cannot be legitimated at all." 9 Feminists must explain how their own politicized research increases the objectivity of inquiry, or they must pro- vide alternative grounds for justifying their claims. In chapter one, "Politics and/or Deconstruction: Thoughts on Method," Eisenstein introduces her readers to the elements of decon- struction which she believes can be of use for feminist theorizing. "Before we can formulate a new theory of sex equality, we need a new method for thinking about the female body and its gendered expression" (p 6). Deconstruction, she argues, "can lay the basis for a radical demo- cratic and feminist politics based in the open-texturedness of new under- standings of power" (p 24). Her epistemological starting points are the basic tenets of postmodernist theory: there is no "natural body" as such, only bodies that are constructed and gendered through social institu- tions; power is not located exclusively in the state, but rather is multiple, heterogeneous, and diffuse; language is structured by hierarchical binary oppositions and is, thus, politically significant; discourses," including legal discourse, reflect and perpetuate these hierarchical differences; sci- ence itself is non-neutral, subjective, and politically-embedded."' 9 Sandra Harding, The Science Question in Feminism 16 (Cornell U Press, 1986). 10 See sec I.A., below, for an explanation of Eisenstein's use of the term "discourse." I I If these premises sound familiar, it might be because feminism,
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