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The Feminist Critique of Law and the Criminal Justice System

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The Feminist Critique of Law and the Criminal Justice System DR. ALEŠ ZAVRŠNIK – FEMINISTIČNA KRITIKA PRAVA IN KAZENSKOPRAVNEGA SISTEMA 11/27 The Feminist Critique of Law and the Criminal Justice System Summary Feminism is a very heterogeneous body of thought and activity: it denotes a so- cial movement, diverse theoretical directions, perspectives, »positions«. All of these share a presumption that women suffer discrimination where men do not in forms ranging from (normalized) physical violence, economic deprivation to the more sophisticated subordination of women in gendered spheres of knowledge and the e$clusive doctrines supporting them. The feminist perspective is categorized as such in any discourse, as feminist, and more than implicitly subordinated to supposedly normative positions within academic disciplines. &nsurprisingly, then, in accordance with the ubiquitous principle which demotes women and their views to the status of second-class citizens, a more deluxe sexism can be observed, an intellectual purdah. Thus feminist theory enters a scientific discipline such as law – as feminist legal theo- ry and criminology – as feminist perspectives in criminology. The feminist perspecti- ve is not, in other words, built into the discipline, but adjoined to it. Feminist legal theory has convincingly demonstrated that any idea of true neu- trality or equality within the (criminal) law is a myth insofar as gender is concerned. Supposedly general and neutral law perpetuates a »phallogocentric« cultural universe and a sexist and patriarchal society. (Criminal) law is but one of the discourses repro- ducing women in a sexualized and subjugated form. In this way feminist theory chal- lenges the »domain assumptions« of law (Gouldner) that are deeply embedded in the way we conceive the world and are taken as »natural« and »self-evident«. Additionally, feminist legal theory has indicated how social institutions, including the criminal ju- stice system, function as gendering practices and how those institutions’ gender-blin- dness manifests gender prejudices in concrete form. It has revealed the ways in which criminal courts and other agents of the criminal justice system reproduce self-evident »natural« women and function as agents in a wider gendering strategy (through the »technology of gender«). Feminism has thus exposed gender as a new indicator of the level of neutrality within our fields of knowledge and discourse (including legal theory) and social institutions (including the criminal justice system). After a brief introduction to feminism, the discussion illustrates the far-reaching feminist critique of (modern) science, in particular of three cardinal scientific as- sumptions: those of science’s (1) objectivity, (2) its rationality and (3) carrier of all knowledge – Cartesian human subject, the knowing actor who is the author of his own actions and knowledge, yet simultaneously the object of scientific enquiry. The discussion regards feminist theory not as a more objective or even neutral form of knowledge, but instead as a knowledge forming its own narratives. 2ost- modern feminism.s starting point is that observation of »facts« is never entirely objective. Observing and understanding facts, even proving their very existence, is 311 11/28 ZBORNIK ZNANSTVENIH RAZPRAV – LXVIII. LETNIK, 2008 impossible without a pre-conceptualization or »knowledge that is always already a product of some means of production of knowledge«. %aking as its point of depar- ture the deconstructionist conception of reality in which the signifier precedes the signified (and not vice versa), feminist theory conceives any theory that neglects to take gendered perspectives into account as being nothing more than a non-reflective form of theorisation. Feminist theory thus offers a valuable epistemological critique and meta-narrative on (criminal) law and criminology. The feminist critique of scientific ob ectivity takes it as read that women were e$cluded from the production of knowledge in both possible ways: as producers/ subjects and as objects of knowledge. The vast bulk of what stands as scientific know- ledge in western societies was created by men, who set up their own explanations and mental schemes, and verified and guaranteed their own findings amongst their peers. Feminists dispute the universality, neutrality and objectivity of such know- ledge because it necessarily reflects the interests and views of men. But the feminist critique is not only based on the empirical fact of women’s under-representation in the production of knowledge and organization of power, but also their e$clusion from postmodernist epistemological premises. According to postmodernists all meta- theories enforcing uniform perspective and neglecting the variety of human (women and men) subjectivities are misleading. The (meta) narrative of a single and uniform reality arising from »the universalizing perspective of the master« is deceptive. The discussion presents feminist solutions and its pitfalls in challenging the objectivity assumption. The feminist critique of rationality adds new arguments against the conception of a uniform and universal rationality. 7omen were traditionally e$cluded from the resultant rationality concept, an e$clusion both performed and concealed by the discursive construction of women as sexual ob)ects or bodies. In western society the body has been regarded as primitive, pre-modern, disruptive and irrational, as mechanisms that the intellect uses but eventually transcends. Feminists challenge this framework of meaning and its confinement of women to nothing more than their sexualized bodies. They find solutions in intuition, defined as a sort of »thinking« inspired by feminine principles. The position of intuition in western thought was not always disregarded. For instance Descartes conceived it as a »concept of clear and attentive mind« and the theory of a-sexual cogito carried the potential for female emancipation. Finally, feminists reject the notion of the Cartesian human subject, self from which action and thought are assumed to flow and who exists in an a priori sense, in essence and outside culture. According to feminists the modern science model of a human being reduced the Other to the relation to oneself – his nature, his universe, his supplement, his projection, his means… – within his world and horizon. 7estern culture and philosophy are mono-subjective, mono-sexual and therefore patriarchal and phallogocentric. The discussion presents some of the feminists’ solutions to the phallogocentric construction of subjectivity and the possibilities of an acknowledge- 312 DR. ALEŠ ZAVRŠNIK – FEMINISTIČNA KRITIKA PRAVA IN KAZENSKOPRAVNEGA SISTEMA 11/29 ment of »otherness« irreducible to a single masculine subject. For instance, Irigaray argues for sex and gender to become dual in a non-hierarchical relationship. In order to withdraw the authority of »One« conceived either as a human, father, God or unique truth, she suggests substitution of the model of a uniform omnipotent One surrounded by »many« with the model of »%wo«. Where feminist and legal theory intersect, feminist jurisprudence (also known as feminist legal theory or feminist socio-legal studies) has emerged and come to the fore. Although the 'uestion of whether feminist work on the law constitutes a special legal sub-field has still not been unanimously answered, a large corpus of such work has been conducted, covering a wide range of legal issues. The present discussion postulates three phases of feminist understanding of law: (1) a feminist faith in law, usually equated with the liberal feminist position, (2) a feminist response to the law as the »male culture of law«, mostly equated with the radical feminist position, and (3) a post-modern understanding of law, usually equated with the »standpoint feminism«. This discussion presents some of the essential lessons on the workings of law to have been provided by feminist postmodernism. 8eparting from post-structuralism, psychoanalysis, semiotics, narratology and communications studies, feminist post- modernism identifies the law as a highly self-contradictory system enabling different interpretations from different starting-points and taking different directions. Law does not exist outside gender relations but is integral to them, and is itself gendered in its principles and practice. »The 'uestion How is law gendered? is substituted with a 'uestion how law is a gendering strategy?« This approach does not advocate the pursuit of a neutral gender position in law (a state of genderlessness) but instead asks how law itself works as a gendering strategy; how women and (the idea of) 7oman is (re)created in law as a discourse. The discussion addresses the 'uestion mentioned above and, in three case studies, illustrates how law imposes a number of specific categories of women and (the idea of) 7oman It presents /) portraits of women who kill from an ‘orthodo$’ criminal law perspective, 2) portraits of sufferers of »battered wife« syndrome and (3) ac- counts of how rape suspects are charged and prosecuted. A common factor in all cases is that criminal law is limited in its capacity to understand and adapt to subjec- tive positions, and that the agency is frequently denied to women. Criminal legal descriptions of female murderers frequently deny or patronise women’s powers of reason, indeed their very rationality and capacity for moral thought. They deny the human agency of female protagonists and confirm that fe- male aggression has no place in our culture. This discussion presents three techniques commonly used
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