INTRODUCTION

Women have always been defined in relation to men: women are inferior or superior, equal or different, always in relation to men. While current feminist legal scholarship largely concentrates on the contemporary debate, the historical example of Spain shows that these competing principles have dogged feminist politics since the nineteenth century. This chapter is theoretically informed by one of the major debates in feminist legal theory, the question of equality versus difference: is justice best served by applying standards in a neutral manner to formally equal parties or would justice be better served if law made allowances for gender differences? Equality feminism, for its part, is committed to the ideals of gender neutrality and equality before the law, whereas difference feminism is sceptical about the possibility of neutrality and takes into consideration questions of inequality and power of those parties who might affect the legal process. In its latest manifestation the ‘equality versus difference’ debate revolves around the contention that we must consider the differences among women as well as those between the sexes. Martha Fineman, in her excellent article ‘Challenging law, establishing differences: the future of feminist legal scholarship’ (Fineman 1997: 53-71), calls for a ‘theory of difference’ which locates feminist legal theory, of necessity, outside of dominant legal discourse in order not to be limited by its concepts of equality and neutrality. At the same time she admits that focussing on differences among women, while theoretically significant, can all too easily have an adverse effect: ‘The task of feminist theory in this regard is to encourage women to work together, across differences, so that the similar, shared gendered aspects of our lives do not continue to be invisible and unspoken in law’ (Fineman 1997: 55).

The debate started in the 1980s when for the first time equality became a controversial concept in feminist legal theory.