1 Catharine A. MacKinnon, “Feminism, Marxism, Method, and the State: Toward a Feminist Jurisprudence,” 8 Signs 635, 635 (1983).Google Scholar

2 Smart analyzes law as inevitably thwarting feminist reformism. See infra notes 16–20 and accompanying text. This analysis presents an important challenge to feminist state theories. Therefore, in both my general comparisons and in my specific treatment of attempts to theorize the patriarchal in terms of victim status and disciplinary power, 1 refer to examples from Smart's work. Because of the breadth of this body of work, I will cite specific titles only when quoting directly from the text. In addition to Feminism and the Power of Law, featured writings by Smart include “The Woman of Legal Discourse,” 1 Social & Legal Studies 29 (1992); “Law's Power, the Sexed Body, and Feminist Discourse,” 17 J.L. & Soc'y 194 (1990); “Patriarchy and the Law,”Scottish Legal Action Group Bull. No. 129, pp. 94–96 (1987); “Feminism and Law: Some Problems of Analysis and Strategy,” 14 Int'lJ. Soc. L. 109 (1986); “Legal Subjects and Sexual Objects: Ideology, Law and Female Sexuality,”in Julia Brophy & Carol Smart, eds., Women in Law: Explorations in Law, Family and Sexuality (London: Routledge & Kegan Paul, 1985); and “Introduction” and “Disruptive Bodies and Unruly Sex; The Regulation of Reproduction and Sexuality in the Nineteenth Century,” in Carol Smart, ed., Regulating Womanhood: Historical Essays on Marriage, Motherhood, and Sexuality (New York: Routledge, 1992).Google Scholar

3 Smart's work is not alone in raising this question; her sociology of law, and assessment of the prospect of feminist jurisprudence, is simply an important example of where such questioning leads, particularly when it comes to feminist emancipatory projects. Thanks to Jane Schacter for this reminder.Google Scholar

4 See Michel Foucault, “Governmentality,” 6 Ideology & Consciousness 5 (1979); and id., “The Political Technology of Individuals,” in Luther H. Martin, Huck Gutman, & Patrick Hutton, eds., Technologies of the Self: A Seminar with Michel Foucault (Amherst: University of Massachusetts Press, 1988). For a more feminist sociological presentation of “governance,” see Dorothy E, Smith, “Women's Perspective as a Radical Critique of Sociology,” in Sandra Harding, ed., Feminism and Methodology 86–87 (Bloomington: Indiana University Press, 1987).Google Scholar

5 “The Quest for a Feminist Jurisprudence,” ch. 4 in Feminism and t?ie Power of Law 66.Google Scholar

6 On this definition of gender relations, see Marilyn Frye, The Politics of Reality: Essays m Feminist Theory (Trumansburg, N.Y.: Crossing Press, 1983); Adrienne Rich, “Compulsory Heterosexuality and Lesbian Existence,” in Catharine R. Stimpson & Ethel Spector Person, eds., Women—Sex and Sexuality (Chicago: University of Chicago Press, 1980); and Gayle Rubin, “The Traffic in Women,” in Rayna Rapp Reiter, ed., Toward an Anthropology of Women (New York: Monthly Review Press, 1975).Google Scholar

7 For a review of feminist state theories from which these points might be derived, directed toward a legal audience, see Deborah L. Rhode, “Changing Images of the State: Feminism and the State,” 107 Haw. L. Rev. 1181 (1994).CrossRefGoogle Scholar

8 For an interesting remedy as well as a marvelous articulation of this problem, see Iris Marion Young, “Gender as Seriality: Thinking about Women as a Social Collective,” 19 Signs 713 (1994).CrossRefGoogle Scholar

9 Judith Allen, “Does Feminism Need a Theory of ‘the State’?” in Sophie Watson, ed., Playing the State: Australian Feminist Interventions 22 (London: Verso, 1992) (“Allen ‘Does Feminism Need a Theory?’“).Google Scholar

10 For the neo-Marxist basis for this structuralist definition of the state, see Nicos Poulantzas, Political Power and Social Classes (London: Verso, 1987), and Claus Offe, Contradictions of the Welfare State (Cambridge, Mass.: MIT Press, 1984)- For the further feminist emphasis on contradictions, especially between women's responsibilities for waged work and domestic labor, see the essays in Anne Showstack Sassoon, ed., Women and the State: The Shifting Boundaries of Public and Private (London: Hutchinson, 1987).Google Scholar

11 See Feminism and the Power of Law, especially ch. 1.Google Scholar

12 In addition to Michel Foucault, 1 The History of Sexuality (London: Allen Lane, 1979), and id., Discipline and Punish (New York: Vintage Books, 1979), see also Andrew Abbott, The System of Professions: An Essay on the Division of Expert Labor (Chicago: University of Chicago Press, 1988) (describing professional jurisdiction building in terms of competitions over authoritative claims and expansion of constituencies), and Nancy F. Cott, The Grounding of Modern Feminism (New Haven, Conn.: Yale University Press, 1987) (whose account of women and the professions provides grounds for a salutary rebuttal to Abbott's contention that gender is irrelevant to the mechanisms of competition between experts). The fact that Abbott and Foucault dovetail so nicely in this argument should raise suspicions that Foucault is a glorified neo-Parsonian functionalist, which might undermine his mystique a bit among contemporary feminist social theorists.Google Scholar

13 See the essays in Smart's edited volume Regulating Womanhood (cited in note 2), especially her Introduction and first chapter, in which she sets out these questions of regulation and agency.Google Scholar

14 These experiences include, e.g., antidiscriminatory litigation, protective legislation, social welfare administration, family policy, and citizenship rights. In virtually every instance, using the law (or the state) on behalf of feminist projects has involved the risk of reinforcing the reach and power of law (or the state) itself. This is exactly the risk Smart would have us avoid.Google Scholar

15 See Judith Stacey & Barrie Thorne, “The Missing Feminist Revolution in Sociology,” 32 Soc. Prob. 301 (1985) (on the combination of factors explaining why feminism has had less impact than might have been expected on mainstream sociology). For laments of the lack of dialogue between feminist and mainstream comparative welfare state research, see Ann Shola Orloff, “Gender and the Social Rights of Citizenship: The Comparative Analysis of State Policies and Gender Relations,” 58 Am. Soc. Rev. 303 (1993); and Anette Borchorst, “Welfare State Regimes, Women's Interests, and the EC,” m Diane Sainsbury, ed., Gendering Welfare States (Newbury Park, Cal.: Sage Publications, forthcoming 1994).Google Scholar

16 See, e.g., Anna Yeatman, Feminists, Femocrats, Technocrats (North Sydney: Allen & Unwin, 1990) (on the case of Australian feminists); and Anette Borchorst, “The Danish Equal Status Council—A Political Niche,”in Amy Mazur & Dorothy McBride Stetson, eds., Comparative State Feminism (Newbury Park, Cal.: Sage Publications, forthcoming 1994) (on the institutionalization of equal opportunity policies and representation of women's rights organizations in a permanent state agency in Denmark).Google Scholar

17 See also at 164 (noting the complex and contradictory character of a legal regime that “does not stand in one place, have one direction, or have one consequence” and therefore precludes unitary feminist strategy or policy) and “Feminism and Legal Change in the U.K.” at 117 (arguing for the multidimensionality rather than thematic unity that results from the “uneven development of law”).Google Scholar

18 See also “The Woman of Legal Discourse” at 41; and “Patriarchy and the Law” at 96. For all Smart's lip service to “resistance,” she never really theorizes it, because her focus is on the problem of cooptation and on the basic impossibility of intentionality. These are negative holdovers from her appropriation of Foucault, who is similarly slippery on the question of resistance and whose conception of “regulation” Smart seems to take on along with the same unquestioning conflation of “repressive” and “emancipatory” power.Google Scholar

19 “Feminism and Legal Change in the U.K.” at 118.Google Scholar

20 A key concern, e.g., is that government bureaucrats who make decisions that shape women's lives are out of touch with (at best) or downright hostile to (as often seems to be the case) women's interests in dignity, autonomy, and treatment as first-class citizens. In addition, protectionism can impose heavy costs on dignity and autonomy, even to those who benefit from it through publicly mandated remedies. Even more difficult to address are the concerns of those who do not imagine themselves likely beneficiaries of protectionism and who fear the consequences of being (mistakenly, in their view) classed with other women as vulnerable to harm from the social order as it exists or from juridical or administrative state agencies putatively designed to protect. This latter point is of course one reason solidarity among women with vastly different experiences and interests in the state and law as a means of protecting women is impossible to assume and difficult to cultivate.Google Scholar

21 “Law's Power, the Sexed Body, and Feminist Discourse” at 204.Google Scholar

22 “The Woman of Legal Discourse” at 30 (emphasis in original).Google Scholar

23 See at 5. Because law is practiced by lawyers—an increasing proportion of whom are women, if not feminists—the intersection of women's professional power and law is perhaps obvious. Still, Smart seems to give insufficient weight to the consequences of undercutting legal reformism just as women are gaining some serious representation in the discipline.Google Scholar

Such developments have ample precedents; as feminist Emily Newell Blair noted on the subject of the struggle for suffrage: “Feminism, in this country at least, expressed the desire of women once more to have a part in making the world …. Queerly enough, in an age where politics counted less than before, they concentrated first on the effort to get political equality.”Quoted in Barbara J. Harris, Beyond Her Sphere: Women and the Professions in American History 127 (Westport, Conn.: Greenwood Press, 1978).Google Scholar

24 An interesting treatment of state building as a gendered project of the “new middle class” can be found in Desley Deacon, Managing Gender: The State, the New Middle Class and Women Workers. 1830–1930 (Melbourne: Oxford University Press, 1989) (analyzing the Australian case, for clerical and postal workers especially). For a first cut at the U.S. case in the 20th century, see Lisa D. Brush, “‘To Transform Our Zeal into Legislation’: Single Mothers, Professionals, and the State” presented at Social Science History Association annual meetings, Baltimore, Nov. 1993) (discussing changing forms of gendered professional power as they relate to state building in the case of single motherhood in the United States since 1900).Google Scholar

25 See the burgeoning literature on gender and welfare-state building, including Cynthia R. Commacchio, “Nations Are Built Babies”: Saving Ontario's Mothers and Children,1900 - 1940 (Montreal: McGill-Queen's University Press, 1993) (on Canadian physicians' campaign to reduce infant and maternal mortality); Molly Ladd-Taylor, Mother-Work: Women, Child Welfare, and the State.1890 - 1930 (Urbana: University of Illinois Press, 1994) (documenting the central role of lay and professional women in the shift of maternal and child welfare from private responsibility to national policy); and Susan Pedersen, Family. Dependence, and the Origins of the Welfare State: Britain and France, 1914–1945 (Cambridge: Cambridge University Press, 1993) (comparing the outcomes of British and French feminists in reform campaigns central to European welfare state development).Google Scholar

26 Indeed, one of the basic problems with conceptions of the state as “patriarchal” (see the next section) is that they erase from view the many women who have been policymakers from within and outside state bureaucracies. That erasure inevitably obscures the fact that neither state institutions (of which laws might be considered a subset) nor political participation are monolithic in their construction of gender relations. It also renders invisible the potential room for resistance that comes from acknowledging that women have participated (albeit under unequal conditions) in striking the balance of social forces that constitute “the state.” (On the U.S. case, see Robyn Muncy, Creating a Female Dominion in American Reform,1890 - 1935 (New York: Oxford University Press, 1991) (arguing that women reformers sustained their political agenda under adversity by using state institutions as a source of patronage when the academy and other power bases were unavailable), and on interesting cross-national comparisons, see the essays in Seth Koven & Sonya Michel, eds., Mothers of a New World: Maternalist Politics and the Origins of Welfare States (New York: Routledge, 1993).Google Scholar

27 E.g., states can organize institutions to discourage free-riding, to extend time horizons in decision cycles, and to redistribute the costs and benefits of nonmarket transactions (such as unpaid housework).Google Scholar

28 See discussion of the difficulties of focusing feminist state theories and activism around categories of harm, vulnerability, and protectionism in note 20 above. On the critique of so-called victim feminism, see Wendy Kaminer, “Feminism's Identity Crisis,”Atlantic Monthly, Oct. 1993, at 51–68; and Katie Roiphe, The Morning After: Sex, Fear and Feminism on Campus (Boston: Little, Brown, 1993).Google Scholar

29 MacKinnon, 8 Signs at 643–44 (cited in note 1).Google Scholar

30 Allen, “Does Feminism Need a Theory” at pp. 26–27 (cited in note 9).Google Scholar

Distinguishing the male-dominant character of the state from the character of the rest of life is especially difficult because there are hardly any exceptional cases. This is parallel to the trouble Marxists have when trying to assess the class character of the state. That is, because Marxist traditions assume states only exist under conditions of class domination, there is no way to compare pre- and postclass states. It is possible to look at variations in the class character of the state across different class systems, however, because there have been feudal and postcapitalist states to use for contrast. The development of states, private property, and male dominance are probably so profoundly entangled that the gendered character of the state is equally untestable. See Gerda Lerner, The Creation of Patriarchy (New York: Oxford University Press, 1986), and Fredrick Engels, The Origins of Family, Private Property and the State (New York: Pathfinder, [1884] 1972). In parallel fashion, therefore, the point becomes that of looking at variations in the gendered character of the state across different forms of male dominance.Google Scholar

31 MacKinnon, 8 Signs at 638.Google Scholar

32 Specifically, Smart believes MacKinnon moves too far toward “locating men as biological agents as the problem.” She also recognizes the strategic need for feminist theory to counter MacKinnon's image of the “omnipotent male state.” See “Feminism and Legal Change in the U.K.” at 122; emphasis in original.Google Scholar

33 “Disruptive Bodies and Unruly Sex” at 9.Google Scholar

34 This is a constant theme for Smart, but see in particular “Feminism and Legal Change in the U.K.” at 118 (arguing that the persuasive force of the pressure for legislation on domestic violence in the U.K in the late 1970s “lay in an argument which was based on establishing women's helplessness and vulnerability in the family and in marriage” rather than an analysis of women's increasing economic independence and political power).Google Scholar

35 See Jane E. Larson, “‘Women Understand So Little, They Call My Good Nature “Deceit”’: A Feminist Rethinking of Seduction,” 93 Colum. L. Rev. 374 (1993) (detailing feminist remedies for the injuries of sexual deception for which women bear the cost, while presenting criteria for “the good” in sexual relationships which might be promoted by dismantling the “sex exception” in tort).CrossRefGoogle Scholar

36 Martha McCluskey, “Fear of Feminism: Media Stories of Victimization, Privilege, and Passivity in Debates about Campus Violence” 7 (presented at Feminism, Law and the Media conference, Columbia Law School, Dec. 1993). McCluskey's argument is an example of the fruitful result of following Smart's injunction to call to account “the definers of knowledge” and require them to “adopt a different consciousness” that acknowledges their privilege instead of occluding it (Feminism and the Pouter of Law 2). Google Scholar

37 See notes 25 and 26 above.Google Scholar

38 Two exceptions: Martha A. Fineman, The Neutered Mother, the Sexual Family, and Other Twenties Century Tragedies (New York: Routledge, 1994); and Lucie White, “The Vision and Practice of Participation in Project Head Start” (presented at University of Chicago Law School Workshop in Feminist Legal Theory, Jan. 1994) (raising questions of feminist legal method and theory in the context of welfare state practices).Google Scholar

39 Harris v. McRae, 448 U.S. 297, 298–99; 100 S.Ct. 2617; 65 L.Ed. 2d 784 (upholding the constitutionality of the Hyde Amendment's withdrawal of federal funding for abortions for poor women by arguing that a woman's freedom of choice does not carry a constitutional entitlement to the financial resources necessary to make the choice real). Special thanks to Jane Larson, who first pushed me to think about this argument, and to Gabrielle Lessard for this citation.Google Scholar

40 See Judith N. Shklar, American Citizenship: The Quest for Inclusion (Cambridge, Mass.: Harvard University Press, 1991).Google Scholar

41 Drude Dahlerup, “Crossing Borders” (Final Plenary Remarks, International Conference on Gender & Social Politics, Stockholm, May 1994)-Google Scholar

42 Quoted in Marilyn Richardson, ed., Mario W. Stewart, America's First Black Woman Political Writer 38 (Bloomington: Indiana University Press, 1987).Google Scholar