1. The dissipation of feminist solidarity is lamented in many of the essays in Conflicts in Feminism (Hirsch, Marianne & Keller, Evelyn Fox eds., 1900)Google Scholar. For evidence of a similar tension among feminist legal scholars, see Dubois, Ellen C., Dunlap, Mary C., Gilligan, Carol J., MacKinnon, Catharine A.. & Menkel-Meadow, Carrie J., Feminist Discourse, Moral Values, and the Law—A Conversation, 34 Buff. L. Rev. 11 (1985)Google Scholar. See also, Delmar, Rosalind, What Is Feminism?Google Scholar, in What Is Feminism? (Mitchell, Juliet & Oakley, Ann eds., 1986).Google Scholar

2. This latter belief is evidenced, I think, by the frequency with which the rhetorical move of deploring the mistreatment of “more than half the human race” is employed in feminist literature.

3. MacKinnon, Catharine, Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence, 8 Signs 635 (1983)CrossRefGoogle Scholar; Wuhik, Heather Ruth, To Question Everything: The Inquiries of Feminist Jurisprudence, 1 Berkeley Women's L.J. 64, 68 (1986)Google Scholar; Littleton, Christine A., In Search of a Feminist Jurisprudence, 10 Harv. Women's L.J. 1, 3 (1987).Google Scholar

4. Bender, Leslie, A lawyer's Primer on Feminist Theory and Tort, 38 J. Leg. Ed. 3 (1988)Google Scholar; Scales, Ann, The Emergence of Feminist Jurisprudence: An Essay, 95 Yale L.J. 1373 (1986).CrossRefGoogle Scholar

5. Crenshaw, Kimberle, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory, and Antiracist PoliticsGoogle Scholar, and Harris, Angela, Race and Essentialism in Feminist Legal Theory, inGoogle Scholar Feminist Legal Theory: Readings in Law and Gender (Bartlett, Katharine T. & Kennedy, Rosanne eds., 1991)Google Scholar. Spelman, Elizabeth, Inessential Woman: Problems of Exclusion in Feminist Thought (1988)Google Scholar; Duclos, Nitya (now Iyer), Lessons of Difference: Feminist Theory on Cultural Diversity, 38 Buff. L. Rev. 325 (1990)Google Scholar; Kline, Marlee, Race, Racism, and Feminist Legal Theory, 12 Harv. Women's L.J. 115 (1989).Google Scholar

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9. MacKinnon, , Feminism Unmodified: Discourses on Life and Law (1987)Google Scholar; MacKinnon, , Towards a Feminist Theory of the State 117 (1989).Google Scholar

10. Ironically, the authority claim implicit in the statement of the definitive feminist position is perversely mirrored by the facile assumption among non-feminists that any issue on which women disagree must not be a gender issue and therefore does not require a distinctively feminist analysis. This exacerbates the sense that it is important to present a united front.

11. See, for instance, Rosalind Delmar's claim that “it now makes more sense to speak of a plurality of feminisms than of one.” Supra note 1, at 9.

12. Rich, Adrienne, On Lies, Secrets and Silence 299 (1979)Google Scholar. See also Spelman, , supra note 5. at 116.Google Scholar

13. Minow, Martha. Beyond Universality, U. Chi. Legal F. 115, 115 (1989)Google Scholar. Tins is not to say that these efforts have necessarily been satisfactory to women who experience themselves to have been traditionally left out. There have been many complaints that white, midd1e-class, heterosexual feminists' commitment to other women is limited to the inclusion of a standard paragraph acknowledging female diversity. See, e.g., Childers, and Hooks, , supra note 2Google Scholar; Lugones, Maria C., On the Logic of Pluralist Feminism, inGoogle Scholar Feminist Ethics (Card, Claudia ed., 1991)Google Scholar. One worries that the “standard paragraph” approach is grounded in a facile assumption that, in the end, some means can be found easily to reconcile women's competing interests.

14. Minow, , supra note 1, at 132Google Scholar; Bartlett, Katharine T., Feminist Legal Methods, 103 Harv. L. Rev. 829, 833–34 (1990)CrossRefGoogle Scholar; Rhode, Deborah L., The Woman's Point of View 38 J. Leg. Ed. 39 (1988)Google Scholar; Rhode, , Gender and Jurisprudence: An Agenda far Research, 56 U. Cin L. Rev. 521 (1987).Google Scholar

15. Menkel-Meadow, Carrie, Mainstreaming Feminist Legal Theory, 23 Pacific L.J. 1493 (1992)Google Scholar; Bartlett, , supra note 14Google Scholar; Minow, , supra note 13Google Scholar; Dnlton, Clare, Where We Stand: Observations on the Situation of Feminist Legal Thought, 3 Berkeley Women's L.J. 1 (1988)Google Scholar; Wishik, , supra note 3Google Scholar; Smart, , supra note 8Google Scholar; Bender, , supra note 4Google Scholar. Finley, Lucinda M.'s Breaking Women's Silence in Law: The Dilemma of the Centered Nature of Legal Reasoning, 64 Notre Dame L. Rev. 886 (1989)Google Scholar. is framed as the flip side of the description of a feminist analysis of law, namely, and explication of why the law is “male.”

16. Minow, Even, supra note 13, al 131–32Google Scholar, and Bartlett, , supra note 14, at 833–34Google Scholar, who seem explicitly to disavow disiinctivcncss as an ambition, reject only a particular “male” sense of distinctiveness. Both arc nevertheless nt pains to show what feminist legal theorists have in common and what sets them apart from mainstream approaches to the analysis of law.

17. See, e.g., Alcoff, Linda, Cultural Feminism Versus Post-Structuralism: The Identity Crisis in Feminist Theory. 13 Signs 405 (1988)CrossRefGoogle Scholar; Held, Virginia, Feminist Morality Transforming Culture, Sociest, and Politics 12–19 (1993)Google Scholar;Spelmnn, , supra note 5Google Scholar; de Lauretis, Teresa, Upping the Anti (sic) in Feminist Theory, inGoogle Scholar Conflicts in Feminism, , supra note 1Google Scholar; Frye, Marilyn, The Possibility of Feminist Theory, inGoogle Scholar Theoretical Perspectives of Sexual Difference (Rhode, Deborah ed., 1990).Google Scholar

18. Examples include Linda Alcoff, id.; Haraway, Donna, A Manifesto for Cyborgs: Science, Technology, and Socialist Feminism in the 1980s, inGoogle Scholar Feminism/Postmodernism (Nicholson, Linda J. ed., 1990)Google Scholar; de Lauretis, id. From a legal perspective, Bartlett takes up this debate in Feminist Legal Methods, supra note 14.

19. E.g., Frye, Marilyn, supra note 17.Google Scholar

20. Scott, Joan, Deconstruting Equality-Versus-Differenee: Or, the Uses of Poststructuralist Theory for Feminism, inGoogle Scholar Conflicts in Feminism, , supra note 1Google Scholar; Williams, Joan C., Deconstructing Gender, inGoogle ScholarFeminist Legal Theory, supra note 5Google Scholar; Young, Iris Marion, Justice and the Politics of Difference (1990).Google Scholar

21. Snitow, Ann, Gender DiaryGoogle Scholar, in Conflicts in Feminism, , supra note 1.Google Scholar

22. I acknowledge that there is a great deal of skepticism about abstract analysis in much feminist writing—see, e.g., Scales, , supra note 4Google Scholar. Some may be inclined to slop reading now for that very reason. However, I employ abstraction not to purport to solve any of the substantive debates within feminism or to obscure their significance, but rather to illuminate the nature of those debates and at the same time to provide feminist legal theory with a basis upon which a variety of contributions to the debate can be recognized as feminist despite the disagreements engendered. If the framework I propose does not accomplish this it may provide further evidence to some that abstraction is indeed to be eschewed. To skeptics, I can only say: The proof of the pudding is in the tasting.

23. See Rawls' discussion of the distinction between the concept of justice and competing conceptions. Rawls, John, A Theory of Justice 5–6 (1973)Google Scholar. Although I suspect this approach has analogues in other areas of feminist scholarship, I have tailored my analysis to the role of feminist analysis in law.

24. This is analogous to the way that H.L.A. Hart identifies the concept of law as having to do with (1) its relationship to and difference from orders backed by threats; (2) the connection between legal and moral obligation; and (3) its relationship to rules, by drawing out common questions that characterize attempts in the literature to grapple with the question “What is law?” Hart's own conception of law as the union of primary and secondary rules is then contrasted with Austin's command theory, Kelsen's sanction theory, and the Realists' account of law as the prediction of the behavior of the courts. Hart, H.L.A., The Concept or Law 1–17 (2nd ed. 1991).Google Scholar

25. The articles I bave round most helpful have been Menkel-Meadow, , Finley, , and Dalton, , supra note 15Google Scholar; Minow, , supra note 13Google Scholar; Bartlett, , supra note 14Google Scholar; and Wishik, , supra note 3.Google Scholar

26. Bartlett also notes that a focus on exclusion can be used to draw a link between exclusion on tlie grounds of sex and on multiple or intersecting grounds. Supra note 14, at 847–19.

27. In this effort, I am drawing on Jean Grimshaw's similar analysis of the significance of feminist thinking to philosophy in Philosophy and Feminist Thinking (1986).

28. This focus on exclusion from the design and application of law seems to me to suit law's instrumental role in social ordering. There may be embedded in this a particular concept of law with which not everyone, including not all feminist legal scholars, will agree. However, I leave this to be explored on another occasion.

29. Because of the law's power to regulate everything, even if only by choosing not to regulale, even lesbian separatist or other separatist arguments can be brought under the exclusion rubric. A separatist argument is an argument for not being included in the operation of the existing rules, but since a particular group can be exempted from existing rules only by the operation of law itself the separatist argument can be rephrased as a critique that the interests or needs of the separatist group have not been taken into account in determining the scope of application of certain laws.

30. As Minow puts it, supra note 13, at 136:

[F]eminists join in challenging historic exclusions and devaluations of women. This shared commitment underlies apparently contrasting efforts to improve women's positions and opportunities by revaluing traditional feminine traits or by demonstrating that women, too, can achieve traditionally male accomplishments.

While she appears to share my ambition in this article, I shall argue below that she does not abstract enough from substantive commitments, thus conceptualizing feminist jurisprudence too narrowly.

31. Grimshaw, , supra note 27, ch. 2Google Scholar. Grimshaw uses the exclusion idea to organize feminist critiques of philosophical theories according to whether the latter relied on explicitly misogynistic conceptions of woman that excluded women from key philosophical ideals such as rationality, or implicitly incorporated masculine gender traits into those ideals to the exclusion of traits associated with women. As I hope will become plain, my analysis builds upon Grim-shaw's conception of implicit exclusion by expanding it in a number of directions. Analogously to Grimshaw's examples of theorists who have incorporated masculine characteristics into philosophical ideals, I outline below some examples in which the argument is made that masculine characteristics have been incorporated into legal ideals. As befits the wide variety of forms and areas of legal regulation, I want to expand this idea of implicit exclusion to include the encapsulation of anything typically male and the exclusion of anything typically female: not just stereotypically gendered character traits, but also physical attributes and typical lived experiences that result in a particular conception of needs or interests, and also gendered modes of reasoning and sets of values.

32. This survey does not pretend to the comprehensiveness of Menkel-Meadow, 's recent effort, supra note 15Google Scholar. In the interests of brevity I highlight issues around which there has been concentrated discussion. However, as I will argue below, I believe the exclusion framework to be applicable to all of the themes and trends canvassed by Menkel-Meadow.

33. I use “American” here in the larger sense of North American; hence, it includes the Canadian legal system. Indeed, most of my examples throughout this article will be drawn from Canadian law and jurisprudence, although most have close parallels in other jurisdictions.

34. See Backhouse, Constance B., Married Women's Property Law in 19th c. Canada, 6 Law & History Rev. 211 (1988)CrossRefGoogle Scholar. Both these exclusions were abolished by the various Married Women's Property acts enacted in most jurisdictions over the course of the nineteenth century. See, e.g., Ontario's Married Women's Property Act, 1872, 35 Vict., ch. 16.Google Scholar

35. See, e.g., in Canada. The Electoral Franchise Act, 1885, 48–49 Vict., ch. 40Google Scholar, which specifically confines “persons” who may vote in federal elections to male persons, and Chorlton v. Lings 1868, L.R. 4 C.P. 374 (Eng.)Google Scholar, which interpreted the word “person” in a voter-eligibility statute to exclude women. World War I brought in its wake the enfranchisement of most women in most jurisdictions, but not all everywhere. E.g., Aboriginal women were not given the vote federally in Canada until 1960, and women were excluded provincially from the vote in Québec until 1940.

36. Chorlton v. Lings, id.

37. In re French, Mabel (1905), 37 N.B.R. 359 (N.B.S.C.)Google Scholar; Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1873)Google Scholar. In Ontario, Para Brett Martin fought the same battle for admission to the bar, ultimately succeeding without litigation in 1897. For an account of Martin's struggle, see Backhouse, Constance B.. To Open the Way for Others of My Sex: Clara Brett Martin's Career as Canada's First Woman Lawyer, 1 C.J.W.L. 1 (1985–1980)Google Scholar; Roth, Theresa, Clara Brett Martin—Canada's Pioneer Woman Lawyer, 18 Law Soc'y Upper Canada Gazette 323 (1984).Google Scholar

38. On these kinds of disabilities generally, see Eberts, Mary, The Rights of WomenGoogle Scholar, in The Practice of Freedom: Canadian Essays on Human Rights and Fundamental Freedoms (Macdonald, R.St.J. & Humphrey, J.P. eds., 1979).Google Scholar

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44. Field, Martha, Controlling the Woman to Prptect the Fetus, 17 Law, Medicine & Health Care 114 (1989)CrossRefGoogle ScholarPubMed; Dawson, Brettel, Re Baby R: A Comment on Fetal Apprehension, 4 C.J.W.L. 265 (1990–1991).Google Scholar

45. Id.

46. Roberts, Dorothy, The Future of Reproductive Choice for Poor Women and Women of Color, 2 Women's Rts. L Rep. 59 (1990)Google Scholar; Kingdom, Elizabeth, Consent, Coercion and Consortium: The Sexual Politics of Sterilization, J. L. & Soc'y 19 (1985).CrossRefGoogle Scholar

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48. As Joan C. Williams points out, although these rules are sex-neutral, they are often not gender-neutral. That is, they assume a masculine norm, one grounded in traditional gender stereotypes or roles. Williams, , supra note 17, at 112.Google Scholar

49. As MacKinnon puts it in Feminism, Unmodified 36 (1087).:Google Scholar

Men's physiology defines most sports, their needs define auto and health insurance coverage, their socially designed biographies define workplace expectations and successful career patterns, their perspectives and concerns define quality in scholarship, their experiences and obsessions define merit, their objectification of life defines art, their military service defines citizenship, their presence defines family, their inability to get along with each other—their wars and rulerships—define history, their image defines god, and their genitals define sex.

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53. Unemployment Insurance Act, 1071, ch. 48 1970–1971–72 S.C. 30 (Can.).Google Scholar

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56. Rogerson, Carol, Winning the Battle, Losing the War The Plight of the Custodial Mother After JudgmentGoogle Scholar, in National Themes in Family Law (Hughes, E. & Pask, E.D. eds., 1988)Google Scholar; Weitzman, Leonore, The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America (1985)Google Scholar; Bailey, Martha, Pelech, , Caron, , and Richardson, , 3 C.J.W.L. 615 (1989–1990)Google Scholar. That this result has been taken to support a return to the fault standard is criticized by Melli, Marygold, Constructing a Social Problem: The Post-Divorce Plight of Women and Children, Am. Bar Found. Res.J. 759 (1980)Google Scholar. For an analysis of how immigrant status affects a woman's ability to achieve self-sufficiency, see Sheppard, Colleen, Uncomfortable Victories and Unanswered Questions: Lessons from Moge, 12 Can. J. Fam. L. 283 (1995)Google Scholar. However, for an argument that family law reform in the areas of property division and maintenance can only ever benefit a small class of women whose partners are wealthy enough to support two households at above the poverty level, see Eichler, Margrit, The Limits of Family Law Reform or the Privatization of Female Poverty, 7 Can. Fam. L. Q. 59 (1991).Google Scholar

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58. Id. at 876.

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63. For an analysis of the data suggesting that sexual assaults against black women are treated less seriously than those against other women, see Crenshaw, Kimberle, Mapping the Margins: Inter-serlionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241 (1991).CrossRefGoogle Scholar

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68. 36 D.L.R. (2d) 159 (1962) (Can.).

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76. Id. at 30.

77. Id. at 31.

78. Id.

79. Id. at 32.

80. West, Robin, Jurisprudence and GenderGoogle Scholar, in Feminist Legal Theory supra note 5, at 201.Google Scholar

81. Id. at 207.

82. Also demonstrating the potential of this form of argument to be generalized across the legal system, Menkel-Meadow's survey of feminist scholarship turns up work arguing for a new approach to public administration based on interdependence and connection rather than autonomy, a new approach to corporate ownership and control based on self-governance and concern for the effects of corporate decisions on others rather than concern exclusively with profit, new ideas about how unions should be structured based on women's propensity for caring for others, and new approaches to commercial and tax law based on women's different values. Supra note 15, at 1524–30.

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86. Bender, , supra note 4, at 10–11.Google Scholar

87. MacKinnon, , Towards a Feminist Theory of the State 122 (1989).Google Scholar

88. Id. at 128.

89. Id. at 110–13.

90. Id. at 119.

91. Id. at 114.

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101. Id. at 120–21.

102. See works cited supra note 15.

103. Finley, , supra note 15, at 888.Google Scholar

104. Id. at 802.

105. Bartlett, , supra note 14, at 831.Google Scholar

106. Id.

107. Id. emphasis added.

108. Id.For example, at 866 she says,

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109. Menkel-Meadow, , supra note 15, at 1515–18.Google Scholar

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112. Id. at 831.

113. Id. at 855.

114. Id. at 857.

115. Id.

116. Id. at 833.

117. Wishik, , supra note 3, at 67.Google Scholar

118. Minow, , supra note 13.Google Scholar

119. Id. at 136.

120. Id. at 120.

121. Id. at 129.

122. Although not writing in a legal context, bell hooks explicitly makes this argument in favor of an exclusively radical definition of feminism in Feminism: A Movement to End Sexist Oppression, in Feminist Theory: From Margin to Centre (1984).Google Scholar

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