Is the law a tool for feminism or an expression of patriarchy? Is the law able to authentically recognize the differences between the sexes, or does it apply falsely universal and neutral principles historically developed having in mind a male, heterosexual, cis-gender, and able-bodied person? These questions have divided feminist philosophies of law since the 1970s (at the point that Carol Smart defines the law as a “site” rather than a “tool of struggle”), and the debate has reignited recently.
During the 1970s-80s, U.S. radical feminism, led by Catherine MacKinnon, was highly ius-positivist; on the other hand, Italian legal feminism, guided by Lia Cigarini, did not display the same level of confidence in the law.
According to MacKinnon, the law is the instrument to achieve feminist aims, both through legislation and jurisprudence. But she is not naïve. She is aware that giving the state the possibility to legislate on women’s bodies may imply paternalistic risks and that, historically considered, the law has been reflective of the perspective of the dominant sex. However, MacKinnon pragmatically concludes that these are insufficient reasons not to develop laws that have concrete positive impacts on women’s lives.
MacKinnon suggests that the principles needed for feminist law are already present in current legislation and jurisprudence—they must only be interpreted in a feminist (rather than patriarchal) manner. So, the American feminist is confident in the possibility of women changing the law from the inside, as she personally did. In fact, she successfully fought in tribunal to obtain the recognition of sexual abuses in the workplace as gender-specific discrimination and the consideration of the rape commission during genocides as a genocidal crime. Moreover, she promoted (without much success in the U.S., but with a more consequential reception in Canada) a law restricting violent pornography.
Additionally, for MacKinnon, the law is the driving force of socio-cultural changes, having a strong symbolic and educational function: recognizing that women are subjected to gender-specific crimes makes these crimes visible, conveying the message that they are illicit. This pushes women toward being more aware of their rights and denouncing their violations.
Unlike MacKinnon, Cigarini is not convinced of the usefulness of positive law. She considers it helpful for women only insofar as issues unrelated to the differences between the sexes are concerned. The areas of law in which sexual differences emerge, instead, are composed of laws intended to protect women, which implies women to be (only) weak subjects, or those that homologate women to men (through the application of the same treatment to both sexes). The reason why this happens is that the Parliament, according to Cigarini, is an institution based on patriarchal values that provides a male mediation between women and their feminist aims. Consequently, the Italian jurist is in favor of the “objection of the mute woman,” epitomized by women’s organization’s lack of cooperation with the legislative body.
Despite this, Cigarini does not entirely discard the law. She considers the law useful for feminist battles in two ways: through the creation of legislative voids, consisting in the depenalization of practices done on female bodies (such as abortion) and through the creation of non-detached relations between female victims of gender-specific crimes (such as violence against women) and their female (and feminist) lawyers during the trial, which provides a female mediation between women and their feminist battles. Proof of this is that female, feminist lawyers, as Ilaria Boiano’s studies have shown, usually manage to create a non-judgmental and stereotype-free “safe place” during the process, enabling the victims of gender-based crimes to fully reconstruct what happened.
Feminist skepticism toward the law has decreased in recent decades. Many Women’s Law, Feminist Jurisprudence, and Feminist Legal Theory university chairs have been established, mainly in the Anglo-Saxon and Scandinavian worlds. Italian legal feminism, too, has become more confident in the law, still conceptualizing it in broad terms, thus referring not only to positive law but also to the process and to justice discourses.
Elisa Baiocco
Elisa Baiocco is a PhD student in "Political Studies" at Sapienza University of Rome, where she collaborates with the political philosophy chair. She is also part of the Sapienza School for Advanced Studies (SSAS) PhD program. Her research focuses on the feminist philosophical and juridical debate on surrogacy and reproductive technologies.
