legal theory and contemporary law, law and feminism
In Part A of this essay, "The Killing Fields", I developed a critique of the disciplinary impulses that underlie modern law and legal theory. Invoking a number of perspectives and a plurality of analyses, I proposed that male-stream legal theory and contemporary law both assume as inevitable, and legitimize as appropriate, the funnelling of violence through law. The problem with a funnel, however, is that it does not curtail or reduce that which is channelled through it. On the contrary, to funnel is to condense and to intensify. Viewed from this perspective, interpreted from the bottom up, law and legal theory are not the antithesis of violence but rather its apotheosis. Critique, however, can only take us so far, and alternative consciousness is not changed reality. In this second part of the essay, I attempt to cautiously outline a reconstructive sequel that suggests the possibility of making law and jurisprudence "otherwise". Specifically, I filter my reflections and tentative proposals through the critical prism of feminist theory and practice. Moreover, paralleling the pattern of argument in the first part of the essay, I will draw on "knowledges" that have, traditionally, either been alien to, or marginalized by, conventional jurisprudential inquiry. In this way, I hope to provide some critical distance on the theory and practice of modern law (and its hegemonic propensities) thereby enabling us to envision, even if only for a moment, the possible nature of a postmodern, postpatriarchal juridical regime. In section II of this part of the essay, through an analysis of feminist literary criticism and feminist psychoanalysis, I outline two of the predominant themes that have, historically, pervaded feminist analysis: equalitarianism and gynocentrism. However, rather than seeing these approaches as being in conflict or antithetical, I will argue that, though in tension, they are potentially compatible and even mutually reinforcing. I will concretize this discussion through an affirmative interpretation of the analyses of Carol Gilligan and Catharine MacKinnon. In section III, I relate these more thematic discussions to an overview of feminist responses to pornography, while in section IV, I suggest that the feminist turn to law, as it is currently constituted, while being part of the solution, tends to reinforce part of the thanatical problem. The conclusion attempts, briefly, to identify some of the strengths and weaknesses of the various theses presented in "Nomos and Thanatos, Parts A and B."
Richard Devlin, "Nomos and Thanatos (Part B): Feminism as Jurisgenerative Transformation, or Resistance Through Partial Incorporation?" (1990) 13 Dal LJ 123.