Author ORCID Identifier
Feminist theory, Representation, Power, Differences, Gendered life, Legal scholarship
I begin with my version of the ideally antagonistic interaction of feminist theory with the law. I locate my discussion between the extremes of grand theory and unique experience. I consider the central, pressing task of feminist theory to be challenging existing law and legal doctrines through the articulation and establishment of a theory of difference. In this essay I divide my discussion of the theory of difference into two sections. The first section concerns the theoretical and political necessity of establishing the differences between men and women. Articulation of the extent of this manifestation of difference illustrates that the law primarily represents and reflects male experiences and norms. Critiquing the law from a feminist perspective requires understanding how women's perceptions and experiences differ from men's and how such differences are relevant to the development and implementation of legal doctrines and theories.
The second theoretical consideration involved in developing a theory of difference is the realization that important differences exist among women. Feminists must overcome these differences in both practice and theory because the existence of these differences is misused to divide women. 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.
Finally, I will address questions about the notion of "representation. " I focus on the concept of representation as a legitimating selection criterion that affects our acceptance of an individual possessing an identified characteristic as "typical" of a class or group. Representation implies that an individual can typify a group or class merely by possessing a shared characteristic that serves the functions of both distinguishing him or her from the whole and unifying him or her with an identifiable subgroup. In this regard, representation is a totalizing concept even though its premise initially lies in the recognition of difference. Representation depends upon identifying and privileging one characteristic from among the many that an individual may possess. The characteristic thus serves to identify the individual as well as the group that the individual represents. The characteristic, so designated, publicly becomes the most politically, and perhaps socially, salient feature that the individual possesses. The theme of representation is integrally related to and is an outgrowth of my earlier considerations of differences.
Florida Law Review
Martha L. Fineman, Challenging Law, Establishing Differences: The Future of Feminist Legal Scholarship, 42 FLA. L. REV. 25 (1990).