Why does contemporary jurisprudence have so little to say about law and gender? I think that is because gender is not relevant to theories of the nature of law. Joanne Conaghan disagrees. She says the methods of analytic philosophy screen out gender by abstracting concepts from social contexts, smuggling in hidden values, and ignoring empirical evidence. My own work on the law of marriage is said to exemplify this. But Conaghan is comprehensively mistaken in her diagnosis. She misunderstands analytic jurisprudence, misunderstands the relation between sex and gender, and misunderstands the role of social facts in legal philosophy. Feminist legal theory is made poorer if it accepts the caricature she offers. Legal scholars should be more open to the contributions of analytic philosophy to feminist inquiry.Green writes
What can feminism contribute to the study of law? A lot. It can help us understand what it is for women to be disadvantaged in law, the varied ways that happens, and the remedies that might be feasible. What can feminism contribute to the study of jurisprudence? This is trickier. Of course, if ‘jurisprudence means law — for instance, case law or general principles of law — then we already have our answer. But what if jurisprudence means the philosophy of law and, in particular, the philosophy of law in the analytic style familiar throughout the Anglophone world and, now, in many other places as well?
There is good feminist writing in the normative branches of jurisprudence that overlap moral and political philosophy. We know what (some) feminists say about the importance of relationships in morality, or about pornography and free speech, or about the connection between domestic equality and political justice. There is no harmony on such issues, but we do have an idea of what a feminist position might look like. When we turn to general questions about the nature of law, however, the very idea of a feminist approach is puzzling. What is a feminist line on whether law contains power conferring rules? What should feminists think about the identity of legal systems over time? What counts as a feminist view on the possibility of vicious legal systems? With respect to such issues no feminist positions come to mind. I think the explanation for that is straightforward. A central feature of feminist theory is attention to gender, and gender is not relevant to any of these problems.
By ‘not relevant’ I mean that no position about gender relations makes any answer to these questions more or less plausible. Suppose you are wondering whether, as Hans Kelsen thought, what appear to be power conferring rules in the law are best seen as fragments of duty imposing rules. No view about gender — what constitutes it, what its social importance is, how it shapes people’s lives — is going to tilt the answer in favour of or against Kelsen’s thesis. By way of contrast, suppose you are wondering whether, as John Rawls thought, the domain of justice is the ‘basic structure’ of a society. Given what we know about the gendered division of power and labour within families, the plausibility of that thesis turns on whether and how the idea of the ‘basic structure’ treats the family. So gender is highly relevant to theories of justice. That is why there are feminist theories of justice but no feminist theories of legal rules. The same goes for most other problems in general jurisprudence: there are no feminist theories of the sources of law, no feminist theories of the existence conditions for legal systems, no feminist theories of the identity of legal systems, no feminist theories of the normativity of law, and so on. We no more expect to see feminist theories in general jurisprudence then we expect to see feminist theories of vagueness or feminist interpretations of quantum mechanics. The reason jurisprudence says so little about gender is that gender is not relevant there.
Or so it seems to me. But in a survey of issues about law and gender, Joanne Conaghan offers a very different diagnosis. She thinks that legal theorists working in general jurisprudence do not say much about gender because they fail to make room for it. Conaghan holds gender to be pervasively relevant, not only to law — no one denies that — but throughout legal philosophy. Things seem otherwise only because men have stacked the deck: ‘the concept of law (to invoke the title of Hart’s famous work) has been endlessly interrogated in terms which do not admit the relevance of gender.’(6) Conaghan offers no direct argument in support of that claim. She does not identify a single ‘interrogation’ of the concept of law that excludes gender where gender is plausibly relevant.
Her case is diffuse and indirect. She sharply criticizes some of my own work in which she detects an ethos that is, she claims, the sort of ethos that conceals the relevance of gender to jurisprudence. Now, since the work she criticizes is focused on conceptual issues about sex, gender, and marriage, and since it is not work in general jurisprudence, one might wonder how it could serve as evidence for her charge. How could a work treating gender not admit the relevance of gender? How could a work about one local problem in special jurisprudence — the nature of marriage in common law — reveal anything about the relevance of gender to the concept of law? Conaghan’s answer is that it offers ‘a rare glimpse into how sex/gender is conceived in the analytical jurisprudential mind’. (169) She says that glimpse reveals the general ‘methodological limitations which characterize [such] jurisprudential analysis,’ namely:
the abstraction of legal concepts from the framework in which they operate and the tendency to treat them as having a fairly fixed content over time and space; the unarticulated normative prioritization of some features... over others..., evidencing the presence of evaluative choices which problematize any claim to be rendering a descriptive or value neutral account; the overlooking, or at least unexplained disregard, of contra indicative evidence.... (176)
If we would free legal philosophy from this sort of mindset exhibited in my work and allow for the historicity of concepts, if we would prioritize the right features of law and acknowledge we are doing that, if we would play closer attention to empirical evidence, we would find that gender is important to jurisprudence in ways that the ‘analytical jurisprudential mind’ cannot begin to acknowledge. Gender is absent from general jurisprudence, on Conaghan’s view, not because it is irrelevant to it, but because the methods of analytic philosophy screen it out.
If her diagnosis were correct, then to say that analytical jurisprudence has ‘methodological limitations would be an understatement. It would be a failure: (1) To suppose that legal concepts are unchanging flies in the face of the obvious; the law changes and so do some legal concepts. (2) To think we can describe anything without prioritizing some of its features is to misunderstand the nature of description. (3) To overlook or disregard relevant evidence is incompetence or dishonesty. If that is the mess analytical jurisprudence makes of things, I think we would be lucky if its discussions of sex and gender were, as Conaghan thinks, ‘rare’. Unsurprisingly, perhaps, I do not accept that I have blundered in these ways and I shall explain why not. One might doubt whether self defence could be enough to get the whole ‘analytical jurisprudential mind’ off the hook. Perhaps I am not prone to these vices but everyone else is: maybe I escaped a bad upbringing. As we shall see, however, Conaghan’s errors are of a general kind, not only false readings and misattributions, but misunderstandings of analytic jurisprudence. Were they to take hold they would be damaging to the development of feminist legal theory.