Tuesday, May 22, 2018

Katharine T. Bartlett and Angela Harris

Gender and Law: Theory, Doctrine, Commentary, 1007-1010 (1998)l

Essentialism throughout this refers to a grab bag of different, sometimes overlapping, problems. Once is the problem of false universalisms, in which over-generalizations or unstated reference points implicitly attribute to all members of a group the characteristics of a dominant subset of that group. Critiques of law presented throughout this book often have included the claim that legal standards purporting to be neutral and objective often presuppose a single standard -- the "make need of the law's "special accommodations." "Feminist Theory has has a problem of over-generalization". A common subject for critique is the unstated, sometimes unconscious assumption that for purposes of feminism, "women" are white, middle class, heterosexual, able-bodied, and otherwise privileged. To what extent can we think about "women" as a class and "women's interests" generally without indulging this assumption?

A second, and related, problem of universalism often described as "essentialism" has to do with the applicability of Western feminism to other cultures. How should Western feminists respond to practices like clitoridectomy, veiling, or gender-based access to rights when they occur in a non-Western context? When feminists challenge such practices, are they inappropriately importing Western conceptions of gender oppression? When feminists defer to such practices, are they holding non-Western cultures to a lower standard? Which should take precedence when feminism and anti-colonialism seem to be at odds? Is sisterhood truly global?

A third meaning of the term "essentialism" is a form of reductionism by which the world is viewed through a single lens that reduces social relations to those aspects that support one "grand" theory. People who take this view believe that gender oppression is the most "fundamental" or "primary" oppression; all other forms of oppression are less central, or less universal, or dependent upon gender oppression. A frequent criticism of this view is that it wrongly minimizes the significance of oppression based on other factors such as race, sexuality, class, ethnicity, and religion.

A fourth meaning of the term "essentialism" is selecting out only one possible source of a woman's identity -- such as her gender, race, class, or sexual preference -- and treating it as severable from the rest of her being. Women are never just women; they are lesbians, black women, Asian women, able-bodied straight women, poor, or middle-class women. To what extent do our conceptions of gender and of feminism require us to separately analyze our gender-based oppression from other possible forms of oppression, preventing a recognition of multiple identities and multiple interactive oppressions?

A fifth meaning of the term "essentialism" that appears not only in law itself but in some feminist critiques of law might be called the "naturalist" error. Within critical legal perspectives, to commit the naturalist error is to assume the existence of certain inherent or "natural" facts, rather than socially construed ones, on which law is or should be based. This error is replicated by feminists, some say, when they treat "women" as a self-explanatory category, often defined by biology. The example of the transsexual throws into relief some of the difficulties of viewing sexual characteristics as inherent, biological ones. Is a male-to-female transsexual a woman? If so, is she a woman only upon completion of reassignment surgery, or is her inner sense of feminine identity sufficient with or without the proper genitalia? Is a woman born or made? Another naturalist mistake is made when feminists assume that the removal of unnatural, man-made social constructions will make women's basic commonality, or oppression, more apparent and, once removed, allow women's "true-identity" to emerge. In the absence of sex-based oppression, would there still be "women?" Or only individuals who happen to be of different sexes?

A sixth meaning of the term "essentialism" points at a deeper problem, located in the process of categorization itself. Humans constantly put one another into mental categories; it seems to be an inescapable part of cognition itself. But every category is inevitably under-inclusive and over-inclusive. Every category is useful for some purposes and not for others. When categories are both assumed to be fixed and treated as extremely important to social life, as "gender" is, what are the consequences for people who don't neatly fit one category or another? Is it possible to escape categories altogether? Would trying to do so make collective action impossible? Is it possible to learn to think of our categories as provisional instead of unalterable, socially created rather than inherent nature?

Finally, a seventh connotation of the term "essentialism" points toward the philosophical movement known as "postmodernism." Postmodern theory challenges the notion that there is any objective reality "out there" in the world that can be perceived apart from our expectations and our past experience. It insists, instead, that one's experience of the world is always shaped by one's position in it. Many anti-essentialist commentators argue that feminists should be receptive to postmodernist theory, because both feminists and postmodernists are skeptical of claims about universal truth, which have often been used to justify women's oppression. Other feminists, however, argue that postmodern philosophy is dangerous because it tends to suggest that people can simply "think" themselves free of oppression, and because it implies that any world view or opinion is as good as any other because non can be proven to be universally "true."

Although the term "essentialism" can refer to many different things, within recent feminist theory the term consistently tends to be a derogatory label. As you work through this section of the [unit], ask yourself whether it is always bad to be an essentialist. Are some forms of essentialism worse than others? Are some kinds of essentialism necessary or appropriate in certain contexts?

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