Transcript Socialist feminism

Philosophy of Law
Feminist theories: equality/difference
 The theory of social constructionism is elaborated within the
field of sociological and cultural anthropology, closely connected
with some feminist orientations.
 Starting from the 70s, Feminist philosophy frequently relies on
the use of the gender category, in relation to the debate
involving the relationship between men/women.
 The core concept of feminism is the search for the origin of the
phenomenon of sexual discrimination, generally referred to as
“sexism”, in the sense of patriarchal androcentrism. It is in this
context that some theories fit into the sex/gender debate,
applying the conceptual distinction specifically to the feminist
issue.
Philosophy of Law
Feminism thematises the gender category as
distinct from sex in the analysis of the
man/woman relationship (only marginally in
relation to sexuality). The idea that develops
with increasing conviction is that gender does
not coincide with sex.
Philosophy of Law
 On the basis of the thematisation of the
distinction of sex/gender, a part of feminism
envisages the possibility that the male/female
hierarchy is overturnable:
 The conceptual pair sex/gender is theorized
first implicitly, then explicitly in the various
liberal, socialist and radical stances.
Philosophy of Law
Early feminism
 It focuses on the categories of equality/difference and only
implicitly on gender:
 the sexual difference of men/women is considered irrelevant, in
a prospective of egalitarian assimilation of man
 The reason for the oppression of women is found in society
(therefore in gender) and not in the sexual condition.
 Equality becomes an absolute paradigm
 Subsequent explicit shift to the categories of sex/gender. It is
outlined in gender feminism as opposed to the equality
feminism. The sexual condition of women, understood as the
anatomy of the female body and reproductive function in the
gestational sense (pregnancy, childbirth, breastfeeding) is
considered to be the root of women’s inferiority in relation to
men, and their condition of subjection.
Philosophy of Law
Women have acquired a private, domestic and
caring role, because of their biological
condition. This hinders their participation in
public, social, political and economic life to
which men have access.
Philosophy of Law
Feminism and sex/gender separation
 Through this distinction feminism intends to liberate
women from marginalization and make them regain a
position of equality, in accordance with a number of
philosophical lines:
 showing the irrelevance of sex for gender and the
consideration of gender as a social construction
 the use of new technologies (contraception,
sterilisation, abortion and reproductive technologies)
separating sex from procreation, allow women to
overcome this “disadvantage” determined by their
biological condition
Philosophy of Law
Objections:
 hierarchy is not caused by sexual difference
 reproductive technologies lead to forms of
manipulation of the body (for women and
embryos)
Philosophy of Law
Problematic conceptual distinctions:
 the gender category is sometimes used as a
synonym for sex, other times as a meta-biological
category that allows the theorising of a path for
women’s liberation.
 There are not only linguistic reasons for the choice of
the term, but also a precise political and social
theory. Gender gives weight to the social construction
of sexual inequality. In this direction, even in
feminism, a critique of biological determinism
emerges gradually and in an extensive manner.
Philosophy of Law
First wave feminism (1848-1918)
 The birth of feminist thought in the late eighteenth
and early nineteenth century:
 Publication of A vindication of the rights of women by
Mary Wollstonecraft (1792)
 The Déclaration des droits de la femme et de la
citoyenne by Olympe de Gouges (1791)
 Wollstonecraft can be considered an anticipator of
the sex/gender debate. The author is aware that the
oppression of women is not a fact of nature but a
social fact, i.e., it does not depend on internal factors,
such as biological condition, but on external factors,
such as education and social organisation. In other
words, it is a matter of gender, not sex.
Philosophy of Law
 De Gouge aims to combat sexist oppression,
in order to reaffirm the “sacred and
inalienable rights of women”. She argues that
“woman is born free and lives equal to man in
her right”, appealing to the concept of “equal
dignity”
 This is the conceptual approach within which
the first wave of feminism is structured:
 It focuses on emancipation, in the sense of
freeing nature from the oppression of society
Philosophy of Law
Equality feminism is divided into two main
trends:
 liberal
 socialist
 These orientation, despite their differences in
argumentation, share the emancipationist
ideal.
Philosophy of Law
Liberal and socialist feminism on gender equality
Liberal feminism:
 Harriet Taylor in the essay The Emancipation of
Women (1851) and John Stuart Mill in The Subjection of
Women (1869) reject the alleged natural inferiority of
women, claiming that every human being is by nature
rational and autonomous morally.
 There is an attempt to overcome the subjection of
women due to education, history and culture so that
women can regain their natural rights, denied and not
recognised by society.
Philosophy of Law
Harriet Taylor:
 She particularly insists on education, employment,
political participation, believing that women can
achieve freedom through liberation from care and
family.
John Stuart Mill:
 He states that women, although physically weaker
than men, should not be subjugated to them.
Philosophy of Law
Physical difference does not justify social subordination,
that is a sort of slavery:
 The enslavement of women in the family, exercised
not through strength, but with affection, which prevents
collective rebellion. In this sense, women educated
constantly to the duty of self-denial, must vindicate
equality in political rights by appealing to rational
capacities.
 It is the natural equality of the rights of every human
being regardless of sex that calls for the obligation of
equal treatment in education, economic management,
employment and voting.
Philosophy of Law
The Emancipation of Women (Harriet Taylor):
 It makes a case not merely for giving women the ballot but for
“equality in all rights, political, civil, and social, with the male
citizens of the community”.
 This essay contains many of the same lines of argument as The
Subjection of Women, written by Mill and published in 1869,
although it expresses a somewhat more radical view of gender
roles than the later essay.
 It maintains that the denial of political rights to women tends to
restrict their interests to matters that directly impact the family,
with the result that the influence of wives on their husbands
tends to diminish the latter's willingness to act from publicspirited reasons.
Philosophy of Law
 Furthermore, it contends that when women do not
enjoy equal educational rights with men then wives
will impede rather than encourage their husbands'
moral and intellectual development.
 The major point of difference between the two is that
while the Subjection rather notoriously suggests that
the best arrangement for most married couples will
be for the wife to concentrate on the care of the
house and the children.
 Taylor’s essay instead argues for the desirability of
married women's working outside the home.
Philosophy of Law
According to H. Taylor:
“Even if every woman, as matters now stand, had a
claim on some man for support, how infinitely preferable
is it that part of the income should be of the woman's
earning, even if the aggregate sum were but little
increased by it…. Even under the present laws
respecting the property of women, a woman who
contributes materially to the support of the family,
cannot be treated in the same contemptuously
tyrannical manner as one who, however she may toil as
a domestic drudge, is a dependent on the man for
subsistence”.
Philosophy of Law
The Subjection of Women (J. Stuart Mill)
 His view on the problem of gender equality as expressed in this
essay is commonly regarded as one of the core texts of liberal
feminism of the 19th century. It is based on the principle of
equality of women and men:
 J. Stuart Mill considered this to be one of the key principles for
building a liberal and democratic society. His interest in the
emancipation of women was systematic and continuous.
 He was a “public man”, an enthusiastic participant in public and
political debates concerning various social problems of his time,
and was especially interested in legal and social reform. Among
the issues on which Mill campaigned most intensively were
women’s rights, suffrage and women’s equal access to
education.
Philosophy of Law
 From 1850 onwards, he actively supported the
women’s movement as it developed during this
period and participated in many forms of women’s
political struggle against subjection and
discrimination, advocating for civil and political rights,
as well as social and political reforms aimed at
improving their situation.
 Mill worked to influence legislation and public policy
concerning issues affecting women:
 He was critical about the idea that husbands, through
their right to vote, served as the protectors of their
wives. For him, women’s emancipation meant the
greater struggle for women’s equality.
Philosophy of Law
In The Subjection of Women, Mill discusses the
situation of an intelligent woman confined by patriarchal
institutions and customs that deny her individuality:
 He reached the strong conviction that woman’s
suffrage was an essential step towards the moral
improvement of humankind, and that the relationship
between husband and wife ought to be grounded in
legal as well as real equality.
 “ Marital slavery ” should be replaced by “ marital
friendship”.
Philosophy of Law
Mill formulates the fundamental argument of The
Subjection of Women in its first paragraph:
“the principle which regulates the existing social
r elat i ons bet ween t he t wo sexes – t he lega l
subordination of one sex to the other – is wrong in itself
and now one of the chief hindrances to human
improvement; and […] ought to be replaced by a
principle of perfect equality, admitting no power or
privilege on the one side, nor disability on the other”.
Philosophy of Law
Mill’s criticism of the social status of women is based on
his analysis of the social injustice excluding women
from public and civil life, from politics and decisionmaking.
He stresses that this kind of social injustice is one of the
main barriers to human progress and the moral
improvement of humankind. Analysing the
consequences of women’s subjugation, he points out
that such conditions negatively affect not only the lives
of women, but of men as well.
Philosophy of Law
 Men and women alike are harmed by such a
situation, and consequently the subjection of women
negatively affects the whole of society. As a liberal
thinker, Mill expresses his strong conviction that the
subordination of women, which deprives them of
freedom, is an unjust violation of the principle of
liberty. Moreover, it is a historical anachronism, “an
isolated fact in modern social institutions”.
 Mill declares that this “relic of the past is discordant
with the future, and must necessarily disappear”. He
locates the origin of women’s oppression in men’s
physical strength, assuming that the more influence
reason has in a society, the less importance physical
strength will have.
Philosophy of Law
 In such a state of affairs, women would no longer be
disadvantaged, as physical strength becomes less
important as civilisation progresses. This progress
implies the development of reason which, according
to Mill, is the same in either sex.
 Hence the subjection of women in an advanced
society has no other basis than habit or custom, both
of which are serious hindrances to the full
development of reason. In this way, Mill
conceptualises human life as progressing from the
passionate and the natural to the rational and the
cultural.
Philosophy of Law
 According to Mill, inequality represents a serious
barrier to the advancement of an entire society, and
is also an obstacle to progress on an individual level,
that is, to individual improvement and prosperity.
Precisely this is Mill’s point of departure in arguing for
the need to dismantle social and legal relationships
that subjugate women and establish perfect equality
and partnership between the sexes, in both the public
and private spheres.
 However, some of his views are more similar to
certain radical feminist ideas developed within
“second-wave feminism”.
Philosophy of Law
When speaking about women’s status, especially in the
family and marriage, he often uses the image of slavery:
 Mill considers marriage, or more precisely the marital
law of his society, as the main factor in generating,
perpetuating and enforcing women’s slavery. In his
view, women are in a double bind: they are not free
within marriage, and they are not free not to marry. This
lack of freedom not to marry results from the fact that
they cannot acquire education or earn money in the
public sphere. Thus there is strong social and economic
pressure to marry: law and custom dictate that a woman
has scarcely any available means of gaining a
livelihood, except as a wife and mother.
Philosophy of Law
 Mill’s reflections on women’s status within marriage contain not
only this critical moment, but also some constructive ones. He
outlines a vision of marital partnership based on the principles of
equality, partnership, cooperation and reciprocity between
woman and man, and stresses that only such a relationship
between married persons is acceptable, not only in a political
but also in a moral sense:
 “The equality of married persons before the law, is not only the
sole mode in which that particular relation can be made
consistent with justice to both sides, and conducive to the
happiness of both, but it is the only means of rendering the daily
life of mankind, in any high sense, a school of moral cultivation”.
Philosophy of Law
 Accordingly, he believes that marital relations based
on partnership and equality would transform not only
the domestic but also the public sphere.
 In compliance with his liberal political and
philosophical convictions, he maintains that the very
principle of justice requires that women possess the
same rights as men, and that equality before the law
will lead to justice in all spheres of social and political
life. Mill’s analysis of the subjection of women in
society clearly reveals his utilitarian position, as well
as his participation in the English liberal tradition.
Philosophy of Law
 Mill justifies the necessity of women’s emancipation mainly by
the need to create room for each individual (which means not
only men, but also women) to develop their personal inclinations
and talents, so as to realise the maximum of their personal
happiness and, as a consequence, contribute to the
development of the whole of society.
 It is not difficult to identify the utilitarian principle of maximum
happiness in the background of such argumentation; for it is the
well-being of the maximum number of people which Mill uses to
demonstrate the disutility of women’s oppression and exclusion
from public life. Other principles which are central to his
argumentation are the liberal principle of equality and freedom,
the principle of equal opportunities, and the principle of free
individual choice. Accordingly, since human beings are equal,
the fact that someone is born a woman should not determine her
lifelong position and status in society, and neither philosophy
nor customs should.
Philosophy of Law
 As for Mill’s strategy, it may be said that he, like Harriet Taylor,
wanted to extend the ideology of liberal individualism to women;
for both of them sought to secure an independent, autonomous
identity for women as distinct individuals.
 In short, Mill’s argumentation is bound to two fundamental
assumptions or theses, which permeate his thoughts throughout
the whole essay:
 According to the first, the equality of women before the law is an
imperative proceeding from the very principle of social justice.
The second focuses on his thesis regarding the social utility of
eliminating the oppression of women, not only for them but for
society as a whole. These two assumptions are joined into one
thesis of fundamental importance, according to which the
inequality of women and men is unjust as well as harmful, both
for individuals (individual women and men) and for society.
Philosophy of Law
 In accordance with his liberal social and political philosophy, Mill
stresses the similarities between women and men, rather than
their differences, emphasising that “any of the mental
differences supposed to exist between women and men are but
the natural effect of the differences in their education and
circumstances, and indicate no radical difference, far less
radical inferiority, of nature”.
 Mill argues that any gap in intellectual achievement between
men and women can be explained by the better education and
privileged social position which men enjoy. On the other hand,
he endeavours to emphasise and positively evaluate the
importance of those mental or behavioural traits of women
which supposedly differ from men’s. For example, while arguing
for women’s suffrage and their representation in public life, he
suggests that “the general bent of their talents is towards the
practical”, thus making them fit for a life of public action.
Philosophy of Law
 Mill stresses that “what is now called the nature of
women is an eminently artificial thing, i.e., the result
of forced repression in some directions, unnatural
stimulation in others”.
 Here Mill not only calls attention to the impossibility of
knowing the “nature” of women; for what we now call
the nature or natural traits of women is the result of
culturally determined factors such as socialisation
and education and the effect of the social
circumstances in which women live.
Philosophy of Law
Objections and ambiguities in Mill’s philosophical thinking
 One of the main targets in current criticism of Mill’s liberal
feminism is his universalist and, at the same time, biased view
of human life and human nature. As already mentioned, Mill
conceptualises human life as progressing from the passionate
and the natural to the rational and the cultural.
 Although Mill criticises women’s status as wives and mothers
and condemns the injustice of marital slavery, his views on
marriage show certain limits to his liberal feminism. He does not
fight traditional assumptions regarding women’s and men’s
different responsibilities in a household, and accepts the notion
that when women marry they should be responsible for taking
care of the home and children, while men provide the family
income.
Philosophy of Law
 It would seem that his emphasis on the importance of
legal and political equality, on equality before the law,
makes him less sensitive to other forms of inequality
and discrimination.
 Mill considered the principle of equality to be a moral
imperative, while the division of labour was an
empirical matter, one which might be altered
according to actual conditions and experience.
Philosophy of Law
Socialist feminism
 Liberal feminism developed mainly in England and in the U.S.,
given the greater weight of political liberalism compared to
Europe.
 However, after World War II, in European countries, following
the development of welfare state systems, socialist feminists
conveyed the vindications of women.
 Marxist and socialist thought, even though in a different
theoretical perspective, share with liberal feminism, claims for
the emancipation of women, through access to employment and
the public sphere.
 This theory frames the issue of the problem of women’s status
in the context of class inequalities arising from the capitalist
economic system.
Philosophy of Law
 Even in this perspective, the reasons for the
oppression of women are not identified in nature, but
in society:
 The prospects for women status improvement are
found in social change, specifically in the economic
conditions of women, through their integration into
the working class, fighting for recognition of equal
access to employment.
Philosophy of Law
Socialist feminism:
 It calls for State intervention in the field of social
policies to ensure the conditions that enable women
to participate in employment and public life (in
opposition to liberal feminism, which relies on free
market competition). This perspective believes that
through the communist revolution, in a socialist
society, all forms of subordination will disappear,
along with those of the proletarians in relation to
capitalists.
 The interests of women are, therefore, proposed as
an ally of the proletarians for the socialist revolution.
Philosophy of Law
 Heterogeneous paths towards the sex/gender debate: feminist
provocative attempts to overcome nature
 From equality/difference dualism to sex/gender debate:
 The feminist reflection (1918-1968) embraces various lines of
rethinking the relationship between equality/difference, which is
intertwined, on many levels, with the sex/gender issue. In this
framework, common elements are perceived:
 the identification of sex (corresponding to nature) as the
underlying reason for the inferiority of women
 seeking to modify “gender” in society and culture
Philosophy of Law
Simone de Beauvoir, Le deuxième sex (1949)
 The author addresses the issue of women’s
subordination condition, looking for the causes
through a detailed analysis in biological,
psychoanalytical and historical terms. This study is
placed in a philosophical perspective stemming from
a synthesis of existentialism and Hegelianism:
 The existentialist assumption taken up by Sartre’s
philosophical thought, according to which existence
precedes essence. It is a materialist view (as
opposed to essentialism) that affirms the priority and
exclusivity of existence, i.e. what man is in his
concrete reality.
Philosophy of Law
 De Beauvoir states that “one is not born a
woman, but becomes one”. Every human
being (man or woman) is self-sufficient and
makes himself/herself. Every individual is the
result of free acts and is able to choose from
two paths:
 The path of transcendence, i.e. the active
transformation of the world
 The path of immanence, i.e. passive
acceptance of things as they are
Philosophy of Law
 The author applies these categories to the
understanding of the female condition:
 A woman exists as she becomes, she projects
herself into the world, transcending her immanence
through the exercise of conscience and liberty.
However, women are incapable of transcending
themselves, since they have been historically
confined and “imprisoned” to remain “trapped” in the
immanence of the body, meant for procreation,
motherhood and domestic work, in the passivity and
objectivity binding them to a state of subordination.
Philosophy of Law
Women have found themselves in the condition
of being “Other” in relation to man by nature.
They have also chosen to be “Other” in the
social context. Although influenced by their
biological state, they have not been forced to
accept this inferior status, for which they are
also “accomplices”.
Philosophy of Law
“No biological, psychological, economic destiny
defines the face that the human female
assumes in the heart of society”.
The author locates in history the cause of the
female condition. In a sense, in her view, sex
and gender are the causes of the hierarchical
order of the inferiority of women to men, from
which they must break free to become equal to
men.
Philosophy of Law
A woman is not a “fixed reality”, but a
“becoming”. She was not born as women, but
she has become one, due to internal biological
and psychological conditions, alongside
external social and historical conditions.
However, she can also cease to be one, placing
herself in a position of equality to men. She
must from “passive object” without freedom,
become an “active subject”.
Philosophy of Law
 She must transcend herself, create culture
beyond nature, free herself from the “slavery”
of marriage, reproduction and motherhood.
Women were historically excluded from the
relational dynamics of recognition for which
reciprocity is a requirement.
Philosophy of Law
 The phrase “one is not born a woman, but
becomes one” is used by gender theories
with a different meaning, but to some extent
anticipated by De Beauvoir when deeming
“womanity” socially constructed, transcending
nature.
Philosophy of Law
 She explores the ways that cultural
assumptions frame women’s experience of
their bodies and alienate them from their
body’s possibilities. For example, it is
assumed that women are the weaker sex.
What is the ground of this assumption?
 What criteria of strength are used? Average
body size?
 Is there a reason not to consider longevity a
sign of strength? Using this criterion, would
women still be considered the weaker sex?
Philosophy of Law
 De Beauvoir opened the way for the consciousness-
raising that characterized second wave feminism: it
validated women’s experience of injustice.
 Her ethical-political question: “How can a human
being in a woman’s situation attain fulfilment”?
 The author argues that women’s exploitation is
historical, therefore, amenable to change. As an
existential situation, however, women are responsible
for changing it. Liberation must be woman’s work. It
is not just a matter of appealing to men to give
women their freedom, but a matter of women
discovering their solidarity and the pleasures of
freedom.
Philosophy of Law
 Without ignoring the importance of women’s gaining
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the right to vote and without dismissing the necessity
of women achieving economic independence, she
finds these liberal and Marxist solutions to women’s
situation inadequate.
The liberated woman must free herself from two
shackles:
1) The idea that to be independent she must be like
men
2) The socialization through which she becomes
feminized.
The first alienates her from her sexuality. The second
makes her adverse to risking herself for her ideals.
Philosophy of Law
 Betty Friedan, The Feminine Mystique (1969)
 The author pursues the same orientation,
albeit in a different philosophical context,
deploring the condition of the feminine
mystique, i.e. the idea and idealised condition
in which women devoted to family are
confined, finding fulfilment through
domestic/reproductive family life, renouncing
public life.
Philosophy of Law
 “Mona Lisa’s enigmatic smile” represents, in her opinion, the
interior crisis of women apparently gratified by marriage and the
family, they experience a sensation of emptiness, feeling robbed
of their identity, defined socially by the function of being bride,
mother, homemaker, and end up feeling “incomplete”. On such
grounds, women call for a public space, with the same function
and role as men in society, in education and employment as in
the exercise of power.
 The “feminine mystique” entrenches women in nature which
forces her into the “cage” of the family, reproduction, looking
after children and the home, from which it is possible to escape
only by rejecting this and changing their social role.
Philosophy of Law
 Friedan’s argument weaknesses:
 She saw domesticity as the main vehicle of gender
oppression and called upon women in general to find
jobs outside the home. Although, she failed to realize
that women from less privileged backgrounds, often
poor and non-white, already worked outside the
home to support their families. Friedan’s suggestion,
then, was applicable only to a particular sub-group of
women (white middle-class western housewives). But
it was mistakenly taken to apply to all women’s lives,
a mistake generated by the author’s failure to take
women’s racial and class differences into account.
Philosophy of Law
 Juliet Mitchell, Women: the Longest Revolution
(1966)
 The author critically examines the limitations of the
socialist vision in relation to women, focusing on the
plight of working women, as well as those of the
middle class, exploited inside and outside the
domestic environment. She contends that the causes
of the subordination of women lie in production,
reproduction, sexuality and the socialization of
children.
Philosophy of Law
 In order to attain the liberation of women, it is essential to
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transform all four elements:
production – through the socialist revolution that would eliminate
private property and class exploitation
reproduction – separating sexuality from procreation (even with
the use of birth control pills)
sexuality – by dividing property and marriage (i.e. the
liberalisation of prostitution and the normalising of
homosexuality, alongside heterosexuality)
the socialization of children – calling for the shared participation
of fathers in the care of the domestic environment and the
increase of social services.
Hence, the reasons for the inferiority are identified with social
conditions (gender) that must be changed, along with the
separation of sexuality from procreation.
Philosophy of Law
 Second wave feminism (1968-1980)
 The sex/gender debate becomes explicit in this
context.
 Radical feminism looks for a different solution to the
female issue: at the root of the dominion of women by
men, understood as the dominion of all men, over all
women, there is not only social exclusion and
economic exploitation, but also and above all, the
sphere of sexuality.
 It is the biological and anatomical difference in sex as
“immutable destiny” that has determined a difference
in gender or in social roles.
Philosophy of Law
 In the past, women accepted men as allies
(for instance, Mill and Engels), while new
feminism excluded men from feminist
theorising.
Philosophy of Law
 The sexual and reproductive condition of
women forces them into the role of carer and
the maternal domestic role that confines them
to an inferior social status in relation to men.
In this sense, feminism is opposed to
biological and social determinism.
Philosophy of Law
 Radical feminism argues that women’s liberation is
liberation from the body, extending as far as
dissolution of female identity: the destruction of the
female model (and therefore of motherhood, the
domestic role, women’s attitude and behaviour) is
considered the essential preliminary condition for the
construction of a post-model that is not a mere male
assimilation. The goal is not equality as assimilation
(believed to be false equality) but equality as
liberation from the exploitation of women through
self-awareness of male oppression.
Philosophy of Law
 Liberation is meant as something different from
emancipation: it is a movement spreading in
theoretical and practical terms. In this perspective,
consciousness-raising groups are established as a
form of political activism. It is believed that the
personal experiences of sexuality, family and
motherhood are not only private, but also public
issues, as they cause women’s oppression. In this
theoretical framework, “gender consciousness”
means conscious awareness of oppression owing to
the sex/gender connection.
Philosophy of Law
 Liberation must happen through a revolution first in
the domestic and, then, in the political environment.
We must change not only the public sphere
(education, labour, civil and political rights) but also
the private one, expanding it to all areas of life. This
orientation of thought is prevalent in the U.S. and has
put forward requests for dissemination of methods of
contraception, the legalisation of abortion, the
establishment of women’s counselling centres for
sexual problems.
Philosophy of Law
 Difference feminism and the ethics of care. Carol Gilligan
and Jennifer Nedelsky: a relational perspective
 One of the most challenging aspects of feminism has been the
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search for equality, attempting to include women in an abstract
neutral category, eliminating differences:
Female emancipation does not mean denial of sexual identity,
femininity;
It does not mean devaluation of the body as a prison and
disadvantage;
Female corporeity can, instead, be understood as a resource,
care as the constitutive element of humanisation;
Care can be shared with men, as it is a psychosocial trait and
not a physical one.
Philosophy of Law
 Carol Gilligan ( a contemporary American feminist,
ethicist and psychologist):
 She conceptualized the “ethics of care” in the context
of female feminist thought, explicitly recognising that
care is a way of acting deriving from women:
 It is more widespread and statistically repeated in the
female experience.
 However, this does not deny that men too have or
can (or must) experience such a feminine way of
doing things.
Philosophy of Law
 Carol Gilligan coined the term “ethics of care” to
describe a mode of moral reasoning:
 It gives precedence to context and to the particulars
of a moral problem, rather than to universal rules.
 It focuses on issues of relationship, rather than on
abstract rights that are assumed to belong to every
individual.
 Gilligan exemplifies a feminist call for a re-thinking of
the role of the body with all its difference and
particularity.
Philosophy of Law
 Jennifer Nedelsky ( a contemporary political
philosopher, legal theorist, University of Toronto)
 She believes that we need a universal claim of equal
moral worth on which to ground our new notion of
impartiality and, indeed, all feminist and
emancipatory projects:
 Equality cannot mean that we simply take the legal
rights we have accorded to men and give them to
women or other excluded groups
 Many of these rights are premised on some form of
subordination. For instance, we cannot guarantee
women bodily security and integrity, while enforcing
all of the rights men have traditionally enjoyed.
Philosophy of Law
 Accordingly, equality cannot mean that all subordinated groups
can finally come to enjoy the rights and privileges of the
dominant group:
 Part of what hierarchy means is that the privileged enjoy
advantages at the expense of the subordinated.
 For example, the advantages that white, middle-class men have
long enjoyed by not having to compete with women and visible
minorities for positions in professional schools and jobs cannot
be maintained if the disadvantage of those subordinated groups
is to be overcome.
 Therefore, equality cannot be intended as equalizing existing
rights and privileges.
Philosophy of Law
J. Nedelsky, Law, Autonomy and the Relational Self: A
feminist revisioning of the foundations of law (2005):
 According to the author, rethinking flows from her
central claim that violence against women, for
instance, cannot be prevented until the relations
between men and women are transformed.
 This means that transformation of these social and
intimate relations must be a goal of the liberal state.
 A notion of rights that regularly directs our attention to
structures of relationships is better suited to facilitate
that shift that one, like the traditional liberal
conception, aimed at the protection of boundaries.
Philosophy of Law
 Nedelsky’s effort focuses on using relational
feminism (as in Gilligan’s feminist elaborations) to
develop new conceptions of rights:
 She brought up the argument that rights should be
reconceptualised in terms of the relationships (of
power, trust, responsibility) they refer to.
 For instance, the violence men perpetrate against
women must be understood in the context of the
destructive gender roles that are so central to our
psyches.
Philosophy of Law
 She argues that a simple shift in power between men
and women, taking the form of giving women an
equal share of the kind of power men hold, will never
solve the problem of violence and destruction
endemic to North American society.
 The feminine (whether in men or women), with its
different approach to power and relationship, is itself
a target of violence, pervading our cultural patterns.
 A far broader transformation than an equalizing of
conventional power is required to achieve the
minimum aspirations of a liberal society: this is meant
for the wider purpose of wellbeing or human
flourishing.
Philosophy of Law
 Nedelsky also suggests that the conception of rights
as relationship can mitigate the dangerous capacity
to treat people as categories or as removed “others”.
 On the contrary, the conventional language of rights
as boundaries fosters people’s inclination to project
evil onto others.
 What really matters is a relational habit of thinking,
that our conception of rights turns our attention to the
relationships of which we are a part, rather than
enabling us to be blind to them.
 The inquiry into gender (within the equality/difference
debate) must be an investigation into the dynamics of
interaction between men and women.
Philosophy of Law
 According to Nedelsky, it is necessary to end not only the
domination of women by men, but:
 The primacy of domination in general
 The role of violence in our culture
 Its association with masculinity
 She believes that habits of relational thinking would foster both
compassion and intelligent responsibility. It could be the basis
for a more reasonable judgment about the limits of our power as
individuals, as well as the desirable forms of power we exercise
collectively.
 Both men and women have to take up new responsibilities as
they learn to relate each other with the kind of mutual respect
proper to equals.
Philosophy of Law
 Nedelsky:
 Men do violence to women because the
construction of gender itself has built into it a
superiority and dominance of men over
women, and a picture of sexuality entailing a
deep asymmetry between men and women.
Philosophy of Law
 New norms of work and care: supporting families, equality and
good governance (J. Nedelsky)
 The key-point of her stance is that western societies face a set
of critical issues arising out of dysfunctional norms of work and
care:
 Unsustainable stress of families
 Persistent inequality for women
 Policy makers failing to properly take into account care work that
life requires
 Nedelsky proposes to radically change the kinds of things that
generate approval and disapproval among colleagues, friends,
family and neighbours and society in general.
 She advocates new norms about how everyone should engage
in employment and in care work.
Philosophy of Law
 Currently, it is a clear norm that adult males should work full
time. If they can’t, it is usually a source of distress and
embarrassment.
 There is no comparably clear norm concerning what
responsibilities men have for taking care of themselves or
providing the emotional support or the shopping, cooking,
cleaning or child care, that makes the daily life of their families
possible.
 Most women with children are employed in the paid work force
(with general social approval), and yet women are expected to
do the care work families require (while suffering the disapproval
of themselves and others if they are seen to be failing at that).
 It is fairly clear that the combined expectations of work and care
leave women stressed and deprived of sleep, leisure time, and
time to themselves.
Philosophy of Law
 The feminist revolution of the 1970s and the 1980s got white
middle class women into the workplace in unprecedented
numbers.
 Although, the norms of work and care have barely changed.
Workplace structures and expectations that presumed that
workers had wives at home have remained largely unchanged,
even if now those wives are the exception.
 These norms need to be transformed so that all competent
adults are expected to be employed part-time (no less than 12
and no more than 30 hours a week). The failure to meet these
social norms would generate the sort of disapproval,
embarrassment that currently arise if a male adult announced
that he had never held a job.
Philosophy of Law
 According to Nedelsky, without such a change we cannot hope to sort
out two compelling problems that afflict all western societies:
 The first problem is the unsustainable structure of work and family life
that puts considerable stress on families;
 The second problem is that the shift in gender norms (referred to as
pertaining to the equality/difference dualism), leaves women with less
pay, less economic security, vulnerability to poverty, less leisure time
and less access to top jobs.
 Moreover, equality requires an equitable distribution of care work. The
failure to achieve equitable care arrangements also undermines
democracy. It interferes with access to participation.
 Women who come home from a full day of work to another 4-6 hours of
care work do not have time to advocate for gender equality or anything
else either in their workplace or in electoral politics
Philosophy of Law
 Nedelsky argues that the project of second wave feminists was
characterized by the intention to change gender norms. In her
view, they were successful with regard to the employment
norms and, thus, opportunities for white, middle class women.
 However, they failed dramatically in making major changes in
the gendered nature of household labour.
 Therefore, she proposes a radical answer:
 Part-time employment and part-time care work for everyone.
 In North America and, increasingly, throughout the world, people
live in cultures that undervalue care and overvalue economic
success, thus, the work people do as part of their employment.
Philosophy of Law
 Equality
 Women suffer from inequality in both the distribution of care and
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in employment.
In addition, the “global care chain” – women being “imported”
from other countries to do care work – falls within the problem of
equality.
The global care chain is driven in part by what seems to be a
growing consensus around the world that the path to gender
equality is full time work for women.
As more women enter the paid work force, societies find women
from a poorer country or region to bring in to do the care work:
This becomes the “solution” to the issue of a structure of
employment that is not adapted to the needs of care.
Philosophy of Law
 Care work is routinely discussed as a burden,
which, certainly, it can be and under current
conditions often is.
 However, part of what needs to be more
widely understood are its joys, satisfactions
and importance for the quality of life.
 Care is a source of human bonding and
satisfying relationships are at the core of a
fulfilling life.
Philosophy of Law
 Highlighting some of the challenges of Nedelsky’s project:
 It entails a radical transformation in people’s relation to their
work and to the gender norms that help construct that relation.
 Any system that were to start by introducing good part time
employment would have to make sure that it was not just
women who were taking up those jobs.
 For instance, the Netherlands has succeeded in creating a lot of
good part time jobs. But the family norm has become that
women are employed part time and men full time. This might
significantly ease the stress on families, however, it cannot
address issues of gender equality.
Philosophy of Law
 Changes in gender norms
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Because of the centrality of employment norms to masculinity
and care norms to female gender identity, Nedelsky’s proposal
involves the major challenge of changing core dimensions of
gender identity:
 Engagement in care practices, which routinely involve empathy
and emotional support, should also transform men’s ability to
deal with their own emotions, along with those of others.
 This is likely to improve all of their relationships. Creating
flexible and varied norms of employment should make it easier
for men to adapt to changing employment opportunities.
 If women learn to relinquish control of childrearing and
household management, the habits of being controlling in
relationships are likely to be eroded, to the good of all.
Feminism and reproductive technologies
 Access to assisted reproductive technologies has become
increasingly frequent since the end of the 1970s, due to:
 technological developments in the medical field
 significant social changes affecting family patterns (e.g. altering
parental relationships, less bound by traditional/natural ways of
conceiving family)
 Italy, “Rules on Medically Assisted Procreation” (Law No. 40 of
19 February 2004)
The main ethical and legal dilemmas arise out of the tension
between the need to ensure scientific research advancements and
respect for values guaranteeing the dignity of the person
Overview
Reproductive techniques challenge/bring uncertainty into the social meaning
of motherhood.
Feminist ethics provides different answers to these issues:
Some lines of thought focus on l’idea that transforming gestation through
technology is a socially progressive solution (i.e. increasing human freedom,
achieving social emancipation from the conditioning of men)
Others believe that reproductive technologies lead to opposite outcomes
(deprive women of their “reproductive power”, handing it over to men)
There are also orientations fearing that medical techniques may reduce human
body (and its parts) to “chattel”. Those embracing this approach reject all
reproductive interventions involving third parties (for instance, surrogacy)
Overview
From a legal standpoint, it is difficult to devise solutions taking into
account several elements:
New technological applications arising from rapid scientific progress
(assessing risk-benefit relationship)
Achieving balance between ethical pluralism and conflicting
fundamental rights at stake.
Object of Inquiry
Conceptual definitions:
Surrogacy is defined as ʽthe practice whereby one woman carries
a child for another with the intention that the child should be
handed over after birthʼ (Report of the Committee of Inquiry into
Human Fertilization and Embryology, chaired by Mary Warnock,
London 1984).
It can take a number of forms:
In some cases, the ʽsurrogate motherʼ is the ʽgenetic motherʼ
because she is also the egg provider (Partial or Traditional
Surrogacy). It usually involves sperm from the intending father.
In other cases, the surrogate provides only ʽgestational servicesʼ.
The commissioning mother may be the genetic mother or she may
make no contribution to the establishment of the pregnancy,
involving a third donor (Full or Host Gestational Surrogacy).
Three possibilities: 1) eggs and sperm of the intended parents; 2)
a donated egg fertilized with sperm from the intended father; 3) an
embryo created using donor eggs and sperm.
Object of Inquiry
Motherhood results in ʽfragmentationʼ into different roles:
 Genetic
 Gestational
 Social
It questions the very fundamental certainty of all human beings:
 Maternal identity
Object of Inquiry
Different opportunities are envisaged also with regard to the
father’s role
The genetic father may be:
 The husband of the commissioning mother/or of the carrying
mother/anonymous donor
There are, thus, many possible combinations of persons who are
relevant to the child’s conception, birth and early environment. Of
these various forms perhaps the most likely are:
 Surrogacy involving artificial insemination, where the carrying
mother is the genetic mother inseminated with semen from the
male partner of the “commissioning couple”
 Surrogacy using in vitro fertilisation where both egg and semen
come from the commissioning couple and the resultant embryo is
transferred to and implants in the carrying mother
Critical issues
Ethical and legal dilemmas involve the role of the mother:
 the “substitute mother” may refuse to give the child to the commissioning
mother at birth
 Difficulty to legally recognize as “mother” who has not given birth to the child
It challenges:
 traditional structure of motherhood/family
 values such as freedom, dignity and health of the parties involved (roles of
mother, father, interests of the child)
Renting the womb of a woman for a parental project of others, leading to:
 “de-personalisation/dissociation between fertilization and
implantation/genetics and parenthood
Reasons for engaging in surrogacy
Certain women are unable to undergo pregnancy due to physiological
conditions:
 Diabetes
 Uterine/pelvic diseases
 Complications in previous pregnancy
 Repeated failed fertility treatment
Other not strictly medical reasons:
 Aesthetic
 Career priorities
 Same-sex couples
Commercial/Altruistic Agreement Models
The Commercial form
“Commercial contract is modelled on the business relationship:
both parties are motivated by personal gain to enter a legally
enforceable agreement, which stipulates that the contract mother or
“surrogate” is to bear a child for the intending parents in exchange
for a fee” (Liezl Van Zyl and Ruth Walker, Bioethics, 2013)
Main features:
 the surrogate mother is usually required to undergo medical
examinations and to refrain from behaviour that could harm the
foetus
 the intending parents are considered to be the child’s legal
parents from the outset
 the parties to the contract are typically discouraged from
maintaining contact after the transaction is completed
Arguments in favour of surrogacy
Freedom to choose
Right to privacy
Women should be able to choose their parental role from available
reproductive techniques
According to C. Shalev: “Making babies is one of women’s possible
forms of power. Establishing a paid contract can help those having
limited income opportunities”.
A free reproductive market would enable women to autonomously set a
value for their procreative activities.
Back in the 1980s, Peter Singer and Deane Wells suggested
establishing “State Surrogacy Boards” to monitor agreement terms and
conditions/offer medical counselling to the parties involved.
Arguments in favour of surrogacy
In L.B. Andrew’s view:
Surrogacy is not a form of exploitation in itself, it becomes so whenever there
are poor living conditions. Efforts should focus not on abolishing compensation
but, instead, on increasing it. The “professional surrogate” could fulfil “extra
needs” (desires), such as:
Renovating homes
Affording education for their children
Purchasing cars
Other orientations:
Therapeutic reasons (a solution for infertility, most likely causing considerable
suffering).
No compensation is claimed (this way everyone could afford exercising their
right to a family, through procreation)
Appropriate regulation to control possible risks (for the commissioning couple,
surrogate and child):
Clear procedures guaranteeing the surrogate’s free consent
Objections to Surrogacy
Harm to surrogates/children (it can be psychologically damaging to be
forced to give up a baby; philosophical considerations against “using a
person as a means”)
Commodification of women/children
Exploitation (vulnerability of poor women)
It is defined as “reproductive slavery”/ “incubatory servitude”
Baby business
From a legal point of view:
The woman who gives birth to the child is usually recognized as “legal
mother”
Objections to Surrogacy
Feminist orientations:
Importance of pregnancy in a woman’s personal history. This
experience impacts their lives, leading them to a greater understanding
of themselves, establishing bonds between women.
Surrogate mothers give up their extra property rights (the ones
concerning the legal status of a person, which are usually not traded)
Objections to surrogacy
Power imbalances
Acts of disposition of one’s body affecting the subject’s physical integrity
are generally prohibited by legal systems (for instance, Art. 5 of the Italian
Civil Code)
Lack of proportionality between risks/benefits
Psychological pressures and negative effects:
separation from the child after birth
lack of autonomy
Also radical feminist orientations in the US are in favour of banning
surrogacy:
intermediary agencies do not conduct appropriate medical
testing/counselling, minimising risks while emphasizing benefits
What about the rights of the child?
In case of conflicting interests, the ones belonging to commissioning
parents prevail.
Current International trends
It is possible to identify two trends at European and international levels:
 endeavours towards universally condemning surrogacy
 devising harmonized standards for legalizing surrogacy
Philosophy of Law
Contact information:
E-mail: [email protected]
Philosophy of Law
Thank you for your attention