Cornell Law Review
Both the Supreme Court's jurisprudence of gender and feminist legal theory have generally assumed that some identifiable and describable category of woman exists prior to the construction of legal categories. For the Court, this woman-whose characteristics admittedly have changed over time-serves as the standard against which gendered legal classifications are measured. For feminism, her existence has served a different but equally important purpose as the subject for whom political goals are pursued. To the extent that the definitions of the category diverge, the differences among definitions are played out in feminist critiques of the Court's gender jurisprudence, and, occasionally, in the Court's response to those critiques. To the extent that these legal accounts of gender, both mainstream and feminist, endeavor to assess the accuracy of gender categories, they represent a mode of argument that tracks foundationalist or objectivist assumptions about knowledge. That is, their authority or persuasiveness rests upon their perceived correspondence to a reality that exists independent of legal discourse. These accounts depend therefore upon the identification of secure foundations for (gender) knowledge that are in some sense free of historical, political, or social contingency. Such modernist or objectivist assumptions have been under attack for decades within the academy. More recently, leftist legal critics have borrowed the insights and tools of antifoundationalist philosophy to call into question law's claim to rationality and legitimacy. Even more recently, some scholars have begun to question whether the postmodern or antifoundationalist view of knowledge as contingent promotes or threatens progressive social movements such as feminism, whatever its usefulness in challenging the validity of existing legal norms. Rather than addressing the abstract critique of reason that is at the heart of the postmodernist project, this Article attempts to link the critique of epistemology implicit in that argument to the more immediate issue of the utility of the postmodern position to feminist legal theory.
Tracy E. Higgins,
By Reason of Their Sex: Feminist Theory Postmodernism and Justice , 80 Cornell L. Rev. 1536
Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/265