Feminist Legal History (TJ Boisseau & Tracy A. Thomas, Editors)

Tracy A. Thomas, 1877

Abstract

This book is an edited collection of essays by scholars in law, history, and women’s studies that offers new historical and feminist perspectives on law and applies these insights to many of the legal and social policy issues of today. The collection takes as its primary goal an exploration of women’s historical use of the law to advocate and develop the notion of gender equality as constitutionally guaranteed. Throughout, the question of women’s individual agency – the ability to make decisions for themselves and control their own lives – is involved in their legal appeals. The book reveals the interrelationship between the law and women’s agency, from the law’s denial of individual autonomy, to its contemporaneous facilitation of that agency, to women’s use of that agency to transform the law itself. Contributing authors employ the core theme in a variety of historical contexts to reframe and illuminate such topics as women’s rights in the family, military, labor market, and the courts. Feminist developments of the law are traced from these historical settings through their transformative effect on modern social justice movements such as public interest lawyering and problem-solving courts.

The book proceeds in two parts to explore the reciprocal relationship between women’s agency and the law. Part I of the book, Contradictions in Legalizing Gender, begins with the conventional narrative that depicts law as a barrier to gender equality, and identifies the perpetuation of these limitations to present day. Contributors investigate situations such as marriage, abortion, and the military where courts have denied women rights despite their claims of equality with men. The extent of this gendered limitation in the law, and its continuation today in the face of women’s assumed equality and attainment of many other legal and political rights, reveals the entrenchment of gendered assumptions in the law. The essays in part I, however, suggest a secondary, and seemingly contradictory, development in the historical picture, one in which women encountered responsive courts that acknowledged their agency and social power. For despite the constraints and limitations of the law, women continued to resort to the legal process to challenge social norms. Illustrating this point, contributors explore the subjects of temperance, tort, marriage (Walker), and governmental benefits. This section includes considerations of many salient issues facing lawyers, feminists, and legal scholars today, including the relevance of family law to women’s gender-based political activism, conservative women’s appeal to the courts for social reform, and constitutional activism inherited from early feminists.

Part II of the book, Women’s Transformation of the Law, shows how women used their developed agency to change the law itself to respond to gendered realities. Women’s legal activism effectively altered the traditional concepts of the law and the legal process in many contexts by re-conceptualizing the basic legal notions of fairness and justice. Chapters here examine the historical forces shaping women’s experience as lay lawyers and as agents of public interest lawyering, the issues surrounding the “feminization” of courts, the creation of a legal class of “gender,” and the establishment of new laws responsive to women’s reality, including sexual harassment law and equal pay. Women transformed the law itself as women’s experience was incorporated into the legal standards.