Elizabeth Cady Stanton and the Feminist Foundations of Family Law

From a particular feminist perspective, Justice LeBel’s judgments in family law are puzzling. He authored several dissents that appear to advance a feminist position. In his final family appeal, however, in which he wrote the principal judgment rejecting the Charter challenge to Quebec’s legislative policy regarding unmarried cohabitants, he came down soundly against mainstream feminist wisdom in the common-law provinces. Addressing this puzzle, this paper suggests that LeBel J.’s judgments represent a particular institutionalist perspective. This perspective prioritizes the legislature as source of law reform and inclines against using the Charter to effect fundamental change. It derives from an understanding of the civil law tradition in Quebec and finds support in that province’s record of family law reform. Associating LeBel J. with this view of the respective roles of legislature and judiciary reduces the tension that his output in family law generates. Beyond that, the paper is a reminder of the complexity of family law in the Canadian federation, which involves multiple legal traditions and multiple feminisms, and of the importance of attending to first-order and second-order factors when reading judgments.

Canadian Journal of Women and The Law, 2004

This article examines the images of feminism and women’s groups in family law reform debates, particularly in the 1998 presentations of fathers’ rights advocates and related participants in Canada’s public consultations on child custody and access. These images are placed in the context of an increasingly sophisticated “backlash” literature that critiques feminist engagement with law and public policy. The article suggests that the fathers’ rights discourse invokes a caricature of feminism and identifies several mechanisms through which the discrediting of feminism occurred in the 1998 hearings. Feminism is also portrayed as a threat to dominant images of family, including the heterosexual norm. These portrayals of feminism and women’s groups in turn influence the law reform process due to the way in which “legitimate” knowledge is constructed. The article concludes with a discussion of why feminist voices are susceptible to discrediting and offers some suggestions for reasserting f...

2020

The 1870 and 1882 Married Women’s Property Acts’ passage constituted a significant change in married women’s legal status in Britain. The Property Acts granted married women independent property rights, thereby overturning much of the English common law of coverture—the doctrine that a married woman had no legal identity independent of her husband. Married women’s property rights, consequently, introduced a fundamental tension into Britain’s patriarchal social order, long predicated on a married woman’s legal non-existence and economic dependence. This dissertation argues that the social and legal contradictions the Property Acts engendered compelled Britons to re-imagine their society: from one organized around an independent, property-owning male head of household to one comprised of men and women, married or single, with claims to individual rights. It follows social commentators, judges, feminists, MPs, and government officials who tried to define the Act’s scope via debates in the press, the courts, the halls of Parliament, and offices of Inland Revenue. Recovering these debates reveals two understandings of the Property Acts: for some, a paternalistic law that protected poor women’s property from idle husbands; for feminists, a symbol of a married woman’s independence. Overall, this study marks a transitional moment for British society, as these competing arguments undermined the dominant Victorian-era separate spheres ideology and required Britons re-negotiate husbands and wives’ respective obligations to each other, to society, and to the state. “Reforming the Married State” deploys a trove of sources—newspapers, periodicals, suffragists’ papers, Parliamentary debates, and government papers—that reframe the Property Acts within histories of gender, liberalism and capitalism. While scholars acknowledge the Property Acts’ passage constituted a significant political victory for the women’s movement, they commonly regard women’s Parliamentary enfranchisement in 1918 as the impetus for subsequent economic and social reforms. As a result, the Property Acts are overlooked in social and economic histories of nineteenth and twentieth-century Britain. Re-centering the Property Acts illustrates the breadth of debate the Property Acts inspired, as legal changes to women’s rights in marriage reverberated through British social and economic life.

2015

In this essay, I measure the majority’s opinion in Obergefell v. Hodges against two legacies of second-wave feminist legal advocacy: the largely successful campaign to make civil marriage formally gender-neutral; and the lesser-known struggle against laws and practices that penalized women who lived their lives outside of marriage. Obergefell obliquely acknowledges marriage equality’s debt to the first legacy without explicitly adopting sex equality arguments against same-sex marriage bans. The legacy of feminist campaigns for nonmarital equality, by contrast, is absent from Obergefell’s reasoning and belied by rhetoric that both glorifies marriage and implicitly disparages nonmarriage. Even so, the history of transformational change invoked in Obergefell gives us reason to hope that marriage’s privileged legal status may not be impervious to challenge.

These few notes are about feminism and the law, better: about the approach of certain feminisms to certain areas of family law. In particular these notes are about the ideas of law as resistance and law as oppression as conceptualised by two different feminist wings in the 1970s: Italian radical feminism and English socialist feminism. The difference between these schools in approaching the law can be effectively seen in the way these two feminisms tackled the family in reference to two major issues: reproduction (abortion, particularly) and housework. So I will mainly refer to these topics in comparing and discussing the sets of arguments respectively produced by Italian radical feminism and English socialist feminism in rejecting or supporting specific legal policies concerning the family and-more generally-the theme of legal change as a key tool to promote social transformation.

2011

Foreword Reva Siegel Preface Tracey Jean Boisseau Introduction: Law, History, and Feminism Tracy A. Thomas and Tracey Jean BoisseauPart I: Contradictions in Legalizing Gender 1 Courts and Temperance "Ladies" Richard H. Chused 2 Women behind the WheelGender and Transportation Law, 1860-1930 Margo Schlanger 3 Expatriation by Marriage The Case of Asian American Women Leti Volpp 4 Made with Men in Mind Melissa Murray 5 Fighting Women Jill Elaine Hasday 6 Irrational Women Maya Manian Part II: Women's Transformation of the Law 7 Elizabeth Cady Stanton and the Notion of a Legal Class of Gender Tracy A. Thomas 8 "Them Law Wimmin" 156 Gwen Hoerr Jordan 9 Legal Aid, Women Lay Lawyers, and the Rewriting of History 1863-1930 Felice Batlan 10 Sisterhood of Struggle Lynda Dodd 11 "Feminizing" Courts Mae C. Quinn 12 Sexual Harassment Carrie N. Baker 13 Ledbetter's Continuum Eileen Boris Selected Bibliography Contributors Index

Routledge eBooks, 2013

The Good Society, 2001

International Journal of Constitutional Law, 2016

This article reasons that for women, as constitutional subjects, the emancipatory promise of constitutionalism was—from its inception—fundamentally limited by the entrenchment of the separate spheres tradition. Focusing on evolving constitutional jurisprudence in the US, Germany and Italy, the article describes a gradual and still imperfect process of (dis)establishment of the originally enshrined gender order, as it has unfolded since the 1970s in US and European constitutionalism. It is argued that these processes have allowed the constitutional doctrine of sex equality to challenge the most forthright expressions of the separate spheres ideology, denying the possibility of according men and women a different legal status of rights and duties and keeping women away from the marketplace. In spite of this, to this day, the sex constitutional equality doctrine has been an inadequate tool to fully subvert the pre-established gender order in both its transatlantic iterations. In the US, we find assimilationist workerism with its anti-stereotyping conception of gender equality, providing no support for working women, and in Europe accommodationist workerism, wherein special measures are fostered at the risk of entrenching rather than subverting existing gender roles. The article then describes recent evolutions in constitutionalism pointing to a promising third way, with Nordic inspiration, which, challenging traditionally accepted notions of family privacy and foregrounding fatherhood as opposed to just motherhood, would allow us to retain the central importance attached to care and reproduction, but at the same time assist in the process of overcoming traditional gender assumptions and stereotypes built around them.

Feminist Legal History, Introduction, 2010