Feminist legal theory

I argue for adopting an understanding of rape as non-consensual sex rather than such alternatives as sex against the will of the victim, or non-voluntary sex.  The article also argues for the value of conceptual analysis to reform in the criminal law and to social change in attitudes towards sexual relationships, in particular at demystifying sexual relationships.

This article explores the ways in which coupledom is promoted through contemporary family policy in the UK. It does this in the context of dominant political discourses suggesting that broken relationships are a major political problem and the cause of almost all that is wrong with British society today. The paper performs an analysis of recent family policies, revealing narratives claiming that stable coupled relationships are the foundation of a strong nation. The reverse of this narrative, therefore, is that to not be in—or even worse, to not even aspire to be in—a coupled relationship is not just a personal failure, but a failure for the nation as a whole. The article therefore argues that the UK government encourages a particular type of intimate relationship, despite an increasing recognition of ’diverse’ family forms. Build- ing upon Rich’s notion of compulsory heterosexuality, the article concludes that what we are witnessing in current British society is not compulsory heterosexuality, but compulsory coupledom.

This study examines Turkey's Law No. 6284, which was enacted pursuant to the Istanbul Convention's obligations for signatories to combat and prevent violence against women. The law aims to provide both protection and prevention measures to assist women and their families. However, the nation has struggled with the implementation of consistent responses to family violence. The article argues that, although Turkey has done much to implement the Istanbul Convention, the nation's male-dominated mentality and the emphasis on family coherence and harmony rather than women as "individuals" hinders effective responses to gender violence.

Legal judgment writing mobilises a process of story-telling, drawing on existing judicial discourses, precedents and practices to create a narrative relevant to the specific case that is articulated by the presiding judge. In the Feminist Judgments projects feminist scholars and activists have sought to challenge and reinterpret legal judgments that have disadvantaged, discriminated against or denied women’s experiences. This paper reflects on the process of writing as a feminist judge in the Australian Project, in an intimate homicide case, R v Middendorp. Drawing on the work of Judith Butler on intelligibility, iterability and the communality of violence and vulnerability, this article argues that feminist judgments necessarily require some uncomfortable compromises with unjust gendered institutions. While ‘donning the robes’ may be an uncomfortable process, a feminist re-articulation of the law’s carceral power serves to unsettle and challenge some aspects of gendered oppression, even though it cannot unsettle the operation of the institution. The article concludes that effective feminist interventions by members of the judiciary may require donning robes that are not entirely comfortable in order to persuade and advocate for change.

Women’s rights are often curtailed online due to the pervasive internet atmosphere of cybermisogyny. Extreme examples include ‘image-based sexual abuse’, a term which encompasses the non-consensual creation and/or distribution of private sexual images. The harms attached to this phenomenon are well documented. In this paper, we explore how copyright logic, despite its male-centric and property oriented worldview, presents one legal solution to this problem. We assert that Digital Millennium Copyright Act Takedown Notices, a copyright mechanism that notifies websites they are hosting infringing content and requires the prompt removal of the content, represents a novel legal mechanism to force websites to remove image-based sexual abuse from women’s online spaces. By using critical discourse analysis to review how Digital Millennium Copyright Act Takedown Notices attempt to provide solutions to the socio-spatial problem of image-based sexual abuse, we argue that copyright can subvert its current leanings to return to its original purpose: supporting creativity. Supporting creativity also helps to protect against the reproduction of gendered harms, from the real world to virtual spaces. This theorization represents not just legal geography but a feminist legal geography, in that it recognizes the internet should be a safe and legal space for women. In endorsing a pragmatic legal solution for women to regulate the sexually violent and nonconsensual distribution of their intimate images online, copyright is one mechanism that affirms women’s right to cyberspaces.

The approach taken by English courts to the duty of care question in negligence has been subject to harsh criticism in recent years. This article examines this fundamental issue in tort law, drawing upon Canadian and Australian jurisprudence by way of comparison. From this analysis, the concept of vulnerability is developed as a productive means of understanding the duty of care. Vulnerability is of increasing interest in legal and political theory and it is of particular relevance to the law of negligence. In addition to aiding doctrinal coherence, vulnerability – with its focus on relationships and care – has the potential to broaden the way in which the subject of tort law is conceived because it challenges dominant assumptions about autonomy as being prior to the relationships on which it
is dependent.

This paper is a contribution to a special issue honoring Duncan Kennedy. Taking the title ("Sexual Abuse, Sexy Dressing and the Eroticization of Domination") of Duncan Kennedy’s 1992 essay in the New England Law Review (which then evolved into the book "Sexy Dressing etc.; HUP 1995) as an invitation to think about political form, I want to draw on the ‘style’ of gender and legal theory that Kennedy advances. To this end, I don’t engage with the specific arguments advanced in Sexy Dressing but read it as an essay performing a form of political intervention that may be best understood by unveiling the elements of that form. In an effort to highlight the work of different elements, I describe them through the following nomenclature: the Sacred, the Profane, Erotics, Conflict, Voodoo and Risk. These function as shorthand code for the form of political engagement that Sexy Dressing manifests—although, significantly, not as a manifesto.

Kapitel aus: U. Bittlingmayer et al. (Hrsg.), Handbuch Kritische Theorie, Springer 2017
Das Verhältnis von Rechtlichem und Nichtrechtlichem ist weder gegensätzlich, noch komplementär, sondern paradox. Diese Behauptung will der vorliegende Text begründen. Zuerst wird Jürgen Habermas Konzept der Verrechtlichung rekonstruiert. In einem zweiten Schritt wird Axel Honneths Theorie der Verabsolutierung rechtlicher Freiheit vorgestellt. Abschließend soll Honneths Hinweis weiterverfolgt werden, wonach zum Verständnis zeitgenössischer Anerkennungskämpfe ein neuer Politikbegriff notwendig ist, der die traditionelle Staatszentrierung des Liberalismus überwindet. Der Vorschlag lautet, die Perspektive auf das Phänomen der Verrechtlichung zu verschieben und es aus dem Blickwinkel der Akteur_innen neu zu betrachten.

Cyberspace allows individuals to create representations of themselves that bear little or no similarity to their offline identities. Internet users can create a multitude of “avatars” for themselves, from video game identities to message board monikers. This creative capacity can be personally liberating in many ways, providing legitimate grounds for what could be termed “cyberspace idealism.” However, cyberspace also allows users to create online representations of others without their consent, and this practice has powerful discriminatory effects. Users who create false profiles on social networking sites, upload sexual images on “revenge porn” sites without consent, or launch graphic personalized attacks on message boards make their targets into unwilling avatars. This kind of online abuse has discriminatory consequences when, as is frequently the case, it is directed at groups already marginalized in offline society. This Article addresses the impact that this phenomenon has on women in particular. Online harassment and abuse directed at women undermines the creative and liberating possibilities of cyberspace for women, amplifies the sexual stereotyping and gender inequality of the offline world, and generally compromises women’s ability to share cyberspace on equal terms with men. Cyberspace idealism has served to obscure the realities of online discrimination and must be called to account for its shortcomings.

Over the past three decades there have been widespread reforms across the common law world to laws governing the prosecution and trial of sexual assault allegations in response to arguments of feminist and conservative commentators that the adversarial trial process was not producing convictions commensurate with the number of offences committed.
The evidence, however, is that these significant social, political, and legal reforms have resulted in little practical improvement in the operation of the criminal justice system. Indeed the experience across common law countries shows that there is very little scope for further substantive reforms. In the absence of major cultural change, the fundamental structure of the criminal justice system and the gendered operation of the adversarial system make it a highly problematic forum for addressing sexual assault.
The aim of this article is to take the debate forward and propose an alternative pathway for appropriate cases based on principles of restorative justice and therapeutic jurisprudence.

Sexual harassment is a complex and evolving practice. The rise of sexual discrimination in cyberspace is only one of the most recent and most striking examples of the phenomenon's increasing complexity. Sexual harassment law, however, has not kept pace with this evolution. Discrimination law has not been adequately " updated " to address new and amplified practices of sex discrimination. Its two principal limitations are (1) it treats only sexual harassment that occurs in certain protected settings (e.g. the workplace or school) as actionable and (2) it assumes that both the activity and the resulting harm of sexual harassment occur in the same protected setting. Thus, it is unable to address any harassment that occurs completely or partially outside of traditionally protected settings. By proposes a " multiple-setting " conception of sexual harassment that both moves beyond traditionally protected settings and explicitly acknowledges that sexual harassment in one setting can produce harms in another. In order to address multiple-setting harassment, a third-party liability regime similar to that of traditional sexual harassment law should be introduced into non-traditional contexts. In the particular case of online harassment, liability should attach to website operators. This regime will create an incentive for website operators to adopt preemptive, self-regulatory measures against online sexual harassment, much as employers have done in the offline setting.

In recent years, legislatures in the United States have considered and passed a number of "prenatal nondiscrimination" bills that would ban abortion based on the sex or race of the fetus. Proponents of these laws claim that such abortions are a form of genocide and sex-based feticide. Scholars have not yet offered a critical examination of these laws and their discourse. This article fills that gap and argues that, even as they disavow eugenics, supporters of race- and sex-selective abortion bans paradoxically draw on and reproduce the notions of national purity and civilization that undergirded eugenic policies. Through an examination of a variety of legal texts, I argue that the bans and their accompanying discourse cast women of color as a threat to the nation, while presenting fetuses of color as citizens desperately in need of protection from pregnant women, abortion providers, and the values of some segments of society. The effect is to deny agency to women of color and to cast them primarily as reproductive vessels whose bodies and decisions threaten the polity. The article also shows how these bans cast abortion as a type of slavery that must be eradicated in order to uphold the national culture and values of racial and gender equality. Women of color, therefore, emerge as a threat to the nation in their capacity to perpetuate anti-American values and, as potential reproducers and carriers of innocent fetal life, as essential to nation-building.

This article analyzes how concepts of gender, gender equality, and secularism have been addressed by the higher judiciary in India in cases dealing with matters of religion. The discussion focuses on three landmark decisions of the Indian Supreme Court on gender equality. The cases involve challenges to discriminatory religious practices that target women in the Muslim-minority and Hindu-majority communities. In each case, gender equality is taken up in relation to religion in ways that produce several outcomes for women that are problematic rather than ones that are unequivocally progressive or transformative. The judicial reasoning in each case resonates with the Hindu Right's approach to gender, gender equality, and secularism. Each concept is used to advance the Hindu Right's majoritarian and ideological agenda, which seeks to establish India as a virile "Hindu" nation. Ironically, interventions by progressive groups, including feminist and human rights advocates opposed to the Hindu Right's makeover of the Indian nation, have not proved to be disruptive of gender norms; nor have they pushed back the tides of Hindu (male) majoritarianism that are increasingly determining the terms of engagement on issues of gender and faith in law.
Keywords: secularism, Hindu Right, gender, equality, freedom of religion, religious majoritarianism.

Contemporary feminist theory by and large agrees on criticizing the traditional, autonomous subject and instead maintains a relational, dependent self, but the vocabulary used to describe the latter remains contested. These contestations are seen in comparing the approach of some feminist legal theory, as demonstrated by Martha Fineman, to the approach of some feminist theory that draws on continental philosophy, as demonstrated by Judith Butler. Fineman's concept of vulnerability emphasizes the universality of vulnerability in the human condition, arguing that a "responsive state" is most conducive to producing subjects who are "resilient" in the face of neoliberal pressures. We argue that vulnerability, as an existential as opposed to a political description, is a limited rubric under which to organize against neoliberal forces. Further, we contend that Fineman's rhetoric of resilience risks reiterating a neoliberal logic of individualized self-management. In response, we look to Butler's concept of precarity, which underscores particular social conditions, as opposed to universal ontological vulnerabilities, that debilitate certain subjects. At stake is how we respond to neoliberal forces today: a vocabulary of precarity poses a more effective challenge than one of vulnerability, for it opens onto not merely individual or institutional resilience but grounded, communal resistance.

Link: https://doi.org/10.1017/hyp.2021.25

Proponents of Stand Your Ground laws cynically exploit the image of vulnerable women to defend expansions of self-defense doctrine, despite the fact that such laws actually reinforce and exacerbate existing gender divides in self-defense law that disproportionately harm women. The appropriation of women's right to self-defense by Stand Your Ground supporters masks the law's hostility toward women's use of force and obscures the real achievement of such legislation: the normalization and promotion of (often white) male violence in an ever-expanding variety of scenarios. Battered Women's Syndrome, the chief narrative available to women who fight back, forces women to plead for mercy and subjects their behavior to extensive scrutiny and evaluation. Stand Your Ground, the chief narrative men can now use to justify provoking deadly fights, often allows men to escape evaluation altogether by granting immunity from prosecution and even from arrest. This two-track system of self-defense—Battered Women's Syndrome for women and Stand Your Ground for men—has far-reaching implications outside of the courtroom. Battered Women's Syndrome sends the legal and social message that women should retreat even from their own homes in the face of objective, repeated harm to their bodies; Stand Your Ground sends the legal and social message that men can advance against strangers anywhere on the basis of vague, subjective perceptions of threats. Male violence is not only tolerated, but celebrated; women's violence is not only discouraged, but stigmatized. Invoking the image of vulnerable women to promote aggressive self-defense rhetoric serves to distract from the reality that violence remains chiefly a male privilege.

RÉFÉRENCE: Alexandre Baril, « Société de l’aveu, cis-tème de l’aveu : repenser le consentement à la lumière des images intimes de personnes trans* dans les medias », GLAD! [En ligne], 05 | 2018, mis en ligne le 15 décembre 2018, consulté le 21 janvier 2019. URL : https://www.revue-glad.org/1260 /// RÉSUMÉ FRANÇAIS: Malgré une redéfinition féministe du consentement sexuel axée sur son caractère renouvelable, affirmatif et rétractable, le consentement légal à la diffusion publique de tout type d’image de soi ne requiert qu’un accord unique et irrévocable. Je soutiens qu’il est problématique de considérer le consentement à la diffusion publique de sa nudité au même titre qu’un consentement à montrer d’autres images de soi. Peut-on redéfinir le consentement à la diffusion publique d’images intimes selon la compréhension féministe du consentement sexuel ? En m’inspirant des travaux de Foucault sur l’aveu, j’argumente que nous vivons dans une « société de l’aveu » qui nous mène à croire que l’aveu public de notre soi le plus profond constitue une libération, ainsi que dans un « cis-tème de l’aveu » qui pousse les personnes trans* à se dénuder corps et âme pour satisfaire la curiosité du public. À partir d’une approche féministe et transactiviste et adoptant une méthodologie auto-ethnographique fondée sur ma propre expérience comme homme trans ayant « accepté » des requêtes des médias de me mettre à nu et pour lesquels mon consentement ne peut pas être retiré, je présente deux arguments. Premièrement, pour certaines personnes trans*, certaines dimensions du cis-tème de l’aveu, dont les pressions sociales et médiatiques, devraient être prises en compte comme éléments pouvant biaiser le consentement. Deuxièmement, j’invite à repenser le consentement à la diffusion publique d’images intimes : que le consentement soit accordé dans des circonstances biaisées ou pas, il devrait être possible de le retirer, comme dans le cas du consentement sexuel. S’il est possible de changer d’idée dans le cas d’activités intimes avec une seule personne, cela devrait aussi s’appliquer lorsqu’il est question de montrer sa nudité au grand public. /// ABSTRACT ENGLISH: Despite feminist redefinitions of sexual consent that highlight its renewable, affirmative, retractable nature, legal consent to the public distribution of any type of image requires only a single, irrevocable instance of consent. I argue that it is problematic to consider consent to publicly distribute intimate nude images in the same way as consent to sharing other images. What if consent to the public distribution of intimate images were redefined according to feminist understandings of sexual consent? Using the example of trans* people and inspired by Foucault’s work on confessing, I argue that we live in a “confessing society” that leads us to believe that disclosing our deepest selves is liberating and a transphobic/cisgenderist “confessing cis-tem” that, together, push trans* people to show their naked bodies/souls to satisfy public curiosity. Adopting a feminist, transactivist approach and an auto-ethographic methodology based on my experience as a trans man who reluctantly undressed for media projects on my transition for which my consent cannot be retracted, I present two arguments. First, for some trans* people, certain aspects of the confessing cis-tem, including social and media pressures, should be considered factors that can bias consent. Second, I call for a redefinition of consent to the distribution of intimate images: whether consent is given in biased circumstances or not, it should be possible to withdraw it, as with sexual consent. If people can reconsider being intimate with just one other person, the same should be true of exposing their nudity to an audience. /// ORIGINAL PUBLICATION: Baril, Alexandre. 2017. « Confessing Society, Confessing Cis-tem: Rethinking Consent Through Intimate Images of Trans* People in the Media », in « Mapping Gendered Violence », Frontiers: A Journal of Women Studies 39(2) 1-25.

This article advances an interpretative account of parental rights and builds a normative case against them. This normative account considers how parental rights function in existing constitutional and family law, and assesses theoretical arguments that seek to justify them.

This article begins by describing the most common, child-centered justification for parental rights: that parents are empowered in order to protect children’s best interests. I argue that these child-centered accounts do not justify the current legal regime governing parental rights. Instead, current parental rights are better understood as quasi-property interests, residual from historical traditions where children were more explicitly regarded as their parents’ property.

The middle part of this article advances the thesis that the quasi-property functioning of parental rights is not a contingent feature of American law of parents and children. It is instead characteristic of granting parents separate autonomy interests in determining the path of their children’s lives. Parental autonomy rights displace and diminish consideration for children’s interests and objectify children. This article introduces the concept of “desire-contingent goods” and argues that parental autonomy rights are paradigmatically the right to choose desire contingent goods for children regardless of whether they are desired or not.  This denies the equal importance of children’s desires, subjective experiences and perspectives on their own lives. As a consequence, basic doctrines in constitutional and family law cannot be reconciled with liberal and egalitarian commitments.

The later portion of this article evaluates alternative theoretical justifications for parental rights. These include constitutional and philosophical arguments based on personal liberty and family privacy, as well as philosophical arguments based on relational rights, ethics of care, and the Lockean labor theory of value. These arguments all fall short and, in crucial ways, rely on denying children equal moral consideration. The article concludes with recommendations for legal reform.

Recently Professors Schultz and Hoffman argued that, in order to achieve gender equality at work and at home, scholars and policy makers should consider adopting measures to bring the weekly working hours for both employees who work very long hours at one full-time job and employees who work fewer than full-time hours at one or more jobs into closer convergence toward a more reasonable, family-friendly mean. Today, changed economic conditions have made the idea of a reduced, or reorganized, work week a rational, pragmatic solution to a pressing problem, rather than the politically impractical idea it seemed to be just a few years ago. Yet, few feminists have embraced the idea; most seem committed to a campaign for workplace flexibility that opts for enhancing individual choice for employees, mainly women, as opposed to instantiating a new set of universal norms that could benefit everyone. In this Article, Professor Schultz considers the key differences between the recent flexibility agenda and a broader program to restructure working time. She concludes that the flexibility agenda is not inevitably at odds with the larger goal of achieving gender equality but, absent vigilance, flexibility has the potential to undermine equality in both the short and the long run.

On 12 November 2019, the Special Jurisdiction for Peace (JEP), handed down a landmark decision in the case of ‘Katsa Su’ concerning the Awa indigenous group in Colombia. The Colombian conflict has particularly affected indigenous groups, such as the Awa people, and has also affected the territory in which they live. In this article, we explore the decision of the JEP, within a broader analysis of the Colombian peace agreement and consider how it might help us to think about the place of the environment in the Women, Peace and Security agenda and in international law. We call for a gendered and intersectional approach to environmental peacebuilding which is attentive to the importance of gender and different groups. Further, we highlight how the Colombian example shows how concepts such as relief, recovery and reparations are often confined in international law to women's recovery and redress with respect to sexual violence and yet, this conceptualization should be much broader. The Katsa Su case provides an example of the fact that reparations and redress must address other forms of violence, spiritual and ecological, which women also suffer in times of conflict.

Cases involving attires, hairstyles, names, or manners of speaking have been increasingly attracting the attention of constitutional and socio-legal scholars. No longer viewed as marginal or esoteric, claims about the significance of a person's-self presentation are now recognized as testing the limits of basic constitutional principles. Employing an overarching perspective that analyzes appearance cases outside of their doctrinal context, I argue that the legal inquiry, which focuses on whether a plaintiff's appearance reflects his or her identity accurately and stably, is flawed, since it relies on unattainable conceptions of the nature of identity and the meaning created by appearance. Diverging from current legal scholarship, which treats appearance cases only in the context of minority rights, I suggest that appearance adjudication should shift its focus from inquiring about the extent to which the appearance is connected to its bearer's identity to inquiring about the significance of appearance to his or her personhood. This shift reflects the notion that the vulnerability and complexity of appearance are part of the universal human experience, and not just the plight of minorities. Such a normative shift will produce a more adequate legal treatment of claims regarding the personal and social significance of appearance. Developing an alternative theoretical framework, I propose understanding appearance as the poetics of personhood. Both in appearance and in poetry the medium is inherent to the meaning it creates, and thus both appearance and poetry are hard to rearticulate in categorical or non-figurative language. My approach can transform the legal discourse from considering identity in the abstract to accommodating the experiences, voices, and interactions of concrete, embodied individuals, who may not always be able to articulate a rational justification for their appearance, but are still certain of its central role in their personhood.

The battered women's movement in the United States contributed to a sweeping change in the recognition of men's violence against female intimate partners. Naming the problem and arguing in favor if its identification as a serious problem meriting a collective response were key aspects of this effort. Criminal and civil laws have been written and revised in an effort to answer calls to take such violence seriously. Scholars have devoted significant attention to the consequences of this reframing of violence, especially around the unintended outcomes of the incorporation of domestic violence into criminal justice regimes. Family law, however, has remained largely unexamined by criminologists. This paper calls for criminological attention to family law responses to domestic violence and provides directions for future research.

If a man in prison says that he was made " to feel like a woman, " this is commonly understood to mean that he was degraded, dehumanized, and sexualized. This association of femininity with punishment has significant implications for the way our society understands not only the sexual abuse of men in prison but also sexual abuse generally. These important implications are usually overlooked, however, because law and society typically regard prison feminization as a problem of gender transposition: that is, as a problem of men being treated like women. In contrast, this Article argues that feminization is punitive for both men and women. It is as unnatural and wrong for women to be degraded, dehumanized, and sexualized under coercive circumstances as it is for men to be. This Article suggests that examining the sexual abuse of men in prisons can help disrupt the persistent and uncritical linking of feminization and women. By reading the sexualized abuse of men in prison as a form of forced feminized performance—a coerced drag—this Article hopes to expose the artificiality and violence of compelled feminization. The proper approach to assessing forced feminization is to focus on its oppressive structure, not on the gender of its victims. When we do so, we can see what all victims along the spectrum of sexual and domestic abuse have in common, and we can form social and legal responses accordingly. The phenomenon of male sexual abuse in prison thus provides a potentially illuminating opportunity to think about the structure and consequences of sexual abuse in general. This is significant not least because social and legal responses to sexual abuse outside of the prison setting— where sexual abuse is generally perpetrated by men against women—are constrained by pernicious gender stereotypes and a massive failure of empathy. Understanding the phenomenon of male prison sexual abuse is thus essential not only for addressing a specific problem in carceral institutions, but also for forcing law and society to consider sexual abuse in a productively counterintuitive way.

It is important to embrace the responsibility that comes with the new geological epoch of the Anthropocene, which, in terms of environmental law, requires nothing less than a radical revisiting of its basics tenets. In an attempt to incorporate the Anthropocene to my ongoing project on Critical Environmental Law, I examine it from three angles: grammar, theoretical perspective and methodology. Grammar refers to the need for a new, anthropocenic vocabulary that will deal with the challenges of the Anthropocene. To this effect, I suggest some terms, such as continuum/rupture, human/nonhuman/inhuman, as well as geologic immersion and planetary withdrawal. Theoretical perspective refers to the way current thinking changes or at least is affected by the Anthropocene – indeed, how current environmental legal thinking is turning in order to accommodate the needs of the new epoch. Finally, methodology refers to the way the Anthropocene changes the way we seek knowledge and the epistemological presuppositions of the limits of such knowledge. I offer four theses in the form of suggestions on how Critical Environmental Law needs to adapt methodologically in order to integrate the Anthropocenic grammar and perspective.

This article offers a feminist critique of the Surrogacy (Regulation) Bill, 2019. Fifteen years since the first proposed regulation of assisted reproductive technologies and surrogacy, the 2019 Bill leaves much to be desired. It reflects a limited understanding of the complexities of surrogacy, is discriminatory in its approach, is plagued by lack of clarity, is unrealistic and most importantly, does not include adequate safeguards for the surrogate. Women’s reproductive labour in performing surrogacy is valorized but not compensated. Even though the Bill may well accept some recommendations of the Rajya Sabha select Committee, its failure to address issues that we highlight will mean that if passed, it will be challenged in the courts on constitutional grounds. This will generate uncertainty for years, for many infertile couples and individuals who look to the law for streamlined regulation, defeating its main purpose in facilitating a novel mode of reproduction.

Este artículo analiza cómo el feminismo del poder (power feminism), una corriente feminista en el discurso jurídico internacional, se ha incorporado en el ordenamiento jurídico colombiano por medio del diseño y discusión de indicadores para medir el cumplimiento del gobierno colombiano de las órdenes de la Corte Constitucional sobre desplazamiento forzado interno en el país. Para lograr lo anterior se analiza la participación de la Corporación Sisma Mujer, una de las ONG promotoras de derechos de las mujeres más conocidas en Colombia, en los debates dentro y fuera de la Corte Constitucional que llevaron a esta Corte a adoptar una batería de indicadores para hacer seguimiento al goce efectivo de los derechos de las mujeres desplazadas y, en general, a implementar un enfoque sensible a las mujeres en el análisis del desplazamiento forzado. Para conocer los fundamentos teóricos de las intervenciones y estrategias usadas por la Corporación Sisma Mujer ante el Alto Tribunal Constitucional, este artículo combina una aproximación teórica con investigación documental y entrevistas. El texto de Nancy Fraser Rethinking the Public Sphere, y el concepto del feminismo de la gobernanza (governance feminism) de Janet Halley, Prabha Kotiswaran, Hila Shamir y Chantal Thomas constituyen el marco teórico básico. Los documentos elaborados por Sisma Mujer y las decisiones de la Corte Constitucional que aceptaron, apropiaron y transformaron las afirmaciones de Sisma, se analizan desde la perspectiva de Fraser y los aportes teóricos de Halley, Kotiswaran, Shamir y Thomas. Entrevistas con el personal de Sisma, y con otros actores relevantes complementan lo encontrado en los documentos y en las decisiones judiciales.

What does it mean for a man to conduct oneself as a feminist? It is this question that the author, a legal academic, dwells on in this essay. The article can be seen as a jurisdictional auto-critique about feminism's relationship with law, which by extension is a comment on the author's relationship with both law and feminism and his attempt to fashion a lawful feminist self as a man.

The production and reproduction of immediate life … is … of a twofold character. On the one hand, the production of the means of subsistence, of food, clothing and shelter … on the other, the production of human beings themselves, the propagation of the species. The social institutions under which men of a definite historical epoch and of a definite country live are conditioned by both kinds of production… (Engels /1884.

"The article examines those developments in the field of feminist theory that have dealt with the (disappearance of the) notion of the subject of feminism, both as collective agent and as subject matter. In particular, it aims at examining how these developments might influence or relate to critical reformulations of the concept of discrimination and, consequently, of main topics in antidiscrimination law. The article starts by assessing the issue of intersectionality, that might be considered a common concern of both contemporary feminist theory and the more technical feminist legal theory. The original concern about the exclusion produced by the interaction of more grounds of discrimination (typically sex and race, or sex and class) has, at some point, been crossed by post-modern and post-structuralist criticism of general and abstract categories, such as subject, gender, women. The article examines, then, the criticism to the fragmentation of the subject produced by these theories and the alternatives proposed in the name of the subject of feminism and its project of emancipation. In the last two paragraphs, the relations of these developments with critical feminist reformulations of antidiscrimination law are explored.

Keywords: intersectionality, feminist theory, subjectivity, feminist legal theory, antidiscrimination law."

Informed by a feminist analysis, the author examines a new development in the legal responses to workplace sexual harassment in Quebec. Sexual harassment has been recognized as a psychological injury, compensable through the province’s Commission des accidents de travail. This classification was confirmed in the Béliveau-St-Jacques case, in which an alleged victim of workplace sexual harassment filed a civil suit seeking damages from her employer based on both the civil liability regime and the antidiscrimination and anti-harassment clauses of the Quebec Charter of Human Rights and Freedoms. The Supreme Court of Canada found that Quebec’s Act Respecting Industrial Accidents and Occupational Diseases (“AIAOD”) extinguishes the right to all civil remedies for workplace injuries, including punitive damages in cases of intentional and illegal violations of a protected right. This approach was subsequently entrenched in the new psychological harassment provisions of the Labour Standards Act.

The author discusses the implications of Béliveau-St- Jacques for victims of sexual harassment, particularly women. While the decision goes far in recognizing the systemic nature of sexual harassment in the workplace, it also somewhat illogically includes violations of fundamental rights within the ambit of “occupational hazards.” Responding to sexual harassment through the no-fault workplace compensation scheme causes the distress and anguish experienced by sexual harassment victims to be assessed as a medical condition. Women become the objects of an administrative regime that causes them to suffer further affronts to their dignity. The author contrasts the legal treatment of sexual harassment with that of a different harm to dignity—defamation, which constitutes a narrow exception to the exclusion of civil remedies under the AIAOD.

In this article, I critique the current debates surrounding autonomous weapons systems, using feminist posthuman theory to make sense of such systems – and the relation between human and machine – in terms of automation and autonomy. The dominant narratives about autonomous weapons tend to present them as exceptional; they are distinct from all the other kinds of human inventions that can kill. Further attention is required, not on autonomous weapons themselves but on the delegation of killing to a far broader range of technologies across the human–machine/autonomous–automated spectrum. While current attempts at legal regulation distinguish between civil and military technologies, such a distinction becomes impossible in light of the links between civil and military technologies and the killing potential of many technologies, including artificial intelligence.

This article examines a series of unarticulated gender dynamics that shaped some of the recent changes to the legal test for discrimination under s. 15 of the Canadian Charter of Rights and Freedoms. Despite the volume of literature that references R. v. Kapp, none of it has specifically addressed how race is gendered through the claims of the accused, the witnesses who testified on their behalf or the decisions of the judges who interpreted their testimony. Revisiting the legal strategies used in this case reveals ongoing challenges to accessing justice for marginalized groups and impediments to reconciliation. Dans cet article, l'auteure s'attarde à une série d'indicateurs sexospécifiques non articulés qui ont façonné quelques-uns des changements récemment apportés au critère juridique à appliquer à l'égard de la discrimination au titre de l'article 15 de la Charte canadienne des droits et libertés. L'arrêt R. c. Kapp est abondamment cité dans la littérature. Néanmoins, aucun renvoi n'a porté explicitement sur l'interaction entre la race et le genre qui découle des allégations de l'accusé, de la version donnée par les personnes qui ont témoigné pour son compte ou des décisions des juges qui ont interprété ces témoignages. L'analyse des stratégies juridiques utilisées dans cette affaire révèle des problèmes continus liés à l'accès à la justice dans le cas des groupes marginalisés, ainsi que des obstacles à la réconciliation.

Las feministas tradicionalmente han criticado el derecho como un instrumento de opresión de las mujeres y han cuestionado fuertemente al sujeto supuestamente universal y neutral del derecho que ha dejado fuera las demandas y protección de los derechos de las mujeres. Ello a conducido a veces ha dudar sobre la capacidad del derecho de transformar la realidad y de traducir legalmente las demandas políticas de las mujeres, mejorando sus vidas. Además, los últimos movimientos feministas han sido muy escépticos con la viabilidad de la categoría “mujeres” como sujeto del derecho, al ser un sujeto también diverso y contestable. Este artículo analiza estas dudas y críticas recuperando algunas de las propuestas hechas por las juristas feministas para crear nuevas categorías jurídicas que incluyan las demandas y necesidades de las mujeres y desplacen la importancia del sujeto para centrarse en las causas de la desigualdad.

Este trabajo explora el caso "Erica Borda" resuelto por la Cámara Nacional de Apelaciones del Trabajo, sobre discriminación hacia las mujeres en el acceso al mercado laboral del transporte público en el área metropolitana. Nuestro argumento central sostiene que la distinción entre las resoluciones de primera y segunda instancia se funda en una cuestión de marco: mientras el primer decisorio partió de un paradigma individualista de igualdad como no discriminación, la sentencia de segunda reencuadró el caso en una noción robusta de igualdad como no sometimiento o no dominación. Demostraremos que este reencuadre impactó en tres sentidos principales: en la determinación de la disputa normativa, en la valoración de la prueba para la construcción de la argumentación jurídica y en las respuestas remediales. Palabras clave: movilización legal; derecho laboral; igualdad como no-sometimiento; derechos fundamentales; perspectiva de género. Abstract This paper explores the case "Erica Borda" resolved by the National Chamber of Labour Appeals on discrimination against women in access to the labour market of public transport in the metropolitan area. Our main thesis argues that the distinction in the rulings of first and second instance is based on a framework issue: while the first decision was based on an individualist paradigm of equality as non-discrimination, the second sentence re-framed the case in a robust notion of equality as non-subjection or non-domination. We will demonstrate that this reframing impacted in three main approaches: in the determination of the normative dispute, in the evaluation of the evidence for the construction of the legal argumentation of the sentences and in the remedial responses.

It is hard to imagine rewriting a 20 year old text. So much of it was predicated on the events of the time, as well as our respective theoretical perspectives at that time. In Subversive Sites, we argued that law was a complex and contradictory site of social change for women. We brought a specifically feminist lens to the role of law in women's oppression and to both its limitations and possibilities in challenging that oppression. We focused on the legal regulation of women in and through the family, and the role of familial ideology in particular. We argued that feminist engagement with law, through litigation and law reform, were best envisioned as forms of discursive struggle, where women's rights activists have sought to challenge previously dominant norms, practices and roles of women, and reconstruct them as more full and equal citizens. Law could be a subversive site, but it was not always so. This question of law as a site of social change has remained a central question in both our scholarship in the intervening 20 years, but our theoretical influences and genealogies have evolved. It would be impossible now to imagine writing a text like Subversive Sites 1 without explicit attention to postcolonial theory, queer theory and neo-liberal critiques. Our work at the time was framed by a number of feminist influences-socialist feminism, intersectional feminism, poststructuralist feminism-and we sought to deploy these feminisms to construct a more complicated understanding of engagement with law. In the intervening years, our individual scholarship has continued to push forward a more nuanced and sophisticated understanding of law and social change, both centering and decentering the role of law. We have broadened the focus on our inquiries to sexuality, postcolonialism, neoliberalism, governmentality and popular culture. We have each sought to deploy diverse theoretical paradigms to better understand the role and limitations of law in social change. We address one basic question: What would we do differently, with the benefit of 20 years of hindsight? This basic question raises many more specific ones: What did we miss at the time? What issues might we highlight now, with what theoretical * We are indebted to Oishik Sircar for kick-starting this rethinking project, who interviewed us on the legacy of Subversive Sites. Oishik Sircar interviews Ratna Kapur and Brenda Cossman, 'The Fraught Terrain of Law and Feminism: 20 Years of Subversive Sites' (2016) 12(1) Socio-Legal Review 133. The ideas that we pursue in this essay were first developed in that conversation.

A Lei do Feminicídio brasileira (Lei 13.104/2015) reacendeu o debate criminológico, feminista, penal, processual penal e de política criminal sobre a conveniência, necessidade e efetividade da criminalização da violência de gênero contra as mulheres mediante legislações gênero-específicas. A presente pesquisa, empírica e qualitativa, procurou interpelar algumas premissas hegemônicas nesse debate, notadamente as apriorísticas, essencialistas e dogmáticas acerca do papel da punição na vida das mulheres e da incapacidade de o sistema de justiça atendê-las, a partir da seguinte pergunta central: o que os atores jurídicos dizem sobre o feminicídio, após sua inserção no Código Penal, nos julgamentos desses casos no Tribunal do Júri? Para respondê-la, a investigação se dividiu em três eixos temáticos. O primeiro eixo procura demarcar inicialmente de onde partimos para fazer a análise das práticas jurídicas no plenário do júri. São apresentadas a genealogia da categoria do feminicídio, as razões de política criminal feminista para sua tipificação legal e uma base teórica para análise de políticas penais não apenas da perspectiva instrumental e ortodoxa de controle do crime e do criminoso, mas de suas dimensões “não-penais”. O segundo eixo analisa as práticas jurídicas a partir dos dados coletados pela observação de 5 sessões plenárias do júri (ocorridas nos meses de março e abril de 2017 no Distrito Federal). São identificadas as resistências e aproximações dos atores jurídicos com a perspectiva de gênero a partir de variáveis como uso de estereótipos de gênero, persistência de teses defensivas culpabilizadoras das vítimas, plenitude de defesa e limites éticos, (des)contextualização da violência estrutural de gênero, silenciamento quanto a marcadores interseccionais e reparação de danos e gênero ausentes nas sentenças condenatórias. O terceiro eixo analisa como as controvérsias em torno da natureza dogmático-penal da qualificadora do feminicídio repercutem na comunicação do que é o feminicídio e no seu reconhecimento pelos jurados. São apresentadas a disputa de sentidos segundo o campo jurídico (que ora classifica a qualificadora como objetiva, ora como subjetiva), a importância da visibilidade da estruturalidade da violência de gênero contra as mulheres no plano dogmáticopenal, bem como as ambiguidades em torno de categorias como “motivação de gênero” e “crime de ódio”. Por último, é analisada a associação da qualificadora com um possível aumento de punitividade tanto em termos de discursividade quanto em termos quantitativos de pena. Embora outros dados, interpretações e explicações possíveis na perspectiva de gênero pudessem ter sido explorados pelos atores jurídicos, os achados indicam uma virada, ainda que modesta, na atuação de alguns deles em relação aos apontamentos de pesquisas anteriores, com tendência aproximativa crescente da perspectiva de gênero, que só foi catalisada graças à positivação penal do feminicídio. As referências nos discursos do plenário a estatísticas de violência de gênero contra as mulheres, aos tipos de violência, à Lei Maria da Penha, ao conceito de feminicídio, ao ciclo da violência de gênero, à desigualdade de gênero e ao machismo são indicadores concretos de mudanças, ainda que pontuais. Os achados ainda sugerem que tais mudanças não se deram em razão da incorporação do gênero pela dogmática jurídica, mas em virtude do investimento das instituições jurídicas de Estado em capacitações com os profissionais responsáveis pelos casos, assim como em razão da disseminação e do acesso e uso livre de materiais e ferramentas online disponibilizadas por agências feministas como a ONU Mulheres e a Agência Patrícia Galvão. Disponível em: https://repositorio.unb.br/handle/10482/32575

This is a chapter in Elizabeth Brake and Lucinda Ferguson (eds), Philosophical Foundations of Children's and Family Law (OUP 2018).

This chapter's argument stems from the premise that legal language should speak for itself. The 'paramountcy' principle suggests the prioritization of children's interests, and 'children's rights' suggests some aspect of distinctiveness to children's interests. But there is academic consensus in respect of both that children's interests cannot and should not be prioritized over those of others. This chapter examines the justification for the contrary perspective, and for treating children as a prioritized 'special case' in all legal decisions affecting them.

Four key counter-arguments frame the discussion. First, the 'social-construct' objection: as a social construct, childhood cannot sustain the prioritization of children's interests over those of others. Second, the 'vulnerability' objection: children's vulnerability is either not unique or suggests dependency or interdependency, not prioritization. Third, the 'family autonomy' objection: parents' rights and the family unit justify deference of children's interests. Fourth, the 'equality' objection: equal moral consideration makes prioritization unjustifiable.

While both men and women can, and do, use violence against each other, men's violence against women is far more common, less justified, and more destructive than women's violence against men. One of the reasons for this asymmetry is that men do not fear retaliation for violence against women, whereas women do fear retaliation for their use of violence against men. The distribution of violence between the genders, then, is suboptimal. Society would be better off as a whole if more women were willing to engage in justified violence against men, and fewer men were willing to engage in unjustified violence against women. To that end, women's justified violence against men should be encouraged, protected, and publicized. This will require a reversal of the current trend in legal and social practices, which is to tolerate and encourage men's unjustified violence against women while discouraging and legally restricting women's violence against men. Even if encouraging an increase in women's justified violence against men may sometimes result in unjustified or disproportionate violence in individual situations, the overall effects of the redistribution of violence will be preferable to the current asymmetry.