Humanity, Freedom and Feminism

Jill Marshall

• Publisher: Taylor & Francis
• Year: 2017
• Print ISBN: 9780754625629
• eBook ISBN: 9781351929448
• Edition: 1
• Topic: Law
• Subtopic: Gender & The Law
• Index: Law

While some feminists seek to use ideas of the 'universal human subject' to include women, others argue that such ideas are intrinsically masculine and exclude the feminine. This book analyzes and critiques 'second wave' feminists who discuss how philosophers such as Plato and Aristotle, Descartes, Hobbes and Kant regard human beings and their capacities. The author suggests adopting an inclusive universal concept of the human being, drawn from ideas of positive liberty from the liberal tradition, Hegelian ideas of the formation of the free human being in society, and care ethics. The book links this theoretical perspective to international human rights and humanitarian law, drawing together areas of theory usually presented separately. These include the liberal theory of the individual (particularly individual freedom, feminist critiques and theories of subjectivity), globalization and global identity issues and the theory of human rights law, with the focus resting on human subjectivity and ethics. While the focus is on Anglo-American jurisprudence, this is combined with continental philosophy, international human rights issues and a Yugoslav war crimes case study.

Part I
Feminist Analysis of the Human

Introduction to Part I

“Feminists are centrally concerned with freeing women to shape our own lives, to define who we (each) are, rather than accepting the definition given to us by others (men and male-dominated society, in particular).” Jennifer Nedelsky¹

A thematic analysis is presented in Part I of second wave feminist critiques of the human being that certain feminists saw presented by classic Western philosophers and, in particular, presented by liberal theorists, upon which the individual of legal and political thought was built.² My interpretation of those feminist critiques is that they seek to show if, and if so how, and why, certain Western philosophers had excluded women from their definitions or conceptions of the human being.³ My purpose here is to highlight the main and recurring themes identified in such critiques which include characteristics said by classic Western philosophy to be vital to inclusion within the definition of “human”. Analysis of these characteristics shows that often such a definition represents a certain type of male experience and is therefore exclusionary. The question then arises as to whether there is something inherently within the concept of human subjectivity itself which is exclusionary or whether it can be reconceptualised to be inclusive of women and all humanity so that the word “human” and expressions “human subject” and “human nature” can mean something of value to women. In particular, can a deeper conception of the human being be reconceived to provide for a fuller, more flourishing, ethically better, life; an improved, and more plausible, feminist legal theory, and a retention of a shared universal common humanity?

Analysis in this Part identifies and deals with the overarching themes of the capacity for reason, transcendence and universality which Western philosophers emphasised as the essential component of human “nature”. Although there is a certain degree of overlap, these elements show how women have arguably been excluded from certain philosophers’ conceptions of the human being. Many feminist critiques succeed in showing how this “nature” contains constituents and characteristics based on particular types of human being but yet was then universalised and presented as the human norm or standard, purportedly representative of the whole of the human species to which all should live, thereby being biased against women.⁴ This “particular type” had a “male nature”.⁵ Second wave feminist scholars reveal much misogyny and sexism in many classic writings, often arising from a lack of imaginative input by those authors to follow through often enlightened theories to their rationally logical conclusions.

Sometimes, women’s characteristics (as seen by the classic theorists), often described as “women’s nature”, explicitly excluded women from membership (as a social group) of the category or definition of human being. Indeed, some feminists argue that the definition of a human being or man presented by the Western tradition depends on the lesser definition of woman or the feminine as the other. Part I therefore also examines what were seen to be the components of women’s “nature” and her “proper place”, and how these often precluded her inclusion in the definition of the human being in the classic texts as analysed by second wave feminists.

As part of my analysis of those feminists who critiqued Western philosophers for doing this, I also examine the contribution of the feminist ethic of care theorists and cultural feminists who seek to acknowledge and to valorise a different moral voice many see as belonging to women.⁶ This work has been influential in feminist legal theory in seeking to celebrate women’s differences from men and often arguing for a “different voice” identified as correlating to the female gender, to be heard, recognised and used, alongside the “male voice” which it is argued is already present and dominant within social, political and legal systems. This is analysed in the context of the themes I have identified as essential to human “nature” according to Western philosophical thought.

Some classic theorists analysed by second wave feminists had presented conceptions of the human being which did not explicitly exclude women from its membership in theory. However, in practical terms, when the social role of women was taken into account, it was clear that it was harder, and perhaps virtually impossible, for women to be included. The analysis here thus highlights the dichotomy between the aspiration for transcendence and universalisation in the Western philosophical tradition’s “ideal person” and the concrete, real, empirical experiences of men and women, and how that led to the privileging of a particular type of (empirical) person being representative of all humankind in the “ideal” version.

In many of the feminist works examined, the importance of retaining the idea of the human subject is asserted, with women’s emancipation being sought through access to participation in the existing world and in its transformation to fully realise human equality.⁷ The emphasis lies on highlighting “woman’s” exclusion but seeking her inclusion as a universal subject.

At the same time, the ability of the existing tradition of political philosophy to sustain the inclusion of women in its subject matter is questioned.⁸ For example, it is queried whether the philosophers’ arguments about the nature of women and their proper place in the social and political order will help in understanding why the formal political enfranchisement of women has not led to substantial equality between the sexes.⁹ When aiming to attain justice, it is relevant and important to ask who is being included in the debate or distribution. If women are excluded from the definition of the human being – a prerequisite to being a party to the debate or a distribution of resources amongst persons – this will obviously cause severe problems for women’s liberation.

However, while much of these feminist critiques prove invaluable, certain elements presented by various Western philosophers are shown to have been glossed over by these critiques, with liberalism in particular often being presented in its least attractive and unrepresentative, “straw man” way. Increasingly, such critiques lead to unconvincing and unhelpful conclusions, arguably taking feminist theory in a direction destructive to feminist agenda for change.

This is evident in movements away from including women within a conception of a universal human subject. Such movements are in the direction of presenting a separate “woman-centred” subject and then away from both a universal or “woman-centred” subject to a fragmented, un-unified, non-existent subject by certain postmodern feminists. The latter query the “essentialism” in the other two approaches and the exclusionary potential of presenting as a standard or norm one type of subjectivity. Their deconstruction can lead to an increasing reluctance to form any normative agenda for change, inertia and often threatens feminist political progress.

The elements are dealt with sequentially in Chapters 1 to 3. Firstly, the “man” of reason and ideas of transcendence are contrasted with the “natural” role of women as reproducers, said to have a specific role within the family, and the idea of women having a separate nature. This analysis looks at feminist critiques of (male) Western thought, and feminists who argue for the inclusion of women as capable of reason, with the hindrance to women’s advancement of that capacity being lack of opportunities and possibilities for the achievement of projects. In this context, the feminist critique of the division between public and private spheres is also explored. Then feminist analysis of universality and views that men and women do have different “separate natures” is examined.

Secondly, the methodology of many liberal philosophers using ideas of a “state of nature” and “social contract” is analysed. Based on the idea of the primacy of the individual as moral agent, many feminist and communitarian thinkers critique what they see as liberalism’s presentation of humans as possessive individuals.

Thirdly and finally, questioning any idea of the human subject having an essential nature, either as universal of all humanity or as idealising women’s “nature”, postmodern feminism deconstructs the human subject, offering some interesting insights but which are ultimately self-destructive to feminist politics.

¹ J Nedelsky, 1989, p 8.

² Reference is made to various Western philosophical writings in such critiques, including Plato The Republic (Harmondsworth: Penguin Books Ltd 1987); The Laws (Loeb Classical Library 1968); Aristotle The Nichomachean Ethics (New York and Oxford: Oxford University Press 1986); T Hobbes Leviathan (1651: M Oakeshott edn Oxford: Basil Blackwell 1960); JJ Rousseau Emile and The Social Contract see The Essential Rousseau (L Bair trans. New York and Scarborough Ontario: The New American Library Inc 1974); J Locke Two Treatises of Government (Cambridge: Cambridge University Press 1988); I Kant, 1988; GW Hegel Phenomenology of Spirit (AV Miller trans. Oxford: Oxford University Press 1977). See the following footnote for references to the main feminist critiques.

³ The most comprehensive and one of the earliest contributions in this area is SM Okin Women in Western Political Thought (Princeton, New Jersey: Princeton University Press 1979): Okin examines in turn, and in detail, certain works by Plato, Aristotle, Rousseau and Mill. See also G Lloyd The Man of Reason: Male and Female in Western Philosophy (London: Methuen 1984); C Pateman The Sexual Contract (Cambridge: Polity Press 1988); A Jaggar Feminist Politics and Human Nature (Totowa NJ: Rowman and Allanheld 1983) and C Pateman and E Gross (eds) Feminist Challenges: Social and political theory (London: Allen and Unwin 1986); SM Okin Justice, Gender and the Family (New York: Basic Books 1989); LM Antony and CE Witt (eds) A Mind of One’s Own: Feminist Essays on Reason and Objectivity (2nd Edn) (Boulder, Colorado and Oxford: Westview Press 2002).

⁴ This is not to say that it was not biased against certain types of men. However, this point is beyond the scope of this book.

⁵ One response was to declare that the whole tainted heritage must be rejected and that feminist theorists must make a new start. But like C Pateman and E Gross (1986), I think it is impossible to completely turn our backs on classics – all mod...

Table of contents

• Cover
• Half Title
• Dedication
• Title
• Copyright
• Contents
• Foreword
• Series Editor's Preface
• Preface and Acknowledgements
• Introduction
• PART I FEMINIST ANALYSIS OF THE HUMAN
• PART II FREE EXISTENCE
• PART III GLOBAL APPLICATIONS
• Bibliography
• Appendix I
• Appendix II
• Table of Cases
• Table of Treaties, Legislation and Statutory Instruments
• Index