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Philosophy of Law
GENDER STUDIES:
A GENERAL BACKGROUND
Libera Università Maria Ss. Assunta (LUMSA)
Philosophy of Law
Course reference for final exam preparation:
L.Palazzani, Gender in Philosophy and Law, Springer, Dordrecht
2012
Philosophy of Law
 1. defining our field of enquiry
 2. the role of “Gender” in philosophy and law
 3. the interdisciplinary nature of the sex/gender debate
Philosophy of Law
1. Defining our field of enquiry
 Preliminary remarks
ʽGenderʼ denotes:
a conceptual category referring to things or persons that
share essential properties (e.g. kind, species, class, type). It
refers to human kind.
the grammatical category distinguishing between masculine
and feminine (male/female distinction).
Philosophy of Law
At a linguistic and semantic level the structural
ambiguity of the term is manifest, as it can be
used both to indicate individuals belonging to
the human species (including males and
females) and to point out the male/female
distinction.
Philosophy of Law
Conceptual definitions:
Sex indicates the biological condition of man and woman, of the
male or female being (how one is born). Our genetic, gonadal,
hormonal, genital, morphological condition. It denotes how we are,
our natural condition.
Gender refers to the interior psychological perception of one’s
own identity (how we feel), but also the exterior social, historical
and cultural condition (how we appear to others) in behaviour,
habits and roles that are given and assumed by masculinity and
femininity. It designates how we become, our acquired condition.
Philosophy of Law
The use of Gender in feminist thought:
It indicates women, privileging the peculiarity of the female condition in
employing the term, based on the assumption of their historical, social
and cultural disadvantage with respect to men, therefore, requiring
special consideration.
Simone de Beauvoir in Le deuxième sex (1949) addresses the issue of
the subordination of women, investigating the underlying reasons for this
condition through a detailed analysis carried out in biological,
psychoanalytical and historical terms. The author argues that «one is not
born a woman, but becomes one» (due to internal biological and
psychological conditions, alongside external social and historical
conditions. A woman is not a “fixed reality”, but a “becoming”.
Philosophy of Law
As a consequence, Gender covers several meanings:
human gender
male/female gender
female gender
What is the relationship between sex and gender?
One naïve answer is to consider that the meanings of the two terms
overlap indifferently, arguing that gender is only a preferable
expression compared to sex, since it is more polite.
Philosophy of Law
Sex/gender theories
We must take into account the structured theoretical debate
between:
- biological determinism (pre-modern theory), reducing gender to
sex;
- social constructionism (modern theory), separating gender from
sex;
- deconstructionism (post-modern theory), thematizing a priority
of gender over sex.
Philosophy of Law
In other words, a debate among those arguing that:
- there must be a correspondence between sex and gender (biological
determinism), i.e. between how we are and how we become
- there may be no correspondence between sex and gender, i.e. we can
become different from how we were born (social constructionism)
- only what we become really matters (deconstructionism)
A debate between those on the side of nature (claiming a priority of sex
over gender) and those on the side of culture (in favour of a priority of
gender over sex).
Philosophy of Law
Critical issues
The question becomes increasingly complex whenever considering
that, following the broadening of scientific knowledge, sex
determination is not only directly connected with what appears at
the moment of birth:
The cases of children born with genital ambiguities/sexual
indeterminacy;
Adults discovering the incongruity between acquired identity and
genetic sexual belonging
These two cases are empirical proof of this.
Philosophy of Law
Possible outcomes
In this context, gender is separated from sex to designate an identity
being shaped by a feminine/ masculine-oriented education, following a
medical transformation of the body, in an attempt to achieve a difficult
sex/gender correspondence.
It is no coincidence that the distinction between sex and gender was born
in the field of psycho-sexology, with the purpose of looking for a
theoretical and practical answer in such difficult cases:
- gender variability made it possible to explain sexual identification even in
cases of sex reassignment
- psychoanalysis expounds sexual identification as the gradual process of
gender identity acquisition in correspondence or opposition to sex (i.e.
transsexualism) or in cases of non-correspondence between the sex
embodied and the gender experienced psychologically.
Philosophy of Law
2) the role of Gender in philosophy and law
Gender in philosophy and law takes on two ambitious
tasks: disambiguating the confusing ways in which the
language of “sex” and “gender” have been used and
explaining how law ought to address issues of sex and
gender, in light of the recent treatment of sex and
gender in international and European law.
Philosophy of Law
3) the interdisciplinary nature of the sex/gender debate
The debate by psycho-sexology and psychoanalysis was taken up by a set
of feminist orientations with different modalities and arguments at many
levels:
- sociological
- cultural-anthropological
- philosophical
Main goal:
investigating reasons for the disadvantaged condition of women in history,
society and culture.
According to a number of feminist theories, the way in which gender was
constructed, or the cultural and social expectations towards women,
alongside the assigning of roles to them, linked to their biological
condition, led to the subordination of women with respect to men.
Philosophy of Law
Feminism and social constructionism
A new construction of gender at a social and cultural level which sets aside
sex is viewed as a chance to achieve a position, if not of advantage, at
least of equality and symmetry with respect to men.
In this perspective, the use of reproductive technologies is seen as a way
for women to have children without a partner, without pregnancy and
without childbirth (i.e. heterologous assisted fertilization techniques or
surrogate motherhood). It is called ʽgender revolutionʼ, like a sort of
second sexual revolution:
- the first one was aimed at the sexual liberation from inhibitions and
repressions of moral norms for the affirmation of free love transforming
ʽpolitics into sexʼ
- the second revolution transforms ʽsex into politicsʼ, modifying sexual
politics towards a transformation of the sexual relationship meant as a
relationship of power/subordination
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A conceptual shift from modern to post-modern lines of
thought:
 In this context, gender already previously set free
from sex, multiplies itself in ʽdifferencesʼ, strictly and
intentionally declined in the plural form.
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ʽSexuality studiesʼ:
 Gender denotes not only individual psychological, social
and cultural identity acquired regardless of sex, but also
sexual orientation or the choice and preference with regard
to the relationship with the other person of the same sex,
opposite sex, as well as of both sexes.
 The debate on heterosexuality, homosexuality and
bisexuality arises from this assumption.
Philosophy of Law
Post-gender theorisations
In post-modern thought, post-gender theories are drawn up:
Post-gender means beyond gender, de-constructing both sex and
gender, moving away from nature which is considered irrelevant, but also
from culture, perceived as the cause of ʽnormalisationʼ/ʽnaturalisationʼ, e.g.
the restrictive imposition of assumed roles.
To deconstruct means ʽun-doingʼ sex and gender, in favour of transitory
instinctive pulsionality of multiple and plural identities( both male and
female or neither male nor female identities, i.e. trans-gender), deeming
any homo/hetero/bisexuality equivalent.
This perspective rises against every paradigm that may claim complying
with a hetero-sexual social model (standardisation)
The exaltation of in-difference, neutrality, which ends up denying identity
itself.
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 Post-modern
theories get to the point of
challenging sexual binarism (e.g. the sexes
are two and opposite) and heterosexism
(which declares the privilege of unions
between two opposite sexes).
 These
theories exalt sexual polymorphism and
pansexualism, which admits any tie between
sexes.
Philosophy of Law
Practical examples:
For the first time, in Australia, a man/woman asked for the
registration of a neuter sex.
In Canada, two parents have not revealed the sex of their
son/daughter with the intention of raising him/her ʽwithout sexʼ so
that he/she can decide freely.
Post-modern theories are extremely provocative. It is not easy to
foresee the developments of the gender debate, due to its interdisciplinarity and non-systematic nature, alongside an underlying
intention to not express the reasoning clearly.
Philosophy of Law
Problematic scenarios
-
the cases of sexual ambiguities at birth show that even the
determination of biological sex is not univocal
-
the cases of psychological non-recognition of one’s identity in the
body (transsexualism)
-
the provocative cases of trans-gender claims of neutral identity
are increasing (in the sense of accepting/exalting ambiguity
identified with the co-existence of both female and male features,
or perhaps neither male nor female ones.
Philosophy of Law
The concept of neutrality and relationships
Neutrality also affects the relationship between
individuals, outlining a comparability between
hetero/homo/bisexuals. The relationships of men with
men, women with women (also more than two), of
transsexual and transgender persons with each other
are placed on an equal footing. Everything becomes
indistinct and indistinguishable.
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The queer theory
 The post-modern fragmentation of the concept of
gender is exemplified by the queer theory.
 The gender category is replaced with queer to denote
how the diversity must not be considered ʽstrangenessʼ
but ʽnormalityʼ, eliminating any distinction between
normal and abnormal, by the very denial of every
diversity. Individuals create their own identities,
unconstrained by the strictures of biology, social
constructions, or cultural constructs.
Philosophy of Law
This raises many questions:
Are males and females really different? To what extent
and how?
Can we be neutral, i.e. neither men nor women or men
and women?
 Is the fact that a certain identity is given to males and
females and a role according to their anatomy a natural
fact or convention? What is the source of individual and
relational diversity, biology, culture or individual will?
Philosophy of Law
Gender studies are often ignored by public opinion. However, they have already
begun to produce effects at different levels:
juridical
social
political
This is maybe caused by the very ambiguity and the non-immediate understanding
of the language. A real silent paradigmatic subversion is even suggested, through
educational, cultural and political institutions, with the aim of transforming society:
the so-called ʽgender agendaʼ/ʽgender mainstreamingʼ.
The term ʽgender ideologyʼ is also used to indicate the studies that have debated
this issue in connection with gender identity, but also to the ideology underpinning it.
Ideology means a structured system of ideas formulated and theorised at a
philosophical level, which is proposed as a total interpretation of the social and
historical reality, in order to reach the above-mentioned transformation of society,
according to the suggested social model.
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The gender ideology proposes the following theorisation:
 the irrelevance of nature for sexual identity
 the irrelevance of sexual difference for setting up a family,
exalting freedom as a result of individual desire
 a ʽsex-lessʼ society, without sexual identity and sexual
difference.
 It is important to reconstruct the debate to understand if it still
makes sense to ground sexual identity in nature, whether sexual
difference in the relationship still matters.
Philosophy of Law
Our goal is to:

analyse the different theories that have dealt with
the gender category, highlighting the theoretical and
philosophical aspects, while devoting particular
attention to the sex/gender dichotomy.

We will mainly refer to the Anglo-Saxon literature in
which the debate is considerably developed,
alongside the international one.
Philosophy of Law
Setting our focus:
The sex/gender debate is structurally interdisciplinary, relating to
the scientific areas of genetics, biology, endocrinology, anatomy,
physiology, neurology and the field of human sciences (i.e. history,
sociology, cultural anthropology, psychology, psycho-sexology,
psychoanalysis, etc.). Particular reference will be made to the
common applicative issues:
intersexuality
transsexualism
transgender
homosexuality
bisexuality
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A roadmap through theories in order to achieve a critical
stance:
 From a juridical point of view, the introduction of the term
gender without providing any explanation is evident. It is
possible to grasp its meaning by analysing the philosophical
debate.
 Our focus will shift from the de-construction of gender to a
possible philosophical-juridical re-construction of the
importance of nature in sexual identity and of sexual
difference within the family relationship.
 We will disclose the dangers of an in-different law, the
contradictions and ambiguities that arise behind the appeals
to equality and non-discrimination, in order to call for a
central role of the fundamental rights of the person before
gender claims.
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 Theoretical connections between social constructionism
and feminist perspectives
Gender and sociological approaches:
 Gender thematisations in the psychosexological and
psychoanalytical field share the critique of biological
determinism
 Other theories in the sphere of social psychology and sociology
elaborate criticism of the naturalistic paradigm, thematising the
priority of the social assumption of gender role for the perception
of gender identity in relation to sex.
 Society has a decisive influence on the perception of subjective
identity. It is the theory of “gender socialisation” bringing
together the perspectives that explain the acquisition of gender
as identity through a dynamic process of socialisation/social
learning, leading to a certain way of feeling inwardly and acting
outwardly.
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 Gender performance
 Gender coincides with the acting and carrying out of
behaviour that expresses and represents identity in
role, with regard to body changes, interaction and
conversation
 The theory of gender performance argues that
gender falls into the dimension of “doing”: it is not the
reflection of traits inherent to individuals, but the
product of social interaction
 Sexual identity of assignment of sex (male/female)
depends on acting, i.e. acting determines gender,
both as role and as identity.
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 According to functionalists, diversity in the
evolution of men and women is caused by the
different need to achieve the complementary
functions essential for survival.
 Sociobiologists explain different behaviours of
men and women as linked to different
reproductive strategies that have evolved to
ensure survival.
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 Doing gender theories:
 They interpret socialisation as an active process that is not reduced to
mere passive internalization of external expectations, but implies and
involves negotiation and modification
 The “agents” of gender socialisation are identified as family,
communication and social expectations. The family is the primary
source of socialisation (the first institution children enter into). From
birth onwards, parents start to treat children in different ways,
addressing them with specific language, dressing them in certain
colours, entailing a symbolic value that helps others to interact with
them.
 Family communication is a further source of socialisation: it
encompasses a particular way of communicating, more emotionally for
females and more rationally and action-directed for males.
 Different social expectations strengthen gender identification, guided by
the family. The agents of socialisation encourage the development of
traits and behaviour directly or indirectly.
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 The theory of social role:
 It explains the development of gender in relation to society,
detecting social stereotypes as the root of role production.
 Features of gender stereotyping:
 the common beliefs about people based on belonging to social
categories
 they vary according to physical characteristics, psychological
traits (aggressive and competitive in men, cooperative in
women), behaviour (justice-oriented in men, subordinate, careoriented in women), alongside task/functions (participation in
public life for men with regard to the economy and political
power, the private realm of domestic life for women).
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Social Constructionism
 A theory developed in the field of sociology, having a major
impact in the philosophical debate on gender.

“Constructionism” refers to “constructivism”. Constructivism
is a philosophical and epistemological theory according to which
it is not possible to objectively represent reality, given that the
sphere of our experience is the result of our constructive activity.
Nothing exists in itself, regardless of the person who brings it
into being.

Therefore, constructionism is a sociological theory that
applies the constructivist theory to society, believing that society
is the building process through which people create not by
means of their being, but through action and interaction, a
common reality, experienced as objective.
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Main lines of thought:
 This theory does not investigate what people “are”, but what
they “do” together as part of the social relations in specific
historical and cultural contexts. It has contributed to the social
elaboration of gender.

Starting from the undisputed fact that there are two sexes
(man and woman)/sexed identities, the gender category refers
to socialisation (gendering process) and the result of this
process (male/female division in society).

As a consequence, social constructionism states that the
source of gender is not nature, but history, along with human
action/interactions. Gender becomes the construction of
femininity and masculinity: it is an external creation, influenced
by society and determined by culture.
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Socialisation process:
 It is constituted by the widespread association
repeated in time between one sex
(male/female) and specific social
actions/practices (roles, responsibilities,
expectations).
 In this framework, there is a regular
association of female with the reproductive
and domestic role and male with the
economic and political role.
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 The male/female distinction becomes social opposition of the
sexes/genders. The opposition means that belonging to one sex
implies (at the historical-social level) the possession of
conflicting characteristics:
 to be a man means not being a woman/not assuming the role of
women and vice versa
 hierarchy does not come from natural distinction, but from the
social construction associated with it, insofar as society
privileges one category, placing it in a position of
superiority/exclusivity, while devaluing the other.
 Constructionism argues that people are not marginalised
because different with respect to sex, but different owing to
marginalisation in relation to gender.
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A turning point for theorisation
 Social constructionism does not stop at the description of the
social emergence of gender, but devotes attention to power
relations between gender roles.
 The theories of this perspective point out the emergence of
models of gender identity/difference that devalue women and
the female role. However, it focuses on a preliminary
assumption:
 men and women can take over both spaces or life styles (i.e.,
women can participate in public life and man in private life, it
being an issue of gender or social role, not of biological sex)
 Social constructionism suggests new models that revalue
women with respect to men, believing that social status is
changeable, de-constructable and re-constructable
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Subordination and oppression are “unnatural”
inasmuch as they are not rooted in nature,
but conveyed by society and culture.
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 This theory does not oppose, in principle,
sex/gender dualism
 It rather detects the contrast, highlight the
strong interaction between nature and
society. On such grounds, constructionism
considers that ignoring this interaction leads
to a distorted way of understanding our body
(as inert matter) and society (as not influential
on nature).
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 This theoretical orientation is not opposed to
identity categories (as in post-modern
constructionism):
 Sexual identities (men and women) do not
have predetermined essence. Although,
neither are they elusive due to their instability.
 They have variable content changing in
society and history, as part of a material
process.
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the cultural construction of gender
 The theorisation of gender as cultural construction is
along the same lines:
 An innate and unchanging character of sex
“uncontaminated by cultural influences” is deemed
inexistent and unknowable.
 Ann Oakley (a British sociologist and feminist) points
out that gender is a “matter of culture”, as it refers to
the cultural classification of masculine and feminine
in opposition to sex, that biologically distinguishes
male from female. Therefore, biology has a minimal
role in the development of gender identity, while
gender is not a direct, mechanical and automatic
product of sex.
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Gayle Rubin ( American cultural anthropologist):
 the author identifies in the sex/gender distinction the most
effective conceptual pair to express the male/female relationship
 sex indicates the natural difference that in itself does not
produce different social roles
 gender refers to the roles produced by culture and the sociohistorical context
 The sex/gender system encompasses the set of measures
related to the organisation of human sexual relations or
“institutional forms of sexuality” (for instance, through the
structure of marriage)
 She believes that the difference in roles is shaped by culture,
regardless of sexual difference
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The sex/gender system according to Rubin
 In Western societies, it has mainly led to the
dominion of men:
 heterosexual marriage and the division of labour
based on sex caused the attribution of the maternaldomestic role to women and of the public role to men
 Sexual asymmetry has determined social asymmetry
from which the oppression of women and, at the
same time, the perception of “compulsory
heterosexuality” are contingent.
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 According to Rubin, gender is not only the
identification with one sex, but also the obligation to
direct sexual desire toward the opposite sex.
 In this sense, there should be a denaturalisation of
the subordination of women/men, as well as the
heterosexual choice.
The sex/gender system is a series of ways dealing
with gender identity and sexuality and identifies with
the cultural and social organisation of gender, as a
structure subject to transformation and development
in space and time. It represents the series of
strategies through which the biological material of
sexuality and procreation is shaped by human
intervention.
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 The author emphasizes that what feminism
has to fight, so that women can achieve a
position of equality to men, is not the
difference of sex, but the difference of
gender:
 gender needs to be eliminated, sex liberated
from roles imposed by gender
 one method to reach an equal position should
be through the expansion of care to the father
alongside the mother
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Feminist theories: equality/difference
 The theory of social constructionism is elaborated within the
field of sociological and cultural anthropology, closely connected
with some feminist orientations.
 Starting from the 70s, Feminist philosophy frequently relies on
the use of the gender category, in relation to the debate
involving the relationship between men/women.
 The core concept of feminism is the search for the origin of the
phenomenon of sexual discrimination, generally referred to as
“sexism”, in the sense of patriarchal androcentrism. It is in this
context that some theories fit into the sex/gender debate,
applying the conceptual distinction specifically to the feminist
issue.
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Feminism thematises the gender category as
distinct from sex in the analysis of the
man/woman relationship (only marginally in
relation to sexuality). The idea that develops
with increasing conviction is that gender does
not coincide with sex.
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 On the basis of the thematisation of the
distinction of sex/gender, a part of feminism
envisages the possibility that the male/female
hierarchy is overturnable:
 The conceptual pair sex/gender is theorized
first implicitly, then explicitly in the various
liberal, socialist and radical stances.
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Early feminism
 It focuses on the categories of equality/difference and only
implicitly on gender:
 the sexual difference of men/women is considered irrelevant, in
a prospective of egalitarian assimilation of man
 The reason for the oppression of women is found in society
(therefore in gender) and not in the sexual condition.
 Equality becomes an absolute paradigm
 Subsequent explicit shift to the categories of sex/gender. It is
outlined in gender feminism as opposed to the equality
feminism. The sexual condition of women, understood as the
anatomy of the female body and reproductive function in the
gestational sense (pregnancy, childbirth, breastfeeding) is
considered to be the root of women’s inferiority in relation to
men, and their condition of subjection.
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Women have acquired a private, domestic and
caring role, because of their biological
condition. This hinders their participation in
public, social, political and economic life to
which men have access.
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Feminism and sex/gender separation
 Through this distinction feminism intends to liberate
women from marginalization and make them regain a
position of equality, in accordance with a number of
philosophical lines:
 showing the irrelevance of sex for gender and the
consideration of gender as a social construction
 the use of new technologies (contraception,
sterilisation, abortion and reproductive technologies)
separating sex from procreation, allow women to
overcome this “disadvantage” determined by their
biological condition
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Objections:
 hierarchy is not caused by sexual difference
 reproductive technologies lead to forms of
manipulation of the body (for women and
embryos)
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Problematic conceptual distinctions:
 the gender category is sometimes used as a
synonym for sex, other times as a meta-biological
category that allows the theorising of a path for
women’s liberation.
 There are not only linguistic reasons for the choice of
the term, but also a precise political and social
theory. Gender gives weight to the social construction
of sexual inequality. In this direction, even in
feminism, a critique of biological determinism
emerges gradually and in an extensive manner.
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First wave feminism (1848-1918)
 The birth of feminist thought in the late eighteenth
and early nineteenth century:
 Publication of A vindication of the rights of women by
Mary Wollstonecraft (1792)
 The Déclaration des droits de la femme et de la
citoyenne by Olympe de Gouges (1791)
 Wollstonecraft can be considered an anticipator of
the sex/gender debate. The author is aware that the
oppression of women is not a fact of nature but a
social fact, i.e., it does not depend on internal factors,
such as biological condition, but on external factors,
such as education and social organisation. In other
words, it is a matter of gender, not sex.
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 De Gouge aims to combat sexist oppression,
in order to reaffirm the “sacred and
inalienable rights of women”. She argues that
“woman is born free and lives equal to man in
her right”, appealing to the concept of “equal
dignity”
 This is the conceptual approach within which
the first wave of feminism is structured:
 It focuses on emancipation, in the sense of
freeing nature from the oppression of society
Philosophy of Law
Equality feminism is divided into two main
trends:
 liberal
 socialist
 These orientation, despite their differences in
argumentation, share the emancipationist
ideal.
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Liberal and socialist feminism on gender equality
Liberal feminism:
 Harriet Taylor in the essay The Emancipation of
Women (1851) and John Stuart Mill in The Subjection of
Women (1869) reject the alleged natural inferiority of
women, claiming that every human being is by nature
rational and autonomous morally.
 There is an attempt to overcome the subjection of
women due to education, history and culture so that
women can regain their natural rights, denied and not
recognised by society.
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Harriet Taylor:
 She particularly insists on education, employment,
political participation, believing that women can
achieve freedom through liberation from care and
family.
John Stuart Mill:
 He states that women, although physically weaker
than men, should not be subjugated to them.
Philosophy of Law
Physical difference does not justify social subordination,
that is a sort of slavery:
 The enslavement of women in the family, exercised
not through strength, but with affection, which prevents
collective rebellion. In this sense, women educated
constantly to the duty of self-denial, must vindicate
equality in political rights by appealing to rational
capacities.
 It is the natural equality of the rights of every human
being regardless of sex that calls for the obligation of
equal treatment in education, economic management,
employment and voting.
Philosophy of Law
The Emancipation of Women (Harriet Taylor):
 It makes a case not merely for giving women the ballot but for
“equality in all rights, political, civil, and social, with the male
citizens of the community”.
 This essay contains many of the same lines of argument as The
Subjection of Women, written by Mill and published in 1869,
although it expresses a somewhat more radical view of gender
roles than the later essay.
 It maintains that the denial of political rights to women tends to
restrict their interests to matters that directly impact the family,
with the result that the influence of wives on their husbands
tends to diminish the latter's willingness to act from publicspirited reasons.
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 Furthermore, it contends that when women do not
enjoy equal educational rights with men then wives
will impede rather than encourage their husbands'
moral and intellectual development.
 The major point of difference between the two is that
while the Subjection rather notoriously suggests that
the best arrangement for most married couples will
be for the wife to concentrate on the care of the
house and the children.
 Taylor’s essay instead argues for the desirability of
married women's working outside the home.
Philosophy of Law
According to H. Taylor:
“Even if every woman, as matters now stand, had a
claim on some man for support, how infinitely preferable
is it that part of the income should be of the woman's
earning, even if the aggregate sum were but little
increased by it…. Even under the present laws
respecting the property of women, a woman who
contributes materially to the support of the family,
cannot be treated in the same contemptuously
tyrannical manner as one who, however she may toil as
a domestic drudge, is a dependent on the man for
subsistence”.
Philosophy of Law
The Subjection of Women (J. Stuart Mill)
 His view on the problem of gender equality as expressed in this
essay is commonly regarded as one of the core texts of liberal
feminism of the 19th century. It is based on the principle of
equality of women and men:
 J. Stuart Mill considered this to be one of the key principles for
building a liberal and democratic society. His interest in the
emancipation of women was systematic and continuous.
 He was a “public man”, an enthusiastic participant in public and
political debates concerning various social problems of his time,
and was especially interested in legal and social reform. Among
the issues on which Mill campaigned most intensively were
women’s rights, suffrage and women’s equal access to
education.
Philosophy of Law
 From 1850 onwards, he actively supported the
women’s movement as it developed during this
period and participated in many forms of women’s
political struggle against subjection and
discrimination, advocating for civil and political rights,
as well as social and political reforms aimed at
improving their situation.
 Mill worked to influence legislation and public policy
concerning issues affecting women:
 He was critical about the idea that husbands, through
their right to vote, served as the protectors of their
wives. For him, women’s emancipation meant the
greater struggle for women’s equality.
Philosophy of Law
In The Subjection of Women, Mill discusses the
situation of an intelligent woman confined by patriarchal
institutions and customs that deny her individuality:
 He reached the strong conviction that woman’s
suffrage was an essential step towards the moral
improvement of humankind, and that the relationship
between husband and wife ought to be grounded in
legal as well as real equality.
 “ Marital slavery ” should be replaced by “ marital
friendship”.
Philosophy of Law
Mill formulates the fundamental argument of The
Subjection of Women in its first paragraph:
“the principle which regulates the existing social
r elat i ons bet ween t he t wo sexes – t he lega l
subordination of one sex to the other – is wrong in itself
and now one of the chief hindrances to human
improvement; and […] ought to be replaced by a
principle of perfect equality, admitting no power or
privilege on the one side, nor disability on the other”.
Philosophy of Law
Mill’s criticism of the social status of women is based on
his analysis of the social injustice excluding women
from public and civil life, from politics and decisionmaking.
He stresses that this kind of social injustice is one of the
main barriers to human progress and the moral
improvement of humankind. Analysing the
consequences of women’s subjugation, he points out
that such conditions negatively affect not only the lives
of women, but of men as well.
Philosophy of Law
 Men and women alike are harmed by such a
situation, and consequently the subjection of women
negatively affects the whole of society. As a liberal
thinker, Mill expresses his strong conviction that the
subordination of women, which deprives them of
freedom, is an unjust violation of the principle of
liberty. Moreover, it is a historical anachronism, “an
isolated fact in modern social institutions”.
 Mill declares that this “relic of the past is discordant
with the future, and must necessarily disappear”. He
locates the origin of women’s oppression in men’s
physical strength, assuming that the more influence
reason has in a society, the less importance physical
strength will have.
Philosophy of Law
 In such a state of affairs, women would no longer be
disadvantaged, as physical strength becomes less
important as civilisation progresses. This progress
implies the development of reason which, according
to Mill, is the same in either sex.
 Hence the subjection of women in an advanced
society has no other basis than habit or custom, both
of which are serious hindrances to the full
development of reason. In this way, Mill
conceptualises human life as progressing from the
passionate and the natural to the rational and the
cultural.
Philosophy of Law
 According to Mill, inequality represents a serious
barrier to the advancement of an entire society, and
is also an obstacle to progress on an individual level,
that is, to individual improvement and prosperity.
Precisely this is Mill’s point of departure in arguing for
the need to dismantle social and legal relationships
that subjugate women and establish perfect equality
and partnership between the sexes, in both the public
and private spheres.
 However, some of his views are more similar to
certain radical feminist ideas developed within
“second-wave feminism”.
Philosophy of Law
When speaking about women’s status, especially in the
family and marriage, he often uses the image of slavery:
 Mill considers marriage, or more precisely the marital
law of his society, as the main factor in generating,
perpetuating and enforcing women’s slavery. In his
view, women are in a double bind: they are not free
within marriage, and they are not free not to marry. This
lack of freedom not to marry results from the fact that
they cannot acquire education or earn money in the
public sphere. Thus there is strong social and economic
pressure to marry: law and custom dictate that a woman
has scarcely any available means of gaining a
livelihood, except as a wife and mother.
Philosophy of Law
 Mill’s reflections on women’s status within marriage contain not
only this critical moment, but also some constructive ones. He
outlines a vision of marital partnership based on the principles of
equality, partnership, cooperation and reciprocity between
woman and man, and stresses that only such a relationship
between married persons is acceptable, not only in a political
but also in a moral sense:
 “The equality of married persons before the law, is not only the
sole mode in which that particular relation can be made
consistent with justice to both sides, and conducive to the
happiness of both, but it is the only means of rendering the daily
life of mankind, in any high sense, a school of moral cultivation”.
Philosophy of Law
 Accordingly, he believes that marital relations based
on partnership and equality would transform not only
the domestic but also the public sphere.
 In compliance with his liberal political and
philosophical convictions, he maintains that the very
principle of justice requires that women possess the
same rights as men, and that equality before the law
will lead to justice in all spheres of social and political
life. Mill’s analysis of the subjection of women in
society clearly reveals his utilitarian position, as well
as his participation in the English liberal tradition.
Philosophy of Law
 Mill justifies the necessity of women’s emancipation mainly by
the need to create room for each individual (which means not
only men, but also women) to develop their personal inclinations
and talents, so as to realise the maximum of their personal
happiness and, as a consequence, contribute to the
development of the whole of society.
 It is not difficult to identify the utilitarian principle of maximum
happiness in the background of such argumentation; for it is the
well-being of the maximum number of people which Mill uses to
demonstrate the disutility of women’s oppression and exclusion
from public life. Other principles which are central to his
argumentation are the liberal principle of equality and freedom,
the principle of equal opportunities, and the principle of free
individual choice. Accordingly, since human beings are equal,
the fact that someone is born a woman should not determine her
lifelong position and status in society, and neither philosophy
nor customs should.
Philosophy of Law
 As for Mill’s strategy, it may be said that he, like Harriet Taylor,
wanted to extend the ideology of liberal individualism to women;
for both of them sought to secure an independent, autonomous
identity for women as distinct individuals.
 In short, Mill’s argumentation is bound to two fundamental
assumptions or theses, which permeate his thoughts throughout
the whole essay:
 According to the first, the equality of women before the law is an
imperative proceeding from the very principle of social justice.
The second focuses on his thesis regarding the social utility of
eliminating the oppression of women, not only for them but for
society as a whole. These two assumptions are joined into one
thesis of fundamental importance, according to which the
inequality of women and men is unjust as well as harmful, both
for individuals (individual women and men) and for society.
Philosophy of Law
 In accordance with his liberal social and political philosophy, Mill
stresses the similarities between women and men, rather than
their differences, emphasising that “any of the mental
differences supposed to exist between women and men are but
the natural effect of the differences in their education and
circumstances, and indicate no radical difference, far less
radical inferiority, of nature”.
 Mill argues that any gap in intellectual achievement between
men and women can be explained by the better education and
privileged social position which men enjoy. On the other hand,
he endeavours to emphasise and positively evaluate the
importance of those mental or behavioural traits of women
which supposedly differ from men’s. For example, while arguing
for women’s suffrage and their representation in public life, he
suggests that “the general bent of their talents is towards the
practical”, thus making them fit for a life of public action.
Philosophy of Law
 Mill stresses that “what is now called the nature of
women is an eminently artificial thing, i.e., the result
of forced repression in some directions, unnatural
stimulation in others”.
 Here Mill not only calls attention to the impossibility of
knowing the “nature” of women; for what we now call
the nature or natural traits of women is the result of
culturally determined factors such as socialisation
and education and the effect of the social
circumstances in which women live.
Philosophy of Law
Objections and ambiguities in Mill’s philosophical thinking
 One of the main targets in current criticism of Mill’s liberal
feminism is his universalist and, at the same time, biased view
of human life and human nature. As already mentioned, Mill
conceptualises human life as progressing from the passionate
and the natural to the rational and the cultural.
 Although Mill criticises women’s status as wives and mothers
and condemns the injustice of marital slavery, his views on
marriage show certain limits to his liberal feminism. He does not
fight traditional assumptions regarding women’s and men’s
different responsibilities in a household, and accepts the notion
that when women marry they should be responsible for taking
care of the home and children, while men provide the family
income.
Philosophy of Law
 It would seem that his emphasis on the importance of
legal and political equality, on equality before the law,
makes him less sensitive to other forms of inequality
and discrimination.
 Mill considered the principle of equality to be a moral
imperative, while the division of labour was an
empirical matter, one which might be altered
according to actual conditions and experience.
Philosophy of Law
Socialist feminism
 Liberal feminism developed mainly in England and in the U.S.,
given the greater weight of political liberalism compared to
Europe.
 However, after World War II, in European countries, following
the development of welfare state systems, socialist feminists
conveyed the vindications of women.
 Marxist and socialist thought, even though in a different
theoretical perspective, share with liberal feminism, claims for
the emancipation of women, through access to employment and
the public sphere.
 This theory frames the issue of the problem of women’s status
in the context of class inequalities arising from the capitalist
economic system.
Philosophy of Law
 Even in this perspective, the reasons for the
oppression of women are not identified in nature, but
in society:
 The prospects for women status improvement are
found in social change, specifically in the economic
conditions of women, through their integration into
the working class, fighting for recognition of equal
access to employment.
Philosophy of Law
Socialist feminism:
 It calls for State intervention in the field of social
policies to ensure the conditions that enable women
to participate in employment and public life (in
opposition to liberal feminism, which relies on free
market competition). This perspective believes that
through the communist revolution, in a socialist
society, all forms of subordination will disappear,
along with those of the proletarians in relation to
capitalists.
 The interests of women are, therefore, proposed as
an ally of the proletarians for the socialist revolution.
Philosophy of Law
The Origin of the Family, Private Property and the State (Friedrich
Engels, 1884)
 He reconstructs anthropologically the original state of sexual
promiscuity (in which all males had sexual relations with all
females, regardless of age and kinship).
 This condition characterized society before the formation of the
monogamous family.
 The author highlights that women in the prehistory of humanity
were not placed in a subordinate position: indeed, they were
venerated even religiously as a symbol of fertility.
 In the social transformation of work (from hunting to farming,
agriculture and war), the male acquires a primary role as head of
the family, owner of territory, livestock, slaves and also women.
Philosophy of Law
 According to Engels, the monogamous family was
born in the Greek and Roman civilisations with the
institution of private property. Consequently, in this
context, sexual relationships were transformed:
 The first exclusion regarded the sexual relations of
mothers-fathers with their sons-daughters, then
between consanguineous (brothers-sisters) in the
transition from “matriarchy” (a state of equality, if not
of female superiority) to “patriarchy” (a state of male
superiority).
Philosophy of Law
 In Engel’s view, the shift from prehistory to history
marks the birth of “women’s enslavement”:
 Monogamous marriage is considered men’s dominion
over women.
 The socialist revolution is put forward as a condition
for the liberation of all women, through the change of
social conditions (i.e. gender), the abolition of private
property and the establishment of common property.
The care and education of children becomes a public
affair.
Philosophy of Law
 In striving for the pursuit of equality, liberal and
socialist feminism encompass the thematisation of
the idea that what should be changed is not nature,
deemed equal in men and women, but society, the
source of inequality. Therefore, the modification of
social conditions, allowing access to education and
employment for women, provides the guarantee of
equal rights:
 Gender starts to be, although implicitly, a benchmark
in the search for change of the female social role,
regardless of natural condition.
Philosophy of Law
 Heterogeneous paths towards the sex/gender debate: feminist
provocative attempts to overcome nature
 From equality/difference dualism to sex/gender debate:
 The feminist reflection (1918-1968) embraces various lines of
rethinking the relationship between equality/difference, which is
intertwined, on many levels, with the sex/gender issue. In this
framework, common elements are perceived:
 the identification of sex (corresponding to nature) as the
underlying reason for the inferiority of women
 seeking to modify “gender” in society and culture
Philosophy of Law
Simone de Beauvoir, Le deuxième sex (1949)
 The author addresses the issue of women’s
subordination condition, looking for the causes
through a detailed analysis in biological,
psychoanalytical and historical terms. This study is
placed in a philosophical perspective stemming from
a synthesis of existentialism and Hegelianism:
 The existentialist assumption taken up by Sartre’s
philosophical thought, according to which existence
precedes essence. It is a materialist view (as
opposed to essentialism) that affirms the priority and
exclusivity of existence, i.e. what man is in his
concrete reality.
Philosophy of Law
 De Beauvoir states that “one is not born a
woman, but becomes one”. Every human
being (man or woman) is self-sufficient and
makes himself/herself. Every individual is the
result of free acts and is able to choose from
two paths:
 The path of transcendence, i.e. the active
transformation of the world
 The path of immanence, i.e. passive
acceptance of things as they are
Philosophy of Law
 The author applies these categories to the
understanding of the female condition:
 A woman exists as she becomes, she projects
herself into the world, transcending her immanence
through the exercise of conscience and liberty.
However, women are incapable of transcending
themselves, since they have been historically
confined and “imprisoned” to remain “trapped” in the
immanence of the body, meant for procreation,
motherhood and domestic work, in the passivity and
objectivity binding them to a state of subordination.
Philosophy of Law
Women have found themselves in the condition
of being “Other” in relation to man by nature.
They have also chosen to be “Other” in the
social context. Although influenced by their
biological state, they have not been forced to
accept this inferior status, for which they are
also “accomplices”.
Philosophy of Law
“No biological, psychological, economic destiny
defines the face that the human female
assumes in the heart of society”.
The author locates in history the cause of the
female condition. In a sense, in her view, sex
and gender are the causes of the hierarchical
order of the inferiority of women to men, from
which they must break free to become equal to
men.
Philosophy of Law
A woman is not a “fixed reality”, but a
“becoming”. She was not born as women, but
she has become one, due to internal biological
and psychological conditions, alongside
external social and historical conditions.
However, she can also cease to be one, placing
herself in a position of equality to men. She
must from “passive object” without freedom,
become an “active subject”.
Philosophy of Law
 She must transcend herself, create culture
beyond nature, free herself from the “slavery”
of marriage, reproduction and motherhood.
Women were historically excluded from the
relational dynamics of recognition for which
reciprocity is a requirement.
Philosophy of Law
 The phrase “one is not born a woman, but
becomes one” is used by gender theories
with a different meaning, but to some extent
anticipated by De Beauvoir when deeming
“womanity” socially constructed, transcending
nature.
Philosophy of Law
 She explores the ways that cultural
assumptions frame women’s experience of
their bodies and alienate them from their
body’s possibilities. For example, it is
assumed that women are the weaker sex.
What is the ground of this assumption?
 What criteria of strength are used? Average
body size?
 Is there a reason not to consider longevity a
sign of strength? Using this criterion, would
women still be considered the weaker sex?
Philosophy of Law
 De Beauvoir opened the way for the consciousness-
raising that characterized second wave feminism: it
validated women’s experience of injustice.
 Her ethical-political question: “How can a human
being in a woman’s situation attain fulfilment”?
 The author argues that women’s exploitation is
historical, therefore, amenable to change. As an
existential situation, however, women are responsible
for changing it. Liberation must be woman’s work. It
is not just a matter of appealing to men to give
women their freedom, but a matter of women
discovering their solidarity and the pleasures of
freedom.
Philosophy of Law
 Without ignoring the importance of women’s gaining
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the right to vote and without dismissing the necessity
of women achieving economic independence, she
finds these liberal and Marxist solutions to women’s
situation inadequate.
The liberated woman must free herself from two
shackles:
1) The idea that to be independent she must be like
men
2) The socialization through which she becomes
feminized.
The first alienates her from her sexuality. The second
makes her adverse to risking herself for her ideals.
Philosophy of Law
 Betty Friedan, The Feminine Mystique (1969)
 The author pursues the same orientation,
albeit in a different philosophical context,
deploring the condition of the feminine
mystique, i.e. the idea and idealised condition
in which women devoted to family are
confined, finding fulfilment through
domestic/reproductive family life, renouncing
public life.
Philosophy of Law
 “Mona Lisa’s enigmatic smile” represents, in her opinion, the
interior crisis of women apparently gratified by marriage and the
family, they experience a sensation of emptiness, feeling robbed
of their identity, defined socially by the function of being bride,
mother, homemaker, and end up feeling “incomplete”. On such
grounds, women call for a public space, with the same function
and role as men in society, in education and employment as in
the exercise of power.
 The “feminine mystique” entrenches women in nature which
forces her into the “cage” of the family, reproduction, looking
after children and the home, from which it is possible to escape
only by rejecting this and changing their social role.
Philosophy of Law
 Friedan’s argument weaknesses:
 She saw domesticity as the main vehicle of gender
oppression and called upon women in general to find
jobs outside the home. Although, she failed to realize
that women from less privileged backgrounds, often
poor and non-white, already worked outside the
home to support their families. Friedan’s suggestion,
then, was applicable only to a particular sub-group of
women (white middle-class western housewives). But
it was mistakenly taken to apply to all women’s lives,
a mistake generated by the author’s failure to take
women’s racial and class differences into account.
Philosophy of Law
 Juliet Mitchell, Women: the Longest Revolution
(1966)
 The author critically examines the limitations of the
socialist vision in relation to women, focusing on the
plight of working women, as well as those of the
middle class, exploited inside and outside the
domestic environment. She contends that the causes
of the subordination of women lie in production,
reproduction, sexuality and the socialization of
children.
Philosophy of Law
 In order to attain the liberation of women, it is essential to
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
transform all four elements:
production – through the socialist revolution that would eliminate
private property and class exploitation
reproduction – separating sexuality from procreation (even with
the use of birth control pills)
sexuality – by dividing property and marriage (i.e. the
liberalisation of prostitution and the normalising of
homosexuality, alongside heterosexuality)
the socialization of children – calling for the shared participation
of fathers in the care of the domestic environment and the
increase of social services.
Hence, the reasons for the inferiority are identified with social
conditions (gender) that must be changed, along with the
separation of sexuality from procreation.
Philosophy of Law
 Second wave feminism (1968-1980)
 The sex/gender debate becomes explicit in this
context.
 Radical feminism looks for a different solution to the
female issue: at the root of the dominion of women by
men, understood as the dominion of all men, over all
women, there is not only social exclusion and
economic exploitation, but also and above all, the
sphere of sexuality.
 It is the biological and anatomical difference in sex as
“immutable destiny” that has determined a difference
in gender or in social roles.
Philosophy of Law
 In the past, women accepted men as allies
(for instance, Mill and Engels), while new
feminism excluded men from feminist
theorising.
Philosophy of Law
 The sexual and reproductive condition of
women forces them into the role of carer and
the maternal domestic role that confines them
to an inferior social status in relation to men.
In this sense, feminism is opposed to
biological and social determinism.
Philosophy of Law
 Radical feminism argues that women’s liberation is
liberation from the body, extending as far as
dissolution of female identity: the destruction of the
female model (and therefore of motherhood, the
domestic role, women’s attitude and behaviour) is
considered the essential preliminary condition for the
construction of a post-model that is not a mere male
assimilation. The goal is not equality as assimilation
(believed to be false equality) but equality as
liberation from the exploitation of women through
self-awareness of male oppression.
Philosophy of Law
 Liberation is meant as something different from
emancipation: it is a movement spreading in
theoretical and practical terms. In this perspective,
consciousness-raising groups are established as a
form of political activism. It is believed that the
personal experiences of sexuality, family and
motherhood are not only private, but also public
issues, as they cause women’s oppression. In this
theoretical framework, “gender consciousness”
means conscious awareness of oppression owing to
the sex/gender connection.
Philosophy of Law
 Liberation must happen through a revolution first in
the domestic and, then, in the political environment.
We must change not only the public sphere
(education, labour, civil and political rights) but also
the private one, expanding it to all areas of life. This
orientation of thought is prevalent in the U.S. and has
put forward requests for dissemination of methods of
contraception, the legalisation of abortion, the
establishment of women’s counselling centres for
sexual problems.
Philosophy of Law
 Kate Millet, Sexual Politics (1970)
 The author identifies “politics” as a structured
relationship of power of a group of people over
another group of people and “sex” as the root of
politics, perceived as a relationship of
dominion/subordination.
 Sex becomes a category with political implications:
 Patriarchy/patriarchal system is defined as sexual
politics, i.e. a series of sexist strategies to preserve a
system of power and control, that of men over
women. In this context, sexual intercourse is
considered not an act of pleasure or of procreation,
but a political fact/act whereby establishing and
perpetuating male domination over women.
Philosophy of Law
 Only the destruction of patriarchy can determine a
feminist revolution as a “sexual revolution”. Millet,
referring explicitly to Stoller finds in the splitting of
sex/gender the route to this revolution: the separation
of sex and gender justifies the split between sexual
condition and sexual role. Since those roles are
simply learned, we can create more equal societies
by “unlearning” social roles. In this context, feminists
should aim to diminish the influence of socialisation.
Therefore, sexual freedom is guaranteed in the
strong sense, that is, women’s emancipation and
liberation from sexuality.
Philosophy of Law
 Shulamith Firestone, The Dialectic of Sex (1970)
 The author identifies the oppression of women in biological
condition (sex) that determines the difference in role as the
“tyranny of the biological family”: women conceive, generate,
nourish, give care, in a sort of “division of labour” in relation to
men. The sexual condition of pregnancy, maternity and care
place women in a dimension of weakness. Motherhood is a
“reproductive servitude determined by biology”. If nature has
determined the state of inferiority, it is culture (gender) that can
provide release. “Culture” is meant as the transformation of
society and roles, as well as the use of new technologies made
available by science. Firestone foresees a society in which
scientific and technological progress free women from the
“slavery of sexuality and procreation”, as liberation from male
sexual domination.
Philosophy of Law
 Firestone states that the main goal of the revolution is the family:
 Women’s revolution must come about through their taking
control of their bodies, their fertility and the “ means of
reproduction” (the pill, abortion, reproductive technologies),
similar to the revolution of the proletariat that wanted to control
the “means of production”. In her view, sexuality should not
have a pro-creative purpose, but rather a re-creative one. A
further step should be the abolition of the biological family, that
is the cause of the existence of the incest taboos, the origin of
sexual repression perceived from childhood.
 The abolition of the biological family would lead to liberation
from the inhibition of pleasure instincts and impulses,
establishing the “society of Eros”, with the principle of pleasure
as its focal point.
Philosophy of Law
 Firestone argues that sexual revolution involves
cancellation of the distinctions of sex in relation to
age (extending sexual liberation beyond adults to
children), number (increasing bonds to more than two
people), marital status (married and unmarried),
family ties (allowing even incest), gender (considering
heterosexuality equivalent to homosexuality).
Maternity and children would only be freely chosen
by women, and the care of children will be socialized,
shared by women and men in an undifferentiated
way, through social services.
Philosophy of Law
 Lesbian Separatism
 The feminist criticism of sex as determining the
inferiority of women in relation to men, develops
parallel to the criticism of heterosexuality, as a social
institution and norm, within the sphere of lesbian
separatism, anticipating the sex/gender/sexuality
debate.
 Lesbian separatism (as opposed to heterosexual
feminism, considered patriarchal) leads to the
formation of only women communities. In this
framework, the gender category starts also to refer to
sexual orientation, as a free sexual choice driven by
desire and impulse.
Philosophy of Law
 Adrienne Rich theorises the existence of lesbian
identities. Her stance focuses on the need for the
categories of heterosexuality and homosexuality to
disappear, in the fight against the patriarchal system
that has institutionalised the heterosexual family as
the norm.
 The author brought up the idea of hetero-normativity (
compulsory heterosexuality), as the series of
institutional, cultural and social measures that
normatively obligate sexual choice to be oriented to
the opposite sex:
 Hetero-sexism becomes the main target to fight
against, taking precedence over racism, classicism,
imperialistic colonialism.
Philosophy of Law
 Rich investigates what is common to women,
what is shared by women, what is different
from men, in order to develop a political
notion of “sisterhood”, placing itself in a
critical relation to the theories emphasizing
the special qualities of women, as they risk
sliding into an essentialist conception on
“womanhood”, i.e. inflexible and prescriptive.
Philosophy of Law
 Germaine Greer gets to the point of defining
women as “eunuch”, denouncing the passive
and dissatisfied behaviour of women.
 The author contends that revolution is
brought about by breaking legitimate social
relationships, such as marriage and affirming
women’s self-sufficiency against all forms of
dependence, while fighting against equality
considered “ a poor substitute for liberation”.
Philosophy of Law
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Philosophy of Law
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