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Philosophy of Law
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
  • ?Gender' denotes
  • a conceptual category referring to things or
    persons that share essential properties (e.g.
    kind, species, class, type). It refers to human
  • 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 ones 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
  • - 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
  • 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
  • - 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
  • The debate by psycho-sexology and psychoanalysis
    was taken up by a set of feminist orientations
    with different modalities and arguments at many
  • - sociological
  • - cultural-anthropological
  • - philosophical
  • Main goal
  • investigating reasons for the disadvantaged
    condition of women in history, society and
  • 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 ?gender revolution',
    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 ?politics into sex'
  • - the second revolution transforms ?sex into
    politics', modifying sexual politics towards a
    transformation of the sexual relationship meant
    as a relationship of power/subordination

Philosophy of Law
  • A conceptual shift from modern to post-modern
    lines of thought
  • In this context, gender already previously set
    free from sex, multiplies itself in
    ?differences', strictly and intentionally
    declined in the plural form.

Philosophy of Law
  • ?Sexuality studies'
  • 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
    ?normalisation'/?naturalisation', e.g. the
    restrictive imposition of assumed roles.
  • To deconstruct means ?un-doing' 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.

Philosophy of Law
  • 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 ?without sex' 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 inter-disciplinarity
    and non-systematic nature, alongside an
    underlying intention to not express the reasoning

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
    ones 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

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.

Philosophy of Law
  • 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
    ?strangeness' but ?normality', 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 ?gender
    agenda'/?gender mainstreaming'.
  • The term ?gender ideology' 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.

Philosophy of Law
  • The gender ideology proposes the following
  • 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 ?sex-less' 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
  • 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

Philosophy of Law
  • 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
  • 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.

Philosophy of Law
  • 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.

Philosophy of Law
  • 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
  • Sexual identity of assignment of sex
    (male/female) depends on acting, i.e. acting
    determines gender, both as role and as identity.

Philosophy of Law
  • 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.

Philosophy of Law
  • 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.

Philosophy of Law
  • 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,
    care-oriented 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).

Philosophy of Law
  • 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

Philosophy of Law
  • 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.

Philosophy of Law
  • 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.

Philosophy of Law
  • 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/exclusivit
    y, 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.

Philosophy of Law
  • 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

Philosophy of Law
  • Subordination and oppression are unnatural
    inasmuch as they are not rooted in nature, but
    conveyed by society and culture.

Philosophy of Law
  • 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).

Philosophy of Law
  • This theoretical orientation is not opposed to
    identity categories (as in post-modern
  • 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.

Philosophy of Law
  • 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

Philosophy of Law
  • 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 socio-historical 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

Philosophy of Law
  • 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
    maternal-domestic 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.

Philosophy of Law
  • 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.

Philosophy of Law
  • 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

Philosophy of Law
  • 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.

Philosophy of Law
  • 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.

Philosophy of Law
  • 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.

Philosophy of Law
  • Early feminism
  • It focuses on the categories of
    equality/difference and only implicitly on
  • 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
    womens inferiority in relation to men, and their
    condition of subjection.

Philosophy of Law
  • 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.

Philosophy of Law
  • 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

Philosophy of Law
  • Objections
  • hierarchy is not caused by sexual difference
  • reproductive technologies lead to forms of
    manipulation of the body (for women and embryos)

Philosophy of Law
  • 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
    womens 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.

Philosophy of Law
  • 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.

Philosophy of Law
  • 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
  • liberal
  • socialist
  • These orientation, despite their differences in
    argumentation, share the emancipationist ideal.

Philosophy of Law
  • 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

Philosophy of Law
  • 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

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
    public-spirited reasons.

Philosophy of Law
  • 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
  • Taylors 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
  • 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 womens
    rights, suffrage and womens equal
    access to education.

Philosophy of Law
  • From 1850 onwards, he actively supported
    the womens movement as it developed during
    this period and participated in many forms of
    womens 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, womens
    emancipation meant the greater struggle for
    womens 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
    womans 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 relations between the two sexes the
    legal 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
  • Mills 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
  • 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
    womens 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 womens
    oppression in mens 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
  • 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
    Mills 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 womens 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 womens 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

Philosophy of Law
  • Mills reflections on womens 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. Mills 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 womens
    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
    womens 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 Mills 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
  • In short, Mills 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

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 mens. For example, while
    arguing for womens 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
  • 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 Mills
    philosophical thinking
  • One of the main targets in current
    criticism of Mills 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 womens 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
    womens and mens 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
    womens 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

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

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
  • 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 Engels view, the shift from prehistory to
    history marks the birth of womens enslavement
  • Monogamous marriage is considered mens 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

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

Philosophy of Law
  • Heterogeneous paths towards the sex/gender
    debate feminist provocative attempts to overcome
  • From equality/difference dualism to sex/gender
  • 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
  • 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 womens
    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
  • The existentialist assumption taken up by
    Sartres 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

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
  • 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

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

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 womens experience of their bodies and
    alienate them from their bodys possibilities.
    For example, it is assumed that women are the
    weaker sex. What is the ground of this
  • What criteria of strength are used? Average body
  • 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 womens experience of
  • Her ethical-political question How can a human
    being in a womans situation attain fulfilment?
  • The author argues that womens exploitation is
    historical, therefore, amenable to change. As an
    existential situation, however, women are
    responsible for changing it. Liberation must be
    womans 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 womens
    gaining the right to vote and without dismissing
    the necessity of women achieving economic
    independence, she finds these liberal and Marxist
    solutions to womens situation inadequate.
  • The liberated woman must free herself from two
  • 1) The idea that to be independent she must be
    like men
  • 2) The socialization through which she becomes
  • 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
  • Mo