MARIA DRAKOPOULOU

THE ETHIC OF CARE, FEMALE SUBJECTIVITY AND FEMINIST LEGAL SCHOLARSHIP

ABSTRACT. The object of this essay is to explore the central role played by the ethic of care in debates within and beyond feminist legal theory. The author claims that the ethic of care has attracted feminist legal scholars in particular, as a means of resolving the theoretical, political and strategic difculties to which the perceived crisis of subjectivity in feminist theory has given rise. She argues that feminist legal scholars are peculiarly placed in relation to this crisis because of their reliance on the social woman whose interests are the predominant concern of feminist legal engagement. With the problematisation of subjectivity, the object of feminist legal attention disappears and it is in attempts to deect the negative political consequences of this that the ethic of care has been invoked, the author argues, unsuccessfully. The essay concludes with suggestions as to how the feminist project in law might proceed in the wake of the crisis of subjectivity and the failure of the ethic of care to resolve it. KEY WORDS: academic feminism, care, crisis of subjectivity, ethic of care, feminist legal scholarship, Gilligan, relational jurisprudence, subjectitivity, woman, women

I NTRODUCTION
First, are you our sort of person? Do you wear A glass eye, false teeth, a crutch, A brace or a hook, Rubber breasts or a rubber crotch Stitches to show that something is missing. (Sylvia Plath, 1981, pp. 182183)

Questions concerning subjectivity have seriously troubled feminists over the last two decades. Most now nd it no longer acceptable to irrefutably posit the Woman of the feminist movement as a unitary subject comprising the absolute foundation of objective knowledge about women. Because feminist legal thought and feminist politics about law have both depended upon the existence of this unitary subject, these questions have weighed particularly heavily upon the feminist project in law. Indeed, they have caused such uneasiness in relation to the intellectual and political orientation of this project that it can be thought of as having experienced a crisis of subjectivity. Despite the remarkably fertile debate this crisis has
Feminist Legal Studies 8: 199226, 2000. 2000 Kluwer Academic Publishers. Printed in the Netherlands.

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generated however, no single satisfactory solution to the problem created by the essentialist freezing of female subjectivity has yet emerged. We remain confronted with having to t the diversity of womens experience into the straitjacket of a unitary legal subject which still appears indispensable for the articulation of feminist critiques of law and the formulation of proposals for its development. It is not the purpose of this paper to proffer another suggestion for solving this crisis of subjectivity; neither is it to side with any particular approach and defend it against all others. The objective is more straightforward, a critical evaluation of the contribution made by one specic strand of feminist jurisprudence, namely that derived from the feminist moral theory established by the psychologist Carol Gilligan (1977, 1982, 1987, 1990) and since widely referred to as the ethic of care or the care perspective. In undertaking this critique, the primary concern is not an analysis of Gilligans work per se, its methodology, claims to truth or an exploration of the intellectual inuences and afliations it enjoys.1 My interest is restricted to an evaluation of the promise a feminist jurisprudence based on the ethic of care might hold for our attempts at solving the crisis of subjectivity. The care perspective has had considerable inuence on academic feminism, animating substantial debate across many subject areas. The reasons it has attracted feminist legal scholars are much the same as those which explain its appeal to feminist academia in general. However, the very singular nature of the feminist project concerning law has meant that the employment of the ethic of care in relation to feminist legal thought has exhibited special characteristics. It is my contention that despite the care perspective being so heartily welcomed by many feminist legal scholars, the singular nature of the feminist project concerning law inevitably leads to the relational jurisprudence2 it spawned failing to deliver on its promise to provide a solution to the crisis of subjectivity. Moreover, since this incapacity is so inextricably linked to the nature of the feminist legal project, a critique of the use of the ethic of care in law also raises important questions about the project itself. This paper is divided into three parts. The rst entails a synoptic exposition of the ethic of care and an analysis of why it is has been so attractive to academic feminism. The second sets it within the context of feminist legal scholarship, exploring the reasons why questions of subjectivity reached
1 For a discussion of these topics see Walker (1984); Auerbach et al. (1985); Kerber et

al. (1986); Drakopoulou (1992); Martin (1994); Komter (1995). 2 I use this term in a generic sense to describe all forms of feminist jurisprudence normatively grounded upon the ethic of care.

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crisis proportions, analysing the specic shape this crisis took, and identifying ways in which relational jurisprudence was evoked in attempts to alleviate it. Finally, the third section provides a critical appraisal of the promise the care perspective held for the feminist project on law, an explanation of its failure to deliver, and an analysis of the implications this has for legal thought and feminist politics about law. ACADEMIC F EMINISM AND THE S EDUCTIVE P ROMISE OF THE E THIC OF C ARE
Were out in a country that has no language, no laws, were chasing the raven and the wren through gorges unexplored since dawn whatever we do together is pure invention the maps they gave us were out of date by years. (Adrienne Rich, 1978, p. 381)

Gilligans most inuential texts (1977, 1982, 1987) address that mainstream developmental psychology epitomised by the works of Piaget (1965) and Kohlberg (1976, 1981)3 and according to which adulthood and maturity are arrived at through the development of moral judgement in several stages, spanning infantile dependency to adult autonomy. In a process characterised as an increasing differentiation of self from others and a progressive freeing of thought from contextual constraints, the morally mature individual comes to conceive of self as separate from, instead of connected to, others, and to favour autonomous life over interdependence. Kohlberg and Krammer (1969) identied six hierarchically sequential stages on this road to maturity,4 grouping them into three levels according to which: the pre-conventional conception of moral conict and resolution is egocentric based solely on the needs of the self; conventional judgement derives from an equation of the morally right and good with those existing moral values and norms seen as necessary for sustaining relationships within society, groups or communities; and a post-conventional judgement is one grounded upon reection and formulated in universal terms, relying on the abstract ideals of fairness and justice.
3 See also Kohlberg and Krammer (1969); Kohlberg and Gilligan (1971). 4 These being: (1) obedience and punishment orientation; (2) instrumental

hedonism; (3) interpersonal concordance the beginning of adult reasoning, where the concern is with maintaining bonds of trust with others; (4) law and order in which judgment is subordinated to rules; (5) social contract; (6) universal ethical principles where the individual arrives at full moral maturity. Judgement in (5) and (6) is formed according to universal principles of justice.

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Within the connes of this delineation, females were commonly identied as in some way decient compared to males, a view implicit in Piagets (1965) study of the rules of childrens games, but clearly articulated in the tendency for females to score lower on Kohlbergs stage achievement allocations. Kohlberg and Kramer (1969) for instance, identied stage three of the six interpersonal concordance as being the characteristic mode of womens moral judgement, whilst Turiel5 reported that although girls reached this stage sooner, he found them inclined to remain there as the boys overtook them and continued up the scale. A strong interpersonal bias in womens moral judgement, coupled with their infusion of feeling, was seen as causing them to become stuck at stage three, the stage at which the individual strives to be and to be seen by others as good, and where shared feelings and agreements take priority over individual rights. In fact, it was even argued that remaining at stage three might functionally benet women because it equipped them for resolving the sort of moral conicts they encounter on a day-to-day basis. Consequently, no great need was recognised for females to advance, especially to stages ve and six, those marked by an autonomous and abstract thinking more closely associated with masculinity. Women were simply seen as developmentally incomplete and, therefore, to be treated as childlike, aberrant, or as lesser forms of the male. Gilligan largely accepted this developmental model, her own work identifying the same association between sex and particular stages of moral development. Where she fundamentally disagreed with Kohlberg and his allies was in respect to the hierarchical nature of these stages. This she saw as erroneously favouring the separateness of self over its connection to others, arguing that if viewed non-hierarchically, the moral development of women could be examined on its own merits and in relation to the particularity of womens social experience. Furthermore, in reinterpreting her own and others research, Gilligan maintained that women do in fact complete Kohlbergs structural progression from the pre-conventional to the post-conventional but saw this development as represented by a qualitatively different sequence comprising three levels and two transitions. Once again, each stage was thought to constitute a more complex understanding of the relationship between self and other; however, for women the transitions were said to involve a critical reinterpretation of the moral conict between selshness and responsibility. In order to ensure survival, the individual female is, as before, seen as initially focused on herself, but transition to the second level of judgement is marked by discovery of responsibility, a move towards social participation and its fusion with the
5 Cited in Gilligan (1977, p. 489).

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maternal concept of morality.6 Women can thus present a new conception whereby judgements based on self are regarded as selsh, and where the relationship of self to others is understood in terms of responsibility and a need to care for the dependent and unequal. A problem arises, however, because proclamation of self-worth on the grounds of maternal morality generates conict between self and others, since it is only others who are the recipients of moral care; the self is excluded, direct expression restricted and an imbalance thereby created. The second transition is marked by a reconsideration of responsibility and relationships in an attempt to resolve this conict, and at the third and nal level, the criterion of goodness is transformed into that of truth. Blind self-sacrice is now rejected on the grounds of its power to hurt, and care becomes the self-chosen principle of judgement which, while remaining specic in its concern with relationships and response, becomes universal in its condemnation of exploitation and hurt. Gilligans ethic of care thus attributes a distinctive construction of moral problems to women, one which develops through a sequence of increasingly complex understandings of the relationship between self and other, and wherein the events of womens lives intersect with their feelings and thoughts such that selsh concern with individual survival is counterpoised by the responsibility of a life lived in relationships. Once thought of as the expression of a different rather than inferior social and moral understanding, the moral domain of Woman could be understood as characteristically contextual, connected and narrative, and her moral development as tied to communication and responsibility in relationships. Thereafter, womens moral dilemmas could be seen as arising from conicting responsibilities rather than competing rights, their resolution requiring a mode of thinking that depends on an awareness of the connection between people. Gilligan went on to identify a distinct moral language or voice for women, one bounded by an obligation to exercise an ethic of care, and one whose use distinguishes them from the men in Kohlbergs studies and supplies the decisive reason for womens failure to develop according to his classication. Gilligans work resulted in two major achievements. It produced a radical critique of traditional psychology which as well as exposing the employment of all-male research samples as methodologically awed in their claims to representativeness, attacked its devaluation of a feminine orientation. More importantly however, it offered a novel presentation of the female self and of the nature of sexual difference derived from the
6 For a detailed discussion of womens moral development, see Gilligan (1977, pp. 489

509) and (1982, pp. 64127).

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empirical study of real womens lives. By carving out an area in which Woman became the object of inquiry and by exploring . . . the dissonance between psychological theory and womens experience (Gilligan, 1986, p. 325), she produced knowledge claims concerning actual women, their basic orientations and their approaches to life and relationships. In fact, in terms of its nature and objectives, her work was in no way extraordinary compared to that produced by her contemporaries in other academic disciplines. Challenging established bodies of knowledge, their organisation and their fundamental concepts and premises, exposing sexist or patriarchal bias and positing the study of women and their experiences as proper objects of academic inquiry, were the tasks feminist scholarship set itself during the seventies and eighties. They were intended to cure the maladies of male-dened knowledge and theory, and to generate curricula reforms and new educational structures,7 and the ethic of care can easily be seen as just part and parcel of this wider corrective and reconstructive mission of academic feminism.8 Yet Gilligans different voice, which she herself described as a modest attempt to produce a more encompassing perspective on moral reasoning (Gilligan, 1982, p. 4), not only became a classic academic text in its own right, it had a dramatic and far-reaching impact upon feminism in general. What was extraordinary about the ethic of care, and what underpinned its profound impact and continuing success beyond the disciplinary limits of psychology, derives neither from a widespread acceptance of Gilligans ndings nor a rm belief in their scientic truth.9 The key element was the promise her work held for academic feminism, both as an institutional movement and as part of the wider struggle of women.10 This promise incorporated a vision of womens reality premised upon the valorisation of a female nature whose portrait, painted with privileged colours, transformed those values and qualities traditionally despised as signs of weakness and inferiority into sources of moral strength. In addition, it also embraced a vision of human relationships and of society grounded upon the primacy of human connectedness, wherein care and compassion are
7 This is evident in the political debates within the Academy concerning the foundation of Womens Studies departments and the emergence of feminist perspectives approaches in all subjects. For a discussion see Evans (1983); Differences. Also, for a discussion of the impact of feminism in the Academy, see Langland and Gove (1981); Spender (1987). 8 See, for example, Gilligan (1986) where she clearly sets her work within this reconstructive mission of academic feminism. 9 In fact, both her methodology and the substance of her arguments were subsequently the target of considerable criticism, not least for the negative consequences they might hold for real women (supra, n.1). 10 For a different explanation of the continuing debate on Gilligan, see Davis (1992).

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seen as fundamental and where emotions, peaceful co-operation, empathy, friendship and responsibility are aspired to rather than universal, abstract, rational principles (autonomy, freedom, justice, equality and rights). The promise of the care perspective, therefore, embodies both a feminine and a feminist ethic of care (Gilligan, 1995, p. 122). The rst points to the relational world of women as it appears within a patriarchal order grounded upon notions of abstract justice and contractual obligations. And the moment the otherwise unspoken or dismissed voices of this world are listened to, a space opens into which the second emerges calling for a displacement of the patriarchal construction of relationships. Although voiced by women, this feminist ethic promises a social order in which a relational voice speaks not only for and of women but also for an alternative model of human relationships generally and a new societal blueprint for all.11 In positing this alternative vision, the feminist ethic of care thus becomes a powerful standpoint for social critique and a site of resistance to a male-orientated, patriarchal vision of society, but one which carries a promise for the future realisable only if womens different voice is heard. Understandably, the promise offered by the care perspective was not easily resisted, especially in disciplines such as politics, sociology and moral philosophy, where normative concerns, questions of is and ought, are of major signicance. This is not to suggest that such normative values had not been advocated previously; there already existed a well-established philosophical tradition of doing so.12 Now, however, in being identied specically with the female nature, their advocacy acquired a new vitality, force and meaning because their realisation was no longer a matter of theoretical speculation. Here was an extant reality of alternative notions of self and relationships in which the is and ought coincided. Here was living proof of the possibility of the ought, and proof premised upon the most unquestionably female of all qualities, namely the childbearing body authenticating the mother-child relationship as the original source of care (Gilligan, 1982, pp. 78; Noddings, 1984, pp. 128131; Held, 1987, pp. 113115; Ruddick, 1980 and 1987). Maternal thinking, the special kind of reasoning seen to derive from womens experience of mothering, came to be seen by many as the driving force in building a feminist
11 For the ethical and political vision grounded upon the ethic of care see Hilkert Andolson et al. (eds) (1987); Held (1993); Feder Kittay (1999). 12 Feminist philosophers have attempted to establish an alliance between the normative framework grounded upon the care perspective and moral values and qualities associated with the philosophy of such diverse philosophers as Aristotle and Hume. See for example Baier (1985, 1987) and Komter (1995).

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politics whose grundnorm was the relational care-taking woman (Ruddick, 1989, pp. 127251; Clement, 1998, pp. 8997).13 Ethical and political discourses also accepted this maternal thinking, wrought of relationships of love, care and responsibility, as capable of transforming knowledge and precipitating reconstruction of social relationships of power, citizenship, political participation and democracy (Ruddick, 1980; Benhabib, 1987; Dietz, 1987; Held, 1993, pp. 174214; Tronto, 1995; Mansbridge, 1998; Sevenhuijsen, 1998, pp. 6989). Academic feminism was thus able to offer a coherent normative framework which claimed validity far beyond the narrow limits of specic disciplines: When a relational voice sets the key for psychology, political theory, law, ethics and philosophy, it frees the voices of women and men, and also the voices of the disciplines from patriarchal structures (Gilligan, 1995, p. 125).14 Not only did it meet the primary political commitment, as exemplied in the immediate discipline-oriented concerns with critique of specic knowledge, it simultaneously addressed sensitivities to the wider political objectives of the womens movement. After all, academic feminism had never ceased to afrm its wider political nature. Its very emergence had been seen as a kind of expansion of the womens movement into the Academy, the creation of another arena of struggle. It was always hoped that the transformations academic feminism engendered would eventually feed back to the womens movement in the service of its principal objective, the transformation of womens social position. Now it could full this wish because norms and values derived from womens different voice provided a springboard for a critique of the dominant male-orientated ones in specic academic disciplines and, at the same time, offered coherent, tangible and realistic proposals in respect to the pragmatic concerns and objectives of the womens political movement. Herein lay both the promise of the care perspective and its appeal to academic feminism. By marking that previously seen as utopian with the possibility of realisation, the concept of a different voice struck a chord at the heart of academic feminism by offering a much welcome bridge between local political concerns and wider political objectives.

13 For a critique of the relevance of the care perspective to peace studies, see Kaplan (1994). 14 Some advocates of the care perspective also argued that womens relational voice remained untainted by differences of culture, race, or ethnicity. See, for example, Harding (1987); Eugene (1989); Collins (1992).

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F EMINIST L EGAL S CHOLARSHIP, THE C RISIS OF S UBJECTIVITY AND R ELATIONAL J URISPRUDENCE

We are here, not because we are law breakers; we are here in our effort to become lawmakers (Emmelie Pankhurst, speech from the Dock, October 1908). The goal of reconstructive feminist jurisprudence is to render feminist reform rational (Robin West, 1988, p. 68).

Law too has been unable to resist the seductive promise of the ethic of care, its impact upon feminist legal scholarship being neither insignicant, temporary nor monolithic.15 The normative stock the care perspective made available to feminists in the eld of law was generous and versatile enough to appear always ready to accommodate their needs. Yet, in contrast to its achievements in other academic disciplines, here the promise failed to deliver. Neither misapprehensions nor misapplications were responsible for this failure however; it was due instead to the specic objectives posed by feminist legal scholarship and to their underlying rationale. Womens political movement has been acknowledged as the lifeblood of feminist scholarship (DuBois et al. 1985, p. 8), but the immediate grounds for the existence of the feminist Academy has been critique, correction and reconstruction of theoretical knowledge rather than political objectives aimed at the transformation of womens social reality.16 Any contribution to such transformation, however desirable, has been seen as more of a bonus than as stemming from immediate and primary local concerns which is not to suggest that in perceiving its own (local) objectives as separate and distinct from those of the feminist movement (Evans, 1983; Brunt et al., 1983), academic feminism denies the political nature of its enterprise, simply that it tends to acknowledge that the measures of its success, its legitimacy, even its political validity, lie within the limits of its encounter with theoretical knowledge.17 Direct reference to or impact upon the world of real women (the domain proper of the movement), is, therefore, neither inevitable nor necessary, either ethically, politically or as a measure of the validity of the feminist knowledge produced. Feminist legal scholarship however stands in marked contrast to this general situ15 This inuence has been continuous, and although initially particularly strong in North

America, has recently resurfaced in the U.K. See, for example, Bridgeman (1998); Fox (1998); Harvey (1999); McGlynn (1999); Smart and Neale (1999). 16 For a discussion of the relationship between academic feminism and the womens movement see Evans (1983); Brunt et al. (1983); Sheridan (1990, pp. 4452). 17 For a discussion of the relationship of feminism and theoretical knowledge, see de Lauretis (1986); Grosz (1986, 1987).

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ation, for here no such delimitation of rationale, objectives and legitimacy can easily be identied. Though a complete history of feminist legal thought has yet to be written, there is a common understanding that the main origins of our modern engagement with law are to be found in the nineteenth century, in womens writings and struggles concerning equality and civil rights. These women not only argued and wrote about law, they organised politically to change it. And whilst true of campaigns for suffrage and other political rights, this can also be said of the numerous contemporary struggles directed against discrimination or aimed at self-determination. With womens discourse about law and their political praxis both focused on legal reform, legal change was often identied as the prime objective, both of the womens political movement and of feminist legal thought alike. A special relationship between feminist critiques of law, the politics of legal change and the objectives of the womens movement, has therefore evolved such that not only is a feminist engagement with law seen as symptomatic of the feminist movement aiming to transform womens reality, but the transformation itself is frequently understood within the narrow connes of a politics of legal change. Part cultural heritage of the Enlightenment,18 part historical legacy of nineteenth century womens politics, this specic relationship, premised as it was upon an understanding of law as both the order to be ordered (through feminist critique and reconstruction) and the ordering order (with a politics of legal change to secure women justice and fairness), has profoundly inuenced the apprehension of the modern feminist project in law and with specic implications for its objectives, nature and legitimacy. To begin with, it set out the proper terrain for a feminist engagement with law as largely restricted to a confrontation of the negative consequences law has upon womens lives and the reconstructions designed to alleviate these.19 As it was for our foremothers, what matters
18 It was in the philosophical writings of the Enlightenment that law was rst posited as the Other of society, a necessary assumption for its being capable of acting and impacting upon social reality. For a discussion see Carty (1990, pp. 68). 19 For example, see how theoretical engagement with law is inexorably linked with a politics of legal change and its impact upon the reality of women: Smart (1984, esp. pp. 323); Brophy and Smart (1985, pp. 915); Kingdom (1985); McCann (1985); Stubbs (1986); Wishik (1986, pp. 7275); Littleton (1987); Stang-Dahl (1987, p. 12); Bottomley and Conaghan (1993, pp. 15); Flynn and Lawson (1995); Kaye (1997); Mackenzie (1999). And even in feminist work primarily concerned with the legal discourses power to construct female identities, there is an implicit understanding that the rationale of the analysis lies in the failure of the construction to respond to the reality of women. For a discussion, see Drakopoulou (1997).

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most to we feminists studying law today is the negative impact it has upon womens social reality and how we counter it. Whether we apprehend law as a body of prescriptive rules, a social institution or a theoretical body of knowledge, we feel obliged to interrogate and scrutinise it because of its effect upon women, and nd our theoretical engagement with legal knowledge engrossed by direct, imminent concerns with the transformation of womens reality. Yet, once the feminist project in law is delimited in this way, it becomes overwhelmingly oriented to the normative;20 an orientation which not only serves to valorise laws normative aspects, but also denes the means of the projects ethical and political legitimacy. The effectiveness of a critical engagement with laws discrimination against women or with the way law reects, reinforces, excludes, disempowers, or constructs them, hence comes to be assessed by recourse to the improvements any resulting normative proposals might produce for real women. Consequently, whereas for feminists working in other disciplines, their particular project and its legitimacy can be exhausted within the boundaries of that discipline, in law, feminist engagements remain steadfastly predicated upon the social. The lack of a clear demarcation between the political validity of the theoretical engagement with law and the politics of legal change has led to a conation of the local objectives of the academic engagement with law and wider ones belonging to a feminist movement aiming to transform womens reality.21 Moreover, this conation not only indelibly marks the feminist project in law, accounting for a marked degree of singularity within the feminist academy, it has also been instrumental in respect to the crisis of subjectivity in feminist legal studies. The material feminist scholarship uses, both in critiques of law and in attempts to reconstruct it, relies on knowledge claims about women which the Woman of the feminist movement makes, and, in so doing, adopts these claims as the epistomological grounds of feminist legal knowledge. This is a key difference between law and other academic disciplines, such as philosophy, history, literature and even those social science disciplines most concerned
20 For a discussion of the normative in feminist legal scholarship see Grbich (1990). The

normative nature of the project is evident even when analysis focuses on legal ideology, method or reasoning, as account is taken of their impact upon womens lives. See, for example, Thornton (1986); Allen (1988). The privileged position of the normative is further evident in the limited success of ideas about the development of a feminist jurisprudence embracing theoretical accounts of law such as those which the work of Janet Rifkin (1980) develops. For a discussion see Smart (1989, pp. 6672). 21 For examples of this conation where the feminist movement and feminist engagement with law are often used interchangeably see Bottomley et al. (1987); Littleton (1987); Frug (1992).

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with the social reality of women. In the other disciplines neither the truth nor validity of knowledge claims necessarily depend upon the social, upon the positing of a feminist subject. But even when they do, for example in sociological inquiry or policy studies, empirical methods (such as surveys and interviews) are available by which these claims to truth can be substantiated through recourse to the voice of real women. For law however, there are no means of attaining true and valid knowledge claims save those articulated by the representative voice of an all-knowing feminist subject.22 Because of this, in questioning the possibility of the feminist subject, one simultaneously questions the projects ability to produce credible critiques of law and credible normative proposals for its reform, the exact two pillars upon which much of its ethical and political justication rests. Therefore, it becomes clear why, for we feminist legal scholars, questions of subjectivity have proven so difcult to answer, why considering them has been such a particularly painful process, and why, in attempting to answer them, feminist legal scholarship has consorted so closely with the care perspective.23 Elsewhere, questions of subjectivity are easily accepted as a source of fruitful debate enhancing feminist knowledge, but in law they destabilise our project and undermine its political and ethical legitimacy, causing a crisis of subjectivity which can ultimately jeopardise the project itself, at least as it is currently apprehended.24 It has been in endeavouring to nd a means of overcoming this crisis that feminists have summoned the care perspective to their aid.
22 See, for example, Bartlett (1990) who denes feminist legal methods as: a) identifying and challenging those elements of existing legal doctrine that leave out or disadvantage women; b) feminist practical reasoning dened as reasoning from an ideal in which legal resolutions are pragmatic responses to concrete dilemmas; and c) consciousness raising dened as seeking insights and enhanced perspectives through collaborative or interactive engagement with others based upon personal experience and narrative. See also Wallbank (1995). 23 Some have argued that the reception of the ethic of care in law is connected with communitarian arguments which dominated the emergent critical studies movement in the United States and which formed the basis for its critique of the jurisprudence of liberal individualism. But this does not account for its continuous inuence on law, or its inuence in countries such as Holland, the U.K. or Germany where such arguments have not been prominent. For a discussion of the relationship of the ethic of care and communitarianism see Hekman (1995, pp. 5062). 24 Law apart, negative assessments of the impact of questions of subjectivity have only been made in relation to the womens movement which appears to support my idea of conation. Thus, it has argued that questioning the Woman of feminism undercuts the possibility of a womens political movement, and, to overcome this difculty, the movement should utilise Woman strategically. See for example Spivak (1984) and Grosz (1994); de Lauretis (1994). Interestingly enough the very same arguments have been put forward in relation to law. See Bottomley and Conaghan (1993, pp. 15); Sandland (1995).

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Broadly speaking three phases of this crisis of subjectivity can be identied. In each, feminist legal scholars have drawn upon the normative stock of the care perspective in order to develop a specic form of relational jurisprudence to meet the specic needs of the feminist project in law. Throughout, the locus of the crisis has been the concept of the legal subject, that which, in representing laws understanding of humanity, comprises the fundamental reference for positing legal norms. Since it is from this understanding that legal norms derive, feminist claims about the legal is and the legal ought, although premised upon the social, upon the woman of the feminist movement, have had to address laws understanding of selfhood; they have also had to be measurable against the subject before the law.25 The opening shot in the crisis of subjectivity was red at the jurisprudence of liberal individualism and its principles of equality and rights. Previously regarded as the animating force of modern feminism (Mitchell, 1983, p. 386), these now came under severe attack,26 it being argued that reasoning in terms of equality begged the question equal to whom? and that the answer invariably pointed to an equality with men.27 At the same time, formal equality, with its rhetoric of likeness, was seen to be based on the assumption of a much greater degree of sameness between the sexes than actually existed. Hence were the courts damned for enforcing a legal equality which constructed the legal woman in terms of a uniformity which negated Her specicity and which did little to improve Her social conditions. Here was an equality which falsely presumed men and women to be similarly situated in society and thereby served to further consolidate existing power relationships; in effect it was just another phallocentric precept enmeshed and ensnared by the very gender system feminists were opposing. Recourse to abstract rights was similarly criticised for failing to address specic social relations and sexual divisions. Since universal rights rely on being all-encompassing, and because they present human beings as atomistic, rational agents whose existence and interests ontologically precede society and whose needs and capacities are independent of immediate social or political conditions, their use is bereft of reference to specic situations or relationships. Laws business in this case is simply to ensure rights to all. But, asked feminists, if rights must be equally distributed
25 For one of earliest articles on this issue in the English literature, see Adams and

Minson (1978). For a discussion of the concept of difference in feminist theory, see Barrett (1987); Rothenberg (1990). 26 For one of the sharpest and most thorough critiques of the jurisprudence of liberal individualism, see Nafne (1990). 27 For a critique of the principle of equality, see Finley (1986); Littleton (1987a); Hasse (1987); Irigary (1989).

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by law without regard to specic needs or social standing, how can they provide a secure and stable normative basis for reform proposals which address the particularity of womens social reality?28 In positing a single, abstract, sexless bearer of rights before the law, liberal jurisprudence, they argued, simply masked the fact that maleness was taken as the human norm; in short, that the legal subject was a male subject. With the subject identied as gendered it became clear to many feminists that reasoning in terms of equality and rights could not sustain the objectivity and neutrality of law, and why a feminist politics of legal reform had to be grounded upon norms reecting values and ideals which represented the female sex:
Reconstructive feminist jurisprudence should set itself the task of re-articulating these new rights in such a way as to reveal, rather than conceal their origin in womens distinctive existential and material state of being (West, 1988, p. 61).

The initial trauma of losing a subject endowed with equal rights was overcome by identifying distinct female constitutive elements as the basis for constructing a sexually differentiated legal subject able to account for the difference of womens lives and experiences.29 Since the knowledge claims about women articulated by the ethic of care met this need, all law had to do was institutionalise womens relational thinking. Against the voice speaking about equality, freedom and rights and a mind thinking in terms of justice, was juxtaposed a voice speaking about connection, not hurting, response to others and responsibility a mind thinking in terms of care.30 A new understanding of the subject before the law and of law as an institution was made available, but also a vision of the new society this would affect:
Feminist scholars working with law can now look at the method by which a new world is built and at the same time to argue about the substance of what that new world should be (Menkel-Meadow in DuBois et al. 1985a, p. 57).

With the concept of difference acquiring an increasing signicance within feminist legal scholarship, it was not long before this legal subjectivity based on a feminine way of being and so passionately and meticulously
28 For a feminist critique of rights see Olsen (1984, pp. 390404); Kingdom (1985); Sevenhuijsen (1986, pp. 334339); Smart (1989, pp. 138159); Fox (1998). 29 Such qualities were seen in both biological and cultural terms. The sameness/difference debate started in the United States as a debate concerning maternity leave provisions which were challenged as violating federal anti-discriminatory laws by introducing better treatment for pregnant women than non-pregnant workers who could not work for other physical reasons. For a discussion, see Scott (1988); Vogel (1990). 30 For one of the best discussions on the relative merits of a jurisprudence grounded on liberal individualism or the ethic of care see DuBois et al. (1985a). See also Littleton (1987a); West (1987, 1988).

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formulated, was itself under attack. Differences within the category of Woman, differences registering diversity of situation and experience, now also had to be allowed for because social class, race, religion, ethnicity, sexual orientation, all came to disrupt the xed unitary legal subject demanded by claims to legal justice, objectivity, truth and rationality. If the supremacy of the all-encompassing male legal subject had been rejected as inadequate, why should the newly proposed one, despite its being to some degree inclusive of the female experience, not be challenged in the same way?31 The genie was out of the bottle and the possibility of a denite and representative female legal subjectivity grew more and more remote. Whether the legal subject was an autonomous individual endowed with equal rights or a caring one embedded in a web of relationships and responsibilities, it seemed incapable of encompassing the complexity of womens lives, and, consequently, powerless in curing the malady the centrality of difference had caused.32 Feminists ceased to search for a single, appropriate legal subjectivity and shifted their emphasis to the legal system itself, calling for one which . . . makes difference a cause for celebration, not classication, and . . . recognises that the subjectivity of the law-maker is not the whole of the reality (Scales, 1986, pp. 1376 and 1380). They now scrutinised laws methods and reasoning, repudiating the view that legal problems should be faced as if they were mathematical problems, with judgement requiring application of predetermined, specic modes of legal reasoning to ensure similar events and situations secured similar solutions irrespective of the identities of the parties involved. What Benhabib (1987) calls the standpoint of the generalised other, albeit neutral and objective, was rejected as incapable of providing justice because it abstracted the subject from his or her individuality and concrete identity. The new call was for law to abandon objectivity, abstraction and universality, and concern itself instead with particularity, and, here again, the care perspective was evoked to help cope with the problem of difference. In being built upon the notion of self as foundationally connected with others, a relational mode of reasoning embedded in the ethic of care could, it was thought, prioritise attention to context and
31 For calls for the incorporation of the concept of difference in feminist legal thought, see Thornhill (1985); Caine (1989); Kline (1989); Harris (1990). 32 Carol Gilligans early work has been heavily criticised as essentialist (see, for example, Martin (1994)), and similar criticisms have been raised against relational jurisprudence in juxtaposing caring and liberal subjects. In her later work, in an attempt to answer such criticisms, Gilligan developed her methodology to take into account difference in race, class and ethnicity (Gilligan et al., 1997). For a defence of Gilligan against the charge of essentialism, see Heyes (1997).

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particularity rather than abstraction, and promote a viewing of the other as an individual with a distinct history, identity and affective-emotional constitution. Judgements made on this basis, rather than address isolated individuals connected to others by free contractual obligation or by duty, would concern subjects situated in a web of relationships and acting out of a responsibility to respond to the needs of others. This approach would allow the observer (whether jurist, judge or legislator) to:
Notice the mutual dependency of people . . . Seek out and consider competing perspectives, especially those of people dened as the problem. Locate theory within the context . . . challenge abstract theories in the light of their practical effects. Connect the parts and the whole of a situation? (Minow, 1990, p. 213).

Once relational reasoning became the laws reasoning, governed as it would be by the norms of equity and complementary reciprocity, law would contribute to, rather than exclude, difference (Benhabib, 1987, pp. 9394). Persephone would then emerge, the juxtapositioned image of Portia, a feminine, caring and personal justice grounded upon, responsibility, love and co-operation would become the norm of legal reasoning, the aspiration of law.33 As Gilligan (1987, pp. 2425) herself stated:
Within a justice construction care becomes the mercy that tempers justice . . . a decision to modulate the strict demands of justice by considering equity or showing forgiveness . . . and justice in the care perspective becomes understood as respect for people on their own terms rather than assuming one set of terms.

Despite these concerted attempts to transform the masculine subject into one inclusive of feminine experience or to accommodate specicity by advocating a feminine mode of reasoning, they remained impotent in alleviating the crisis of subjectivity that continued to so torment feminist legal scholars. Now however, another blow was struck against the legal subject which even further intensied and deepened the crisis. This was dealt by questioning the very possibility of a feminist subject able to articulate true and objective knowledge claims about the category Woman. Since knowledge claims about women cannot reect a real female identity, be it sexually, ethically or biologically dened, they cannot be employed in an unproblematic way. According to this view, subjectivity is instead the outcome of numerous discourses and discursive practices which together construct and value women as sexed/gendered subjects, and law must therefore be seen as but one practice amongst many, whose power rests
33 It is the association of women with this kind of reasoning that has led some to argue that an increase of women in the legal professions and the judiciary may have benecial impact, not only for women but for the whole system of justice and the community. See Menkel-Meadow (1985); McGlynn (1999).

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in its ability to create gendered subject positions a process Smart (1992, p. 34) calls the gendering strategy of law. Feminist legal thought could no longer identify appropriate norms to answer a legal subject tting either the generality or the particularity of female experience; having become so tarnished, the face of the subject before the law had virtually faded away. It was neither male nor female, generalised nor concrete, and deprived of any ontological integrity, there was no certainty as to whether it existed at all. The new objective was now to reveal and undermine laws power to function as a gendering strategy and to identify modes and positions of speaking which, when introduced into the process of law, would benet women and the feminist mission (Sevenhuijsen, 1998, pp. 3031). Here, once again, relational jurisprudence was employed. But just as feminist legal thought had distanced itself from notions of legal subjectivity, so the ethic of care was reconceived of as void of any attachment to empirical subjectivity. No more a set of values and qualities constitutive of a specic mode of cognitive development, or a feminine way of reasoning and being, it was now understood as a special kind of normative practice providing standards by which other practices are judged according to whether they:34
. . . maintain, continue and repair our world so that we can live in it as well as possible. That world includes our bodies, and our environment, all of which we seek to interweave in a complex life sustaining web (Fisher and Tronto, 1990, p. 40).

Employed in this way, the care perspective avoids the need to answer to an a priori posited subjectivity, yet includes the process by which subject positions are constructed. A discursive space is thereby opened wherein relationships rather than competition are valued, negotiation is privileged over conict, mutual co-operation and responsibility over selfinterest, and where the voices of trust, love, empathy and the need to care and be cared for are authorised. Legal judgement becomes a process of not only having to listen to and take account of these voices, and pay attention to the concrete situations and the demands of relationships of dependency, but to ask questions and provide answers as to the best way
34 The meaning of care as a process was developed particularly in the work of Fisher

and Tronto (1990) and Tronto (1993). Here, care has four phases: caring about is not conditioned on love or connection. It is an orientation rather than a motivation, and has to do with understanding needs and selecting means and choosing various strategies of action; taking care of means taking responsibility for initiating caring activities assuming responsibility for the identied needs including how to respond to them; care giving is the concrete, the physical work, necessary for meeting the needs for care; and, nally care receiving includes the reactions, the response of those towards whom care is directed. Attention to these reactions is important for the quality of the care process and for the motivation of those who care. For a discussion see Sevenhuijsen (1998, pp. 8286).

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to deal with vulnerability and suffering and evaluate caring responsibility. It must assess needs and identify ways to meet them, provide a balance between conicting needs and furnish a situated judgement rather than a nal solution grounded upon universal criteria.35 Implementing this process will, it is envisaged, transform law into a more humane order, such that a caring justice, irreducible to a set of alternative normative rules, and whose . . . listening, responsiveness, attentiveness and the commitment to see issues from different perspectives . . . will offer a sound basis for judgements more suited to women and to feminist objectives (Sevenhuijsen, 1998, p. 86).36 It posits a fundamentally different notion of law and justice in place of one framed in terms of equality and rights, forms a standpoint of resistance to and critique of dominant legal discourses, and also provides a means for their transformation. In a transition akin to that described from a feminine ethic of care to a feminist ethic of care (Gilligan, 1995, pp. 122123), relational jurisprudence is thus reconstituted as a socio-political vision disassociating itself from a feminine mode of reasoning and judgement, divesting itself of any particular subject before the law, and consequently, it is hoped, nally laying the crisis of subjectivity to rest.37

A C RITIQUE OF R ELATIONAL J URISPRUDENCE OR R AISING Q UESTIONS ABOUT THE F EMINIST P ROJECT IN L AW

To formulate a new feminine essence through a series of new equations relating cause and effect, attribute and substance, surface and depth, alterity and negativity is neither sufcient nor necessary as a premise to the task of empowering women (Braidotti, 1991 p. 165).
35 For a discussion of the signicance of trust for an ethic of care see Baier (1985, 1994).

An example of how instituting an ethic of care in the process of law might transform the legal system is to be found in Smart and Neales work on family law, especially in relation to the process of divorce where they identify four principles derived from the ethic of care: actuality, care, recognition of selfhood and recognition of loss (Smart and Neale, 1999, pp. 192197). See also the work of Sevenhuijsen (1991, 1998, pp. 90121) on child custody. 36 Some authors argue that instituting an ethic of care in law does not necessarily mean abandoning the principle of equality and rights or conceptions of distributive justice. They see both as able to work together, with the care perspective understood as a procedural means of arriving at a more balanced judgment concerning the application of universal values by taking account of specic needs and problems. For possible ways of achieving a synthesis of an ethic of care and an ethic of rights see Kroeger-Mappes (1994); Minow and Shanley (1996); Clement (1998, pp. 114122). 37 For a discussion of a feminist ethics of care see also Sevenhuijsen (1998, pp. 528).

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The crisis of subjectivity was precipitated by a disintegration of the conation of the local objectives of feminist legal scholarship and the wider ones belonging to the feminist movement that which has been so fundamental to the apprehension of our project in law; each of its phases was characterised by a dissolution of the relationship between knowledge claims about law inhabiting the legal sphere, and those articulated by the Woman of feminism inhabiting the social world. Knowledge claims about women had been so irrevocably tainted by questioning the feminist subject that any feminist legal knowledge could be dismissed as groundless. Ultimately the crisis of subjectivity in law was therefore an epistemological one, for whether specic questions concerned differences between women and men, amongst women, or the very possibility of a subject who could know the category Woman, the dispute was waged over the epistemological grounds upon which knowledge claims about women and law per se were articulated.38 In each of the three phases I have identied, relational jurisprudence was summoned in order to preserve the conation between the objectives of feminist legal thought and those of the feminist movement.39 It was eminently suitable for this task not only because of its rich normative stock, but more importantly, because in being identied with womens experience it provided norms which were already validated as female and therefore immediately available as a basis for positing a feminist legal ought. As such it comprised a sound basis for a reconstructed knowledge and fullled its promise to satisfy the primary objectives of feminist legal scholarship. However, it failed in this promise because whilst charged with curing an underlying epistemological afiction, it ended up merely patching its wounds. In repeatedly re-establishing the disintegration of the social and the legal by offering a normative framework upon which reconstruction of legal knowledge was based, it necessarily had recourse to knowledge claims concerning the Relational Woman, and thereby re-entered the trap of subjectivist epistemology. Thus, in the rst phase of the crisis, employed as a means of dealing with the problem presented by the universal subject before the law, the care perspective simply erected an opposing, yet similarly posited, subject. Modelled as laws universal subject was upon the Cartesian subject,
38 The same holds also for feminist critiques of the jurisprudence of liberal individualism because what was in fact at stake in these critiques was the epistemological foundation of feminisms demands for equality of women with men. 39 Of course, other feminist viewpoints were also available, but the care perspective was the only strand which managed to sustain a mainstream inuence upon feminist legal scholarship and to do so despite the radical transformations this scholarship underwent.

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epistemologically premised and ontologically substantiated through a link between thinking and existence, it stood in marked contrast to the caring subject, modelled upon the ethic of care, grounded upon a link between experience, embodiment and thinking. Yet both were essentially foundational, unitary, and exclusionary. Whilst the former lacked materiality and the latter was void of particularity of class, race or culture, both were metaphysically posited liberal jurisprudence, by political and economic theory; relational jurisprudence, by the ethic of care. Instead of invalidating the qualitative features of the liberal subject, relational jurisprudence simply constructed an adjacent replica substituting the question equal to whom? with different from whom? and offering no real solution to the central epistemological problem. The body remained the same, only its clothing had been changed. With the problem of subjectivity persisting, feminist legal scholarship dispensed with the single female subject before the law. It demolished the unitary subjectivity upon which valid feminist critique of law was hitherto based and dissolved it into many different women to yield a subject which, though still sexed, was faceless in advance of judgement. The hope was that those epistemological problems the concept of an a priori legal subjectivity (be it liberal or caring) delivered, would, thereby, be dissipated. Again relational jurisprudence was called upon, with Womans different voice providing a model for transforming laws reasoning in accord with real womens experiences. It was thus believed that relational jurisprudence would provide legal norms able to accommodate fragmented social identities by answering the particularity of the female subject before law. However, although relational modes of reasoning, by promoting a seeing justice in place of the blind, privileged difference within the legal system, it was only by recourse to the social, to the positing of an essential Relational Woman that legal scholars could ground their expectations of benets accruing to women. Here was the paradox. Although feminist critiques of law were epistemologically grounded upon positing a subjectivity which was sexed yet fragmented by difference, the feminist reconstruction of law was epistemologically grounded upon the positing of a notion of a caring female self, ontologically constituted in an affective mode of thinking. Relational jurisprudence, called upon to address the particularity of each and every female subject before the law, was, therefore, only able to do so by premising itself in the same subjectivist epistemology it was employed to address. The problem of subjectivity was ejected by the front door, but relational jurisprudence could not help but return it through the side window.

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The realisation that as long as feminist legal knowledge was premised upon a subjectivist epistemology the crisis could never abate, paved the way for rejecting the need for the notion of subjectivity altogether.40 The focus shifted to laws gendering power, with feminist critiques of law and proposals for its reform no longer needing to address the subject before the law. Recourse to notions of an authentic female self now seemed irrelevant, and the feminine ethic of care, in being inseparable from Womans different voice, had also to be abandoned. In its place appeared feminisms normative gift to the elds of ethics, philosophy and politics, a relational vision of the world which aggrandised and reformulated the feminist project in law. An image of a caring law and a caring justice emerged whose subject positions were wrought from the moral complexity of relationships and situations rather than the specicity of the female condition, a truly human justice, with benets accruing to everyone, not only empirical women. Breaking all ties with its sexed/gendered epistemological basis, caring justice was premised upon a set of important humanitarian ethical and political (Sevenhuijsen, 1998, pp. 2528; Tronto, 1995a, p. 18) values. These originated in feminist thought, but their validity depended, not on the benets accruing to women specically, but on the valorisation of feminist thought itself such that its ethical, political and philosophical orientation became the blueprint for the regeneration of the whole legal discourse. The important question for feminist legal scholars now became:
. . . how can we import the ideas emerging from feminist philosophy and political theory to try to transcend these modes of thinking particularly when they are productive of an uncaring legal system? . . . a system . . . which leaves most people wishing that they have never encountered it? (Smart and Neale, 1999, p. 189).

It is here, in the transformation of feminist moral and political norms into legal, that the ethical and political legitimacy of the project comes to lie. Previously, the benets claimed derived from an attachment of law to the specicity of Woman or Women and concerned the social reality of women. Now the benets would be arrived at through the triumph of feminist thought over male or patriarchal legal discourses.41 Distancing itself from a subjectivist epistemology in this way, subjectivist epistemology hoped also to distance itself from the crisis it had created. Yet in doing so, it also distanced itself from the modern apprehen40 Such developments followed feminist thought that questioned the possibility of an authenticated meaning of what a woman is, separate from the cultural conditions against which it has been formulated. For a discussion see Riley (1988, pp. 117), and Butler (1990). 41 For a discussion of feminism and morality see Sevenhuijsen (1998, pp. 3640). and for the signicance of moral values for a caring legal system see Smart and Neale (1997).

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sion of the feminist project. Collapsing the benets expected for women to humanity as a whole makes the single-minded pursuit of womens interests its least accurate description (Smart and Neale, 1999, p. 186). Of course, there is no real reason why this project for a caring legal system should be any less attractive than a feminist project responding exclusively to the interests of women. Indeed, why bother to continue to even speak about a feminist project in law? Why not simply refer to relational jurisprudence as but one strand of legal thought alongside the liberal, Marxist, or postmodern?42 In venturing to solve the problem of subjectivist epistemology, relational jurisprudence nds itself having to make an important and difcult choice. It must either abandon the modern apprehension of the feminist project in law or, in order to preserve the link with the material embodiment of the ethic of care, it must insist on a project whose validity and legitimacy lie in the reconstruction of legal knowledge specically for the benet of women. The former would be at the expense of the feminist project in law, but would overcome the crisis of subjectivity; the latter would preserve the current apprehension of the feminist project in law, wherein reference to the Relational Woman remains indispensable as the basis of reconstructive legal knowledge, but would mean accepting the problems of subjectivist epistemology. By posing the dilemma faced by relational jurisprudence in this way, I am neither advocating the ethic of care as grounds for a feminist critique and reconstruction of law, nor as a means for overcoming the crisis of subjectivity. My objective is simply to show that the inability of relational jurisprudence to solve this crisis is not due to the substance of its proposals, rather to the nature of the problem itself. As long as the political validity and ethical legitimacy of the feminist project in law remain allied to and dependent upon securing normative benets to women, the necessity of subjectivist epistemology cannot be avoided and the crisis of subjectivity will persist. Identifying the problem as being endemic to the apprehension of the feminist project, makes support for, or opposition to, relational jurisprudence irrelevant and shifts critique away from its achievements or otherwise, thereby suggesting the possibility of another, more fundamental venture a critique of the very nature of the project itself. Clearly, for those of us who still wish to pursue a feminist rather than humanist project in law, it is not enough to simply acknowledge the problem of subjectivist epistemology. We must become critically aware of it and explore how and why it emerged, and what its constitutive elements are. Yet transferring
42 For an example of the use of relational jurisprudence with no reference to the caring

voice of women see Wightman (2000).

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the grounds of critique in this way, does constitute a call for a choice of sorts; we can choose to ignore the crisis, continue with our law-making activity, and embark on another round of legal norm-pushing wherein ought becomes is only to be replaced by the next ought, or we can decide to delve to the heart of the problem. Choosing the latter requires a re-examination of fundamental questions which comprise the fabric of subjectivist epistemology. Thus we might retrace the links between our social and political system based on an absence or distortion of women and their experience, and the legal discourse which legitimates it; we could re-explore the modes in which female legal subjectivity (unitary, fragmented or constructed) relates to real women; or, we might re-think the subjectication processes of law and the political necessity of asserting female agency and subjectivity. Alternatively, we could try turning away from issues of representation of women in the legal norm and searches for truths about womens oppression by law. Here, we could opt for a reading of law in terms of sexual difference, and develop ruses and tactics for disturbing the meaning of the legal text to reveal its patriarchal ancestry the sex/gender system upon which law is founded. This would open a discursive space which allows for the process of re-considering the feminist engagement in law, its objectives and its ethical and political validity. Of what exactly this process will comprise, I cannot tell. It is a collective rather than individual enterprise. I have simply allowed myself to imagine, suggest and invite. The purpose of this paper was neither to provide a solution to the crisis of subjectivity nor prescribe a new path for our feminist engagement with law. What it essentially comprises is a call for us to reect upon the parameters of our thought, our apprehension of our academic project in law, ultimately, to problematize the problems before we resort to solutions. R EFERENCES
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Kent Law School Eliot College University of Kent Canterbury CT2 7NS E-mail: M.Drakopoulou@ukc.ac.uk