Wednesday, February 17, 2010

Boisseau and Thomas on Feminist Legal History

Feminist Legal History: Women and the Law in U.S. History, is a forthcoming collection edited by Tracey Jean Boisseau and Tracy A. Thomas, both of the University of Akron. The abstract to their Introduction is now on SSRN:
Feminist Legal History offers new visions of American legal history that reveal women’s engagement with the law over the past two centuries. The essays in this book look at women’s status in society over time through the lens of the law. The conventional story portrays law as a barrier or constraint upon women’s rights. While law has and continues to operate as a restraint upon women’s full participation in society, law has also worked as a facilitating structure. The overall picture gleaned from the snapshots in time offered in this book shows the actualizing power of the law for women. Women have used the law historically as a vehicle to obtain personal and societal change. Even more, women have used feminist theory to transform the law itself to incorporate an appreciation of gendered realities.

The introduction provides the context necessary to appreciate the essays in this book. It starts with an overview of the existing state of women’s legal history, tracing the core events over the past two hundred years. This history, while sparse, provides the common foundation for the authors, and establishes the launching point for the deeper and more detailed inquiries offered here. The introduction then provides an exploration of the key themes advanced in the book. In Part I, Contradictions in Legalizing Gender, the essays develop analyses of the law’s contradictory response to women’s petitions. The essays in this section provide evidence of law’s operation as a barrier, limiting women’s power and agency and challenge the assumptions that such barriers have been eliminated today. Yet the essays in part I also present a more nuanced historical picture. They show the law’s facilitation of women’s agency and power, often based on the same gendered norms that elsewhere produced limitations. Part II of the book, Women’s Transformation of the Law, shows women’s impact upon the law and illustrates how women changed the law to incorporate their own, gendered, perspectives. By “feminizing” the legal process and altering the substantive law to respond to women’s needs, women were able to shape the law in their own image.

The introduction concludes with an overview of feminist legal thought. An appreciation of such theory and methodology is important to understanding the lens through which the authors and advocates over time approached the problems presented. Feminist Legal History is not just a collection of stories about women. Instead, it is a feminist inquiry of the historical record, in which feminist theory illuminates the positions and motivating beliefs of women over time.

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