Dana Raigrodski, What Can Comparative Legal Studies Learn from Feminist Legal Theories in the Era of Globalization, 43 U. Balt. L. Rev. 349 (2014), https://digitalcommons.law.uw.edu/faculty-articles/405
University of Baltimore Law Review
comparative law, feminist legal theory
This article re-examines the field of comparative law and comparative legal studies through the lens of feminist legal theories/studies (FLT). It suggests that lessons learned from the development of FLT and insights from shared epistemology and methodology within FLT can inform the ongoing controversies within comparative legal studies and provide comparative legal scholars and practitioners with the tools to maximize the benefits of comparative legal studies in the era of increasing global interdependence.
Part II begins by briefly reviewing key controversies and critiques within comparative legal studies. It highlights the debate on whether comparative law encompasses a substantive area of law or is merely a method of inquiry, to suggest that FLT's efforts to move beyond similar dichotomies can help comparative legal studies regain relevance both in theory and in practice. It raises the question of whether comparativists should focus on similarities or differences amongst legal systems and the problems presented by comparative law's struggle with the relationship between relativism/multiculturalism and universalism, especially in light of tensions between the "West" and the "Rest" and despite efforts to infuse comparative legal studies with attention to historical, social, and political contexts. Similarly, Part II highlights an area of more recent critique among comparativists regarding comparative law's traditional focus on private law areas. The article will argue in later parts that FLT deconstruction of binary dualisms such as similarity versus difference and private versus public can bring important insights to these concerns within comparative legal studies.
Part III offers a critical examination of comparative law's treatment of similarities and differences and brings to the forefront a discourse of the "Other." It relies on feminist and critical race theories' challenges to the social and legal construction of sameness and difference-challenges to the dichotomization of self and other-in order to assist comparative law in unpacking otherness. It calls on comparativists to recognize that similarities and differences are not mere observable facts but are to a large extent socially construed and more importantly, in the service of certain ideologies and political agenda. Part IV complements Part III by examining the essentialist and ethnocentric stance from which most comparativists have construed similarities and differences. It suggests that comparativists can negotiate both essentialism and relativism by adopting feminist approaches calling for consciousness-shifting and fluid positioning that intentionally sees the world from multiple points of view.
Part V consequently offers a broader critique of the stance of universal objectivity that comparative law often presupposes and perpetuates, and builds on feminist jurisprudence about the production of knowledge and objectivity as epistemology. It challenges the dichotomy between knowledge (substance) and how we come to know (methodology/epistemology) and exposes its connection to oppressive male power and ideology. It suggests that comparative work can benefit greatly from a critical attitude towards alleged universal categories and claims to authenticity by questioning the neutrality of the comparison and by taking account of the impact of the self and the observer's perspective and experience on our comparisons.
Finally, Part VI calls for acknowledging comparative law as political practice, whether in the ways in which it "finds" similarities and differences and uses them to legitimize certain legal frameworks, or in the ways in which it construes and perpetuates private law, the distinction between private and public, and law in general as apolitical, non-ideological, and divorced from power structures within society. It uses FLT's explicit discourse of law as political practice, as an ideology of power, to call on those engaged in comparative legal studies and in comparative projects to be self-critical and recognize the power relations involved, whether we engage in harmonization and rule of law projects or in the seemingly mere intellectual projects of understanding and migration of ideas and legal concepts.