Table Of ContentGender Perspectives in Law 1
Dragica Vujadinović
Antonio Álvarez del Cuvillo
Susanne Strand Editors
Feminist
Approaches
to Law
Theoretical and Historical Insights
Gender Perspectives in Law
Volume 1
SeriesEditors
DragicaVujadinović,FacultyofLaw,UniversityofBelgrade,Belgrade,Serbia
IvanaKrstić,FacultyofLaw,UniversityofBelgrade,Belgrade,Serbia
The series ‘Gender Perspectives in Law’ discusses all-encompassing gender-com-
petent legal questions. Having a gender-competent approach is required when
considering the highest values and normative standards of modern international,
European,andnationallaw.Raisingawarenessaboutgenderequalityissuesmeans
investing in the creation, interpretation, and implementation of legislation that is
more fair, just, and equitable and will also contribute to a comprehensive under-
standing of social reality, as well as to gender-competent political, legal and eco-
nomicdecision-makingandpublicpolicies.
The series accepts monographs focusing on a specific topic, as well as edited
collectionsofarticlescoveringaspecificthemeorcollectionsofarticles.
ć (cid:129)
Dragica Vujadinovi
(cid:129)
Antonio Álvarez del Cuvillo Susanne Strand
Editors
Feminist Approaches to Law
Theoretical and Historical Insights
Editors
DragicaVujadinović AntonioÁlvarezdelCuvillo
UniversityofBelgrade UniversityofCádiz
Belgrade,Serbia Cadiz,Spain
SusanneStrand
ÖrebroUniversity
Örebro,Sweden
ISSN2731-8346 ISSN2731-8354 (electronic)
GenderPerspectivesinLaw
ISBN978-3-031-14780-7 ISBN978-3-031-14781-4 (eBook)
https://doi.org/10.1007/978-3-031-14781-4
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Preface
The book series Gender Perspectives in Law is a systemic attempt to provide
all-encompassing gender-competent legal knowledge. The term gender-competent
legalknowledgeisusedtoaccentuatethereconsiderationofdifferentfieldsoflegal
knowledge from the point of gender equality approach and with offering relevant
andconvincingargumentsinthatregard.Thistermissometimesreplacedwiththe
term “gender-sensitive,” which also refers to awareness about the importance of
gender equality approach and to its implementing in theoretical and scientific
knowledgeproduction.
Having a gender-competent approach in legal education is required when con-
sidering the highest values and normative standards of modern international,
European, and national law. Raising awareness about gender equality issues
among researchers and academic scholars in the field of law and other
multidisciplinary fields relevant for legal theory and practice, educating in a
gender-sensitive manner law students (future lawyers, judges, prosecutors, public
officials, members of parliament, and governmental bodies), as well as students of
humanities-social sciences, means investing in the creation, interpretation, and
implementation of legislation that ismore fair, just,and equitable. Prosecutors and
judgesinparticular,butalso otherlegalprofessionalsinallfieldsoflegalpractice,
publicadministration,andpolicydecision-makingneedtobetrainedandsensitized
inordertoencourageagender-sensitiveapproach.Thiswillcontributetoamorerich
and comprehensive understanding of social reality, as well as to gender-competent
political,legal,andeconomicdecision-makingandpublicpolicies.Inotherwords,it
meansinvestingintothefuturebasedonmoregenderjusticeandmoresocialjustice
andhumanrightsprotectioningeneral.Intheend,itwillhelpfulfilltheessenceof
contemporarylaw—equalrespectandprotectionforallindividuals,whichleadsto
theirequalopportunitiesanddiminishesthepossibilityofgenderdiscrimination.
This book series, Gender Perspectives in Law, attempts to cover all relevant
subjects of legal knowledge from a gender equality perspective. The plural desig-
nation is entitled because there is a plurality of feminist understanding of gender
equality issues generally speaking and insofar also within the law. The call for
v
vi Preface
papers was open for professionals in legal, political, sociological, and historical
fields of interest with an attempt to cover, as much as possible, specific relevant
topics,inordertoprovideanoverviewofthegender-competentdeconstructingand
reconsidering the way they are articulated in the dominant thought, i.e. the main-
stream within the law. The authors in the series volumes try to establish a gender
equalityapproachtodifferent fields of lawwhiletaking into considerationspecific
issues of their interest and attempting to consider chosen different aspects of legal
knowledgeandpracticeinaparadigmaticgender-competentmanner.Theyattempt
tocriticallyreconsiderthedominantmoldsoflegalknowledgeandpresentinnova-
tive gender-sensitive and gender-competent insights relating to different issues
withinallfieldsoflaw,inordertointroducenewresearchtopicsrelevantforgender
equalityinlaw,as well asto stimulatethe development ofa legal and institutional
framework for achieving gender equality in real life. The degree to which main-
streamknowledgehasbeenreconsideredfromagenderequalityperspectivediffers
between contributors. Moreover, a variety of relevant legal subjects and other
closelyrelatedsubjectmattersarecoveredinvaryingdegreesbytheselectedtexts.
The book series Gender Perspectives in Law encouraged scholars and experts
fromdifferentfieldsoflawandhumanities-socialsciencestoreconstructtheirlegal
andmultidisciplinaryknowledgefromthestandpointofgenderequality.Thisbook
series shouldinspirefurtherattemptsofthiskind,asareconsiderationoflegaland
multidisciplinary knowledge from a gender perspective has become an axiomatic
task.Ifcontemporarylawisdefinedprimarilyfromthehumanrightspointofview,
thenitisnecessarytotakeagenderequalityperspective;thehumanrightsfounda-
tion of law cannot be regarded as the civilizational standard without also incorpo-
ratingwomen’srightsandgenderequalityapproachingeneral,articulatingthemin
themainstreamlegalandpoliticalthought,andeliminatinggender-basedbiasesand
discriminationwithinthedominantlegalsystems.
The book series Gender Perspectives in Law represents the added value to the
projectErasmus+StrategicPartnershipinHigherEducation,called“NewQualityin
Education for Gender Equality - Strategic Partnership for the Development of
Master’sStudyProgramLAWANDGENDER,LAWGEM.”
The book Feminist Approaches to Law—Theoretical and Historical Insights
offersthebackgroundtheoreticalandhistoricalanalysisforthebookseriesGender
Perspectives in Law. Impacts of feminist political and legal theories, as well as
critical legal studies, have been embedded in all the papers in different ways and
scopes. Differences among feminist political and legal ideas are visible in the
different approaches. The ongoing issue of defining gender, for example, is a
recurring theme in the texts. There are papers that question the binary basis of the
gender issueand thenotion ofgender assuch. Others startfromthe binary dichot-
omy and attempt to expand the consideration toward a multi-dimensional under-
standing of gender identities. The main focus is feminist reconsideration of all
relevant fields of legal knowledge. The primary aim is to demystify the seemingly
neutral character of legal norms and legal knowledge and highlight the power
relations at different layers, beginning with male and female legal subjects of
Western heredity (in terms of culture, ethnicity, and race), then moving on to
Preface vii
different needs and power relations among female persons of different races and
classes, and finally moving on to differentiating gender relations and identities
beyond the framework of the women–men binary dichotomous codification,
i.e. also taking into consideration the multiple options of intersex, transgender,
queering,etc.
Taking seriously the issue of the “maleness” of political and legal theories is
indeed a challenging and relevant endeavor for legal scholars. The male bias is
present not only throughout history but also nowadays, given that our “universal”
categories of political and legal thought are still overburdened by unequal-power
relations. It is also important to open our minds and knowledge production for a
gender-sensitive and gender-competent intersectional approach, which would
include also different queer-, race-, class-based considerations. These tasks should
beacceptablenotonlyforcriticallegalscholarsbutalsoforallthosebelongingtothe
mainstreamlegalandpoliticalthought.
Thepapersdealwithverydifferenttopicsrelatedtofeministpoliticaltheories,the
feminist movement, critical race theory, critical legal history, queer theories, adul-
tery,aswellasissuesrelatedtoconstitutionaldemocracyandtheoriesofdemocracy
ingeneral. The convergingaim and axis isgenderequality—its clarification, artic-
ulation,promotioninlegaltheoryandpractice.Interestingandindicativeenoughis
the fact that there are authors from many countries spanning across different
continents. The global relevance of the gender equality perspective in legal educa-
tion, legislation, and legal professions has been expressed and confirmed in the
contentandauthorshipofthisbook.
This book includes papers written by Dragica Vujadinović, Amalia Verdu,
Adrien Wing and Caroline Pappalardo, Damir Banović, Marion Röwenkamp, and
NinaKršljanin.
Dragica Vujadinović assumes that traditional political philosophy had been by
definitionbasedongenderinequality,onreducingwomentopatriarchalfamilyrole
and reproductive function, due to a dominance of patriarchal matrix in both the
private and public sphere of pre-modern societies. Insofar, the sharp dominance of
male authors—writings by men, for men, and about men had been self-
understandable.Modernitybroughtwithacrucialimpactofpoliticalandindustrial
revolutions (among other factors), the break through the dominance of patriarchy
(although without its abolishing). Modern political and legal theories of human
rights and constitutional democracy do contain emancipatory ideals of universal
humanrights,equality,liberty,justice,democracy,whichcouldorshouldhavebeen
interpreted in a gender-competent way. However, they most often forget issue of
gender equality when considering the realm of politics. Their capacity for
deconstructing and critically overcoming patriarchal heredity in values and ideals
hasmostlybeenlostintheirunderlying“male-dominated”articulationofallegedly
universalideas.Ontheotherhand,therearealsomodernandcontemporarytheories
which continue with promoting patriarchal values and power relations in a philo-
sophically relevant manner. Vujadinović assumes as crucially important that most
progressivecontemporarytheoriesofhumanrights,theoriesofjusticeandconstitu-
tional democracy could and should overcome their gender blind approaches. She
viii Preface
usedtheexampleofRawls’theoryofjusticetodemonstratehowgender-competent
approach could be introduced in order to advance this theory of justice with
essentially necessary elements of gender justice. The author points to feminist
attempts toward assigning new meanings to traditional categories of political and
legal thought and introducing “new” categories such as family, body, sexuality,
privacy, care, community into the politicaldiscourse. She also accentuates that the
feminist approach aims at transcending the discourse based on the binary opposi-
tions of male/female, private/public, which is typical for the Western tradition of
political and legal thought, and also insists on the fact that formal equality far too
oftenmasksdeeplyrootedgenderinequalitiesandinsofarasubstantiveequalityhas
tobethematterofgenderequalityachievement.Thefeministtransformationofthe
main political categories leads toward compromising the universality of the ideals
andthedelegitimizationofmalepower.Theauthorstatesthatthefeministperspec-
tive means also the methodological shift linked to the introduction of “gender
lenses” into political and legal reasoning. The feminist perspective aims to main-
streamgenderissuesinthepoliticalandlegaldiscourse.Theauthordemonstratesthe
feminist revision of old political conceptions in their interaction with new ones
throughabriefconsiderationofthenotionsofcare,community,andprivacyasthe
“new” political concepts in their interplay with the “old” political concept of
democracy and power. Vujadinović concludes that it is of a critical importance
thatgender-competentreasoningbecomesa“self-understandable”dimensionofthe
discourseandmindsetsofmaleandfemalepoliticalthinkers,andthatreconsidering
ofallconceptsandconceptionsthroughthelensesofgenderequalityshouldbecome
thestandardforthequalityofpoliticalandlegalknowledge.
Amalia Verdu undertakes a theoretical endeavor of reconsidering the very con-
ceptofgender.Theauthordoesthisinlinewiththepostmodernfeministquestioning
of the term gender as confined in its nature to the binary framework which repro-
duces patriarchal assumptions, proposing the binary heteronomous relations as the
pre-givenones.Shepointstotheuseofthetermgenderinthesamecontextassex,
sexual harassment, social sex, or cultural oppression. Furthermore, with the term
gender, the author assumes that we can refer to sex roles, stereotypes, status,
individual attribute, relations, socialization, social organization, part of the psyche
or consciousness, power, disciplinary device, structure, difference, exclusion
(whetheruniversalorhistorical),andideology.Thisallcontributestotheconfusion.
Inaddition,theauthor remarksthatforsome personsthetermgender isconceived
within a binary framework, while for others it reflects fluidityand diversity. These
different approaches to the concept of gender seem to complicate its use in law
which mostly prefers established normative factual concepts. Her focus is on
reconsidering the meaning of gender in law, and for that purpose, she elaborates
on its development within feminism and in law. Verdu acknowledges that the
elimination of sex categories raises concerns among many scholars because it
jeopardizes the existence of women as political subjects and assumes that these
concerns are justified because women are still facing violence and discrimination
simply for being women in today’s society. Women’s discrimination and the
exclusion of intersex and those not fitting into the binary concept of sex are two
Preface ix
different problems that require different strategies that need to be carried out in
parallel: one to blur the existing fixed categories and another to fight women’s
discrimination.Thesetwostrategieswouldallowustofightthecurrentdiscrimina-
tion against women, while allowing society to distance the concepts of man and
womanfromtheirinheritedsymbolismandincludetrans-,intersex,orgenderqueer
persons,withoutinvokingthebinary.Accordingtotheauthor,theheteronormative
binaryisembeddedinthelaw,andthusthelawcausesharmbydiscardingallthose
whodonotbelongtothebinaryandbyreifyingabinary,whichisalsodetrimental
forwomen.ThepermanentblindnesstoOtherscontinuestounderminetheneutral-
ity, equality, and universality of the values on which the law’s legitimacy
shouldrest.
Adrien Wing and Caroline Pappalardo present important insights to the global
professional public about the specificity of feminist thought coming from black
womenandwomenofdifferentraces.Criticalracefeminismhasbeencondemnatory
of white middle-class feminists who ignore the intersectional problems of poor
women of different non-white races, who face universal women’s challenges as
wellasspecificproblemsofsubordinationtothemenoftheirracesandtothewhite
race as a whole, including white women. Critical race feminism has a global
extension through the feminist movements of Latin America, post-colonial coun-
tries, and other parts of the Third World. This theoretical and practical feminist
streamhasitsrootsincriticallegalstudies,criticalracetheory,andfeministtheory,
but combines elements of all of them (deconstructing the essentialism of the
traditional legal thought, pointing critically to the domination of men of all races
overfemalepersonsoftheirraces,andalsopointingcriticallytothedominationof
whitewomenoverfemalepersonsofotherraces).Criticalracefeminismhasgreatly
contributed to the legal discourse of human rights and highlighted the plight of
womenofcolor,sometimesbyutilizinganarrativemethodologyinacademicworks.
Criticalracefeministsusethenarrativestructuretorelatetheirindividualandshared
experiences with their audience. It puts the focus on women of color and their
particular problems, and uses the intersectional approach as the default method,
while crossing gender issues with all other sources of discrimination (sex, class,
sexual identity, religion, cultural identity). The authors argue that spreading the
knowledge about critical race theory has been of the utmost importance for devel-
opingawarenessabouttheconfinesoftraditionallegalscholarship,whichiswhite,
male-centered,andallegedly“objective,”andthereforestimulatestheovercomingof
themainstreamlegaltheory’sinheritedlimitations.
Damir Banović explores the notion, concept, and method of queer legal theory.
The author gives an overview of queer legal theory and summarizes all relevant
issues and opens all problems that arise from considering this new and complex
topic.HeusesthelegacyofAmericanlegalrealism,criticallegalstudies,postmod-
ern political and legal theories, and feminist political and legal theories, to extract
fromthemelementsthatcancontributetobuildingthemethodologiesofqueerlegal
theories.Queerlegaltheory,accordingtoBanović,sharesandbuildsuponmanyof
theinsightsaboutsexandgenderdevelopedandarticulatedbycriticallegalstudies
and critical feminists. A basic strategy of queer legal theorists is to challenge the
