Nietzsche said that when ‘marching against the enemy’ both bad music and bad reasons sound good.
Joanne Conaghan’s book, Law and Gender, marches against several enemies, one of which is ‘the analytical jurisprudential mind’. I am offered as a case study of that psychopathology. Her discussion of my work on marriage reveals the ‘methodological limitations which characterize [such] jurisprudential analysis,’ namely:
“the abstraction of legal concepts from the framework in which they operate and the tendency to treat them as having a fairly fixed content over time and space; the unarticulated normative prioritization of some features… over others…, evidencing the presence of evaluative choices which problematize any claim to be rendering a descriptive or value-neutral account; the overlooking, or at least unexplained disregard, of contra-indicative evidence…. “(Law and Gender 176)
Conaghan says that it is because of such ‘limitations’ that books of analytical jurisprudence—books like The Concept of Law, The Pure Theory of Law, The Authority of Law—fail to see the pervasive relevance of gender to theories of the nature of law.
Her arguments are embarrassingly weak, for reasons I explain in this new paper. Her errors would matter little were it not for the possibility that law students might think that to be feminists they need to join in the march, singing along to bad music and repeating bad reasons. My paper concludes:
“In the end, jibes about the ‘analytical jurisprudential mind’, like jibes about ‘the criminal mind’—or for that matter the ‘female mind’—express little more than prejudice. As vices go, an intellectual prejudice is a minor thing. Still, it will have victims. Its main casualties will be beginning students, especially young lawyers curious about things like the social construction of gender, the evaluative character of jurisprudence, the subordination and silencing of women, or social inclusion and legal equality. Will they learn that some of the best contemporary thinking on these themes includes work by analytic philosophers, and even analytic legal philosophers? Will they discover that this work is sensitive to context where relevant, that it is alert to the ways values enter analysis, and that it is literate about social facts? Not if they accept Conaghan’s caricature. Students taught what the ‘analytical jurisprudential mind’ must think about some issue may not feel inclined to spend time discovering what any particular writer actually does think. They are as likely to set about building separation walls, to guard against intrusions by gender-excluding abstractions, smuggled-in values, and empirical biases—unlawful migrants to the empire of law and gender, disguised in nit-picking arguments.“
Feminist philosophy has long since given up the idea that ‘analytical’ methods are alien or hostile to feminism. The excellent work of philosophers like Elizabeth Anderson, Sally Haslanger, Rae Langton, or Mary Kate McGowan demonstrate the power of these methods and their importance to feminism. Why is feminist legal scholarship of Conaghan’s sort stuck in a time-warp of the 1980s, repeating the old jingles of post-modernism and chanting the dull chorus of ‘social context’?
It is time for feminists in law to reconsider their need for an enemy, or at least find a new one. They will be astonished at how bad was the music they used to march to, how poor the reasons.