Decolonizing Feminist Legal Theory*

Feminist Legal Theories (FLT) for decades have expounded on the different ways that
the law and the legal system defines frames, controls, subordinates women, women‟s bodies, and
sexualities. Different strands of feminisms, from liberal feminism and its earliest suffrage
campaigns to the „multiple literacies‟ of transnational feminisms engage law and create feminist
legal epistemologies in various ways. Law‟s distance from „everyday realities, its wilful
blindness to gender as a meaningful social difference, and the construction of legal subjects as
idealised white, heterosexual, masculine types1‟ have been oft articulated with much of feminist
critiques focusing on law‟s „seemingly endless mechanisms of exclusion and disempowerment2.‟

In this paper I look at feminist legal theory from the perspective of Feminist Postcolonial
Theory. I contend that decolonizing FLT allows for multiple, situated, and inclusive strategies in
engaging/disengaging with the law and in recognizing multiple sites of power and resistance.
This prevents FLT from „silencing those who have traditionally been kept from speaking, or who
have been ignored when they spoke.3‟

I begin with a review of the development of feminist legal theory and the definitions of
feminist post-colonial theory. Decolonising FLT and expounding on the work of Feminist
Postcolonial Theorists (FPT), I will focus my discussion on how FPTs disrupt representation and
knowledge production in FLT and how they navigated debates between universalism and cultural
relativism. I conclude by expounding on opportunities presented by difference towards feminist
solidarity across borders and of the fragmented, situated, and located knowledge in moving FLT
forward. Through decolonizing feminist legal theory, it is hoped that the pitfalls of imperialism
will be avoided and Mohanty‟s call for an „ethical and just solidarity across borders based on
attentiveness to power and historical specificities and difference4‟ will be realized.

Feminists theorizing the law, Contextualizing the theory

The totalizing power of the law, its process of ordering and exclusion has been the
subject of feminist theorizing since the liberal legal feminism of the 1960s and gaining traction

*Paper by Krissi Shaffina Twyla A. Rubin for Gender, Sexuality, Law: Theories and Methods, SOAS University of
London, LLM Law and Gender (January 2018)
1
Margaret Davies, „Feminism and the Flat Law Theory‟ (2008) 16 Feminist Legal Studies 281., 3
2
Ibid
3
Angela Harris, „Race and Essentialism in Feminist Legal Theory‟(1990) 42 Stan. L. Rev. 581 1989-1990, 585
4
Linda Carty and Chandra Mohanty, „Mapping Transnational Feminist Engagements‟, The Oxford Handbook of
Transnational Feminist Movements (Oxford University Press 2015). 85

1
in US law schools in the 1970s5.The field came to be known as Feminist Legal Theory, a theory
„premised upon the belief that the law has been instrumental in women‟s subordination in
society6‟.

Writing in 1998, Bowman and Schneider divides FLT into four major schools, formal
equality theory of liberal feminists, cultural feminism, dominance theory, and the post-modern or
anti-essentialist theory7. Liberal and cultural feminists focused their energies on gender equality
and non-discrimination under the law.8 The former argued for women‟s sameness to men,
seeking for the removal of barriers and laws that treat women differently than men, demanding
equal access to public and private rights,9 while the latter focused on the uniquely female
experiences that account for differential treatment based on substantial distinctions. Focused on
legal positivism, liberal feminists did not question the law or the subject of the law. Instead it
saw the exclusions of law as remediable by legal reforms 10. This has led critiques like Catherine
Mac Kinnnon to comment on the complicity of feminist liberal legalism in „privileging of the
masculine legal norm by refusing to interrogate the sexist basis of the legal system with which its
reformist praxis was complicit.11‟

With Dominance Theory, Mac Kinnon‟s critique focuses not only on women as law‟s
subjects, but law itself and its role in institutionalizing male power over women. She highlighted
the „embedded structures of power that make men's characteristics the norm from which
"difference" is constructed12.‟Unlike liberal feminists who argued that women are rational
subjects under the law, Mac Kinnon and other radical feminists surfaced „law‟s lack of
objectivity and inherent maleness.13‟

What is however apparent in the early histories and debates on FLT is their focus on the
experiences of white, American, heterosexual woman. Critiques of the law were anchored based
on the experiences of the „white woman‟ as representing all women. In the words of Angela
Harris, „in feminist legal theory, like dominant culture, it is mostly white, straight, and
socioeconomically privileged people who claim to speak for all of us.14” This led the Critical
Race Theorists to call out Mac Kinnon and other radical feminists for privileging gender from

5
Cynthia Grant Bowman and Elizabeth M Schneider, „Feminist Legal Theory, Feminist Lawmaking, and the Legal
Profession‟ (1998) 67 Fordham L. Rev. 249. 250;
6
Tracy A Thomas and Tracey Jean Boisseau, „Introduction: Law, History, and Feminism‟, Feminist Legal History:
Essays on Women and Law (NYU Press 2011). 18
7
Bowman and Schneider, (n 5) p. 251
8
Thomas and Boisseau, (n.6) p. 19
9
Thomas and Boisseau, (n.6) p. 19
10
Ben Golder, „Rethinking the Subject of Postmodern Feminist Legal Theory: Towards a Feminist Foucaultian
Jurisprudence‟ (2004) 8 S. Cross UL Rev. 73. 75
11
Ibid citing Mac Kinnon p. 76
12
Bowman and Schneider, (n 5) p. 251
13
Thomas and Boisseau, (n.6) p. 22
14
Angela Harris, (n. 3), 588

2
other facets of women‟s experience such as race, class, sexual orientation.15‟ Critical Race
Feminists “emphasized the importance of storytelling, both as a way to bring diverse experiences
into the law and as a way to broaden the legal descriptions of experience that are translated into
law16.”

It may be said that for these schools of FLT, analysis of the law has been mostly confined
within the legal system, questioning the system‟s exclusion, its rules, assumptions of objectivity
and neutrality, and underlying structures of domination. Structural Biased Feminism, Post-
modern and Post-Colonial critiques moved the conversations forward. Particularly, structural
biased feminism focused on how law operates in a totalizing and gendered manner. Looking into
the institutionalization of male bias, Structural Biased Feminists like Chinkin and Charlesworth
looked at how International Law maintain and advance male privilege17.

Post-Modern feminists, on the other hand, explored the power of discourse in shaping
gender hierarchies, identity, and resistance. This power extended to law and other social
ordering.18 Post-Modern feminists, however, have not been very prominent in feminist legal
theories as most of its practitioners deconstruct the law and „avoid considering legal solutions‟19 .
It has also been primarily criticized for being focused too much on the theoretical, discursive,
and cultural.

In the case of Postcolonial Feminists, two projects have been identified, „to racialize
mainstream feminist theory and to insert feminist concerns into conceptualizations of
colonialism and postcolonialism20.‟ The term postcolonialism gained currency in the 1980s to
identify cultures and societies where colonial rule have ended.21 However for postcolonial
theorists, the distinction lies not much on the formal end of colonialism, but on the effects, and
after effects of colonialism which „endures both for the colonizer and the colonized‟22. This
means looking into the vestiges of colonialism and a recognition that „decolonisation does not
mean a return to a pre-colonial state, but rather a movement to a postcolonial state where the
effects of colonialism have become an extricable part of the culture and of its legal, educational,
and political institutions, and where the colonial state still serves as a reference point in a local
discourse.23‟

15
Angela P Harris, (n. 3) 585
16
Bowman and Schneider, (n 5) p. 253
17
Hilary Charlesworth, Christine Chinkin and Shelley Wright, „Feminist Approaches to International Law‟ (1991)
85 American Journal of International Law 613.
18
Maxine Eichner, „On Postmodernist Feminist Legal Theory‟ (Social Science Research Network 2001) SSRN
Scholarly Paper ID 2129746 <https://papers.ssrn.com/abstract=2129746> accessed 12 January 2018.
19
Ibid, 4
20
Reina Lewis and Sara Mills (eds), Feminist Postcolonial Theory: A Reader (1 edition, Routledge 1999). 3
21
Alpana Roy, „Postcolonial Theory and Law: A Critical Introduction‟. (2008) Adelaide Law Review, The, Vol. 29,
No. 2, 2008: 315, 318
22
Ibid
23
Alpana Roy, (n. 21), 318 citing Margaret Davies, Asking the Law Question: the

3
 Applied to FLT, feminist postcolonial theory presents an opportunity for a more
contextualized analysis of law, „a rigorously historical and dialectical approach” to understand
the imbrication of gender, nation, class, caste, race, culture, and sexualities in the different but
historically specific contexts of women‟s lives 24.‟ In addition to the sites of analysis that other
strands of FLTs focus on, FPT working both on macro and micro levels, „trace the connections
between colonial history and contemporary law in postcolonial states,‟ analyze enduring effects,
and surface strategies that take into account specific contexts25. It builds on the work of critical
race theorists, in so far as it racializes mainstream feminist theory and restates that gender is
always racialized26. FPT thus provide the opportunity to explore multiple, situated, and inclusive
strategies in engaging with the law and in recognizing multiple sites of power and resistance.

II.

Decolonising respresentation and knowledge production

One of the major field of focus of FPTs is representation and knowledge production,
particularly how western feminist represent and produce bodies of knowledge about women in
the third world and how such representation has, in the words of Spivak, resulted in „epistemic
violence27.‟ The unmasking of such representations, their connections to the colonial project or
the process of „othering,‟ as well as their impact on law and strategies adopted at the domestic
and international level have been the focus of FPTs.

Spivak, one of the earliest proponents of post-colonial theory poses asks if the subaltern
woman can speak and discusses the representation of the subaltern women.28 In an interview
Spivak explains further that even if the subaltern woman speaks, she is simply not heard.29 In a
text considered canon in subaltern and postcolonial studies, Spivak characterizes the third world
woman as „caught between patriarchy and imperialism,‟ and how through it all, the third world
woman disappears between the violent shuttling between tradition and modernization30.

Dissolution of Legal Theory (2nd ed Lawbook Co, Sydney, 2002) 257-94.

24
Rajeswari Sunder Rajan, & You-me Park. (2000) „Postcolonial feminism/postcolonialism and feminism‟ in H.
Swartz & S. Ray (Eds.), A companion to postcolonial studies. (Blackwell 2000). 53–71. 66
25
Stacy-Ann Elvy, A Postcolonial Theory of Spousal Rape: The Carribean and Beyond, 22 Mich. J. Gender & L. 89
(2015)
26
Lewis and Mills, (n. 20), 5
27
Gayatri Spivak, „Can the Subaltern Speak‟ in Nelson and L Grossberg (eds), Marxism and the Interpretation oc
Culture (Macmillan 1988), 271-313
28
Ibid, 102
29
Bulan Lahiri,‟ In Conversation: Speaking to Spivak‟ (The Hindu, 5 February 2011)
< http://www.thehindu.com/books/In-Conversation-Speaking-to-Spivak/article15130635.ece> accessed 7 January
2018
30
Spivak, (n. 29), 102

4
 Building on Spivak and the question of representation, Mohanty‟s work critiqued how
western feminists came to speak and represent third world women. While critical race feminists
previously questioned how white women came to represent „all women31,‟ Mohanty particularly
focused his criticism on how western feminists theorized women in the third world. She pointed
out the similarities of the colonial/humanizing project of the West in the manner that western
feminists „discursively colonizes the material and historical heterogeneities of the lives of
women in the third world32.” Analyzing the work of western feminists covering issues such as
male violence, religion and family, Mohanty surfaced how the authors constructed a „monolothic
image of third world women‟ as „implicit victims of particular cultural and socio-economic
systems.33‟ For Mohanty, this act of „homogenization‟ of an otherwise diverse group of women
with specific histories and context, is „akin to colonialization34.‟

Following Mohanty, Uma Narayan and Ratna Kapur further dealt with the question of
representation of the third world women, problematizing how they were regarded by western
feminists, and the impacts of these analyses on strategies adopted.

Narayan‟s work problematized how simplistic and unexamined „cultural explanations‟

are implicated in issues affecting women in the Third World. Discussing violence against women
and „dowry deaths,‟ for example, she drew attention to the difference in analysis where culture is
automatically implicated as the culprit, as „deaths by culture‟ in the case of the third world
women, but not in analogous incidents in the West35. In her other work she discussed how the
practice of sati or widow immolation has come to be considered a central aspect of Indian
culture, without discussions delving into how it came to be labeled as such and the role of
colonialism in such undertaking36. In highlighting these, Narayan draws attention to how the
reification of culture has been deployed in the construction of the third world as „the other.‟

Specific to impact on laws, the work of Kapur focused on how the views of Western
Feminists resulted in the hegemony of „victim rhetoric‟ in domestic and international laws
marked by gender and cultural essentialism. She drew attention to how women are seen as a
coherent group across cultures, devoid of agency and as subjects that cannot accommodate a
„multi-layered existence.‟37 She finds fault in how Mac Kinnon‟s gender essentialism solely

31
Angela Harris, (n. 3)
32
Chandra Mohanty, „Under Western Eyes Mohanty: Feminist Scholarship and Colonial Discourse‟ in Lewis and
Mills, Feminist Postcolonial Theory ( Routledge, 2016), 51
33
Mohanty, (n 34), 54
34
Lewis and Mills, (n. 20), 9
35
Uma Narayan, Dislocating Cultures : Identities, Traditions, and Third-World Feminism (1 edition, Routledge
1997). x
36
Uma Narayan,‟ Essence of Culture and a Sense of History: A Feminist Critique of Cultural Essentialism‟ Hypatia
vol. 13, no. 2 (Spring 1998), 86-106,
37
Ratna Kapur, „The Tragedy of Victimization Rhetoric: Resurrecting the “Native” Subject in International/Post-
Colonial Feminist Legal Politics, 15 Harv. Hum. Rts. J. 1-38 , 2002, 6

5
focused on patriarchy‟s influence in law and the legal system and not consider that legal systems
are shaped by „social, economic, or historical forces such as colonialism, enslavement, non-white
populations, or the role of Christianity38.‟ She also reiterated Narayan‟s point on cultural
essentialism stating that „the invocation of culture as a way in which to explain the different
forms that violence against women takes has resulted in a reification of culture, especially the
culture of the post-colonial or Third World39.‟

These FPTs, in drawing close attention to facets of knowledge production and

representation contribute to FLT by inviting reflection and analysis of legal strategies that
emanate from Western conceptions of women in the third world. They invoke an examination of
how we think of women as subjects of the law, as victims of violence, and the legal remedies in
place. It asks for the recognition of different subjectivities and peripheral subjects instead of
fictitious homogeneity among women, and for rigour in surfacing, unpacking context, and
histories.

Navigating Debates: Universalism, Cultural Relativism

Two challenges may be posed to FPTs, first is the debate on universalism and cultural
relativism, and the other the critique that it is being divisive in focusing on difference among
women.

On the debates between universalism and the dangers of cultural essentialism, the work
of FPT showed the varied ways that they refused to fall for the simplistic and binary trap. Instead
FPTs focused on nuancing both sides of the debate, contesting how the debates have been framed
or „the ground‟ which have already been made40, or finding opportunities in the interstices of the
debates. Instead of taking sides on the debate, feminist pushed on both sides41. They unpacked
and „unmoored‟ universalism from its claim of being above heterogeneity and the particular, and
cultural relativism from its claim to represent particular traditions42. Vasuki did this in discussing
the multiple meanings and embodied practice surrounding the veil. In the case of Narayan, she
did this by calling for a „critical stance that restores history and politics to prevailing ahistorical
pictures of culture43.‟ She thus argued against the claimed western origins of human rights and
equality and the manner that certain cultural practices are taken to represent the entire culture.

38
Kapur (n 37)
39
Kapur (n 37 ) 13
40
Nesiah Vasuki. „The Ground Beneath Heer Feet: “Third World” Feminisms‟ Journal of International Women‟
Studies Vol 4 #3 May 2003, 30, 34
41
Ibid
42
Nesiah Vasuki, (n. 41)
43
Uma Narayan (n. 39), 92

6
 The manner that FPTs dealt with the debate allows both for contextual and located
analysis, while at the same time not foreclosing the utility of human rights nor condoning
harmful practices in the name of culture. What this further adds in terms of FLT strategies is to
continue the decolonization, the act of unpacking and unmooring. It calls for the responsibility of
moving beyond simplistic explanations and misrepresentations to a „deeper and more rigorous
kind of contextual analysis‟ in order to „protect against simple, unreflective, an naïve strategies
that invariably harm more than help44.‟

Difference, Location, Context and Possibilities of Solidarity

The last challenge posed against FPT is its emphasis on difference, thus causing divide in
women‟s movement. Far from a weakness, this is however, FPTs strength. It is precisely its
recognition of difference, of specific, situated and located knowledge that FPT promises the
possibility of solidarity and convergence.

Audrey Lorde in her essays stress the importance of seeing “difference as enriching
rather than threatening45” and that „the forging of community must not mean a shedding of our
differences, nor the pathetic pretense that these differences do not exist46.” Mohanty, in her work
also admits of the possibility of solidarity amidst differences calling for an “ethical and just
solidarity across borders based on attentiveness to power and historical specificities and
difference47.‟ It is here that FPT converge with transnational feminists, admitting of the
possibility of solidarity built on the necessary recognition of difference and differences in
positionality and contexts. Rosi Braidotti explains this through the metaphor of embracing
„multiple literacies, that is of being able to engage in conversation in variety of styles‟ and where
feminist „relinquish the dream of common language in favor of the recognition of complexity of
the semiotic and material context in which we operate48.‟

Instead of seeing cultural difference as major dividers of communication, Braidotti

insists that it should be the stuff that feminist communication is made of, an awareness of how
differences „affect theoretical and political practice49.‟ In FLT, it is this awareness, this
consciousness of subjectivities, context, history, and location that will invite reflection, expand
the scope of inquiry, and expand practice.

44
Ratna Kapur, (n. 39), 17
45
Audre Lorde,„The Masters Tools.‟ In Ahmed Sara (ed). Audre Lorde Your Silence Will Not Protect You. (Siler
Pres 2017), 91
46
Ibid
47
Linda Carty and Chandra Mohanty, „Mapping Transnational Feminist Engagements‟, The Oxford Handbook of
Transnational Feminist Movements (Oxford University Press 2015). 85
48
Rosi Braidoti, „The Exile, the Nomad, and the Migrant.‟ (1992) Women‟s Studies Int. Forum, Vol. 15, No. 1, 10
49
Ibid

7
 BIBLIOGRAPHY

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Eichner M., „On Postmodernist Feminist Legal Theory‟ (Social Science Research Network 2001)
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& L. 89 (2015)

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1990, 585

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8
Mohanty C., „Under Western Eyes Mohanty: Feminist Scholarship and Colonial Discourse‟ in
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