ABSTRACT
In this chapter I shall address the affinities and points of conflict between feminist approaches to legal theory and the account of 'ethical positivism' provided by Tom Campbell in his book, The Legal Theory of Ethical Positivism.2 As Campbell notes, for much feminist and critical legal theory, legal positivism represents the arch-enemy: it is characterized (or perhaps caricatured) as a formalistic approach which disguises the sexual politics of law and legal reasoning behind a quasi-scientific, purportedly value-neutral framework.3 Campbell's claim is that this typecasting of legal positivism - if it is just at all - does not apply to the legal theory of ethical positivism. In order to assess this claim, I need to start with some conceptual ground-clearing. After offering a characterization of feminist legal theory, I shall attempt to unpick the various strands of its objections to legal positivism before going on to consider how far, if at all, each of these objections holds good as against ethical positivism. Finally, I shall identify a number of difficulties which remain to be confronted by the doctrine of ethical positivism - difficulties which are not exclusively revealed by feminist thought, but rather by a range of methods deriving from sociology and recent social theory on which feminists, among other (loosely speaking) 'critical' scholars, have drawn. In constructing this analysis I hope not only to provide a sympathetic critical assessment of Campbell's theory, but also to clarify the ambitions of feminist legal theory and its relationship with what might generally be thought of as 'mainstream' jurisprudence and political theory.
