ABSTRACT
The authors in this section bring feminist legal theory to basic questions of what it means to be human and how we define ourselves in relation to others. The question of identity has become increasingly controversial: some people argue that identity politics leads to counterproductive essentialism, and others maintain that identity categories are useful tools for social change. Likewise, universalizing theories have been critiqued for paying too little attention to difference, and defended as the only basis for workable ethics. The authors in this section discuss these controversies within the context of feminist legal theory. My chapter offers the vulnerable subject as a new conception of subjectivity
to replace the widely critiqued liberal subject. Vulnerability is universal to the human condition-we all get ill, injured, and eventually die. Whereas the autonomous liberal subject is expected to take care of him or herself, the vulnerable subject is understood as often, if not always, dependent on others. Because vulnerability is universal rather than specific to certain groups, it compels a more responsive state to provide everyone with the assets necessary for resilience. I argue that a vulnerability approach is more conducive to social justice than an identity-based discrimination model. Darren Hutchinson takes a different track, challenging the idea that we are in
a post-racial and post-feminist era. He uses the 2008 Democratic presidential campaign and Barack Obama’s election to launch an inquiry into the continuing usefulness of identity politics. Hutchinson contends that race and gender are still important axes of discrimination. He argues that it is “dangerous and misleading” to buy into the view that we live in a post-racial or post-gender America, pointing out that nearly all sociological data draw strong links between race-sex and poverty and highlighting the continued importance of identity categories to political mobilization. Hutchinson acknowledges the certain pitfalls associated with identity
politics, such as a tendency to essentialize identity, but argues that postmodern critiques of identity provide the tools necessary to create a multidimensional approach to identity-based inequalities. According to Hutchinson, identity politics, combined with an understanding of the contingent nature of identity and its “multidimensionality,” continues to be a powerful tool in working toward
economic, racial, and sexual justice. Using feminist and critical race theory, liberals should work to overcome the pitfalls of identity politics rather than abandon them altogether. Siobhán Mullaly examines the “politics of belonging,” specifically in the
French Mme M case, which involved denial of French citizenship to a Moroccan woman based on her religious practices. The case demonstrates that citizenship determinations “demarcate” insiders from outsiders and that the feminist rhetoric of gender equity is being used to forward such demarcation. Along with Mme M, various European headscarf cases have pitted citizenship against cultural difference, inviting feminists to question how the norms of equality and autonomy are played out. Mullally wants to use the tools of Fineman’s vulnerability analysis to “interrogate the structures, concepts, and institutions that further inclusion and exclusion.” As evidenced in the recent cases, some countries are demonstrating a
greater concern with “social cohesion” than “multicultural settlement.” Thus, Mullally ends her chapter calling for a “dual-track approach” to citizenship and difference. She argues for a politics of multiculturalism that “combine[s] legal regulation with an expanded moral dialogue.” While legal regulation (protecting certain “constitutional essentials”) is often
necessary, Mullally maintains everyone has a right to participate. She suggests that antiracist and feminist theories which start from a presumption of difference, and have been instrumental in challenging the liberal feminist notion of an abject “third world woman,” could help negotiate the challenge of “universality, equality, difference.”
