Defending and Developing Critical Feminist Theory as Law Leans Rightward
McCluskey, Martha T.
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As part of an anthology marking twenty-five years of the Feminism and Legal Theory Project, this essay explores how the rise feminism in law has been accompanied by the simultaneous rise in rightward leaning legal theory and practice. I argue that a critical approach to feminist legal theory is particularly important to engaging and countering the influence of this rightward, often anti-feminist approach to law. I explain how critical analysis upended the double bind of the equal treatment – special treatment debate in earlier years of feminist jurisprudence, leading to a deeper feminist analysis of the extent to which formal equality always rests on implicit substantive ideas of equality. But as that critique helped open the door to fresh discussions of how gender equality could be given meaningful substance, right wing legal theory advanced a two-prong ideological challenge to feminist equality ideals. One prong used seemingly objective economics to challenge substantive equality; the other prong focused on moral arguments against substantive equality. As with the early equal treatment – special treatment dilemma, each of these ideological attacks constructs a double bind for feminist visions of equality, making the choice for equality appear to be a choice ultimately leading to inequality. I show how critical feminist theory can respond to those challenges by uncovering the double standards of economics and morality that underlie these arguments. Further, I show how the rise of right wing law has posed not just ideological but material challenges to feminist legal theory, by changing the institutions of legal academia to make feminist scholarship more difficult. I suggest that these material challenges also underscore the value of a critical approach that challenges the division between theory and practice as well as the structural and political nature of legal theory.