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Is it time to take a break from feminism? In this pathbreaking book, Janet Halley reassesses the place of feminism in the law and politics of sexuality. She argues that sexuality involves deeply contested and clashing realities and interests, and that feminism helps us understand only some of them. To see crucial dimensions of sexuality that feminism does not reveal--the interests of gays and lesbians to be sure, but also those of men, and of constituencies and values beyond the realm of sex and gender--we might need to take a break from feminism.
Halley also invites feminism to abandon its uncritical relationship to its own power. Feminists are, in many areas of social and political life, partners in governance. To govern responsibly, even on behalf of women, Halley urges, feminists should try taking a break from their own presuppositions.
Halley offers a genealogy of various feminisms and of gay, queer, and trans theories as they split from each other in the United States during the 1980s and 1990s. All these incommensurate theories, she argues, enrich thinking on the left not despite their break from each other but because of it. She concludes by examining legal cases to show how taking a break from feminism can change your very perceptions of what's at stake in a decision and liberate you to decide it anew.
eBook
The Move to Affirmative Consent
In “The Move to Affirmative Consent,” I argue that, though affirmative consent has great appeal because of its respect for norms about good sex that we all share, as a rule intended to be enforced in actual punitive processes, whether on campus or in the criminal justice system, it will be vastly overinclusive, deeply repressive, and socially conservative in its enforcement of traditional gender roles. I show how affirmative consent reforms represent a partial victory (and thus also a partial defeat) for dominance feminists ultimately seeking to criminalize subjectively unwanted sexual behavior without respect to the intent or knowledge of the accused; the relationship history of the parties; the racial, cultural, or other social distance between the parties; and the character of the complainant’s memory of the events. I further demonstrate how existing affirmative consent rules will allow decision makers to hold people responsible for serious misconduct based on one or more of three states of mind that have been consistently muddled in the debates so far: the accuser’s subjective consent (described as “positive” if it is rests on her positive desire and as “constrained” if she consents to sexual conduct to avoid something she disfavors) and as “performative” if it rests on an indication of consent through physical or verbal signs. Each of these rules includes some conduct that, almost all feminists agree, deserves sanction and should be deterred, but they are all overinclusive in ways that many feminists would reject. One such way, I demonstrate, is an affirmation of female passivity and male activity in sex—a legal affirmation of, and incentive to reawaken, the gender roles of the gilded age. This current contribution asks feminists to consider carefully how affirmative consent will operate in practice, in the real world, before offering it their support.
Journal Article
Governance Feminism
Describing and assessing feminist inroads into the stateFeminists walk the halls of power.Governance Feminism: An Introductionshows how some feminists and feminist ideas-but by no means all-have entered into state and state-like power in recent years. Being a feminist can qualify you for a job in the United Nations, the World Bank, the International Criminal Court, the local prosecutor's office, or the child welfare bureaucracy. Feminists have built institutions and participate in governance.
The authors argue that governance feminism is institutionally diverse and globally distributed. It emerges from grassroots activism as well as statutes and treaties, as crime control and as immanent bureaucracy. Conflicts among feminists-global North and South; left, center, and right-emerge as struggles over governance. This volume collects examples from the United States, Israel, India, and from transnational human rights law.
Governance feminism poses new challenges for feminists: How shall we assess our successes and failures? What responsibility do we shoulder for the outcomes of our work? For the compromises and strange bedfellows we took on along the way?
Can feminism foster a critique of its own successes? This volume offers a pathway to critical engagement with these pressing and significant questions.
eBook
Rape in Berlin : reconsidering the criminalisation of rape in the international law of armed conflict
Progress made in criminalisation of sexual violence in war - feminists engaged with criminal tribunals have proposed a wide range of legal rules and prosecutorial practices - achievements made in areas such as reframing rape and other sexual violations as a basis for charging humanitarian crimes - anonymous account of one woman's experiences during fall of Berlin to Soviet Army - costs of ignoring ideological discourses surrounding rape - re-thinking politics of criminalising rape in international criminal law (ICL) and international humanitarian law (IHL).
Journal Article
Critical Directions in Comparative Family Law: Genealogies and Contemporary Studies of Family Law Exceptionalism
This is an Introduction to a Special Issue of the American Journal of Comparative Law, edited by Janet Halley. The central theme of the Special Issue is \"family law exceptionalism\": the myriad ways in which the family and its law are deemed, either descriptively or normatively, to be special. We argue that the nineteenth century emergence of Family Law as a distinct legal topic, influenced inter alia by Friedrich Carl von Savigny and carried around the world as part of the influence of German legal thought, was an intrinsic element of the rise of contract as the law of the market. Our comparative approach to this phenomenon in this volume is twofold. First, we think that colonial expansion brought with it the idea of the family / market, family-law / contract-law distinction, and that legal orders around the world emerged in which this distinction played some important role. This is the Genealogical Project, and it occupies essays collected here by Duncan Kennedy, Isabel Sierra Jaramillo, Philomila Tsoukala, and Lama Abu Odeh. Second, we suspend Family Law Exceptionalism in order to study the Economic Family. Historically and in the present context of globalized labor, we emphasize international, regional, and local law as transplanted, intersecting or nested background rule systems in which households form and provide social security, consume, and produce material and other goods. Tsoukala, Abu Odeh, Hila Shamir, Chantal Thomas, and Kerry Rittich provide essays exemplifying this research. The Special Issue begins with an essay by Fernanda Nicola mapping the comparative family law tradition and situating this volume on its critical branch.
Journal Article
Critical directions in comparative family law: genealogies and contemporary studies of family law exceptionalism - introduction to the special issue on comparative family law
This is an Introduction to a Special Issue of the American Journal of Comparative Law, edited by Janet Halley. The central theme of the Special Issue is `family law exceptionalism': the myriad ways in which the family and its law are deemed, either descriptively or normatively, to be special. We argue that the nineteenth century emergence of Family Law as a distinct legal topic, influenced inter alia by Friedrich Carl von Savigny and carried around the world as part of the influence of German legal thought, was an intrinsic element of the rise of contract as the law of the market. Our comparative approach to this phenomenon in this volume is twofold. First, we think that colonial expansion brought with it the idea of the family/market, family-law/contract-law distinction, and that legal orders around the world emerged in which this distinction played some important role. This is the Genealogical Project, and it occupies essays collected here by Duncan Kennedy, Isabel Sierra Jaramillo, Philomila Tsoukala, and Lama Abu Odeh. Second, we suspend Family Law Exceptionalism in order to study the Economic Family. Historically and in the present context of globalized labor, we emphasize international, regional, and local law as transplanted, intersecting or nested background rule systems in which households form and provide social security, consume, and produce material and other goods. Tsoukala, Abu Odeh, Hila Shamir, Chantal Thomas, and Kerry Rittich provide essays exemplifying this research. The Special Issue begins with an essay by Fernanda Nicola mapping the comparative family law tradition and situating this volume on its critical branch.
Journal Article
Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability
Three recent scientific reports that purport to show a biological basis for homosexuality have changed the face of pro-gay equal protection litigation by making the argument from immutability more attractive. Professor Janet E. Halley critiques these studies and their reception in legal culture. Because immutability is not a requirement for successful pro-gay litigation, moreover, Professor Halley contends that pro-gay litigators who invoke the argument from immutability do so not only at their option, but at the risk of misrepresenting and dividing the community they hope to represent. She argues that progay legal argument should focus instead on common ground that adequately represents the self-conceptions of both pro-gay essentialists and pro-gay constructivists. And she suggests just such a common ground for more effectively articulating pro-gay equal protection arguments.
Journal Article
Where in the Legal Order Have Feminists Gained Inclusion?
Many terms have been invented to describe particular phases of GF: state feminism, carceral feminism, femocrats, female policy entrepreneurs, the “special advisors on gender violence” who dot the international legal landscape . . . the list is long.¹ Each of them focuses on a specific governmental form that feminists have found to be at least somewhat hospitable — in the list we just gave, the state, the penal state, state bureaucracy, “civil society,” and legally authorized experts, respectively. We have selected as an overarching term “Governance Feminism” in order to embrace them all:anyform of state, state-like, or state-affiliated power
Book Chapter