Women, Ecology and the Law
In every known society, the male’s need for achievement can be recognised. Men may cook, or weave, or dress dolls or hunt hummingbirds, but if such activities are appropriate occupations of men, then the whole society, men and women alike, votes them as important. When the same occupations are performed by women, they are regarded as less important.
Margaret Mead, Male and Female
The treatment of environmental issues by traditional law and legal theory is not gender neutral. Examining this notion, this essay considers how feminist jurisprudence may further contribute to influencing the legal traditions that validate our current exploitative relationship with our environment. By reference to a growing literature on ecofeminism I have made observations and suggestions as to how I see feminist jurisprudence may provide an enhanced critique of the manner in which the law validates our present exploitative demeanour. Premised on the belief that a continuation of our contemporary relationship with ecological systems is likely to increase scarcity and competition for resources, and thus exacerbate existing inequalities, I believe the legal advances achieved to date by feminist jurisprudence may become threatened by cultures experiencing increasing stress.
Given the enormous task society has in addressing legal inequalities between genders, it is perhaps unsurprising that the areas of women, the law, and the environment appear not to have crossed into the other two disciplines respectively. Whilst a growing ecofeminist movement is establishing a literature dealing with human exploitation of women under a male hegemony legitimised through ‘legalised means’, and the developing area of environmental law has increasingly challenged the role of ‘man’s dominion over the Earth’, there doesn’t appear to be any appreciable bridge so far formed between the two areas of legal critique. This is a pity, as the manner in which men as the dominant group within societies have interacted with other entities within their environment, be they women, the underprivileged or the non-human world, has largely followed a pattern of arrogant diffidence to the needs of the other. If, as Catherine MacKinnon suggests, feminist epistemology views the mind and world as interpenetrated[1], by bridging the connection between the way we interact with our environment and the incorporation of inequality into our legal framework, I think the influence of feminist jurisprudence may facilitate and encourage reform of environmental and other law that will have far reaching benefits.
Achieving equality within the Enlightenment tradition appears to have consumed so much of feminist legal theorist’s energy for reform, that they appear to have taken little opportunity to establish a critique of women as part of the human species that seeks to dominate and exploit the biosphere. In a crude sense, I describe this as replacing male domination over women and nature, by male and female domination over nature. Whilst many people would argue that human culture and intelligence afford us that opportunity, and some might say ‘right’, the increasing degradation of the biosphere suggests this is a power relationship that will not continue indefinitely.
The desire of ‘mankind’ to subdue and control nature has prefaced the modernity project, and continues as a strong theme in contemporary jurisprudence. Rather than seeking to ‘set the record straight’, I believe feminist aspirations concerning ecology and law are more likely to be realised by challenging the nature of legal theory itself. Building on Foucault’s notion that truth itself has become a means by which a variety of regimes have been able to assert themselves, I believe feminist desires will be more valuably expressed through honest concerns about domination and exclusion[2], rather than being constrained by arguing within the existing framework of rational ‘proof’ and truth seeking. Employing the consciousness raising tradition that Catherine MacKinnon considers distinguishes feminism[3], I believe feminist jurisprudence has an opportunity to establish a critique of the male dominated notions of exploitation and domination that influence the way legal theory and practice relates to the environment. Whilst I agree with Carol Smart’s criticism of MacKinnon’s proposition that radical feminism as such, represents an ultimate truth[4], given the complex nature of the issues I have sought to consider and the surprising lack of material dealing with the relationships between women, ecology and the law, it is both beyond my ability and desire to announce any such notions as superior or more insightful than those of other theorists.
The Legitimation Of Domination By Men
Feminism turns theory into itself, the pursuit of a true analysis of social life, into the pursuit of consciousness, and turns an analysis of inequality into a critical embrace of its own determinants. The process is transformative as well as perceptive, since thought and thing are inextricable and reciprocally constitutive of women’s oppression, just as the state is coercion and the state as legitimating ideology are indistinguishable, and for the same reasons.
Catherine MacKinnon, Toward a Feminist Theory of State, 84.
Western political philosophy implies a model of universal human nature and experience, with the universal imposition of the Enlightenment idea of modernisation seen as an improvement typically proffered by the West to developing countries. Traditional views of the state as the guarantor of welfare has meant that movements by women to attain the same opportunities to engage in the activities of the state as men have provided a basic source of division and definition in political society.[5] Human interaction with the biosphere has typically been subjugated to the hegemony of ‘man’s dominion over the Earth’, with women and the biosphere treated by the law as man’s chattels, whereby the facility provided by each in turn was viewed as a contribution towards what Francis Bacon described as the “relief of the inconveniences of man’s estate.”[6] Given the enormous burden that reform measures have placed on feminists wishing to redress the inequalities and injustices foisted upon them by the men who dominate the legal bureaucracy that coercively guide our lives, it appears there has been relatively little attention focussed within legal theory concerning the interaction of women, ecology and the law.
In this essay I wish to consider the suggestion by Gilligan that women have a unique degree of access to potential nurturing roles, and contrast it with the view of Catherine MacKinnon who focuses on women’s experiences and views for guiding a critique of legal reasoning.[7] I also wish to explore the notion that as the application of formal justice principles within law reinforce discrimination and substantive inequality, the overcoming or at least recognition of the alienation that persists in the isolation of suburban women (and men) who, even though they may live in materially rich conditions, suffer exploitation through marriage, parenthood, psychiatry and consumerism.[8]
Law And The Environment
For environment a traditional lawyer reads property. Establish ownership or possession and the armoury of the English legal cupboard is yours to command.
The Challenge of the Environment in English Law - the New Dimension, 59.
Legal consideration of the natural environment has been very unsophisticated. Common law treatment of ecological interaction is typified by a utilitarian ethic such as that espoused in Property Law which gives the environment a value according to its utility. The case of Rylands v Fletcher[9] which considered the implications of careless ‘management’ of resources deemed to be under one party’s control affecting another party, simply limited the extent of its implications to the damage and inconvenience it brought human habitants. Environmental law has not enjoyed acceptance as a legitimate classification of legal concern[10], in much the same way that women’s concerns about formal and substantive inequalities have seen the resistance of the legal profession as a whole to incorporate feminist legal theory critique. Whilst environmental law is by no means a new area of legal concern[11], it has only recently gained greater credence as an inter-disciplinary area of significance in its own right, and although the growth in environmental law reflects an increasingly growing area of legal concern, issues of environmental law continue to meet the same issues of establishing ‘legitimacy’ that feminist legal theory has experienced in its own development. The connection between the two is not simply coincidental.
Our legal framework has been constructed on a partial account of the world. Australian legal theory and practice have developed within a society that has constructed the social categories of ‘man’ and ‘woman’ as unequal, with the legal process having been an integral part of both the construction and maintenance of this inequality. As utilitarian views expressed in legislation, land use planning and management policies have dominated traditional evaluation methods of economic and environmental impact, assessments of the consequences of our activity have typically failed to reflect ecological values.[12] As law tends to assume in a self proclaimed fashion its role as the ‘administrator’ of the environment, similar issues arise as for women facing subjugation as the ‘other’ in the way patriarchal social networks have assumed the control of women’s lives. The notion of social ecology, associated strongly with the thoughts of Murray Bookchin, and the growing voices of ecofeminists such as Ariel Salleh and Carol Merchant, question and challenge these processes in calling for a greater social involvement in addressing power inequalities realised in the representation of interests in the way we conduct our activities.
Feminism And Ecology
“We have got to the stage where women are finally saying ‘the emperor has got no clothes’. You can’t whitewash women any more. Our arguments are too sophisticated and have gone way beyond what are ordinarily considered feminist issues.”
Peggy Antrobus, speaking at the Global Forum, Rio de Janiero, June 1992.[13]
Feminist debate of ecological issues tends to agree that important connections exist between women’s oppression and the oppression of nature[14], but they often disagree about the nature of those connections and whether those connections may be “potentially liberating or simply a rationale for the continued subjugation of women.”[15] Therefore, whilst many feminists agree that ecology is a feminist issue, there is disagreement about the nature and desirability of environmental feminism, of which the best known perspective is ecofeminism, as a legitimate form of critique.[16] The underlying thesis of ecofeminism is that irrespective of our awareness of it, each of us operates from a socially constructed conceptual framework which shape, reflect and explain our self perception and worldview, whilst a patriarchal conceptual framework is one that takes traditionally male-identified beliefs, values, attitudes and assumptions as the only, or the standard or superior ones. This gives those notions supporting patriarchy higher status to entities traditionally identified as male than to what have been traditionally identified as female.[17] The relatively recently articulated notions of ecofeminism, derived mainly from a fusion of radical cultural feminism and ecological environmentalism add a vital element to the construction of an understanding of how patriarchal systems of domination have both evolved and been reinforced through the legal mechanisms we subscribe to.
Ecofeminists generally believe that patriarchal value-hierarchical thinking supports the generation of normative dualisms, where higher value is attributed to one entity over another. The connections between oppression of women and oppression of nature are therefore conceptual, and what ecofeminism encourages us to do is to think about the ways we construct our lives and to think ourselves out of “patriarchal conceptual traps.”[18] Patriarchal conceptual frameworks, characterised by value-hierarchical thinking, typically lead to a logic of domination that explain, justify and maintain the subordination of an ‘inferior’ group by a ‘superior’ group, whilst denying that oppression is accompanied by this regime.[19] This blindness to the presence of domination is reflected in ‘official’ perspectives on the traditional role of women and their interactions with their environment, such as the 1992 United Nations Conference on the Environment and Development. Whilst women compose 53% of the world’s population, but carry out an estimated 65% of the world’s work for 10% of the world’s pay[20], the continued ‘official’ blindness of large legal bureaucratic organisations such as the U.N. to the role women seems to only exacerbate the widespread misconception that men continue to ‘manage’ the Earth. Although the role of women in environmental management is frequently appreciated locally, recognition that women’s contributions were equal, if not greater in value to men, only really emerged in the late 1980’s[21], and as I infer, is yet to be meaningfully reflected in policy.
Ecofeminist Critiques of Feminism Legal Theory Frameworks
Politics traditionally is about domination, of one ideology over another. Ecofeminism is about ending domination - social, economic, racial, environmental and sexual. Ecofeminists don’t want to reform, they want to change the very rules by which society operates.
Virginia Westbury, Ecofeminising Australia, 90.
Ecofeminist critiques of how instruments of coercion such as the law oppress both women and nature centre around four elements.[22] These are i) that there are important connections between the oppression of women and the oppression of nature; ii) that understanding the nature of these connections is necessary to an adequate understanding of the oppression of both women and nature; iii) that feminist theory and practice must include an ecological perspective; and iv) that solutions to ecological problems must include a feminist perspective.
Whilst feminists agree that the oppression of women exists, is wrong and ought to be overcome, the foundations for their beliefs and the strategies they employ for overcoming these sometimes differ widely. Although feminist streams of thought are categorised under the headings of, inter alia, liberal feminism, radical feminism, cultural feminism and Marxist and socialist feminism, more recent scholarly work such as that by Carol Gilligan suggest that “these conceptual straitjackets now conceal more than they reveal.”[23] In order to show that feminist legal theory is not a static thesis unsympathetic to reconceptualisation, in reviewing the development of feminist legal thought I have provided a brief consideration of each of these categories in relation to ecological thought. Employing Ngaire Naffine’s analysis, I conclude by suggesting that an increased legal and community awareness of ecological issues may precipitate the evolution of a fourth phase of feminist legal theory which melds the notions of ecofeminism and feminist jurisprudence in a more concrete fashion.
Liberal Feminism
Liberal feminism maintains the belief that gender equality is achievable within a liberal framework, and is premised on the assumption that past and present inequalities have developed mainly through male prejudice. As the oppression of women is based on the lack of equal legal rights and unfair disadvantages in the legal domain, the liberation of women requires the elimination of those legal and social constraints that baulk self determination. Founded on the assumption that people are essentially separate rational agents, liberal feminist epistemology sees the attainment of knowledge as an individual project that can achieve equality through a value-neutral intersubjectively verifiable development of universalisable rules.[24]
As a framework for understanding the complexity of issues involved in environmental issues, liberal feminist epistemology is limited. A major shortcoming of liberal feminism is that it’s premises tend to rest upon notions of equal rights and equal opportunities for women, and possess an implied demarcation line delineating humans from nonhumans alongside claims to moral consideration of both groups on the alleged rights or interests of solely humans. This means that liberal feminists who articulate a stance on ecological issues such as protection of endangered species, animal experimentation, and anti-nuclear and peace movements amongst others, tend to be grounded in the notion of the rights, interests of present or future human populations.[25] A second implication is that moral consideration extended to qualified nonhumans, as rational sentient interest carriers, deserve moral consideration. This theme surfaces frequently in debates over animal liberation, fitting roughly under two umbrellas. Firstly, those typified by the rights based theory of Tom Regan which postulates that nonhuman animals have moral rights against humans who have obligations to treat them in particular ways[26], and secondly, the utilitarian based version of proponents such as Peter Singer who see human obligations to nonhuman entities as based in the belief that failure to acknowledge in theory and practice the likelihood that these nonhuman entities feel pleasure and pain is an undesirable expression of ‘speciesism’ analogous to, inter alia, sexism.[27]
Kathyrn Pyne Addelson, in criticising the liberal feminist ethical tradition, argues that biases in our worldview such as these “allow moral problems to be defined from the top of various hierarchies of authority in such a way that the existence of authority is concealed, and so the existence of alternative definitions that might challenge that authority and radically change our social organisation is also concealed.”[28] Continued subscription to a patriarchal conceptual framework based on value-hierarchical thought and oppositional normative dualisms within liberal feminism and the extreme individualism it embodies tend to conflict with the holistic interconnected frameworks typifying ecofeminist perception of human involvement in the biosphere. Suggesting that this conceptual framework will require a revolutionary change in ethics to remedy, Addelson says as liberal feminist ethical tradition makes the assumption that defining moral problems from the top of the hierarchy is the ‘official’, ‘correct’ or ‘legitimate’ point of view[29], it fails to recognise that “dominant-subordinate social structures are the creators of inequality.”[30]