Adam P. Romero, “Methodological Descriptions: “Feminist” and “Queer” Legal Theories”

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Here is the abstract:

This essay reviews Janet Halley’s new book Split Decisions: How and Why to Take a Break from Feminism. While emphasizing Halley’s important insights, the essay argues Halley’s apparent queer break from feminism suffers from several fatal flaws. First, the definition of feminism that Halley offers is incredibly narrow: all feminism is collapsed into dominance feminism and cultural feminism, and then Catherine MacKinnon is allowed to dictate the former and Robin West the latter. Second, because the methodologies long engaged by many feminists do not necessarily entail the substantive commitments of which Halley is critical, the critique Halley seeks is possible without taking a break from feminism. Indeed, feminist methods invite and instantiate the rigor and critique Halley advocates. Third, the idea of a general queer domain, beyond but also critical of feminism, not only fails to account for a great deal of feminist and queer thought, it also incorrectly assumes there is a fixed, stable body of thought called feminism from which to take a break. In reality, feminism is too unsettled for the possibility of its general suspension to be realizable. And because the concept of queer is relational, a premeditated queer domain that is always already outside of or opposed to that which is feminist is problematic as a general, foundational, or unspecific matter. However, as I stress, specific texts can and do countenance a variety of characteristics, such as being feminist and queer, and queer yet not feminist. In making these points, I argue that the terms feminist and queer, when used to modify legal scholarship and legal theory, represent methodological descriptions that do not carry substantive commitments. Some feminist methods include asking the gender question, consciousness-raising, and contextualized reasoning. Queer methodology reflects a contrary positionality vis-à-vis the normative or dominant. If feminist and queer are best understood as descriptions of method, then we cannot know definitively what feminist legal theory and queer legal theory, as such, substantively are or do.

Part I summarizes Halley’s arguments, exploring some of Halley’s valuable insights and registering some important criticisms of her arguments. Part II discusses feminist methodologies and argues the critique Halley seeks is possible without taking a break from feminism. I illustrate this point using Vicki Schultz’s recent work on sexual harassment. Part III takes up Halley’s declaration that Duncan Kennedy’s 1992 article Sexual Abuse, Sexy Dressing, and the Eroticization of Domination is the only sophisticated legal analysis of American sexual regulation that [she is] tempted to call queer. More specifically, Part III considers two questions: What is queer legal theory? And, is a queer domain necessarily split from feminism truly queer and truly possible? By way of a conclusion, I argue that Halley should leave the take-a-break-from-feminism rhetoric behind. It is distracting from, and unnecessary to, the important points Halley makes, which I emphasize in Part I but do not repeat in the Conclusion. Those are: (1) everything feminist and everything spawned from something feminist should be subject to sustained critique; (2) the power feminism engenders and wields must be checked; (3) the inevitable costs that result from feminist projects must be taken into account even though they may not outweigh the benefits; (4) a single theory of sexuality and of power is unattainable and undesirable; and (5) there is value in theoretical, and political, uncertainty, inconsistency, and incommensurability.

The entire essay is available here. Via the Legal Theory Blog.

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