This thesis investigates a current debate within feminist theory, and specifically within feminist legal theory, about how to challenge the liberal construction of women's subjectivity. It contends that positioning women as either equal to or different from the universalised liberal subject (based on male experience) fails to recognise women's experience as diverse, and differentiated. This thesis explores this issue through the empirical area of the treatment in the public sphere (constituted by the state and the law) of domestic violence, and of domestic violence survivors who kill their abusive spouses. It argues that the current feminist jurisprudential responses to the battered woman who kills, articulated through criticisms of the Battered Woman Syndrome, identify the need to challenge the binary oppositional framework in which these cases are decided and discussed by liberal legalism. However, it suggests that these responses do not ground their discussion in the historical preconditions which gave rise to the debate and the feminist framework in which that debate is conducted. This thesis argues that an historical re-examination of the ways in which women's experience of domestic violence, as well as the law's reading of it, was constructed is an important contribution to feminist legal theory. It undertakes this historical re-examination by situating the Battered Woman Syndrome and domestic violence within the struggles and campaigns of feminism in the past, especially feminism as it developed through the Women's Liberation Movement of the 1970s. It argues that the understanding of women and women's experience as diversely constituted through this period is essential for an understanding of current debates. This thesis represents an interdisciplinary feminist legal history. It uses both the method and evidence of history to challenge the legal understandings of battered women who kill. It posits that an interdisciplinary engagement between postmodern legal and historical theories, which contest objective assessments of subjects' experience, allows for a more complex and comprehensive assessment of how to approach, and critique, the Battered Woman Syndrome. It suggests that this can be accomplished by applying the techniques of narrative developed in historical theory to feminist legal theory. It therefore posits that a postmodern methodological approach, realised through a genealogical investigation of the subjectivity of battered women, is of value in the current debate about how to deal with the paradox presented by feminism's engagement with liberalism, and evidenced through the law's assessment of the battered woman who kills.

This thesis investigates a current debate within feminist theory, and specifically within feminist legal theory, about how to challenge the liberal construction of women's subjectivity. It contends that positioning women as either equal to or different from the universalised liberal subject (based on male experience) fails to recognise women's experience as diverse, and differentiated. This thesis explores this issue through the empirical area of the treatment in the public sphere (constituted by the state and the law) of domestic violence, and of domestic violence survivors who kill their abusive spouses. It argues that the current feminist jurisprudential responses to the battered woman who kills, articulated through criticisms of the Battered Woman Syndrome, identify the need to challenge the binary oppositional framework in which these cases are decided and discussed by liberal legalism. However, it suggests that these responses do not ground their discussion in the historical preconditions which gave rise to the debate and the feminist framework in which that debate is conducted. This thesis argues that an historical re-examination of the ways in which women's experience of domestic violence, as well as the law's reading of it, was constructed is an important contribution to feminist legal theory. It undertakes this historical re-examination by situating the Battered Woman Syndrome and domestic violence within the struggles and campaigns of feminism in the past, especially feminism as it developed through the Women's Liberation Movement of the 1970s. It argues that the understanding of women and women's experience as diversely constituted through this period is essential for an understanding of current debates. This thesis represents an interdisciplinary feminist legal history. It uses both the method and evidence of history to challenge the legal understandings of battered women who kill. It posits that an interdisciplinary engagement between postmodern legal and historical theories, which contest objective assessments of subjects' experience, allows for a more complex and comprehensive assessment of how to approach, and critique, the Battered Woman Syndrome. It suggests that this can be accomplished by applying the techniques of narrative developed in historical theory to feminist legal theory. It therefore posits that a postmodern methodological approach, realised through a genealogical investigation of the subjectivity of battered women, is of value in the current debate about how to deal with the paradox presented by feminism's engagement with liberalism, and evidenced through the law's assessment of the battered woman who kills.

Thesis, LLD--University of Pretoria, 2005. / Includes summaries in Afrikaans and English. Includes bibliographical references.

Many women have shared with family lawyers such as myself their stories about how the legal system marginalized their maternal connections and child caregiving experiences by imposing on them legal positions and constructs about mothering and caring that differed from the reality of their experiences. This thesis develops the argument that neither the litigation nor the mediation of child custody disputes in Canada address the systemic problems association with the marginalization of women. Both processes reflect white, male, middle class, heterosexual expressions, productions and perpetuations of patriarchy. I first define the dominant ideology of motherhood and present differing mothering experiences which more accurately reflect the realities of caregiving. I then deconstruct the legal and social methods used in both the litigation and mediation of child custody in order to demonstrate their use of dominant ideologies of motherhood and family to limit women’s caregiving opportunities. From the context of two women’s legal experiences, I explore the possibility of introducing feminist legal methods into mediation and litigation in recognition of the fact that women must engage with the legal system to address the practicalities of childcare, economics and shelter. I respond to the popular argument that mediation is a panacea to the ills of litigation by taking the position that both are situated along a continuum perpetuating the same ideological assumptions about mothers and family which oppress all women to some degree. I argue that mediation is ultimately more oppressive to women because unlike litigation, systemic problems in mediation are obscured by romanticism and rhetoric. Firstly, I attempt a mother and child reunion by trying to create a place for feminist conceptions of caregiving within child custody litigation and mediation which would empower women. I conclude that it will be difficult to create a space for feminist methodology in custody litigation and mediation without the continued efforts of lawyers to reconstruct the ideology of mother.

Thesis (M.A.)--Carleton University, 2001. / Includes bibliographical references (p. 85-93). Also available in electronic format on the Internet.

Many women have shared with family lawyers such as myself their stories about how the legal system marginalized their maternal connections and child caregiving experiences by imposing on them legal positions and constructs about mothering and caring that differed from the reality of their experiences. This thesis develops the argument that neither the litigation nor the mediation of child custody disputes in Canada address the systemic problems association with the marginalization of women. Both processes reflect white, male, middle class, heterosexual expressions, productions and perpetuations of patriarchy. I first define the dominant ideology of motherhood and present differing mothering experiences which more accurately reflect the realities of caregiving. I then deconstruct the legal and social methods used in both the litigation and mediation of child custody in order to demonstrate their use of dominant ideologies of motherhood and family to limit women’s caregiving opportunities. From the context of two women’s legal experiences, I explore the possibility of introducing feminist legal methods into mediation and litigation in recognition of the fact that women must engage with the legal system to address the practicalities of childcare, economics and shelter. I respond to the popular argument that mediation is a panacea to the ills of litigation by taking the position that both are situated along a continuum perpetuating the same ideological assumptions about mothers and family which oppress all women to some degree. I argue that mediation is ultimately more oppressive to women because unlike litigation, systemic problems in mediation are obscured by romanticism and rhetoric. Firstly, I attempt a mother and child reunion by trying to create a place for feminist conceptions of caregiving within child custody litigation and mediation which would empower women. I conclude that it will be difficult to create a space for feminist methodology in custody litigation and mediation without the continued efforts of lawyers to reconstruct the ideology of mother. / Law, Peter A. Allard School of / Graduate

Thesis (J.S.D.)--Stanford University, 2006 (leaves 342-377). / Submitted to Stanford Law School. "December 2005."

Thesis (Ph. D.)--Carleton University, 2002. / Includes bibliographical references (p. 129-138). Also available in electronic format on the Internet.

Thesis (Ph. D.)--University of Oregon, 2006. / Typescript. Includes vita and abstract. Includes bibliographical references (leaves 176-185). Also available for download via the World Wide Web; free to University of Oregon users.

This study addresses the extent to which feminist jurisprudence literature has developed the potential to initiate a legal paradigm shift leading to legal and consequent social change that would alleviate gender inequality. Drawing upon Kuhn's (1970) and Stacey and Thorne's (1985) arguments, I theorized that for a paradigm shift centered upon women and women's experiences to occur, feminist jurisprudence, particularly second- and third-phase feminist jurisprudence, needs to be incorporated into, and accepted by the mainstream. Through quantitative analysis I evaluated, first, the publication and citation patterns and the diffusion of feminist jurisprudence litearature as evidenced in articles published between the years 1983 and 1994 in legal journals assigned impact factors by the Social Science Citation Index. Second, using content analysis, I classified feminist jurisprudence articles published in the subfields of family and penal law --theorized to differ in degree of androcentrism-- according to the three phases of feminist jurisprudence theory. My quantitative analysis showed that the number of feminist jurisprudence articles published in mainstream legal journals is increasing over time. Further, feminist jurisprudence articles published in legal journals with higher impact factors tend to receive larger numbers of citations than articles published in journals with lower impact factors. Finally, although the overall impact factor of journals publishing feminist jurisprudence articles is declining, feminist jurisprudence literature is present among a wide spectrum of legal specializations. My qualitative analysis showed that there was an equivalent number of family and penal law articles which exhibited second- and third-phase characteristics. However, family law articles tended to cover a wider range of topics than penal law articles. Furthermore, family law scholars were more likely than penal law scholars to address issues of differences among women and feminists, thus, exhibiting third-phase characteristics. In constrast, penal law scholars tended to focus upon differences between feminists and non-feminists and the practical difficulties resulting from the structure, organization and practitioners of the criminal justice. Overall, my analysis showed that feminist jurisprudence appears to have developed the potential to initiate a paradigm shift within the legal discipline. However, in addition to feminist theorizing, feminist activism is important for the realization of legal and social changes that will alleviate gender inequality. / Ph. D.