Gender Perspectives in Law 1 Dragica Vujadinović Antonio Álvarez del Cuvillo Susanne Strand Editors Feminist Approaches to Law Theoretical and Historical Insights Gender Perspectives in Law Volume 1 SeriesEditors DragicaVujadinović,FacultyofLaw,UniversityofBelgrade,Belgrade,Serbia IvanaKrstić,FacultyofLaw,UniversityofBelgrade,Belgrade,Serbia The series ‘Gender Perspectives in Law’ discusses all-encompassing gender-com- petent legal questions. Having a gender-competent approach is required when considering the highest values and normative standards of modern international, European,andnationallaw.Raisingawarenessaboutgenderequalityissuesmeans investing in the creation, interpretation, and implementation of legislation that is more fair, just, and equitable and will also contribute to a comprehensive under- standing of social reality, as well as to gender-competent political, legal and eco- nomicdecision-makingandpublicpolicies. The series accepts monographs focusing on a specific topic, as well as edited collectionsofarticlescoveringaspecificthemeorcollectionsofarticles. ć (cid:129) Dragica Vujadinovi (cid:129) Antonio Álvarez del Cuvillo Susanne Strand Editors Feminist Approaches to Law Theoretical and Historical Insights Editors DragicaVujadinović AntonioÁlvarezdelCuvillo UniversityofBelgrade UniversityofCádiz Belgrade,Serbia Cadiz,Spain SusanneStrand ÖrebroUniversity Örebro,Sweden ISSN2731-8346 ISSN2731-8354 (electronic) GenderPerspectivesinLaw ISBN978-3-031-14780-7 ISBN978-3-031-14781-4 (eBook) https://doi.org/10.1007/978-3-031-14781-4 ©TheEditor(s)(ifapplicable)andTheAuthor(s),underexclusivelicensetoSpringerNatureSwitzerland AG2023 Thisworkissubjecttocopyright.AllrightsaresolelyandexclusivelylicensedbythePublisher,whether thewholeorpartofthematerialisconcerned,specificallytherightsoftranslation,reprinting,reuseof illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similarordissimilarmethodologynowknownorhereafterdeveloped. Theuseofgeneraldescriptivenames,registerednames,trademarks,servicemarks,etc.inthispublication doesnotimply,evenintheabsenceofaspecificstatement,thatsuchnamesareexemptfromtherelevant protectivelawsandregulationsandthereforefreeforgeneraluse. The publisher, the authors, and the editorsare safeto assume that the adviceand informationin this bookarebelievedtobetrueandaccurateatthedateofpublication.Neitherthepublishernortheauthorsor theeditorsgiveawarranty,expressedorimplied,withrespecttothematerialcontainedhereinorforany errorsoromissionsthatmayhavebeenmade.Thepublisherremainsneutralwithregardtojurisdictional claimsinpublishedmapsandinstitutionalaffiliations. ThisSpringerimprintispublishedbytheregisteredcompanySpringerNatureSwitzerlandAG Theregisteredcompanyaddressis:Gewerbestrasse11,6330Cham,Switzerland Preface The book series Gender Perspectives in Law is a systemic attempt to provide all-encompassing gender-competent legal knowledge. The term gender-competent legalknowledgeisusedtoaccentuatethereconsiderationofdifferentfieldsoflegal knowledge from the point of gender equality approach and with offering relevant andconvincingargumentsinthatregard.Thistermissometimesreplacedwiththe term “gender-sensitive,” which also refers to awareness about the importance of gender equality approach and to its implementing in theoretical and scientific knowledgeproduction. Having a gender-competent approach in legal education is required when con- sidering the highest values and normative standards of modern international, European, and national law. Raising awareness about gender equality issues among researchers and academic scholars in the field of law and other multidisciplinary fields relevant for legal theory and practice, educating in a gender-sensitive manner law students (future lawyers, judges, prosecutors, public officials, members of parliament, and governmental bodies), as well as students of humanities-social sciences, means investing in the creation, interpretation, and implementation of legislation that ismore fair, just,and equitable. Prosecutors and judgesinparticular,butalso otherlegalprofessionalsinallfieldsoflegalpractice, publicadministration,andpolicydecision-makingneedtobetrainedandsensitized inordertoencourageagender-sensitiveapproach.Thiswillcontributetoamorerich and comprehensive understanding of social reality, as well as to gender-competent political,legal,andeconomicdecision-makingandpublicpolicies.Inotherwords,it meansinvestingintothefuturebasedonmoregenderjusticeandmoresocialjustice andhumanrightsprotectioningeneral.Intheend,itwillhelpfulfilltheessenceof contemporarylaw—equalrespectandprotectionforallindividuals,whichleadsto theirequalopportunitiesanddiminishesthepossibilityofgenderdiscrimination. This book series, Gender Perspectives in Law, attempts to cover all relevant subjects of legal knowledge from a gender equality perspective. The plural desig- nation is entitled because there is a plurality of feminist understanding of gender equality issues generally speaking and insofar also within the law. The call for v vi Preface papers was open for professionals in legal, political, sociological, and historical fields of interest with an attempt to cover, as much as possible, specific relevant topics,inordertoprovideanoverviewofthegender-competentdeconstructingand reconsidering the way they are articulated in the dominant thought, i.e. the main- stream within the law. The authors in the series volumes try to establish a gender equalityapproachtodifferent fields of lawwhiletaking into considerationspecific issues of their interest and attempting to consider chosen different aspects of legal knowledgeandpracticeinaparadigmaticgender-competentmanner.Theyattempt tocriticallyreconsiderthedominantmoldsoflegalknowledgeandpresentinnova- tive gender-sensitive and gender-competent insights relating to different issues withinallfieldsoflaw,inordertointroducenewresearchtopicsrelevantforgender equalityinlaw,as well asto stimulatethe development ofa legal and institutional framework for achieving gender equality in real life. The degree to which main- streamknowledgehasbeenreconsideredfromagenderequalityperspectivediffers between contributors. Moreover, a variety of relevant legal subjects and other closelyrelatedsubjectmattersarecoveredinvaryingdegreesbytheselectedtexts. The book series Gender Perspectives in Law encouraged scholars and experts fromdifferentfieldsoflawandhumanities-socialsciencestoreconstructtheirlegal andmultidisciplinaryknowledgefromthestandpointofgenderequality.Thisbook series shouldinspirefurtherattemptsofthiskind,asareconsiderationoflegaland multidisciplinary knowledge from a gender perspective has become an axiomatic task.Ifcontemporarylawisdefinedprimarilyfromthehumanrightspointofview, thenitisnecessarytotakeagenderequalityperspective;thehumanrightsfounda- tion of law cannot be regarded as the civilizational standard without also incorpo- ratingwomen’srightsandgenderequalityapproachingeneral,articulatingthemin themainstreamlegalandpoliticalthought,andeliminatinggender-basedbiasesand discriminationwithinthedominantlegalsystems. The book series Gender Perspectives in Law represents the added value to the projectErasmus+StrategicPartnershipinHigherEducation,called“NewQualityin Education for Gender Equality - Strategic Partnership for the Development of Master’sStudyProgramLAWANDGENDER,LAWGEM.” The book Feminist Approaches to Law—Theoretical and Historical Insights offersthebackgroundtheoreticalandhistoricalanalysisforthebookseriesGender Perspectives in Law. Impacts of feminist political and legal theories, as well as critical legal studies, have been embedded in all the papers in different ways and scopes. Differences among feminist political and legal ideas are visible in the different approaches. The ongoing issue of defining gender, for example, is a recurring theme in the texts. There are papers that question the binary basis of the gender issueand thenotion ofgender assuch. Others startfromthe binary dichot- omy and attempt to expand the consideration toward a multi-dimensional under- standing of gender identities. The main focus is feminist reconsideration of all relevant fields of legal knowledge. The primary aim is to demystify the seemingly neutral character of legal norms and legal knowledge and highlight the power relations at different layers, beginning with male and female legal subjects of Western heredity (in terms of culture, ethnicity, and race), then moving on to Preface vii different needs and power relations among female persons of different races and classes, and finally moving on to differentiating gender relations and identities beyond the framework of the women–men binary dichotomous codification, i.e. also taking into consideration the multiple options of intersex, transgender, queering,etc. Taking seriously the issue of the “maleness” of political and legal theories is indeed a challenging and relevant endeavor for legal scholars. The male bias is present not only throughout history but also nowadays, given that our “universal” categories of political and legal thought are still overburdened by unequal-power relations. It is also important to open our minds and knowledge production for a gender-sensitive and gender-competent intersectional approach, which would include also different queer-, race-, class-based considerations. These tasks should beacceptablenotonlyforcriticallegalscholarsbutalsoforallthosebelongingtothe mainstreamlegalandpoliticalthought. Thepapersdealwithverydifferenttopicsrelatedtofeministpoliticaltheories,the feminist movement, critical race theory, critical legal history, queer theories, adul- tery,aswellasissuesrelatedtoconstitutionaldemocracyandtheoriesofdemocracy ingeneral. The convergingaim and axis isgenderequality—its clarification, artic- ulation,promotioninlegaltheoryandpractice.Interestingandindicativeenoughis the fact that there are authors from many countries spanning across different continents. The global relevance of the gender equality perspective in legal educa- tion, legislation, and legal professions has been expressed and confirmed in the contentandauthorshipofthisbook. This book includes papers written by Dragica Vujadinović, Amalia Verdu, Adrien Wing and Caroline Pappalardo, Damir Banović, Marion Röwenkamp, and NinaKršljanin. Dragica Vujadinović assumes that traditional political philosophy had been by definitionbasedongenderinequality,onreducingwomentopatriarchalfamilyrole and reproductive function, due to a dominance of patriarchal matrix in both the private and public sphere of pre-modern societies. Insofar, the sharp dominance of male authors—writings by men, for men, and about men had been self- understandable.Modernitybroughtwithacrucialimpactofpoliticalandindustrial revolutions (among other factors), the break through the dominance of patriarchy (although without its abolishing). Modern political and legal theories of human rights and constitutional democracy do contain emancipatory ideals of universal humanrights,equality,liberty,justice,democracy,whichcouldorshouldhavebeen interpreted in a gender-competent way. However, they most often forget issue of gender equality when considering the realm of politics. Their capacity for deconstructing and critically overcoming patriarchal heredity in values and ideals hasmostlybeenlostintheirunderlying“male-dominated”articulationofallegedly universalideas.Ontheotherhand,therearealsomodernandcontemporarytheories which continue with promoting patriarchal values and power relations in a philo- sophically relevant manner. Vujadinović assumes as crucially important that most progressivecontemporarytheoriesofhumanrights,theoriesofjusticeandconstitu- tional democracy could and should overcome their gender blind approaches. She viii Preface usedtheexampleofRawls’theoryofjusticetodemonstratehowgender-competent approach could be introduced in order to advance this theory of justice with essentially necessary elements of gender justice. The author points to feminist attempts toward assigning new meanings to traditional categories of political and legal thought and introducing “new” categories such as family, body, sexuality, privacy, care, community into the politicaldiscourse. She also accentuates that the feminist approach aims at transcending the discourse based on the binary opposi- tions of male/female, private/public, which is typical for the Western tradition of political and legal thought, and also insists on the fact that formal equality far too oftenmasksdeeplyrootedgenderinequalitiesandinsofarasubstantiveequalityhas tobethematterofgenderequalityachievement.Thefeministtransformationofthe main political categories leads toward compromising the universality of the ideals andthedelegitimizationofmalepower.Theauthorstatesthatthefeministperspec- tive means also the methodological shift linked to the introduction of “gender lenses” into political and legal reasoning. The feminist perspective aims to main- streamgenderissuesinthepoliticalandlegaldiscourse.Theauthordemonstratesthe feminist revision of old political conceptions in their interaction with new ones throughabriefconsiderationofthenotionsofcare,community,andprivacyasthe “new” political concepts in their interplay with the “old” political concept of democracy and power. Vujadinović concludes that it is of a critical importance thatgender-competentreasoningbecomesa“self-understandable”dimensionofthe discourseandmindsetsofmaleandfemalepoliticalthinkers,andthatreconsidering ofallconceptsandconceptionsthroughthelensesofgenderequalityshouldbecome thestandardforthequalityofpoliticalandlegalknowledge. Amalia Verdu undertakes a theoretical endeavor of reconsidering the very con- ceptofgender.Theauthordoesthisinlinewiththepostmodernfeministquestioning of the term gender as confined in its nature to the binary framework which repro- duces patriarchal assumptions, proposing the binary heteronomous relations as the pre-givenones.Shepointstotheuseofthetermgenderinthesamecontextassex, sexual harassment, social sex, or cultural oppression. Furthermore, with the term gender, the author assumes that we can refer to sex roles, stereotypes, status, individual attribute, relations, socialization, social organization, part of the psyche or consciousness, power, disciplinary device, structure, difference, exclusion (whetheruniversalorhistorical),andideology.Thisallcontributestotheconfusion. Inaddition,theauthor remarksthatforsome personsthetermgender isconceived within a binary framework, while for others it reflects fluidityand diversity. These different approaches to the concept of gender seem to complicate its use in law which mostly prefers established normative factual concepts. Her focus is on reconsidering the meaning of gender in law, and for that purpose, she elaborates on its development within feminism and in law. Verdu acknowledges that the elimination of sex categories raises concerns among many scholars because it jeopardizes the existence of women as political subjects and assumes that these concerns are justified because women are still facing violence and discrimination simply for being women in today’s society. Women’s discrimination and the exclusion of intersex and those not fitting into the binary concept of sex are two Preface ix different problems that require different strategies that need to be carried out in parallel: one to blur the existing fixed categories and another to fight women’s discrimination.Thesetwostrategieswouldallowustofightthecurrentdiscrimina- tion against women, while allowing society to distance the concepts of man and womanfromtheirinheritedsymbolismandincludetrans-,intersex,orgenderqueer persons,withoutinvokingthebinary.Accordingtotheauthor,theheteronormative binaryisembeddedinthelaw,andthusthelawcausesharmbydiscardingallthose whodonotbelongtothebinaryandbyreifyingabinary,whichisalsodetrimental forwomen.ThepermanentblindnesstoOtherscontinuestounderminetheneutral- ity, equality, and universality of the values on which the law’s legitimacy shouldrest. Adrien Wing and Caroline Pappalardo present important insights to the global professional public about the specificity of feminist thought coming from black womenandwomenofdifferentraces.Criticalracefeminismhasbeencondemnatory of white middle-class feminists who ignore the intersectional problems of poor women of different non-white races, who face universal women’s challenges as wellasspecificproblemsofsubordinationtothemenoftheirracesandtothewhite race as a whole, including white women. Critical race feminism has a global extension through the feminist movements of Latin America, post-colonial coun- tries, and other parts of the Third World. This theoretical and practical feminist streamhasitsrootsincriticallegalstudies,criticalracetheory,andfeministtheory, but combines elements of all of them (deconstructing the essentialism of the traditional legal thought, pointing critically to the domination of men of all races overfemalepersonsoftheirraces,andalsopointingcriticallytothedominationof whitewomenoverfemalepersonsofotherraces).Criticalracefeminismhasgreatly contributed to the legal discourse of human rights and highlighted the plight of womenofcolor,sometimesbyutilizinganarrativemethodologyinacademicworks. Criticalracefeministsusethenarrativestructuretorelatetheirindividualandshared experiences with their audience. It puts the focus on women of color and their particular problems, and uses the intersectional approach as the default method, while crossing gender issues with all other sources of discrimination (sex, class, sexual identity, religion, cultural identity). The authors argue that spreading the knowledge about critical race theory has been of the utmost importance for devel- opingawarenessabouttheconfinesoftraditionallegalscholarship,whichiswhite, male-centered,andallegedly“objective,”andthereforestimulatestheovercomingof themainstreamlegaltheory’sinheritedlimitations. Damir Banović explores the notion, concept, and method of queer legal theory. The author gives an overview of queer legal theory and summarizes all relevant issues and opens all problems that arise from considering this new and complex topic.HeusesthelegacyofAmericanlegalrealism,criticallegalstudies,postmod- ern political and legal theories, and feminist political and legal theories, to extract fromthemelementsthatcancontributetobuildingthemethodologiesofqueerlegal theories.Queerlegaltheory,accordingtoBanović,sharesandbuildsuponmanyof theinsightsaboutsexandgenderdevelopedandarticulatedbycriticallegalstudies and critical feminists. A basic strategy of queer legal theorists is to challenge the