Janice Richardson

Feminist Perspectives on the Law of Tort and the Technology of Risk

O’Malley (2000) uses contract law to illustrate the governance of uncertainty. In this paper, the focus is on the other area of legal obligations: tort law. The first section draws upon the work of François Ewald – who analyses risk and uncertainty within the French codified tradition – to show the extent to which the English common law fits within his Foucauldian approach. The second section demonstrates how the work of both O’Malley and Ewald is complicated by the way in which women have been positioned with regard to risk and uncertainty in the common law. This is examined by considering the way in which the courts have failed to follow legal precedent in the ‘wrongful birth’ cases.

The Changing Meaning of Privacy, Identity and Contemporary Feminist Philosophy

This paper draws upon contemporary feminist philosophy in order to consider the changing meaning of privacy and its relationship to identity, both online and offline. For example, privacy is now viewed by European Court of Human Rights (ECtHR) as a right, which when breached can harm us by undermining our ability to maintain social relations. I briefly outline the meaning of privacy in common law and under the European Convention on Human Rights (ECHR) in order to show the relevance of contemporary feminist thought, in particular the image of selfhood that stresses its relationality. I argue that the meaning of privacy is in the process of altering as a result of a number of contingent factors including both changes in technology, particularly computer mediated communication (CMC), and changes in the status of women. This latter point can be illustrated by the feminist critique of the traditional reluctance of the liberal state to interfere with violence and injustice within the “privacy” of the home. In asking the question: “how is the meaning of “privacy” changing?” I consider not only contemporary legal case law but also Thomas Nagel’s influential philosophical analysis of privacy. Nagel’s position is useful because of the detail with which he outlines what privacy used to mean, whilst bemoaning its passing. I agree with his view that its meaning is changing but am critical of his perspective. In particular, I challenge his claim regarding the traditional “neutrality of language” and consider it in the context of online identity.

Feminism, Property in the Person and Concepts of Self

In this article, I examine the role of the fiction of property in the person in recent feminist debate, comparing Carole Patemans position with those who are more sympathetic to the image of contract for feminist/anti-racist political theory, such as Charles Mills, Jean Hampton and Susan Moller Okin. I then turn to the question of selfhood. As a fiction, property in the person does not say anything regarding what it is to be a ‘self’. However, I explore Balibars rich analysis of Lockes position on identity. I then extend Balibars analysis to argue that the fiction of property in the person is associated with an image of a self that is ‘bounded’ against the outside in a way that is disrupted by this view of identity.

Review Symposium on 'The Force of the Example'

Ferrara, A. (2008) The Force of the Example: Explorations in the Paradigm of Judgment. New York: Columbia University Press.

Christine Battersby and the Law

In this article, Janice Richardson examines some of the implications for legal theory of the work of Christine Battersby, starting with a discussion of her view that dependency should be viewed as the norm. She then considers the way in which Battersby critiques and reworks Kantian metaphysics. By attending to womens position within Kants conception of self, Battersby goes beyond a critique of his image of a self to produce a different image of selfhood. This alternative image is one she sees portrayed in the work of female artists of the sublime, in which selfhood and otherness emerge gradually, in contrast to ones self being cut off from otherness. Richardson illustrates the difference between Battersby and theorists Judith Butler and Jean-François Lyotard, and points to a family resemblance to the Spinozan work of Moira Gatens. After an examination of Battersbys critique of Kantian selfhood and her alternative conception of self, the article concludes by considering the role of history in Battersbys work. Her feminist recovery of past female artists, whose portrayal of the sublime and different views of the self–other relationship were initially dismissed but later re-evaluated, is important. The oeuvre of these artists was marginalized, in part, because they failed to fit within the artistic canon of their time. Later re-evaluation, by Battersby herself, allows us to see how they challenge the boundaries of the canon and puts the canon in a different light. In her analysis of this shift in the canon, Battersby is able to provide a model for philosophy (including politico-legal theory) itself. Her philosophical work illustrates how paying attention to the position of fleshy embodied women within a conceptual framework opens up the possibility of rethinking philosophical concepts, such as the Kantian view of selfhood, and to improve upon them by refusing to treat women (or men) as aberrations from the norm.

The Concept of Harm in Actions for Wrongful Birth: Nature and Pre-Modern Views of Women

Abstract Both judicial and academic analysis of so-called ‘wrongful birth’ cases, in which there is a negligence claim arising from the birth of a child that has resulted from negligent sterilisation or advice, can shed light upon prevailing attitudes to women. In particular, some judgements still reflect ‘pre-modern’ beliefs that motherhood is women’s natural fate in life. Such a position thereby marginalises women’s intentions and life plans with regard to pregnancy and minimises the cost of care to the carer in having a child. This is in keeping with other negligence cases in which care in the home is not treated as having economic worth. The view of what is ‘natural’ is employed to deny agency to women and the way that harm is categorised as either ‘personal injury’ or ‘socially constructed’ mischaracterises these cases. Additionally, this pre-modern view of women is associated with the claim that the wrongful birth cases concern only subjectively perceived harms. It is argued that this is based on a misunderstanding. The fact that an act over-rides a woman’s intentions does not thereby render it merely ‘a subjectively felt’ harm. If she is treated as subordinate, as less than a person then the act raises a moral claim: that the courts should make her equality clear in public. Ironically, by referring to distributive justice rather than applying the usual rules of corrective justice in order to defeat Mrs McFarlane’s full claim for damages, the Law Lords failed to do justice at all.

Untimely Voices: rethinking the politico-legal with christine battersby and adriana cavarero

In this paper, I juxtapose the work of two contemporary feminist philosophers: Christine Battersby and Adriana Cavarero – both working within the Continental tradition – to show how they go well beyond feminist critique to produce different images of self-identity and conceptions of the political. Both reject traditional positions on selfhood but also (in different ways) stress the materiality of bodies and provide alternatives to the work of post-structuralists, such as Judith Butler. My aim is to draw out some of the politico-legal implications of their differing images of selfhood. In the final section I then apply both their (different) approaches to the concept of self to ask how their respective arguments can inform contemporary political questions regarding privacy and dissensus.