When feminists seek to organize in order to create change, the process of organization is always centered on an understanding of the law; how the law can be utilized or manipulated to improve the lives of women. Because we understand rights to be things we “cannot not want,”[i] we cannot help but turn to the law and a language of rights when we desire change. This close relationship to the epistemology of law requires an understanding of how one is recognized by the law as a subject underneath it. The formation of subjects, and consequent representation for them, mandates an understanding of which bodies get to claim subjecthood, what their rights are as subjects, and how the judicial system interprets and imagines its subjects.
The welfare debate is very much in conversation with our understanding of rights under the law and, as Gwendolyn Mink asserts, the group that welfare most directly affects (single poor mothers) can be looked upon as the barometer for the rights of women everywhere because of what the welfare debate illuminates; the way we think about women’s work and how that work is recognized in a global capitalist system. In an economic climate where one’s subjecthood under the law is inextricably tied to one’s function as a consumer/producer/laborer within the larger framework of capitalism, the position one assumes as a woman laborer is key to one’s acquisition of rights. In her essay “Women Workers and Capitalist Scripts” Chandra Mohanty argues that there has been “a creation of the consumer as ‘the’ citizen under advanced capitalism…(and) this definition of the citizen-consumer depends to a large degree on the definition and disciplining of producers/workers on whose backs the citizen-consumer gains legitimacy.”[ii] Under this model, we see the necessity of the invisibility of Third World women laborers in order to maintain the separateness and importance of the consumer-citizen. Likewise, in the welfare debate the poor single woman is made visible only in her poverty, but the labor she sweats at home is made wholly invisible. This parallel between Third World women (whom we usually assume to be in the geographic Third World only) and poor single women working in the U.S. alerts us to the non-location-oriented specificity of women’s “Third World” condition. Utilizing this understanding of citizenship, we see that one’s primary condition of intelligibility under the law is one’s spending power (or lack thereof) and because labor is highly gendered, one’s sex can be placed alongside one’s economic mobility as one’s principal, defining characteristics under the law.
An interpretation of women as persons who need separate or special attention under the law can be problematic because the end goal, equality, may seem unattainable when the differences between the sexes become the crux of the movement towards egalitarianism. Mink argues that “the Court has…acknowledged that at the conjuncture of biology and gender may reside inequalities that only remedies gauged to women’s circumstances can repair.”[iii] Brenda Cossman and Ratna Kapur argue in their article “Women and Poverty in India: Law and Social Change” that “legal regulation of women is, in many respects, based on the assumption of the homogeneity of women,”[iv] meaning that to deem all women assisted through a certain set of laws ignores the instability of the group “women.”[v] Furthermore, Kimberle Crenshaw, in her article “Demarginalizing the Intersection of Race and Sex…” sites the need for not only laws that perceive women to be within a certain and separate category of protection, but also laws that take into account the fact that the intersection of sex and race, in the case of Black Women, creates a need for antidescrimination statutes that imagine complex and multi-dimensional subjects needing representation.[vi] All of this discussion looms around the central fact that even if laws are not gender-specific, the experiences of the subjects affected by those laws are. The exchange of invisibility for essentialized hyper-visibility can work against women in reifying stereotypes of “the protected woman,” however, a gender-blind judicial system is one that ignores and erases hundreds of years of oppression as well as the current inequality between sexes.
The opposite of the hyper-visual is the invisible. The ways in which people come into visibility or remain invisible under the law is of note because this path to visibility is what frames social consciousness about the subject. For example, as Black people came into subjecthood in the United States through criminalization,[vii] the stereotype of the Black Criminal was and is embedded into the consciousness of many Americans. In the welfare debate, when President Clinton acknowledged that because the subjects receiving welfare were different now—meaning no longer white and widowed—that suddenly welfare needed reform, he was bringing the black, poor, single mother into the discourse of the law through her perceived moral shortcomings and inability to provide for her family. On a global scale, Third World women workers, says Mohanty, have been made literally invisible because the work they do is largely associated with “homework” or housework.[viii] These invisibilities can be interpreted to be necessary for the global patriarchal capitalist system as a whole. If the work done by women, whether in their homes or in the factories of transnational corporations, becomes worth as much as the labor toiled by men, global capitalism couldn’t operate the way it always has. Under capitalism there is an inherent dependence upon cheap, available, unappreciated labor pools. On one hand it depends on women laboring outside of the home, “in the early 1980’s (in the Silicon Valley) 70,000 women held 80-90 percent of the operative or laborer jobs on the shop floor…of these, 45-50 percent were Third World…immigrants,”[ix] and on the other hand, capitalism depends on the women working inside the home, making their husbands’ ability to work outside the home possible. In the context of the law, Mohanty calls attention to the fact that globally, Third World women (inside and outside of the geographical Third World) have had their work (inside and outside of the home) defined as “supplementary” or housewifery, as opposed to labor, which places them on the periphery of “citizenship” both in law and in social consciousness.
If one resides just outside of the sphere of the imagined subject, (in U.S. policy, the white, heterosexual, financially secure male) the judicial system becomes the main front of action because one’s voice is clearly not being represented in law. Cossman and Kapur point out that “the ‘uneven development of law’—that is—the idea that law’s role in women’s subordination, is contradictory …(and) reinforces relations of subordination, while at the same time providing an important source of resistance and change.”[x] It is undeniable that women must look towards the judicial system for aid, but even if equality is achieved “on the books,” social equality and, in India’s case, fundamentalist groups mandating the way its followers behave, can create the opposite of an “even playing field.” Likewise, in the United States, even if a law states that sex discrimination will not be tolerated, it is not to say that the social consciousness of an entire nation falls into line with that law. On a global scale, sex discrimination can come to mean multiple things and is therefore more difficult to pin down and mandate. For example, transnational corporations may prefer hiring women because they think they can pay them less (which stems from the notion that the money women earn in the out-of-the-home labor market is “play money” or “extra”) or treat them worse because they are desperate or rather, they are a little “less human” than men in general. This too is sex and race discrimination and makes the call for equal access to the labor market by Western women something of a joke to women in the global Third World. This apparent division between the interests of the middle and upper classes and the poor is a cause of strife when the women who can work towards change within the judicial system, because they have the time and resources to do so, forget about the interests of poor, working women.
Here, intersectionality and the idea of cosmopolitanism come into conversation with one another underneath the umbrella of judicial reform. Because the law does not take into account the myriad circumstances and situations that mark an individual as “other” (femaleness, blackness, poverty, homosexuality, etc.) when compared to the mythical norm[xi], in the instance that a person “othered” by this “norm” seeks aid or representation, it is assumed that they want what everyone else wants, in the same order of importance, and with the same end-goals in sight. The coalitions that are trying to eradicate this phenomenon are often, internally and externally, imagined to be a homogeneous collective, working toward one harmonious ambition. This however, reifies cosmopolitanism in that it assumes an organization must always include “dialectic synthesis” and a commonality that essentially ends up erasing any aspect of the individual that is not comfortably cohesive with the group.[xii] This mode of organizing can become ultimately counterproductive because it perpetuates that which it tries to eradicate.
Finally, the interest of subjects currently underrepresented by the law should not lie in how the law will formally recognize them eventually, but how it imagines them now. If the law renders certain subjects invisible, that provides a particular jumping-off-point for groups focused on making visible those who are disenfranchised. If the law imagines Black Women, for example, to be, as Gwendolyn Mink asserts, “other people’s workers, not their own families’ mothers,”[xiii] that provides a context within which to fight a lack of representation. Perhaps the reason the law hasn’t been designed to account for intersectional persons is that in forgetting them within the judicial system, dominant culture might render them invisible altogether.
[i] Brown, Wendy. Suffering Rights as Paradoxes” Constellations Volume 7, No. 2, 2000. Oxford: Blackwell Publishers. p. 231.
[ii] Mohanty, Chandra Talpade. “Women Workers and Capitalist Scripts: Ideologies of Domination, Common Interests, and the Politics of Solidarity.” p. 5.
[iii] Mink, Gwendolyn. Welfare’s End. Ithaca, NY: Cornell University Press, 1998. p. 17.
[iv] Cossman, Brenda and Kapur, Ratna. “Women and Poverty in India: Law and Social Change.” RFD/CJWL 1993. p. 284.
[v] Butler, Judith. “Subjects of Sex/Gender/Desire.” p. 1.
[vi] Crenshaw, Kimberle. “Demarginalizing the Intersection of Race and Sex: A Black Feminist
Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics” from Feminist Legal Theory, Temple University Press, Philadelphia,1993. p. 384.
[vii] Hartman, Saidiya. “Seduction and the Ruses of Power.” From Between Woman and Nation Durham: Duke University Press. p. 112.
[viii] Mohanty, Chandra Talpade. “Women Workers and Capitalist Scripts: Ideologies of Domination, Common Interests, and the Politics of Solidarity.” p. 28.
[ix] Mohanty, Chandra Talpade. “Women Workers and Capitalist Scripts: Ideologies of Domination, Common Interests, and the Politics of Solidarity.” p. 15.
[x] Cossman, Brenda and Kapur, Ratna. “Women and Poverty in India: Law and Social Change.” RFD/CJWL 1993. p. 285.
[xi] Crenshaw, Kimberle. “Demarginalizing the Intersection of Race and Sex: A Black Feminist
Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics” from Feminist Legal Theory, Temple University Press, Philadelphia,1993. p. 383.
[xii] Puar, Jasbir K. and Rai, Amit S. “The Remaking of the Model Minority.” Social Text 80, Vol. 22, No. 3, Fall 2004. Duke University Press p.78
[xiii] Mink, Gwendolyn. Welfare’s End. Ithaca, NY: Cornell University Press, 1998. p. 23.
