Converted or unconverted: to whom shall we preach?

• Author: Wax, Amy L.
• Position: Why a Feminist Law Journal?

Feminist legal scholarship has given insufficient attention to key analytic approaches that figure centrally in other areas of legal scholarship. This failure of feminist scholarship to make use of methods that have enriched other scholars' work has hurt the journals that specialize in publishing feminist works. As participants at this conference have complained, feminist law journals are generally marginalized and ignored by all but a small coterie of scholars. Yet, in providing an outlet for work on topics of special interest to women--work that other journals cannot or will not accommodate--feminist journals play a role similar to that of other journals devoted to specialized subjects. Because the issues that feminist legal scholars address are of central concern to society as a whole and affect legal developments in many areas, feminist law journals have the potential to survive, thrive, and command the respect and attention of academics from a broad range of fields. The fate of feminist publications is not inevitable. This essay argues that there is nothing wrong with feminist law journals that reforming feminist legal scholarship will not cure.

There are three methodological approaches to which feminist legal scholars give short shrift and which ought to figure more prominently in their work. These are economic analysis, empirical social science, and evolutionary theory, including evolutionary psychology. The first, economic analysis, is not easy to define because it is not monolithic. In general, economics attempts to identify the costs and benefits of rules for social actors and to do so systematically and quantitatively. This method assumes that social actors, including persons and organizations, seek to satisfy preferences in their interactions with one another on the market and in other institutional settings. The second method, social scientific empiricism, recognizes that assertions about the existence and extent of social problems, the identity of their causes, or the desirability of potential cures, cannot be established a priori as a matter of theory only. This method is committed to investigating social conditions and evaluating proposed policies by collecting factual evidence and analyzing data using rigorous, statistically sound procedures. The final approach that feminist legal scholars unduly ignore, or even denigrate, is evolutionary analysis. Evolutionary theory seeks to offer a scientifically grounded account of human psychology and behavior as an outgrowth of competition over time among individuals and groups for scarce resources. The rubric covers methods ranging from conventional Darwinian explanations to efforts to understand complex group interactions using game-theoretic models developed by economists and social scientists.

Although feminist legal scholars do occasionally address work in economics, social science, and evolutionary theory, their aversion to these methodologies is more a matter of omission than commission and therefore is not easy to document. Familiarity with the literature suggests that there are few, if any, feminist legal scholars active today who are willing to employ these approaches directly in their own work. Nor do many engage in active, sustained, and analytically sophisticated discussion of scholarship coming out of these fields. In contrast, feminist scholars outside law are not so dismissive of these methodologies, and many work productively within them. Feminist economics is a burgeoning field, with a new journal to showcase its products, (1) Women social scientists have long focused fruitfully on feminist concerns, including women's labor market participation, work and family, reproductive and marital behavior, and domestic violence, among others. Female evolutionary psychologists are strikingly numerous and prominent within that field. (2) Moreover, the avoidance of evolutionary models is not a uniform feature of legal academia; (mostly) male law professors have applied the evolutionary paradigm to behavioral and social phenomena that are central to feminist concerns. (3) In their own work however, feminist legal academics all too often fail seriously to engage this scholarship or to enrich their own discussions by employing these methods of analysis directly. (4)

There are several reasons why economics, social science, and evolutionary models ought to figure more prominently in feminist legal scholarship. First, skilled use of these methods to address problems pertinent to women--or, at the very least, to discuss the academic work of others that bears on these issues--is essential if feminist scholarship is to lose the taint of parochialism and gain the respect and attention of a wider scholarly audience. Feminist scholars must decide whether their mission is to preach to the converted or to the unconverted. If the mission is perceived as shoring up support among those who already agree with the central tenets of the feminist agenda, then rigorous engagement with different approaches and contrasting perspectives is unnecessary and may even get in the way. But the refusal to engage important scholarly results and to confront and wrestle with potentially uncomfortable conclusions emerging from other fields makes it too easy for those without sympathy for a feminist outlook to dismiss feminist scholarship as unworthy of serious engagement or consideration. If the goal is to influence mainstream scholars who think about social problems of concern to women, then attention to evidence and arguments generated by those working outside the feminist camp is essential.

Second, the quality of feminist scholarship could benefit greatly from a willingness to test its arguments with rigorous methodologies and learning from other fields. Preaching to the converted is an invitation to sloppy thinking, illogic, and disregard of empirical reality. Laxity in method leads all too often to error in result. If the ultimate goal of feminist scholarship is to devise a program of social reform that will actually improve the lives of women, then it is important to start from an accurate picture of the social problems to be solved and the likely effect of proposed reforms and solutions. Feminists' prescriptions are worse than useless unless their description of the status quo is accurate, their diagnosis of the causes of objectionable conditions is correct, and there is evidence that the recommended remedies will actually work. If math is not on feminists' side--if advancing the feminist agenda requires ignoring, hiding, and distorting the facts, engaging in slipshod reasoning, or disregarding careful scholarly work that relies upon rigorous and well-tested methods--then perhaps the agenda deserves the label of naked ideology and warrants the skepticism, dismissal, and marginalization of which feminists complain.

The final reason that feminist legal scholars should pay attention to economics, social science, and evolutionary psychology is that, if properly employed and understood, these methods can help support feminist assertions and advance feminist priorities. And even if direct support is not always forthcoming, careful consideration of results that seem to challenge feminist ideas can help scholars rethink and refine their work in ways that ultimately make it more persuasive.

There are many examples in which economics, social science, and evolutionary theory point to arguments in favor of feminist priorities or suggest opportunities to strengthen feminist positions. One area of feminist concern is the status of persons who care for others in our society. Feminist theorists, including legal scholars, have long called for a collective commitment to financial support for caregivers and dependents. Martha Fineman, for instance, suggests that marriage be abolished as a legal category, to be replaced by caretaker-dependent units entitled to a government allowance. (5) In support of this claim, Fineman and others argue that caregiving is a form of work, and that domestic work is valuable and no less entitled to compensation than conventional forms of market labor. (6)

The call for more generous social support for caretakers, although a centerpiece of the feminist agenda, does not command uniform support from analysts outside feminist circles. Nor does it have much purchase with the citizenry as a whole, as evidenced by its lack of success in the political arena. (Indeed, recent changes in welfare programs move, if anything, in the opposite direction). If feminists are to gain ground on this priority, they must persuade others of the justice of their cause. It is impossible to argue coherently for this position, however, without taking economics seriously.

The call for collective support for caretakers runs up against the objection that it proves too much. If mothers receive a social subsidy, then why not artists, gardeners, volunteer workers, and others who engage in effortful exertions outside conventional labor markets? Economic analysis provides a framework for dealing with this objection. Neoclassical economics starts from an assumption that markets work. If the outcome of a transaction that trades services for compensation is Pareto-superior in that it generates a net increase in utility for all concerned, then that transaction will ordinarily take place. That is, if a service or product provides value, someone will offer to pay for it and pay what it is worth. Because the market is regarded as a good measure of value, economists call upon feminists to justify collective compensation for caretakers by explaining why there is insufficient market demand for the services, or why the price of those services is too low. For economists, there are two alternatives: either the service is not as valuable as claimed, or there is some kind of market failure that impedes transactions that would reflect the benefits those services confer on others.

The framework these...