The normality of man and female otherness: (re)producing patriarchal lines of argument in the law and the news.

AuthorCrenshaw, Carrie
PositionSpecial Issue: Argumentation and Feminisms

A distinguishing feature of feminist inquiry in every discipline is its political commitment to resisting patriarchal modes of thought and action. So while an assortment of feminist scholarship embraces a variety of assumptions, feminisms take as one of their central tasks the subversion of hierarchical structures that subordinate women to men (Jaggar; Smith). To accomplish this goal, feminist critics employ gender as a central category of analysis in a variety of methodological approaches (Foss; Harding; Malson et al.). Feminist rhetorical scholarship is also heterogeneous but similarly employs gender as an analytic category to investigate how symbols create and sustain gendered understandings of women and men and culturally sedimented views of women (Foss and Griffin). Feminist rhetoricians also challenge existing theories developed without a consideration of gender and construct alternative theories that account for women's communication (Foss; Foss and Griffin).

A basic premise of this essay is that feminist argumentation scholars share these concerns. Feminist argumentation is characterized both by its commitment to critically analyzing patriarchal reasoning and (re)visioning argument theory in order to include considerations of gender. Patriarchal arguments are those arguments marshalled to justify attitudes, beliefs, values and policies that subordinate women to men. Drawing upon a large body of feminist research concerned with gender difference, Tavris has suggested that a common premise of patriarchal thinking is that man is the measure of all things; men are normal and women compared to men are abnormal (17). Her book, The Mismeasure of Woman, extensively documents how versions of the universal male norm and the assumption of female otherness appear in virtually every field including science, law, medicine, history, economics, social science, literature, philosophy and art.

In this essay, I suggest the importance of treating this assumption as a line of argument used to justify patriarchal claims. I am interested in how the premise of the male norm can operate to circumscribe argumentative outcomes by limiting the scope of available arguments in legal discourse and in news reports of legal controversies. To investigate an example of this line of argument, I examine the legal opinions in the Johnson Controls case as well as the reports of the controversy in the national print media. While communication scholars (e.g. Bybee; Epstein; Fiske; Hartley; Rakow and Kranich; Tuchman) have explored how the media promote gender stereotypes, these studies tend to treat media practices in isolation. This study reveals how legal and mass mediated arguments sometimes function intertextually to order gender difference, and consequently our social and political relations, according to a male norm of comparison.

First, I argue that Johnson constitutes an important case study for examining the male norm as a line of argument. Second, I argue that feminist jurisprudence and critical studies of print news media help to explain some of the institutional practices of the law and news which can produce and (re)produce a patriarchal line of argument. Third, I offer an analysis of the Johnson case that illustrates how this line of argument produced by our legal system and (re)produced in the news media limits the potential for egalitarian argumentative outcomes.

JOHNSON CONTROLS

In 1982, Johnson Controls, the battery division of Globe Union Corporation, adopted a fetal protection policy barring all women capable of bearing children from "jobs involving lead exposure or which could expose them to lead through the exercise of job bidding, bumping, transfer or promotion rights" (Zilis 1-2). Eight employees backed by the United Auto Workers Union challenged the company's policy in court. In the nine years after its adoption, three courts issued opinions on Johnson's policy and major national newspapers and magazines reported their arguments to the public. In 1991, the Supreme Court decided that Johnson's fetal protection policy violated Title VII's proscription against sex discrimination in the workplace.

This controversy serves as a useful case study for exploring the male norm as a line of argument for several reasons. First, Circuit judge Easterbrook noted the social and political gravity of the case itself, remarking that Johnson Controls "is the most important sex-discrimination case this circuit has ever decided. It is likely the most important sex-discrimination case in any court since 1964, when Congress enacted Tide VII" (920). Feminist legal scholars and political commentators have also recognized the significance of the case based upon its implications for anti-sex-discrimination efforts, reproductive rights and our broader societal notions about the meaning of motherhood and its impact on women's employment(1) (see for example Eisenstein; Faludi; Becker; Blank; Buss; Peake; Williams).

Second, legal argument in general is of special interest to argumentation scholars. Perelman argued that the study of the law is to argumentation what mathematics is to formal logic (195). Makau has suggested that case studies of legal reasoning constitute one of the most meaningful ways to discover practical standards of reason (380). Moreover, case law, as institutional discourse, has the power to render certain conceptions of gender legal or illegal. Law as the instrument of official power enables enforcement of social order, and the potential for the abuse of its coercive might obliges argument critics to assess its meaning (White, "Our" 71; White, Justice 261). The law also enjoys a societal status as rational, objective and even "true" argument (Eisenstein 44). As a cultural institution, the law performs an ordering function through its normative discourse (Ericson, Baranek & Chan 5; Dellapenna & Farrell 40).

However, most people do not read the completed opinions of jurists. Instead, they gain access to legal argument through media reports. News media (re)produce the law's ordering practice by transforming its discourse into a form accessible to people outside the legal community. Through its formats, language and techniques, news media also supply people with preferred representations of social order. Both the law and the news media "offer disciplinary and normalizing discourses" (Ericson, Baranek and Chan 6). Comparing court opinions and news accounts can expose how reporters represent the contested versions of social reality made available by competing legal arguments (Condit & Seltzer).

CHARACTERISTICS OF THE LAW AND THE NEWS

The institutional characteristics of legal argument and news reporting help to explain how and why a line of argument that privileges a male standard of comparison sometimes gains primacy. First, feminist jurisprudence suggests that the law is a patriarchal institution. Because our system of laws was originally developed by men without women's participation, it evidences a patriarchal prejudice (Smith). Legal constructions of women's difference from men historically have been used to justify discrimination against women especially in employment law (Crenshaw).

Even though some of the most obvious formal legal barriers have been overcome, it is premature to suggest that the law has rid itself of sexist biases. For example, feminist legal scholars have criticized the law's claim to and, indeed, celebration of a conception of "neutrality" (see for example Eisenstein; Fineman; Minow; Smith). During the 1960s and 1970s, feminist legal scholars tended to reject any notion of gender difference arguing instead for a brand of equality based on equal treatment. In order to overcome exclusionary treatment based upon the differentiation of women from men, many feminist legal scholars embraced the idea of equality as sameness of treatment. These early feminists believed that different treatment inevitably resulted in exclusion and differentiation harmful to women (Eisenstein & Jardine). Thus, "gender-neutrality" was born and made significant inroads into statutory and case law (Fineman 37).

However, more recent feminist scholarship argues that such neutrality is not really neutral at all. Because legal constructions of neutrality are reflective of primarily male concerns, the "individual" is not gender neutral (Fineman 39). Such uses of liberal individualism portray the individual as a man, in a man's body and compares woman to man. It argues that women should be treated the same as men, making the supposedly neutral standpoint the male standpoint (Eisenstein 77). Smith explains how a conception of neutrality based on an equality standard of same treatment reflects the assumption of the male norm:

To see how easy it is to fall into the patriarchal trap, look back to the statement that the question is whether women, being basically similar to men, require equal treatment, or being significantly different from men, require special treatment. . . . [I]t assumes the outcome in advance, for to agree that if women are "different" (i.e. different from men) they will require "special treatment" is to assume a male or patriarchal standard of what normal treatment is. (8)

Thus, a masculinist bias can be found not only in obvious discrimination against women based on their differences from men but also in constructions of neutrality based on a male norm of comparison. A distinctive feature of law that tends to perpetuate this bias in all of its forms is its reliance on the authority of precedence (Smith 12).

Print news evidences similar characteristics in that it embraces a conception of objectivity and relies upon authoritative sources. Gans describes the values, processes and routines that guide the reporting enterprise, noting that journalists exercise "power over the interpretation of reality" by "summarizing, refining, and altering what becomes available to them from sources in order to make the information...

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