The Routledge Companion to Feminist Philosophy

p.701

FEMINIST PHILOSOPHY OF LAW, LEGAL POSITIVISM, AND NON-IDEAL THEORY

Leslie P. Francis

Feminist philosophy of law has been shaped by debates between liberal feminists who emphasize non-discrimination and equality of opportunity and more radical feminists who offer a variety of far-reaching criticisms of the law as a structure of patriarchal power. Among philosophers, these debates have taken place largely separately from the debates in philosophy of law over legal positivism and natural law theory: whether law as it is should be distinguished from law as it ought to be. Here, I argue the issues are deeply interconnected and feminist philosophy of law is better aligned with legal positivism. My argument has four steps: a brief methodological note about non-ideal theory, an account of the conceptual separation between law and morality advocated by legal positivists, a sketch of approaches to feminist philosophy of law, and two illustrative examples.

Just as there are many feminisms, there are many approaches to philosophy of law among feminists. There are also many issues in law and legal criticism that feminists have taken on. Critical legal studies, critical race theory, and disability studies raise some of these issues in alignment with feminists (see Crenshaw 1991; Harris 1990; Silvers, and Francis 2005; see also Botts (Chapter 28), Hall (Chapter 33), and Sheth (Chapter 29) in this volume. These are all important projects for the philosophy of law that could have been the subject of an essay on feminism and philosophy of law. I have chosen this particular set of issues in legal theory because they are at the core of many discussions in legal philosophy today, because their relevance to feminists has I believe been under recognized, and because they illustrate what feminist projects can contribute to legal theory and vice versa.

Non-Ideal Theory

Although the debates between legal positivists and natural law theorists are generally understood to be conceptual—how law is to be defined—they are, in my judgment, ultimately normative. Answers to questions such as what it is to have a legal system, to judge that a rule is a rule of that system, or to determine whether there is an obligation to obey some or all laws reach to deep questions about the legitimacy of political authority, the purpose of law, and the role of law in the lives of people who live under it. It is no accident that the renewal of the positivism-natural law debate occurred in the wake of the horrors of Nazism and the world’s efforts to address it through the use of law in the Nuremburg tribunals. Nor is it an accident, as we will see below, that H. L. A. Hart’s defense of positivism was shaped by his liberal view that the law should provide a framework within which different lives could flourish and that conceptual commingling of law and morality risked allowing judges unknowingly to inflict on others their views of what would be good for them. If there are any natural rights, Hart (1955) argued, there is an equal right of all to be free.

p.702

My argument about legal theory is shaped by my overall approach to normative questions. I am a non-ideal theorist in the sense that I think normative questions should be addressed from the recognition that natural or social circumstances are less than ideal, as John Rawls famously observed in A Theory of Justice (1971) in the midst of the civil rights movement (see Francis 2016).

While theorizing about justice for ideal circumstances, Rawls understood that different approaches might be needed where either natural or social circumstances were less than ideal. Rawls’s theory of justice for ideal circumstances was soon confronted with objections rooted in non-ideal theory such as whether his views could be publicly justified to those with illiberal conceptions of the good (Freeman 2003: 29). And in his next book, Political Liberalism (1993), Rawls retreated to the idea that he was developing a theory of justice for a liberal society. But arguably he did not fully recognize the force of the challenge; Waldron points out (1999: 152–153) that Rawls understood the challenge to concern fundamental disputes about the good, not fundamental disagreement about justice itself.

For the discussion here, what is most important is how non-ideal theory approaches the role of law in pursuing justice under conditions of injustice. Concerning the project of justice, non-ideal theory treats issues such as how progress can best be made toward justice, what injustices take precedence to address, what strategies are likely to create new roadblocks to overcoming injustice, or what are the obligations of individuals or institutions when others continue to behave unjustly (Cohen 2000; Miller 2011). As I see justice, it is a matter of ongoing work at inclusion and flourishing: what next steps, at individual or social levels, will enable individuals in all their differences to do well at what matters to them? Law, as the primary social institution that does justice, plays a central role in this project.

Positivism and the Separation of Law and Morality

Since the Nazi era, a prominent—if not the prominent—theme in Anglo-American legal philosophy has been the debate over legal positivism. Legal positivists hold that law and morality should be understood as conceptually separate. On this “separation” thesis, “what is law?” is a different question from “what law ought to be.” In adjudication, the separation thesis is manifest as the view that judges apply the law or, more controversially, have the authority that legislators do to make new law in difficult cases when existing law runs out. But when it occurs, judicial legislation should be recognized as such: judges are making new law rather than applying the law already on the books. They may have the authority to do this in a given society, just as legislators do—but whether they are exercising this authority appropriately is what must be critically examined.

p.703

Thomas Hobbes, holding as he did that justice is acting according to the requirements of covenant (in Leviathan 1651: Ch. XV), may have been the first proponent of legal positivism (see, e.g., Dyzenhaus 1991; Tucker 2013). The development of the tradition of utilitarian liberalism in Britain was an early setting for the fuller development of legal positivism, particularly in the writings of Jeremy Bentham and John Austin. The debate was rekindled in the wake of the Nuremberg trials, where the controversial question was whether punishment could be justified for those who had arguably followed Nazi law. H. L. A. Hart (1958) defended the separation thesis because he believed it would create clarity about what was at stake in deploying the force of the law against the Nazis accused of war crimes: the extraordinary, yet justifiable, use of the law as a statement of moral condemnation. The Nuremberg trials were not ordinary exercises of the legal process but a determination that the force of law should, ethically, be used to punish what the Nazis had done. In reply to Hart, Lon Fuller (1958) took the position that the most odious of Nazi commands were not law at all, because they violated what he termed the “internal morality of law.” For Fuller, the aim of law was to enable people to engage in purposive activity; law must be constructed so as to enable people to conduct their lives in accord with it. This led Fuller to adopt a procedural version of natural law incorporating requirements such as consistency that were designed to evade the far-reaching moral commitments of earlier versions such as those associated with traditions in Catholic theology.

The canonical contemporary statement of legal positivism remains H. L. A. Hart’s The Concept of Law (1961). In Concept, Hart distinguishes the conceptual question of whether there are logically necessary connections between what is law and what is morally right (no), from the historical question of whether the law has been influenced by morality (yes) and the ethical question of whether law can be subject to ethical critique (emphatically yes). What makes a precept a law is that it is recognized as such under the constitutional rules of the system in question. At bottom, whether there exists a legal system at all is a matter of fact: whether a sufficient number of those in relevant places in a society accept its basic constitutional structure.

In a famous debate with Lord Patrick Devlin, the British High Court Judge, Hart argued that the law should not be used to enforce morality. Hart’s contribution to the debate, published as Law, Liberty, and Morality, argued for decriminalization of a number of what were thought to be victimless crimes, such as the voluntary sale of sex or homosexual sexual acts. Punishment of such consensual acts as crimes, Hart thought, amounted to an unwarranted imposition of conservative social values and could not be justified as legitimate protection of some from harm by others. Thus Hart’s views about the nature of law were ultimately justified by his political liberalism (Lacey 2004).

Hart’s views about adjudication are perhaps the most maligned of his views. For Hart, judges in applying the law need first to try to understand what the laws of a given system require. The laws may run out and there are problems of the penumbra where what the law requires is unclear. Prior adjudications may help with this interpretive task. But when the law runs out, faced with novel interpretive choices, judges must recognize that they are creating new law. Leaving judges to call on moral values in interpreting penumbral law—as though they were merely applying law—risks imposing the values of some, the judges, on others, in unrecognized fashion. This is so whether these values protect moral rights or traditional social mores.

The laws also may be evil, but if judges fail to apply them, they are stepping outside of the judicial role. If so, apartheid South Africa had a legal system that judges applied—despite the grievous immorality of these laws and the moral obligation to change. Hart did not hold the view that identifying law was the end of the matter. He thought that being clear about what the law is—to the extent that we can be clear—is an important first step in appreciating when we are making moral choices about law.

p.704

David Dyzenhaus (1991) criticized legal positivism for a politics of authoritarianism. But arguably Dyzenhaus attributes an overly strong form of majoritarianism to Hart, the view that judges must apply statutory law as enacted (Tucker 2013). Hart held a more complex view about how law was to be identified, in terms of the actual rule or rules for recognizing law in a given society. And he combined this ultimately descriptive account with the view that as a matter of political morality we would be more clear-headed if we recognized when judges were legislating and considered whether what they were doing was morally justifiable.

Hart’s view about adjudication was also subject to the attack that instead of being authoritarian it could only account for the very small set of legal decisions in which the law’s requirements were clear. Ronald Dworkin (1967) argued that Hart’s view left most judges exercising a strong form of discretion, selecting new law unbound. This is not how most judges conceive of their roles, nor how judging should be conceived, Dworkin claimed (1967: 46). Instead, Dworkin argued, judges in applying the law call on a variety of principles, often moral, that have a dimension of weight; thus a murdering heir could not profit from his own wrong even though the statute of wills did not specifically provide for this case.

Separating law from morality as it does, positivism faces the challenge of explaining how law can carry obligatory force. Natural law theorists such as Dworkin or Fuller answer that it can do so because morality is endemic in law—and, if not, a coercive system is not law at all. Positivists before Hart, such as Hobbes (1651) or John Austin (1832) had identified law with sovereign commands. Critics of this view distinguished between being “obliged”—coerced—and being obligated. Hart’s reply was to continue the project of identifying law as descriptive, not normative, but to say that the fundamental grounding of law was simply a matter of acceptance. Terribly bad laws, or legal systems that did not serve fundamental human interests, would not endure, he thought. The ultimate foundation of norm-governed behavior was social acceptance (Shapiro 2001). But the point of Hart’s positivism was to create the space to recognize that such acceptance may be morally problematic. And feminist philosophers of law eagerly occupied this space.

Feminist Philosophy of Law

Interestingly, feminist legal theorists have paid little attention to the debates about legal positivism. They have focused elsewhere: on the critique of law as a system of patriarchal power, on civil rights and equality, on critical race and disability theory, and on problem areas such as abortion, rape, sexual harassment, or child custody and divorce.

Feminist philosophy of law has been informed by different approaches to feminism itself (Francis and Smith 2015). The so-called “first-wave” feminism of the late nineteenth and early twentieth centuries attempted to achieve political rights for women. These feminists were critical of how the law gave women unequal political and legal status. Establishing the right to vote was a critical step towards political equality. But legal status mattered, too, such as the rights to own property, to be licensed as a professional, and to enter into contracts, even as a married woman. Such deficiencies in status had been justified on views of the natural condition of women, a position rooted in a certain picture of natural law (Kimmel 1987: 266). For example, when Myra Bradshaw sought to be licensed as a lawyer in Illinois, she was met with the observation that the legislature could not have meant to allow women to practice law, because it was regarded as axiomatic that God had designed the sexes to occupy different spheres of action (Bradwell v. State of Illinois, 83 US 1380 (1873)).

p.705

The liberal feminism of the civil rights era aimed to establish non-discrimination in economic and social life as well: in education, in employment, and even in marriage and family formation and dissolution. These feminists sought both constitutional and statutory equality. Proposals for an Equal Rights Amendment finally bore fruit in 1972 when Congress adopted the Amendment and sent it to the states for ratification. The Amendment did not, however, succeed in receiving the necessary support of three-fourths of the states by the deadline of 1979. In the judgment of some commentators, many of its goals have been achieved through subsequent litigation and legislation. But assessing this claim is difficult, as goals changed, from formal to substantive equality and to the end of laws that although neutral on their face perpetuated inequality (Mayeri 2009).

Concomitantly, liberal feminists pursued efforts to move the Supreme Court to recognize women as a suspect classification so that any different treatment would require strict scrutiny. Cases such as Reed v. Reed, 404 US 71 (1971), struck down Idaho’s preference for males as probate administrators in a conflict between the separated parents of a deceased son. The preference, the Court concluded, did not bear a rational relationship to the legislature’s goal of reducing the workload of probate courts by eliminating a need for a hearing to determine the relative merits of the competing parties. The constitutional standard used in Reed was formally the rational basis test, not a more heightened test that would make it easier to strike down other statutes treating men and women differently. However, the Court, in this first case applying the equal protection clause to women, used a citation from a brief authored by then law professor and later Justice Ruth Bader Ginsburg to a case holding that states could not give in state residents tax advantages over out of state residents unless the difference has a “fair and substantial relation” to the legislature’s purpose. (F.S. Royster Guano v. Virginia, 253 U.S 412, 415 (1920); see also Hirshman 2015)

In a succession of cases, many argued by Justice Ginsburg, the Court moved towards tighter scrutiny of statutes and regulations distinguishing men and women. Justice Ginsburg’s goal as an advocate was to bring the law of sex discrimination under the “strict scrutiny” used for discrimination on the basis of race: that for different treatment to be justified, states must demonstrate a compelling state interest and treatment narrowly tailored to furthering that interest. In Frontiero v. Richardson, 411 US 677 (1973)—a case decided in the same year as Roe v. Wade—the Court rejected the military’s assumption that wives were dependent on their male serviceman husbands for support but husbands were not so dependent on their female serviceman wives. But it did not adopt the strict scrutiny standard advocated by Ginsburg in an amicus brief filed on behalf of the ACLU. Craig v. Boren, 429 US 190 (1976), a further case presenting an equal protection challenge to a statute differentiating men and women, this time disfavoring men by setting their age for the sale of 3.2 beer at 21 while women could drink at 18, brought the Court to adopt an intermediate level of scrutiny. The state’s rationale for the differentiation was traffic safety: that males of the relevant age were more likely to drive while intoxicated and to be killed or injured in alcohol related traffic accidents. The Court applied what has been termed “heightened” (albeit not strict) scrutiny at the test that had been established in earlier decisions (429 US at 198). Although the Court assumed that traffic safety enhancement could be an important governmental objective, the statistics about males and females as drivers were insufficient to show that the gender-based distinction “closely serves to achieve that objective” (429 US at 200). This level of scrutiny—important objective, closely served by the state’s distinction—is as far as women ever got towards constitutional equality.

p.706

So liberal feminists pursued statutory reforms as well in the effort to achieve social and economic equality. The initial important statute was the Equal Pay Act of 1963, which prohibited unequal pay for “for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions” (29 USC. § 206(d)(1)(2015)). The statutory language famously compromised between equal work and comparable work, a compromise that continues to be implicated in gender pay gaps today.

Other statutes followed quickly, most importantly the employment discrimination section of the Civil Rights Act in 1964 (Title VII) and the prohibition of discrimination based on sex in federally funded educational programs (Title IX) in 1969, and several amendments to Title VII including the Lily Ledbetter Fair Pay Act of 2009 (42 USC. § 2000e(5)(e)(3)(A)(2015)), which allowed women to challenge historical discrimination reflected in continuing pay disparities. Title VII, about which more below, prohibited discrimination in the terms or conditions of employment, a provision designed to rule out practices that while not singling out sex per se might have differing impacts based on sex. Despite their potential, disparate impact challenges to apparently neutral employment practices have had a troubled history. One of the ongoing difficulties in using disparate impact theories to counter inequality is the continuing failure of courts to recognize structural impacts on subordination. Radical feminists from the beginning challenged the structure of law, seeing it as the embodiment of patriarchy. Law itself is a form of dominance (Francis and Smith 2015). Legal systems in both structure and content reflect coercion and subordination, hallmarks of masculinity. Nowhere is this more apparent than in how the criminal law deals with sexual offenses. Rape law, the law of prostitution, and legalization of pornography reflect the dominance of masculinity (e.g., MacKinnon 1989).

Prostitution is an example of this disagreement between liberal and radical feminists. For many liberal feminists, if prostitution is a choice that is not coerced, it should not be prohibited. When prostitution threatens to blend into sex trafficking, to be sure, that should be prohibited. The potential inability to distinguish the voluntary sale of sex from trafficking is the concern that has led Sweden to criminalize the purchase, but not the sale, of sex (Crouch 2015) and the Netherlands to reconsider its toleration of prostitution (e.g., Bindel 2013; Dutch Ministry of Foreign Affairs 2012). Nonetheless, on the liberal view voluntary choices to sell sex, like voluntary choices to sell soap or labor power, should be legally permitted. To say that women—and their customers—should not engage in prostitution is a form of legal moralism, of exactly the kind criticized by Hart in Law, Liberty and Morality.

Radical feminist critics object that the choice of prostitution can never be voluntary in situations of economic distress or patriarchal subordination (e.g., Freeman 1989–1990). Moreover, they claim that the commodification and objectification of women’s bodies found in prostitution—or in other practices of bodily commodification such as surrogate reproduction—violates human dignity and is thus harmful even if apparently consensual (e.g., Dickenson 2017). Their view, they argue, is not unjustified moral condemnation of prostitution but rooted in an understanding of pervasive sexual dominance.

p.707

Pornography is another example of how radical and liberal feminists are divided in how to address the dominance model of sexuality in law and society. Feminists such as Catharine MacKinnon opposed pornography (especially violent pornography) as the symbol of the dominance model. MacKinnon and Andrea Dworkin developed a model anti-pornography statute for jurisdictions to enact, a statute that was held to violate the First Amendment in American Booksellers v. Hudnut, 771 F.2d 323 (7th Cir. 1985). The proposed statute was much criticized as moralistic—although explicitly not by Ronald Dworkin, who saw the issue in terms of the importance of freedom of expression (see, e.g., MacKinnon, reply to Dworkin 1994; Duggan, Hunter, and Vance 1993).

The debates between liberal and radical feminists are related to, but not the same as, the disputes between positivists and natural law theorists. The former debate criticizes how law may be used, with liberal feminists arguing that it should be used to further equality in economic and civil rights and radical feminists that it should be stripped of patriarchal dominance. The latter debate is about what law is, that it is separate from morality. In the view of the positivists, only when we separate law from it is from law as it ought to be, can we see clearly what is at stake in debates about what law ought to be. To explore this point further, I now turn briefly to two examples, sexual harassment and abortion.

Sexual Harassment

When Title VII of the Civil Rights Act, the section on employment discrimination, was introduced, sex discrimination was an apparent afterthought to race, color, religion, or natural origin. Sex was added as a category in the last days before the bill’s passage, perhaps to try to defeat the bill or more likely because of advocacy of gender equality (e.g., Freeman 1991).

Whether or not sex was an afterthought to Title VII, the statute did little to explain what the right to non-discrimination in employment meant in several employment contexts relevant to women. While it prescribed non-discrimination in the “compensation, terms, conditions, or privileges of employment” (42 USC. § 2000e-2(a)(1)(2016)), it said nothing further about the myriad of workplace rules, apparently neutral but in practice making work difficult for women, such as the failure to provide leave time for pregnancy.

And employers continued to fire women for becoming pregnant. In 1974, the Supreme Court held that mandatory unpaid leaves for pregnant schoolteachers violated the Fourteenth Amendment because they imposed arbitrary and irrebuttable presumptions about women’s fitness to work (Cleveland Board of Education v. LaFleur, 414 US 632 (1974)). The Court’s analysis rested in due process, not equal protection; the reasoning was that the requirement to quit work unduly burdened women’s constitutional freedom of reproductive decision-making, the same liberty that had been the basis of the abortion decision the previous year. In 1978, Congress amended Title VII to add to the definition of discrimination because of sex different treatment “on the basis of pregnancy, childbirth, of related medical conditions . . .” (42 USC. § 2000e(k))(2016)). The Pregnancy Discrimination Act did not, however, require accommodations for pregnancy—accommodations that are still largely unavailable today. Thus Title VII’s prohibitions of employment discrimination still do not extend to many workplace practices that, in Martha Minow’s (1991) phrase, “make all the difference” for genuine workplace equality.

p.708

Nor did Title VII explain what was meant by conditions of employment. Early on, however, in race and ethnicity cases, courts determined that hostile work environments were discriminatory. In the words of one court:

This language [of Title VII] evinces a Congressional intention to define discrimination in the broadest possible terms . . . But today employment discrimination is a far more complex and pervasive phenomenon, as the nuances and subtleties of discriminatory employment practices are no longer confined to bread and butter issue.

(Rogers v. EEOC, 454 F.2d 234, 238)

But these were race, not sex cases. MacKinnon is generally credited with “inventing” the theory of workplace sexual harassment (Caplan-Bricker 2012). MacKinnon is indeed the first person to crystallize the concept of sexual harassment and argue that it was a violation of Title VII, but whether she “invented” the concept is another matter. MacKinnon’s own description of the process of generating sexual harassment law is that it was “judge-made” (2002: 813), a claim that can be taken simplistically to imply that in finding a cause of action for sexual harassment under Title VII judges were legislating.

If judges were legislating in recognizing sexual harassment as a cause of action, however, they would be vulnerable to the criticism that they were stepping out of the judicial role to implement their own values, no matter how defensible those values were. A concomitant vulnerability is that acceptance of the theory could be seen as moralizing, imposing the values of some onto others. Not surprisingly, women who claimed sexual harassment were seen as overly sensitive or prudish. These kinds of criticisms were levelled against the development of sexual harassment law, but they are based on a misunderstanding of it as a matter of judges illegitimately imposing their values on the law.

There is, however, a way to see the theory of sexual harassment as far more defensible as a matter of legal theory. Sexual harassment, like other forms of discrimination in the workplace denies women equal work opportunities. Vicki Schultz (1998) explains in powerful detail how both quid pro quo harassment (harassment that takes the form of coercive offer exchange of supposed favors) and hostile environment harassment (harassment that creates an unwelcoming workplace) excludes women from entire categories of employment. Sexual advances by superiors, firehouses full of girlie posters, or ridicule directed at performance, all signal to women that they should not be present in the hostile workplace. Understanding sexual harassment as sexualized oppression—as the dominance theory of MacKinnon does—is both under and over inclusive, according to Schultz. It is under inclusive because it encourages courts to devalue forms of harassment that are not explicitly sexual, finding harassment for crude sexual advances but not for more delicate flirting or non-sexual ridicule. It is over-inclusive because it suggests that workplaces should be sexually pure. Instead, Schultz contends, harassment, sexual or not, should be understood as a form of workplace inequality created by a hostile environment.

Seeing sexual harassment as a discriminatory condition of employment places it centrally within the scope of Title VII. Rather than “invented,” the theory is developed from within Title VII. It is thus not a case of judges legislating, but of judges implementing what the legislature has enacted. What judges do in interpreting Title VII—in understanding its prohibitions—is consider how various fact situations closely resemble the clear cases of inequality already recognized as Title VII violations. The novelty of the theory of sexual harassment was not that it was new law, but that it brought new insight into what workplace conditions were genuinely exclusionary.

p.709

Abortion

The Supreme Court’s decision in Roe v. Wade, 410 US 113 (1973), is one of the most controversial in its history. In the decision, the Court determined that reproductive liberty, characterized as privacy, is a fundamental constitutional right that can be limited only by a compelling state interest. This interpretation of due process liberty was characterized as a form of substantive due process, reading substantive rather than procedural liberties into the Fourteenth Amendment’s protection. It was thus maligned as the justices imposing their own values in distrust of democracy (Ely 1980).

There is, however, another way of reading Roe: that it could, and should, have been decided as a matter of equal protection. Abortion restrictions deny women reproductive control, with consequent difficulties for their ability to achieve in education, work, or other pursuits. Justice Ginsburg has staunchly defended this view. In an essay published while she was serving on the United States Court of Appeals for the District of Columbia Circuit, she wrote that Roe had become a “storm center” because the Court both “ventured too far” and “presented an incomplete justification for its action” (Ginsburg 1985: 376). The Court’s inadequacy, she said, was that it had treated abortion as a matter of due process liberty, not as a matter of sex discrimination (Ginsburg 1985: 386).

Justice Ginsburg’s jurisprudence is generally seen as “minimalist” in the sense that she seeks to carve judicial reasoning closely to existing law (e.g., Siegel 2009). In this commentary on Roe, and in many other writings, she applies such minimalism to explain the problems with the Court’s due process approach.

In her arguments for an equal protection approach to abortion, Justice Ginsburg harbors no illusions about whether this could have avoided the controversy Roe generated (Ginsburg 1985). Abortion is an issue that reaches to the very basic and contested issue in moral theory, that of the status of the fetus. What an equal protection analysis can do, however, is change the legal theory terms of the debate, for it locates the question of abortion squarely within evolving equal protection doctrine. This is a positivist, not a natural law theory approach. And like the positivist approach to sexual harassment law as a matter of workplace equality, it shows how abortion jurisprudence can be defended without courting the charge that judges are in activist fashion imposing their own values.

Conclusion

Let me return briefly to my initial methodological remarks about non-ideal theory. Both the sexual harassment and the abortion examples suggest how the positivist approach to adjudication can further progress toward gender justice and justice more generally. The understanding that sexual harassment is a form of employment discrimination located exclusionary workplace practices squarely within the statutory prohibition of Title VII. Seeing reproductive liberty as a matter of women’s ability to participate in economic life constructs it as a matter of progress toward inclusive justice. Similar points might be made about disability civil rights or other civil rights.

p.710

Now, abortion opponents may raise an objection at this point: what about inclusion of the fetus, is that not also needed for progress towards justice? Here, positivism has a response that natural law theory may not. The history of feminist jurisprudence in the US is the gradual achievement of political, economic, and social equality for women. Viewing the abortion cases as equal protection cases locates them within this equality project as legally constituted. There is no question whether women are citizens entitled to equal status under law. Fetuses have not been so recognized; to argue that they should be is to advance a moral critique of contemporary law. Natural law theory, as the Court’s opinion in Gonzales v. Carhart illustrates, confuses on just this point: it is not a continuation of an ongoing equality project, but an argument for a new one.

All too frequently, positivists have failed to develop their theory in the progressive ways suggested by the sexual harassment and abortion examples. There are forms of positivism that have imposed literalist strictures on statutory and constitutional interpretation or that have been myopic about structural inequality. Some positivism was associated with the logical positivists’ skepticism of normative theory—a position that Hart took pains from the beginning to disavow. Robin West (2011) takes contemporary positivism to task for failing to develop what she calls “a sustained tradition of censorial jurisprudence.” Nonetheless, positivism has theoretical resources for legal development and criticism that are critical to furthering inclusive justice.