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Part One of this article provides a phenomenological and hedonic critique of the conception of the human - and thus the female - that underlies liberal legal feminism. Part Two presents a phenomenological critique of the conception of the human - and thus the female - which underlies radical feminist legal criticism. Again, I will argue that in both cases the theory does not pay enough attention to feminism: liberal feminist legal theory owes more to liberalism than to feminism and radical feminist legal theory owes more to radicalism than it does to feminism. Both models accept a depiction of human nature which is simply untrue of women. Thus, both accept, uncritically, a claimed correlation between objective condition and subjective reality, which, I will argue, is untrue to women. As a result, both groups fail to address the distinctive quality of women's subjective, hedonic lives, and the theories they have generated therefore have the potential to backfire - badly - against women's true interests. In the concluding section I will suggest an alternative normative model for feminist legal criticism which aims neither for choice nor equality, but directly for women's happiness, and a feminist legal theory which has as its critical focus the felt experience of women's subjective, hedonic lives. My substantive claim is that women's happiness or pleasure - as opposed to women's freedom or equality - should be the ideal toward which feminist legal criticism and reform should be pressed, and that women's misery, suffering and pain - as opposed to women's oppression or subordination - is the evil we should resist. I will argue that feminist legal theorists, in short, have paid too much attention to the ideals of equality and autonomy and not enough attention to the hedonistic ideals of happiness and pleasure, and that correlatively we have paid too much attention to the evils of subordination and oppression, and not enough attention to the hedonistic evils of suffering and pain. My methodological assumption is that the key to moral decision-making lies in our capacity to empathize with the pain of others, and thereby resist the source of it, and not in our capacity for abstraction, generalization, or reason. My strategic claim is directly entailed: the major obstacle to achieving the empathic understanding which is the key to significant moral commitment, including the commitment of the legal system to address the causes of women's suffering, is the striking difference between women's and men's internal lives, and more specifically, the different quality of our joys and sorrows. This obstacle can only be overcome through rich description of our internal hedonic lives.

Publication Citation

15 Wis. Women's L.J. 149-215 (2000)