The Language of Law School This page intentionally left blank

 Inessential Woman
; Harris, “Race and Essentialism in Feminist Legal Theory”;
Obiora, “Neither Here nor There.” For a summary of this problem as it affects debates
over international human rights, see Higgins, “Anti-Essentialism, Relativism, and Human
Rights.”
13. As Fineman explains, her conception of a gendered life
begins with the observation that women’s existences are constituted by a variety of
experiences—material, psychological, physical, social, and cultural—some of which
may be described as biologically based while others seem more rooted in culture and
custom. . . . My difference argument . . . is grounded in empirical realizations, in
gendered experiences, and therefore, in women’s lives as constructed in society and
culture. (Fineman, 
The Neutered Mother
, 48)
14. Fineman underscores the difficulties that inhere in struggles to encompass some
aspects of gendered experience under equality models: “What are we feminists to do with
motherhood, both as a practice and an ideological structure? . . . There is no autonomy to
be found in motherhood. Motherhood is mired in dependency—the dependency of the
child, in the first instance, and the dependency of that person assigned responsibility for
caretaking, in the second instance.” Fineman, 
The Autonomy Myth
, 169. Here, as Fineman
so sharply delineates for us, the supposedly clear lines between biological and social roles
blur, posing a difficult theoretical dilemma. The combination of women’s biological role
in human reproduction and of standard sociocultural allocations of caretaking roles in
many societies does create a pattern in which those who are biologically women wind up
differentially responsible at the social level for caretaking. Men, of course, can wind up
being allocated caregiving responsibility as well, hence Fineman’s provocative metaphorical
move to denominate men who are primary caretakers “mothers,” extending to them the
same protections and supports as would be extended to female mothers. Fineman, 
The
Neutered Mother
, 234–235. Her insistence on looking at social context to provide mean-
ing for arguments over sameness and difference is echoed in my work by a focus on the
complex and varied strands of linguistic patterning that overlap but also diverge, depend-
ing on context. I take seriously Calhoun’s injunction that it is in the tension between
sameness and difference that we find one of the core issues facing this generation of social
theorists. Calhoun, 
Critical Social Theory
. Feminist theorists like Fineman, along with criti-
cal race theorists, have taken us a long way in rethinking this conceptual puzzle.
15. In this conception of a double edge, I draw on Moishe Postone’s interpretation
of Marx. Postone, 
Time, Labor, and Social Domination
. This issue is discussed in more detail
at the end of Chapter 6. There I discuss a parallel between the “double character” that
Notes to Pages 15–16
229

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Postone locates in aspects of capitalist society and epistemology, and the form of abstract-
concrete reasoning used in U.S. law. Like Postone, I point to a potentially liberating as-
pect of this double edge, one that exists side by side with a dangerous possibility of
abstraction away from attention to injustice and inequality. For an argument with af-
finities to this, see Yngvesson, 
Virtuous Citizens
, 119–127: “The ‘double reality” of these
[legal] processes is that they are both about domination and refusal, about complicity with
power and struggles against relations of power.”
16. Jane Larson, personal communication.
17. Or, to make patent a fairly obvious connection with some central issues in juris-
prudence, in interpreting orders from the sovereign, not to mention in many other more
complexly posed issues surrounding law and interpretation.
18. See Whorf,