Is “law as a social system” bad for women? A preliminary analysis of the Luhmannian approach to law from a feminist perspective

Abstract

Women's struggle for emancipation can be characterized, among other elements, as an ongoing process for, first, entering the legal system and second, attempting to change it. This, nonetheless, stirs up conflicts and certain perplexities, as appropriately summarized by Alejandra Ciriza under the label the Wollstonecraft dilemma: the politicization of sexual difference, which constitutes the center of feminist struggle in modernity, faces a twofold obstacle. On the one hand, the presentation of sexual difference in the public sphere leads to the transformation of any question related to it into a vindication of rights. On the other hand, the judicialization and institutionalization of such demands lead to the recognition of the limits and impossibilities of a politics of rights (Ciriza, 2004, p. 210). Given the fact that there is this uncontestable and paradoxical relationship between women's political struggle for equality and the legal system, this paper aims to evaluate a specific approach to law, that is, Luhmann's account of law as a social system from a feminist perspective. The question guiding the discussion proposed here is the following: is the theory of law as a social system able to incorporate feminist contentions to law? In order to do so, the Luhmaniann theoretical framework and its most important concepts is presented and discussed. Then, this framework is reviewed through a feminist perspective, particularly by the confrontation with a feminist agenda of law that is based primarily on feminist legal theory and theories of patriarchy. At the end, I hope to accomplish the twofold intention of this paper: first, to point the limits of Luhmann's approach to law from a feminist standpoint and, second, to show the relevance of gender analysis in the legal field