Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Tuesday, March 4, 2014

Mary Ziegler Blogs on Women's Legal History This Month

Mary Ziegler (Florida State) joins us as a guest blogger this month.  Her work in legal history focuses on the law and history of abortion, illegitimacy, contraception, marriage, and child care.

If it’s March, it’s time once again to celebrate Women’s History Month. With the rise of important new scholarship, we also have a perfect reason to assess the state of women’s legal history itself. When New York University Press published a volume of essays on feminist legal history in 2011 (co-edited by Tracy Thomas), feminist legal history was still relatively new. At its heart was a narrative about the history of feminism, starting with the Seneca Falls Convention of 1848, continuing through the battle for the Equal Rights Amendment, suffrage, and temperance in the early twentieth century, the rise of the “second-wave” in the 1960s and 1970s, and the backlash to it in the 1980s. Three years later, feminist legal history is unquestionably alive and well—the subject of many books, law review articles, and symposium events. The flourishing of the field makes it more important than ever to question what we mean by both “law” and “feminism.”

Over the course of the month, I’m hoping to blog about the ways in which scholars are testing the boundaries of current understandings of women’s legal history. Some historians have found law in unconventional places: in the stories of those operating in administrative agencies, legislative hearings, abortion clinics, doctors’ offices, and grassroots organizations. These histories invite us to rethink whether women make law even when they do not transform existing doctrine, relate their claims to a lawyer, or change black-letter rules. In this way, women’s legal history stands at the forefront of a larger reevaluation of the relationship between law and social change. How we view that relationship, as women’s legal historians increasingly recognize, depends on how much we recognize something as law even when it fails to conform to our expectations.

Other historians have tested the relationship between feminism and the law. Whom should we consider a feminist? Should we treat as feminist any historical actor who identified herself (or himself) as such, or can we recognize feminists from their substantive commitments? Should feminist legal historians study those who obstructed legal progress for women? Can feminist politics obscure as well as illuminate our understanding of where we are and how we got here?

I am not sure I’ll answer these questions by the end of women’s history month, but it’s crucial to start a conversation about them. Women’s legal history teaches us not to take for granted legal rules, relationships, and institutions that now seem natural. It is a history of society’s blind spots and forgotten opportunities. For that reason, Women’s History Month seems to be as good a time as ever to consider what we as historians might have missed.

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