Portia Redux: Another Look at Gender, Feminism, and Legal Ethics1

In 1985 the author wrote an article entitled, ‘Portia In A Different Voice: Speculations on a Women's Lawyering Process’, which explored how gender differences might effect the ways in which lawyers performed their tasks, structured their work, made ethical decisions, and made and enforced the law. The article was a speculation on and application of the then very popular theories of a noted educational psychologist, Carol Gilligan. The character of Portia from Shakespeare's The Merchant of Venice was used to illustrate the oppositional ethics that exist in any problem of justice or moral reasoning. She ascribed in the reading of Portia — disguised as a male jurist and variously interpreted to be a lawyer, judge, legal envoy, or law clerk — a lawyer who appealed to the equitable, contextual, merciful sides of law, rather than to the draconian certainty of rules and universal principles. This chapter first reviews the initial arguments and claims of those who used the structure and findings of Gilligan's work to create a claim of an ‘ethic of care’ based on a women's lawyering process, differentiated from the more conventional and accepted male norm of lawyering. Secondly, it reviews the theoretical, empirical, and methodological critiques of this work that emerged in the years following publication, as well as debate about these claims. Thirdly, it reports on some of the emerging empirical tests of these claims. Fourthly, it re-explores the role that the metaphors and images of the character of Portia play in this debate.