Abstract
The theories about the relationship between law and morals discussed in Chaps. 2 and 3 and theories of constitutional interpretation in Chap. 4 by no means exhaust the available legal theories that have been prominent in the philosophical literature. In the debates about the validity of laws pertaining to the family and family relationships one will find not only variations of legal positivism and natural law theory, but approaches to the law that attempt to determine how legal decisions are made by judges. What is legal reasoning and how does it differ (if at all) from moral and political reasoning? How does a judge begin the process of legal reasoning? Is her choice of a guiding principle based on the self-evident nature of the principle, as would be recommended by natural law, or is it to be found in whatever policies and practices promote the general welfare, such that we can say “The law is whatever the judge says that it is”? The latter approach to legal reasoning, first developed in the United States in the 1920s and 1930s, is Legal Realism. It was a reaction to an earlier theory now called Legal Formalism. Another theory, influenced by Legal Realism and originating in the 1970s, is Critical Legal Studies. A fourth, partly influenced by both Legal Realism and CLS, is the radical version of Feminist Legal Theory. We will discuss these in order.
“If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict.”J. Oliver Wendell Holmes (1897)
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Notes
- 1.
[As the result of this surrogacy contract] “a child, instead of starting off its life with as much peace and security as possible, finds itself immediately in a tug-of-war between contending mother and father” (In the Matter of Baby M, 1988). For a full discussion of the debate over the validity of surrogate mother contracts see Chap. 11.
- 2.
“If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied, and thereby procure an abortion, he shall be confined in the penitentiary not less than two nor more than five years; if it be done without her consent, the punishment shall be doubled. By `abortion’ is meant that the life of the fetus or embryo shall be destroyed in the woman’s womb or that a premature birth thereof be caused” (Greenhouse and Siegel, 2012).
- 3.
See also the example of “reliance-based” rules of recovery as an example of how social policy is used to resolve contract disputes (Sect. 11.4).
- 4.
“[T]hey are making from scratch an authoritative political decision that the litigants in the case before them will be compelled to obey, unless the decision is overturned on appeal by a judge in a higher court” (Altman, 293)
- 5.
Readers will recall the example at (Sect. 3.2) of a young Moroccan woman who was required to marry her rapist.
- 6.
Under the doctrine of coverture, “a married woman or feme covert was a dependent, like an underage child or a slave, and could not own property in her own name or control her own earnings, except under very specific circumstances. When a husband died, his wife could not be the guardian to their under-age children. Widows did have the right of “dower,” a right to property they brought into the marriage as well as to life usage of one-third of their husbands’ estate. Though a married woman was not able to sue or sign contracts on her own, her husband often did have to obtain her consent before he sold any property his wife had inherited.” (Harvard Business School 2010). See also the discussion of the Family Privacy Doctrine at section “Intrafamily harm and the family privacy principle”.
- 7.
Altman makes a distinction between liberal and radical feminism. The liberal feminist believes that patriarchy has been largely eliminated from Western societies. Radical feminism believes that it still exists. (202)
- 8.
Compiling data from the Census Bureau, the Department of Education and the Bureau of Labor Statistics, AAUW calculated the median salaries for full-time employment in all 50 states and the District of Columbia. In the U.S., the average woman is paid 23 percent less than the average man (The Huffington Post. 2014).
- 9.
“A number of countries have adopted measures intended to improve the political representation of women. The International Institute for Democracy and Electoral Assistance (IDEA) global database on quotas for women lists 45 countries where quotas for female candidates are presently mandated (either by constitutional provision or by national law) at the national or sub-national level. And there are many more countries where parties have implemented voluntary quotas for female candidates. Whether or not these measures are effective is another issue, but countries and parties are at least interested in appearing to promote greater gender-balance in their representative assemblies” (Bird 2003, 3).
- 10.
“Only a few states have passed laws to correct the under-representation of ethnic minorities, and in most cases these laws apply to dominant national minorities, and not to polyethnic immigrant minorities. In addition, most of the countries where parliamentary seats are reserved for national minorities are either new or non-democracies, where such measures are required to maintain ethnic peace or to limit the autonomy of national minorities. There are also a handful of established democracies where seats are reserved for designated indigenous communities. There are no established democracies that have adopted quota laws for ethnic minorities (in the fashion that many have for women” (Bird, 3).
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Houlgate, L.D. (2017). Critical Legal Studies and Feminist Jurisprudence. In: Philosophy, Law and the Family. AMINTAPHIL: The Philosophical Foundations of Law and Justice, vol 7. Springer, Cham. https://doi.org/10.1007/978-3-319-51121-4_13
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