Abstract
Some feminists claim that the law is male. This claim is not simply to the effect that the legal process is dominated by males — though this may be true for most or all systems, as it clearly is for Scotland.1 It is not even just one alleging that, since males hold the power by means of which the world is defined or constructed, their perspective on the world is what will emerge in social structures and discourses and become dominant in social life. It involves asserting that their perspective will be made to appear as if it were objectively valid, as if it offered the only possible account of reality. Thus, not only will all areas of life, including legal rules and practices, reflect this male perspective but they will do so in a way that suggests it is beyond question. This, it is argued, can be amply demonstrated by an investigation of the operation of the law relating to rape or domestic violence or, as mentioned in the previous chapter, provocation.
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References
In June 1996, 8 out of 104 permanent Sheriffs were women. The first ever woman Senator of the College of Justice was appointed at the beginning of July 1996, having served previously both as a Sheriff and as a temporary judge. (In England, at the same time, out of all ranks of the judiciary, 2804 were men and 312 women, with one woman Court of Appeal Judge and seven on the High Court Bench).
Taken from Carol Smart, ‘Feminist Jurisprudence’ in Peter Fitzpatrick ed, Dangerous Supplements (cit. ch X, n. 48) at p 150, commenting on the work of Carol Gilligan, In a Different Voice (Harvard University Press, London, 1982). The chapter provides a useful bibliography of feminist jurisprudential writings.
Equally it may be suggested that both types of disposition are to be found, in varying proportion, in all individual human beings, although fostered (and thus made more apparent) or discouraged (and thus kept hidden) as a result of socialisation.
Neil MacCormick, ‘The Separation of Law and Morals’ in R P George ed, Natural Law Theory: Contemporary Essays (Oxford: Clarendon Press, 1992) at p 123.
Except, perhaps, as a matter of coincidence.
Even if, as some would claim, it is a mythical one.
McNaghten’s Case (1843) 10 Cl & Fin 200: ‘. . . the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong’ — sometimes characterised as posing the question ‘Would he still have done it if there had been a policeman at his elbow?’.
See chapter VI.
Child Support Act 1991 ss. 6& 46.
See e.g. Ted Honderich, Punishment: The Supposed Justifications (London: Hutchinson, 1969).
One could argue as to whether this is a matter of emotion or of the operation of a different level of reason, that of practical reason, in terms of divergent male and female interests and purposes.
Christine Di Stephano, ‘Dilemmas of Difference: Feminism, Modernity and Postmodernism’ in Linda J Nicholson ed, Feminism/Postmodernism (New York & London: Routledge, 1990) p 63.
Toward a Feminist Theory of the State (Cambridge, Mass. and London: Harvard University Press, 1989) p 249.
Ibid p 115.
Although put in my own way and in less detail, I am indebted for the basis of this summary of Enlightenment ideas to Jane Flax, ‘Postmodernism and Gender Relations in Social Theory’ in Nicholson ed, Feminism/Postmodernism (cit. n. 12) at p 41f, although I have omitted her assessment of the relationship between reason, autonomy and freedom (partly because I am not convinced that this approach is attributable to all Enlightenment thinkers and partly because it would complicate the present argument), as also the reference to language, for the second of these reasons.
See for example, Thomas S Kuhn, The Structure of Scientific Revolutions 2nd edn (Chicago, London: University of Chicago Press, 1970)
‘The Implications of Natural-Law Theory’ in Anthony Carty ed, Post-Modern Law: Enlightenment, Revolution and the Death of Man (Edinburgh: Edinburgh University Press, 1990) p 145
The Postmodern Condition: A Report on Human Knowledge, trans G Bennington and B Massour (Manchester: Manchester University Press, 1984).
It can be argued, however, that this is not so much a modern as a pre-modern view (see later in the chapter) and that theorists such as Luhmann, who wish to rid the world of complexity, are clinging to pre-modern ideas.
Philosophical Investigations (cit. ch X, n.13) para 130.
This is the notion of “incommensurability”.
The Post Modern Condition (cit. n. 18) ch 5.
‘le petit récit’.
The Post Modern Condition p 23.
Lyotard uses the term “agonistics” — originally to do with Greek sporting activities, such as chariot racing.
The latter is effectively Rorty’s position — see e.g. Richard Rorty, Philosophy and the Mirror of Nature (Princetown: Princetown University Press, 1979).
The Post Modern Condition p 60.
“The Desperate Vacuum”: Imperialism and Law in the Experience of Enlightenment’ in Post-Modern Law (cit. n. 17) p 97f.
Ibid p 99.
Ibid p 100.
Ibid p 104.
Costas Douzinas and Ronnie Warrington with Shaun McVeigh, Postmodern Jurisprudence: The Law of Text in the Texts of Law (London: Routledge, 1991), the Introduction at p x.
Id.
Ibid p xiii.
Ibid p x.
‘Epistemologies of Postmodernism’ in Feminism/Postmodernism (cit. n. 12) at p 120.
See Nancy Fraser and Linda J Nicholson, ‘Social Criticism without Philosophy’ in Feminism/Postmodernism (cit. n. 12) at p 34f.
Hans-Georg Gadamer, Truth and Method (cit Intro, n.7) p 273.
Georgia Warnke, Gadamer: Hermeneutics, Tradition and Reason (Stanford: Stanford University Press, 1987) p 82.
Truth and Method (cit. n. 38) p 348.
Jurisprudence as Ideology (London and New York: Routledge, 1991) at p 17.
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Attwooll, E. (1997). Some Different Critiques. In: The Tapestry of the Law. Law and Philosophy Library, vol 26. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-8800-3_11
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