Week 9: Critical Legal Theory & Feminist Jurisprudence

Question 1

What is critical legal studies (CLS)?

Answer 1

CLS is a response to the American legal system becoming more conservative, which also critiques Dworkin’s ideas.

Question 2

What is the principal focus of critical legal studies?

Answer 2

The legal system in America is used to perpetuate inequality, injustice and oppression instead of being an equalizer.

Question 3

How is CLS contrasted with existing legal theorists?

Answer 3

1. Dworkin: CLS counters Dworkin’s optimism about the potential of a legal system. CLS states that the law cannot be part of the solution because the law is systemically embedded with inequality, injustice and oppression that is within American society.
2. Fuller: A form of oppression is systemically embedded within the legal system, as opposed to Fuller’s proposition that there is an inherent morality within the law.
3. Marx: Both CLS and Marx were primarily concerned with economic oppression.

Question 4

What are the principles of CLS?

Answer 4

1. American social and political society is systemically embedded with oppression, injustice, and inequality. This is not momentary.
2. Liberalism embeds injustice.
   a) Focus on individual rather than class promoted class oppression
   b) Liberal celebration of individual rationality obscures conditions of domination and oppression
   c) Focus on individual freedom (liberty) rather than societal responsibility preserves social vulnerability
   d) Focus on individual rights impedes realisation of societal fairness or justice
3. Law is part of the problem.

Question 5

How does law embed oppression, injustice and inequality?

Answer 5

1. Law appears to be neutral when it’s not.
2. The public-private divide which hides dynamics of oppression and subordination by locating them in the ‘private’ rather than ‘public sphere’.
3. Law itself is a device that entrenches class oppression and domination.
4. Indeterminacy of legal argument allows decisions based on ideology.
5. Law protects the social status quo, it prevents social transformation/mobility.

Question 6

What is the value of CLS?

Answer 6

It gives a forceful representation of the outsider’s perspective. CLT reminds us that the law is not necessarily moral and provides us with detail the ways in which the law perpetuates inequality that Dworkin cannot capture.

Question 7

Why did the CLS fade?

Answer 7

1. End of the cold war. (CLS is a Marxist theory, and the US is innately hostile to Marxism)
2. CLS’ Marxist orientation (focus on class) gave way to focus on gender or race (identity orientation)
3. Postmodernism
4. CLS became mainstream and was generally accepted, it was not controversial in EU/Australia

Question 8

What is the critique of CLS?

Answer 8

CLS is seen as a vehicle of complaint which ultimately offers no solution - it is not a real theory of law.

Question 9

What is feminist jurisprudence?

Answer 9

It is an offshoot of CLS, in which CLS’ focus on class is instead replaced by a focus on gender oppression.

Question 10

What is the principal focus of feminist jurisprudence?

Answer 10

The shared experience of the systemic subordination of women to men (e.g. rape, wife battering, sexual harassment, employment practices etc.)

Question 11

What are examples of gender oppression in feminist jurisprudence?

Answer 11

• The global failure of law to address violence against women
• Disadvantage caused by hierarchical economic structures: particularly division between family and market
• Value structures associated with traditional male and female roles
• Different behavioural expectations

Question 12

What are issues of concern within gender oppression in feminist jurisprudence?

Answer 12

• What constitutes ‘consent’ in matters of sex
• Glass ceiling for women
• Law fails to take domestic violence seriously

Question 13

What does Carol Gilligan say about the feminist challenge to conventional legal scholarship?

Answer 13

The Harvard Professor reasons that the inherent biological differences between male and female affects the way they reason.

1. Women reason using an “ethics of care” - focusing on the issues of care and see ethics in relational terms.
2. Men use an “ethics of right” - focusing on ethical/moral issues in the abstract.
   The law utilises the ethics of right which may systemically silence those who speak in the language of relationships.

Question 14

Why is Carol Gilligan’s work controversial?

Answer 14

She attributes the differences to genetics and innate characteristics, but the different psyches that men and women share can be learnt.

Question 15

What are feminist challenges to conventional legal scholarship?

Answer 15

1. Neutral framework of legal reasoning
2. Law’s autonomy
3. Law’s neutrality between different persons
4. Law’s centrality to the constitution of social relations
5. Law as a system of enacted norms and rules
6. Public-private divide (public vs private sphere)
7. Law’s rationality is incomplete

Question 16

What is the notion of ‘cooperative contract behaviour’?

Answer 16

A contract as a product of cooperation rather than a product of competition; promises are not always for direct material benefit but can also be an exchange of affection.