Ironically,perhaps, the Dworkinian view fares best with the status of “law” in communistsocieties. In communist societies, neither “law” nor “morality” are ideologicalin character since neither are class-interest-specific and neither depends forits acceptabilility on ignorance about its genesis. In such a society, it wouldnot be surprising if the legally valid norms (e.g., “drive on the right, not onthe left”) were also morally justifiable.
Of course, the Dworkinian might thinkthat the standards of moral justifiability in a communist society are not, infact, justifiable from the standpoint of the bourgeois morality Dworkinendorses, and so even in this case the Dworkinian might have trouble explaininglegal validity. Certainly nothing in Dworkin’s voluminous writings on issues ofequality and politics suggests that he is anything other than a liberalapologist for the capitalist system, and so a loyal Dworkinian probably shouldconclude that the laws of a communist society are not morally justifiable, andso not really laws.Many feminist jurists challenge the processes of adjudicationby raising questions about the neutrality or impartiality that such process areassumed to embody. Neutrality is believed to function in the law in at leasttwo ways. It is assumed to be built into the processes of the law, and it isassumed to be produced by those processes. Feminist jurisprudence challengesthe first set of assumptions by raising questions about legal reasoning. Itchallenges the second by raising questions about how a law created and appliedby partial and biased persons can itself be neutral. Thus feministjurisprudence also raises the question of whether neutrality is a possible, oran appropriate, goal of the law.
As traditionally understood, neutrality in law is supposedto protect us from a number of ills. It protects from personal bias byinsisting that judges, attorneys, law enforcement officers, etc., treat us notas people with specific characteristics, but as interchangeable subjects. Weshould be seen only in terms of certain specific actions and our intentions withregard to those specific actions.
Officials are expected not to bring theirpersonal biases to bear on those who come before them, and certain personalaspects of those brought before the law are not permitted to come underscrutiny. For example, if a judge personally believes that women arepathological liars, this is not supposed to influence his or her interpretationof any particular woman’s testimony. Similarly, no person’s race is supposed toinfluence any judge’s understanding of their case. Feminist jurisprudencechallenges such claims to neutrality.
One of the ways law is not neutral is through theindividual people that work in law. Feminist jurisprudence argues that becausethere is no such thing as the “view from nowhere”, everyunderstanding has a perspective. This perspective influences it, and providesan interpretive field for whatever matters of fact there may be. Since law ismade, administered and enforced by people, and people must have a perspective,law must reflect those perspectives at least to some degree. Feminists tend toagree that to the extent that a practice or person is unaware of their ownperspective, that perspective will more strongly influence theirinterpretations of the world. It is when we become aware of biases that we areable, through critical reflection, to reduce their influence and thus movetoward a greater (although not a perfect) objectivity.Another way that law is not neutral is in its content.
Because it is made by people, many of whom have not critically examined theirown standpoints, the content of law may be unfair or discriminatory. Suchcontent would require officials to act in ways that are not impartial, or notfair. But even if law is written by those whose perspectives are relativelyobjective, our legislative system often imposes compromises on laws. Neutralityis also assumed to be built into certain processes of the law, and inparticular the processes of judicial reasoning. The traditional model ofjudicial decision-making relies on case law, which uses precedent and analogyto provide evidence and justification. Interpretation of statutes in priorcases provides precedent or rules. Courts then attempt to determine how thefacts of current cases require one rule or another to be brought to bear. Thisway of making decisions has itself been thought to be neutral, and theformalities of due process that support it are thought to reinforce thatneutrality.
This feature of law, relying on past judgments to influence currentand future ones, also makes it peculiarly resistant to change. For feministjurisprudence, use of precedent allows the law to insulate itself against thecritiques of outsiders, including women.Use of precedent has been challenged by feminist andnon-feminist critiques, including the pragmatism of Margaret Radin (1990) andJerome Frank’s legal realism (1963). Feminist jurisprudence responds to use ofprecedent by pointing out those areas which are most likely to be subject tosexist understandings. For example, case law that has derived from cases inwhich plaintiffs and defendants are men will assume that the circumstances forthose men are simply the “normal” circumstances. Workplace law hasfrequently been challenged by feminist critics for this reason. The lawassumes, based on cases in which the workplace was populated mainly by men,that everyone who works shares men’s circumstances.
This assumption entailsthat workers are supported by a full-time homemaker, such that the burdens ofhome life and child rearing should not affect one’s ability to functionefficiently in the workplace. But such assumptions work against women, whousually are supporting someone else in this way rather than being supported.