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Ironically,
perhaps, the Dworkinian view fares best with the status of “law” in communist
societies. In communist societies, neither “law” nor “morality” are ideological
in character since neither are class-interest-specific and neither depends for
its acceptabilility on ignorance about its genesis. In such a society, it would
not be surprising if the legally valid norms (e.g., “drive on the right, not on
the left”) were also morally justifiable. Of course, the Dworkinian might think
that the standards of moral justifiability in a communist society are not, in
fact, justifiable from the standpoint of the bourgeois morality Dworkin
endorses, and so even in this case the Dworkinian might have trouble explaining
legal validity. Certainly nothing in Dworkin’s voluminous writings on issues of
equality and politics suggests that he is anything other than a liberal
apologist for the capitalist system, and so a loyal Dworkinian probably should
conclude that the laws of a communist society are not morally justifiable, and
so not really laws.Many feminist jurists challenge the processes of adjudication
by raising questions about the neutrality or impartiality that such process are
assumed to embody. Neutrality is believed to function in the law in at least
two ways. It is assumed to be built into the processes of the law, and it is
assumed to be produced by those processes. Feminist jurisprudence challenges
the first set of assumptions by raising questions about legal reasoning. It
challenges the second by raising questions about how a law created and applied
by partial and biased persons can itself be neutral. Thus feminist
jurisprudence also raises the question of whether neutrality is a possible, or
an appropriate, goal of the law.

As traditionally understood, neutrality in law is supposed
to protect us from a number of ills. It protects from personal bias by
insisting that judges, attorneys, law enforcement officers, etc., treat us not
as people with specific characteristics, but as interchangeable subjects. We
should be seen only in terms of certain specific actions and our intentions with
regard to those specific actions. Officials are expected not to bring their
personal biases to bear on those who come before them, and certain personal
aspects of those brought before the law are not permitted to come under
scrutiny. For example, if a judge personally believes that women are
pathological liars, this is not supposed to influence his or her interpretation
of any particular woman’s testimony. Similarly, no person’s race is supposed to
influence any judge’s understanding of their case. Feminist jurisprudence
challenges such claims to neutrality.

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One of the ways law is not neutral is through the
individual people that work in law. Feminist jurisprudence argues that because
there is no such thing as the “view from nowhere”, every
understanding has a perspective. This perspective influences it, and provides
an interpretive field for whatever matters of fact there may be. Since law is
made, administered and enforced by people, and people must have a perspective,
law must reflect those perspectives at least to some degree. Feminists tend to
agree that to the extent that a practice or person is unaware of their own
perspective, that perspective will more strongly influence their
interpretations of the world. It is when we become aware of biases that we are
able, through critical reflection, to reduce their influence and thus move
toward 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 their
own standpoints, the content of law may be unfair or discriminatory. Such
content would require officials to act in ways that are not impartial, or not
fair. But even if law is written by those whose perspectives are relatively
objective, our legislative system often imposes compromises on laws. Neutrality
is also assumed to be built into certain processes of the law, and in
particular the processes of judicial reasoning. The traditional model of
judicial decision-making relies on case law, which uses precedent and analogy
to provide evidence and justification. Interpretation of statutes in prior
cases provides precedent or rules. Courts then attempt to determine how the
facts of current cases require one rule or another to be brought to bear. This
way of making decisions has itself been thought to be neutral, and the
formalities of due process that support it are thought to reinforce that
neutrality. This feature of law, relying on past judgments to influence current
and future ones, also makes it peculiarly resistant to change. For feminist
jurisprudence, use of precedent allows the law to insulate itself against the
critiques of outsiders, including women.

Use of precedent has been challenged by feminist and
non-feminist critiques, including the pragmatism of Margaret Radin (1990) and
Jerome Frank’s legal realism (1963). Feminist jurisprudence responds to use of
precedent by pointing out those areas which are most likely to be subject to
sexist understandings. For example, case law that has derived from cases in
which plaintiffs and defendants are men will assume that the circumstances for
those men are simply the “normal” circumstances. Workplace law has
frequently been challenged by feminist critics for this reason. The law
assumes, based on cases in which the workplace was populated mainly by men,
that everyone who works shares men’s circumstances. This assumption entails
that workers are supported by a full-time homemaker, such that the burdens of
home life and child rearing should not affect one’s ability to function
efficiently in the workplace. But such assumptions work against women, who
usually are supporting someone else in this way rather than being supported.

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