Feminist jurisprudence

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Brief 215632 In order to answer this question one must first assess and consider the theory of feminist jurisprudence. This will require an in-depth analysis of the theory and the principles of postmodernism. Further, in order to answer this question one must assess the principles that interpose themselves in law, namely the role of sex. Feminist jurisprudence can be said to be a theory that stands out from the classic theories that occupy the thoughts in jurisprudence. Feminism can be defined thus. The idea that man has created law for the sole purpose of restricting female interaction and conduct. Feminist jurisprudence technically responds to the current understanding of legal thought, which arguably is identified with the liberal Anglo-American tradition. Two of the major branches within this sphere of thought are occupied and identified by legal positivism and natural law. These will be examined below in detail. Feminist jurisprudence can therefore be seen to respond to both these classic examples in Anglo-American traditions, and raises and identifies problems about the creation and assumptions of law. The rules of feminist jurisprudence provides that the law must be able to be properly objective and identifiable. This clearly provides that the views must be placed against a set of objective criterion. This further provides that the law must be impartial and not bent into a man’s previous experience and desire to control women. Thus, feminism argues that the law should provide a conceptual basis for equality, rather than control. Equally, the idea of feminism provides that the law should be certain and consistent in order to achieve the overall objective of justice. Within the mainstream thought of feminist jurisprudence the debate is centralised upon the ideas of two conflicting beliefs. These are the school of thought that centres around the reformist tradition against the radical tradition. The reformist school of thought argues that the liberal tradition should be reformed so that man can no longer control women by recourse to the law. Whereas the radical tradition identifies the fact that man has created the law with all it’s inherent problems and failings and fundamentally fails to achieve a just outcome. They further argue that if a legal system is based upon fundamental failings then it can not be restructured and reshaped. Thus, according to feminist jurisprudence the legal system should be departed from and recreated by using traditional feminist beliefs. They further argue that this will allow for strict compliance with justice. However, it is worth noting that this school of thought states that the rights of women must be regarded and advised according to the law. This would imply a certain degree of inconsistency within the framework. This would mean that justice would alter according to the person who is seeking access to the law. In order to fully compare and contrast the basis and importance of feminism it is important to note other classic theories within the sphere of jurisprudence. This is the idea of natural law. According to the natural law thesis, the only authentic way of creating and subsequently evaluating law is by reference to the unpredictable notion of morality. This in it’s entirety contains reference to the idea of ‘God’. This thesis makes reference to different principles of law. These principles contain reference to the idea of eternal law, which is based upon the highest authority in the structure of natural law. The next principle is that of the divine belief, this again is a high authority that is premised on the creation of laws that are made by ‘God’. The final higher principle is that of natural law. This is defined by the laws of nature. These higher principles premise on the existence and creation of the human law. The human law is the law by which all human beings are to live their life’s by on a daily basis. These higher principles within the natural law thesis are deemed to be both legitimate and ‘valid’ as, by reference to God, they are presumed to contain notions of truth and justice. Accordingly, this theory can be contrasted against the idea of feminism. Feminism states that the human law is designed to control and restrict women from playing a crucial and active role in the legal system. However, nature law provides that law is created by a higher being. According to the ideas of feminism the higher being is a male creation and thus masculine in nature. If one follows the principles of the Bible, then God is neither male nor female. The existence of God is an asexual being, that provides guidance and advice through the power of prayer. This theory can be compared and contrasted with that of legal positivism. The idea of legal positivism is used to describe what the law actually is in reality rather than what it should or could be. The principle of legal positivism premises on the original idea that the higher principles which are seen in the natural law theory can not be proved in reality and by any of the law’s usual standards of proof. Thus, in failing to prove their existence in reality legal positivism looks to the existence of human law and how it actually works in the real world. Legal positivism removes the notions of morality from its plain structure and replaces it with different conceptual principles. The legal positivist structure is, therefore, based on the concepts of rules, created by an authority and sovereign figure and containing sanctions if these rules are broken. However the notion and principles of legal positivism uses the certainty created by the structure to create ‘real’ law. This is based upon the existence of the ideas of ‘rules, authority and sanctions’, this subsequently can be objectively identified and measured against itself, and gives the entire real legal structure validity. This can be compared and contrasted against the idea of feminism. According to the feminist jurisprudence, the law is created by man to control and restrict women. Clearly, this intervention can be seen to possibly be in accordance with legal positivism. The creation of a sovereign figure is premised upon the idea of a male individual. However, in this country the sovereign and head of state is the Queen. It can be admitted, however, that the line of the monarch is vested firmly in the male line of succession. In terms of the original legal positivist approach, Jeremy Bentham criticised the higher principles identified and created by the natural law theory and identified the ‘is/ought’ debate in order to separate the legal ‘is’ to the moral ‘ought’. Thus, the legal ‘is’, is what actually is, whereas the moral ‘ought’ is what morality should allow in the legal system. Jeremy Bentham stated further that questions of morality and ethics should be decided by the censor whilst defining law was left to the expositor. Jeremey Bentham attempts, in a scientific way, to separate what the law actually is and how morality stands within the structure. However in doing so morality is not totally discard merely departed from. Thus, in following the line of reasoning from the feminist theory, the rules created by the sovereign figure are a male creation to prevent interaction from female intervention. The next principle in the theory of legal positivism is John Austin. According to Austin’s work ‘The Province of Jurisprudence Determined’, law originates from a sovereign figure that is placed at the very top of the legal structure. According to feminism this sovereign figure is a male creation and is masculine in nature. John Austin provided that ‘Positive laws, or laws strictly so called, are established directly or immediately by authors of three kinds: by monarchs, or sovereign bodies, as supreme political superiors: by men in a state of subjection, as subordinate political superiors: by subjects, as private persons, in pursuance of legal rights. But every positive law, or every law strictly so called, is a direct or circuitous command of a monarch or sovereign member…..to a person or persons in a state of subjection to its author’. Thus, feminism provides that the sovereign figure that creates the rules and contains the necessary sanctions if the rules are broken, is a male in origin. In terms of further work, Herbert L. A Hart’s work ‘The Concept of Law’, criticised aspects of John Austin’s work, namely the idea of a sovereign body being an individual person, the idea that law is a series of commands and the emphasis on the internal and external concepts. Thus, Hart would argue that as the sovereign figure is not an individual identifiable person, how can it be male in nature and origin? This goes to the heart of the feminist theory, as it provides that laws are create by men to control and restrict female actions. In Herbert L. A Hart’s theory of what the law actually constitutes, two distinctive types of rules existed. These rules can be defined as the primary rules or the secondary rules. The primary rules are designed to either limit or expand liberty, whereas and the secondary rules are designed to explain the existence of the primary rules. These secondary rules can be divided up between three different types of the existing rules. Firstly, the rule that creates a power to legislate; secondly, the rule that creates the power to create adjudication; and finally a rule of recognition, which is not a power based rule. This can be contrasted against the ideas of feminism. This principle created the idea that law was only enacted to prevent women from expressing real desires in to how the law actually works. A fundamental building block of feminism is that women are treated as secondary to the aspirations of man. In terms of the modern legal positivist thought, Hans Kelsen subscribed to the view that the law could be seen to be effective by the application of ‘norms’. In Hans Kelsen’s theory, ‘The Pure Theory of Law’, he stated that ‘all norms whose validity can be traced back to one and the same basic norm constitute a system of norms, a normative order. The basic norm is the common source for the validity of all norms that belong to the same order- it is their reason of validity’. Thus, Hans Kelsen’s theory is based upon a hierarchy of components called ‘norms’. These start at the bottom of the structure as specific and smaller norms and increase in their relevance to become larger once the hierarchy is moved up. This again can be contrasted against the theory of feminism. These theory again shows the fact that these norms are based on the creation of a male originated society. In following this theory, feminism would argue that the norms cited by Hans Kelsen are created by the male faction of society and are designed to prevent women from asserting their rights and roles in accordance with the attitudes of society. Thus, Hans Kelsen believed that the bottom and smaller norms exist only because of the larger norms in the structure. Subsequently, the larger norms exist only because of the ‘grundnorm’. This, according to Hans Kelsen, is the norm that occupies the apex of his structure. In following the guidance from feminism, the idea of the ‘grundnorm’ is a based upon the male requirement to prevent women from asserting their role and rights within the male governed society. However, legal positivism, and in particularly Hart’s beliefs, was criticised by Ronald Dworkin. Ronald Dworkin insisted that the law is a function of based upon social conventions and a hybrid system of rules and ‘non-rule standards’. Ronald Dworkin defined this requirement as being the ability of the courts to change the law when they are presented with a ‘hard case’ to rule upon. In doing so, the judge uses both political and moral principles to interpret and apply the law and how the law should be used in society. Therefore, in following the principles of feminism the usage of political and moral intervention is a male creation designed to stop and interrupt the role of women in social functions. In conclusion, feminist jurisprudence is a classic theory that interposes the ideas of a male domination against the female part of society. The idea of sex therefore is the prerequisite of the theory. It is a fair assessment to assert that the core of feminist thought is that law is designed and created by men to rule women. The classic thoughts in the theory of jurisprudence are that of natural law and legal positivism. These interpose the idea and principles of a divine being creating the existence of human law, and the notion of a sovereign figure passing law that contains sanctions if the law is broken. This can be contrasted against the ideas of feminism, as this theory is based purely upon the idea that man creates law to control and restrict woman. The rights and wrongs of this theory can therefore be evidenced. Bibliography
  • Lloyd’s Introduction to Jurisprudence, 7th Edition, Third Impression, by M. D. A Freeman, published by Thomson, Sweet and Maxwell Ltd in 2004.
  • Jurisprudence: Theory and Context, 3rd Edition, by Brian Bix, published by Thomson, Sweet and Maxwell Ltd in 2003.
  • Swot Jurisprudence, 5th Edition, by Raymond Wacks, published by Blackstone Press Ltd in 1999.
  • Basic Concepts of Legal Thought, 1st Edition, by George P. Fletcher, published by Oxford University Press in 1996.
  • The Concept of Law, 2nd Edition, by H. L. A Hart, published by Clarendon Law Series, Oxford University Press in 1994.
  • Blackwell Companions to Philosophy, A Companion to Philosophy of Law and Legal Theory, 1st Edition, Edited by Dennis Patterson, published by Blackwell Publishers in 1996, reprinted in 2000.
  • H. L. A Hart, Law, Liberty, and Morality, 1st Edition, Twelfth Impression, by H. L. A Hart, published by Oxford University Press in 1963.
  • Bentham and the Common Law Tradition, 1st Edition, by Gerald J. Postema, published by Clarendon Law Series, Oxford University Press in 1986.
  • The Morality of Law, 2nd Edition (revised), by Lon L. Fuller, published by Yale University Press in 1964.
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