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Department
Philosophy
Course
PHL290H5
Professor
gombay
Semester
Summer

Description
PHL271 Mar 5 th The Feminist critique of traditional law • All human beings are of equal intrinsic worth • The law ought to aspire to guarantee this equality – ought to ensure what all human beings in a society are treated equally • No current legal system succeeds at ensuring the equality of women In what sense are women unequal to men in the society at large? • disproportionate representation in high powered careers/professions • gender wage-gap • lower pay for comparable work • female dominated occupations consistently paid less than male dominated ones • historically, women are expected to be primary caregivers at home • work as mother or home-keeper undervalued by society • often expectations at work do not decrease as maternal/home-keeping duties increase • the vast majority of people who are raped/sexually assaulted are women • most porn involves women • most prostitution is women Feminist Legal Theory • what role does the law play in establishing or perpetuating these inequalities? • what role should the law play in combating them? MacKinnon • the law sees and treats women the way men see and treat women • the law is a vehicle for perpetuating the inequalities we in fact find between men and women in most societies Distinction: Doing versus Allowing • the law actively establishes inequalities, or brings about inequalities where there were none before • the law is a complicit in allowing pre-established societal inequalities to continue unchecked • The relevant inequalities are products of different historical forces, stereotypes, biases, prejudices, pernicious religious and philosophical beliefs, etc • The question is what the law should do about them given their existence Basic claim: the law does not do enough to combat societal inequalities • How does this work? Judicial Neutrality • courts are supposed to be neutral on the substantial content of legislation • judges are supposed to interpret and administer the law—not impose their own views on constitutional/legal questions • courts are supposed to uphold the Charter or Constitution, not change it according to their own personal beliefs • if the state of affairs the law protects is not one of equality but inequality, ‘merely upholding the law’ (i.e., judicial neutrality) amounts to reinforcing inequality • Merely upholding the law can do nothing to help under-represented and historically oppressed groups if the laws being upheld assume that the problem doesn’t exist Judicial Neutrality, key move: • ex. congress shall make no law abridging the freedom of speech • assumes that there exists a freedom of speech • those who have freedom of speech get to keep it • but the law does nothing for those who do not already have freedom in question, or have it to a lesser extent than they should (ie. women) Negative Liberty • if main concern of law = protect negative liberties, and if protecting negative liberties involves keeping the government from interfering or letting citizens be, the law winds up protecting whatever the status quo … • MacKinnon • The ideal of judicial neutrality and upholding negative liberties are thus not neutral • They protect and reinforce whatever qualities Negative vs. Positive Liberty • Negative liberty = liberty to be left alone, free from interference from others, to do as one pleases • Upholding negative liberty = staying out, letting be, not interfering • typically most states (modern liberal democracies in particular) = most concerned to uphold negative liberties • laws ensure that the state doesn’t interfere with people, but leaves individuals alone so that they can pursue own vision of good life • Positive liberty = liberty not just merely to be free from interference, but to actually carry out goals. • Upholding positive liberty = empowering people to achieve goals, over-and-above ensuring non-interference • ability to achieve your goal over and above not being interfered with Negative Liberty • If main concern of law = protect negative liberties, and if protecting negative liberties involves keeping the government from interfering or letting citizens be, the law winds up protecting whatever the status quo happens to be • Merely protecting negative liberties thus reinforces whatever inequalities in fact exist in society. It does nothing to address them MacKinnon • The ideals of judicial neutrality and upholding negative liberties are thus not neutral • They protect and reinforce whatever inequalities happen to exist • They thus protect and reinforce male dominance in society at large • This is what MacKinnon means when she says ‘the law sees and treats women the way men see and treat women’ and ‘the state is male.’ • Solution: Rather than uphold and reinforce the status quo, the law should be a medium of progressive change in society • It should worry less about ‘judicial neutrality’ and merely upholding negative freedoms and more about erasing the inequalities that in fact exist in society Objection • its not the job of the law to bring about the sort of social change MacKin
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