HUMA 1825 Note 12
Three segments of HUMA 1825
- First segments dealt with: what is law and what is the relationship of law and
o This gave us two answers to the big theoretical question: specifically,
how is the institution that governs behaviour connected to morality
We saw the answers:
Aristotle and Aquinas said that law is justice. Law
stands in the closest conceptual relationship to
morality, or else it isn’t law.
o We had the notion that law had to be close as
coming from morality as well as from a
transcendent being (God)
Utilitarians said that there is no necessary relationship
between law and morality. Rather, law is whatever is on
the books providing it came into existence in
accordance to criteria mandated by the state.
o This debate (natural law v. legal positivism) still
After WWII there was a movement back to natural law theory.
The two secular natural law theorists were Fuller and
Dworkin. Fuller gave us 8 excellences of what constitutes
legality and therefore are the inner morality of law. Dworkin
talked about law as integrity. This, especially the way judges
and his interpretive model of adjudication, applies law as a
method of integrity.
o From Dworkin, we saw law as a mean of achieve its own ambitions.
This meant that law trying to expand the community that was
embraced by the law. It was trying to increase those who were
disadvantaged (trying to increase their number under the
umbrella of the law)
He wanted to see that legal rights were enjoyed by the most
extensive number of us (advantaged and disadvantaged) in
order to achieve law’s ambitions
“We leave no wounded behind. No abandoned
minorities of race, or gender, or sexual positions, even
when it endangers other pg.161”
o Minow wishes to extend the notion of community to women,
minorities of race and sexual disposition, so to engender the justice.
Engendered means of a male engendering offspring
(begetting). Engender also has an archaic meaning of female
conceiving or bearing offspring.
Therefore, engender means to bring about or produce
o Gender refers to both men and women alike. When she writes Engendering justice, she’s talking about
producing something as well as referring engendering justice
not just for women, but also for men and women alike.
This article was helps us understand difference and how it
makes in law.
This article is about difference: how we understand and
conceptual what makes us different from each other
and what makes us the same as each other.
o It’s going to help us understand what
“difference” difference makes in legal judgments
and how we treat each other.
Therefore, this article considers what
makes us alike, different and how we
conceptualize “difference” so as to
- This is a modern legal theory
- In the 20 -21 century there have been three different kinds of theories
o One thrust in legal theory has been to consider law as ideology. The
critical legal theorists see law as reflecting the hegemonic beliefs of
those in power.
They conceptualize law as channeling and legitimizing the
powerful as well as their interests.
o Another prominent thrust was the school of law as economics.
Richard Pulsner was a person as understanding.
Law is a tool of wealth maximization in society.
The rules of contract, tort and property law should be
constructed so as to maximize social wealth.
Dworkin takes great exception as law as efficiency
o The third prominent thrust is that of feminist jurisprudence, and this
thrust sees laws as patriarchy.
Starting in the 1960-70s, women began to speak in their own
voice. Carroll Willgenhall in her own voice
These people began to create the feminist jurisprudence.
It is difficult and impossible to give a single definition to
feminist jurisprudence since there is such a great
variety between and among women.
o There is great disparity in different social
realities as they pertain to women.
o It is therefore; almost impossible to say that it is
o If we believe that by feminism of belief in
equality or gender equity, then there are very
many men who are feminists who believe in equality for women and men who believe in
What equality needs, however, as well as what we mean by
gender equity (treating people differently to achieve equality)
there are highly contested concepts (there are many
differences and disagreements arise) between feminists and
We want equality between men and women and gender equity
between men and women
These concepts are both controversial and contested
There is however one thing that people can say about feminism
as a common core to feminist jurisprudence.
The descriptive part of this meaning is: all feminists
accept as a fact that the world as we know it and the
world as we have known it is structured by patriarchy.
o This means that society has been organized in a
hierarchal manner where men, as a historical
fact, occupy the dominant position in social,
economic and political arenas, and women
occupy a subordinate position.
Feminist research has shown that men
systematically and systemically are in the
The fact that this is so is a pervasive fact
for both men and women.
o Feminists describe and analyze these structures
as not ordained by biology or nature but as
human constructs. These are the results of
human thoughts and ideas about men and
These thoughts are neither natural (part
of nature, inevitable, or immutable) they
challenge the belief that gender is created
biologically, and they say that it is created
socially. Stupid feminists.
They argue that biology determines
reproductive capacities, but gender is a
social construct that is determined by
o Since males determine the views (therefore are
biased due to favouring men) it completely
understandable. There is a normative part to feminisms. This says that
patriarchy is bad for women: morally unjustified and
unjustifiable and it ought to be eliminated.
o They seek to find a different kind of social
organization where patriarchy is no longer in a
social or dominant position. They seek to replace
patriarchy with structures that promote the
social, political and economic equality of women.
o They want to replace the ideas, values, and
interests of women by men in turn by women in
their own voice.
o This type of theory of law represents a paradigm shift when thinking
The methodology of Feminist theory:
- Generally speaking, feminism has avoided offering universal principles.
o Their methodology is different. Rather than concentrating on the
universal, they focus on the particular, concrete, lived experiences of
This research has been instrumental of legal outcomes.
An example of this in law is battered women syndrome.
Without the research in that case, the woman would
have never gotten the result.
- R v. Lavelle would not have been possible without the research done by
o Therefore, the research has had an effect on the cases argued. This
research was essential to the way that the case was argued. This case
changed the law of self-defense in Canada
Before Feminist jurisprudence:
- Before history and most of society (Anglo-American) women were
considered (in law) the possession of their fathers and of their husbands.
o This meant that women’s employment opportunities outside the
women were severally restricted.
o They couldn’t hold public office, they couldn’t vote, no juries, and their
husbands had a right to chastise (physically punish) as long as the
stick wasn’t thicker than their thumb as well as not permanently
- In legal terms, this meant that they were denied personhood. This was the
similar as fetus weren’t considered humans.
- In Canada, the status of women changed in 1929. There was a “person’s
case”. This case concerned 5 Alberta women
o One of those 5 wanted to become a senator. Because of the BNA only
men were persons entitled to hold public office. This particular woman, Emily Murphy, wanted the government to refer the question
of whether women were persons.
Sometimes the supreme court directs an abstract question
An example (recent) would be if Quebec could separate
from Canada or whether same sex marriage would be
o The Supreme Court of Canada had a unanimous “NO!” if women would
be considered women. This case went to Britain to the Privy council
and the judicial committee (this was always so until 1949)
They reversed this decision for the supreme court of Canada.