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HUMA 1825 Note 12

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York University
HUMA 1825
Neil Braganza

HUMA 1825 Note 12 Three segments of HUMA 1825 - First segments dealt with: what is law and what is the relationship of law and morality 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 continues today.  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 something. 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 “engender” justice. Feminist Jurisprudence - 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 ONE thing. 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 gender equity.  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 normal people.  We want equality between men and women and gender equity between men and women  These concepts are both controversial and contested meanings.  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 dominant positions.  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 women.  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 men. 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 about law. 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 women.  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 feminists. 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 injure them. - 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 (reference)  An example (recent) would be if Quebec could separate from Canada or whether same sex marriage would be allowed 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.
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