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Legal Philosophy
In this course you are expected to express your opinion - which UNISA advises will never be right or wrong provided you back up your opinion with sound arguments.
These arguments must have reference to the course material.
For example let's start with a simple example : Take the statement "You must stop at a red robot".
In this course this statement can be analysed in two ways. The literal meaning of this rule (positive content) vs the normative content (natural law).
Positive rule
All drivers shall stop at a red robot.
Natural law
Normative content of rule is that if you do not stop at a red robot you will cause an accident and injure or worse kill others.
CAN YOU SEE THE DIFFERENCE !!!!!! The one aspect is the literal wording and what it implies on the face of it and the latter being the moral issues attaching to the rule.
Put differently : the natural law interpretation is wider than the positivist content because it explains what the rule ought to be and looks further than merely what the law is.
For example you would be able to conclude :-
1. The positive rule is the better one to observe as it is written down (codifed in the Road Traffic Act) and therefore certain whereas the natural law connotations are too vague and uncertain to justify giving credence to them.
OR
2. The natural law interpretation is favoured as it is an expression of the law as it ought to be and thus fills in the gaps left by clumsy or unjust law-makers.
This is but the first step in philosophy - the analysis. The second step is to express an opinion as to which view (later on which philosophy) is the better one.
DO NOT SAY “I THINK” ….SET OUT THE DIVERGENT VIEWS ….
THEN STATE “IT CAN BE SEE THAT”OR“It is clear that ….. ”OR“The only logical conclusion is …..”
PRE-MODERN THINKING
Plato, Aristotle, African Philosophy and Aquinas
NATURAL LAW : 3 Main Beliefs:
Natural order/hierarchy
Belief in common goodCommunity is more important than the individual
Metaphysical assumptions
EARLY MODERN THINKINGKey concepts :
“modernism” = author can find right answers himself using scientific methods like precedent, interpretation, social policy.
“individualism” = common good idea rejected and focus on individual rights because society a threat to individual freedom.
“scientific method” = rejection of metaphysical assumptions in favour of empirical evidence and logical deduction (everything questionable).
COMMON GOOD replaced with INDIVIDUAL
METAPHYSICS replaced with SCIENTIFIC METHODS
NATURAL ORDER replaced with SCIENTIFIC WORLD VIEW
THE SOCIAL CONTRACTHOBBESLOCKE
STATE OF NATURE SOCIAL CONTRACT STATE
HOBBESState of nature
the state of nature exists before political states come into being.Man in his state of nature is solitary and brutish – he takes what you can get by force and hold on to it as long as he can. There is a state of war. Everyone against everyone. There is conflict
LOCKEState of nature:the state of nature exists before political states come into being.Man in his state of nature lives in mutual co-operation with others. There is a state of harmony
HOBBESThe purpose of the contract is to stop war and people enter into the contract out of fear.People live in fear of another
LOCKEThe purpose of the contract is to protect propertyPeople live in fear of another
EARLY MODERN PERIOD CHARACTERISED BY SCIENCE
EXPRESSED IN TERMS RATIONALISM
Rationalism : Due to advances in science and technology the early modern thinkers no longer believed that the truth could be found in authoritative sources that come from God/gods/natural order.
Instead they insisted that truth must be based on human reason and logic. Pre-modern thinking is now regarded as speculation and the new philosophies are based on Rationalism.
Rationalism can take two forms:
rationalism and
empiricism.
The essence of rationalism :the idea that a lone author/thinker can discover the truth merely by using his reason and working out a problem logically.
Typically a rationalist will start with some prior insight or idea and then work it out "in his head" in a rational and logical manner. This form of Rationalism therefore does not require any evidence or support from outside – mere reason and logic is enough.
The most obvious examples of rationalism are the theories of John Locke and Thomas Hobbes.
Both start with an idea (the state of nature) for which there is no external proof. In other words, it is in a sense a figment of their imagination. They are engaged in a thought experiment where they imagine the existence of a state of nature, which then requires a social contract in order to guarantee wither the rights of individuals (Locke) or the protection of the citizens (Hobbes). But there is no proof that such a state of nature or a social contract either existed or was concluded. An example of rationalism from the late modern philosophy is John Rawls's original position and veil of ignorance.
- The essence of empiricism is the idea that the truth can only be based on empirical evidence – in other words there must be some external proof that can be observed
STATE OF NATURE -- SOCIAL CONTRACT -------- STATE
Rationalism refers to the methods used by the early modern thinkers. Rationalism divorces law
and morality and base knowledge on reason. Rationalism is being able to create a view point on man, law and society based on reasoning.
Two branches of Rationalism :
rationalism
and
empiricism.
Each school of thought attempts to explain how we acquire our knowledge.
Rationalists : knowledge is the starting point which then leads to reason
Empirists : sense experience is the starting point that leads to reason
Rationalists
knowledge can be gained through thought independent of sense experience.
knowledge is like maths once you know something you don’t have to do experiments you just inherently know the answer
for example 4+4=8 once you know those two figures equal 8 you don’t need to do experiments to know the answer.
A modern day example would be the precedent system or the reasonable person test.
Empiricism
knowledge is based on facts and evidence
reason alone is not enough
gain knowledge through sense experience
feel touch taste
Empiricists claim :
We learned through our senses
Experiments
An example of empiricist thinking :an apple falls from a tree, do we know it happened due to gravity or draw a conclusion (hypothesis).
Newton derived a conclusion and this is how empiricist thinking works.
Examples : Social contractarians - Locke and Hobbes = rationalism
Positivism & Bentham (utility) = empiricism
WHICH THEORY WOULD YOU CHOOSE AS THE BETTER ONE ?
YOU COULD SAY SOMETHING LIKE THIS :I would submit that I favour the empiricists view if you take a newborn infant and place it in isolation without any social influence how is it meant to draw knowledge from anything. In such an example the isolated infant can only learn through experience, ie: touching a stove will burn your finger.
EARLY MODERN (CONTINUE)
Positivism
Positivism is a descriptive theory. That is, positivists design a framework that both defines and describes law.
Positivism emerged as a reaction against natural law, and is now the dominant modern legal theory (except in the USA). It developed in the early 19th Century in response to the assumptions of natural law.
Positivism has three underlying theses:
EPISTEMOLOGICAL THESISThere is no necessary link between law and morality “ it shoves morality over to some other discipline”. Positivists do not argue that there is no link between law and morality; they just point out that laws don’t need to be moral in order to be laws.
SOCIAL THESISAll law has identifiable human origins. Positivists examine legal realities “ they categorise, define and distinguish. It is essentially a conservative theory, and ˜reduces thinking to neat filing systems.
COMMAND THESISAll legal systems can be analysed as a set of rules.
1. Epistemological thesisThis comes with the belief that law and morality must be separated. The state doesn’t have a moral function.If you can base law on morals what do you base it on?Bentham, all laws and social institutions had to be measured against Utility: greatest happiness of the greatest number and that this was ‘the measure of right and wrong’
2. The Social thesisLaw is based on an agreement between peopleBentham rejected natural law as the basis for law. He thought that law is based on convention that is on agreement between people. He therefore rejects the idea of the common good and takes the individual as the starting point – it’s the task of the state to ensure the greatest happiness to the greatest number of people and in this way it will indirectly serve the common good.
3. The Command thesisThe idea that law is essentially a command by a sovereign to those who have a habit of obeying those commands. Bentham: insisted that the legislature cannot do anything that is unlawful, but it can do something that will cause the citizens not to obey their commands = he never accepted the idea of an unlimited sovereign.
PRACTICAL EXERCISE : WRITE AN ESSAY AND EXPRESS A VIEW WHETHER DIRECTIVES TO "OBEY THE
LAW, DO NOT LITTER,DO NOT SPEED, REFRAIN FROM CORRUPTION, BE KIND TO YOUR NEIGHBOUR, TIP THE CAR GUARD" WOULD CONSTITUTE A NATURAL LAW PHILOSOPHY OR A POSITIVE LAW APPROACH ????? (sic Prof Kroeze Legal Philosophy Assignment for LJU4801)
Start off by placing in context whether Natural Law and Positivism are reconcilable or whether the concepts are mutually exclusive. (INTRODUCTION)
Now describe what the definition of Natural Law is and what it entails.
NATURAL LAW : an immoral law can be no law at all
POSITIVISM : law is not affected by morality.
Positivism :CRITICISMS ………
See http://ojls.oxfordjournals.org/content/13/4/441.
Apply the theory of natural law to the facts.
Do the directives aim to apply "universally" as a "higher law" which can be discovered by "reason".
Is natural law about "LAW AS IT OUGHT TO BE" or "SOCIETY AS IT OUGHT TO BE" ??? Are the directives imploring one to create society as it ought to be or the "law" as it ought to be ??????
Are these directives moral directives and nothing more or natural law philosophy ????
Or is it more to do with UBUNTU and COMMON GOOD which some argue has very little to do with natural law. Ostensibly the directives fit the mould of an "ought to be" society and sounds like natural law but ask yourself whether natural law is more than the common good and it is found in PRE-POLITICAL METAPHYSICAL RULES, INTERNATIONAL LAW and COMMUNITY NEUTRAL PRECEPTS. In other words can individual moral beliefs constitute natural law ?????? Is a directive "obey the law" even close to what natural law describes OR is it part of the COMMAND thesis of Positivism !!!!!!!!!
Now you can discuss the theses of Positivism
Apply three theses to the facts : The directive "obey the law" seems only COMMAND. The other directives are social or ethical or moral behests and arguably lack the COMMAND and EPISTEMOLOGICAL theses. Thus not Positivism proper and therefore not "Positivism" as defined - POSITIVISM has nothing to do about being positive. It is defined in terms of the separation of law and morality, the social function of law and command of the sovereign.
Anything short of all 3 these concepts is NOT positivism !!!!!!!!
Perhaps comment on which of the 3 theses apply to the individual directives. Thus you may want to argue that the directives do not follow a Positivist approach because not all 3 theses are present.
Conclude with your argument as to which approach is not evidenced in the facts given and which one is. I recommend always to relate questions to the Constitution. Here it is not really applicable as the Constitution is a codified statute (Positivism) with normative content which prescribes natural law ideals of the law as it ought to be.
What does ring true in this example is the relevance of constitutional values juxtaposed to the directives of the given factual question posed. The facts show up mostly moral and ethical values that are called for. The constitutional values are different. They deal with freedom, equality, democracy, human dignity - these are different to moral directives ????????
REMEMBER TO REFERENCE IN ACCORDANCE WITH THE LLB TUTORIAL LETTER GIVEN TO YOU !!!!!!!!!!!!!!!!!!!!!!!!!
The South African debateThey focused on interpretation = positivists require
the courts to focus on the meaning o the text = look what’s before them – there is nothing beyond the text. This is a very textual approach, which was used by our courts during parliamentary sovereignty. In this regard the activities of judges in apartheid South Africa has come under some scrutiny. SA courts have always insisted that they cannot act as a judge of morality.
This was also the attitude in R v Sachs:But where the statute under consideration in clear terms confers on the Executive autocratic power over individuals, courts of law have no option but to give effect to the will of the Legislature as expressed in the statute.
This attitude is criticised by Dugard, who blames legal positivism for the ‘mechanical and wooden’ interpretation of statutes by courts. However true positivism would be tantamount to having positive laws which reflect the democratic wishes of the majority of the community (social thesis) and as such the Apartheid laws were mostly commands and not compliant with the social thesis. As such the apartheid laws were not positivism proper and the criticism is therefore invalid.
The problem is, according to Dugard that a judge can never be completely objective – his training and background will influence him. Therefore it is impossible to apply the law without referring to morality. It would therefore be better if there were a clear set of norms against which the laws can be tested.In conclusion therefore, the social thesis is not present in apartheid style laws – the unjust apartheid laws evidence only the command thesis. Thus those laws were not positivism proper (Epistemological, Social + Command thesis – all 3 must be present).
AMERICAN REALISM
RADICAL REALISM
PROGRESSIVE REALISM
Both have in common :
1. decisions are policy choices
2. rules are inadequate for decision making
3. interpretation has an important role.
Radical realism :
- criticism of formalism and conceptualism- law depends on social and POLITICAL context- legal formalism protects status quo (elite of society)- attack formalism and deny law is comprehensive and neutral
Progressive realism :
- rooted in pragmatism (Holmes)- law is science but in a social context- endorsed view that law could be APOLITICAL and objective- scientific study of human behavior gives law authority- scientific methods can predict outcome of cases- indeterminacy of law (every rule has equally valid counter-rule)- decisions are value judgments (social & psychological factors)- freedom of choice for judges.
Prince v President of the law Society of the Cape and others 2002 2 SA 794 (CC)
minority and majority decisions used two different philosophical approaches. Critically explain and discuss these two approaches.
Case shows up Realism vs Positisvism.
Majority decision held that court cannot make policy (policy second to positive law). The relevance of the social circumstances of a minority group of Rastafarians were ignored as they wielded no political influences as the voice of the community (democratic society’s values). Shows up majority favouring positivism (law banning cannabis not unconstitutional). The court refused to legislate law (make policy) despite the social relevance of minority groups requiring protection from discrimination.
The minority (Sachs J) held that the reasonable accommodation of minority groups is needed. Sachs argued that a flexible application of the law is needed to protect Constitutional rights and goes as far as saying policy making should be part of this approach (this is realism – social factors relevant).
LOCHNER v NEW YORK
BAKERY HOURS CASE
FREEDOM OF CONTRACT
vsFAIR
EMPLOYMENT
PURPOSE/LAW/RULES
vs
OWN AUTHOR
EXISTENTIALISM ARGUMENT :
LAWvs
FREEDOM OF CONTRACT
DWORKIN
HARD CASE
ˇ CONSTRUCT ABSTRACT +
CONCRETE PRINCIPLES OF ALL PRECEDENT
ˇ MORE THAN ONE
INTEREPRETATION
ˇ ANSWER ITO COMMUNITY
VALUES
DWORKIN’STHEORY OF
CONSTRUCTIVE INTERPRETATION
values to constrain
judges
CONSTITUTIONAL VALUES
Dworkin :Law must be the
constructive interpretation of the shared values of the
community.
Hard case procedure:
Decision - rule that fits
Principle behind rule (institutional history)
If no answer constructive
interpretation (value judgement using boni mores).
Conventionalism Dworkin’s term for
Positivism (”Law as Rules”).
Pragmatism Dworkin’s term for American Realism.
Neither of these approaches is satisfactory to Dworkin;
The problem with Conventionalism is that it does not leave room for values
The problem with Pragmatism is that it
concentrates too much on policy
Dworkin’s “Law as
Integrity”
Dworkin accepts that the law does not only consist of
rules, but that it also includes
principles, values and standards.
A political community acts with integrity if it puts principles above the
implementation of policy or party interest. In place of the conventionalist view of law
as the application of rules and the pragmatist view of law as the
implementation of policy, Dworkin view if that the law is the constructive
interpretation of the community’s shared principles
Dworkin looks at the difference between: rules and principles.
The problems with rules, Dworkin explains, are that they apply in an all-or-nothing fashion.
If they apply they must be enforced, but if they don’t, nothing is left.
Dworkin insists, principles are not conclusive,
they incline a decision one way or another.
Dworkin believes that the law consists of rules, principles and standards – the judges role is
more creative without being legislative, because they only use existing legal material to come to a decision = judges aren’t making law but applying it more creatively. This is in line with the separation of powers doctrine in
which it is the task of the court to interpret legal material in light of the Bill of Rights.
The law provides the only correct answer for every hard case. There is therefore no necessity
for independent discretion, which allows the judge to search for answers outside of law (like
the American realists suggested.
Dworkin believes that, if a judge had to decide a case, he would first of all apply the rule that fits the facts. If more than one rule fits, the judge
will look for the principle behind the rule.
The principle can be found in the history and tradition of every legal system.
The principle will indicate which rule best fits the current situation.
It therefore gives value or weight to one rule or the other.
RawlsJustice as Fairness
Welfare liberalism of Rawls :
A rational person would subject the pursuit of his of her own life project to certain universal
principles of justice.
One of those principles would be that his or her pursuit must always be to the economic benefit
of the least advantage person within the political community.
The process of rational deliberation, Rawls argues that a rational individual that is only
interested in advancing his own interest would realize the need to co-operate with other individuals. In order for this to work the
individuals would have to share a common point of view which would than in turn be judged
against each other. This could give rise to conflict so it would be rational for a group of individuals
who are forced together by nature and enter into a social contract with each other. This social
contract then establishes the principles of justice as the basis for their co-operative agreement.
People in the original position (no concept of politics, race, sex, culture, status – veil of ignorance) would choose these principles
as the basis for his welfare state.
The central idea is that a rational individual in the original position under fair conditions would
choose principles of justice which ensure that they are to the benefit of the least advantaged
person in the community.
Rawls ‘ THREE PRINCIPLES OF JUSTICE
The principle of greatest equal liberty, which means
that a person has an equal right to the most complete basic liberties. Among these basic liberties is the right to vote, freedom of speech, freedom of association,
the right to hold property.
Socio- economic inequalities between individuals are to be arranged in a reasonable fashion to the advantage of all, or to the maximum benefit of the least advantaged.
That everyone should have equal opportunity to fill offices and other positions, included in our constitution
in the form of affirmative action.
Principles of Justiceand the Constitution
1st principle:The principle of greatest equal liberty, which means that a person has an equal right to the most complete basic liberties.
Section 9equal protection
Section 16freedom of expression
Section 18 freedom of association
2nd Principle:Socio-economic inequalities between individuals are to be arranged In a reasonable fashion to the advantage of all, or, to the maximum benefit of the least advantaged. This is Rawls famous difference principle.
Section 26 : housingSection 27 : health care (socio-economic rights)
Soobramoneyrenal failure not emergency
medical treatment.
Grootboomonly right to housing was to
provide access to housing.
Treatment Action Campaign state’s refusal to provide
nevirapine was unreasonable.
3rd Principle: That everyone should have fair equality of opportunity to fill offices and other positions
Included in constitution as
affirmative action)
Affirmative action: the preferential
treatment for disadvantaged
groups as an exception to
equality in order to attain long-term goal of reducing
current inequality
Valuesfor
Dworkin and Rawls
DworkinValues as means
to constrain judges in
decision-making
Rawls Values as basis for a Welfare State
Choose a theorist : between Dworkin and Rawls and explain why their theory is the better one ?
The possible essay answer could look like this :
Dworkin advocates need for values to constrain judges in deciding cases whereas Rawls deems the purpose of values as basis for welfare state. Dworkin’s views are important in dealing with “hard cases” whilst Rawls’ ideas are reflected in our socio-economic Constitutional rights and Affirmative Action. Dworkin’s theory of law as integrity advances the idea the judge must apply the rule that fits facts; if more that one rule fits look for principle behind rule that will provide rule with “weight” viz institutional history showing the weight or value to be given to one rule or another. However in Makwanyane the court although endorsing Dworkins’s theory to attach weight (value judgment) to Constitutional rights it did so not by reference to our institutional history but in terms of the post Constitutional standards of humanity and decency and whether limitation is necessary in terms of Section 36. Thus Dworkin’s theory applied with qualifications.
Judge Mokgoro used Dworkin’s theory of integrity and as institutional history referred to ubuntu as a “shared value” of all South Africans. Thus although the Constitutional Court uses Dworkin’s theory it remains inappropriate as ubuntu is but one of our traditions and may conflict with Roman-Dutch and English law, also part of our legal tradition. The better view was Sachs in Makwanyane. Sachs held that we do not automatically invoke each and every aspect of our traditional law but rather only those that support the Const. values and reject those traditions which conflict with new const. order. Insofar as the court found that dignity was not part of our legal tradition whereas it is a const. value in conflict with death penalty, the court has shown that Dworkin theory is not valid in the SA context.
It is submitted that in the future Dworkin’s theory may be a good one if it is accepted that the legal tradition in Dworkin’s sense is only that tradition which existed post Const. Dworkin’s theory would then be a good one as rational values as demanded by Dworkin finds application in our Constitutional Court.
Rawls advances three principles of justice (greatest equal liberty, difference principle and equal opportunity). He believes that people in the original position (no concept of politics, race, sex, culture, status – veil of ignorance) would choose these principles as the basis for his welfare state. The central idea is that a rational individual in the original position would choose principles of justice which ensure that they are to the benefit of the least advantaged person in the community i.e. subject one own pursuit of happiness to universal principles of justice.
The welfare liberalism of Rawls and his maximin strategy can be seen in our socio-economic rights in the Constitution such as Affirmative Action and the rights to housing, medical treatment etc. As such Rawls’ views are evident in the Constitution itself. However his theory does not aid interpretation of all law and might only have relevance for socio-economic issues. The cases of Soobramoney (medical treatment right not absolute); Grootboom (State to build houses) and Treatment Action Campaign (Nevirapine to HIV/AIDS persons) demonstrate that the limitation clause (section 36) limits the availability of these socio-economic rights. Thus clearly a departure from his principles of justice as the least advantaged persons do not benefit despite the socio-economic rights being in the Constitution. Accordingly his approach has limited relevance for SA.
Dworkin has relevance to permit judges to make difficult decisions (hard cases) using a rule that fits.
This is done by the judge looking at the principle behind the rule (institutional history) and if no answer the judge uses constructive interpretation (value judgement using boni mores).
STUDY UNIT 5POST-MODERN THINKING
Key concepts :
“Post modernism” = futile to fill the void, rather focus on process as opposed to object
“Grand narratives” = can explain world or law in one single coherent story (narrative)
“Discourse” = all kinds of communications (books, movies etc.) Two kinds viz, narratives and scientific discourse (grand narratives)
“Consumerism” = consumption of commodities as symbols of status and gender
“Hyper-reality” = role models on TV used as opposed to real people
“Nihilism” = impossible to say anything true about the world and no way to decide how to live the good life (no rational morality)
“Contingency” = questions whether rational thinking will ensure justice as its always relative
“Deconstruction” = analysis of conceptual oppositions and paradoxes ito ideological critique
“False consciousness” = way of thinking about society an illusion
“Indeterminacy” = for every rule there is a valid counter-rule (doctrine of choice)
“Essentialism” = objects have an innate unchanging core of meaning
“Sameness feminism” = men and women look different but are essentially the same
“Difference feminism” = characteristics women have for being women
“Relational feminism” = women are different from men because of their psychological make-up
“Gender” = social and cultural determination of role of men and women (vs “sex” which is biological/chromosomes)
The CLS thinkers argue that the way we think about society and law is an illusion. They advance alternative ideology which they achieve via deconstruction to show ideologies of legal doctrines have side-lined the alternatives. Thus they believe the structure of society and law had been constructed based on pre-conceived ideologies which aim to achieve exclusion, hierarchy and arbitrary power. Thus law is an ideology which legitimizes the fundamentally unjust social order. Law is not neutral and objective and certainly, for them not rational.
The CLS thinkers also claim there are contradictions in law such as :
The new constitutional order is also ideologyRoman-Dutch law bias is perpetuated in the
ConstitutionThe source of principles of the Constitution
(Roman-Dutch law) perpetuate private property ownership
Judge Sachs’ view is to select Roman-Dutch law consistent with the Constitution. Van Doren (CLS thinker) says law is taught in such a way as to legitimize even unjust laws (false consciousness).
CONSTITUTIONAL RELEVANCE OF CLS THINKING
It is unlikely that the courts will use it. CLS is a mere critical tool to analyse law. Their arguments are shown up in case law as relevant however. For eg. in Makwanyane :
Judges sought rational and objective basis for values
This CLS argues is tantamount to hiding the reality of conflicts and disagreement in society Thus late modern theories (Dworkin & Rawls) flawed
Not all agree what human dignity means (Judge Mokgoro claims we all share as a common shared value ubuntu !!!!!!!)
Kroeze argues that textualism and intentionalism are used by the Constitutional Court (“clear language” of text) and this leads to formalist assumptions and a collective denial of real social, cultural and political situation viz. values depend on context (indeterminacy of interpretation)Thus Makwanyane decision shows up indeterminacy of the law The CLS argument thus holds that values cannot be determined objectivelyThe CLS thinkers argue that the Constitutional Court pretends to be objective whilst assuming all agree about the weight of values.
In the SA context CLS might find support for their views in case law but their views are arguably irrelevant to SA because new Const order effected sweeping changes (transformation) The need for change was even recognized under the old political order (FW de Klerk introducing true democracy)
Some argue CLS is relevant based on the CLS view that equally valid but conflicting principles exist in every legal system and this would promote :alternative thinking about law will permit cultural ideas to surface recognize under-privileged and their views (Prince case) The criticism of CLS however is that they criticize but do not offer a viable alternative theory (they have not moved beyond mere criticism). Our Constitution evidences what CLS denies that transformation and changes in the law and society can indeed be achieved on a substantive level.
FEMINISTLEGAL
THEORIES
TWO MAIN THEORIES DESCRIBING FEMINISM
Essentialist FeminismThe view that objects have an innate unchanging meaning. Thus all persons think men and women are different based on stereotypes
Non-essentialist Feminism
The idea that one is not born a woman, one becomes a woman.
Essentialist FeminismStereotypes : Women are emotional, like pink and talk too much vs men are aggressive, like beer and sport (“men are from Mars, women from Venus”).
Essentialist Feminist Jurisprudence (EFJ) challenges the view that women and men have essential characteristics that never change.
Schools of EFJ are:
Liberal feminism (sameness feminism)
Cultural feminism (difference feminism)
Relational feminism.
Mackinnon’s dominance theory accepts that men and women are different but only insofar as men have power and women do not – equality will arise if women had as much power as men.
Non-essentialist FeminismThe idea that one is not born a woman, one becomes a woman. Sex and gender distinguished: Sex equals biological and psychological. Gender equals cultural and social role. The Constitution also makes this distinction.
Upbringing determines appropriate role for men and women, “all men like this, women like this” idea rejected. Conditioned by society what is appropriate behavior for men/women (social constructions of gender).
There are differences in attitudes over time in history. There are also differences in cultural experiences and also differences in views of women (not one voice).
Frug: law encodes female body with meaning by: i) legal rules mandate terrorization of female body,
rape defined but inadequate protection;
ii) ii) legal rules mandate maternalization of female body, rewards for mothers (social grants);
iii) legal rules mandate sexualisation of female body, sexual conduct like prostitution prohibited.
Law encodes the female body with meaning by having legal rules which identify the female body with reference to :
1. terrorization (rape defined but inadequate protection)2. maternalization (rewards for mothers like social grants)3. sexualization (sexual conduct like prostitution
prohibited)
Frug argues that the law focuses on aspects of the female body which reinforces the stereotype of difference between men and women.
Liberal feminism (Sameness feminism) The view that men and women look different but are essentially the same. The liberal equality model operates from within the liberal legal paradigm and generally embraces liberal values and the rights-based approach to law, though it takes issue with how the liberal framework has operated in practice. This model focuses on ensuring that women are afforded genuine equality—as opposed to the nominal equality often given them in the traditional liberal framework—and seeks to achieve this either by way of a more thorough application of liberal values to women’s experiences or the revision of liberal categories to take gender into account.
Cultural feminism (Difference feminism)Certain characteristics of women are perceived simply because they are women. International Conventions for Women’s Rights for example entrench the idea that women need special rights because they are different. The difference model emphasizes the significance of gender differences and holds that these differences should not be obscured by the law, but should be taken into account by it. Only by taking into account differences can the law provide adequate remedies for women’s situation, which is in fact distinct from men’s. The difference model is in direct opposition to the sameness account which holds that women’s sameness with men should be emphasized. To the sameness feminist, employing women’s differences in an attempt to garner greater rights is ineffectual to that end and places emphasis on the very characteristics of women that have historically precluded them from achieving equality with men (for example, see the protective laws).
Relational feminismWomen are different from men because of their psychological make-up. They argue that women should have rights and not merely moral attributes such as maternal care. The psychological development of women cause them to accept they are different. The dominance model rejects liberal feminism and view the legal system as a mechanism for the perpetuation of what it sees as male dominance. It thus joins critical legal theory, which often underlines the instrumentalization of law for domination purposes. Sexuality is central to the dominance account. Women’s sexuality is argued to be socially constructed by male dominance and that women’s subordination results primarily from the sexual dominance of women by men. A major line of critique of the dominance model is that it leaves no room for women’s agency since women are victims whose lives are fundamentally shaped by male dominance.
Radical feminismPre-occupied with difference but women are different because men define women as different. Women are different but only in the sense that men have power and women do not. This causes women to never achieve equality. Feminists from the postmodern camp have deconstructed the notions of objectivity and neutrality, claiming that every perspective is socially situated. Anti-essentialist and intersectionalist critiques of feminists have objected to the idea that there can be any universal women’s voice and have criticized feminists, as did Black feminism, for implicitly basing their work on the experiences of white, middle class, heterosexual women. The anti-essentialist and intersectionalist project has been to explore the ways in which race, class, sexual orientation, and other axes of subordination interplay with gender and to uncover the implicit, detrimental assumptions that have often been employed in feminist theory.
SELF –EVALUATION OF ALL SECTIONS OF COURSE
Princess is a 30 year old woman. 10 years ago Princess was charged with murder. After years of suffering from physical and emotional abuse Princess shot her husband Hendrik ( at the time a close friend of the President of South Africa). Princess’s lawyer argued that she had acted in self defence. Princess did not regret her actions and stated that if she was placed in the same situation again she would still pull the trigger. The judge (a member of the majority political party) found her guilty of murder and Princess was sentenced to 8 years in prison.Determined not to let what had happened to her happen to another woman Princess obtained an LLB degree whilst in prison. After being released from prison Princess completed her articles with Greer and Steinem Law Firm. She is now applying to the Law Society to have her articles registered.
The Law Society council members who are considering her application and whether Princess is a fit and proper person;
Mr. Smith. As well as serving as a member of the council, Mr. Smith practices criminal law and acts as a judge in the High Court. When handing down decisions Mr. Smith is always careful to make sure that he follows procedure and does not decide the case according to his own opinion.
Ms. Gloria Wangari. Gloria is the first black woman to be appointed as a member of the council.
Rev Schalk Van Lourens. Rev Schalk is now retired from law but still serves as a member of the council. On Sundays Rev Schalk preaches at his local church.
Dr Anderson. Dr Anderson is an academic at Morpheus University. He is also a member of the parliamentary opposition party and has no faith in the government or the judicial system which supports it.
Prepare a philosophical argument for each of the council members either in support of or against the registration of Princess’s articles. The arguments must reference specific philosophies / philosophers. Case law can be used to support the arguments.
President RSA v Hugo
amnesty for all female prisoners was granted provided they had children during the time that Nelson Mandela was inaugurated as President in 1994. The applicant Hugo was the sole care-taker of a minor child and imprisoned but being a man, he did not qualify for release.
The majority held that it was not discrimination based on gender because the gender role prescribed by society is that women look after children (cultural + relational feminism).
The minority view was that men have a secondary surrogate role in the care of children but releasing the applicant would be a limited benefit which cannot be justified despite this view of maternal care reinforcing an unjust view whereby paternalistic attitudes cause inequality for women in the workplace (radical feminism).
S v Jordan and Others
whether section 20(1)(aA) of the Sexual Offences Act discriminates unfairly against women. The court held that the section clearly applies to male prostitutes as well as female prostitutes. The section is therefore gender-neutral.
Penalising the prostitute only does not therefore amount to direct discrimination. And if there is any discrimination, such discrimination can hardly be said to be unfair. The Act pursues an important and legitimate constitutional purpose, namely, to outlaw commercial sex. The only significant difference in the proscribed behaviour is that the prostitute sells sex and the patron buys it. Gender is not a differentiating factor. Indeed one of the effective ways of curbing prostitution is to strike at the supply. Two points to note here are the ones already stressed: first, the prohibition is gender neutral, it punishes both female and male prostitutes; and, second, guilt and punishment are equal for both the prostitute and the customer. In the circumstances any “discrimination” resulting from the prostitute and the customer being dealt with under different provisions of the law cannot be said to be unfair. In contending that section 20(1)(aA) discriminates unfairly against women, reliance was also placed upon the practice of the police and the prosecutors. It was contended that in practice only prostitutes are prosecuted and that customers are not. For all these reasons the ConCourt concluded that section 20(1)(aA) is not inconsistent with section 8(2) of the interim Constitution.
Sachs J and O’Regan J in a joint judgment held that because prostitutes are overwhelmingly (though not exclusively) female, and patrons are overwhelmingly (though not exclusively) male, the effect of section 20(1)(aA), to the extent that it criminalises only the conduct of prostitutes and not that of patrons, is indirectly discriminatory on the grounds of sex. The female prostitute has been the social outcast, the male patron has been accepted or ignored. She is visible and denounced, her existence tainted by her activity. He is faceless, a mere ingredient in her offence rather than a criminal in his own right, who returns to respectability after the encounter. In terms of the sexual double standards prevalent in our society, he has often been regarded either as having given in to temptation, or as having done the sort of thing that men do. Thus, a man visiting a prostitute is not considered by many to have acted in a morally reprehensible fashion. A woman who is a prostitute is considered by most to be beyond the pale. The difference in social stigma tracks a pattern of applying different standards to the sexuality of men and women. Such discrimination is however justified in terms of the limitation clause. Thus radical feminism.
Ngcobo J (majority judgment) disagreed with Sachs and O’Regan that the Sexual Offences Act discriminates against women. The majority view is thus Liberal feminism.
The Jordan case thus shows up the Concourt judges have differing views on the reality of Feminism in our society.
THE END
