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and because of this, “sex inequality questions are questions of systematic
dominance, of male supremacy.”77 To formulate the feminist project in
terms of equality is therefore a self-defeating approach. Feminists must
begin by recognizing that gender, sexuality, and difference are all system-
atic modes of domination, and to adopt the difference approach and fight
for equality without redefining it will continue to reenforce women™s
inferior position.

76
Catherine MacKinnon, Feminism Unmodified (Cambridge, MA: Harvard University
Press, 1987), 41.
77
Ibid., 42.
270 The idea of law repudiated

Many feminists take an even harder line with what used to be prized
as the leading virtue of the law “ its formality and abstraction. They
deplore the fact that legal rules are made in advance and without know-
ledge of the particular circumstances in which they will be invoked. They
are distressed that judges are obliged to hand down “objective, rule-based
decisions supported by notions of individual autonomy, individual
rights, the separation of self from others, equality, and fairness.” These
feminists feel that true justice can be served only when all this is replaced
with more “personal” ways of resolving conflicts which would be based
on “caring (compassion and need), equity, and responsibility.”78
But the most comprehensive achievement of feminist legal theory has
been its influence on courts and legislators in the specific areas of law such
as torts and contracts, its influence on legal education, and its invention of
the crime of sexual harassment. Their general convictions are given prac-
tical expression in two campaigns: to transform the law schools, and to
introduce new legal concepts.
In law schools, feminists seek to replace “authority” in the classroom
with “shared leadership,” “competition” with “trust” and “cooperation,”
and exclusive reliance on impersonal knowledge with the acceptance of
“personal experience” as a legitimate source of knowledge.79 Feminists
teach that law is above all a support for a hierarchical system, which is
reenforced by the submission of students to teachers in classrooms con-
structed in the shape of an amphitheater. Teachers question unwilling
students in a fashion that compels them to recognize the inherently
hierarchical logic of the law, by which feminists mean the movement in
a legal argument from rules, to the facts of the case, to conclusions about
guilt or liability. This kind of reasoning, according to feminists, teaches
people to see the real world from above looking down. Law students
thus learn to value the theory of law more than the practice of law and to
believe that the essence of law is respect for rules rather than concern for
real people. Although students enter the law school with an instinctive
aversion to the conclusions of the “˜reasoned™ analysis” that their teachers
impose on them, they emerge having learned to think in terms of “ration-
ally derived universal principles” and believing that there are “legally
relevant distinctions between acts and omissions.”80



78
Bender, “Feminist Theory and Tort,” 28.
79
See generally, Nancy Schiedewind, “Feminist Values: Guidelines for Teaching
Methodology in Women™s Studies,” in Learning our Way: Essays in Feminist Education,
ed. Charlotte Bunch and Sandra Pollock (Trumansburg, NY: Crossing Press, 1983).
80
Bender, “Feminist Theory and Tort,” 33“34.
From Realism to feminist jurisprudence 271
These distinctions prevent students from recognizing that knowledge
and truth are subjective and personal, that human beings are not autono-
mous, self-interested, and competitive but “interdependent, collective,
cooperative, and caring,” and that “what were experienced as per-
sonal hurts individually suffered” are really “a collective experience of
oppression;” in short, that “the personal is political.”81
Although feminists build on the CLS critique of legal education they
also diverge from it. Some feminist legal educators support CLS sugges-
tions for reorganizing law schools so as to destroy the distinction between
professor and student, as well as better and worse students, by rotating
students and teachers at random among the various law schools.82 Like-
wise, they welcome the suggestion that instead of teaching the established
doctrine, law schools should concentrate on showing the “indeterminacy
and manipulability of rules” so as to “destabilize” or “trash” the study of
law and ultimately the whole legal system.83 However, the majority of
feminist scholars replace the CLS desire to teach deconstruction or
“trashing” (both techniques of breaking down) with models that depend
upon teaching empowerment (building up through collaborative experi-
ence sharing), consciousness-raising (seeking new perspectives through
similar collaborative experience sharing and personal narratives), and
flexible problem-solving strategies.84 The feminist educational model,
explains Carrie Menkel-Meadow, is one in which “building trust, collab-
oration, engagement, and empowerment would be the pedagogical
goals, rather than reinforcing the competition, individual achievement,
alienation, passivity, and lack of confidence that now so pervade the
classroom.”85
Overall, the feminist critique of tort law is concerned primarily with its
ability to secure justice. Tort law is based largely on a strong conception
of individual rights and a notion of how rational individuals would
behave and the degree of responsibility they should have for their actions.
Feminists contend that these fundamental assumptions and standards
are male. Leslie Bender explains that the “reasonable person” standard,
like all “universally applicable measures for conduct,” is designed to
“encourage conformity” with the “dominant ideological stance.”86 The
reasonable person, feminists argue, represents men; the “rational man” is
male. Professor Bender finds this male bias painfully manifest in the fact


81
Ibid., 9.
82
Menkel-Meadow, “Fem-Crits Go to Law School,” 70.
83
Mark Kelman, “Trashing,” Stanford Law Review 36 (1984): 293.
84
Menkel-Meadow, “Fem-Crits Go to Law School,” 81.
85 86
Ibid., 81. Bender, “Feminist Theory and Tort,” 20“23.
272 The idea of law repudiated

that the existing law of torts imposes no obligation unless the bystander
had a prior duty to the particular person in trouble. It would be less
objective, and hence less oppressive, to speak of the care required of a
“neighbor” or “social acquaintance.” That would acknowledge that
we are all interconnected rather than separate, give “safety priority over
profit and efficiency” and thus make the law “a positive force in encour-
aging and improving our social relations.”87 Because of the male focus on
“rights, autonomy, and abstraction,” tort law now ignores “human needs
and hurts.”88 She insists that it should instead give priority for a
victim™s interest “in having his life saved” over the bystander™s interest in
minimizing the burden of legally imposed “affirmative duties.”89
In keeping with such insights, many feminists want to rid the law of its
exclusive focus on individual rights and transform it into bundles of group
rights. According to Bender, “We need. . . to help change the dominant
ideology from individualistic to interconnected. We need to shift from a
right-based focus to a focus on both care and rights/justice, from power-
over to empowering, from the prioritizing of the market and money to a
priority of personal relationships, health, safety, and humanitarian dig-
nity in deciding personal injury disputes.”90 Feminists are anxious to give
duties precedence over rights, and would accordingly reform the law of
torts so as to impose a duty on any bystander to assist anyone injured or in
danger.
Bender asserts that the reformation of tort law must rest on the prop-
osition that “no one should be hurt,” for otherwise people are “decon-
textualized,”91 a claim she bases on the formulation of feminine ethics
proposed by Gilligan. Other feminists such as L. Finley,92 Naomi Cahn,93
and Judith Butler,94 however, reject Professor Bender™s critique. They
claim that her effort to formulate a unified feminine approach to tort
law falls victim to the same faults she renounces in the male view:
oppressing the individuality of experience through the standardization
of a uniform experience. The acceptance of a fixed conception of gender
identity necessarily creates an exclusionary categorization. MacKinnon


87 88 89
Ibid., 30“31. Ibid., 31. Ibid., 34“35.
90
Bender, “Feminist (Re) Torts: Thoughts on the Liability Crisis, Mass Torts, Power and
Responsibilities,” Duke Law Journal (1990): 848.
91
Bender, “Feminist Theory and Tort,” 31, 35.
92
See Lucinda Finley, “A Break in the Silence: Including Women™s Issues in a Torts
Course,” Yale Law Journal 1 (1989): 41.
93
See Naomi Cahn, “The Looseness of Legal Language: The Reasonable Woman Standard
in Theory and Practice,” Cornell Law Review 77 (1992): 1398.
94
See Judith Butler, “Gender Trouble, Feminist Theory and Psychoanalytical Discourse,”
in Feminism/Post-Modernism, ed. Linda Nicholson (New York: Routledge, 1990), 325.
From Realism to feminist jurisprudence 273
goes so far as to reject Gilligan™s feminine ethic altogether, arguing that it
is essentially the male characterization of femininity.95 Finally, so dedi-
cated are feminists like Professor Bender to imposing duties that they
propose no limit on the kind or intensity of misfortune that strangers
to the sufferer should be required to relieve. Nor do they suggest how
such a multitude of “affirmative duties” could be effectively enforced by
anything other than an awfully efficient police state.
Contract law is another target of the feminist critique, although here
they follow a trail well marked by all varieties of political jurisprudence.
Like their male counterparts, they regard contracts as at best a nuisance,
but more probably sinister. Although, following the CLS model, feminists
agree that contract law is largely a means whereby the powerful maintain
the status quo, they depart from this critique by shifting the focus of their
analysis to gender inequality. They argue that contract law, with its cold,
individualistic language and its exclusion from the private sphere of home
and family, fails to protect women and thus perpetuates female subordin-
ation.96 As a result, they attach little importance to the niceties of the
contract agreed. If a woman sues a moving company for damaging her
goods, the fact that she had signed a contract waiving insurance is less
important than the fact that she “had not read the contract because the
house was really cold and the men were tired and in a hurry to get out.”
She was “acting like a reasonable woman,” explains Professor Mary Joe
Frug, because women are “socialised to value other people™s feelings
highly.”97
But despite their passionate antipathy to the rule of law as traditionally
understood, feminist legal scholars cannot agree on what their new vision
of “law” requires. They are divided about whether equal treatment for
men and women in education should mean affirmative action favoring
women or whether women should attend separate schools because, unless
women are treated differently, the results will not be equal. Some femi-
nists demand that “treatment as equals,” when applied to pregnant
women, should be interpreted as “special treatment” which takes into
account biological differences. Against this, other feminists argue that
pregnancy should be treated like any other temporary physical disability,
because special privileges for pregnant women would prove detrimental to
women in the long run, just as protective labor legislation kept women out
of higher-paying jobs.

95
MacKinnon, Feminism Unmodified, 38“39.
96
See generally, Nadine Taub and Elizabeth Schneider, “Women™s Subordination and the
Role of Law,” in Kairys, ed., Politics of Law.
97
Tamar Lewin, “Feminist Scholars Spurring a Rethinking of Law,” New York Times,
September 30, 1988.
274 The idea of law repudiated

Even about the treatment of pornography feminists disagree. Catharine
MacKinnon advocates allowing injunctions against pornographers who
“traffic in materials that can be proven to subordinate women.” But she is
fiercely opposed by those who regard her suggestions as an invitation to
censorship contrary to the spirit of the First Amendment. And black
feminists criticize white feminists for ignoring the experiences of non-
white women; similarly lesbians criticize heterosexual women, underpriv-
ileged women criticize rich women, and Western women are criticized by
non-Western women for their ethnocentric approach. Indeed, the dis-
agreements have been multiplying so quickly that feminist jurists now
feel compelled to explain that “ though their movement at first wanted
women to be treated like men “ it has progressed to recognizing that
women differ not only from men but even from one another. This move-
ment has led to a powerful postmodern, anti-essentialist argument98 that
threatens to fragment feminist legal theory into numerous essentially
ineffective individual theories. The ultimate success of feminism as both
a legal theory as well as a general social revolution will depend largely on
how it meets this challenge.
For the moment, however, there is agreement on the crime invented by
Professor Catharine MacKinnon “ sexual harassment stemming from a
hostile work environment. That invention is only one aspect of her
campaign to protect women from unjust subjection. She has toured the
United States proclaiming that sexual violence against women often
pervades all relationships between men and women, even the voluntary
ones. She has campaigned vigorously against allowing courts even to
consider in rape cases whether the accused believed that his victim
had consented. Professor MacKinnon insists that the victim™s (that is,
the accuser™s) point of view matters most: in harassment cases the inten-
tion of the male is less important in determining whether a hostile
environment exists.
The latitude now allowed in the USA in cases concerning sexual
aggression has exempted women even from the rule that force may be
used in self-defense only when there is an imminent threat and only in the
degree needed to fend off the attacker. The courts have been persuaded to
consider expert testimony on the psychology of battered wives so that a
woman who killed her husband in his sleep has been acquitted on grounds
of self-defense. That a woman continues to live with her husband no
longer counts against her because, it is argued, she does so out of fear


98
See Feminist Legal Theory: An Anti-Essentialist Reader, ed. Nancy E. Dowd and Michelle
S. Jacobs (New York: New York University Press, 2003).
From Realism to feminist jurisprudence 275
that he would become more violent if she left. The governors of both Ohio
and Maryland have commuted the prison sentences of a number of
women convicted of killing or assaulting men on the ground that the
women were living “in a constant state of danger of death.” In short, the
contribution of feminist jurisprudence in this area may be summed up as
follows: If a man is alleged to have raped a woman, his belief that she had
consented to intercourse may not be considered by the court, however
warranted by the apparent facts of the case; if a woman is alleged to
have murdered a man, her belief that she was threatened by him will often
be accepted by the court, however contrary to the apparent facts of the
case. Both are applauded by feminist scholars as the result of casting aside
general rules and examining each case on its contextual merits.
Most feminist legal theory makes little pretense of respecting the trad-
itional idea of law. It bluntly repudiates the maintenance of fixed rules
and the requirement that judges should decide cases in terms of such rules.
Far from seeking to perfect the objectivity of judges or equality before the
law, feminist jurisprudence rejects any such concerns as, at best, irrelevant
and, more likely, evil. All this follows from regarding the subjects of law
not as independent agents pursuing their own projects but as objects of
care and compassion, in whatever sense feminists choose to attach to
those words.
14 Political jurisprudence II: Ronald Dworkin
_____________________________________________________________________________________________________________________________________________________



Radical as these criticisms are, none constitutes so thorough an attack
on the idea of law as the theory of Ronald Dworkin. His attack is
all the more effective because, far from identifying himself with political
jurisprudence, he claims “ at least sometimes “ to be defending a strict
understanding of the rule of law. His thorough treatment of the systemic
restraints surrounding judicial decision-making allows his theory, he
says, to solve difficulties that, though recognized, had not been ad-
equately dealt with by his positivist predecessors. Furthermore, by recog-
nizing such restraints, Dworkin addresses the judicial subjectivity thought
inimical to the traditional idea of law much more effectively than other
political or realist legal theories. By positioning his theory between two
leading jurisprudential schools while at the same time presenting it as
an exercise in traditional jurisprudence, Dworkin exposes more precisely
what is at issue between the new and old attitudes toward law while at the
same time successfully disguising the radical nature of his attack.
Dworkin argues that even in hard cases where there are no clear
answers, judges are still bound by a web of principles, political theories,
and cultural norms. They are not, therefore, free to act as unbound
legislatures when existing law dictates no obvious solution. However, in
developing his argument Dworkin also asserts that in any judicial action,
whether interpreting law and precedent or breaking new legal ground,
judges rely on a personal legal theory which combines political, cultural,
and legal considerations. In the end, although legal decision-making is
restrained by principles, rules, precedent, and the requirements of legal
reasoning, a certain judge™s political theory often heavily informs if not
entirely determines the decision. Thus, according to Dworkin, because
legal theory and political theory are inseparably interdependent, legal
decision-making, especially in hard cases, is to a very large degree political.
Dworkin™s arguments, however, are often intricately complex and
seldom easy to understand, a fact that has led numerous scholars to read
him on both sides of the issues he deals with. He has been understood by
some to be promoting political jurisprudence theories while others see him


276
Ronald Dworkin 277
as a defender of positivism. Natural lawyers accuse him of arguing against
any fixed morality in law, while many claim his theories are most properly
described as natural law. These conflicting interpretations of theories are
often traceable to Dworkin himself as he has been accused of changing
positions throughout his writings without admitting it. Regardless how-
ever of the complexity, obscurity, or shifting nature of his arguments the
relation his theories have to the idea of law is clear. Although Dworkin
often appears to be defending the classic formulation of this ideal, or
merely to be promoting a restrained political theory of law, when
the major body of his work is analyzed and the consequences of the
ideas developed therein are identified, it becomes clear that what he is
proposing is a radical departure from the traditional idea of law.
Dworkin™s theory appeared in three installments, the first two “ Taking
Rights Seriously (1977) and A Matter of Principle (1985) “ being collec-
tions of essays inspired by issues of the day, while the third, Law™s Empire
(1986), is a systematic exposition of law. In each book Dworkin addresses
the philosophy of law from a different standpoint and employs a new and
distinctive vocabulary. However, the moral of his story has remained the
same in all “ law and political theory are so inexorably intertwined that
law and politics are essentially one.
Dworkin™s political digressions from the traditional idea of law are least
obvious in Taking Rights Seriously, which was regarded by many as a
vigorous defense of the independence of law from politics. Indeed, that is
what Dworkin himself suggests when he says that the book offers a
“liberal” theory of law, designed to correct the failings of the “ruling”
theory, “ positivism,” founded by Jeremy Bentham, and best exemplified
nowadays in the work of H. L. A. Hart, Dworkin™s predecessor as
Professor of Jurisprudence at Oxford.
Dworkin launches his attack on positivism at what is certainly its
Achilles heel, i.e., that positivists have not succeeded in explaining what
bearing considerations of justice have on our obligation to observe the
law, and why the disagreements among lawyers and judges about how
cases should be decided do not render all legal decisions questionable.
Dworkin blames both these difficulties on the narrow definition of law
used by the positivists. Because they hold that there is a clear test for
distinguishing legal rules from non-legal standards, he argues, positivists
conclude that whenever the judge relies on anything other than legal rules,
he must go beyond the law. Consequently, in hard cases where legal
rules appear to “run out,” the judge is obliged to exercise unconstrained
discretion. Moreover, by insisting on a sharp distinction between legal
rules and non-legal standards, positivists sever law from morality. If his
solution were accepted, Dworkin argues, judges would not be left free to
278 The idea of law repudiated

make law as they pleased in “hard cases,” and moral considerations
would necessarily enter into legal decisions.
Dworkin says that he is defending a strict view of adjudication when
he maintains that there is a “right answer” even for hard cases, and that
the judge ought never to exercise discretion. This has led Hart to describe
Dworkin as an exponent of the “Noble Dream” “ “the faith, that, in
spite of superficial appearances to the contrary and in spite even of whole
periods of judicial aberrations and mistakes,” law is never “incomplete,
inconsistent, or indeterminate” because “for every conceivable case there
is some solution which is already law before he decides the case and which
awaits his discovery.”1
The reason why there is always a right answer, Dworkin explains, is
that the law includes not only formal rules and decisions, but also all
those principles and standards that are postulated by the formal law.
Beyond the statutes, precedents, and the constitutional law of a commu-
nity, Dworkin argues, there are general principles of fairness and justice
that are not explicit, authoritative decisions of any kind, but which can be
inferred from the more obvious legal materials. In order to make use of
such materials, the judge has to formulate a “political theory” that can
coherently accommodate everything that he has found in the law. He can
then decide hard cases based on that theory.2 Each judge is obliged to
construct his own theory independently of other judges; what others
believe to be the soundest theory should not be taken into account. An
additional “theory of mistakes” can enable the judge to discard prece-
dents in a systematic manner, and no questions are excluded from the
court™s agenda.3
At first sight, this may not seem to be a radical view. Ever since law
came to be seen as a systematic unity, it has been accepted that any
interpretation of a rule of law must somehow take into account its
relation to the whole body of law in which it is found. This is what makes
it plausible to suppose that Dworkin is not departing from a traditional
view of law. That conclusion is supported, moreover, by his emphasis on
distinguishing between principles and policies. Principles, he tells us,
ascribe benefits to individuals on the ground that they possess a right to
them, whereas policies grant benefits on the ground that doing so will
promote some collective goal such as national prosperity. Policies are the
proper ground for legislative decisions, but not for judicial decisions,
which should be based on principles.4

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