Transcript Lecture 3 - Dr Myra Williamson

Critical legal studies,
feminism and critical
race theory
Social Theory and Law 336
KiLAW 2012/2013
Dr Myra Williamson
Readings and resources
•
Davies, M Asking the Law Question 3rd Ed (Sweet and Maxwell, 2008)
•
•
•
•
Chapter 5 (Critical Legal Studies)
Chapter 6 (Feminism)
Chapter 7 (Critical Race Theory)
This book is in the library on reserve
•
Lloyd’s Introduction to Jurisprudence – on reserve in the library
•
Sinha, S Jurisprudence – Legal Philosophy in a Nutshell (West Publishing, 2003)
• This book is in my office – relevant pages will be photocopied at left at The Copy
Centre
•
www.wikipedia.org/wiki/Critical_legal_studies - and the links at the bottom of that
page to other pages
•
The Free Dictionary.com – search for ‘Critical Lgal Studies’
Teaching and learning
• We are going to spend the next 2-3 lectures discussing Critical Legal
Studies, Feminism and Critical Race Theory
• They are related or connected ideas
• There will be questions in the final exam (both short and long answer)
based on this part of the course
• There will be an optional ‘bonus’ essay, based on this material, for
students who wish to improve their grades – this option will be made
available in December, prior to the exam
• The main objectives in this topic are:
• To learn what Critical Legal Studies, Feminist Legal Theory and Critical
Race Theory are all about;
• To learn about what they have contributed to jurisprudence;
• To consider whether there is any connection between the Arab/Islamic
world and these three related areas of Western legal philosophy
Overview
•
Critical Legal Studies (‘CLS’) was a movement that grew to prominence in the
United States in the 1970s and 1980s
•
It was the intellectual successor of (i.e. it followed on from) Legal Realism
•
It grew in the period of disenchantment in the post-Vietnam Warmer
•
Many of the early CLS scholars were influenced by the civil rights movement, the
anti-war movement and the fight for women’s rights
•
The Critical Legal Studies movement does not consist of one, coherent (single)
theory but there are some common themes
•
It had two major offshoots:
• Feminist legal Theory: it examines the role of gender in the law
• Critical Race Theory: it examines the role of race in the law
•
These days, CLS has clusters at many law schools around the world
•
In this slideshow we will look at the basics of CLS and both these offshoots
History
• Where did Critical Legal Studies (‘CLS’) come
from?
• It’s philosophical moorings, or origins, are from
American Legal Realism, especially Oliver Wendell
Holmes (it shares their obsession with the role of
judges and the indeterminacy of law – see below)
• Also draws on other philosophers including Karl
Marx, Friedrich Engels, Max Weber, Max
Horkheimer, Michel Foucalt and Jacques Derrida
(among others)
History continued…
• There was a conference in 1977 – the Conference on Critical
Legal Studies – which is when the movement really took a
proper form. The 1977 Conference on Critical Legal Studies
in Madison, Wisconsin was the first formal meeting of the
‘Crits’.
• CLS essentially arose from a group of students and
academics at Yale and Harvard Law Schools in the late
1960s and early 1970s
• It’s important to note that the CLS ideas came from a small
base of white, male intellectuals at US law schools
• For more information on its origins see Davies at pp186-87
Common themes
• Although there is no single CLS theory, there are some
common themes:
1. Legal materials do not completely determine the
outcome of legal disputes
2. All law is politics – legal decisions are a form of political
decisions (compare with the positivists idea that law and
politics are separate from one another)
3. Law serves the interests of the wealthy and powerful by
protecting them against the demands of the poor and the
subaltern (i.e. women, ethnic minorities, working
classes, indigenous people, the disabled
1.Law is indeterminate
•
Legal materials (such as case law and statutes) do not completely
determine the outcome of legal disputes - they have some impact
but other factors are also important
•
The outcome of a legal dispute will have as much to do with the
social context as the legal reasoning
•
This should be familiar: the CLS thinkers agreed with the Legal
Realists’ ideas about the indeterminacy of law, we discussed this
idea in the previous topic. They agree that the language of law
itself is open to different interpretations – there is not one single
interpretation of ‘the law’ in a given case
•
Examples: the “reasonable” man; the normal words used in
statues (e.g.. “vehicle”) – more than one meaning is always
possible so the outcome of a case is ‘indeterminate’
1.Law is indeterminate
continued…
“Law is simply politics dressed up in different garb; it
neither operates in a historical vacuum nor does it exist
independently of ideological struggles in society. Legal
doctrine not only does not, but also cannot, generate
determinate results in concrete cases…Legal doctrine
can be manipulated to justify an almost infinite
spectrum of possible outcomes”
Allan Hutchinson and Patrick Monahan, “Law, Politics and the Critical Legal
Scholars: The Unfolding Drama of American Legal Thought” (1984) 36 Stanford
Law Review 199 at 206
2. All law is politics
•
CLS theorists argue that law and politics are inseparable (law and politics can’t be
separated from each other); Legal decisions are a form of political decisions
•
Law is not an objective, rational process of impartial decision-making
•
Instead, it’s just like politics, full of competing interests, it has arbitrary categorizations
that are constantly refined and reworked
•
Judicial decisions depend mainly on the social situation of the judge – so more
attention should be paid to the social context of law (the CLS thinkers agreed with the
Legal Realists on this point).
•
They say – judicial objectivity is impossible
•
They strip judges of their supposedly disinterested role in society
•
So, CLS scholars try to delegitimize and demystify the law – to remove the cloak of
mystery and awe that surrounds the law
3. Law serves the interests of
the wealthy and powerful
• The legal system, like the political system, serves to
maintain the current arrangements (it keeps the “status
quo”, which means, the legal system keeps things as they
are)
• The law perpetuates or continues the established power
relations in society
• Law is an instrument of oppression used by the powerful
and the wealthy to maintain their place and to protect
their interests
• Law is used by the rich and/or powerful against the poor
and/or weak individuals in society
CLS and ‘Liberalism’ – Part I
• CLS scholars criticize ‘liberalism’ which they see as the dominant
political ideology – certainly, the one that has shaped Western
thought in the 20th century
• What is ‘Liberalism’?
• Basically, the idea of ‘life, liberty and property’,
• Liberalism stands for individual rights, private property rights, each
man for himself etc…
• An emphasis on ‘rights’ has been very important in Western thought
• John Stuart Mill: individuals should have the right to do anything so
long as it doesn’t harm others – the state shouldn’t involve itself in
people’s lives, except to protect some from harming others
CLS and ‘Liberalism’ – Part II
• CLS scholars:
• Don’t like ‘Liberalism’ and don’t like all this talk about ‘rights’
• They call for more emphasis on the community, not on the individual
• They argue that ‘rights’ are ideals that protect the interests of the
privileged – in a capitalist society where the ability to defend one’s rights
is dependent on the ability to pay, those who have ‘rights’ are the
wealthy (the property owners, the business owners)
• Liberal rights are a “screen” hiding the true nature of oppression in
society
• Rights are just part of the ‘alienating’ structure of the law
• Rights don’t produce justice – they are just a way of entrenching existing
inequalities (e.g. women have the right to vote, but so what? Have they
achieved real equality or just a right to vote?) – see the argument of Peter
Gabel, discussed in Davies, M Asking the Law Question at pp204-206
Questions…
• Do you agree with the main themes of CLS?
• Is law indeterminate?
• Is law inseparable from politics?
• Does law serve the interests of the wealthy and powerful?
• Are ‘rights’ just a screen – or do they provide substantive
justice
• How about here in Kuwait? What would a CLS
movement in Kuwait take as it main topics of debate?
What became of CLS?
• It is still a movement, with small clusters of CLS scholars in
law schools around the world but its influence has waned
• In 2003 Duncan Kennedy wrote that “CLS as a political
movement has been dead for a number of years but CLS as a
legal academic school of thought is very much alive”
• It gave birth to other streams of legal thought such as feminism
and critical race theory (see below)
• There are CLS scholars working in all areas of law including
family, international, comparative etc
• There are law journals devoted to publishing the research of
CLS scholars
Criticism of CLS
• CLS does not offer any alternatives – it criticizes and delegitimizes
law and demystifies, but it doesn't’t suggest anything better
• CLS was a movement begin by white, educated males – perhaps it
was captured by this, it failed to attract others, that’s why offshoots
arose
• CLS writing remained quite abstract and obscure – frequently of
little relevance to real problems (see Davies, M Asking the law
Question, p195)
• CLS’ attack on ‘rights’ and liberalism isn’t correct: rights do achieve
something for minorities (see Richard Delgado in Davies at pp206207) and minorities think there is value in seeking ‘rights’
Feminism and Feminist Legal
Theory
• What is ‘feminism’?
• Feminism is a collection of movements and
ideologies aimed at defining, establishing, and
defending equal political, economic and social rights
for women
• A feminist is a person who supports equal rights for
women
Feminism – a brief history
•
Feminism has a long history – but women who fought for women’s rights
didn’t always use the term ‘feminist’. Some say that the early activists were
not ‘feminists’ – that this term only applies to the modern movement
•
First wave feminist: 19th and 20th centuries –
• Focus on gaining the right to vote – women’s suffrage movements mainly in UK,
US and similar countries
• E.g.. New Zealand gave women the right to vote in 1893; South Africa in; in the
UK, women over 30 who owned property got the vote in 1918; this was extended to
all women over 21 in 1928; in the US, women got the right to vote in 1916 via the
Nineteenth Amendment to the US Constitution
•
Second wave feminism: 1960s-present
• Focus on gaining legal and social equality for women – ending discrimination
•
Third wave feminism: 1990s –present
• Responding to the failures of the second wave
Feminism – what’s it all
about?
“Representation of the world, like the world itself,
is the work of men; they describe it from their own
point of view, which they confuse with the truth”
• Simone de Beauvoir The Second Sex as reproduced in Davies at p213
What does this mean to you?
“Men have made the legal world in their own image, confusing it, as de
Beauvoir says, with the absolute truth” – Davies, p215
Feminism(s)
Some general points about feminism:
•
There isn’t ONE feminism, but many – white, middle-class women from developed
countries have a different perspective than other women (e.g. women from other ethnic
groups, from developing countries, from a religious minority, etc.)
•
The aim of feminism, generally, is transformation
•
Feminism is a political as well as a legal agenda
Definitions?
•
Margaret Davies: Feminism aims for a social and political environment in which
women and men of all ethnicities, class backgrounds, sexualities and abilities are
equally valued – Davies, p220
•
Barbara Smith: “Feminism is the political theory and practice that struggles to free all
women: women of colour, working-class women, poor women, disabled women,
lesbians, old women – as well as white, economically privileged, heterosexual
women…” in Davies at pp220-21
Different types of feminism
•
Feminist jurisprudence has many schools of thought within it (here are some):
•
Liberal feminism: the central goal is the formal equality of women
•
Assimilationist feminism: more extreme than liberal; argues for a non-sexist society where
no distinctions are made on the basis of sex; physical dissimilarities have no significance
•
Bivalent or difference or special treatment feminism: emphasizes that ‘equality’ forces
women to aim to be like men; it therefore emphasizes the differences between men and
women; women deserve special treatment because they are different from men
•
Radical feminism: views women as a class (not as individuals, as in liberal feminism) and it
says that women as a class have been dominated by another class, i.e., men.
•
Post-modern feminism: it rejects the idea that there is “a woman’s point of view”, or a
single theory of equality for all women’. ‘Woman’ has many manifestations; it focuses on
the situated realities of women – practical solutions to concrete situations
Liberal feminism
• “Liberal feminism” says women’s rights and opportunities should
mirror men’s rights and opportunities
• Women should be free to enter professions of their choice, should be
involved in political life, should participate in educational
institutions, own property etc just as men do
• The goal is usually law reform to allow women’s full participation
and to remove discrimination
• Equal status and equal rights for women are the goal - because
women have as much capacity for reasoning as men
• Mary Wollstonecraft put forward these ideas in the late 18th century
– she argued that the “rights of man” should be extended to include
women (see Wollstonecraft Vindication of the Rights of Women)
Criticism of “Liberal feminism”
• The law reform that has been achieved has not resulted in
substantive equality
• Concentrating on the “public” role of women does
nothing to alleviate the problems women suffer in the
home (e.g. domestic violence)
• It doesn’t challenge the overall system - the legal system
itself is run by men and is based on male values
(individualism, adversarial dispute resolution,
independence) – the system ‘speaks’ to me
• If women have to be like men to be treated equally, then
equality itself is repressive
Radical feminism
• The question is not whether men and women are the same or
different; sex is a hierarchy – men have power and women do
not
• Gender (whether one is male or female) is a question of power
• Main thinker in this area is Catherine MacKinnon (see analysis
and extracts in Davis at pp240-52)
• Criticism 1: seeing women as a class overlooks the different
experiences of different women
• Criticism 2: seeing women as a class that is dominated by men
leaves little room for hope – these differences will always exist
Task: Feminism, Islam and
Arabs
•
Has feminism featured in Arab countries?
•
Which countries, when and why?
•
Do any Muslim women claim to be feminists? Is there such a
thing? What does it mean ‘ Muslim’ and ‘feminist’?
•
What is different about Muslim women’s experiences that set them
apart from Western women?
•
Does Western feminism have anything to offer non-Western
women? Are the social and political environments so different that
Western values cannot be imposed on non-Western cultures?
•
Further reading: see Davies at 262-63
Race, culture and ethnicity
• Liberal and radical feminism have been criticized for
ignoring women from minority groups who have
their own, special experiences
• White, privileged, heterosexual women were at the
front of feminism – but what of Asian women,
Black women, Hispanic women, disabled women?
• They have 2 ‘oppressions’ – this is sometimes called
a system of oppressions which intersects with
gender oppression
Critical Race Theory
•
What is “Critical Race Theory”?
•
It is concerned with the role of race in law
•
CRT is concerned with the idea of inescapable and inherent racism in the
American legal system
•
Its first workshop was held in 1989
•
It argues that the perception and experience of the world are determined
by one’s position in the race structure of society
•
It has a different methodology: instead of analysis, they often use
narrative, story-telling
•
It hasn’t received widespread acceptance in the US – its still mainly a
fringe area of academic thinking
Conclusion
• We have surveyed Critical Legal Studies – probably the
first critical movement of recent times that has challenged
the predominantly positivist tradition of legal theory
• CLS saw law as a political instrument which shapes our
perception of ‘truth’
• We looked at two main offshoots of CLS – feminist legal
theory and critical race theory
• Is CLS a disparate group of scholars or do they share a
number of important ideas and approaches? Do they,
together, amount to a new approach to legal scholarship?