SOME THEORETICAL CRITIQUES OF THE LAW
Kleyn et al - pgs 402-410.
➢ We have explored the need for law in a society;
➢ We have briefly discussed the possible consequences of a lawless society;
➢ We have also seen the difficulty in concretely defining the meaning of law;
➢ These few slides will now look at a discussion of critical race theory and feminist legal
studies.
• It is important for law to be seen as an ever-evolving site of struggle because, like all
institutions, law is invested with power. Law is often used as a tool of power, and our
own experience with apartheid demonstrates how law can be used effectively as a tool
to prop up an oppressive and racist regime.
• Much thought has gone into how law is oppressive, and we will be focusing on two of
these theories.
o The first, feminist legal theory, critiques the way in which law acts as a patriarchal
construct that serves to benefit mostly men.
o The second, critical race theory, critiques the way in which law serves to construct
and maintain white supremacy.
• One of the driving forces behind both
theories is that the law is traditionally the
preserve and production of white males,
and so the norms which inform the law
emerge from the experiences of white
men. But, of course, law impacts far more
than simply white men and the fact that
the law has always been the preserve of
white men means that the law continues
to be a tool of repressive power
1
, FEMINIST CRITIQUES OF THE LAW
• Feminism is a movement that has gained momentum with the realisation that men
dominate women in large areas of everyday life; be it in work or at home.
o From the perspective of the law, feminism claims that the values underlying the
principles of law are based on a male or masculine perspective.
o Some of these include rationality, objectivity, and reasonableness
o These values are traditionally thought of as being largely masculine values.
o The values of empathy, context, and subjectivity, on the other hand, are largely
associated with femininity
o Up until fairly recently, the legal profession was reserved exclusively for males, and
the entrance of females into the profession has been very slow.
• Feminist legal theory departs from the premise that men dominate women in various
sphere of society and that not only does law reflect the experiences of men but, in so
doing, the law becomes a tool of patriarchy.
• Read the quote from Mackinnon. The law privileges consent in the crime of rape rather
than the dignity or privacy of the person who was raped. This is often a very difficult
hurdle for a victim to overcome because they would have to demonstrate (for example)
some kind of resistance to the act. But it’s quite something to ask someone who is
already being attacked to resist their attacker. And, if they don’t do so, the law simply
does not regard the victim as suffering any harm because the perspective of the law and
whether any wrongdoing has actually occurred comes from the male.
• The law is replete with values which are subsequently attributed to masculinity, including
rationality, reasonableness, and objectivity. Values presented as being at the core of
femininity, such as emotion, subjectivity, context, and care are seen as being inimical to
law.
“The law distinguishes rape from intercourse by the women’s lack of consent coupled with a man’s
(usually) knowing disregard of it. A feminist distinction between rape and intercourse, to hazard a
beginning approach, lies instead with the meaning of the act from a woman’s point of view. What is
wrong with rape is that it is an act of the subordination of women to men.
… The problem is this: the injury of rape lies in the meaning of the act to its victims, but the standard for
its criminality lies in the meaning of the same act to the assailants. Rape is only an injury from a woman’s
point of view. It is only a crime from the male point of view, explicitly including that of the accused…
What this means doctrinally is that the man’s perceptions of the women’s desires often determine
whether she is deemed violated…
When a rape prosecution is lost on a consent defence, the woman has not only failed to prove lack of
consent, she is not considered to have been injured at all. Hermeneutically unpacked, read: because he
did not perceive she did not want him, she was not violated. She had sex.”
Catherine Mackinnon
2
Kleyn et al - pgs 402-410.
➢ We have explored the need for law in a society;
➢ We have briefly discussed the possible consequences of a lawless society;
➢ We have also seen the difficulty in concretely defining the meaning of law;
➢ These few slides will now look at a discussion of critical race theory and feminist legal
studies.
• It is important for law to be seen as an ever-evolving site of struggle because, like all
institutions, law is invested with power. Law is often used as a tool of power, and our
own experience with apartheid demonstrates how law can be used effectively as a tool
to prop up an oppressive and racist regime.
• Much thought has gone into how law is oppressive, and we will be focusing on two of
these theories.
o The first, feminist legal theory, critiques the way in which law acts as a patriarchal
construct that serves to benefit mostly men.
o The second, critical race theory, critiques the way in which law serves to construct
and maintain white supremacy.
• One of the driving forces behind both
theories is that the law is traditionally the
preserve and production of white males,
and so the norms which inform the law
emerge from the experiences of white
men. But, of course, law impacts far more
than simply white men and the fact that
the law has always been the preserve of
white men means that the law continues
to be a tool of repressive power
1
, FEMINIST CRITIQUES OF THE LAW
• Feminism is a movement that has gained momentum with the realisation that men
dominate women in large areas of everyday life; be it in work or at home.
o From the perspective of the law, feminism claims that the values underlying the
principles of law are based on a male or masculine perspective.
o Some of these include rationality, objectivity, and reasonableness
o These values are traditionally thought of as being largely masculine values.
o The values of empathy, context, and subjectivity, on the other hand, are largely
associated with femininity
o Up until fairly recently, the legal profession was reserved exclusively for males, and
the entrance of females into the profession has been very slow.
• Feminist legal theory departs from the premise that men dominate women in various
sphere of society and that not only does law reflect the experiences of men but, in so
doing, the law becomes a tool of patriarchy.
• Read the quote from Mackinnon. The law privileges consent in the crime of rape rather
than the dignity or privacy of the person who was raped. This is often a very difficult
hurdle for a victim to overcome because they would have to demonstrate (for example)
some kind of resistance to the act. But it’s quite something to ask someone who is
already being attacked to resist their attacker. And, if they don’t do so, the law simply
does not regard the victim as suffering any harm because the perspective of the law and
whether any wrongdoing has actually occurred comes from the male.
• The law is replete with values which are subsequently attributed to masculinity, including
rationality, reasonableness, and objectivity. Values presented as being at the core of
femininity, such as emotion, subjectivity, context, and care are seen as being inimical to
law.
“The law distinguishes rape from intercourse by the women’s lack of consent coupled with a man’s
(usually) knowing disregard of it. A feminist distinction between rape and intercourse, to hazard a
beginning approach, lies instead with the meaning of the act from a woman’s point of view. What is
wrong with rape is that it is an act of the subordination of women to men.
… The problem is this: the injury of rape lies in the meaning of the act to its victims, but the standard for
its criminality lies in the meaning of the same act to the assailants. Rape is only an injury from a woman’s
point of view. It is only a crime from the male point of view, explicitly including that of the accused…
What this means doctrinally is that the man’s perceptions of the women’s desires often determine
whether she is deemed violated…
When a rape prosecution is lost on a consent defence, the woman has not only failed to prove lack of
consent, she is not considered to have been injured at all. Hermeneutically unpacked, read: because he
did not perceive she did not want him, she was not violated. She had sex.”
Catherine Mackinnon
2
