Equality and the Law

Although obviously interlinked with the rise of feminism, postmodernism ideology is hard to define. It defies definition because of its permutable nature. The interpretation of postmodernism is a subjective test. We must be mindful of this when examining its effect on our legal system. Post modernism emerged after modernism. Modernism generally came about in the period between 1890 and 1930. 15 "Modernism refers to the attempt to find absolute grounds for knowledge, to discover abstract, transcendent principles which would be the foundation for all philosophical questioning.

It therefore follows that postmodernism questions the basis for this rationality and empiricism. In general terms it is a philosophy which deals with the idea that there are no universal principles and each person is influenced by their own reasoning process. Postmodernist theorists believe everything should be questioned. The validation of knowledge can not be achieved by appealing to a "higher, universal domain of thought. "17 This view is clearly at odds with traditional legal theorists who believe legal methods can produce a relatively fixed set of accurate responses to legal questions.

Traditional theorists accept the notion that judges and other decision makers within our legal system are able to operate in an objective way. With the ascendancy of postmodernism we are seeing another aspect of legal theory coming to the fore. Postmodernists argue the law does not have any foundation as there is no foundation for objective lore. Objective reality, it is said does not exist. All knowledge is fortuitous upon social convention – in particular, language. Postmodernists argue that each social group espouse their own convictions. As such they lack impetus to penetrate truth.

Therefore, principles of law are merely allocations of power within social groups, rather than universal truths. From a postmodernist perspective of law, one is then able to ask the question: Is law only an affirmation of the predominance and acceptability of one group of people in preference to another? Postmodernists claim there is no such thing as a rule of law because all rules have to be interpreted and applied by people, who are by nature subjective. The footing of post modernism was more than likely the progression of society, particularly following modernism.

As it developed, postmodernism attempted to challenge the accepted truisms on which society based its knowledge and social interaction. "The postmodern then, is a very general way of describing this fragmentation of our concepts of social interaction, and of the way we think about knowledge. "18 Unlike feminism it is difficult to provide specific examples which show the emergence and progression of postmodernism. As society has developed so too has postmodernism. A comparison of the two perspectives certainly shows they are not separate ideologies but more so are two theories which may be combined or have developed hand in hand.

It is quite arguable to support a postmodernist feminist viewpoint. Since feminism relies generally in disclosing the inherent patriarchal bias that exists in our society and then attempting to change it. Our legal system features patriarchal ideals and relates to the framework of the governing system and the laws it makes. Feminist postmodernists believe "unearthing each shard of patriarchy is especially difficult because of the powerful assumptions embedded in our language and logic. Western culture teaches us that the patriarchal description of reality is not biased but neutral; that our knowledge and truths are not subjective.

"19 Postmodern feminists say that society has changed the definition of gender to serve today's conditions. The acceptance of a word in society is not always the correct meaning. The postmodern feminists adopt the idea that societies' definition of gender is nothing but a stereotypical characteristic. From a legal perspective, a simple example of a feminist postmodernist criticism can be found in the wording of the Declaration of Independence and the Constitution of America. The phrase "one man, one vote", previously meant that.

It meant "one man, but not one woman. " This shows the traditional perpetuation of power to man at the expense of both women and minority cultures. Postmodernism attempts "to reconceptualise the forms or structures upon which our perceptions are based. 20 This is why it has become meaningful to feminist theorists: "recognising the hold that a particular view of the world has, and why it is detrimental to women; it is important not only to strive for liberty within that system, but begin to dismantle or question its foundations.

The progression of postmodern feminism within our legal framework will focus on the ideology that our conception of 'masculine' and 'feminine' are domineering social constructions intended to vanquish and overpower women to men. In particular it will address this idea in order to challenge the fact that the courts can never give a marginalised group, such as women, a fair trial.


1. BERNS, S. , (1993), Concise Jurisprudence, Sydney: Federation Press.2. CHARLESWORTH, H. , Feminist Perspectives on Equality and the Law, A Law of One's Own, Meenjin Auturn, Volume 1, 1992, page 68. 3. COSER, L. , et al (1983), Introduction to Sociology, 2nd edition, Harcourt Brace Jovanovich Publishers, San Diego, 1983. 4. DAVIES, M. , (1994), Asking the Law Question, Sydney: Law Book Co. 5. "Deconstruction", Encyclopedia Britannica, 1996. 6. MACIONIS, J. , Sociology, 2nd edition, Prentice Hall, Englewood, New Jersey 1989, page 340.