The law is neither neutral nor objective as most would like to think. It is very subjective and how one interprets the law depends on one’s vantage point. The law is filled with the biases and preferences of those who make the law, such as judges and lawmakers. Therefore, if the law is made by mostly white, wealthy males, then the law is going to be mostly from the vantage point of a white, wealthy male. As much as some may argue, the law is incapable of being completely objective as long as there are humans behind it.
Humans may try to be objective, but pure objectivity is beyond human capability. Granted, some people are much better at being objective than others, but as objective as one may be, there is always present some slight bias or preference that will influence his or her decision making. This paper will examine how feminism and critical race theory are relevant to the study of law in the 21st century. Furthermore, this paper will utilize different legal issues that exemplify the existence of general bias and racism in the law.
The theory of law may be gender neutral and color blind, but those who create, interpret and operate within the confines of the law are not and thus, law as a practicality fails to be anything but sexist and racist. A BACKGROUND IN CLS In 1977 at a conference held at the University of Wisconsin in Madison, critical legal studies, also known as CLS, was born. When this field of study was first started, it was considered to be revolutionary because it sought to challenge and overturn accepted norms and standards found in society and the law (Critical legal studies, 2010).
Critical legal studies scholars aim to alter jurisprudence by making it more reflective of society versus it reflecting the thoughts, biases and desires of a powerful few. The followers of CLS argue that by exposing the law as not being a “rational system of accumulated wisdom but an ideology that supports and makes possible an unjust political system” (Critical legal studies, 2010). It is the goal of CLS scholars to discredit the law’s supposed existence of objectivity, “’unmediated’ voices by which those transcendent, universal truths find their expressions” (Williams, 1991).
While debunking the idea of the law being determinate and neutral, CLS scholars simultaneously explain that the law is no more than a mechanism used by those in power to maintain their domination over an unequal social, political and economical system (Critical legal studies, 2010). Since that conference in 1977, CLS has been promoting a theoretical and practical reconstruction of the law and subsequently, a reconstruction of society itself. Considered still a new and developing area of study, the roots of CLS are found in legal realism, a legal scholarship movement in the United States during the 1920s and 1930s.
Oliver Wendell Holmes is considered the father of legal realism and the leader of the movement due to his theories as set forth in The Common Law (1881). Holmes and other legal realists rebelled against the accepted legal theories of their day. Legal Realists argued that judicial decisions were not determined by the law, but by the predilections and social positioning of judges (Common Law, 1881). Therefore, legal realists demanded that more focus be placed on the social context of the law. CLS was born out of legal realists’ demands being met.
One of the notions promoted by CLS is that the law is politics. According to CLS theorists and scholars, the law is not some precise decision making process. Instead, the law is the culmination of competing interest and irrational decisions of judges and lawmakers. Legal reasoning is fragile infrastructure that is packed with contradictions and arbitrary categorizations that continually evolve as time goes by. Critical legal theorists support the theory that the law and its surrounding politics support only the interests of the party or group of people that formed it.
Consequently, the legal system created under these condition, encourages the status quo. Bu supporting the status quo, the law reinforces the established power of the ruling class (Critical legal studies, 2010). CLS scholars do not argue that the law possesses logic and structure. What such scholars argue is that the law legitimizes the compilation of biases and prejudices that fortify the injustices of society (Critical legal studies). Simply, CLS views the law as tool used by the powerful and wealthy to oppress the rest of society so that their place in societal hierarchy is maintained.
Furthermore, CLS theorists, as did legal realists, argue that objectivity in the judicial system is impossible because political neutrality and objectivity cannot exist (Common Law, 1881). Thus, the idea of the judiciary being a disinterested party in society is extinguished (Critical legal studies, 2010). As one CLS theorist, wrote: “The judicial emperor, clothed and coifed in appropriately legitimate and voguish garb by the scholarly rag trade, chooses and acts to protect and preserve the propertied interest of vested white and male power” (Hutchinson, 1989).
The quote summarizes CLS’s aim to remove the blindfold of the masses and enlighten them as to the true nature of the law. Largely a US legal movement, CLS has evolved to consist of several subcategories. These subcategories are deemed to be feminist legal criticism, critical race theory, or CRT, postmodernism and the subcategory that focuses on the influence of political and economic issues on legal decisions. This essay, however, will focus on feminist legal criticism and critical race theory and their influence on 21st century law. FEMINIST LEGAL CRITICISM
Feminist legal criticism attempts to show the ways in which the law reflects the sexism that exists in society. The law is exists as an extension of a male-dominated society that is exemplifies the inequality between the genders as well as the sexual objectification of women (MacKinnon, 1987). The law systematically discriminates against and victimizes women due to it being created based upon male-oriented views and male domination. Unfortunately, “the law sees and treats women the way men see and treat women" (The Free Dictionary, 2010 quoting Catherine MacKinnon).
Such biases and prejudices against women entrenched in the judicial system, ensures a sense of male control over women and their sexuality (Lacey, 2010). Feminist legal theorists seek to validate the female experience in the law. One topic that feminist legal theorists focus on in detail is the application of legal theories to rape. Such theorists often cite to the difficulty women face when trying to legally prove that they were raped. Catherine MacKinnon argues that rape laws are often ineffective in obtaining convictions against male rapists (The Free Dictionary, 2010).
MacKinnon actually goes so far as to argue that the rape laws are a means in which men may keep women in a position of submission and inferiority. She further adds that standards of objectivity and neutrality in the law actually mask male prejudices against women which make it difficult for a woman to prosecute a man for rape. In essence, the government is enabling the rape of women and male dominance over women. Another distinction in the law that feminist legal theorists raise is public and private spheres. The argument is that the distinction between public and private spheres promotes male power.
For example, the private sphere, which represents the home, cannot be separated from the public. The law has historically overlooked the injustices that occur within the home and afford women very little relief from such injustices. Common injustices in this private sphere include domestic abuse and marital rape (The Free Dictionary, 2010). By overlooking these injustices or failing to provide ample relief, the law has in a sense perpetuated the injustices. Similar injustices can be seen when the law is applied to racial matters. CRITICAL RACE THEORY
Critical race theory began around the same time as CLS. Theorists were examining why the gains of the civil rights movement of the 1960s were being lost in the 1970s. Seeking answers the scholars began to develop new theories to understand the causes and implications of racial dominance in the United States. Critical race theorists started to see that there was inherent racism in the laws and judicial system, and this systematic racism needed to be resolved in order to end the injustices that minorities were facing in the United States.
Critical race theorists do not agree with liberal jurisprudence that tries to instill some sort of neutrality or color blindness into the law. Many critical race theorists dispute the idea of there ever being a color blind Constitution and laws (The Free Dictionary, 2010). Furthermore, the theorists asset that the supposed gains in racial rights by Supreme Court decisions are really fancy masks that give the illusion that racial inequalities are being extinguished when in fact they are being perpetuated.
This mask is inevitable when taking into account the prejudices and presuppositions of the white majority. It is these prejudices and presuppositions that impede the racial reform in the United States. One area where the biases and prejudice of race has had legal ramifications is in the reporting and prosecution in “crack baby” cases. An overwhelmingly large number of black and Hispanic mothers compared to white mothers are prosecuted under state laws for substance abuse while pregnant. Many suspect that it is not because black and Hispanic women abuse drugs more than white women.
Instead, it has everything to do with racial and socio-economical stereotyping (Karp, 2010). Studies show that doctors disproportionately report minority women to the authorities over white women. Scholars suspect that a lot of women being reported are from lower income households and are visiting public clinics versus private doctors. Many of the public clinics probably have a lesser investment in their patients versus the private doctor who develops relationships with patients that become loyal to the doctor and the practice.
Another consideration may be the type of drugs being detected in the mothers. It is suspected that the harder drug use such as cocaine and heroin catches the eye more versus the mother that drinks, smokes and uses marijuana. In addition, should the private doctors come across a patient using drugs heavily, the doctor may suggest rehab to family members before reporting the mother to the authorities. Once a doctor reports a mother to the authorities, the system takes over and the mother is tracked. If the private doctor never reports a patient, then such patients is never tracked by the system.
Thus, if a doctor is biased and prejudice and reports minority women more than white women, then the stereotype of minority women used drugs and are not good mothers are perpetuated. If the judicial system is only seeing minority women come before it, then the individuals that work within the judicial system may unknowingly develop a prejudice against minority women and assume they are all drug users. It is these types of prejudice judgments that need to be eradicated in order to achieve a racial harmony in the judicial system.
Eliminating the thought processes of individuals is not the answer. Pretending that the law is objective is not one either. Acknowledging that the law is determined by the biases and prejudices of the judges and law makers is a start. NEW WAYS OF THINKING IN THE 21ST CENTURY There is definitely a need to rethink the application of legal principles in this United States. As any law student can tell you, the majority of the legal principles that frame today’s laws are based on English common law principles from the 1700s and 1800s.
Incidentally, neither women nor minorities had any say in the government or design of these laws. Both women and blacks were deem property of white males. Therefore, it cannot be disputed that certain groups in our society needed to be given a voice. Moreover, the law reflecting the experiences and perspectives of these neglected or oppressed groups would provide a tremendous amount of jurisprudential value (Long, 2004). True justice may be attainable in the judicial system if the voices of these minorities are incorporated.
To exemplify this concept, maybe it would be easier to examine the question of whether women perceive the world differently from men and does such difference deserve a validation in the legal system? In determining the legal standard for a “battered women’s” defense, it may not logical to base such a standard off an understanding of how men fought each other in the “Merry Olde England” (Long, 2004). It seems logical that a standard should be based off of women’s experience and perspective. Similarly, a "reasonable woman's perspective" may be a better standard for cases of sexual harassment in the workplace.
Some feminist legal theorists claim that the "reasonable person" standard is really a “reasonable man” standard (Long, 2004). The ramifications of having the wrong legal standard is that a man may not find the same sexual words/jokes/advances offensive, as a “reasonable woman” might. In any event, the 21st century should mark the start of trying to incorporate the female experience into the law. As the this evolution takes place within the law, the areas that will most likely be affected the most in the beginning will be sexual harassment matters under employment law and domestic and family law matters.
Although racial minorities face similar issues with the law as women do, their situation is more complex. Applying a “reasonable black person” standard or “reasonable Asian” person standard is just not feasible. There would be no consistency within the law and forget trying to apply the correct standard when someone if of 2 or more races. Therefore, the minority voice would need to be incorporated in the legal system another way. It may mean that increasing the presence of more minorities within the political and judicial system may be the answer.
However, how is this to be accomplished? Someone would be hard pressed to argue that African Americans and Native Americans were unjustly treated by the dominant white culture in the past. The years of oppression that these cultures suffered at the hands of the white dominant culture still impact the development of these cultures. Many may go so far as to agree that these cultures should somehow be compensated for the atrocities committed against them. The question is how? Is the answer in the form of affirmative action? Is it in the form of reparations?
Or is there another way? The ideas of affirmative action and reparations usually cause a heated emotional debate amongst the races and ends with no resolution. As we move further in to the 21st century issues will need to be resolved. A first step may be recognizing the hidden racism within the judicial such as the example set forth above about crack baby mothers. Society must work diligently at un-cloaking the illusions of justice. CONCLUSION Feminism and critical race theory has been affecting the American legal system for over 30 years.
The affects of these theories on the law has gotten increasingly stronger and stronger over the thirty some odd years. As the law moves through the 21st century, the affects will become even strong. It is inevitable. Over time more and more women and minorities will gain positions of power. And just as the male lawmakers and judges uncontrollably formed legal concepts around their personal biases and perceptions, women and minorities will do the same. As humans we cannot completely check our personal experiences at the door when trying to make objective decisions.
Personal experiences and prejudices are very much a part of a person and their decision making processes. Maybe then the true answer to obtaining a true system of justice and not just an illusion of one is having the voices of all citizens heard. Only when all voices and opinions are heard, may we have a justice system that truly protects all the citizens it is charged with protecting. ? Reference Critical Legal Studies - Feminist Legal Criticism, Critical Race Theory (crt), Cls And Its Alternative View Of The Law And Society http://law. jrank. org/pages/5893/Critical-Legal-Studies.
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