What are the different types of relationshipthat law might have with others, such as justice, politics, and economics? Westart by looking at whether the law has specific qualities that differentiatesthem from other sets of rules.

Ernest Weinrib submits that there is an’immanent moral rationality’ made possible through legal formalism. 1 This phrase broughtup three distinct issues. First, the purpose of law is separate from politicaljustification. Next, there is an immanent intelligibility of the law. In simplerterms, law is internally coherent.

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Thirdly, there is a moral dimension to law’srationality, which derives from Immanuel Kant’s theory of right. Borrowing Hamish Stewart’s phrase to define legal formalism, it is ‘…thetendency to understand law from within…to seek an explanation of legal doctrinethat makes sense of the conceptual structure of the law without reference toexternal purposes.’2 Thishas led to formalism being labelled as an ‘autonomous discipline’.3 Thissuggests that judges decide cases in a robotic and mechanical manner by deemingall normative issues as irrelevant.4Weinrib’s fourth distinctive feature of his theory of formalism isintegration. He stated, ‘…characterize the law are not disjointed attributescontingently combined, but mutually connected aspects of a single complex.’5Hence, a vital feature of the formalist notion of ‘form’ is the principle ofunity.

The relationship between form and content is an essential concept inlegal formalism. Weinrib submits that those two are ‘correlative andinterpenetrating’.6Content would be unintelligible if it had no determinacy hence ineffective tohave any form.7Therefore, form has three connecting features: character, genericity, andunity.

8Character is the key attributes of something that helps define it.9Genericity is the ability to categorise something into a group.10Unity connects the different attributes under a single, coherent structure.11Formalism is also concerned with the internal structure of juridicalrelationships, and its impact with other legal forms.

12 Weinrib identifies twoforms of justice which he drew upon Aristotle’s discussion: distributive andcorrective.13They both focus on equality but they contrast on how they interpret it.14According to Weinrib, distributive justice ensures an equality of ratios.15They are characterised as ‘benefits’ or ‘burdens’ and these distributions neednot be tangible.16 Hesubmits that distributive justice is influenced by politics and externalfactors.

17 Heargues that it differs from corrective justice which is non-instrumental.Corrective justice is marked by a balance of quantities for transactionsbetween individuals. They can also be intangible.

18 Weinrib defines it as ‘theidea that liability rectifies the injustice inflicted by one person onanother’.19 Heargues that the two forms of justice are ‘mutually irreducible’ and cannot assimilatewith each other.20Weinrib postulates that ‘distributive justice is the home of politics’.21 Thejuridically form of it is to effect just distributions.

He argues that itsuggests that a political power must ‘define and particularise the scope of anyscheme of distribution.’22Thus, he submits that it is partly instrumental. However, he argues that aformalist’s corrective justice is not influenced by politics.23 Fora formalist, the immanent purpose of corrective justice will be disrupted byexternally imposed ends.There will be instances where these two will intersect and what must beconsidered is whether this would impact the possibility of a non-instrumentalform of private law. For instance, in negligence, the concept of duty of careis essential to establish liability.

But to establish a novel duty of care orslightly changing the scope of an existing duty will change the entire premiseof liability.24The application of policy considerations blindly will alter the law ofnegligence making it incoherent.25The fundamental thing is to strike the correct balance between rights and theircorresponding duties to successfully attain justice under distributive justice.Weinrib argues that ‘although distributive justice requires politics, itis not reducible to it’.26Distributive justice demands that juridical relationships adapt to theproportional equality required by the selected criterion.27 He argues that there is aconceptual personhood in distributive justice and of equality that limits alljuridical relationships that falls in the ambit of that form of justice.

28 Heasserts that the imposition of political constraints on the legislative andadministrative process is unsuccessful due to the concept of personhood andequality.29 Gray Carlson criticises Weinrib’s postulations.30 He submits that Weinrib’sapparent ‘depoliticization of the forms of justice is achieved through theprivileging of a particular ideological vision’ that does not escape politicaldebate.31 Healso submits that between the two forms of justice there is no need for an’insurmountable gap’.32 Itis clear that the relationships under corrective justice must be mediated,after taking into account all the relevant factors. Thus, he maintains thatthere cannot be a total separation between politics and corrective justice asWeinrib submitted.33A feminist would take a different approach from a formalist. In thebeginning, feminists were primarily concerned with issues such as winningequality and emancipation.

Feminism challenges the alleged neutrality of thetreatment of women in law. Contemporary feminists drew philosophy fromdifferent scholarly ideas such as critical legal studies (CLS), postcolonialtheory, race and queer theories.34 Feminism goes further than just women’s issues. What started out as apolitical and social struggle, is now focusing on how the law operates, how itis used to oppress women, and its capability to reverse this oppression.

Itprovides a perceptive evaluation of the law’s claims about its neutrality bychallenging these claims to show how they are used to not only conceal but alsocondone oppression in society. Hence, they mirror the Marxist and CLS critiqueby developing a more in-depth perspective regarding the dynamics between lawand power. Feminists often view the law as a double-edged sword. Althoughuseful, it can be influenced by external factors such as the abuse of power.

Feminism can be classified into liberal,radical, difference, postmodern, and intersectional feminism.Liberal feminism started roughly fromthe late 18th century until the 1960s. The main premise of liberalfeminism is that women and men are equal. Therefore, it argues that men andwomen should not be treated differently and be given the same rights.35 Somepopular liberal feminists include Mary Wollstonecraft36,Naomi Wolf and J.S Mill. Liberalism is an influential political outlookpredominantly in the Western world which argues that an individual is arights-bearer which must be respected by the law and State.

As the voicelessmen began to fight for liberty and democracy, the women also made the samedemands.In liberal feminism, however, there isno evaluation of the nature of law and how its operation perpetuates genderoppression. Law itself was seen as unproblematic as all that was needed was tochange specific legal rules. Liberal feminists seek to extend political, socialand economic rights. They do not question the basis on which social benefitswere issued but merely fought for equal rights to them.37Liberal feminism is based on the equality of individualsto equal treatment under the law and State. Hence it requires law to besex-blind.

Under liberalism, each person is autonomous and regards human socialrelationships as a matter of choice. The public realm such as employment andtrade are distinguished from the private realm of family and friendship whereit would be inappropriate for the law and the State to intervene.38 Thus, forthe longest time, domestic violence was regarded as a private matter. This perpetuates the deeply ingrained sexism in applyingthe law relating to private affairs which can diminish the exercise of rightsin the public arena. It seems that liberalism only gives women equal rights aslong as they act like men.39 However,there are gender specific problems in which the differences between men andwomen cannot be ignored such as reproductive capability. Thus, treating men andwomen differently need not mean treating them unequally.

Difference feminism argues that the law should not onlyrecognise the differences between men and women but should celebrate them. Itargues that the law should adapt to include women on the basis of theirdifferent characteristics.40Carol Gilligan has paved a way for a feministpsychological theory of morality.41 Shecriticises Lawrence Kohlberg’s six stages of moral development theory, asKohlberg’s theory only included an all-male sample which reflects a maledefinition of morality. In his final stage of moral development, he submitsthat morality is a matter of being objective, based on impersonal judgmentsabout rights.

42 Gilliganargues that this is a masculine mode of thinking. Morality for men is based onabstract principles of law which she calls an ethics of justice. She submitsthat there is another way of moral thinking that focuses on the concrete needsof others which she calls an ethics of care. Kohlberg, however, degrades thismode of moral thinking to stage three of his developmental model.43This can be contrasted with the formalist approach thatargues the law can be separated from external influences. Gilligan submits thatin applying the rules, the ethics of care is equally important. She states inan interview, ‘..

.within a patriarchal framework, the ethics of care is a”feminine” ethic, whereas within a democratic framework it is a human ethic…The premise of equal voice then allows conflicts to be addressed inrelationships. Different voices then become integral to the vitality of ademocratic society.

’44Carrie Menkel-Meadow has examined the impact of theethics of care in the legal practice.45She argues that the adversarial system of justice is masculine.46 Women areinclined to be more concerned with concrete circumstances than abstract ideas.

Thus, they consider all the relevant facts to come up with the best solutionfor everyone involved. Hence, this encourages negotiation to solve legalproblems.47 Gilligandoes not submit that one mode of moral thinking is better than the other, butrather that the ethics of care should be placed alongside the ethics of justicein deciding cases.  She argues that womenhave a different perspective and feminists need to ensure that this perspectiveis appreciated.Radicalfeminism emerged alongside liberal feminism in the 1960s. It started in theUnited States, followed by the United Kingdom and then Australia.

Pioneers ofthis feminism include Shulamith Firestone and Kathie Sarachild. Radicalfeminism assert that all structures of societies are set up to encourage theexploitation of women by men.48 Theapparent neutrality of law is fictitious, concealed by the State by promoting’equality of all persons’.

The advocation of liberalism also develops a ‘falseconsciousness’ amongst women which influences them into thinking that they arefree. Thisleads to the concept of ‘consciousness raising’ (CR). It results from thedominance of men in any setting, resulting in women being isolated from eachother politically. These CR groups brought women together in developed Westerncountries to share their experiences. They came to the conclusion that they allshared an oppressive system despite their social class or political affiliationand the only way to solve this is by ending the patriarchal system.

49CatherineMacKinnon has been the most instrumental voice for radical feminism. She hasinfluenced many female lawyers and activists. She argues that there are nosignificant inherent differences between men and women.50 The only distinction isthat the patriarchal system dominates the lives of women in a sexual manner. 51Mackinnon drew an analogy where she found similarity between Marxism andfeminism. She states, ‘sexuality is to feminism, what work is to Marxism: thatwhich is most one’s own, yet most taken away.’52 Thecentral feature of MacKinnon’s theory is that all women are oppressed throughtheir sexuality.

She argues that the State is predominantly male.53Hence, the State mirrors the male perspective despite law’s alleged neutrality.She drew an analogy between the State and men, where the State are the highestmanifestation of power relations in society, while men have power bothphysically and socially. As a reflection of male power, the law enforces rightswhich legitimise the male’s perception of the world.MacKinnon analysed rape law where sheasserted that law continuously adopts a male point of view regarding sexualexperience, therefore unable to accommodate women’s experience of rape. 54 Thelanguage of sex in society reveals that our understanding of the relation ofmen to women is that men is an active subject, and women is passive – he ‘doesit’ to her.

55 In law,where a man has no intention to rape, there is no violation – they simply had sex. There is a tendency to viewrape as only a paradigm of violent attack by a stranger, in dark alleysaccompanied by bruises and torn clothes. When in reality, rape can occur in theform of coercion by husbands, fathers, ‘date rape’, or through the use ofeconomic or other types of power to get sex.The law is viewed from a male’sperspective and this perspective becomes an objective reality.56 This leads to men objectifying women intotools for their own sexual pleasure, ignoring that women are humans in theirown right. For instance, women in pornography are portrayed as collections ofbody parts for men to fantasise about. According to MacKinnon, the eroticisationof violence and submission in pornography encourages the ideology in whichwomen are understood to find male force sexually attractive, and in whichconsent is not important.

57Radical feminism differs greatly from formalism.MacKinnon maintains that behind the apparent neutrality of the law, it is maleand is most tyrannical towards women when it claims to be sex blind. It isimpossible to separate the law from politics. She also argues that even thoughthe law were to achieve neutrality and objectivity, it might not be beneficialas this would not reflect reality. Hence, she argues for legal reform to stopenslaving women to men’s needs.58 However,MacKinnon’s theory has loopholes as she assumes that all women have similarneeds and experiences. The truth is, women face discrimination differentlydepending on their race, religion, and sexuality, which cannot be unified intoa single feminist theory.

She has simply combined issues of race, class, andsexuality into the category of gender oppression.  It can be submitted that postmodern feminists woulddisagree with MacKinnon’s theory of unitary truth. They reject the validity ofgrand theorising and deny the existence of an objective truth.

59 They alsorecognise the contradictory and complex nature of social phenomena. FrancesOlsen submits that there is no consistency in law which would make it entirelymale. She claims that law possesses no unity of purpose and that every humandecision-making is inescapably a mixture of abstract and concrete thinking, ofrationality and compassion.

60 Withregards to statutory rape, she identifies that there is a conflict between women’s sexual liberationand their liberation from exploitation.61She argues for women’s empowerment rather than which right is more important.  She maintains that a minor woman should have control over the decisionby the prosecution as well as extending the rape law provision to underagemales.62 Her approach is significantas she emphasises the indeterminacy of rights, and seek solutions that reflectssocial, political commitments and individual empowerment.In 1989, KimberléCrenshaw, a civil rights advocate and law professor introduced the concept of’intersectionality’.63Intersectional feminism essentially seeks to understand the ways in whichdifferent characteristics intersect with each other to produce differentexperiences. There is a preconceived notion in law with regards to rape thatwhite women are “innocent, faithful, and frail” whilst black women arepromiscuous, and are “asking for it”.

64  Crenshaw arguesthat feminism as a movement tends to involve white women speaking for allwomen, when this should not be the case since clearly due to ingrained racism, blackwomen suffer more discrimination.65 Crenshaw rejects single-axis identity politics.She characterises the ‘postmodern idea’ as a ‘vulgarised socialconstructionism’ that shows power is categorised but unsuccessful inunderstanding the social and material repercussions of this categorisation.

66 She asserts that ‘…mostcritical resistance strategy for disempowered groups is to occupy and defend apolitics of social location rather than to vacate and destroy it’.

67 Foucault is right in asserting that a theory and politics that seesliberty as ‘living in the happy limbo of non-identity’ would only conceal womenof colour.68Intersectionality theorists do not adopt an individualistic orrelativistic feminism. Bell Hooks disapproves of relativistic feminism.69She asserts that feminism should be defined in “political terms” that focuseson collective well-being instead of an individual. She argues for a socialrevolution.

70She denounces feminism as “lifestyle choice” and believes it is a “politicalcommitment”.71Weinrib concludes in his article that it is possible toseparate the juridical from the political. Formalists asserts that judgesshould solve cases solely on legal knowledge, with no regards to externalfactors. However, in reality it is impossible to separate them in everysituation. In fact, to completely ignore external factors might not be ideal asthis would exclude other people from the narrative, often leading to unjustdecisions.

Circumstances vary and there is no coherent structure or rightanswer to each situation. The application of a formally equal standard tounequal people will only subject them to those inequalities continuously. Forexample, a fine would affect a poor person much more than a rich person. The concept of intersectionality allows recognition to the fact that people can be vulnerable to variousforms of bias due to perceived group membership. However, because people belongto multiple groups simultaneously, their intricate identities constructdistinct ways they experience that bias. For instance, men and women canencounter racism differently. Similarly, women of different races can encountersexism differently.

The law is there to protect individualsfrom injustices.  As Eleanor Rooseveltonce said: ‘Justice cannot be for one side alone, but must be for both.’Therefore, judges should develop the law regularly, alongside the economic,social, and technological entities. Only then the needs of everyone can beaddressed accordingly.1 EJ Weinrib, ‘Legal Formalism: On the Immanent Rationality of Law’ (1988) 97(6) YaleL.J. 949, 9552 HStewart, ‘Contingency and Coherence: The Interdependence of Realism and Formalismin Legal Theory’ (1995) 30 Val. U.

L. Rev. 1, 33 RA Posner, How Judges Think (Cambridge,Mass; London: Harvard University Press 2008) 414 BLeiter, ‘Legal Formalism and Legal Realism: What Is the Issue? Legal Theory’,(2010) 16 CUP 111–133.5 EJ Weinrib, TheIdea of Private Law, (OUP, Oxford 2012) 24.

6 EJ Weinrib, (n 1) 959.7 E J Weinrib, (n 1) 9658 E J Weinrib, (n 5) 22 9 E J Weinrib, (n 1) 95910 E J Weinrib, (n 5) 2211 E J Weinrib, (n 5) 2812 EJ Weinrib, (n 5) 25.13 Aristotle, TheBasic Works of Aristotle (Random House by arrangement with OUP 1941)1005–6 (Ethics, Bk V, Ch 2).14 EJ Weinrib, ‘CorrectiveJustice in a Nutshell’ (2002) 52 UTLJ 349, 34915 E J Weinrib, (n 5) 62.

16 E J Weinrib, (n 1) 981.17 ibid 988.18 E J Weinrib, (n 5) 62.

19 E J Weinrib, (n 14)349.20 EJ Weinrib, (n 1) 983.21 ibid 988.22 ibid 98923 EJ Weinrib, (n 1) 993.24 PatrickShaunessy, ‘A Matter of Choice: Rethinking Legal Formalism’s Account of Private LawRights’ (2017) 37 O.J.L.

S. 163, 18525 ibid 18526 E J Weinrib, (n 1) 99027 ibid 99028 ibid 99129 ibid 99130 D G Carlson, DCornell and M Rosenfeld,Deconstruction and the Possibility ofJustice (2nd edn Routledge, 2016)31 ibid 18432 ibid 18433 ibid 18434, LFrancis and P Smith, ‘Feminist Philosophy of Law’, The StanfordEncyclopedia of Philosophy (Winter 2017 Edition) 135 PA Cain, ‘Feminism and The Limits of Equality’ (1989) 24 Ga. L.

Rev 803, 82936 ibid 82937 ibid 83138 FOlsen, ‘Constitutional Law: Feminist Critiques of the Public/PrivateDistinction’, (1993) 10 Const.Commentary 319, 32039 P A Cain (n 35) 83140 P A Cain, (n 35) 83641 CGilligan, In a Different Voice:Psychological Theory and Women’s Development (Harvard University Press,1982)42L Kohlberg, ‘The Development of Modesof Thinking and Choices in Years 10 to 16’ (1958) (Ph.D.dissertation), University of Chicago43 ibid44 Availableat https://ethicsofcare.org/carol-gilligan/accessed 4 January 201845 CMenkel-Meadow, ‘Portia in a Different Voice: Speculations on a Women’sLawyering Process’ in (2013) 1 Berkeley Women’s L.J. 3946 ibid 5047 ibid 5348 E Willis, ‘RadicalFeminism and Feminist Radicalism’, SocialText.

9/10: The 60’s without Apology (1984) 91–11849 KSarachild,’Consciousness-Raising: A Radical Weapon’ in Feminist Revolution,(1975) Available at https://womenwhatistobedone.files.wordpress.com/2013/09/1973-consciousness-raising-radical-weapon-k-sarachild-redstockings.pdf accessed 7 January 201850 C A MacKinnon, Towards a Feminist Theory of the State (HarvardUniversity Press, 1989) 21651 ibid 21652C A MacKinnon, ‘Feminism, Marxism, Method and the State: An Agenda forTheory” (1982) 7 (3) Signs 515 53 C C Smart ‘The Woman ofLegal Discourse’ (1992) 1 SAGE 29, 3254C A MacKinnon, ‘Feminism, Marxism, Methodand the State: Towards Feminist Jurisprudence’ (1983) 8 (2) Signs 63555 C A MacKinnon,’Sexuality, Pornography, and Method: “Pleasure under Patriarchy’ (1989)99(2) The University of Chicago Press 314, 31956 P A Cain (n 35) 83357 C A MacKinnon (n 52)31758 P A Cain (n 35) 83459 P A Cain (n 35) 8360 FOlsen, Feminist Legal Theory: Vol. 1(New York University Press, 1995) 37261F Olsen, ‘Feminist Legal Analysis and Sexual Autonomy:Using Statutory Rape Laws as an Illustration’ (1999) 112 H.L.R.

1065 62 Availableat https://cyber.harvard.edu/bridge/CriticalTheory/critical3.

txt.htmaccessed 10 January 201863 K Crenshaw,’Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique ofAntidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ 1989 U.Chi.Legal F. 13964 ibid 15765 ibid15466 K Crenshaw, ‘ReviewedWork: Critical Race Theory: The Key Writings That Formed the Movement’ (1995)96(5) Columbia Law Review 1363, 37567 KCrenshaw, ‘Mapping the Margins: Intersectionality, Identity Politics, andViolence against Women of Color’ (1991) 43(6) Stan.L.Rev.

1241, 129968 S A Mann and A SPatterson, Reading Feminist Theory: FromModernity to Postmodernity (OUP, United States 2005) 30169B Hooks, Feminist Theory: From Margin toCenter (South End Press, Cambridge 1984) 2370 ibid 2371 ibid 27


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