Post-Modern: cool and hip anti-

Post-Modern Legal Philosophies establishment

Critical Legal Studies

1. False Consciousness
 Crits see law as an unjust social order creating illusion that the system is natural
 CLS scholars have idea there is false consciousness in the law and society
 Meaning political and legal principles demand a specific way of thinking about society
and life
 Which leads to belief that things are how they are because they have to be that way
 Eg: Apartheid laws in South Africa people never questioned way country was
governed because many people believed that type of society was natural
 CLS states society is characterised by hierarchies and violence
 To present picture of society as one happy democratic family is to confuse reality
with fiction
 People who believed in the justice and necessity of socio-economic hierarchies
suffered from false consciousness
 Crits goal: expose false consciousness in order to transform society
 Crits tried to show rules themselves represents interests of rich and powerful (not
ordinary people)
 Used deconstruction to show how ideologies underlying legal doctrines side-lined
alternatives in law and in society
 White people never questioned way society was structured because they were
advantaged by the system
 Claimed that the established socio-economic hierarchies could be destabilised if the
basis of these hierarchies were exposed as fictional

CLS: group of guys at Harvard who

deconstructed the law and referred
to it as thrashing (took the law
apart)

2. Law is politics
 Politics means the pursuit of justice (law is essentially a political enterprise)
 When deciding a case, judge must choose between conflicting interests of society and
his political choice is reflected in the decision he makes
 Rights and entitlements give power over others
 Therefore liberal ideal of freedom to act without harming others cannot be realised
 Judges make decisions based on political decisions
 Jacob Zuma taken to court for corruption, Nicolson Act
Case was bad in law, no need to continue therefore case thrown out
 Case decided because of politics, if Nicolson charged Zuma, no career after
for him (this was because Zuma was president of the ANC and was going to
be president of South Africa)
The above case was decided because of politics, CLS point of view
Secrecy Bill don’t need it, political legislation?

3. Indeterminacy
 Says one thing about the law but then says another (law is contradictory)
 Everyone has a right to practice trade and profession, what about prostitutes?
 Law could not logically determine how a legal dispute should be decided
 Realists argued that legal concepts were indeterminate
 Crits tried to convince students and colleagues that every field of law was
indeterminate
 Crits understood that the task of the post-modern legal scholar is to disrupt and
destabilise hierarchies in society
They saw their task as exposing problems
Then leaving it to a genuine democratic process to solve that problem (this is
a never ending task)
 Crits claimed it was impossible to rationally solve contradiction (Kennedy called this
“fundamental contradiction”)
This fundamental contradiction will again re-appear in the form of
conflicting rules
These contradictions are reflected in law and legal doctrine
 According to the Crits, the origin of indeterminacy of the law was the nature of
human existence itself
 Crits claimed human existence was torn between the self and the other, isolation and
community
 Standards and principles are vaguer and more open-ended, they stem from trust and
love of others and therefore lock human beings into community and altruism

What is feminism?

 Refers to a movement or theory who’s goal was liberation, emancipation and empowerment
of women
 A social and political idea

Feminist Legal Theories

 Have their roots in the feminism movement but cannot be completely associated with it
 FLT are theories of law: deal with adjudication, interpretation and ethics
 Impossible to speak of one feminist theory
  The difference between modern FLT and post-modern FLT has to do with essentialism

Essentialist Feminist Jurisprudence

 Feminism essentialism means that people think that all men and all women have
characteristics that are innate, unchanging and universal
 Eg: They think all women are emotional, talk too much and like pink frilly things
 Eg: Men are all aggressive, like beer and sports
 Share the idea that women and men have essential characteristics that can never change
 In modern legal theory, this idea lead to 2 schools, sameness (liberal) feminism and rational
feminism

1. Sameness Feminism
 Although men and women look different, they are essentially the same
 Men and women differ physically but in thoughts, actions and motivations they are
the same
 This kind of feminism was needed at the time when feminist were fighting for right
to vote, equal pay and equal opportunities
 This kind of feminism was a very effective tool at the time and responsible for many
advances made by women
 However was the area where men and women differed physically that its limitations
became apparent
 Women were denied maternity leave at first because men were not entitled to it
 Since men did not have the right to maternity leave, women couldn’t have it either
 Argued men and women should have the same privileges
 From this difference feminism was born

2. Rational Feminist
 Carol Gilligan claims because of their psychological development, women are
essentially different from men
Gilligan’s most prominent claim that women are different from men because
of their psychological make-up
She claims a males attitude towards others is oppositional
Whereas female attitude is relational (females reach out or relate to each
other)
According to Gilligan, there is a different female voice which leads to a
contrast between the female ethic of care and the male ethic of justice
 Male ethic is individualistic and focuses on autonomy, abstract rules and rights
 Female ethic more concerned with relationships and focuses on taking care of
others
  Boys develop by separating themselves from their mothers and identifying with their
fathers
 Girls develop by identifying with their mothers, don’t experience the same need to
distance themselves from their mothers in order to assume an independent adult
identity
 Rational feminists felt liberal feminism contributed to female oppression because
they adopted a male voice (left no room for female voice)
 Rational feminists: criticise the traditional (male) liberal theories for focusing too
much on rights and not enough on relationships
For them the law deals with the relationships between people (parents,
children and husbands etc)
 Therefore legal thinking should not be based on analysis of rights, but should be
concerned with maintaining and supporting relationships
 The traditional (male) ethic of justice should be replaced with a female ethic of care
 Would like to see court cases be about relationships instead of rights
 However this theory restricts women to the role of rearing children
Therefore stereotyping women and going backwards instead of forwards
PROBLEM WITH RATIONAL FEMINISTS: still essentialist feminism
 From the above, clear there are close similarities between rational feminism and
some strands of communitarianism

Non-essentialist Feminist

 Simone de Beauvoir summed up the non-essentialist position perfectly by saying “one is not
born a woman, one becomes a woman”
 Post-modern feminist distinguished between sex and gender
 Sex is determined by biological and physical factors
 Gender is determined by cultural and societal factors (refers to cultural roles given to men
and women)
 Therefore upbringing determines what you see as appropriate role for men and women
 Why the Constitution prohibits discrimination on the basis of both sex and gender
 Men and women act the way they do because society has determined what they see as
appropriate behaviour
 Masculinity and femininity is not a product of biology, but of social conditioning
 The view of what is feminine differs over time and from society to society
 Most Victorians would regard modern women as hopelessly unfeminine
 Impossible to maintain an essentialist understanding of gender in post-modern feminism
 This kind of feminism relies on many experiences of many women instead of a single
“different voice”
 But consequence of this was fragmentation of feminist theory
 Eg: A white middle-class Afrikaans woman’s experience cannot be the same as a
poor, black rural woman
  Since feminism insists that all women’s experiences are equally valid and valuable, the white
woman cannot speak on behalf of all women

Feminist recap

 How law is a moral construct

 Law prefers men
 Difference Feminism: men and women are different and therefore need their own different
rights

Post-Modern feminist legal thinking found in the work of Mary Joe Frug

 She uses a post-modern analysis to highlight problems with rape and prostitution
 Argues that the law “encodes” the female body with meaning
 Law attaches certain meanings to women’s bodies for the purpose of legal analysis
 This happens in 3 ways:
1. Legal rules mandate the terrorization of the female body
 Women’s bodies are “bodies in terror” (bodies been taught to submit)
2. Legal rules mandate the maternalization of the female body
 Done through rules that force women to become mothers (making
abortions difficult) and punishing those who chose not to be mothers
 Eg: Social grants given to poor mothers, but not to other poor women
3. Legal rules mandate the sexualisation of the female body
 This happens when certain kinds of sexual conduct is prohibited
(prostitution)

Example relating to Mary Joe Frug

 Best kind of example is to look at case of prostitution

 Prostitute’s body is terrorised in the following way :
 Her actions are illegal, therefore not protected by the law
 She has a choice between the risk of assault by her clients and the protection of her
pimp
 She is sexualised because she is to be used and has to submit to that
 Also sexualises other women’s bodies reminded “not to dress like a slut”
 Their bodies are maternalized since prostitution removes sex from marriage
 Sex not for the purpose of procreation (therefore not approved)
 Not about what society thinks, about how the law encourages us to think in certain ways
about women and their bodies
Basic facts of President of the Republic of South Africa v Hugo (case instituted by a man)

 Applicant serving jail sentence when Mandela was inaugurated

 As part of celebration, president freed all women who were sole caretakers of children
under 12 years of age
 Applicant sole caretaker of child under 12, but because he was a man, not released
 Claimed gender discrimination
 Court did not find for applicant but did not base its argument solely on gender
discrimination

Philosophical approaches followed in Hugo’s case

1. Majority judgment (Goldstone J)

 Reason given by president for release was to serve interests of children
 Supporting this by relying on evidence that mothers are generally speaking
responsible for care of small children in our society (no evidence to support this)
 Goldstone: “I see no reason to doubt mothers bear more responsibilities for child-
rearing in our society than do fathers” (this is a generalisation of course)
 Task of rearing children is burdensome, time and money
 Failure by fathers to share the financial and social burden of child-rearing is the
cause of hardship for mothers
Generalisation upon which president relied on
1 of the root causes of women’s inequality in our society
 Majority judgment therefore accepts the gender roles prescribed by society
Eg: Women care for children (even though it accepts that these gender rules
lead to inequality)
 Majority decision used a rational feminist approach to the question of gender
equality

2. Minority judgment (Kriegler J)

 The benefits in this case are to a small group of women, 440 released from prison
 The detriment is to all South African women who must continue to labour under
social view that their place is in the home
 Men must accept that they can have a secondary role in the care of their children
 The traditional and accepted view of women as child-minders is not acceptable
without criticism
 Kriegler: cannot agree that the Constitution permits continuation of major societal
disadvantages