What Next, there is an immanent intelligibility of

What are the different types of relationship
that law might have with others, such as justice, politics, and economics? We
start by looking at whether the law has specific qualities that differentiates
them from other sets of rules. Ernest Weinrib submits that there is an
‘immanent moral rationality’ made possible through legal formalism. 1 This phrase brought
up three distinct issues. First, the purpose of law is separate from political
justification. Next, there is an immanent intelligibility of the law. In simpler
terms, law is internally coherent. Thirdly, there is a moral dimension to law’s
rationality, which derives from Immanuel Kant’s theory of right.

Borrowing Hamish Stewart’s phrase to define legal formalism, it is ‘…the
tendency to understand law from within…to seek an explanation of legal doctrine
that makes sense of the conceptual structure of the law without reference to
external purposes.’2 This
has led to formalism being labelled as an ‘autonomous discipline’.3 This
suggests that judges decide cases in a robotic and mechanical manner by deeming
all normative issues as irrelevant.4

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Weinrib’s fourth distinctive feature of his theory of formalism is
integration. He stated, ‘…characterize the law are not disjointed attributes
contingently combined, but mutually connected aspects of a single complex.’5
Hence, a vital feature of the formalist notion of ‘form’ is the principle of
unity. The relationship between form and content is an essential concept in
legal formalism. Weinrib submits that those two are ‘correlative and
interpenetrating’.6
Content would be unintelligible if it had no determinacy hence ineffective to
have any form.7
Therefore, form has three connecting features: character, genericity, and
unity.8
Character is the key attributes of something that helps define it.9
Genericity is the ability to categorise something into a group.10
Unity connects the different attributes under a single, coherent structure.11

Formalism is also concerned with the internal structure of juridical
relationships, and its impact with other legal forms.12 Weinrib identifies two
forms of justice which he drew upon Aristotle’s discussion: distributive and
corrective.13
They both focus on equality but they contrast on how they interpret it.14
According to Weinrib, distributive justice ensures an equality of ratios.15
They are characterised as ‘benefits’ or ‘burdens’ and these distributions need
not be tangible.16 He
submits that distributive justice is influenced by politics and external
factors.17 He
argues that it differs from corrective justice which is non-instrumental.

Corrective justice is marked by a balance of quantities for transactions
between individuals. They can also be intangible.18 Weinrib defines it as ‘the
idea that liability rectifies the injustice inflicted by one person on
another’.19 He
argues that the two forms of justice are ‘mutually irreducible’ and cannot
assimilate with each other.20
Weinrib postulates that ‘distributive justice is the home of politics’.21 The
juridically form of it is to effect just distributions. He argues that it
suggests that a political power must ‘define and particularise the scope of any
scheme of distribution.’22
Thus, he submits that it is partly instrumental. However, he argues that a
formalist’s corrective justice is not influenced by politics.23 For
a formalist, the immanent purpose of corrective justice will be disrupted by
externally imposed ends.

There will be instances where these two will intersect and what must be
considered is whether this would impact the possibility of a non-instrumental
form of private law. For instance, in negligence, the concept of duty of care
is essential to establish liability. But to establish a novel duty of care or
slightly changing the scope of an existing duty will change the entire premise
of liability.24
The application of policy considerations blindly will alter the law of
negligence making it incoherent.25
The fundamental thing is to strike the correct balance between rights and their
corresponding duties to successfully attain justice under distributive justice.

Weinrib argues that ‘although distributive justice requires politics, it
is not reducible to it’.26
Distributive justice demands that juridical relationships adapt to the
proportional equality required by the selected criterion.27 He argues that there is a
conceptual personhood in distributive justice and of equality that limits all
juridical relationships that falls in the ambit of that form of justice.28 He
asserts that the imposition of political constraints on the legislative and
administrative process is unsuccessful due to the concept of personhood and
equality.29

Gray Carlson criticises Weinrib’s postulations.30 He submits that Weinrib’s
apparent ‘depoliticization of the forms of justice is achieved through the
privileging of a particular ideological vision’ that does not escape political
debate.31 He
also submits that between the two forms of justice there is no need for an
‘insurmountable gap’.32 It
is clear that the relationships under corrective justice must be mediated,
after taking into account all the relevant factors. Thus, he maintains that
there cannot be a total separation between politics and corrective justice as
Weinrib submitted.33

A feminist would take a different approach from a formalist. In the
beginning, feminists were primarily concerned with issues such as winning
equality and emancipation. Feminism challenges the alleged neutrality of the
treatment of women in law. Contemporary feminists drew philosophy from
different scholarly ideas such as critical legal studies (CLS), postcolonial
theory, race and queer theories.34

Feminism goes further than just women’s issues. What started out as a
political and social struggle, is now focusing on how the law operates, how it
is used to oppress women, and its capability to reverse this oppression. It
provides a perceptive evaluation of the law’s claims about its neutrality by
challenging these claims to show how they are used to not only conceal but also
condone oppression in society. Hence, they mirror the Marxist and CLS critique
by developing a more in-depth perspective regarding the dynamics between law
and power. Feminists often view the law as a double-edged sword. Although
useful, 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 from
the late 18th century until the 1960s. The main premise of liberal
feminism is that women and men are equal. Therefore, it argues that men and
women should not be treated differently and be given the same rights.35 Some
popular liberal feminists include Mary Wollstonecraft36,
Naomi Wolf and J.S Mill. Liberalism is an influential political outlook
predominantly in the Western world which argues that an individual is a
rights-bearer which must be respected by the law and State. As the voiceless
men began to fight for liberty and democracy, the women also made the same
demands.

In liberal feminism, however, there is
no evaluation of the nature of law and how its operation perpetuates gender
oppression. Law itself was seen as unproblematic as all that was needed was to
change specific legal rules. Liberal feminists seek to extend political, social
and economic rights. They do not question the basis on which social benefits
were issued but merely fought for equal rights to them.37

Liberal feminism is based on the equality of individuals
to equal treatment under the law and State. Hence it requires law to be
sex-blind. Under liberalism, each person is autonomous and regards human social
relationships as a matter of choice. The public realm such as employment and
trade are distinguished from the private realm of family and friendship where
it would be inappropriate for the law and the State to intervene.38 Thus, for
the longest time, domestic violence was regarded as a private matter.

This perpetuates the deeply ingrained sexism in applying
the law relating to private affairs which can diminish the exercise of rights
in the public arena. It seems that liberalism only gives women equal rights as
long as they act like men.39 However,
there are gender specific problems in which the differences between men and
women cannot be ignored such as reproductive capability. Thus, treating men and
women differently need not mean treating them unequally.

Difference feminism argues that the law should not only
recognise the differences between men and women but should celebrate them. It
argues that the law should adapt to include women on the basis of their
different characteristics.40

Carol Gilligan has paved a way for a feminist
psychological theory of morality.41 She
criticises Lawrence Kohlberg’s six stages of moral development theory, as
Kohlberg’s theory only included an all-male sample which reflects a male
definition of morality. In his final stage of moral development, he submits
that morality is a matter of being objective, based on impersonal judgments
about rights.42 Gilligan
argues that this is a masculine mode of thinking. Morality for men is based on
abstract principles of law which she calls an ethics of justice. She submits
that there is another way of moral thinking that focuses on the concrete needs
of others which she calls an ethics of care. Kohlberg, however, degrades this
mode of moral thinking to stage three of his developmental model.43

This can be contrasted with the formalist approach that
argues the law can be separated from external influences. Gilligan submits that
in applying the rules, the ethics of care is equally important. She states in
an 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 in
relationships. Different voices then become integral to the vitality of a
democratic society.’44

Carrie Menkel-Meadow has examined the impact of the
ethics of care in the legal practice.45
She argues that the adversarial system of justice is masculine.46 Women are
inclined to be more concerned with concrete circumstances than abstract ideas.
Thus, they consider all the relevant facts to come up with the best solution
for everyone involved. Hence, this encourages negotiation to solve legal
problems.47 Gilligan
does not submit that one mode of moral thinking is better than the other, but
rather that the ethics of care should be placed alongside the ethics of justice
in deciding cases.  She argues that women
have a different perspective and feminists need to ensure that this perspective
is appreciated.

Radical
feminism emerged alongside liberal feminism in the 1960s. It started in the
United States, followed by the United Kingdom and then Australia. Pioneers of
this feminism include Shulamith Firestone and Kathie Sarachild. Radical
feminism asserts that all structures of societies are set up to encourage the
exploitation of women by men.48 The
apparent neutrality of law is fictitious, concealed by the State by promoting
‘equality of all persons’. The advocation of liberalism also develops a ‘false
consciousness’ amongst women which influences them into thinking that they are
free.

This
leads to the concept of ‘consciousness raising’ (CR). It results from the
dominance of men in any setting, resulting in women being isolated from each
other politically. These CR groups brought women together in developed Western
countries to share their experiences. They came to the conclusion that they all
shared an oppressive system despite their social class or political affiliation
and the only way to solve this is by ending the patriarchal system.49

Catherine
MacKinnon has been the most instrumental voice for radical feminism. She has
influenced many female lawyers and activists. She argues that there are no
significant inherent differences between men and women.50 The only distinction is
that the patriarchal system dominates the lives of women in a sexual manner. 51
Mackinnon drew an analogy where she found similarity between Marxism and
feminism. She states, ‘sexuality is to feminism, what work is to Marxism: that
which is most one’s own, yet most taken away.’52

The
central feature of MacKinnon’s theory is that all women are oppressed through
their sexuality. She argues that the State is predominantly male.53
Hence, the State mirrors the male perspective despite law’s alleged neutrality.
She drew an analogy between the State and men, where the State is the highest
manifestation of power relations in society, while men have power both
physically and socially. As a reflection of male power, the law enforces rights
which legitimise the male’s perception of the world.

MacKinnon analysed rape law where she
asserted that law continuously adopts a male point of view regarding sexual
experience, therefore unable to accommodate women’s experience of rape. 54 The
language of sex in society reveals that our understanding of the relation of
men to women is that men are an active subject, and women are passive – he
‘does it’ 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 view
rape as only a paradigm of a violent attack by a stranger, in dark alleys
accompanied by bruises and torn clothes. When in reality, rape can occur in the
form of coercion by husbands, fathers, ‘date rape’, or through the use of
economic or other types of power to get sex.

The law is viewed from a male’s
perspective and this perspective becomes an objective reality.56 This leads to men objectifying women into
tools for their own sexual pleasure, ignoring that women are humans in their
own right. For instance, women in pornography are portrayed as collections of
body parts for men to fantasise about. According to MacKinnon, the
eroticisation of violence and submission in pornography encourages the ideology
in which women are understood to find male force sexually attractive, and in
which consent is not important.57

Radical feminism differs greatly from formalism.
MacKinnon maintains that behind the apparent neutrality of the law, it is male
and is most tyrannical towards women when it claims to be sex blind. It is
impossible to separate the law from politics. She also argues that even though
the law were to achieve neutrality and objectivity, it might not be beneficial
as this would not reflect reality. Hence, she argues for legal reform to stop
enslaving women to men’s needs.58 However,
MacKinnon’s theory has loopholes as she assumes that all women have similar
needs and experiences. The truth is, women face discrimination differently
depending on their race, religion, and sexuality, which cannot be unified into
a single feminist theory. She has simply combined issues of race, class, and
sexuality into the category of gender oppression. 

It can be submitted that postmodern feminists would
disagree with MacKinnon’s theory of unitary truth. They reject the validity of
grand theorising and deny the existence of an objective truth.59 They also
recognise the contradictory and complex nature of social phenomena. Frances
Olsen submits that there is no consistency in the law which would make it
entirely male. She claims that law possesses no unity of purpose and that every
human decision-making is inescapably a mixture of abstract and concrete
thinking, of rationality and compassion.60
With regards to statutory rape, she identifies that there is a conflict between women’s sexual liberation
and their liberation from exploitation.61
She argues for women’s empowerment rather than which right is more important.  She maintains that a minor woman should have control over the decision
by the prosecution as well as extending the rape law provision to underage
males.62 Her approach is significant
as she emphasises the indeterminacy of rights, and seek solutions that reflect
social, political commitments and individual empowerment.

In 1989, Kimberlé
Crenshaw, a civil rights advocate and law professor introduced the concept of
‘intersectionality’.63
Intersectional feminism essentially seeks to understand the ways in which
different characteristics intersect with each other to produce different
experiences. There is a preconceived notion of law with regards to rape that
white women are “innocent, faithful, and frail” whilst black women are
promiscuous, and are “asking for it”.64  Crenshaw argues
that feminism as a movement tends to involve white women speaking for all women
when this should not be the case since clearly due to ingrained racism, black
women suffer more discrimination.65

Crenshaw rejects single-axis identity politics.
She characterises the ‘postmodern idea’ as a ‘vulgarised social
constructionism’ that shows power is categorised but unsuccessful in
understanding the social and material repercussions of this categorisation.66 She asserts that ‘…most
critical resistance strategy for disempowered groups is to occupy and defend a
politics of social location rather than to vacate and destroy it’.67 Foucault is right in asserting that a theory and politics that sees
liberty as ‘living in the happy limbo of non-identity’ would only conceal women
of colour.68

Intersectionality theorists do not adopt an individualistic or
relativistic feminism. Bell Hooks disapproves of relativistic feminism.69
She asserts that feminism should be defined in “political terms” that focuses
on collective well-being instead of an individual. She argues for a social
revolution.70
She denounces feminism as “lifestyle choice” and believes it is a “political
commitment”.71

Weinrib concludes in his article that it is possible to
separate the juridical from the political. Formalists assert that judges should
solve cases solely on legal knowledge, with no regards to external factors.
However, in reality it is impossible to separate them in every situation. In
fact, to completely ignore external factors might not be ideal as this would
exclude other people from the narrative, often leading to unjust decisions.
Circumstances vary and there is no coherent structure or right answer to each
situation. The application of a formally equal standard to unequal people will
only subject them to those inequalities continuously. For example, 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 various
forms of bias due to perceived group membership. However, because people belong
to multiple groups simultaneously, their intricate identities construct
distinct ways they experience that bias. For instance, men and women can
encounter racism differently. Similarly, women of different races can encounter
sexism differently. The law is there to protect
individuals from injustices.  As Eleanor
Roosevelt once 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 be addressed accordingly.

1 E
J Weinrib, ‘Legal Formalism: On the Immanent Rationality of Law’ (1988) 97(6) Yale
L.J. 949, 955

2 H
Stewart, ‘Contingency and Coherence: The Interdependence of Realism and
Formalism in Legal Theory’ (1995) 30 Val. U. L. Rev. 1, 3

3 R
A Posner, How Judges Think (Cambridge,
Mass; London: Harvard University Press 2008) 41

4 B
Leiter, ‘Legal Formalism and Legal Realism: What Is the Issue? Legal Theory’,
(2010) 16 CUP 111–133.

5 E
J Weinrib, The
Idea of Private Law, (OUP, Oxford 2012) 24.

6 E
J Weinrib, (n 1) 959.

7 E J Weinrib, (n 1) 965

8 E J Weinrib, (n 5) 22

 9 E J Weinrib, (n 1) 959

10 E J Weinrib, (n 5) 22

11 E J Weinrib, (n 5) 28

12 E
J Weinrib, (n 5) 25.

13 Aristotle, The
Basic Works of Aristotle (Random House by arrangement with OUP 1941)
1005–6 (Ethics, Bk V, Ch 2).

14 EJ Weinrib, ‘Corrective
Justice in a Nutshell’ (2002) 52 UTLJ 349, 349

15 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 E
J Weinrib, (n 1) 983.

21 ibid 988.

22 ibid 989

23 E
J Weinrib, (n 1) 993.

24 Patrick
Shaunessy, ‘A Matter of Choice: Rethinking Legal Formalism’s Account of Private Law
Rights’ (2017) 37 O.J.L.S. 163, 185

25 ibid 185

26 E J Weinrib, (n 1) 990

27 ibid 990

28 ibid 991

29 ibid 991

30 D G Carlson, D
Cornell and M Rosenfeld,
Deconstruction and the Possibility of
Justice (2nd edn Routledge, 2016)

31 ibid 184

32 ibid 184

33 ibid 184

34, L
Francis and P Smith, ‘Feminist Philosophy of Law’, The Stanford
Encyclopedia of Philosophy (Winter 2017 Edition) 1

35 P
A Cain, ‘Feminism and The Limits of Equality’ (1989) 24 Ga. L. Rev 803, 829

36 ibid 829

37 ibid 831

38 F
Olsen, ‘Constitutional Law: Feminist Critiques of the Public/Private
Distinction’, (1993) 10 Const.Commentary 319, 320

39 P A Cain (n 35) 831

40 P A Cain, (n 35) 836

41 C
Gilligan, In a Different Voice:
Psychological Theory and Women’s Development (Harvard University Press,
1982)

42
L Kohlberg, ‘The Development of Modes
of Thinking and Choices in Years 10 to 16’ (1958) (Ph.D.
dissertation), University of Chicago

43 ibid

44 Available
at https://ethicsofcare.org/carol-gilligan/
accessed 4 January 2018

45 C
Menkel-Meadow, ‘Portia in a Different Voice: Speculations on a Women’s
Lawyering Process’ in (2013) 1 Berkeley Women’s L.J. 39

46 ibid 50

47 ibid 53

48 E Willis, ‘Radical
Feminism and Feminist Radicalism’, Social
Text. 9/10: The 60’s without Apology (1984) 91–118

49 K
Sarachild,’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 2018

50 C A MacKinnon, Towards a Feminist Theory of the State
(Harvard University Press, 1989) 216

51 ibid 216

52
C A MacKinnon, ‘Feminism, Marxism, Method and the State: An Agenda for
Theory” (1982) 7 (3) Signs 515

53 C C Smart ‘The Woman of
Legal Discourse’ (1992) 1 SAGE 29, 32

54
C A MacKinnon, ‘Feminism, Marxism, Method
and the State: Towards Feminist Jurisprudence’ (1983) 8 (2) Signs 635

55 C A MacKinnon,
‘Sexuality, Pornography, and Method: “Pleasure under Patriarchy’ (1989)
99(2) The University of Chicago Press 314, 319

56 P A Cain (n 35) 833

57 C A MacKinnon (n 52)
317

58 P A Cain (n 35) 834

59 P A Cain (n 35) 83

60 F
Olsen, Feminist Legal Theory: Vol. 1
(New York University Press, 1995) 372

61
F Olsen, ‘Feminist Legal Analysis and Sexual Autonomy:
Using Statutory Rape Laws as an Illustration’ (1999) 112 H.L.R. 1065

 

62 Available
at https://cyber.harvard.edu/bridge/CriticalTheory/critical3.txt.htm
accessed 10 January 2018

63 K Crenshaw,
‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of
Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ 1989 U.Chi.Legal F. 139

64 ibid 157

65 K
Crenshaw, (n 63) 154

66 K Crenshaw, ‘Reviewed
Work: Critical Race Theory: The Key Writings That Formed the Movement’ (1995)
96(5) Columbia Law Review 1363, 375

67 K
Crenshaw, ‘Mapping the Margins: Intersectionality, Identity Politics, and
Violence against Women of Color’ (1991) 43(6) Stan.L.Rev. 1241, 1299

68 S A Mann and A S
Patterson, Reading Feminist Theory: From
Modernity to Postmodernity (OUP, United States 2005) 301

69
B Hooks, Feminist Theory: From Margin to
Center (South End Press, Cambridge 1984) 23

70 ibid 23

71 ibid 27

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