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Law Is A Gendered Institution And How Legal Judgements Reflect The Gendered Nature Of The Institution.

2053 words - 8 pages

This essay analyses the ways that the law is a gendered institution and how legal judgements reflect the gendered nature of the institution. First, I will examine the nature of law. Second, I will examine feminists' perspectives of law in areas such as contracts, torts, lands, criminal, and family laws. Third, I will show that judges are gender-bias in the legal system by examining into several law cases. Then, I will discuss how judges translate their everyday activities into verdicts. Finally, I will discuss the ways to achieve equality for women in law.Feminists argue that there is no possible space in law for women (Carol Smart 1989, as quoted in Bottomley 1996: 1). As Catharine MacKinnon (1983, quoted in Graycar 1995: 267) argues that feminist jurisprudence is centrally concerned with the male norms that have been so central to legal reasoning, and with the epistemological standpoint from which law operates.Today, women still do not play more than a token part in jury duty. According to Leo Kanowitz (1969, quoted in Lefcourt 1971: 107), 'Fifteen states allow exemptions to women on the basis of their sex alone, while twelve more allow exceptions to women for reasons not available to men, such as child care problems or lack of ladies' rooms in the courthouse'. Women are totally excluded from the practice of law as lawyers and the whole legal apparatus as judges, jurors, and litigants until the present century (Lefcourt 1971: 106). This indicates that the role of judging is gendered and implicitly male. Next, I will prove that law is phallogocentric (male norm) by looking at several cases in the following paragraphs.Bottomley (1996: 5) notes that feminist legal theory has approached the law of contracts in terms of a great polarity between the market and the family. Contract and the market are seen as coextensive. However, the market sphere is also male in its monopoly.According to Lefcourt (1971: 108), under the English law of 'coverture', the husband and wife were 'one'. As Justice Black states in United States v Yazell (1966), 'the one is the husband'. As Cobbe (Brophy and Smart 1985: 10) notes, 'the notion that a man's wife is his property, in the sense in which his horse is his property...is the fatal root of incalculable evil and misery'. According to historical doctrine, women lose their legal existence upon marriage (Lefcourt 1971: 108). As M Hale (1736, quoted in Bottomley 1996: 8) notes in the case of R v R, a husband cannot be guilty of a rape committed by himself upon his lawful wife because the wife has given up herself to her husband through their mutual matrimonial consent and contract.Tort law continues to be problematic from a feminist point of view because the goals of tort law do not include the achievement of equality or distributive justice(Bottomley 1996: 70). As Martha Chamallas (1990, quoted in Bottomley 1996: 72) states, 'the law has often failed to compensate women for recurring harms - serious though they may be in...

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