Law, morality and justice: a study in feminist philosophy

Abstract

It is my thesis that Anglo-American legal systems are not impartial, that their law is founded on masculine moral norms and these norms form the basis of the underlying social practices upon which the ideal of equality before the law rests. I take the view that, typically, the moral perspective of women differs from men's in the way Carol Gilligan outlines. I argue that if moral reasoning as represented by Gilligan's "justice perspective" can be shown to be typically masculine moral reasoning and this ethical approach underlies, justifies or legitimates our legal systems, it follows that the law excludes women's moral perspectives, that the law can be said to infringe women's moral and legal right to equality before the law in a way it does not for men. This work examines Gilligan's theory of moral difference and presents evidence of the masculinity of law as evinced through a study of legal practices, customs, judicial observations and specific cases brought before the courts. It analyses the law's masculine bias by way of an appraisal of the structure of social institutions and the law's conception of objectivity. Since my thesis is concerned with concepts of gender, the difficulties involved in classifying 'the masculine' and 'the feminine' are also explored. Overall, the purpose of this work is to challenge the 'reasonableness' of judicial rationality by exposing limits to its precision.