With reference to any two topics you have studied

With mention to any two subjects you have studied on this faculty, see the function if any that you believe morality should play when 1 is turn toing legal issues

The argument environing the existent function that morality may play in turn toing legal issues has been cardinal to the scientific discipline of law. The inquiry of what, if any, function moralityoughtto play is a slightly different one. This essay explores and inquiries the function that morality should play in turn toing two legal issues associating to adult females and the jurisprudence. It does this against the background of different strands of feminism, and with some mention to the argument between natural jurisprudence and legal positivism.

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Morality must necessarily hold some bearing on how we think about feminist legal theory in general, since much of that theory requires us to follow a critical apprehension of the jurisprudence which must be based upon the application of immaterial standards. In peculiar, extremist feminism, which claims that jurisprudence and legal theory are implicitly male, [ 1 ] forces us to hold resort to rational models outside of the jurisprudence in order to decently turn to law’s weaknesss. The Rule of Law itself does non get away this analysis and appellation: extremist women’s rightists claim that the Rule of Law’s purported committedness to values such as neutrality and equality aid to hide itsde factofondness. Broad women’s rightists, on the other manus, would commend such values as enshrined in the Rule of Law, and would alternatively assail single Torahs for being sexist while sing the system as a whole as basically legitimate. Extremist feminism, hence, appears to let for greater resort to morality in measuring ‘legal’ issues. With this in head, allow us see two legal issues which feminist authors have tackled, and inquire in relation to those issues what function morality ought to play in their turn toing them.

Wells analyses the instances of Sally Clark and Angela Cannings from a feminist position. Clark was convicted in November 1999 of slaying her two infant boies. She appealed against her strong belief in 2000, but the entreaty was turned down. Then, in 2003, the Court of Appeal overturned her strong belief [ 2 ] following a referral from the Criminal Cases Review Commission. Her entreaty turned on grounds of serious non-disclosure by the Prosecution diagnostician, together with the deceptive statistical grounds of the Prosecution expert, the baby doctor Professor Roy Meadow. Cannings was besides convicted of slaying her two kids in 2002. Again, the strong belief was based mostly upon the grounds of Professor Meadow. Her entreaty was allowed in 2004. [ 3 ] Commenting on the instances, Wells comments that

‘In Clark’s and Cannings’ successful entreaties, the Court of Appeal’s analysis explainshowthe strong beliefs came approximately. There is no effort, nevertheless, to inquirewhyit was so easy to jump to decisions that now seem so incorrect,whyin each of these instances the condemnable justness system had efficaciously required bereaved female parents to explicate the deceases of their babes. They were in a sense expected to be the “natural” but non the cognizing carers.’ [ 4 ]

In so remarking, Wells implicitly acknowledges the built-in insufficiency of the jurisprudence when it comes to inquiring hard inquiries about itself. Therefore, we see a spark of extremist feminism. The condemnable justness system rests on fabricated premises sing its ain presumed infallibility ; it is immune to external inquiries such as those asked by Wells. One therefore has to look to other systems of norms, such as morality, to acquire to the root of inquiries such as why the condemnable justness system failed Clark and Cannings so severely. Wells contends that ‘Feminist statements are important in get downing to unknot these questions.’ [ 5 ] In peculiar, she argues that the societal concept of adult females as nurturers feeds into our thoughts of what is unwomanly ; with what is bad. She quotes Oakley, who comments that ‘Of all the things adult females are supposed to be, female parents come first.’ [ 6 ] The statement is that the legal system, being implicitly male, reinforced and implemented these basically stereotyped images of adult females ; in the instance of Clark and Cannings, it imposed an indispensable male system of morality onto them, with the consequence that two wholly guiltless adult females were convicted.

In add-on, Wells argues that the ‘increased medicalisation and institutionalisation of reproduction and infant development’ [ 7 ] has farther bolstered the societal stereotype of the good female parent. This in bend affects the jurisprudence, which as a system is receptive to systems of criterions such as medical specialty because of their professed objectiveness ( and hence maleness, as many women’s rightists would reason ) . Therefore, legal developments from the Infanticide Act 1623 to the rise of ‘compulsory motherhood’ have reinforced medical and patriarchal positions of what adult females ought to be. [ 8 ] The latter thought denotes a group of behaviors which are deemed appropriate to good maternity, and into which adult females are expected to come in.

Wells’ contention is that these two value systems – the societal and medical concepts of the ideal ‘motherhood’ – were to clash with lay waste toing effects in the instances of Clark and Cannings. This was because ‘The conditions were laid for female parents both to cognize all about little babes [ the societal ideal ] and yet to cognize nil [ the medical ideal ] .’ [ 9 ] All along, sexual morality had been excluded from the equation, yet it is submitted that it is to morality that 1 must turn in order to understand why Clark and Cannings were wrongly convicted. This is so in portion because the relationship between female parent and kid is a basically moral one. [ 10 ] So morality, it is submitted, must hold a function in oppugning the premises that underpin the jurisprudence. The option is to judge the jurisprudence by its ain criterions, which will give an uncomplete history ofwhythings may travel incorrect, although it may adequately depicthowthey have gone incorrect.

Wells ends her piece on a cautious note: ‘Viewing condemnable jurisprudence and justness through a women’s rightist lens has revealed both profound transmutations and “business as usual”.’ [ 11 ] She presents a position of the condemnable justness system as fluid, but altering merely easy towards ‘a gendered apprehension of condemnable jurisprudence and justice.’ [ 12 ] Possibly this is because it can be hard to suit new moral judgements within a stiff legal system ; it is hard to, in Kelsen’s nomenclature, accommodate norms from a inactive system ( morality ) into a dynamic one ( jurisprudence ) . [ 13 ] One illustration in which this was done, slightly clumsily, is the mode in which the matrimonial freedom from colza was abolished by the House of Lords. In the 1991 instanceR V R, [ 14 ] their Lordships efficaciously abolished the old freedom by judicial decree. [ 15 ] Mindful of the constitutional unfavorable judgments that may hold been leveled against this attack, Lord Keith opined that

‘This is non the creative activity of a new offense, it is the remotion of a common jurisprudence fiction which has become anachronic and violative and we consider that it is our responsibility holding reached that decision to move upon it.’

Therefore, a new moral consensus was forced clumsily into a stiff legal model, intending that despite its commendable moral aim, the determination was criticised for being a bare trespass of Parliamentary sovereignty and a misdemeanor of the rule of legality. [ 16 ] What the determination besides shows, nevertheless, is that although it may be hard for jurisprudence to maintain up with morality, jurisprudence doubtless must, and ought, to be affected by it.

Let us now consider another legal issue that morality may hold a function in turn toing. It is, in a sense, a related legal issue to the 1 examined by Wells, for it has much to make with the trouble of absorbing women’s claims within ‘existing [ legal ] paradigms.’ [ 17 ] The issue itself, nevertheless, is much wider and more theoretical than the unfairnesss suffered by Sally Clark and Angela Cannings: the issue is the overall coherency of feminist theory in reacting to sexism within the jurisprudence. What function is, or ought there to be, for morality in this hard endeavor? As Jackson explains, many of the jobs now facing feminism root from the ‘postmodern assault upon universalism.’ [ 18 ] The job was that feminism focused about entirely on gender differences, while disregarding other of import vectors of inequality such as race, category and gender. The ensuing acknowledgment of these different vectors has given feminism a slightly fractured voice, and the moral coherency of its claim has consequently been eroded.

Furthermore, Jackson argues, over-theorising can befog true women’s voices: the moral claims on which theories seeking equality are grounded. Jackson’s proposed solution is to happen commonalty in the subjugation of adult females without giving in to biological essentialism. Morality, in different pretenses, supports come uping in the signifier of suggestions as to how to unify adult females in these fortunes. Given the disparate experiences of adult females, Jackson suggests that ‘Feminism might so, in practical footings, merely be the grouping together of adult females in state of affairss where gender seems to be the important determiner of an oppressive experience.’ [ 19 ] In this visible radiation, feminism can be seen as a political scheme: if one believes, as Griffith does, that human rights are nil more than political claims, [ 20 ] so the moral force, and so the visibleness, of these claims becomes more compelling if they are grouped together. Jackson implicitly recognises this by proposing possible agencies of delivering feminism from postmodernism: political claims can go unseeable when groups are dissolved, and the moral force of such claims is weakened. In this manner, morality is relevant to the legal job created by postmodernism, for it is merely by recognizing that postmodernism poses a menace to the visibleness and the strength of moral claims that one may get down to explicate possible solutions as Jackson has done. Furthermore, the full exercising involves equilibrating the moral claim that we need to recognize women’s multiplicity of different experiences against the slightly competing moral claim that there is a ‘pure’ feminism that can let adult females to show their subjugation with one voice. [ 21 ]

In decision, this essay has sought to reason non merely that morality should hold a function in turn toing legal issues, but that, nevertheless tangentially, it about necessarily does. Indeed, the necessarily close relationship between jurisprudence and morality led many of the early jurisprudential theoreticians to blend jurisprudence and morality, [ 22 ] or to reason that jurisprudence which was non moral was non truly jurisprudence at all. It has non been an purpose of this essay to reason that this is the instance. On the contrary, this essay has taken a extremely positive stance in its insisting that alleged human rights are in fact merely political ( or lesson ) claims. To state that jurisprudence and morality are closely connected is non to state that they are needfully connected. Yet how are we to do sense of the failures of the condemnable justness system in the instances of Sally Clark and Angela Cannings without analyzing and groking the morality of the mother-child relationship? And how are we to salvage feminism from postmodern atomization without contriving originative solutions to cling different women’s moral claims? In visible radiation of these limited illustrations entirely, it is clear that to deny that morality should hold a function in turn toing legal issues would be to close one’s eyes to the obvious.


The Politicss: Aristotle( translated by T A Sinclair ) ( Hammondsworth: Penguin, 1981 )

M Giles, ‘Judicial Law-Making in the Condemnable Courts: the instance of matrimonial rape’ ( 1992 ) Crim LR 407

J A G Griffith, ‘The Political Constitution’ 42MLR1

E Jackson, ‘Contradictions and Coherence in Feminist Responses to Law’ ,Journal of Law and SocietyVol 20 No 4 ( 1993 )

N S Jecker, A R Jonsen and R A Pearlman,Bioethicss: An Introduction to the History, Methods and Practice2nd edition ( Jones and Bartlett, 2007 )

H Kelsen,General Theory of Law and State( New Brunswick, NJ: Transaction Publications, 2006 )

N Lacey and C Wells,Reconstructing Condemnable Law: Text and Materials( 2nd erectile dysfunction, London: Butterwroths, 1998 )

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

A Oakley,CapableWomans( Fontana, London, 1981 )

Olsen, ‘Feminism and Critical Legal Theory: An American Perspective’ 1International Journal of the Sociology of Law( 1990 )

C Smart,LawCrimeandSex( Sage, London, 1995 )

C Wells, ‘The Impact of Feminist Thinking on Criminal Law and Justice: Contradiction, Complexity, Conviction and Connection’ ,Criminal Law Review2004


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