Postmodern and Feminist Theories of Law and Justice

Objectives

On successful completion of this module, you should be able to demonstrate –

LO1: Knowledge of (d) major postmodern and feminist theories of law and justice

LO3: Thinking skills

1. Identify and articulate major postmodern and feminist explanations and critiques of legal issues
2. Comprehend major materials of postmodernism and feminism
3. Apply reasoning and research relating to postmodern and feminist theories of justice to generate appropriate responses to legal issues

Learning resources

Ratnapala, 263–300

Selected Reading 12.1: J Derrida, ‘Force of Law: The Mystical Foundation of Authority” (1990) 11 Cardozo Law Review 1613.

Prepare answers to all three questions

Derrida

Consider Derrida’s approach carefully.  Ratnapala poses the question, if ‘texts’ is all that there is, how do we know this?  How would you answer this question?

Feminism

The following problem relates to questions 2 and 3.

In the Local Court in Balmain, NSW, four women were charged with defacing a billboard that advertised Berlei underwear.  The image was of a woman in her underwear being sawn in half. The advertiser’s slogan read ‘You’ll always feel good in Berlei’.  Underneath that, the four defendants had added ‘Even if you’re mutilated’.

The charges were heard by the local magistrate, Pat O’Shane.  Ms O’Shane dismissed the charges, and said:

Let me say this. Women are subjected to violence daily, if not hourly, if not by the minute. It is no accident in a society dominated by males that we get this kind of advertising that is depicted in these photographs. It is no accident that we do not see similar depictions of men being disembodied, dismembered and it is no accident therefore, in fact it flows indeed, that we have laws framed … to protect the property of a male dominated society. The real crime in this matter was the erection of these extremely offensive advertisements. Let nobody be under any misapprehension about it. And what redress does 51 per cent of the population have? Absolutely none. Not only because of that male dominance in the fields that I have just indicated, but also because of the massive power that is exercised through huge financial resources. It is an absolute outrage and I am enraged to find myself in a position where I have to deal with four women who have taken the action which they did on this particular occasion which they felt justified in taking and I don’t for one moment accept that they were misguided in their actions and I don’t for one moment accept that they were engaged in some kind of idealistic prank. We have a very, very sorry society indeed when these women can be brought before this court for this sort of thing in the light of the depictions which I find in the photograph of that particular advertisement. We live in a society where at least one and possibly more judicial officers can actually state to the world that the law will condone violence towards women. What sort of world are we creating for ourselves? Ladies, you are excused.

Extracted from Margaret Davies, Asking the Law Question: The Dissolution of Legal Theory (2nd ed, 2002) 110–11.

What political or philosophical assumptions underlie Ms O’Shane’s decision? Do you agree that, if Ms O’Shane believed that the result was just, she could decide the case as she did?