Sexist implications of law’s fidelity to science and reason
University of British Columbia
Master of Laws - LLM
The central thesis concerns rationality, scientificity, and sexism in criminal law, and egalitarianism in constitutional law. It is proposed that sexism in criminal law results from the rationalistic and scientific biases of criminal law practice and discourse. Rationality bears an historical, cultural, and epistemological association with masculinity. Psychoanaltyic theory and clinical observation reveals that (at least within patriarchal society) the process of childhood 'separation', whereby male children effectively begin to identify with their fathers and to distance themselves emotionally from their mothers, entails a form of rejection of the values of empathy, nurturance, caring, and attachment commonly associated with motherhood and femininity. The sociological detachment of the father from the mother and the child becomes synonymous with masculinity, and this kind of masculine detachment is idealized and reflected in the privilege which our culture pays to the categorical and epistemological divisiveness of rationality. On the other hand, the emotional attachment which the mother displays for her children and the father becomes synonymous with irrationality or mere sensuality, and this dimension of human life is undervalued or perceived as something which must be tamed and controlled. This thesis proposes that criminal law attempts to ensure that female sexuality is always kept under control. Religion and science play comparable roles in the cultural denigration of female sensuality to the extent that both institutions pay greater respect to the creative powers of the human mind than to the procreative implications of the female body. Law is complicit in this hierarchical arrangement insofar as it purports to derive its moral authority ultimately from the will of the heavenly father while at the same time attempting to avoid the sight of the earthly female body in any way but through ascientific lens. Criminal law practice follows traditional scientific forms of fact-finding (e.g the empirical method) and it purports to arrive at objective truth through the adversarial method of litigation. Its standard of proof is "proof beyond a reasonable doubt" or Cartesian certainty. Criminal law discourse purports to be rational to the extent that its rhetorical legitimacy depends on a self-perceived internal, doctrinal logic. Moreover, criminal law discourse privileges rationality insofar as it routinely employs normative tests involving "reasonable persons" or "reasonableness". Criminal law also helps to preserve a sexist status quo through the way it regulates indecency and pornography. Law hastended to treat pornography as a matter of morality, not as a form of sexual politics or as a misogynistic social practice. And pornographic culpability becomes determined by privileged scientific paradigms (e.g. causality) and scientific standards of proof (certainty). Another way in which law interprets female sexuality in ascientific way is its application of egalitarian doctrine to constitutional issues involving sex discrimination. Here the law treats human sexuality in general as a mathematical problem, or as a matter of quantitative analysis. This categorical approach has tended to be phallocentric in the sense that it typically has focussed on the male sex organ as the proper reference for defining, measuring, and determining sexual difference - and ultimately sexual discrimination. Law is patriarchal by definition but our acculturated association of masculinity and paternity with rationality may well be contingent. Law reform that would liberate women from male domination depends therefore on the possibility of a reduction in laws which purport to regulate human sexuality, and a culture-wide recognition of the distorting tendencies of scientific thinking and methodology. The Supreme Court of Canada Butler decision may be seen as a legal catalyst toward the latter kind of recognition but more is obviously needed, such as a greater feminine self-awareness among men and an increased presence of women and mothers in traditional political positions.
Law, Peter A. Allard School of