During the last 25 years, rape law has undergone a profound transformation, as the articles in this symposium clearly show. To mention just three of the more striking doctrinal reformations: All states have repealed the most egregious aspects of die marital rape exception; most have abandoned the “utmost resistance” requirement; and all have enacted rape shield laws to protect complaining witnesses from intrusive inquiries into their sexual history. All three reforms were the product of feminist agitation, all three were aimed (...) toward the general end of redirecting rape law toward the protection of women's, rather than men's, interests, and all three did, to some degree, broaden and democratize the scope of the law's protection: Wives, prostitutes, promiscuous girls, and women not inclined to risk their deaths by fighting off their rapists “to the utmost” are now protected by the law of rape against sexual assault, at least in theory, and at least to the same degree as non-wives and non-prostitutes, fighters, and virgins. All of this, virtually every contributor to this symposium agrees, is very much to the good. (shrink)
Rights brings together the most influential essays of the last thirty years critiquing and defending the liberal rights tradition. Modern 'rights critics' have focused on the perceived conflict between liberal rights and progressive or egalitarian political objectives, the preference of liberal states for negative over positive rights and also the dangers to community of the overly atomistic conception of human nature, which is arguably at the heart of the liberal rights tradition.
Resurrecting the neglected question of what we mean by legal justice, this book seeks to re-imagine rather than simply critique contemporary notions of the rule of law, rights and legal equality. A work of reconstruction, it offers a progressive and egalitarian approach to concepts that have become overly associated with the idea of limited government and social conservatism. Focusing on the necessary conditions of co-operative community life, the book presents a vision of law that facilitates rather than frustrates politics, an (...) anlysis of rights that boosts our capacities for caring, and an idea of equality that captures a cosmopolitan vision based on the recognition of shared humanity. (shrink)
This book's thirty essays explore philosophically the nature and morality of sexual perversion, cybersex, masturbation, homosexuality, contraception, same-sex marriage, promiscuity, pedophilia, date rape, sexual objectification, teacher-student relationships, pornography, and prostitution. Authors include Martha Nussbaum, Thomas Nagel, Alan Goldman, John Finnis, Sallie Tisdale, Robin West, Alan Wertheimer, John Corvino, Cheshire Calhoun, Jerome Neu, and Alan Soble, among others. A valuable resource for sex researchers as well as undergraduate courses in the philosophy of sex.
All of us are entitled to the protections of law against violence, to a high quality education, to decent employment that respects our dignity, and to necessary assistance with our caregiving. Our civil rights are our rights to the protections of ordinary law - not constitutional law, and not only antidiscrimination law - that will ensure that we can participate in civil society, and hence lead flourishing lives. In this innovative work, Robin L. West looks back to nineteenth-century Civil Rights (...) Acts to argue that the point of civil rights law is not only non-discrimination, but also to assure that all of us receive the protection of legal rights that promote human flourishing. Since the 1960s, Supreme Court decisions on civil rights issues have focused on non-discrimination and thus have 'hollowed out' this broader meaning of civil rights law. This book reconceives civil rights as a set of legal guarantees that all will be included in the legal, political, economic and social projects central to civil society. (shrink)
This book brings together academics, legal practitioners and activists with a wide range of pro-choice, pro-life and other views to explore the possibilities for cultural, philosophical, moral and political common ground on the subjects of abortion and reproductive justice more generally. It aims to rethink polarized positions on sexuality, morality, religion and law, in relation to abortion, as a way of laying the groundwork for productive and collaborative dialogue. The book will be valuable to anyone interested in law and society, (...) gender and religious studies and philosophy and theory of law. (shrink)
This collection reflects the profound impact of Martha Nussbaum's philosophical writings on law and legal scholarship. The range of topics covered include the nature of the emotions, the capabilities approach to welfare, the demands of global feminism and constitutionalism, and the role of narrative and literature in our political and legal lives. Taken together, along with the introduction by the editor, the essays collected in this volume demonstrate the far-reaching impact of Nussbaum's philosophical oeuvre.
What does it mean to be truly human? And, relatedly, what does it mean to be treated as truly human, and with dignity, by the state, or community, of which one is a part? To be fully human, Martha Nussbaum has argued for the better part of two decades, and argues in greater detail in “Women and Human Development”, is not only to be rational, and not only to be happy, but also to be capable - capable, for example, of (...) loving others, of thinking rationally about one's own life, of engaging in dignified labor, of interacting with the natural and political environment, of participating in a society's cultural life. A truly human life is defined by, or perhaps constituted by, these capabilities; to lack anyone of them is in some way to lack a fundamental pillar of one's humanity. Therefore, she continues, a citizen in a constitutional government is treated as fully human by the state when that person's fundamental capabilities - the capabilities which define her humanity - are, at least minimally, protected, promoted or nurtured by the state's governing authorities. Constitutional governments, then, whatever else they do, must protect, promote, or create whatever conditions are necessary for citizens to possess these fundamental capabilities... I will highlight and then amplify what I think is missing or underplayed in Nussbaum's treatment of capabilities and women, and that is the role that authority plays - and the role it should and should not play - in guiding states toward a recognition of their obligation to nurture, promote, or protect women's - and men's and children's - human capabilities. (shrink)
This essay is in the spirit of a friendly amendment. I have found Shklar's central arguments to be more compelling every time I have reread this book over the last twenty years. Nevertheless, I want to argue in this essay that in spite of Legalism's strengths, Shklar's core anthropological claim about the profession - more often asserted, rather than argued, throughout the book - that legalism, the attitudinal glue that binds lawyers professionally, consists of a commitment to the morality of (...) rule abidance - is flawed, not because it is wrong, but because it is underinclusive. While legalism consists of something like what she described, it is by no means only that... My second point, which I will take up very briefly toward the end of this essay, is that a fuller account of ideological legalism also casts the central normative question Shklar raised, regarding the appropriateness of legalism in international affairs, particularly in times and matters and questions of war, in a different light. If legalism consists of only a commitment to the morality of playing by the rules, then it does seem oddly inappropriate in the international arena. (shrink)
In Part I this essay explores and then criticizes the two major arguments behind the conventional wisdom that rights undermine efforts to secure a state role in ensuring the material preconditions for a good society, and therefore, the material preconditions for the development of those human capabilities essential to a fully human life. I conclude in this part that this understanding of rights is mistaken. In Part II, I urge that the pragmatic argument put forward by rights critics and some (...) welfare advocates for forgoing rights-talk and rights-rhetoric also fails: there are very real costs, both in theory and in law, in deciding to forgo putting the case for the state's obligation to provide minimal material goods in terms of rights. In Part III, I briefly describe two core rights that a refashioned liberal state, understood as a vehicle for protecting not just the liberty but also the capabilities of citizens, should recognize: first, a right to be protected against private violence, and second, a right of caregivers to give care to dependents without incurring the risk of severe impoverishment or subordination - a right, to use the provocative phrase coined by the philosopher Eva Kittay, to doulia. Both rights, I think, are directly entailed by the state's obligation to provide the minimal preconditions for the development of those fundamental human capabilities that are themselves essential to a fully human life. Both rights however, could be and should be conceived in the most traditionally liberal terms. The first such right - the right to protection against private violence - although now disfavored in United States rights discourse, seems fully authorized by both the liberal tradition and the American Constitution itself. The second right for which I will argue - the right to provide care to dependents has no similar basis of support in either liberal theory or American constitutionalism. It is not incompatible with either, however, and is at least arguably required by the deepest commitments of both. The right to protection and the right to care are rights that can be framed in liberal terms, and both rights would go a long way toward securing for individual citizens the minimal preconditions of a good society. (shrink)
Women’s entry into the legal academy in significant numbers—first as students, then as faculty—was a 1970s and 1980s phenomenon. During those decades, women in law schools struggled: first, for admission and inclusion as individual students on a formally equal footing with male students; then for parity in their numbers in classes and on faculties; and, eventually, for some measure of substantive equality across various parameters, including their performance and evaluation both in and in front of the classroom, as well as (...) in the quality of their experiences as students and faculty members and in the benefits to be reaped from their tenure. This part of the story of women’s entry into the legal academy in the 1970s and 1980s—a story of attempted admission, then inclusion, then integration and assimilation, and then, finally, equality—is now a familiar one, at least in broad outline. It is not, in its entirety, an uplifting story. According to a raft of articles produced by women law students in the 1980s, 1990s, and 2000s, women law students during those decades participated less in the classroom, were called on and responded to differently when they did participate, suffered from more law-school-induced anxiety disorders and other mental health issues, graduated with lower GPAs and less law review experience, published fewer notes and filled fewer editorial positions on those journals, held fewer leadership positions overall while in law school, and had far more difficulties connecting with mentors, teachers, and would-be recommenders among the faculty than male students. Women law professors during those decades were tenured at significantly lower rates than men and, particularly at high prestige schools and at schools with fewer female faculty among the tenured ranks, were hired at lower rates that did not reflect their number in the pool of qualified applicants, had trouble asserting or maintaining authority in the classroom or being perceived as having authority, taught lower-prestige courses and received low teaching evaluations, and, like their students, were published far less frequently in the major and most prestigious law reviews. Much of this, albeit not all, has not changed much for either students or faculty. As women in law schools enter the posttenure and midcareer phase, many of the old problems persist while new ones appear: women faculty are invited to participate on panels less often than men, and both women students and faculty are underrepresented as authors in law reviews. Although gender-neutral parental leave is now available to faculty at most law schools, many such policies are still ad hoc. There is considerable worry, although no hard evidence, over whether men disproportionately use the time off to write rather than care for children. Women are still disproportionately overrepresented in some fields and underrepresented or unrepresented in others, and those fields correlate in unsurprising ways with levels of prestige: the more women in a field, the less prestigious. As elsewhere in the workforce, women faculty in legal education suffer from sexual harassment, most of which is unremedied. Women still suffer a pay gap in law schools that remains unaddressed at most universities, as it does elsewhere in academia. There is a sizeable literature on these depressing phenomena that stubbornly do not seem to abate. In these comments, however, I want to focus on another, less appreciated, part of the story of women’s entry into the legal academy in the 1970s and 1980s: the emergence of a body of scholarship—sometimes called feminist legal theory—produced by some of these women legal scholars over the same time period. The story I want to focus on, in other words, is not that of second- or third-wave women’s struggles within the academy, either for admission, acceptance, assimilation, or equality in law schools. Rather, this Article focuses on the story of the scholarship some of those second-wave assimilated women produced once they got there. Feminist jurisprudence, understood largely as scholarship on issues pertaining to gender equality, was launched in the 1970s, endures today, and continues to shape debates. Feminist legal theory, however, was in effect a subfield within feminist jurisprudence and, as its name implies, was an attempt to fashion a broad- based theoretical account of the relationship of law in liberal legal regimes to women’s subordination, patriarchy, and gender and sexual inequality— particularly in a post–civil rights era, when women enjoyed broad access to rights of formal equality, reproductive liberty, and liberal antidiscrimination law. Feminist legal theory so understood—a body of scholarship in search of a theoretical understanding of the relation of law to women’s subordination or, more simply, of law and patriarchy—was birthed in the 1970s, nurtured in the 1980s, and matured in the 1990s. I suggest in this Article that it is now seemingly in decline, and may soon disappear altogether. The reasons for this trajectory, I believe, are to date unexplored. Some reasons are fairly self-evident. Feminist legal theory was a product of three time-specific factors peculiar to the 1970s and 1980s: it reflected the political and the legal struggles of second-wave feminism. The critical theory schools were, to varying degrees, present or thriving in the academy in the 1970s and 1980s, within which feminist legal theory was birthed, grew, and then coexisted with critical theory, albeit at times very uneasily; and this feminist theory reflected second-wave women faculty and students’ mixed experiences of assimilation, success, and alienation in law schools themselves, as briefly recited above. Those three factors—the background politics, the presence of critical theory in law schools, and the differences in women’s experience of those schools—are all themselves either disappearing or dissipating in felt urgency, albeit in different ways and at different speeds, and that dissipation clearly is a part of the story of feminist legal theory’s decline. There are other reasons for its decline as well, however. Some are internal to feminism and feminist theory, and some pertain to the changing nature of legal scholarship from the 1980s to the present. I explore these reasons in Part II below. The story of the development of a distinctively feminist legal theory during the 1970s through the 1990s, and the story of its decline in the 2000s, is of obvious relevance to the history of second- and third-wave feminism. It should also be of interest for what it reveals about the nature of legal scholarship as it was understood, received, and produced in those decades. Its decline likewise reveals something about the changing nature of legal scholarship and the legal academy today. Thus, one conclusion I draw is that the feminist legal theory of the 1970s through the 1990s—regardless of the truth or lasting power of its claims—stands as an example of a type of legal scholarship that was somewhat distinctive to those decades. That form of legal scholarship, furthermore, likely can only emanate from the legal academy. For a host of reasons, we are currently in danger of losing this entire genre of intellectual work, which would be the polity’s loss, not just feminism’s or the legal academy’s. (shrink)
The emerging interdisciplinary field of “Law and Emotions” brings together scholars from law, psychology, classics, economics, literature and philosophy all of whom have a defining interest in law’s various relations to our emotions and to emotional life: they share a passion for law’s passions. They also share the critical premise, or assumption, that most legal scholars of at least the last half century, with a few exceptions, have mistakenly accorded too great of a role to reason, rationality, and the cool (...) calculations of self interest, and have accorded too small a role to emotion, to the creation, the imagining, the generation, the interpretation, and the reception of law. Their scholarship is in part offered as a collective corrective to what they perceive as the legal academy’s dominant and ill-conceived bias toward reason and rationalism, when explaining legal phenomena. In my comments this morning, however, I want to pose a question that I believe has been neglected by law and emotions scholars, and I will urge that we center it. To summarize my criticism: Law and Emotions scholars have looked at emotion’s impact on law and on our understanding of justice, and at law’s impact on emotional life, and have done so to great effect. What they, or we, haven’t much to date investigated, however, are the emotions law produces, or authors, or sires, or births, or fathers – the emotions that law itself generates, rather than the emotions that affect law or the emotions that law affects. (shrink)
Almost self-fulfilling, commonly held negative stereotypes about old age and memory can impair older adults’ episodic memory performance, due to age-based stereotype threat or self-stereotyping effects. Research studies demonstrating detrimental impacts of age stereotypes on memory performance are generally conducted in research laboratories or medical settings, which often underestimate memory abilities of older adults. To better understand the “real world” impact of negative age and memory stereotypes on episodic memory, the present research tested story recall performance of late middle-aged and (...) older adults following a naturalistic age stereotype manipulation, wherein every day, newspaper-style materials were either embedded with negative age and memory stereotype stimuli or neutral stimuli. Furthermore, all participants were tested in favorable, familiar environments. Potential moderators of the stereotype effects, e.g., metamemory beliefs, were assessed at baseline. Current memory evaluation and subjective age, as well as perceived stereotype threat and task-related anxiety, were assessed following the stereotype manipulation as potential mechanisms of the expected stereotype effects. Results suggested a contrast effect, as the stereotype group demonstrated superior story recall performance compared to the control group. Marginally significant moderation effects by age and perceived stereotype threat indicated that stereotype rejection was present for late middle-aged adults but not older adults, indicative of stereotype lift, and for individuals who reported low and average, but not high, levels of perceived stereotype threat. Additionally, a trend suggested more positive memory evaluation for those in the stereotype group who reported awareness of the stereotype stimuli than those who did not notice the stimuli. These results are consistent with other research demonstrating benefits to memory performance in adulthood based on motivational and contextual factors, such as using relevant memory materials and testing in favorable conditions. Moreover, the results of this study contribute to our understanding of individuals’ responses to different types of stereotype stimuli, and the differential impact of stereotype manipulations that are subtle versus blatant. Individuals were motivated to counteract negative stereotype effects when conditions were supportive, stereotype presentations were naturalistic, and personal beliefs were positive. (shrink)
Let us take, as a starting assumption, the Benthamic understanding of the point of law: We should make laws that will increase the overall happiness of the people whose lives are affected by them. But how should we go about doing that? And more particularly, what role, if any, should our held desires play in the task of ascertaining the content of our happiness? And when, if ever, should we defer to the desires of the affected masses, and when should (...) we not, in determining what will or will not promote happiness? The classical, or “hedonic,” utilitarians of the eighteenth and nineteenth centuries suggested a number of answers to these related questions, of which I will mention two. (shrink)
First, on the "lawless adjudicator." The question I want to pose is this: Why is it so hard for the legal academy - and the legal profession - to come to grips with the bare logic of the charge, much less the case, that Vere acted lawlessly, and therefore criminally, and indeed murderously, when he willfully distorted the governing law, so as to execute Billy? Why has this quite specific legal claim not received more of a hearing? Is it because (...) Weisberg was not sufficiently considerate in his communication of this idea? On first blush that seems implausible: It is one thing, after all, to argue syllogistically that Claggart is Christ, that Claggart is a villain, and that therefore Christ is a villain-one can see why that claim may require considerate communication - but the indictment of the fictional Vere in a nineteenth century novella? Why has it proven so hard for the academy to hear Weisberg's claim that Vere is a murderer? Here is the syllogism: Vere was charged with the duty to uphold the law, he betrayed the law and his duty to apply it in order to execute an innocent man, and he did it knowingly, intentionally, and with plenty of malice aforethought, and for the most profoundly personal, political reasons. Therefore, Vere is a lawless adjudicator, a dissembler, a criminal, a murderer. Does that straightforward legal argument - that an adjudicator is a man to whom the power to declare what the law is has been delegated; that an adjudicator might be a criminal, and might achieve criminal ends, through dissembling, misrepresenting, or perverting legal texts, and thereby through breaching a trust - itself require considerate communication? Has our faith in adjudication reached such absurd heights that the lawless or criminal adjudicator has become an unthinkable oxymoron? Or, have our expectations dropped so low that the phrase "lawless adjudicator" has become redundant, so self evident, that the presentation, the claim, that an adjudicator is lawless, is just a trite, banal, and unnecessary restatement of a mode of being always and already present in courts of law? (shrink)