Outside jurisprudence and critical race theory and feminist legal theory

If you talk to people today, they would say that "postmodernism" is all the rage. Actually that word was only coined in 1979 and is meant to be an umbrella word capturing the variety of literary, psychological and philosophical approaches to texts that supposedly characterizes our world. But as I reflect more and more on the term, I have decided to swear off it for a while becuase it, like "democracy" or "freedom," it is for me a term of such divergent and contrary significations that it really has little meaning other than as a symbol of the present era. Bix is clearly uncomfortable with postmoderism, sneaking in only two pages on the phenomenon in the last pages of his book.

If, however, you want to have "eight points on postmodernism" so that you can entertain your family over Thanksgiving dinner, Feldman gives you a good summary beginning on page 163. I have mentioned a few of those themes, such as "rejection of foundationalism and essentialism" or "exploring and celebrating paradox," or "a focus on power and its manifold manifestations," throughout the course. More fruitful for the rest of this essay will be to consider briefly what is now called "Outsider Jurisprudence."

Feminism/Critical Race Theory

I think these themes are almost immediately recognizable and understandable to any half-alert American law student. The cauldron of diversity, in which we have been living in America for the past 35 or so years, has emphasized the need to "give voice" to groups whose voices have either been ingored or suppressed over the years. Combined with this commitment is another thought: that the experience and reflection on experience of neglected or oppressed minorities is itself of jurisprudential value. While I find a lot of writing in these fields to be tired and predictable (i.e., we got screwed; you owe us), the questions proposed by "outsiders" or "former outsiders" are questions that should make us reconsider what law and justice is. Bix points out two questions that stimulate both feminist and critical race theory concerns (I reframe the questions for my own purposes):

1. To what extent does the legal system and its doctrines not only reflect the values and power of traditional actors (i.e., white males) but further serve to entrench those interests at the expense of minorities and women?

2. To what extent ought the life experiences of women or racial minorities be reflected in statutes and judicial opinions?

Important Issues

The issues are far from trivial. Let us begin with a consideration of feminist concerns. Do women perceive the world differently from men, and does that difference, if it exists, require a legal regime that reflects it? The most controversial (but visible) areas are in the law of sexual harassment and the so-called "battered women's defense" in cases of domestic abuse. Should the phenomenon of a "battered women's syndrome" help rewrite the traditional legal doctrine of self-defense? That is, was the notion of self-defense so shaped with an understanding of the way that men fought each other in the "Wild West" or in "Merry Olde England" that a new understanding is needed today, based on women's experience?

Again, should a "reasonable woman's perspective" be the standard for cases of sexual harassment in the workplace? Several feminist scholars have argued that the "reasonable person" standard is really a "reasonable man," and in this case it means a man might not find certain sexual words/jokes/advances offensive, while a "reasonable woman" might. But, then again, by creating a new arena of law based on women's experience, aren't you opening yourself up to the allegation that women are getting "special" treatment probably because they just can't "hack it"? Nevertheless, I think that the long-term effect of deep reflection on "women's experience" will ultimately shape the future of employment law. The 8-5 day, though not out the window, will be increasingly subject to alternatives primarily because of women's experience of life.

Racial Issues

There is a family resemblance between the issues faced by women and racial minorities as it relates to law. Again, anyone who has been half-awake in American culture over the past two decades has realized that issues of "affirmative action" (however they are called now) or "minority preference" are hotly debated. I think there is no one who will now deny that Native Americans and African Americans were subjected to horrendous and unjust living situations by the dominant (white) culture from the 17th -20th centuries in America. The debate centers, however, on what we should do about it.

In the last few years the "reparations debate" has heated up and, in my judgment, it is not so crazy as it may sound at first. America does have a tradition of "paying back" those who have significantly suffered through extreme acts of violence (witness the federal funds that rushed to help the victims of 9/11), and so the idea of reparations for slavery and its continued effects is, for me, a live issue.

Conclusion--Responding to the "Isms"

I think that the legal response to past oppressions is not easy. On the one hand you can respond as follows. "Ok, you were screwed. I agree. So was I (you can argue all kinds of ways that you have been victimized in life). I am not asking for reparations (though I really deserve them). You shouldn't either." Or, you might respond, "America does have a tradition of inclusion and of paying the costs of those whom it has formerly excluded. Law doesn't let unfunded pension plans destroy the pension hopes of thousands. Law doesn't allow 9/11 victims' families to go poor. Law also has a responsiblity (a moral one?) to take steps to rectify past imbalances. Maybe it is through an array of benefits, such as money, educational opportunity, job training, etc. but benefits ought to be given."

The problem with the former approach is that it compares apples to oranges and says they taste the same. The problem with the latter approach is that it tends to create the feeling that some get "special privileges," which fuels resentment. It seems that we end this mini-essay (and maybe the class) with nothing but problems. I think that is the best way to end a class.