Similarities Between Feminism And Formalism

Feminist critical comparison with formalism

What is Formalism

Being called an ‘autonomous discipline’, the philosophy of Formalism remains one of the most influential and important theories of adjudication regarding the creation, application and enforcement of law. Among different degrees and types of formalism, the term ‘formalism’ can be explained in Roberto Unger’s influential critique , as proffering the possibility of an ‘immanent moral rationality’. This presents 3 distinctive features of law in the eyes of legal formalists: law as a coherent abstract science; legal reasoning is independent of non-legal influences; and that the internal logic of law provides a ‘right’ way to decide a case. For legal formalists, this is an integrative

Resonating formalists theory on law’s immanent coherence, he presents the idea that law is a coherent seamless web of principles, as opposed to a checkboard of separate laws, that this integrity encompassed as a logical sphere always offers a right answer. Manifesting the separation of judicial and political, Dworkin proclaimed, during judicial process, judges would utilize interpretation of principles, and always attempt to connect his decision with the precedents due to their gravitational weight, thus form an underlying coherent set of values and ideas which guide judges’ choices of decisions, to ensure a logical outcome. In an event of unsettled legal dispute upon application of rules, judges have to decide on principles which express basic accepted values, with limited discretion, as opposed to the basis of policy in which social goals are underlined. Dworkin’s ‘right answer thesis’ therefore claims that, this inherent ‘right’ answer within the seamless web of principles discourages judges’ resort to strong discretion. In application of the principles, a theory will be tested in two dimensions: a judge have to firstly find a legal answer which best fit the outcome within the whole body of settled law and is able to integrate with the rest of the legal theories, just as

These competing theories of legal feminists disagree with each other to some extent but has the ultimate desire to prompting gender equality by tackling one issue of should genders be treated the same. The most notable debate has, therefore, been between those feminists who support the equal treatment concept (as known as formal equality) and those who support the special treatment concept (as known as substantive equality) . This essentially means, whether to stress the similarities between men and women or to stress their differences , as such should gender difference be celebrated or problematized. While discussing the law’s role in promoting justice between gender, legal feminists also criticise the legal inadequacy therein the discussion of the impact along gender