Displacing the Distributive Paradigm
• Distributive paradigm: justice is the distribution
of benefits and burdens among society’s
members
- individuals are externally related to what they
possess, and their relation w/ one another is
the comparison of amount of goods they
possess (social atomism)
- evaluation of social justice end-state oattern
of persons by comparing w/c is the most just
(pattern-oriented)
• Problems w/ DP:
1. ignores social structure and institutional
context, particularly decision making power
and procedures, division of labor, culture
- decision-making power: not just question who
but tules & procedures according to w/c
decisions are made
- division of labor:
- as distributive issue, how jobs are allocated
among people
- as nondistributive issue, definition and
value of jobs themselves, and their relation
to conflict and authotiry among positions
- culture: symbols, meanings thru w/c people
express their experience
2. when extended to nonmaterial goods, it
represents them as static, rather an a function
of social relations and processes
- DP presumes that all aspects of social life can
be reified though they are better understood
as functions of rules and relations rather than
things
- problem w/ social atomism: identity of
individuals are not just made of goods but of
social processes and relations, this obscures
importance of social group
- problem w/ DP being patter-oriented: it is
ahistorical and operates as though social
goods magically appear, thereby ignoring the
processes that creates the goods
- author clarifies that end-state pattern is
not irrelevant, but must not end in itself
- examples to prove point: how do you
distribute the ff in a sense that one can have
more of it?
a. rights w/c are not possessions but
institutionally defined rules specifying what
people can do in relation to another
b. opportunity w/c is condition of enablement
c. self respect
- Applyign paradigm to conceptualization of
power, power has become a thing that is
possessed by individuals in lesser or greater
amount. Problems w/ this conceptualization:
a. power is relation bet. exerciser and others,
not a thing
b. this focuses particularly on agent who has
power and one over whom power is
exercised
- power is not dyadic. one can have
institutionalized power over another only if
3rd agents support the will of powerful
- power is a produced and reproduced thru
many people and not just within the dyad;
it exists in action (Foucault)
- General conception of justice endorsed by
author: justice that shifts focus on distributive
patterns to procedural issues of participation
in deliberation and decision-making, that all
be reable to express their needs
- Justice is not the realization of individual
values, but the degree to w/c society
supports institutional conditions for realization
of these values w/c assume equal moral
worth off all persons. These values are:
a. developing and exercising one’s capacities
and expressing one’s experience
b. participation in determining one’s actions
the conditions of one’s actions
- These general values correspond to two social
conditions defining injustice:
a. oppression: constraint on self-development
(learning, expansion of skills)
b. domination: constraint on self-
determination (participation in
 determination of actions, and conditions
thatt allow for it)
Five Faces of Oppression
• Traditionally, oppression is exercise of tyranny by
ruling group
• In its new usage, people suffer not bc. of
tyrranical power but bc. everyday practices of a
well-intentioned society
- unquestioned norms and habits w/c are
systematically reproduced in major economic,
political, and cultural institutions
• Social groups are collective of persons
differentiated by cultural forms and practices
- expression of social relations
- identification arises when they encounter
social collectivities that experience differences
- implications: attributes are essentialized
resulting to problems of prejudice,
stereotyping, discrimination
- response: not to eliminate groups, but to
build institutions promoting respect for group
differences. group must be thought of as
relational and fluid
• Faces of oppression:
1. exploitation
- occurs thru steady process of the transfer
of the results of the labor of one social
group to benefit another
- rules on what work to be done, who does
what for whom, how work is compensated
are appropriated to enact relations of
power and inequality
2. marginalization
- whole category of people is expelled from
useful participation in social life
- also manifested in welfare services. how?
- deprives dependents of rights and
freedom other have as one is subject to
arbitrary and invasive authority of social
service
- blocks opportunity to exercise capacities
in socially recognized ways
- needs are constructed by welfare
agencies themselves
2. powerlessness
- little or no autonomy, exercises little
creativity or judgment
- essentially, lacks authority, status, and self-
respect that professionals have
- privileges of of professionals:
a. avenues for development of capacities
b. considerable day-to-day autonomy
c. respectability beyond work
3. cultural imperialism
- how dominant meanings of society render
particular perspective one’s own group
invisible w/c at the same time marks out
the Other”
- dominant groups project their own
experience as representative of humanity
- there is a paradoxical oppression: minority
is marked out by stereotypes and at the
same time rendered invisible
4. violence
- what makes it a face of oppression is not the
violence per se, but social context w/c makes
them possible and acceptable
Feminist Legal Methods by Bartlett
• Methods organizes the apprehension of truth,
determines what counts as evidence.
• Problems of using the label ‘feminist’:
1. creates expectation of feminist originality or
invention that feminists do not intend and
cannot fulfill
- preoccupation with individual achievement
and ownership at odds w/ feminism’s
collective and relational discovery
2. tendency to assume a definition of a woman or
standard of women’s experiences
- obscures differentiations (class, race, sexual
orientation)
• Techniques of the feminist method:
1. Asking the woman question
 - what are the gender implications of rules and
practices which might otherwise appear to be
neutral or objective?
- how law fails to take into account the
experiences that are more experienced by
women than men
- critique: method is a loaded political activity,
far beyond the “neutral” interpretation of law;
bias
- response: what it requires is not to always
rule for the woman, but to look at underlying
gender bias that has historically
disadvantaged women
- analysis of gender must occur within contexts
of multiple identities (veer away from white
feminism and look at the intersectionality of
oppressive structures)
- (i) to identify bias against women implicit in
legal rules and practices that appear neutral
and objective; (ii) to expose how the law
excludes theexperiences and values of
women; and (iii) to insist upon application of
legal rules that do not perpetuate women’s
subordination
2. Feminist practical reasoning
- practical reasoning: no predetermined
definition or prescription. rather, it
approaches problems based on a specific
factual context
- every situation is unique, rather than
generalizable
- this does not reject rules, but it prefers less
specific standards that allow for an
individualized analysis
- analysis of new situation still hinges on the
“accumulated past wisdom” to avoid
arbitrariness and maintain stability.
- in relation w/ feminist method, it rejects the
notion that one has the privilege to speak for
all
3. Consciousness raising:
- testing validity of accepted legal principles
thru lens of the personal experience of those
difectly affected by those principles
- “individual experiences reveal collective
experience of oppression”
- it’s a meta-method (provides substructure for
other methods by enabling feiinists to draw
insights from their own experiences to
challenge dominant versions of social reality)
• Feminist viewpoints on what it means to be
“right” in law:
1. rational/empirical
- to challenge the inaccurate reality conveyed
by strereotypes about women
- premised is that knowledge is accessible and
when obtained can make law more rational
- critique:
a. reality may not be representational thereby
an inaccurate “reality”
b. knowability is an issue itself
2. standpoint espistemology
- response to issue of knowability: women are
oppressed and this gives them a perspective
that the oppressors cannot possible have
- critique:
a. concentration on identity of women as
victims tends to essentialize the
characteristics of a woman w/c further
reinforces the oppression
b. to say that being a victim is the only
privilege to truth is a narrow view of
privilege. it doesn’t explain why women
who are similarly situated don’t share same
interpretation of the situation
c. engenders an adversarial we/they politics
(women as the “we” in contrast with the
others “they”). gender is not the opposition
but the social relation bet. male and
female.
3. postmodernism
- questions the possibility of knowledge itself
- rejects the essentialist view as women have
no core identity but are rather constituted
 thru multiple structures and discourses w/c
overlap, intersect, and contradict
- law is indeterminate and, despite claims of
neutrality, masks particular hierarchies and
distribution of power
- criteria for legal validity and legitimacy are
social constructs rather than universal givens
- critique:
a. lack of objectivity can make the claims of
feminism artificial and constructed, rather
than a truth or reality experienced by
women
4. positionality
- like SE, retains concept of knowledge based
on experience
- like PM, rejects objectivity or perfectibility of
truth. rather, it emerges from particular
involvements and relationships, w/c define
individual’s perspective
- “my position gives me a source of special
knowledge but this can be expanded by
recognizing the truth of others”
- truth is an ongoing process of critical
reexamination
Essential and Contested Identities:
Sexual Orientation and Equality Rights
Jurisprudence in Canada by Stychin
• sexual orientation as a human rights issue
• according to critical legal studies movement,
rights reinforce substantive claims of groups
• enactment of the Canadian Charter of Rights and
Freedoms in 1982
• Andrews v. Law Society of British Columbia:
discrimination is distinction based on grounds
relating to personal charactersitics of the
individual or group, w/c in effect imposes burden
on such individuals or group not imposed on
others
• determination of whether a group qualifies as
analous to the enumerated grounds of
discrimination depends on the context of the
place of the group in the entire social, political,
and legal fabric of the society.
• Problem with categorical thinking w/ respect to
discrimination:
- is it is essentialized and it fails to
acknowledge that social identities are
geographically and historically contingent
- personal characteristics are viewed as
essential, neutral, and historically continuous,
rather than historically specific and culturally
changeable
- no individual control over the meaning of a
characteristic
Separation of Church and Date:
Destabilizing Traditional Religion-based
Legal Norms on Sexuality by Macdougall
• tention bet. sexual orientation equality and
religious views
• there is no express description of equality, hence
the lack of “real” legal equality
• for there to be real legal equality, State must
show:
1. compassion: bare principle that the members
of the group should not be discriminated
against just because they are part of the group
2. condonation: involvement or the engagement
by the state w/ the members not just to
protect them but to offer them benefits, to
foster their activities w/out necessarily
approving of or blessing the members of the
group or their activities
3. celebration: not just the tangible, but symbolic
benefits
- other will argue that this will result to
excessive entanglement of the state.
however, this position ignores the fact that
the state is very much involved w/ the
celebration of heterosexual relationships. it’s
so pervasive that it has become “natural”