Sunday, September 20, 2009
Feminist Jurisprudence vs. Economic Analysis of Law
Feminist Jurisprudence vs. Economic Analysis of Law is an interesting argument. FJ questions the law's role in maintaining the social status quo, while EAoL creates models and tries to help everyone out at the same time, somewhat relying on Pareto efficiency principles. Both have their strengths and weaknesses, but I prefer EAoL as a general rule, although in specific cases I'm sure I could be convinced in favor of FJ. At its core, the argument is simpler, yet deeper: Feminist Jurisprudence is about society, women, and normative questions. Economic Analysis of Law is more positively oriented. The problem I have with FJ is that it tends to violate fundamental principles of our legal system, such as: innocent before proven guilty. What I mean by that is that it assumes that all laws were made to keep women down and play some part in their oppression and denial of rights. While this may be true in some cases, FJ looks to take it to the extreme. Because laws are so open to interpretation, their meaning changes through the years. These days, we have women on the Supreme Court and in judge's chairs around the nation. Their interpretation of the laws today is vastly different than the understandings of yesteryear. While the problem isn't solved (the law still has a ways to go before women are completely equal under it), progress is being made. So, FJ is almost outdated in a sense. Economic Analysis of Law is not without its problems. Pareto efficiency as a model for how laws should be made can have unforseen consequences. If we just use numbers broadly instead of looking at specific instances, we might exacerbate the very problem we are trying to solve. Unfortunately, laws can't be made with only a specific instance in mind, hence the conundrum. If a rich family and a poor family are both being taxed, anything that raises taxes on the rich family, even if it helps the poor family out, is not Pareto efficient. If a law is created that raises taxes on the rich to help the entire government, as well as the poor, it is not Pareto efficient. This is against the principles of democracy, because the individual is not more important than the majority. The minority still have rights and much be protected, but not at the expense of the masses. Economic Analysis of Law and Feminist Jurisprudence are both strong philosophies, but both have their weaknesses. I prefer Economic Analysis of Law, as it's based on numbers and facts for the most part, rather than morals and ethics, which are ambiguous. This can cause unforseen problems, but at least you can back it up with hard data. A proponent of Feminist Jurisprudence, on the other hand, might say that numbers aren't everything.
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One question about your final arguments regarding law and democracy. You point out that "If a rich family and a poor family are both being taxed, anything that raises taxes on the rich family, even if it helps the poor family out, is not Pareto efficient. If a law is created that raises taxes on the rich to help the entire government, as well as the poor, it is not Pareto efficient." The point seems to be that taxing the wealthy to assist the poor is inefficient because it increases burdens on one group, the wealthy, to help another group, the poor. I don't know if this is inefficient, but I don't see how this claim helps your conclusion that "This is against the principles of democracy, because the individual is not more important than the majority. The minority still have rights and much be protected, but not at the expense of the masses." If anything, aren't taxes on the the minority, the wealthy, beneficial to the masses, the poor, because presumably there are more poor than there are wealthy? Isn't your example technically defending the rights of the minority at the expense of the majority?
ReplyDeleteI was wondering, since most of this discussion revolves around the Pareto efficiency concept, as we learned it in class, I was wondering if those principles can be applied to the societal level, over attempting to redistribute the power balance within society so as to even out the playing field, as the saying goes, between men and women. Just a thought since this post included FJ and EAoL.
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