Showing posts with label Jurisprudence. Show all posts
Showing posts with label Jurisprudence. Show all posts

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 So, FJ is almost outdated in a sense.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.