Proposition: The law is in an inappropriate instrument for redressing such systemic social problems as class and gender inequality.
It is noted that radical feminists, although critical of the inherent characteristics of law, have used this to their own advantage, in that issues such as martial rape, sexual equality, labour conditions etc have been addressed through the law. However, it has to be argued that certain elements of law-based action by means of legislation, e.g. the Sex Discrimination Acts (which created much bad press), have not really done that much to solve social inequality (although this is debatable).
There are so many ‘minorities’ or ‘disadvtanged’ groups in society that all rights-based movements concerning race, religion, gender, sexual orientation, even political belief, go through a stage of ‘experimentation’ with law as a method of social change. It is true that the law brings inherent (and often unseen) prejudicial elements of the law to the public eye.
However, it is noted that only problems with their inherent ‘mischief’ in the law can actually be solved through the law. If the background to the problem is anything other than legal, e.g. historical, biological, economical etc, then the law may be of little assistance.
It is true that through history there have always existed people who are inherently racist, sexist, creedist, dismissive of other social classes etc and that people in general will continue to do so. Even if the law is used to address problems, it will not stop people holding the views that need to be addressed. Even if people do not outwardly express prejudicial or socially negative views, the law cannot really control that. (Indeed this raises the question, what is the point of using law as means of redressing inequality if most people exhibit some kind of prejudice or negative viewpoint on at least one subject?)
The argument turns on the idea that the law can be used in reverse to achieve the same goal. Can the law be used to integrate all elements of society? Example- in the United States, with the initiative of mixed-race schools (i.e. the bussing-in of children from other catchment areas). Although in that case many federal funds were allocated to do this, it still produced an amount of dissatisfaction in that it contradicts the aim it was intended to fulfil. Changing the attitudes of the average man or woman on the street will take years (even eternity) to accomplish.
Should it be the law’s business in attempting to change people’s social views? After all, is it the law’s role to reduce discrimination due to class, gender etc, or at least adopt a laissez-fair attitude of ‘leaving the discrimination to sort itself out’ (a kind of ‘negative discrimination’) or is it more fruitful to increase participation of disadvantaged groups (so-called ‘positive discrimination’) ?
Example – recent case of racism in several British police forces. People will be inherently racist, sexist, homophobic etc. You cannot filter out any law enforcer – policeman, judge, lawyer, prosecutor etc – and expect to have a fully functioning legal system. The idea also that you can ‘rehabilitate’ somebody who is inherently racist or class-discriminate, then expect them to then continue fulfilling their role in the legal process, may not often work in most cases.
Law is indeed a method of social control. Indeed, another method of social control – religion – has been used to justify a multitude of social wrongs. Indeed, religion was often used by western colonial and economic powers to justify slavery, apartheid, criminalisation of homosexuality, and the denial of the vote to women often used the Bible.
The law should at least be neutral to some degree, even if its participants do hold strong views on social or gender inequality. Indeed, if we were to use the law to address social problems may remove the neutrality which people regard as a basic feature of any legal structure. Social change may be only successfully achieved through public and social policy (i.e. some degree of politics). Using the law to fulfil this function would make it political, and often partisan (according to who is in power).
Indeed, in the proposition for this seminar, it really should read that ‘legal process’ and ‘legal subjects’ should be used to address inequalities, not the law itself.