In a recent post it was observed that SSRN downloads for male authors substantially exceed those for authors who are female. Among the many reasons why this difference should be important is the fact that many female authors almost surely speak with a”different voice”from most of their male colleagues.
Especially in a field like law it is plausible to assume that there may be gender differences of consequence. This is because the law deals at its core with questions of right and wrong and, as research pioneered by Harvard psychologist Carol Gilligan points out, there is substantial reason to think that women characteristically use forms of moral and ethical reasoning that are different from those that are more usual for men.
Specifically, according to Gilligan’s research, women tend to stress relationships and healing rather than the rigid application of rules, employing an ethic of care and stressing interconnectedness rather than the rule-bound ethic of justice predominantly employed by males. These differences reflect, in her view, a whole different moral orientation between men and women:a wholly different way of approaching and solving moral and ethical problems. While legal problems are of course not”simply”moral and ethical problems, our ideas of right and wrong nonetheless play an enormous role in shaping the law and legal thought. So this gender difference may be a matter of real significance.
There is certainly much to be said for what Gilligan’s research identifies as the more characteristically feminine mode of ethical problem-solving (a mode which, by the way, I personally find superior, as I have previously written here). For one thing, if Gilligan is correct, the”ethic of care”is the approach to problems that is more usual and expected among half the population, all of whom are, of course, equally subject to law. But the law has, until very recently, been almost solely a project of men, so it is not surprising that the characteristically male mode of thinking about right and wrong is the one that suffuses the law.
As more women come into the profession and legal academy, there is hope that this may be changing. Alas, however, there is evidence that, rather than women changing the law, it is the law that is changing the women who study it. According to research by psychologist Sandra Janoff, the first year of law school causes a substantial modification of female students’ moral reasoning. See Sandra Janoff, The Influence of Legal Education on Moral Reasoning, 76 Minn. L. Rev. 193 (1991). While”women and men revealed significantly different response patterns [to moral dilemmas] at the beginning of the year,”they”showed no significant difference at the end of the year.”They are drilled to learn to think like lawyers, but what they really learn is to think like male lawyers, for it is males who set up the game.
This is a situation that cannot change until efforts are made to specify and highlight the differences in moral orientations between the genders and to confront forthrightly the tendency of legal culture to assimilate the minds of all who enter. We can hope that, despite Janoff’s results, the characteristic moral orientations of female law students are not truly”lost”in the first year (for people rarely actually”lose”knowledge; the old is merely overlaid with the new). But it is obviously not enough for female legal scholars to reawaken distinctive moral orientations and make them felt in their scholarship. The writings need to be read. If legal scholars are giving short shrift to the conceptions of right and wrong that are usual and expected among half the population, they are making a bad mistake.
- John Humbach