Women’s Scholarship, SSRN and the”Other”Approach to Law

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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

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4 Responses to Women’s Scholarship, SSRN and the”Other”Approach to Law

  1. bob coley jr says:

    Is it possible that the perceived gender difference in solving moral dilemmas is, rather than a physiological one, a result of millennium of gendered control and thereby a perverted division. I mean if gender equality was always present, would the different ideas of right and wrong not be separated along gendered lines but by some other means? The fact that a divided gender experience exists has required a divided evolution. The research may be showing a result not a cause. Would a non gendered world view have given rise to non gendered law? This research seems to suggest that problem solving is malleable by experiences, constraints, and traditions that are inherent in a system not in gender.

  2. Ann Bartow says:

    Bobc, that is an absolutely brilliant response. Thank you.

    Women do not have an obligation to be more moral, nurturing or caring than men, and it is not our job to clean up men’s messes, in the law or anywhere else. As Gilligan has observed, adopting nurturing, deferential postures has been necessary for our survival. Our true natures under conditions of equality are not known.

    See e.g. Gilligan’s book “Meeting at the Crossroads: Women’s Psychology and Girls’ Development”
    http://www.hup.harvard.edu/catalog/BROMEE.html

    Here’s a couple of clips of Gilligan speaking, fwiw:

    http://bigthink.com/ideas/carol-gilligan-on-the-psychological-differences-between-men-and-women

    http://bigthink.com/topics/identity/ideas/carol-gilligan-on-the-gender-debate-nobody-is-talking-about

  3. Jhumbach says:

    Please withdraw my previous comment (awaiting moderation) and substitute this one:

    Well, I’d still contend that the moral orientation described by Carol Gilligan as characteristically female is the superior one:that is, the world would be a better place if that moral orientation moved beyond the private sphere and into public culture and law. But Bob and Ann are right that it is not uniquely female (nor, for that matter, did Gilligan ever say that it is).

    In any case, I suppose it’s sadly true that many women (and men) do not feel an obligation to try to make the world a better place (which largely means, given what got us here,”clean up men’s messes”).

  4. bob coley jr says:

    I consider it everyone’s obligation to replace what doesn’t work well for all with something that does. All messes must be cleaned up no matter the source. The evolution of humans is unique in that it need not be the survival of the fittest or random, but conceived and contrived to do the most good, and be equitable, for the species and the rest of creation as a whole. We are the crown of creation, so let’s shine. Male, female, old, young, all, must work at polishing life step by step. Mistakes will be made and hopefully corrected quickly to maximize benefit rather than being held onto in chauvinistic self-interest. But this view of obligation is mine and a seeming minority of others. Taking advantage of something just because one can does not make it right, or even desirable, in all scenarios.
    Since I have not read Gilligan at all yet, what I say may be silly to those that have. In that case, I am sorry.

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