Should law be used as a tool to fix social inequalities? In order to try to figure out if the measures that have been historically advanced and sustained by activists of discriminated and minority social groups are right and/or actually effective and needed, we’ll be taking into consideration the feminist movement, which aim towards all its different stages and waves is to achieve equality between men and women- as the case study.
To be more specific, we’ll be focusing on Feminist Legal Theory, a discipline born within the movement in the late 1960s, as a large number of women started entering the profession of law and focused on using law to correct the unequal treatment of women. This example is particularly suitable because of the evolution this theory has had since the 70s, in which activists argued that for all legally relevant purposes men and women had to be treated equally; and 80s, by which they started analyzing how to use law to obtain inclusion for women in social fields.
In fact, this theoretical approach eventually came to realise that equality could have not been reached by simply equiparating womens rights to man rights, simply observing that law had been written by and therefore designed on exclusively man needs and perspectives. Because of this, it simply did not take in any consideration women condition, and any right claim was being perceived as a request for a privilege, as they were asking more rights than those that the law originally guaranteed to men.This is why Feminist jurisprudence argued that equal treatment did not mean identical treatment in a system entirely based on men’s point of view. They started to take into consideration the disadvantages concretely existent for women due to their fixed role in society.
This approach grounded several of the feminists claims for maternity leave rights, or salaries for stay at home mothers.
Linked to this new approach to legal matters was the solution proposed to another problem that finds its roots in the fixed social role attributed to both sexes: the problem of representation. Again feminist jurisprudence underlined how the fact that women had virtually legally equal access to all jobs and positions did not automatically mean that they actually had the same possibilities of their male collegues to get a job. In fact,the problem was the initial disadvantage created within the society, that not simply perceived the same attitudes or behaviours differently depending on the sex, but that also raised and educated them differently determined an “invisible” gap that had somehow to be filled in. Actually, more than a gap, this phenomen has been described with the metaphore of the “ glass ceiling” , an invisible barrier that keeps given demographic from rising beyond a certain level in a hierarchy. This is precisely why in this problem is so pressing: being it all, at the end, a problem of power, the fact that when it comes to higher positions and political roles any kind of female representation is severely lacking constitutes a huge limit to the progression of the situation.
Several evidences of the fact that this problem is still nowadays a current topic are , for example, the so called “glass ceiling Index” ( GCI ), a yearly assessment calculated each year by The Economist: it combines data on higher education, labour-force participation, pay, child-care costs, maternity and paternity rights, business-school applications and representation in senior jobs to create a ranking of 29 OECD countries. Another evidence are the datas on the so called “gender wage gap” – that shows an average disparity between the sexes underlining how women are still limited on the workplace due to their fixed role of main caregivers of the family.
The legal tool proposed as a solution to all this was affirmative action.
Affirmative action includes a series of policies protecting members of groups that are known to have previously suffered from discrimination, and it is concretely enacted through quota systems, reservation system, priviledge access or special consideration in the selection process. The term was first introduced in 1961 by President John F. Kennedy, within the context of fixing racial discriminations in the American school system.
These are the two main reasons behind affirmative action: filling an initial disadvantage and promoting diversity in order to guarantee an actual representation of a social group, and in this way help to fasten the general process towards concrete equality in all fields.
Still, AA is quite a controversial subject , since it has been criticized and accused of:
- Institutionalizing a form of reverse discrimination against the originally privileged groups;
- Compromising efficiency by not guaranteeing the place for the best candidate;
- Amplifying gender/racial prejudices and encouraging division and marginalization.
Furthermore, a counterargument exclusively against affirmative action in favor of women claims that this measure is simply unjust since the differences between men and women are not due to any discrimination, but to women’s choices to take care of children and to their actual inferior skills as workers. According to this way of thinking, employees in a free market would always choose the best candidate to maximise the efficiency, regardless of the sex. Therefore, if they don’t choose women it is exclusively because they are less suitable for a certain job.
Now that the pros and cons are all spelled out, the final judgement is up to you: is affirmative action necessary and just?
- The Blackwell Guide To The Philosophy Of Law And Legal Theory (Martin P. Golding, William A. Edmundson)