Syllabus for B.A. LL.B. 2" Year Students 4.6 JURISPRUDENCE - IL SEMESTER PERIOD JANUARY - JUNE 2015 COURSE CODE 5 MAXIMUM MARKS 100 _| TOTAL TEACHING HOURS 80 TUTORIAL / PRESENTATION HOURS | 10-15 MEDIUM OF INSTRUCTION, | ENGLISH TEACHING METHOD LECTURE CUM DISCUSSION METHOD Course Objectives: Law is a social process to solve social needs. Jurisprudence is a science which studies the methods to meet these needs. For a comprehensive understanding of any existing law, the philosophy and the basic theoretical fundamental premise of such law is inevitable. ‘Most of the schools of thought known in the area of jurisprudence has been introduced to the students in Jurisprudence ~ I. The jurisprudential theories discussed in previous semester, are cast within the intellectual tradition of political liberalism. There are significant differences among those theories, but they are ultimately grounded in liberal views of law and society. This course discusses the challenges to the fundamental assumptions of liberal legal theory that came to prominence during the latter decades of the 20th century, It will focus in particular on the ideas of the critical legal studies (CLS) movement, postmodernist legal theory and feminist theory. It studies the relation between law, concepts, life of society, interest protected and methods to satisfy them, therefore, it is the functional study of concepts of which legal systems develop and interest which law protects. Previous semester had focused on theories about definitions and descriptions of the law as it is or as it ought to be, and of how law is made or emerges in society. This semester emphasizes on another vital aspect of law: namely, the internal structure of legal norms and the basic conceptions that are used in legal statements, the conceptions without which law maker cannot make a law. Students shall be introduced with legal concepts of Rights, Duties, Obligations, Person, Possession, and Ownership. Furthermore, the interaction of law and society shall be introduced to the students to enable them to understand the fundamental role of law as an instrument of social change and the inherent shortcomings in law itself. The course will enhance analytical ability of the student in socio-legal studies. The course is divided into five modules. Module one will focus on the background and issues dealt in feminist jurisprudence, critical legal movements and postmodernism, Module Two of the course will continue with juristic concepts of law relating topossession and ownership. The word ‘possession’ has variety of uses and a variety of meaning, The opinions of jurists differ as to why possession is protected by law, when the possessor is not the owner. Student will be acquainted with the opinions of Salmond, Kant, Hegel, Savigny, Ihering, Holland and others. Further, the concept of ownership, its nature and kind will be studied in detail. This module will also cover the concept of ‘Act’ and ‘Negligence’ and its significance, Module Three will deal with the administration of justice, Broadly speaking administration of justice means justice according to law. Module aims to provide insight into the development of principles of administration of justice from primitive societies to the modern state. Module four of the course will introduce the students with the juristic concepts of law relating to right, duties and person. In this module, the concepts of legal ‘rights’ and ‘duties’ in a wider sense of the term shall be discussed in detail. The Module will also cover the Marxist critique of the rights based approach of law. Further, student will be acquainted with the concept of legal person and its relevance. Module five covers a discourse on the interrelationship between law and social change, the identification of specific social problems and an assessment of the efficacy of relevant laws to deal with such problems especially in the context of Indian scenario. Further, the role of the judiciary in the pursuit to bring about social transformation shall be discussed to enable the student to appreciate the complementary role played by the judiciary in filling the vacuum created by the legislative and executive inactions. Teaching Methodology: ‘The teaching methodology to be adopted in this course paper shall be a collaboration of lecture method as well as discussion method. The former method is a direct instruction method by the teacher while the latter is a kind of co-operative learning wherein it gives enough scope to the students for an active participation in the classroom discussion. ‘The lecture method can be used to introduce a new topic or idea to the students and this can be ideally followed by a discussion method which is an applied or analytical approach based on the basic theoretical or the foundational understanding of the topics taught. The students shall be asked to apply their theoretical understanding to practical problems or issues. The students shall be required from time to time to give class room presentation on the topics assigned to them either in groups or individually. This will facilitate student's capabilities to work as a team, leadership skills and presentation abilities, The students shall be informed in advance about the topic which would be taught and discussed in the class and along with the relevant study reference materials. ‘The teacher summarizes after the students have completed their discussion, and any clarification on the queries raised by the students is entertained, These methods will give ample scope to the teacher to reach out to individual students, to identify theirshortcomings, to supervise their overall performance and to effectively carry out continuous assessment of the performance by the students. To train and inculcate research skills among the students, project assignments shall be given to the students and the topics shall be allotted in advance during the vacation before the semester begins in order to allow the students to invest their time in research work. The students are also encouraged to develop publishable research papers on the project topics assigned to them, In the classroom, every student is required to present his/her topic and to have his/her doubt cleared through discussion. The teacher will be helping and guiding the students in their pursuits of legal learning, The overall teaching method shall enable to achieve the primary role of a teacher which is to coach and facilitate student learning and overall comprehension of the course material. Journals: ‘The study materials prescribed to the students for an in-depth readings in this course paper include inter alia articles published in reputed internal journals viz, The Cambridge Law Journal, Harvard Law Review, Mid-American Review of Sociology, Michigan Law Review, Chicago Journals, Sydney Law Review, The Yale Law Journal, ‘The Journal of Ethics, Canadian Journal of Political Science, Business & Professional Ethics Journal, The Philosophical Quarterly, The Modern Law Review, Stanford Law Review, The American Law Register, University of Pennsylvania Law Review, California Law Review, Oxford Journal of Legal Studies, Virginia Law Review, Journal of Law and Society, The American Political Science Review, Journal of Philosophy & Public Affairs, Hypatia - A Journal of Feminist Philosophy, University of Miami Law Review and Signs - Journal of Women in Culture and Society. Course Evaluation Method: ‘The Course is assessed for 100 Marks in total by a close book examination system. There shall be @ Mid-Semester Exam for 10 Marks and End Semester Exam for 40 Marks. 30 Marks are allotted for the Project work which includes 25 Marks for written research work (5 marks for rough draft and 20 marks for final draft) and 15 Marks for oral presentation of Project. Expected Outcomes of the Cours:On completion of the Course, the students are expected to develop a comprehensive understanding of the theoretical framework of the legal concepts that are used in legal statements, the conceptions without which law maker cannot make a law, interests which law protects and the methods to satisfy them. Further, the students are expected to acquire the skill of analytical in-depth research along with a publishable research work, The students are also expected to overcome the problem of lack of confidence during classroom presentation and to inculcate the habit of team work. COURSE CONTENTS:MODULE 1 [20 TEACHING HOURS] I: Feminist Jurisprudence and Critical Legal Studies Movement and Post-modernism: Feminist Jurisprudence: Background, Origin, Basic issues of Feminist Jurisprudence, Schools of Feminist Jurisprudence: Liberal, Radical, Cultural, Post-modern Feminism and Socialist Feminism, Critical Appraisal of Feminist Jurisprudence Critical Legal Studies (CLS): Background, Ground for CLS movement, essential targets for CLS movement Post-modernism: Understanding postmodernism, the subject-object dichotomy, a critique of “subject”, departure from grand-narratives, Deconstruction and Justice. Suggested Readings from Journals: Jean Francois Lyotard, The Postmodern Condition, University of Minnesota Press, 1984. John D. Caputo, Deconstruction in a Nutshell, Fordham University press, 1997 (Deconstruction and the Possibility of Justice) Duncan Kennedy, The Critique of Rights in Critical Legal Studies, pp. 1-50. Denise Meyerson, Fundamental Contradictions in Critical Legal Studies, Oxford Journal of Legal Studies, Vol. 11, No. 3 (Autumn, 1991), Oxford University Press, pp. 439-451. Alan Hunt, The Theory of Gritical Lega! Studies, Oxford Journal of Legal Studies, Vol. 6, No. 1 (Spring, 1986), Oxford University Press, pp. 1-45. Peter Goodrich, Critical Legal Studies in England: Prospective Histories, Oxford Journal of Legal Studies, Vol. 12, No. 2 (Summer, 1992), Oxford University Press, pp. 195-236. ‘Ann C. Seales, The Emergence of Feminist Jurisprudence: An Essay, The Yale Law Journal, Vol. 95, No. 7 (Jun. 1986), pp. 1373-1403. Mark Tushnet, Critical Legal Studies: A Political History, The Yale Law Journal, Vol. 100, No. 5, Centennial Issue (Mar., 1991), pp. 1515-1544. Mary Anne C. Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, The Yale Law Journal, Vol. 105, No. 1 (Oct,, 1995), pp. 1-105. Jeffrey A. Standen, Critical Legal Studies as an Anti-Positivist Phenomenon, Virginia Law Review, Vol. 72, No. 5 (Aug., 1986), pp. 983-998,* Mark Tushnet, Critical Legal Studies and Constitutional Law: An Essay in Deconstruction, Stanford Law Review, Vol. 36, No. 1/2, Critical Legal Studies Symposium (Jan., 1984), pp. 623-647. * G. Edward White, The Inevitability of Critical Legal Studies, Stanford Law Review, Vol. 36, No. 1/2, Critical Legal Studies Symposium (Jan., 1984),pp. 649- 672. * Stephen M. Feldman, The Politics of Postmodern Jurisprudence, Michigan Law Review, Vol. 95, No. 1 (Oct., 1996), pp. 166-202. * Albert S. Thayer, Possession, Harvard Law Review, Vol. 18, No. 3 Jan., 1905), pp. 196-213, * Roberto Mangabeira Unger, The Critical Legal Studies Movement, Harvard Law Review, Vol. 96, No. 3 (Jan., 1983), pp. 561-675. * Emily Jackson, Catharine MacKinnon and Feminist Jurisprudence: A Critical Appraisal, Journal of Law and Society, Vol. 19, No. 2 (Summer, 1992), pp. 195-213. * Robin West, Jurisprudence and Gender, The University of Chicago Law Review, Vol. 55, No. 1 (Winter, 1988), pp. 1-72. * Andrew Altman, Legal Realism, Critical Legal Studies, and Dworkin, Philosophy & Public Affairs, Vol. 15, No. 3 (Summer, 1986), pp. 205-2: * John P, McCormick, Three Ways of Thinking 'Critically" about the Law, The American Political Science Review, Vol. 93, No. 2 (Jun,, 1999), pp. 413-428. * Catharine A. MacKinnon, Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence, Signs, Vol. 8, No. 4 (Summer, 1983), pp. 635-658. +L. Ryan Musgrave, Liberal Feminism, from Law to Art: The Impact of Feminist Jurisprudence on Feminist Aesthetics, Hypatia, Vol. 18, No. 4, Women, Art, and Aesthetics (Autumn - Winter, 2003), pp.214-235. + Kathleen Daly, Reflections on Feminist Legal Thought, Social Justice, Vol. 17, No. 3 (41), Feminism and the Social Control of Gender (Fall 1990), pp. 7-24. * Gokulesh Sharma (ed.), Feminine Jurisprudence in India: Women’s Rights, New Delhi: Deep and Deep Publications, 2008. MODULE 2: [20 TEACHING HOURS]I: JURISTIG CONCEPTS OF LAW: RIGHTS, DUTIES AND OBLIGATIONS; PERSONS IN LAW ‘The Internal Structure of Legal Norms and the Basic Legal Conceptions: Building Blocks of Legal Norms Rights: Jurisprudence of Rights; Definitions of Right: (a) On the Basis of Formal Element (b) On the basis of Material Element (c) Right as an Interest (d) Right as a Claim (e) Right as a Capacity (f) Right as a Designation of Certain Conditions; Characteristics of a Legal Right: (a) Salmond’s View (b) Roscoe Pound’s View (¢) Other's Views; Hohfeld's Analysis of Legal Rights; Classification of Legal Rights; Modes of Acquisition of Rights; Theories of Rights: (a) The Will Theory (b) The Interests Theory; Juristic and Legal Creation of Rights; Modes of Extinction of Rights; Summarizing the Concept of Legal Right (To be developed by the Student based upon the understanding of the above discussions) Duty: Meaning; Kinds of Duties: Universal, General and Particular Duties, Primary and Secondary Duties, Positive and Negative Duties, Relative and Absolute Duties, Positive and Negative Duties and Moral and Legal Duties Obligations: Meaning; Nature of Obligation; Kinds of Obligations: Moral and Legal Obligations, Contractual Obligations, Delictal Obligations, Quasi-Contractual Obligations, Innominate Obligations, Several Obligations, Joint Obligations, Joint and Several Obligations; Breach of Obligations; Relation between Obligations and Duties Persons in Law: Significance of the Topic; Meaning; Evolution of the Concept of Person; Kinds of Persons; Juristic Personality as A Centre for Jural Relations; Double Capacity and Double Personality; Status: Meaning and Nature, Status of Beasts, Status of Dead Men, Status of Unborn Persons, Status of Corporations, Theories of Corporate Personality: (a) The Fiction Theory (b) The Realist ‘Theory (c) The Purpose Theory (4) The Theory of Enterprise Entity (e) The Bracket Theory (f) The Concession Theory (g)The Theory of Procedural FormsSuggested Readings: 1. Autar Krishen Koul, A Textbook of Jurisprudence, New Delhi: Satyam Law International, 2009, pp. 299-314. 2, Salmond on Jurisprudence, Universal Law Publishing Co. Indian Rept., Twelfth Edn,, pp. 215 - 221. 3. Roscoe Pound, Jurisprudence, VI, pp. 80-81. 4, Biswas, Modern Jurisprudence, Calcutta: Kamal Law House, 1* edn,, 1998, pp. 495- 504, 515-537. 5. Biswas, Modern Jurisprudence, Calcutta: Kamal Law House, 1" edn., 1998, pp. 477- 494. 6, Autar Krishen Koul, A Textbook of Jurisprudence, New Delhi: Satyam Law International, 2009, pp. 330-397. 7. David Lyons, The Correlativity of Rights and Duties, Nots, Vol. 4, No. 1 (Feb, 1970), pp. 45-55. 8, David Andrew, Taking Rights Cynically: A Review of Critical Legal Studies, The Cambridge Law Journal, Vol. 48, No. 2 (Jul,, 1989), pp. 271-301. 1. A Javier Trevino, The Influence of Sociology on American Jurisprudence: From Oliver Wendell Holmes to Critical Legal Studies, Mid-American Review of Sociology, Vol. 18, No. 1/2 (WINTER, SPRING 1994), pp. 23-46. 2. Jeremy Waldron, The Role of Rights in Practical Reasoning: "Rights" versus "Needs’, The Journal of Ethics, Vol. 4, No. 1/2, Rights, Equality, and Liberty Universidad Torcuato Di Tella Law and Philosophy Lectures 1995-1997 (Jan. - Mar., 2000), pp. 115-135. 3. Phillip Montague, Two Concepts of Rights, Philosophy & Public Affairs, Vol. 9, No, 4 (Summer, 1980), pp. 372-384. 4, Jed Rubenfeld, On the Legal Status of the Proposition That ‘Life Begins at Conception’, Stanford Law Review, Vol. 43, No. 3 (Feb., 1991), pp. 599-635. 5. L. H. Leigh, The Criminal Liability of Corporations and Other Groups: A Comparative View, Michigan Law Review, Vol. 80, No. 7, Articles on Corporate and Organizational Crime (Jun., 1982), pp. 1508-1528. 6 Mary Anne Warren, Life Before Birth: The Moral and Legal Status of Embryos and Fetuses by Bonnie Steinbock, Warren Ethics, Vol. 104, No. 2 (Jan, 1994), Chicago Journals, pp. 408-410. 7. E.T. Mitchell, A Theory of Corporate Will, Ethics, Vol. 56, No. 2 (Jan, 1946), Chicago Journals, pp. 96-105. 8 Thomas Carson, Friedman's Theory of Corporate Social Responsibility, Business & Professional Ethics Journal, Vol. 12, No. 1 (Spring, 1993), pp. 3-32.9. John Dewey, The Historic Background of Corporate Legal Personality, The Yale Law Journal, Vol. 35, No. 6 (Apr., 1926), pp. 655-673. 10. Wesley N, Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, Yale Law School Legal Scholarship Repository, 1917 11.J. M. Balkin, The Hohfeldian Approach to Law and Semiotics, University of Miami Law Review, 1990 12, Alan Gewirth, Rights and Duties, Mind, New Series, Vol. 97, July 1998 MODULE 3: [20 TEACHING HOURS] IM: THE CONCEPT OF PROPERTY, OWNERSHIP AND POSSESSION: Property: A jurisprudential understanding of the properties of property, Kinds of Property, Modes of Acquisition of Property, Theories of Property Ownership: Meaning and Implication of Ownership; Analysis of ownership: Single or Multiple Rights, Incidents and Subjectmatter; Kinds of Ownership; Model of Acquisition of Ownership Possession: Meaning and Implication of Possession; Physical Control v. Possession; Elements of Possession; the Acquisition of Possession Suggested Readings: * Howard Williams, Kane's Concept of Property, The Philosophical Quarterly, Vol. 27, No, 106 (Jan., 1977), pp. 32-40. + Edward Andrew, Jnalienable Right, Alienable Property and Freedom of Choice: Locke, Nozick and Marx on the Alienability of Labour, Canadian Journal of Political Science / Revue canadienne de science politique, Vol. 18,No. 3 (Sep, 1985), pp. 529-550. * G.P. Wilson, Jurisprudence and the Discussion of Ownership, The Cambridge Law Journal, Vol. 15, No. 2 (Nov, 1957), pp. 216-229. © Finders, Occupiers and Possession (Parkers v. British Airways Board (1982] 2 WLR. 503), Sydney Law Review, pp. 180-192, * Actual and Notorious Possession in Adverse Possession, The Yale Law Journal, Vol. 40, No. 4 (Feb, 1931), pp. 631-640.Stephen Jourdan, Current Issues Affecting Adverse Possession, Falcon Chamber, pp. 1-15. John Locke, The Works of John Locke, Vol. 4, Economic Writings and Two ‘Treatises of Government (1691) Richard A. Epstein, Possession as the Root of Title, 13 Georgia Law Review, University of Chicago Law school, Chicago Unbound, 1979, p. 1221. Carol M. Rose, Possession as the Origin of Property, Faculty Scolarship Series Paper, 1830 (1985), Yale Law School Legal Scholarship Repository. Chhatrapati Singh, Common Property and Common Foverty, India's Forest Dwellers and the Law, New York: Oxford University Press, 1987. Gregory 8. Alexander, Ownership and Obligations: The Human Flourishing Theory of Property, Cornell Law School MODULE 4 [20 TEACHING HOURS] Iv: ACT, OMISSION AND NEGLIGENCE: Meaning of Act and Omission; Classification of Acts, Damnum Sine Injuria, Sine Damnum Injuria, Concept of negligence, Duty of Care, Standard of Care, Kinds of Negligence, Theories of Negligence: Subjective Theory and Objective Theory Suggested Readings from Journals: Mare Stauch, Risk and Remoteness of Damage in Negligence, The Modern Law Review, Vol. 64, No. 2 (Mar., 2001), pp. 191-214, Percy H. Winfield, Duty in Tortious Negligence, Columbia Law Review, Vol. 34, No. 1 (Jan., 1934), pp. 41-66. Gregory C. Keating, Reasonableness and Rationality in Negligence Theory, Stanford Law Review, Vol. 48, No. 2 (Jan., 1996), pp. 311-384. Emlin McClain, Contractual Limitation of Liability for Negligence, Harvard Law Review, Vol. 28, No. 6 (Apr., 1915), pp. 550-564. The Doctrine of Negligence, The American Law Register (1852-1891), Vol. 8, No. 7 (May, 1860), pp. 385-392. George P. Fletcher, The Theory of Criminal Negligence: A Comparative Analysis, University of Pennsylvania Law Review, Vol. 119, No. 3 (Jan., 1971), pp. 401-438. Albert A. Ehrenzweig, Negligence without Fault, California Law Review, Vol. 54, No. 4, A Tribute to Albert A. Ehrenzweig (Oct,, 1966),pp. 1422-1477. Christian Witting, Duty of Care: An Analytical Approach, Oxford Journal of Legal Studies, Vol. 25, No. 1 (Spring, 2005), pp. 33-63.* Douglas Payne, Foresight and Remoteness of Damage in Negligence, The Modern Law Review, Vol. 25, No. 1 Jan., 1962), pp. 1-24. MODULE FIVE: [10 TEACHING HOURS] V: Law as an Instrument of Social Change: An Introduction to the concept of social change/social transformation; relationship between law and social change; limitations of law in effecting social change; Judiciary and social change; identification of social problems and gauging the efficiency of relevant laws Suggested Readings: * Julius Stone, Law and Social Change © P.Ishwar Bhatt, Lav and Social Transformation * Sharyn L Roach Anleus, Law and Social Change, 2 edn., Sage Publication, 2000. Suggested Course Text Books for all Modules: Bodenheimer Jurisprudence, The Philosophy and Methods of Law, Delhi: Universal Publication, 1996. Jules Coleman, Scott Sharpiro, Kenneth Einar Himma (eds), The Oxford Handbook of Jurisprudence and Philosophy of Law, New York: Oxford University Press, 2002. Raymond Wacks, The Philosophy of Law: A Very Short Introduction, New York: Oxford University Press, 2006. Suri Ratnapala, Jurisprudence, United Kingdom: Cambridge University Press, 2009. Salmond on Jurisprudence, Universal Law Publishing Co. Indian Rept, ‘Twelfth Edn. Fitzgerald, (ed.) Salmond on Jurisprudence (1999). W. Friedman, Legal Theory, Delhi: Universal Publishing House, 1944. V. D. Mahajan, Jurisprudence and Legal Theory, Lucknow: Eastern Books, Re. 1996. M.D.A. Freeman (ed.), Lloyd's Introduction to Jurisprudence, (1994), Sweet and Maxwell. Paton G. W., Jurisprudence, Oxford, ELBS, 1972,© HLA. Hart, The Concept of Law (1970), Oxford, ELBS. © Thomas Holland, The Elements of Jurisprudence, New Delhi: Universal Law Publishing Co. Ltd., 13" edn., 2010. © Roscoe Pound, Introduction to the Philosophy of Law (1998 Re-print), Universal Publication, Delhi. * Dias, Jurisprudence, New Delhi: Adithya Books, (1994). © Dhyani S. N., Jurisprudence: A Study of Indian Legal Theory, New Delhi: ‘Metropolitan, 1985. * MP. Tondon, Jurisprudence Legal Theory, Allahabad: Allahabad Law Agency. © Dr. Vijay Ghormade, Jurisprudence and Legal Theory, Hind Law House. © Nigel E Simmonds, Central Issues in Jurisprudence, London: Sweet and Maxwell Ltd,, 3 edn., 2008, 2010. NV. Pranjape, Studies in Jurisprudence and legal theory, Central Law Agency. Nv. Jayakumar, Lectures in Jurisprudence, 2nd Ed,, Lexis-Nexis. Dr. BN. Mani Tripathi, Jurisprudence Legal Theory, Allahabad Law Agency. PS. Atchthew Pillai, Jurisprudence and Legal Theory, Eastern Book Company. G.G. Venkata Subba Rao, Jurisprudence and Legal Theory, Eastern Book Comp * Autar Krishen Koul, A Textbook of Jurisprudence, New Delhi: Satyam Law International, 2009. * Biswas, Modern Jurisprudence, Calcutta: Kamal Law House, 1" edn,, 1998. * Gokulesh Sharma, An Introduction to Jurisprudence, New Delhi: Deep and Deep Publications, 2008. Reading Module Jean Francois Lyotard, The Postmodern Condition, University of Minnesota Press, 1984, John D. Caputo, Deconstruction in a Nutshell, Fordham University press, 1997 (Deconstruction and the Possibility of Justice) Catharine A, MacKinnon, Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence, Signs, Vol. 8, No. 4 (Summer, 1983), pp. 635-658. Wesley N. Hohfeld, Fundamental Legal Gonceptions as Applied in Judicial Reasoning, Yale Law School Legal Scholarship Repository, 1917 John Locke, The Works of John Locke, Vol. 4, Economic Writings and Two Treatises of Government (1691) Carol M. Rose, Possession as the Origin of Property, Faculty Scolarship Series Paper, 1830 (1985), Yale Law School Legal Scholarship Repository.© Chhatrapati Singh, Common Property and Common Poverty, India’s Forest Dwellers and the Law, New York: Oxford University Press, 1987.CONTENTS x Name of the Topic Page 0. 1 | “Difference” 1 2. | The postmodern Condition 2 3. | Feminism, Marxism, Method, and the State: Toward 5 Feminist Jurisprudence 4 | Fundamental Legal Conceptions as Applied in Judicial 29 Reasoning 5 | The Works of John Locke, vol. 4 Economic Writings and 91 Two Treatises of Government 6 | Possession as the Origin of Property it 7 | Property and Poverty 129 8 | The Theory of Criminal Negligence: A Comparative 137 Analysis The Role of Rights in Practical Reasoning: “Rights” versus | 175 “Needs” 10 | Toward a Theory of Property Rights 197 11 | The Criminal Liability of Corporations and Other Groups: 21 A Comparative View~ VopsouH09 50 a10u S90 20 woueusuisisp Supyuodus RIP WOU; URED sy Sede ey 30 Suns wags oy opiasag sanboofe 1A UDA, ELL G a _Aoysesois, ue yams kg pases pou 30 omundeae ee ue pasiodsp ae ~ sung ou Jo Lon 24g 29 prom 3 Yosdusoy Yoox mupeu jo Lotsy a4 * “pa SSO “pyopan pasnpbas agra PucoRSyEANS TEST a ouyep of gpa we, ONO ABUTS aa pf pp pf fp oy et el al[Proje (pes GEER PavS\uon ‘wo os pus apid\nsap “Salidinasad“srTmousp om ang sanesrea= ious ade SARIED Jo SPROUT ' doit sy son ssi ny "oSurp seed Rey Hae nyssooany wououry-sapeuisu Sif“ wo PSST ised =i Ur youd WOPRITUY ASESA|UNS oe a smd seuss a jOSSeSSaoego pO], 1 soeoddnesad wan uy sudo 2exp ang souape ay ut ssasdoud jo Bnpesd fipsqnopun m Sypacu a "SAR NEUEN pute pout segpp | wom 4) Sud spn se em sums 2yp ut aantsiey puesd xp cy pousi Pang oF mysewiods a pur wea 2 od rone esas). ids onan voneagane Sono reo penning ce cope yp puts or usa sey 9 520 if pe bonus 9, "OR pons Apu at 2 od a ot se ouney Se SUI -poorsinpun pure paray 3 dso agoquuds ayn “ruKuout ado sin sou an w 93 pape jo woppueD a Spmbesiy jo goa, 2p Buypq ajgeseéwoous pur expe rip Bu es : pinoy] siosuvsg—uvaf uONIpUor UsBPOUISOg IY. ALT ESE pn ppuuneq axe YDHo=) Joe POUSTURLIP “HHL ‘ sais pas xp Sueno Jo sundae 250 wodipucar 0 (e032 a 9 RR PUSH JO 8H ip sume pyo ain anne Susuz “suo plo 24) 0 pappe se sabes ayy sung 9 ask wos aiojq of 2 OP semoy furut aoy, Suis opened sanuos pyo a7 62 25enSu, jo use, arwsnpoyy-ag pan *wontonateesegy “wnpeantmasss igVIEWPOINT Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence Catharine A. MacKinnon I Feminism has no theory of the state. It has a theory of power: sexuality is, gendered as gender is sexualized. Male and female are created through the crotization of dominance and submission. ‘The man/woman dif- ference and the dominance/submission dynamic define each other. This is the social meaning of sex and the distinctively feminist account of gender inequality.’ Sexual objectification, the central process within this For A. D. and D. K. H. In addition to all those whose help is acknowledged in the first part of this article, “Feminism, Marxism, Method, and the State: An Agenda for Theory.” Signs: Journal of Women in Culture and Society 7, no. 3 (Spring 1982): 515-44 (hereafter cited as part 1), my students and colleagues at Yale, Harvard, and Stanford contributed pro- foundly to the larger project of which both articles are parts. Among them, Sonia E Alvarez, Jeanne M. Barkey, Paul Brest, Ruth Colker, Karen E. Davis, Sharon Dyer, Tom Emerson, Daniel Gunther, Patricia Kliendienst Joplin, Mark Kelman, Duncan Kennedy, John Kaplan, Lyn Lemaire, Mira Marshall, Rebecca Mark, Martha Minow, Helen M. A. Neally, Lisa Rofel, Sharon Silverstein, Dean Spencer, Laurence Tribe, and Mary Whisner stand out vividly in retrospect. None of it would have happened without Lu Ann Carter and David Rayson. And thank you, Meg Baldwin, Annie McCombs, and Janet Spector Marxism appears in lower case, Black in upper ca ned in part 1. 1. Much has been made of the distinction between sex and gender. Sex is thought the more biological, gender the more social. The relation of each to sexuality varies. Since I believe sexuality is fundamental to gender and fundamentally social, and that biology is its social meaning in the system of sex inequality, which is a social and political system that does not rest independently on biological differences in any respect, the sex/gender dis- tinetion looks like a nature/culture distinction, I use sex and gender relatively inter- changeably for reasons ex; [Sign fwena of Women in Cutre ad Soriety 1988, v0. 8,0. 4} {©1985 by The Univer of Chicago. All rights reserved 002. 9TAN%3/0804.000301,00 635 5 “Tis conten donned on 4.139.215.1460 Fi, 23 7015 60603 AM. “Aes suc toJSTOR Teme ond Conte636 MacKinnon Feminism, Marxism, Method, and the State dynamic, is at once epistemological and political.* The feminist theory of knowledge is inextricable from the feminist critique of power because the male point of view forces itself upon the world as its way of ap- prehending it. ‘The perspective from the male standpoint? enforces woman's defi- nition, encircles her body, circumlocutes her speech, and describes her life. ‘The male perspective is systemic and hegemonic. The content of the signification “woman” is the content of women’s lives. Each sex has its role, but their stakes and power are not equal. If the sexes are unequal, and perspective participates in situation, there is no ungendered reality or ungendered perspective. And they are connected. In this context, objectivity—the nonsituated, universal standpoint, whether claimed or aspired to—is a denial of the existence or potency of sex inequality that tacitly participates in constructing reality from the dominant point of view. Objectivity, as the epistemological stance of which objectification is the social process, creates the reality it apprehends by defining as know! edge the reality it creates through its way of apprehending it, Sexual metaphors for knowing are no coincidence.* The solipsism of this ap- 2. This analysis is developed in part 1. 1 assume here your acquaintance with the arguments there. ‘3 Male is a social and political concept, not a biological attribute. As T use it, it has nothing whatever to do with inhereney, preexistence, nature, inevitability, or body a8 such. ft enor epistemological than ontological, unctercutting the distinction itself, given male power to conform being with perspective. (See part 1, pp: 588-89, n, 56.) The perspective poet he imale standpoint is not always each man’s opinion, alihough most men adhere (o in nonconseiously and without considering it a point of view, as much because itm ease of their experience (the male experience) as because itis in their interest, Isr for them, A few men reject it; they pay. Because itis the dominant point of view and tlefines rationality, women are pushed to see reality in is terms, although this denies their Vantage point as women in that it contradicts (at least some of) thet lived experience Women who adopt the male standpoint are passing, epistemologicaly speaking, This is not veomunon and is rewarded. The intractability of maleness asa form of dominance Suggests that social constructs, although they flow from human agency, can be less plastic than nature has proven to be. If experience trying to do sois any guide, it may be easier to change biology than society. Fe athe Bible, to know a woman is to have sex with her. You acquire carnal knowl: edge. Many scholarly metaphors elaborate the theme of violating bounties o appropri et om inside to carry off in usable form: “a penetrating observation,” “an incisive analysis: “piereing the veil.” Mary Ellman writes, “The male mind . . is assumed to function primarily ike a penis. ls fundamental character is seen to be aggression, and this {ait is held essential to the highest or best working of dhe intellect” (Thinking abut vVomen [New York: Harcourt, Brace, Jovanovich, 1968), p. 29). Feminists are beginning tounderstand that to know has meant to fuck. See Evelyn Fox Keller, "Gender and Scien Paychoanabyis and Contemporary Thought 1,10. (1978): 409-83, esp. 13; and Helen Robe ted Dovug Poninist Research (London: Routledge & Kegan Paul, 1981). The term “to tiniguely eapuures my meaning because i refers to sexual activity without distingyi eens inom intercourse. Atleast since Plato's cave, vistal metaphors for knowing have been aval to Western theories of knowledge, the visual sense prioritized as a mode of verifica cen The relationship between visual appropriation and objectification is now only begin- t 8 “this cone downoad fm 14129213146 oF, 23 an 2015 0606418 AM “asset to STOR Terns an ConanSigns Summer 1983 637 proach does not undercut its sincerity, but it is interest that precedes method. Feminism criticizes this male totality without an account of our ca- pacity to do so or to imagine or realize a more whole truth. Feminism affirms women’s point of view by revealing, criticizing, and explaining its impossibility. This is not a dialectical paradox. It is a methodological expression of women’s situation, in which the struggle for consciousness is a struggle for world: for a sexuality, a history, a culture, a community, a form of power, an experience of the sacred. If women had conscious ness or world, sex inequality would be harmless, or all women would be feminist. Yet we have something of both, or there would be no such thing as feminism, Why can women know that this—life as we have known it—is not all, not enough, not ours, not just? Now, why don’t all women?® ning to be explored. “The knowledge gained through still photographs will always be... a semblance of knowledge, a semblance of wisdom, as the act of taking pictures is a sem- blance of wisdom, a semblance of rape. The very muteness of what is, hypothetically, com prehensible in photographs is what constitutes their attraction and provocativeness” (Susan Sontag, On Photography [New York: Farrar, Straus & Giroux, 1980], p. 24). See part 1, pp. 539-40, n. 59 5, Feminism aspires to represent the experience of all women as women see it, yet, criticizes antifeminism and misogyny, including when it appears in female form. This tension is compressed in the epistemic term of art “the standpoint of all women.” We are barely beginning to unpack it. Not all women agree with the feminist account of women’s situation, nor do all feminists agree with any single rendition of feminism. Authority of interpretation—the claim to speak as a woman—thus becomes methodologically complex and politically crucial for the same reasons. Consider the accounts of their own experience given by right-wing women and lesbian sadomasochists. How can patriarchy be diminishing, to women when women embrace and defend their place in it? How can dominance and submission be violating to women when women eroticize it? Now what is the point of view of the experience of all women? Most responses in the name of feminism, stau terms of method, either (1) simply regard some women’s views as “false consciousness,” (2) embrace any version of women's experience that a biological female claims as her own. The first approach treats some women’s views as unconscious conditioned reflections of their oppression, complicitous in it. Just as science devalues experience in the process of uncovering its roots, this approach criticizes the substance of a view because it can be accounted for by its determinants. But if both feminism and antifeminism are responses to the condition of women, how is feminism exempt from devalidation by the same account? “That feminism is critical, and antifeminism is nor, is not enough, because the question is the basis on which we know something is one or the other when women, all of whom share the condition of women, disagree. The false consciousness approach begs this question by taking women’s self-reflections as evidence of their stake in their own oppression, when the women whose self-reflections are at issue question whether their condition is oppressed at all. The second response proceeds as if women are free. Or, at least, as if we have consider- able latitude to make, or to choose, the meanings if not the determinants of our situation. (Or, that the least feminism can do, since it claims to see the world through women’s eyes, is to validate the interpretations women choose. Both responses arise because of the un- willingness, central to feminism, to dismiss some women as simply deluded while granting other women the ability to see the truth. These two resolutions echo the object/subject split 7 This cote: demos Gun 1413921314608 Fi, 25 Jan 2015 040608 AM “ie ibe to STOR Tenn anu Conan’