This is an extract of our Olsen Feminist document, which we sell as part of our Jurisprudence Notes collection written by the top tier of University Of Otago students.
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Frances Olsen: Critical Rights and Critical Legal Theory: The bourgeois revolutions of the 18th and 19th centuries established the "rights" (haha) of man. Only later have rights for women been grudgingly added to national agendas. In addition to the movements to expand the base of those to whom rights are given, other movements are afoot to extend the reach of rights, to establish more extensive individual rights. At the same time, many legal theorists have begun to criticise the practice of appealing to individual rights to analyse social conflict. These theorists favour racial justice, freedom of sexual orientation, environmental responsibility - they disagree not with these goals, but with the means and characterisations of the goals. This is the "critique of rights analysis" or "the rights critique" (Covered with Stephanie). Proponents of the rights critique make two major arguments:
1. An appeal to individual rights is indeterminate or circular - in any important social conflict each side can present equally logical arguments.Individual rights requires that they 'prevail' over the other side.
2. Individual rights support mere bourgeois individualism, and thus rights analysis is related to alienation, reification and other undesirable aspects of bourgeois capitalism. The claim that a certain group of people have 'rights' may refer to several different meanings of 'rights': may refer to legal or institutional procedures, may be descriptive, analytic, an expression of social practices. Rights as Exhortation: The assertation that women have rights is a moral claim about how human beings should act toward one another. To claim a right is to assert one's selfworth, to affirm one's moral value and entitlement. Rights as an Analytic Tool: It seems powerful, but in practice turns out to be not so. Conflicts between many different rights: only by ignoring half of them could rights rhetoric even appear to solve concrete problems. The "Bourgeois Individualism" Critique: The critique that is least convincing to feminists is the alienation critique, which complains that the rhetoric of rights undermines community by picturing people as separated owners of their respective bundles of rights. The denial to women of the "bourgeois rights" granted to men does not help to create a society in which we can share good community, it undermines such efforts. The expectation of access to women by men is part and parcel of our alienated existence, as one example - Capitalism with it's isolation is tolerable to men because they can dominate and oppress women. The women's rights that we should support are an expression or description of the social practice of allowing women to resist forced community. In this context, "rights" simply describes a social practice. Women have the right to autonomy, but must remember that they can secure the right only through continuous collective political activity. Women's Rights and the Incoherence Critique: Struggles for women's rights have centred on women's exclusion from public and political life. The CLS critique of rights is largely irrelevant to these types of claims - no one argues that womens' right to vote is incoherent. More recently though, feminists have sought to use rights as an analytic tool - a rational elaboration of rights results in a classic conflict between equality of opportunity and equality of result, natural or positive rights, rights as security or rights as freedom.
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