1
Critically assess the implications of legal positivism on the protection of
women’s human rights across the globe!
Introduction
In this essay, I explore the implications of legal positivism on the protection of women’s human rights in the world. Legal positivism is one of the most widely followed and at the same time controversial schools of thought within the legal profession and by effect has influenced the structure, discourse and reality of the way in which rights and law are perceived in our modern society (see Schauer, 1996). Therefore, critically analysing the impact it has on the protection of human rights and particularly on women’s human rights is crucial to understanding the advancements and setbacks that the women’s human rights movement faces both now and in the future. The analysis leads me to two somewhat contradictory conclusions. On the one hand, I find justified and far-reaching criticism of the concept of legal positivism and evidence that it has been a repressing force on the development of empowering law for women. However, in contrast I find that the international movement for the advancement of women's human rights has displayed a tendency towards taking on the legal positivistic approach when arguing in favour of rights. This in many ways conflicts with the struggle for women’s rights at lower judicial levels.
The paper is structured as follows. I start out with a very brief summary of the principal notions of legal positivism that have been put forward by its most influential scholars. I draw from these a definition of legal positivism that will be utilized for the analysis.[1] Next, the impact of legal positivism on the general human rights movement is assessed, as the protection of women’s human rights falls within its framework and is, therefore, highly dependent on this relationship. The actual assessment with regard to women’s human rights is then undertaken, distinguishing between international human rights law and the protection of women’s human rights through the domestic legal systems. Finally, I conclude with the most radical reaction towards legal positivism, which has come from feminist legal scholars who fundamentally condemn the entire concept for reproducing the ‘fundamental connections between patriarchy and law (Stubbs, 1997: 303)’.
Legal Positivism
Hans Kelson (1973), one of the most prominent scholars of legal positivism, argues that the world that is has to be distinguished as separate from the world that ought to be, leading to the assertion that there is no way for man to rationally confirm the existence of one universal morality. In consequence, Kelsen reasons that all values are relative, as they merely constitute the subjective opinion of the person holding them. Legal positivism is accordingly defined as the scientific and analytical inquiry of what is given within a legal system, drawing with this a distinct line to other disciplines such as the ideologically ‘loaded’ fields of ethics, religion and ideas about natural law. Kelson contends that the legal positivist should focus his analysis on the factual legal reality in which he finds himself.
Law is, therefore, in itself understood to be a neutral entity from which scientifically valid deductions can be drawn. Any conclusions taken further than this cannot classify as unbiased analysis of the law as it is and thus belong to the field of politics or an ideology (see also Raz, 1984). By distinguishing between ‚is’ and ‚ought’, Kelsen figures that any law – no matter how unethical, immoral, wrong or discriminatory it may be – is a just law, given that it has gone through the relevant procedure of being recognized by the sovereign authority.[2]
A true legal positivist is, therefore, generally critical of any claims to moral validity or universality of law. Kelson believes that the law can only reflect what human beings have decided it to be and not stand alone as a universal truth. The concept of what is just – in terms of a specified legal system - has to be distinguished from what might be seen as moral in a relative and hypothetical way.
Hart can be considered one of the most influential legal positivists to build on and transform Kelson’s argument. Like Kelson, Hart negates a necessary connection between law and morality, as all laws are made by human beings with different values and morals (Hart, 1961). He agrees with Kelson on the importance of studying law in its pure form; distinct from any social goals or ethics. Morality can never lead to a ‘right’ decision as there is no universal morality and ‘legal institutions therefore exist to settle authoritatively for practical purposes what cannot be settled morally (MacCormick, 1996: 169)’.
However, deviating from Kelson, Hart asserts that law can include moral standards and that morals do influence the legal system, especially in questions that remain under-addressed by the current set of laws. However, the legal system’s precise function is to ultimately settle matters that arouse moral controversy, in the correct procedural way. This strand of argumentation has been termed inclusive legal positivism.
Contrary to Hart, scholars like Joseph Raz have advocated the exclusive legal positivistic idea of morality and law being strictly differentiated; maintaining that law itself is the highest authority above which come no moral considerations. Consequently, cases made within a legal system can be correctly settled by running through the valid legal process. However, should a case involve questions that go beyond the existing law and the judge decides to settle it at his or her own discretion, then s/he is officially leaving the grounds of law and applying morality (Raz, 1979: 49-50).
I have presented this distinction between inclusive and exclusive legal positivism, as both ideas enjoy recognition among legal scholars. For the purpose of answering the question set by this essay, I will adopt the inclusive positivists’ definition. I do so as I assume any negative evaluation that can be issued against this so-called ‘soft positivism (Himma, 2006)’ from the viewpoint of the human rights movement will equally apply for exclusive positivist theory (see Raz, 1979). This can be underlined by extensive criticisms from legal feminists scholars, who have concentrated on Hart’s work (see Stubbs, 1997; Thornton, 1995) as well as natural law scholars (see Fuller, 1958).
Legal positivism is thus defined as the conception that all law is made by human beings, that a legal system can exist without any necessary connection to morality, that the study of law should aspire to a value-free scientific analysis of the law as it is given by the sovereign authority and not as it ought to be and lastly, that a legal system can - in itself - validly settle cases and disputes with the help of logical deduction (see Hart, 1958; Kelsen, 1973; Raz, 1979).
Legal Positivism and Human Rights
The approach legal positivism takes towards law fundamentally contrasts with the idea of universal human rights. In fact, at a conceptual level, one could see them as the antithesis of each other. We find legal positivism ultimately justifying laws through their mere existence in a legal system, while rejecting any form of universal morality that could possibly be of guidance to what is a right and a wrong law. Kelsen’s idea of relative morality lies at the core of his legal philosophy that denies the existence of universal normative laws (Weinberger, 1973: XXVI). Although this claim has been made on behalf of relativists who see human rights as a concept that has to be defined in the specific cultural and regional contexts, human rights as proclaimed by the United Nations are founded on the idea of natural rights that every person possesses regardless of his/her cultural or legal circumstances (Freeman, 2002: 42).
The dilemma here is that although human rights may stem from a universal moral claim, their actual recognition can largely be attributed to the work of advocates who have tried to turn them into legal rights (see Fagan, 2003). Thus advocates of the international human rights doctrine often find themselves arguing with the terminology of legal positivism, saying that something is a human right, because international human rights law says so (Freeman, 2002: 42). From an empirical point of view, this development of institutionalising human rights has even been termed the ‘New Age of Rights (ibid: 32)’, under which the classic legalism’s approach towards law has been extended to the sphere of human rights that are now to be protected as they have been written down in international law. So in a sense, the creation and accession of states to international and regional legal institutions designed to protect human rights can be seen as a major victory for the movement that has overcome the disparities between legal rights and moral rights.
Why then, is this system still not effectively protecting women’s human rights? I will give a brief overview of the idea behind ‘women’s rights as human rights’ and then assess the way in which the concept of legal positivism has influenced the movement. In order to more accurately assess the implication of positivism, I distinguish between protecting women’s human rights at the international and the domestic level. Whereas the mechanisms in place at the international level are generally seen as appropriate for protecting human rights (but see Waldron, 1987: 179), national laws are often still the focus of substantial criticism.
Women’s Rights as Human Rights and the implications of Legal Positivism
The International Level
The notion of declaring women’s rights as human rights is a recent development of the international human rights movement that tries to re-frame women’s issues as human rights concerns (see Bunch, 1990). Although this might sound somewhat tautological, there are still considerable deviations between the goals of the human rights movement and those of feminist groups, which has led to women’s rights being lost somewhere along the way (H.R. Series, 1995: 2). Drawing on numerous evaluations, it becomes apparent that the structure and substance of human rights mechanisms already in place have in a bizarre way to date been part of the constraining force that has oppressed the advancement of women’s human rights (see e.g. Cook, 1994; Romay, 1994; Stamatopoulou, 1995). It has been pointed out that
‘[b]ecause the law-making institutions of the international human rights law have always been, and continue to be, dominated by men, international human rights law has developed to reflect the experiences of men and largely exclude those of women, rendering suspect the claim of objectivity […] (Charlesworth, 1995: 103)’.
On this view, the structural inequality women have to endure under international human rights law has a similar effect on the way women are perceived to that generated by legal positivism, even though we have seen that the concepts differ fundamentally. This is an extremely important observation as it tells us a great deal about the way the law today is actually structured and the way in which women’s human rights activists have tried to accommodate themselves with it. The movement for women’s human rights has not advocated a radical critique of legal positivism. They have not attempted to re-structure and revolutionise the way in which we think about the legal system. Rather they have sought to transform the way we think about women’s rights so it fits into the already existent legal mechanism. The implications of legal positivism are addressed at a much lower level of abstraction using the law as it is to advocate for it to be implemented as it ought to be.
The focus of international campaigns has therefore been on the strategic incorporation of issues concerning the discrimination and violence against women into the existing human rights framework. Instead of finding new categories of rights, campaigners in this field have sought to position women’s issues within the legal mechanisms in place. For example, in the 2001 Amnesty International (AI) Special Report on women, acts of domestic violence and ill treatment of women in many other fields are classified as ‘torture of women in the home and community (p.3)’. In doing this, AI refers to the UN Convention against Torture to justify its claim and at the same time hold the state responsible for these crimes.
What we find here is an extremely realistic and strategic approach towards the compatibility of human rights and gender that clearly makes use of existing tools without attempting to investigate a new area of rights. In working with the law as it is, the approachhas tried to transform elements of the legal instruments (not the whole structure) that are in place and that are under the authority of a national state. As the human rights have principally focussed on the ambiguous position of the state authority as principal protector and violator of the individual’s rights, it has given the state a similarly prominent position within its framework to that enjoyed in legal positivism.[3] Consequently, many campaigns on women’s human rights have focussed on demonstrating state responsibility to protect women from all state and non-state violations of their rights. Since the majority of violations come from private individuals, the question arises whether this framework is indeed suitable to address this discriminatory reality (see Knop, 1994). But let us first look at the domestic level.
The Domestic Level
The situation at the domestic level within national legal systems paints a different picture. Whereas the international human rights law is purposefully built on the premise of pre-legal human ‘rights’, national laws often contradict these and even prove to be discriminatory against women in both formal and substantive ways. Here, we find the basic function of law assigned by legal positivism to often be challenged at its foundations. In many cases, women’s issues find themselves in a sphere where either no law exists, or the law is not in a position to provide a clear settlement – through the deductive logical reasoning in itself.
Prime examples are the disputes on women’s reproductive rights regarding the free choice of abortion in the first stage of a pregnancy. There have been few areas of judicial ruling that have been contested and revised at such a high frequency as in this field. The so-called ‘X’ Case as documented by Human Rights Watch (1995) is a prime example of this contradiction. The case deals with a fourteen-year-old girl in Ireland who was found to be pregnant after being raped. When she travelled to Britain so as to have a safe legal abortion, she was ordered to refrain from such activity and return immediately to Ireland. Furthermore, she was prohibited from leaving the country for the whole duration of her pregnancy. Also, the report states ‘at the same time the high court was considering the ‘X’ case, the Irish attorney general threatened Irish newspapers with contempt of court if they continued to report on the lawsuit (p. 447)’. In the same vein, organisations had been charged for distributing pro-choice material to inform women of the possibilities they have in other legal jurisdictions.
What does this tell us both about the influence of morals on the legal system and the system’s ability to logically deduct correct answers from itself? Although abortion has been illegal in Ireland for nearly 150 years (ibid: fn 99), the infringement of women’s right to free movement and additionally women’s right to receive information about abortion options in other countries have been developments of the past 20 years. Speaking in the terms of legal positivism, these rulings touch on a new area that has not been explored by the existing system and thus requires a logical deduction from the judge in charge. Although the judge might be influenced by his or her own personal moral, s/he will eventually settle the matter in a correct way. This case serves as an empirical falsification of both the relationship between law and morals as well as the ability of the legal system to settle these disputes in a correct way. Through prohibiting ‘X’ to leave the present legal system where abortion is illegal, a moral implication has been issued that she ought not be allowed to have it performed, thus assuming the unthinkable for legal positivism; that what is prescribes what ought to be. Also the case demonstrates how at first the campaigning of anti-abortion groups influenced the rulings of the court and how the resulting international pressure and unrest ‘forced’ the Irish government into respecting women’s civil rights of movement and information (ibid: 448).
Law here is far from being a socially detached phenomena, it is in fact the perfect reflection of the social discourse that has taken place and still takes place around the issue of abortion. Legal rights are the expression of the politics and ‘[t]he conditions that block access to equal rights are in large part due to a lack of sincere political will to improve the social circumstances of women (Plata, 1994: 529)’. Issues such as marital rape, domestic violence and the above-mentioned reproductive rights of women have been at the centre of social debates and the development of modern societies. Legal positivists have argued that in the basic discourse of modernity, law is required to have clear lines and provide certainty - even when it addresses new concepts such as contemporary anti-discrimination legislation or e.g. abortion legislation (MacCormick, 1996). On this view, Thornton writes that ‘[i]nsistence on multiplicity, intersectionality [of the public and the privates sphere], and fluidity of subject identities is deeply corrosive of the foundationalism of legal positivism (1995: 12)’.