Saturday, April 21, 2007

Mannish Hands

One of the wonderful classes I'm taking this semester is Anti-Discrimination Law. It's with an extraordinarily gifted and intelligent professor, and I am learning a lot about how I view society's structure. I possibly have taken it on too much, at least from the perspective of the people who have borne the wrath I have expressed recently due to indignities, stigma and discrimination. Not that I have indignant white middle-class girl's rage, or anything.

Anyway, this is all leading up to the test I just did with my writing at this website. Sent to me by the ever-reliable (and ever-procrastinating, hence a woman after my own heart) WUB, she revealed that the test thought her writing was done by a man. When I entered my blog text, it thought I was a woman, just about. However, interestingly, every piece of legal writing I did was overwhelmingly "male" - with a male:female word ratio of nearly 2:1. This is intriguing, given that so many qualities for "good lawyering" are considered to be masculine - logic, single-mindedness, adversarial bearing (i.e. competitive bastard disease, which I have in spades). As such, one hundred and twenty four years ago Justice Bradley wrote:

It certainly cannot be affirmed, as an historical fact, that this [right to practice law] has ever been established as one of the fundamental privileges and immunities of the sex. On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits if for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States. One of these is, that a married woman is incapable, without her husband's consent, of making contracts which shall be binding on her or him. This very incapacity was one circumstance which the Supreme Court of Illinois deemed important in rendering a married woman incompetent fully to perform the duties and trusts that belong to the office of an attorney and counsellor.

It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.

The humane movements of modern society, which have for their object the multiplication of avenues for woman's advancement, and of occupations adapted to her condition and sex, have my heartiest concurrence. But I am not prepared to say that it is one of her fundamental rights and privileges to be admitted into every office and position, including those which require highly special qualifications and demanding special responsibilities. In the nature of things it is not every citizen of every age, sex, and condition that is qualified for every calling and position. It is the prerogative of the legislator to prescribe regulations founded on nature, reason, and experience for the due admission of qualified persons to professions and callings demanding special skill and confidence. This fairly belongs to the police power of the State; and, in my opinion, in view of the peculiar characteristics, destiny, and mission of woman, it is within the province of the legislature to ordain what offices, positions, and callings shall be filled and discharged by men, and shall receive the benefit of those energies and responsibilities, and that decision and firmness which are presumed to predominate in the sterner sex.

Bradwell v. Illinois, 83 U.S. 130, 139 (1873).

This was quoted, in part, by Justice Ginsburg in her dissent this week to the legal disgrace that is Gonzales v. Carhart. That was to illustrate that paternalism towards women on the basis of their is an abhorrent and outdated thing, an abomination, a monstrosity. And so it all links back, and is connected, paternalism and sexism and gender stereotyping and the denial of abortion rights. But I was particularly interested because, according to this website, successful legal argument (in that it comes from papers I have written with reasonable modica of success) is inherently masculine.

And that gave me pause, today.

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