‘Carol Gilligan’s critique of the rule of law arguably might have once been relevant, but today, it has undoubtedly lost its force’. Do you agree? If so, why? If not, why not?

The rule of law is the principle that no one is above the law. It follows logically from the notion that truth, and therefore law, is based upon fundamental principles which can be discovered and cannot be created through an act of will.[1] Of particular interest, is how feminist scholarship and the rule of law correlate.  Writing in the late 1980s, Carol Gilligan presented a new theory towards feminism, adapting the psychological research of Kohlberg’s moral stages.  Kohlberg, studying and analysing the psychological tendencies of both genders across years of development, empirically charted their varied responses to a range of hypothetical ethical situations and scenarios. Gilligan utilised the studies to reveal that beginning around the post-conventional age of development, females began to score ‘lower’ than males, according to Kohlberg’s data. Gilligan came to the conclusion that the scores were graded incorrectly, and that women were not developing later, but rather possessed a different voice, one that was equally valid to that of the boys. [2]  Whilst males possessed tendencies towards an ethic of rights, females were more disposed to relationship-preservation and special obligations in interpersonal relationships.[3] Gilligan’s theory progresses to demonstrate that this unique ‘voice’ of women is greatly varied from that voice which our law and societal institutions comprise.  Indeed, this ‘women’s voice’ exists beyond the ‘Ethics of Justice’ which society has embraced.  The strict belief that Gilligan’s theory is non-existent in societal and legal institutions today may not be so accurate. This is evident in areas of law including Family and Criminal. Accordingly, one may argue that this theory has not lost its force and remains relevant today.

Gilligan’s work offered a novel presentation of the female self and of the nature of sexual difference derived from the empirical study of real women’s lives. By carving out an area in which woman became the object of inquiry and by exploring “. . . the dissonance between psychological theory and women’s experience”, she produced knowledge claims concerning actual women, their basic orientations and their approaches to life and relationships. [4]  In her critique of the rule of law, Gilligan postulates men and women possess innate psychological differences, and that due to the dominance of men in society over time the voice of women has been completely excluded, or at the very least marginalised from law and society.[5]  At the same time, the ‘ethic of justice’, the man’s perspective of the world, has dominated and been institutionalised. Gilligan’s theory the ‘ethics of care’ is a relationship based ethical theory, which contends that women possess a unique ethical disposition. This is the premise of her critique of the rule of law as she demonstrates that the existing paradigm which operates in all sects of society is patriarchal, and “built on a disconnection from women”.[6]  Thus, women are subjected to the natural norms which operate in men, and dominate society, whilst their own innate ethical tendencies are excluded from institutionalised society.  In essence, Gilligan empirically charts the fact that women naturally employ a different ethical orientation to the established ethical orientation enshrined in our institutions – ethical justice.

Gilligan’s work in moral psychology challenges ‘justice based’ approaches to moral discussion: ‘men tend to embrace an ethic of rights using quasi-legal terminology and impartial principles…women tend to affirm an ethic of care that centres on responsiveness in an interconnected network of needs, care, and prevention of harm. Taking care of others is the core notion.’[7] Gilligan is thus demonstrating that women recur to a different ethic than men and this female relational perspective of the world is excluded from the male social order. Fundamentally, Gilligan’s arguments are based on empirical research and studies, the value of this being that Gilligan’s theory depends primarily on innate psychological dispositions and in this way, is not necessarily placed in time, making her psychological assessment continuously relevant to society.  However, in addition to stating the ethical variations between the sexes, Gilligan’s theory is similarly demonstrative of the fact that the Ethic of Justice prevails within society’s institutions, and that the law is reflective of an established patriarchal paradigm.  This later part of the theory which suggests the variations in voices has led to the exclusion of female perspective, is arguably no longer as relevant today as it once was.  It is demonstrable that the law has developed in many areas in order to recognise the unique voice of women.  For instance, Section 18 of the Uniform Evidence Act 1995 provides that spouses, de facto partners, parents or children of a defendant cannot be compelled to give evidence as a witness against the defendant.  If the court believes the witness, particularly spouses, should be required to give any such evidence against their spouse, the court is required to consider the nature of the relationship between that spouse and the defendant.  Indeed, in R v Khan[8], the court held that in a marriage of 10 years with children, Mrs Khan’s requirement to give evidence against her husband would likely cause harm to her relationship with the accused, and thus it outweighed the desirability of having the evidence admitted.  Whilst this is admittedly but one small aspect of criminal law litigation, it is nonetheless demonstrative that the law does still recognise relationships and seek to preserve them – exactly what Gilligan postulates as the voice of women in the Ethics of Care.

The Ethics of Justice, the male ethical standard, is argued by Gilligan as indoctrinated into all facets of society and law.  Whilst almost any example of legal operation can be used to demonstrate this, Gilligan most commonly uses contract to illustrate that male thought encompasses legal process.  Contractual obligation, the notions of reciprocity and fairness, represent how male reasoning operates, to the exclusion of relationships.  Gilligan states that it is impossible in patriarchal society, to speak of ‘relationships’ in any way in which women would associate. Carol Gilligan emphasises that women must be understood on their own terms and must not be assimilated into “the existing theoretical framework”.[9] The women’s voice must be incorporated alongside the man’s as they are both equal, just different.  In some ways, the law has sought to do just this, and incorporate female relationship-based operation into the legal system.  Another example of this within both International and Family Law is the way in which children are regarded and dealt with, particularly in broken families.  The international Convention on the Rights of a Child (CROC) prioritises the best interests of the child as primary consideration and seeks children to be protected in matters of divorce and at all times.  This is reflected in the Family Law Act, whereby shared responsibility and the need for both men and women to operate as effective parents saw reform be made so that the need for children to have access to both parents on whatever terms was prioritised by all means necessary, even if time with parents was supervised.  The need to preserve relationships, recognise relationships and ensure recognition that the statute previously discriminated against the role of women, are all indications of how women’s voice has been significantly incorporated into society’s legal processes, as law reform seeks to encompass societal needs. Furthermore, the number of women holding high ranking positions in society such as CEOs of corporations, high court judges and politicians (such as Deputy Prime Minister Julia Gillard) indicates society’s response to women’s needs.

Gilligan significantly does not reject the male Ethic of Justice, but insists it can not operate without the Ethics of Care alongside it. Crucially, this is because both men and women are capable of exercising judgement in both ethical orientations, the difference being the natural preference of women to Care, and men to justice.  Thus, just as both genders are capable of both considerations, so too must law and society be willing to embrace both, which again reinforces the relevance of her theory to modern society. Whilst implementation of the Ethics of Care would fundamentally better society, it would also allow for the unique voice, and thus the unique contributions of women to be valued and recognised, thus allowing women to similarly achieve greatness and recognition in society and law. The ethic of justice by itself can not operate effectively, because its gendered tendencies operate to holistically exclude women. Because women are living in a world created and dominated by men, their own psychological and natural rationales and tendencies are being excluded. Whilst it is evident that to an extent the voice of women is being incorporated into societal institutions and legal processes, the areas in which the law has recognised the voice of women are limited, and statistically men still dominate over women in almost all sectors of society.  In this way Gilligan’s arguments remain relevant today.  Law reform remains necessary to institutionalise further the relationship-based tendencies of women.

Overall, the promise of the Gilligan’s critique, therefore, embodies both a ‘feminine’ and a ‘feminist’ ethic of care. The first points to the relational world of women as it appears within a patriarchal order grounded upon notions of abstract justice and contractual obligations. And the moment the otherwise unspoken or dismissed voices of this world are listened to, a space opens into which the second emerges calling for a displacement of the patriarchal construction of relationships. The law as it exists is problematic in responding only to the male way of thinking and rationalising. Although voiced by women, this feminist ethic promises a social order in which a relational voice speaks not only for and of women but also for an alternative model of human relationships generally and a new societal blueprint for all. In positing this alternative vision, the feminist ethic of care thus becomes a powerful standpoint for social critique and a site of resistance to a male-orientated, patriarchal vision of society, but one which carries a promise for the future realisable only if women’s ‘different voice’ is heard.[10]According to Gilligan, the law is a rational application of rules to facts, and ethics are applied through a hierarchal system of values[11], as described by Bohler-Mueller. Her theory remains relevant today as the legal system is continually evolving and must factor in societal changes as a whole, which includes women’s voice. Incorporating an ethic of care into the legal system would mean the creation of duties to perform positive actions, because the ethic of care builds on relationships between people, the law too can build on such significant areas. The ethics of care is needed in order to respond to the gap in the law which excludes women, and thus excludes a fundamental aspect of human makeup, and overlooks the need to build and preserve and recognise social relationships. Bohler-Muhler suggests that Gilligan’s ethic of care could be effectively employed in assisting courts to determine hard cases, such as Khan.[12]  The ethic of care is clearly demonstrated as possessing a strong potential contribution to the operation of law in society, the position of women in law and the recognition of alternate moral leniencies. In this way, Carol Gilligan’s ethic of care retains its relevance even today.