Republic 2 Essay, Research Paper
Brad Wilson
Women Studies
4 page paper
10/13/00
We live in a republic governed not just by majority rule but also by law. We use law in our country to limit the power of majority rule. The basic reason that we do this is because society can be flawed. This flaw can come from a variety of areas, but the one that I would like to focus on is sexism. In criminal law the courts are blind to the ideas that people are different. Every person is given the same privileges and limitations as the next person regardless of sex or race. We do not live in a system were there is a set of rules for men and a different set of rules for women. The application of these laws can be flawed however, because the means in which law is applied is done through human eyes. In theory law should protect every person in the same way, but the application of our laws falls short of this ideal.
We live in a system where the law treats every person in the same way. The major argument against this is that race and sex do come into law because we use people to implement the law. This idea that the problem with law is that the people implementing it are sexist should not lead to the idea that law is sexist. Instead we should face the real problem that people are sexist. The law does not say to a police officer to treat one group of people different, but rather the law states that all people should be treated the same. Does that mean that if a police officer treats people different that there is a fundamental flaw in law or does that mean that there is a problem with this officer?
The same situation can be brought out in the courts. Jury members not only decide a case on the facts of the case, but also from their own opinions. If there is a sexist jury member that jury member s opinion will affect the outcome of the case. Once again this should not lead us to believe that the law is flawed; instead that that jury member is. Our court system tries to make sure that any person that sits in the jury box can be impartial and fair. The courts also want a person that will decide the outcome of the case based on the facts. In reality is there any person that will not allow personal experience and opinions to effect their decisions. This still does not mean that law is fundamentally sexist. This simple means that people are. If there is a sexist outcome to a case there are really only 12 people that you can blame.
Now I say that there are only 12 people that you can blame, but that is not exactly true. I believe that lawyers in our country have become very good at playing with the law and with the emotions of jury. Simple examples of this are the Rodney King case and the OJ Simpson case. In both of these cases a criminal trial was marred with stereotypes and opinion. In one case that King was accused of being on drugs and being the fact that he was black and from the wrong side of town the defense attorneys used this idea to fog the facts of the case. In Simpson case the defense used the idea that police were trying to frame a black man. Both of these cases were decided on things other than the facts of the case. The question is, was it the racism of the jury, the layers, or the law? We will never know the answer to that question just the
A great argument for the idea that law is blind is that most of the rights the women have received in recent history have been achieved through law. Women have been mistreated in our system for years, it has not been until recently women started to receive equal protection under the law. Now that women have this right he sky is the limit as to how far women want to go. Discrimination laws have been past even though they were fought hard in the courts. Women now have recourse if they feel that were not hired, fired, not promoted, or did not receive equal pay. The right to an abortion was fought and won by women. As one of the most important trial cases of the 20-century this case shows that changing views of the courts and of society. The case was decided on the facts of the case not outside influence like religion or sexism. Women have amplified their place in our society and a lot of that has to do with the fact that courts are blind to race and sex.
I spoke to a lawyer names Randy Cooper from New Hampshire. He is a well-respected lawyer in the community and is soon to be judge in the state. We discussed some of the ideas that I stated in this paper and asked for his legal opinion on what I said. He first commented on the idea of lawyers using sex and race as a smoke screen for the facts. He told me that it is the job of the judge to determine if the questions that a lawyer of asking are relevant to the case. He also said that sometimes sexism and racism come into a case by this means. Mr. Cooper believes that if racism or sexism comes into a criminal case it is because there is some relevance to the facts of the case.
Mr. Cooper would not disagree with what I had said nor would he agree with my statement that law is fundamentally not sexist. He broke down my argument with a question. He asked me that if law is not sexist or racist why is it that we have outcomes that clearly show sexism. He said that system is the system and we are all players of the system. Mr. Cooper said the real test for law is in its application. This is where he finds flaws with law. Even though the law might not be sexist its application is. This much Mr. Cooper and I agree on, but he continues to say that if the application is sexist then law is sexist. He defines law as the process from breaking the crime to going to jail and at any point in between the criminal comes across any form of sexism or racism than the system has failed and law is sexist.
After speaking with Mr. Cooper I realized that to determine if law is fundamentally sexist we need to define when law starts and when law finishes. I define law as the written words that govern everyone, other such as Mr. Cooper define law in a very different way. Law is always changing. There are new laws added everyday and old ones taken out, but all laws affect everyone in the same way. When our law system was created I believe that there was one mistake made. We cannot have a system blind to race and sex when people are the ones determining the outcomes of the cases. I think the original formers of our law system either gave themselves to much credit or gave their society to much credit.