When looking at the law, we see that it doesnt act in a vacuum.

Law is constantly changing

and adapting to suit the morals and politics of the time. In this essay I will argue that law is a system
of rules and concepts that is heavily influenced by the context of the society it is in, and by the
beliefs and morals of those who hold the power. This will be argued with reference to both Legal
Realist and Feminist theories, and how they support the idea that law is not at all autonomous from
the rest of the world.
Legal Realist theory is a value neutral theory that argues that the judiciary, and therefore the
judges, hold a large amount of power in our legal system. They argue that as judges all have their
own beliefs, and these beliefs are influenced by society, that judges do not have impartiality and this
therefore leads to inconsistent rulings and sentences in the legal system. What this means is that the
legal system is influenced by the society and politics of the time and therefore is not what many
people believe to be an autonomous system.
Homosexuality has historically been a very contentious issue with popular opinion
fluctuating from seeing it positively to seeing it negatively since the start of recorded history. At the
time of the 1986 case of Bowers v. Hardwick, USA the majority societal views towards homosexuality
were generally negative, with only a small amount of tolerance. As per Legal Realist theory this was
reflected in the decision made by the Supreme Court who ruled that homosexuality was not a
constitutional right as it would go against thousands of years of moral teachings. The fact that
there was a split in the decisions of the 9 judges on the Supreme Court at the time also
demonstrates Legal Realist theory, despite all 9 judges being presented with same case, personal
beliefs and morals led to different decisions.
This is supported further in the case of Lawrence v. Texas (2003), USA in which the ruling of
Bowers v. Hardwick is directly overruled; the Supreme Court decided that it was unconstitutional for
the state to be in its citizens bedrooms and that therefore engaging in homosexual acts is in fact a
constitutional right. The change in the decision by the Supreme Court reflects a significant shift
towards homosexuality from society in general and supports the idea that judges do not always
follow the law to the letter, there is room for interpretation, and their personal morals affect the
decisions and interpretations they make. In turn this leads to societys values, and judges own
values, having a direct effect on the development of the law. This shows once again that law does
not act in a vacuum but is influenced by many compounding variables.
Another case that shows the influence that politics has on the law is Finnigan v. NZRFU
(1984) in which the judiciary arguably stepped outside their jurisdiction for the greater good. In this
case the after the High Court denied Finnigan standing in his case he wished to bring against the
NZRFU, the Court of Appeal overturned this decision. The judges chose to grant him standing based
on a chain of contracts between himself and the NZRFU, along with acknowledging that Finnigans
case affected wider society. The judicial activism demonstrated here, with a loose interpretation of
the law to push the case forward, shows that the judges in this case were influenced by outside
factors and did not follow the law to the book.
What all of these examples show is that there are many pros and cons to legal realist theory.
In the case of Finnigan v. NZRFU it could be considered positive that Finnigan was granted standing
through loose law interpretation as many would say that this decision led to the protection of the
sport of rugby in New Zealand. However we can see from the homosexuality cases that many people
were denied basic human rights for many years because of the way in which the Supreme Court
judges of 1986 interpreted the constitution. But what is inarguable about both these cases is that
law was not acting by itself alone, law acts in a system that contains factors from every part of our
society, from religion to politics to economics even down the gender of those in power.
Feminist legal theory is the idea that the legal system is dominated by men. The majority of
parliament is men, judges are overwhelmingly men and statutes were overwhelmingly written by
men. In more contemporary times 3
rd
wave Feminism has begun to take a look at a larger number of
oppressed groups than just women, but the ideas are still the same, the legal system is run by
predominantly white, straight, Christian men and the laws and decisions of the courts reflect this.
Feminist legal theory is most obviously show in the case of Edwards v. Canada (1930) in
which the question was asked whether or not a woman should be considered a qualified person or
if this role was reserved exclusively for men. The Court of Appeal ruled that woman were not
qualified but the Privy Council overturned this decision. This case clearly demonstrates that the law
at the time reflected the society at the time in which men had full control.
In fact, in many cases the law views women as mere property. Up until the 20
th
century
women were seen was being owned by their husbands and could not hold any property rights. While
this changed in the 1900s cases that still perceived women to be property continue. In the 1980
case of Duke v. Symonds, Duke took Symonds to court for damages for stealing his wife from him.
Symonds was ordered to pay.
What these cases show is that the legal system is not independent of the power structures
in society. When men have control over women the legal system will reflect this, this ties into legal
realism in that the majority of judges are male as well. Therefore, in deciding cases, it is often that
only a male viewpoint is heard and this does not reflect the experiences of all of those contained in a
society.
Legal Realism and Feminism are also intertwined in the homosexuality cases of Lawrence
and Bowers. While feminism has historically placed a focus on the rights of women, 3
rd
wave
feminism has also expanded its sights to other minorities oppressed by the ideal male. In the case
of Bowers v. Hardwick Feminist legal theorists argue that the outcome might have been different if
the judges on the Supreme Court where not a majority of white, straight, men. As a result they
would find it difficult to sympathise with people who are different to themselves. If the people in
power only reflect one part of a society then the rest of the society will be left out. This is why many
Feminist Legal Theorists argue that the legal system needs to be restructured so that everyone is
treated and represented fairly, not just the views of the ideal man. This also ties into legal realism
in that the judges are impartial because of their life experiences, and male and female judges are
likely to rule differently on the same facts. Supporting the idea that law influenced by a huge
number of different factors.
Ultimately all these cases come together to paint a very clear picture to us. That picture is
that law is a complicated creature that integrates and is influenced by all parts of society. The
homosexuality and Finnigan cases show that it is not independent from the biases of judges and the
women as property cases show that it is not independent from inherent power structures in our
society. The assumption that law is an autonomous system from the rest of society is inarguably
wrong, law does not at all act in a vacuum but is influenced by anything and anyone who can get
close to it.