「差異」と「平等」のジレンマ

―フェミニズム法理論からのアプローチ―

抄録

Most issues had traditionally been considered trivial, or 'no problem' until feminists identified them as attention-worthy, and undertook to resolve the imbalances. As these issues entered the judicial system, the recognition of 'the difference/equality dilemma' became apparent. Typical examples concerned the unequal treatment of women and men: where one side stressed perceived differences that mandated different treatment between women and men, while the other side dismissed such differences as discriminatory, and urged for equal treatment under the law. This article focuses on various approaches to this dilemma taken by Martha Minow and Drucilla Cornell. Minow's analysis concludes that there are unstated assumptions, which cause the dilemma. She proposes a new approach, which she terms the 'social-relations approach', to expose these assumptions and draw attention to many real differences in our society. Cornell examines the fundamental concept of 'person', and argues that an 'imaginary domain' should be secured equally for each person. Cornell's theoretical work makes it possible to argue about many issues in the name of an equality that rests on differences.