批判法学はジェンダーの法理論に何をもたらすか？

抄録

The aim of this article is to give preliminary consideration to whether or not Critical Legal Studies, in particular Duncan Kennedy’s version thereof, can contribute to feminist/gender jurisprudence. Section 1 examines feminist legal theorist Joanne Conaghan’s critique of Kennedy, confirming that, from her perspective, Critical Legal Studies is regarded as lacking in normative ideals, and is consequently unable to transform law and society. In contrast, Section 2 looks at the theory of feminist legal theorist Frances Olsen, showing for example that her critique of public/private distinction is based on Kennedy’s “archeology of legal thought,” and claiming that Critical Legal Studies, as a methodology, has already made a significant contribution to feminist/gender jurisprudence. Section 3 goes on to examine Kennedy’s theory on “sexy dressing,” noting that it provides a paradigmatic example of policy analysis in gender-related areas and that this mode of legal thinking uses the normative ideal of autonomy (self-creation) to justify the conclusion. In response to this, Section 4 considers Kennedy’s “workplace politics,” confirming that this theory suggests that we should accumulate pragmatic efforts to transform hierarchy within our own workplaces, and arguing that this suggests to feminist/gender jurisprudence that law should be criticized from within, which corresponds to the postmodern condition of law.