Chapter 9
Legal Rights
What happens when a law is unjust? What should the individual do?
9.1 The Law is Terror Put into Words, d’Errico
Legalism is a veil, and people are becoming aware of the actions of the people in the legal system. Legal system is not working, but we then call on it to do even more.
Americans are addicted to authority. Solution to every problem is more rules.
Positivism: Society must have someone, somewhere, with the final word on who must do what.
Rights are key to legalism. Theory is that rights limit what government can do. However, rights are defined and granted by the system, and just perpetuate the system.
Legal system cannot solve many of the problems it is expected to solve. Also, the legal rules are written so as to ignore much of what causes the underlying problem.
Legal realism started to pierce the veil around the legal system. We need to keep going to allow more criticism and reevaluation of the law.
9.2 Excerpt from “Letter from
King was
under arrest for making an illegal protest in
King identifies the paradox: how can you support breaking the law when you are relying on the law to advance your position?
How can you break some laws and obey others?
Like Augustine, an unjust law is no law at all.
Examples of unjust law:
Segregation in general.
Law where majority forces minority to obey, but does not bind itself.
Law enacted where minority has no say.
Law that is valid on its face, but unjust in application. (Parade permits).
However: If you break the law, you must accept the consequences. By taking the consequences, you draw attention to the unjust law.
What Hitler did was backed by law, what resistance movement did was illegal. Who was moral?
Should we have to wait for justice? Legal system takes too long.
Big problem: Who gets to say what law is just and unjust?
9.3 Feminism and Porn: Fellow Travelers, McElroy
1. Thesis: Traditionally, feminists have seen pornography as the enemy of women’s freedom. That is wrong.
2. Gender roles and sex go together. Equal marriage, lesbianism, birth control, abortion, gender justice.
3. Current trend toward censorship.
4. Problems with censorship
a. Rebounds against women
b. Stengthens those in power
Without freedom of speech, there is no freedom to demand change.
5. Historical background
a. Early reformers (mid 19th Century) pushed for “purity”, i.e. laws against prostitution, alcohol, and pornography. They attacked those fighting for women’s sexual rights.
b. Comstock laws. Attacked dime novels (“Books are Feeders of Brothels”), information on birth control. Many books seized, many convictions obtained.
c. Background of Sexual Repression
Legal rights of women very limited
1. Wives were property of husbands.
2. No voice in government.
3. Husband had power to commit to asylum, etc.
Change grew out of abolitionist movement, because
Legal limits were similar to slavery.
Civil war amendments applied to race, not gender.
d. Paths to women’s rights
1. Right to vote
2. Social purity crusades (age of consent, reformation of
Prostitutes, censorship of obscenity)
3. Sexual rights and freedom (free love movement)
Contraception, Reform of Marriage Laws
e. Heywoods and the Word
Favored reformation of marriage
Cupid’s Yokes (ties of love should replace legalities)
Arrested for violating obscenity laws
f.
Leading journal of sexual liberty of its day.
Convicted several times on obscenity charges.
g. Margaret Sanger (leading feminist in early 20th Century)
Published birth control information, violated the law.
Opened birth control clinic. Arrested by vice squad
For giving birth control information
Concludes: Women cannot limit any expression of sexual freedom. To do that denies their sexuality is their sexuality.
Example: