good question, bill. i have been thinking and reading these posts, with
the awareness that something is naggling around the edges. here is what i
think it is, at least for me....
since the daly case happened in the states, i am going to talk about our
legal system. we do not have a common law system but instead we have a
statutory law system. but in reality, especially in the practice of
enforcing our laws, there is usually a large common law component. the
daly case is a good example of that. in its best light here is what she
did -- as a result of thoughtful cultural analysis and with deliberate
purpose, she set up a class for women. in order to honor the needs of any
particular male, she went to the extra step of making the material
available to them from her. what she could not make available to these
males was the actual give and take of the class, but her reasonable answer
is that when males are put into the mix, there is a better than average
chance that they will turn the give and take to suit their styles, probably
unwittingly, so there is no way they could get the give and take anyway
unless they were willing to hide in the back and not say a word -- in which
case, they werent experiencing the course as it stands anyway and their
presence would still disrupt the flow. the only other option would be to
film the course without telling the women so that they would not pose, but
that is ethically unacceptable. as i said, in the best light of things,
her strategy seems like a pretty good common law solution. anyone trying
to use this as a precedent would have the burden of showing how the
dynamics of the proposed case would be similar to daly's case. in some
cases that would be true, but in most other cases it would not.
but it is dangerous to rely totally on common law unless you have a totally
homogeneous population that has been socialized to accept the dictates of
common law as a reasonable guide to civilization. so there is an important
place for statute law, which avoids the situation of having a body of
common law that is simply a mask for oppression.
but to apply statute law to a situation where common law seems to be
working, and most importantly to act as if there was no common law aspect
to this situation, is dangerously close to using the system of law as a
weapon. it doesnt matter if you are liberal or conservative, both sides
have used this strategy. my thoughts -- go with the blend, assume people
like daly are doing what they do out of a deep sense of decency, and figure
out ways for statute and common law to work together more effectively. but
what else would you expect from this tired ole Peircean pragmatist? :-)
gary shank
shank who-is-at duq.edu