실증주의 방법론과 여성주의 법학

Abstract

This is a study to introduce and rethink the significance of positivism in relation to feminist jurisprudence. It particularly focuses on the methodological implications of the positivism on the ‘fact-finding’ procedure at the judicial process. In so far as feminist jurisprudence designates a ‘woman’ not so much an object of the study as a source for the perspective in interpreting the law, question of methodology in pursuing the feminist legal analysis has been critical. As perceptions on gender often have been formed in the informal setting such as family and the intimate relations, the ‘taken-for-granted’ nature of the common sense could easily be permeated in the judgment of various legal issues of gender. Thus, one of the main arguments in legal feminism has been the necessity of the viewpoint or method to secede legal judgment from the prevailing notions of gender that often naturalize the masculine supremacy over the female and gendered division of labor, etc. Positivism mainly as a social science research method as confined in this article can be a tool to defeat unscientifically based gender stereotype and other male-centered assumptions in the legal decision. For this purpose, this article attempts to locate the tradition of positivism within legal feminism as well as sociology of law and reviews the judicial cases regarding women's labor mainly in the United States. How to decide the BFOQ (Bona Fide Occupational Qualification) exception that is consistent with the stipulation in the Civil Rights Act of 1964 [Title VII] was the main issue in the cases examined. According to the nature of ‘facts’ such as the applicant's strength, heights, customer's preference and the notion of sexuality, the value of positivist research varies as well. In the sexual harassment cases, however, the positivist method would face dilemma or even challenges. The perception on the sexually harassing behavior is systematically different between men and women based on their positions and their notions of sexuality. Moreover, the subjective factor such as ‘the unwelcome’ has been recognized at the court as the critical one. The article accordingly discusses the ‘reasonable woman standard’ in the light of the method of investigation. The study interprets the reasonable woman standard as a middle way between the objectivity in finding the facts and the device to accommodate the difference between women and men. The study finds this standard useful especially when it is built upon the social scientific research so that it overlaps with ‘the reason’ that the average woman has. In this effort, the reasonable woman standard would not contradict with the positivist inquiry of the reality. Through this analysis, the study attempts to classify the differences in the facts such as external facts, subjective facts, and internal facts. This classification suggests that the lawyers and social scientists need to deal with the differences in the nature of ‘fact’ in each case. Nonetheless, positivist approach in inquiring and investigating the facts is found to be a very effective tool to nullify the prevailing stereotype about men and women. As a legal decision can be reached through the incessant dialogue between fact-finding and legal interpretation, the meaning of positivism would not be confined within feminist jurisprudence.