Being Right

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Thousands more will be joining the legal profession, as the recent Bar passers take the Lawyer’s Oath (on this, see my April 21 column, “A new lawyer’s oath. And not necessarily for the better”). This brings to mind something once said by Theodore Roosevelt: “To educate a man in mind and not in morals is to educate a menace to society.

LAWYERS AND SOCIETY
Clearly, law schools have done their best — ostensibly — to create ethical lawyers that will do good for society. And yet, one aspect of the legal profession that needs to be understood is that the judiciary plays a huge role in the direction with which non-judicial lawyers (i.e., practicing and non-practicing lawyers, lawyers in the academe, business, politics, and so on) take. The judiciary, especially the Supreme Court, has — in practice — the unquestioned authority to determine who joins the legal profession, who can be disqualified, and even the continued training and quality of the lawyers themselves.

Considering the impact that lawyers have on society itself, it behooves everyone, not only lawyers, to examine the measures being taken by the judiciary regarding the training and quality maintenance of the legal profession. It is one thing to talk of legal philosophy in the classroom, it is quite another to be indoctrinating certain philosophies and applying the same in a manner approaching judicial legislation. All the more if such philosophies or ideologies are quite contrary to the values and principles of the Filipino people themselves, as well as contrary to the values and principles of the Constitution.

FEMINIST AND QUEER. AND MARXIST.
As a purely hypothetical scenario, let’s say a judicial officer advocates for the implementation of feminist or queer legal theories. Again, if such discussions were to take place within the academe, such would be perfectly welcome (provided, of course, that opposing views are welcomed as well). The problem in this scenario is it’s a judge advancing the said theories. Doing so would inevitably lead to certain unavoidable and quite unfortunate consequences. Indeed, to pass off such theories as if they’re practicable frameworks applicable to a working society is already ill-advised. First of all, they are what their name actually states: “theories.” And to use the country as a laboratory for such theory is utterly irresponsible.

And yet, setting that aside, the content of the theories alone should make responsible officials pause, particularly if such also go against whatever the Constitution stands for. Both feminist and queer legal theories, if not by conception but definitely in their present incarnation, are quite evidently Marxist in essence.

Take feminist legal theory, which takes the view that “women’s subordination was neither biologically natural nor God-given; instead, the class relations of capitalism enforced the gender hierarchies that anchored women’s oppression. Marxist feminists viewed this patriarchal family as integral to capitalism, and thus a site of oppression that must be destroyed.” (Marxist and Socialist Feminism, Elisabeth Armstrong, 2020)

Interestingly, while the new Code on Professional Responsibility and Accountability emphatically proscribes misinformation by lawyers, yet — in our hypothetical scenario — we see for example said a judicial officer advancing basically an unproven, practically false idea, of the “patriarchy,” being as it is an essential component of feminist legal theory:

“The theory of patriarchy, which says that there is a fundamental division between men and women from which men gain power, is accepted without question today by most of the left. The theory was developed by feminists such as Juliet Mitchell and Miriam Dixson who, in her book The Real Matilda, was inclined to blame Irish working-class men for women’s oppression, using the theory of patriarchy as the basis for her argument.”

And thus again, the essentially Marxist nature of feminist legal theory: “The Marxist analysis is that the historical roots of women’s oppression lie in class society. The specific forms this oppression takes today are the result of the development of the capitalist family and the needs of capital. Therefore, the struggle to end the rule of capital, the struggle for socialism, is also the struggle for women’s liberation. Because class is the fundamental division in society, when workers, both women and men, fight back against any aspect of capitalism they can begin to break down the sexism which divides them. Their struggle can begin to ‘transform the existing categories’.” (“The poverty of patriarchy theory,” Sandra Bloodworth, Marxist Left Review, 2020)

BIAS FOR SOGI, LGBT, AND DIVORCE
There is also the problem of perceived bias. For a judicial officer to be advancing such theories is ill-considered as it betrays a bias with regard to issues that feminist and queer legal theory are obviously in favor of: same sex marriage, gender identity and sexual orientation, and LGBT issues. Thus: “There develops the division of labor, which was originally nothing but the division of labor in the sexual act, then that division of labor which develops spontaneously or ‘naturally’ by virtue of natural predisposition.”

In other words, inequality according to Marx is the result of a “division of labor in the sexual act.” This division of labor is implicitly built on the distinction between male and female. This effects later divisions in labor and thus inequality. Thus: “if the sexual act and the division between genders is the very root of all inequality, the only means by which this inequality can be negated is through the androgenization of human nature, wherein the sexual difference between man and woman is abolished. Feminist readers of Marx, like Simone de Beauvoir and Shulamith Firestone, seized on this supposedly profound insight in Marx.” (“Marxism and the Gender Revolution,” Crisis Magazine, November 2021; see also “‘SOGIE Human Rights’: How is the European Court of Human Rights Shaping Queer Emancipation?,” Eleanor Currie, 2019).

Another potential issue that could go before the courts is a possible divorce law, which again feminist legal theory is in favor of: “Feminists would generally see the decline of marriage as a tradition as a good thing, because traditional marriage is a patriarchal institution. Most divorce proceedings are initiated by women which suggests that marriage works less well for women than for men.” (“Sociological Perspectives on Declining Marriage and Increasing Divorce on Society,” Karl Thompson, 2015)

CONFLICT THEORY AGAINST THE CONSTITUTION
The foregoing could also be said in relation to our hypothetical judge advocating for “conflict legal theory,” which was “first developed by Karl Marx” and essentially posits that “society is in a state of perpetual conflict because of competition for limited resources.”

The problem with conflict theory is its divisiveness. It goes against our constitutional call for unity, as well as “freedom, love, equality, and peace.” It holds that “social order is maintained by domination and power, rather than by consensus and conformity.” Thus, “those with wealth and power try to hold on to it by any means possible, chiefly by suppressing the poor and powerless. A basic premise of conflict theory is that individuals and groups within society will work to try to maximize their own wealth and power.”

Conflict legal theory also goes against the family and religion, which the Philippines has lifted up with constitutional value, and seeks to subvert our Constitution’s stated policy towards an “independent national economy effectively controlled by Filipinos” and encouragement of “private enterprise”:

“One common criticism of conflict theory is that it fails to capture the way in which economic interactions can mutually benefit the different classes involved. For example, conflict theory describes the relationship between employers and employees as one of conflict, in which the employers wish to pay as little as possible for the employees’ labor, while the employees wish to maximize their wages. In practice, however, employees and employers often have a harmonious relationship. Moreover, institutions such as pension plans and stock-based compensation can further blur the boundary between workers and corporations by giving workers an additional stake in the success of their employer.” (“Conflict Theory Definition, Founder, and Examples,” Adam Hayes, 2022)

NEITHER LEFT NOR RIGHT BUT THE CONSTITUTION
It’s bad enough if lawyers, acting as officers of the court and not as public advocates acting as clients themselves, try to impose their ideology on their clients, parties before the court, or the judges themselves. The same goes for legal academics that, instead of educating law students on the fundamentals of the law, try to indoctrinate them instead on their favored ideology. It is all the more unfortunate if judges, with their significant power, responsibility, and prestige, would seek to impose their personal beliefs on lawyers that by practice, habit, and tradition defer to them with utter trust.

In this, the remedy is to look at the Constitution and its author — our people. The product of centuries, even millennia, of human experience, it would be good for our officials of the court to rely on the wisdom contained in such experience and work within palpably proven legal frameworks, rather than subjecting our people to the role of laboratory animals vulnerable to consequences we cannot even begin to imagine foreseeing.

 

Jemy Gatdula is a senior fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence

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