"The philosophy of law? Yes, I've heard of it. It's about the ancient philosophers. It's not an important subject, a simple memory test. You're mistaken if you think that the philosophy or ethics of law have anything to do with reality."
J, a law student waiting for the results of the second stage of the bar exam, says that "it is impossible to reflect on the existence of law itself or the problem of discrimination while studying law."
Law students have no thoughts on 'fairness'
Foreign Courts have accepted 'women's point of view'
Lawyer E says, "Traditionally, a judicial officer is assumed to have a basic ethical code, which is neutrality when it comes to values." The lawyer goes on to point out that "the problem is that no one seems to know what neutrality of values means."
Unlike Korea, other countries such as the US, Switzerland and Canada have continuously kept up the debate regarding the definition of 'fairness,' 'neutrality' and 'objectivity' of the law. The debate becomes particularly heated when it comes to the issue of how to apply the law to women-related cases such as sexual harassment and gender discrimination. Because 'who's side the court takes' all depends on the court's 'point of view.'
"… cannot use the feminist viewpoint as a standard, as it regards the relationship between men and women as one of struggle and confrontation, and therefore it would be right to use 'the viewpoint of an ordinary average person' with sound dignity and manners, who understands the relationship between the genders as one of community and harmony…"
The above is an excerpt from the ruling read out during the appellate court hearing of the Seoul National University (SNU) sexual harassment case involving professor Shin. The court claims that it made its judgment from "the viewpoint of an ordinary average person," but most women feel that they have been excluded from this group of "ordinary average persons."
Recently, there was a controversy among the law students of SNU regarding the aggressor's written apology on wall posters where he revealed his identity. Says a senior law student at SNU, "The students all put themselves in the judge's shoes and talked about what crime the aggressor was guilty of, whether or not revealing the guilty party's name is a violation of constitutional rights, and whether there were any problems in the legal procedures taken in resolving the case." The student adds, "The debate failed to deal with the crux of the sexual harassment case, and students were unable to relate the case to their own lives."
The SNU law students say that "the recent case showed that law students' view of their roles as 'objective and neutral judgment-makers' is in contrast to the 'victim-oriented' view upheld by the feminist movement."
In cases where the two views are mutually exclusive, overseas courts, where feminist law is well developed, acknowledge that a 'neutral position' free of all value judgments cannot exist. The reasoning is that since all knowledge and theories depend on experience, completely pure (or genderless) observation would be impossible.
Thus in a patriarchal society, a court 'taking no position' is the same as 'taking the male position,' and any ruling by such a court would be a male-oriented ruling disguised as 'neutrality' and 'objectivity.'
Saying that the law is 'fair' means that the law 'stands on the side of women and those facing discrimination.' That is why overseas courts acknowledge 'the viewpoint of rational women' in ruling cases involving gender discrimination. And herein lies the reason feminist law studies is a must if we are to establish 'fairness' in Korea's legal system.