5
Theory
There are three specific bodies of research that posit that men and women, at
times, will have a different perspective towards law: feminist legal theory, socialization
experiences of men and women, and critical mass theory.
“Different Voice” Theory
“Different Voice” theory is a stream of feminist legal research which posits that
there are feminine and masculine perspectives toward law. Interested in understanding
the moral development of men and women, Gilligan (1982) conducts a study that
examines whether men and women approach and resolve moral dilemmas differently. In
terms of moral reasoning, her findings suggest that women often use an ethic of care,
while men tend to use an ethic of justice. An ethic of care reflects resolving moral
dilemmas in terms of a focus on a responsibility to others, whereas an ethic of justice
refers to approaching moral dilemmas by concentrating on autonomy. She suggests that
one of the reasons that men and women may use different approaches to resolving moral
dilemmas is because of the different socialization experiences of males and females.
When applied to law, the “different voices” theory suggests that male and female judges
will differ in terms of conceptualizing the question the court is addressing as well as how
to resolve the dispute (see e.g. Menkel-Meadow 1985; Sherry 1986; Davis 1992/1993).
Thus, behavioral differences should be apparent between male and female judges.
Socialization Experiences of Men and Women
Gilligan, among others who argue for an ethic of care, maintain that men and
women’s different voices derive from different socialization experiences (Gilligan 1993;
Brody 1990). They perceive gender differences as socially constructed rather than a
Convention