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...