I was reading a comment from a particularly annoying father's rights guy in which he posed the following question, "Who do you think is more likely to get justice, a man who is standing before a female judge in a family court matter, or a woman who is standing before a male judge in a family court matter? Let's not kid ourselves."
I think the father's rights person thought that question was an easy one to answer, but really it isn't. He isn't the only one to go before a woman or a man judge taking along with him assumptions about what he can expect. What do you think? Can you expect more or less justice from a woman judge? Are women at all equipped to do the job of a superior court judge?
In 1986 when I was taking classes in Educational Psychology for my teaching certificate, I was told "no" women do not have the qualities of mind that it takes to be a judge. Based upon the theories of moral development established by Prof. Lawrence Kohlberg, a student of Jean Piaget, women simply do not have the ethical capability to fulfill the duties of a judge properly.
Starting in 1958, when he was a graduate student, Prof. Kohlberg used stories such as the Heinz dilemma as a means to evaluate the moral reasoning of the individuals he studied. Eventually, he broke up the stages of moral development into three levels, pre-conventional, i.e. "what's in it for me?", conventional, i.e. "what will other people think of me?", and post-conventional, "what is the greater good?"
The Heinz dilemma for those who don't know is as follows:
A woman was near death from a special kind of cancer. There was one drug that the doctors thought might save her. It was a form of radium that a druggist in the same town had recently discovered. The drug was expensive to make, but the druggist was charging ten times what the drug cost him to produce. He paid $200 for the radium and charged $2,000 for a small dose of the drug. The sick woman's husband, Heinz, went to everyone he knew to borrow the money, but he could only get together about $1,000, which is half of what it cost. He told the druggist that his wife was dying and asked him to sell it cheaper or let him pay later. But the druggist said, "No, I discovered the drug and I'm going to make money from it." So Heinz got desperate and broke into the man's store to steal the drug for his wife. Should Heinz have broken into the laboratory to steal the drug or not?
In answering the question, it is not so much what the person thinks Heinz should do that matters, but how the person justifies his answer.
Fundamental to Dr. Kohlberg's theory is the concept of justice--it is a "justice-centered theory of morality". As one expert explains it, "Kohlberg's theory centers on the notion that justice is the essential characteristic of moral reasoning. Justice itself relies heavily upon the notion of sound reasoning based upon principles." And further, "Kohlberg's theory understands values as a critical component of the right. Whatever the right is, for Kohlberg, it must be universally valid across societies (a position known as "moral universalism"); there can be no relativism."
Essentially, Professor Kohlberg indicated that women are morally inferior to men because they get stuck on the conventional level and worry about what people think of them. In contrast, he deduced that men are much more able to move beyond that stance towards the post-conventional level where you think more on the level of abstract principles and are less concerned about the people involved in the decision.
What this means is that Prof. Kohlberg would have said women are not suited to be judges because they get bogged down in the interpersonal details and are unable to think in the kind of broad and abstract ways that lead to just decisions within the courtroom. If you can imagine, this was taught as truth in my day and no other perspective was considered.
In many ways, I understand Dr. Kohlberg's position. Women always seem so enmeshed in their life circumstances that they are unable to see independently; they get caught up in moral relativism--how is it for this particular sympathetic individual. In contrast, men don't seem to take everything so personally and they appear to be willing to do what they think is necessary without worrying so much about what others will think of them. They are willing to do what they believe to be good for society as a whole, no matter what the consequences. I would agree that for whatever the reason, whether it is biology or social conditioning very few women actually have strong personalities--they tend to be very wishy washy and fade into the woodwork. It is men who are willing to speak up and speak loudly and take decisive action no matter how unpopular.
So should we fire all the women judges since Kohlberg says they are not up to it?
Not so fast says -- well pretty much everyone! If you go online to google and type in the search terms related to men, women and ethics, you will get page after page of references to articles indicating that women are ethically superior to men. Why is this? I think it is because our cultural assumptions regarding the ethical superiority of women are so engrained in us that no one can believe otherwise no matter what Prof. Kohlberg had to say. In the West, the ethical superiority of women is one of those cultural concepts that will always be true no matter how false it is.
The original concept of the ethical superiority of women arose during the Victorian Age in 1854 when Coventry Patmore's poem "The Angel in the House" was published. This poem, which soon permeated every nook and corner of European concepts of femininity, celebrated the ideal woman as a wife and mother who was selflessly devoted to her children and submissive to her husband. As Virginia Woof said mockingly when she wrote about this ideal, "She [the perfect wife] was intensely sympathetic. She was immensely charming. She was utterly unselfish. She excelled in the difficult arts of family life. She sacrificed daily. If there was a chicken, she took the leg; if there was a draught she sat in it ... Above all, she was pure."
One of the most persuasive arguments in support of the 19th amendment which gave women the right to vote was that women's moral superiority would lead her to improve the moral fiber of society should she have the opportunity to become more involved politically.
In the 1980s, more support for women's ethical capabilities arose from the work of Harvard psychologist Carol Gilligan author of the book "In a Different Voice" and herself the daughter of an attorney. She theorized that men often base their ethical decisions on principles of justice, equality, impartiality, and rights, i.e. the justice perspective while women base their decisions based upon principles that uphold the need to preserve relationships and minimize hurt to others, i.e. the care perspective.
She stated that even though individuals are often aware of both perspectives, when it comes down to the wire and they have to make an ethical decision, they will choose one or the other perspective.
Dr. Gilligan agrees with Dr. Lawrence Kohlberg's perspective on how men and women make ethical decisions, but she would challenge Kohlberg's interpretation of what is going on. From her perspective, the concern women have for other people is vastly superior to the way men rely upon abstract, impersonal principles when making decisions that can often affect people's lives profoundly.
As Gilligan understood it, "Progress from stage to stage [of moral development] is motivated, in part, by the individuals increasing understanding of human relationships, and, in part, by the attempt to maintain one's own integrity and care for one's self without neglecting others. Throughout this process, women regard themselves as selves-in-relation." The bottom line is that women are more likely to think about how their decisions will affect relationships between people.
These insights are valuable combined with evocative brain studies reported in the book "Don't Think Pink" by Lisa Johnson and Andrea Learned that indicate that "while men may have more brain cells than women, men typically do not have as much of the connecting tissues that allows information to transfer more readily between the right and left brain hemispheres." Thus, men listen to others using only one hemisphere of the brain, while women use both hemispheres to listen to others. [So if you thought your man was listening to you with only half his brain, you were right!]
One of the most frequently reported consequences of this difference in brain structure is that women are more capable of detecting deception than men are. This must be very frustrating to women who are quick to recognize and report on the abuse they experience in relationships with their ex husbands, but ironically because they are women, male judges are likely to interpret their superior insights as exaggeration or simple hysteria.
So what does this mean for litigants in family court?
In order to get the proper adjudication of cases do we need to provide two judges--a male and a female judge--in order to ensure that both the justice perspective and the care perspective are included in the final judgment of the court?
I would not simply dismiss this concept out of hand. There could be some serious merit in this idea.
On the other hand, in our modern day where discrimination still remains rampant and we are struggling with the extensive corruption, particularly in our family court system, women judges are often in compromised positions and have often made a trade off to obtain their employment as a judge which consists of agreeing to promote the interests of men over that of women in order to get the job. If that is the case, as I suspect it is, we are not likely to obtain balanced and reasonable decisions from women judges.
In regard to men, more recent studies conducted by Prof. Laura Kray and Prof. Michael Haselhuhn have indicated that men tend to be less ethical if their masculine pride is put at risk. This would appear to indicate that, as a woman in family court, if you are dealing with a male judge, you will be more likely to obtain an ethical and fair decision if you flatter or appeal to their manhood.
So the issue of gender and suitability for the position of family court judge is much more complicated than it appeared to be at first. I don't think there is a simple answer to the question my father's rights friend posed at the start of this essay. What I think we have, in the end, are a series of insights regarding how men and women think which should contribute to the development of an effective strategy in a legal case.
