공·사영역에 대한 법여성학적 고찰

A Consideration of Feminist Jurisprudence on the Public and Private Spheres

Ⅰ. This paper aims at discussing the public and private split in women's studies issues from the legal perspective. I will examine 1) whether the social function of law makes the division between public and civil laws; 2) whether the law only reflects the reality in which there is a public and private split; and 3) whether the law could improve upon that reality. I will analyze the theory of classification of public and civil laws related to the legal order. I will also examine women's issues arising from the split of public and civil laws. In addition, based on the social function of law, I will suggest some feminist legal issues which should be addressed, and possible reforms the legal system with regard to the public and private spheres. Ⅱ. Women's lives are lived in the private sector, and are ruled by the civil law, though the law itself does not intend to either include or exclude women. Therefore, I conclude that women's lives and issues have been placed in the private sector, which excludes legal concerns according to the liberalist legal theory. Ⅲ. The interusion of public law into previously private civil matters results from changes in the previous liberalist legal theory, which is based on the principle of a social constitutional state. This principle emphasizes the responsibility of the social legal authority for making conditions in which individuals are able to realize the practical freedom to make choices in their lives, as well as formal freedom and equality. For example, if the nation does not intervene in a labor contract via a labor law under the market economy due to its individual nature, that results in granting the employer the freedom to set the wages of employees rather than improving individual autonomy and freedom. However, because the labor market is a public sector, this kind of problem could be solved with legal remedies, that is the public legislation of previously private civil legal matters. But the intervention of the law related to such issues as domestic labor and violence has not been accomplished, though men's freedom has been strengthened in terms of such issues. Ⅳ. Owing to the convergence of public and civil law, we can establish equal conditions for women by widening legal intervention. Stereotyping gender roles in terms of public and private spheres should be rectified. In other words, by reconstructing the public and private sphere including prohibiting legal intervention in issues such as women's freedom of choice, the improvement of the actual freedom and equality of women can be achieved. Ⅴ. The division of the public and private spheres brings about discrimination against women by strengthening traditional gender roles. In other words, the public and private split limits the choices of women's social roles. As a result, it becomes difficult for women to participate in the public sector. Ⅵ. Women have been excluded from legal fields for a long time because the law itself is assumed to be a public matter. Due to this assumption, women hardly participate in the legal fields. Since it has been men who have made, established, implemented and researched laws, it has been difficult to include women's experiences and points of view. As a result, human beings in laws and legal theories have been defined by male-oriented values. The law and legal theories strongly reflect for the assumptions which delineate different gender roles in a patriarchal society. Ⅶ. The state should intervene to solve women's issues and accomplish equality of genders regardless of where gender discrimination may happen. Regardless to whether the gender discrimination occurs in the family, the work places or educational instituions. Actualizing women's rights based on respect and value toward human beings leads to the practical freedom and equality of women. Therefore, the nation should accept the responsibility for actualizing women's rights. On the basis of these values, the public