The strong and widely-accepted reasons for using gender-neutral language presumptively apply to the gendered word paternalism and its gender-neutral counterpart, parentalism. So this article’s thesis is that legal scholars should begin with a presumption for using the gender-neutral word parentalism, while using paternalism only when emphasizing the important relevance of gender or otherwise trying to convey a gendered meaning. Accordingly, many legal scholars define paternalism in an expressly gendered way — such as “the institutionalization of male dominance,” or an “ideology [that] teaches men to minimize women's agency” — or fittingly use paternalism to describe an attitude especially characteristic of men or directed primarily toward women. All these many uses of the gendered word paternalism are supported by the writers’ apparent intent to emphasize the important relevance of gender to the writers’ points.

On the other hand, and despite the spread of gender-neutral language throughout our society and legal profession, many legal scholars continue to use the gendered word paternalism without indicating any important relevance of gender or otherwise manifesting intent to convey a gendered meaning. These many writers use paternalism rather than parentalism to describe laws or policies aiming to protect people (of all genders) by restricting their choices. For example, these writers cite “paternalism” as a standard justification for restrictions on contractual choice or other private ordering, including the unconscionability doctrine, usury laws, the minimum wage, and countless regulations limiting the range of enforceable promises by consumers, borrowers, employees, investors, and others. 

In each of these contexts, better to use the gender-neutral word parentalism, unless the writer emphasizes the relevance of gender or otherwise manifests an intent to convey a gendered meaning. For example, a writer could justify using the gendered word paternalism by arguing that all our laws are gendered male so gendered language should be used to discuss any law, including using paternalism to describe laws aiming to protect people of all genders by restricting their choices. Or a writer could justify using the gendered word paternalism by arguing (after citing sufficient empirical data) that protect-by-restricting-choice parenting is gendered male, so analogous protect-by-restricting-choice laws and policies are also gendered male. Absent one of those two plausible arguments justifying use of the gendered word paternalism, laws or policies aiming to protect people of all genders by restricting their choices are better described as examples of parentalism. 

In short, a presumption for using the gender-neutral word parentalism to describe laws or policies aiming to protect people of all genders by restricting their choices is well-grounded in the strong and widely-accepted reasons for ordinarily using gender-neutral language. And examining legal scholarship’s many uses of paternalism and parentalism illuminates our understandings of gender in both law and parenting.

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Paternalism or Gender-Neutrality?

The Federal Constitution of the Swiss Confederation

Background Research in the field of family quality of life (FQOL) emphasises the importance of attainable support resources for families of children with developmental disability (DD). In this study we explored FQOL by examining some of its specific domains and expanded upon them. The 2 main aims were to examine differences in FQOL according to the degree of religiosity among Israeli Jewish families and to investigate the contribution of family, social, and governmental service support, as well as religion and spirituality to FQOL.Method Parents from 170 Jewish families of children with DD aged 3 to 14 years completed a self-administered questionnaire, which included the Family Quality of Life Survey – 2006 and instruments measuring family support, social support, support from governmental services, and support through religion and spirituality.Results Religious families reported a higher FQOL in comparison with secular families. No differences were found, however, between religious and secular fa...

What support resources contribute to family quality of life among religious and secular Jewish families of children with developmental disability

The study examined ‘the day after’ the #MeToo protest, and proposes channeling the outcry of millions of women toward developing and establishing alternative mechanisms for dealing with sexual offe

The #MeToo movement and restorative justice: exploring the views of the public

Crime victim’s rights legislation including the Victim and Witness Protection Act of 1982 (VWPA) and the Crime Victims’ Rights Act of 2004 (CVRA) brought attention to the plight of the crime victim and called on justice professionals and the public to recognize victims’ value, worth, and role within a justice model that seeks to hold offenders accountable and increase public safety. The CVRA was the first federal policy to grant participatory rights to victims of crime; it served as a model statute for states enacting similar legislation. Beyond the eight participatory rights, implementation and administration of the CVRA is recommended but not required by law enforcement, prosecutors, or the judiciary. Instead, these justice professionals are encouraged to “make a good faith effort” in delivering these rights to victims of crime. This paper tells the story of the victims’ rights movement before utilizing the Narrative Policy Framework to analyze the CVRA.  Highlighting several key issues of relevance to the social work profession, a call to action is issued for social workers and policymakers to shift current narratives and more clearly define who constitutes a victim, how these rights are to be implemented and by whom, and to develop enforcement mechanisms.

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The Crime Victims' Rights Act: Rhetoric or Reality?

The Crime Victim’s Rights Act has given victims “the right to participate in the system” However, crime victims remain marginalized as their involvement in plea agreements is yet under enforcedThis article reveals the largely unnoticed gap between the victim’s rights and the disadvantaged reality they experience in plea agreements Further, the paper identifies the legal causes that led to this gap; namely, the broad discretion and dominance of the prosecution on the one hand, and the victim’s lack of enforcement mechanisms to participate on the otherThe article provides a solution whose novelty is twofold First, the solution advocated by this article embodies the nudge theory; a theory, explained in this article, which is unfortunately yet to be adequately utilized in the context of criminal law Second, the article demonstrates a choice architecture mechanism that leaves the prosecutor’s discretion intact; while at the same time nudges the participation of the crime victimsThe right-reality gap identified in this article threatens to leave crime victims unheard This article analyzes the importance of victims’ voice in plea bargains, identifies the causes of this entrenched gap, and provides a unique and practical solution to the problem

Nudging the Criminal Justice System into Listening to Crime Victims in Plea Agreements

The Crime Victim’s Rights Act has given victims “the right to participate in the system.” However, crime victims remain marginalized as their involvement in plea agreements is yet under enforced.This article reveals the largely unnoticed gap between the victim’s rights and the disadvantaged reality they experience in plea agreements. Further, the paper identifies the legal causes that led to this gap; namely, the broad discretion and dominance of the prosecution on the one hand, and the victim’s lack of enforcement mechanisms to participate on the other.The article provides a solution whose novelty is twofold. First, the solution advocated by this article embodies the nudge theory; a theory, explained in this article, which is unfortunately yet to be adequately utilized in the context of criminal law. Second, the article demonstrates a choice architecture mechanism that leaves the prosecutor’s discretion intact; while at the same time nudges the participation of the crime victims.The right-reality gap identified in this article threatens to leave crime victims unheard. This article analyzes the importance of victims’ voice in plea bargains, identifies the causes of this entrenched gap, and provides a unique and practical solution to the problem.

/pdf/nudging-the-criminal-justice-system-into-listening-to-crime-1r6ltjkjht.pdf

The phenomenon of social exclusion in Israel is a vivid demonstration of the Basic Laws’ failure to fulfill their integrative role. Despite the “constitutional revolution” and the Supreme Court’s ongoing endeavor over the last two decades to instill a bill of rights through its jurisprudence, the Israeli society has failed to fully internalize values of equality. In terms of legal jargon, individuals continue to claim and exercise “sole and despotic dominion” over their private property in order to avoid contact with individuals belonging to certain minority groups. In many cases, such behavior in the private sphere results in exclusion from the public sphere. This phenomenon is especially astonishing considering the fact that many laws in Israel apply the right to equality to the private sphere. Furthermore, the Israeli Supreme Court has developed comprehensive human rights jurisprudence applicable to the private sphere. The gap between the law in the books and the law in action illustrates that effective implementation of human rights in the private sphere cannot be achieved solely by specific legislation or by human-rights-sensitive-jurisprudence. This argument is backed by several recent bills that preserve and enforce exclusion of minorities, particularly of Arabs, from the public sphere. These bills illustrate that exclusion is indeed a growing phenomena in the Israeli society that cannot be overlooked. Moreover, they underscore the urgent need to entrench a direct obligation to apply human rights to the private sphere on a constitutional level. This will only be achieved once Israel adopts a full constitution.

The Freedom to Exclude: The Case of the Israeli Society

In the two decades since Israel’s constitutional revolution, the Basic Laws have come to enjoy normative supremacy and demonstrate efficacy by enabling judicial review of the legislative and the executive branches. Yet, they have not assumed an integrative role in the Israeli society. In terms of their substance, the Basic Laws are incomplete in scope. In terms of the procedure leading up to their enactment, they lack public legitimacy. This can be attributed, at least in part, to the fact that the Supreme Court was the key political actor responsible for retroactively upgrading the Basic Laws from regular laws to constitutional norms. This paper argues that the only document in the history of Israel possessing the potential to fulfill an integrative role was the Declaration of Independence. Due to its intrinsic ‘transitional’ characteristics and the unique socio-political circumstances surrounding its drafting, this founding document could and should have been perceived as a transitional constitution. This transitional constitution established Israel’s basic values and opened the way for an incremental constitutional process that continued with the enactment of the Basic Laws, and that will culminate only with the drafting of a full constitution. However, owing in part to the narrow conception of transitional justice, the Declaration was never interpreted as such. This historical error could have been corrected in 1994 as the identical principle clause of Israel’s two Human Rights Basic Laws—which constitute Israel’s (partial) Bill of Rights—declared that the human rights regime in Israel should be “respected in the spirit of the Declaration of Independence”. Yet, this opportunity was once again not seized. This failure carries unfortunate consequences for the Israeli constitutional regime since unlike the Basic Laws, which enjoy formal normative supremacy yet nonetheless suffer from legitimacy deficiencies, the Declaration bears the potential to fulfill an integrative constitutional function.

Michal Tamir

Papers

Nudging the Criminal Justice System into Listening to Crime Victims in Plea Agreements

Nudging the Criminal Justice System into Listening to Crime Victims in Plea Agreements

The Freedom to Exclude: The Case of the Israeli Society

The Declaration of Independence as a Transitional Constitution: The Case of Israel

Prior Restraint in the Digital Age