Law as representation / deformation. A review of its adversarial development from a gender and human rights perspectives

Abstract

This paper assumes that law (including the subsystem of fundamental rights) as well as the so called legal science reconstruct reality through a number of antagonistic and binary relations. The first part reviews the universal/ particular relation and some of the ways it affects the theory of fundamental rights. The second part takes a gender perspective to analyse the importance of the equality/difference binary, when related to the efficacy of women’s fundamental rights. The author states a) that legal norms, through their own institutional construction transfer gender asymmetry sometimes as part of the conditions necessary for the organization of these same norms, and b) that when legal norms do not do that, and on the contrary, express their purpose to oppose gender inequality –as it happens with laws on fundamental rights and specifically with equality laws– these legal norms become inefficient because they are built on the assumption of the notion of abstract individuals. This notion, at the same time, is based on the idea that legal relationships occur between individuals, when in fact the realities of social discrimination and exclusion are best understood as built upon inter-group relationships.