What I saw in law school, both from feminist jurisprudence professors and my female co-students who sympathized with them was the following idea: the legal system, such as it is, is based on hard and fast rules and abstract categories — a "one size fits all" approach that applies the same rules to everyone, and expects everyone to abide by the same rules in every situation. This was deemed to be "steeped in the male way of thinking" and "inherently intellectually violent" because it "forced one perspective on everyone regardless of circumstances" and was therefore thoroughly the product of "the mindset of patriarchy". It was suggested that a female-oriented jurisprudence would view justice not as the impartial application of the same rules to everyone, but rather the selective, context-sensitive application of rules based on the circumstances of the case, the needs of the people involved, the sensitivities and broader impact of the ruling and so on — the idea was that hard and fast rules are bad, narrow and, in that way. "typically male", whereas a more feminine jurisprudence would be based on context, sensitivity, and the particularities of the case, such that two people who would be treated the same under the "patriarchal legal regime" would be potentially treated differently "based on their specific contexts" under the feminist legal system.
This follows from gender feminism — the branch of feminism which plows beyond the "equality" feminism of the early second wave right through into the idea that women are indeed different from men, and in fact are superior to men. Carol Gilligan’s book "In a Different Voice" was all the rage at the time. She was criticizing an earlier study which had suggested that men were more capable of higher moral reasoning than women because women tend to get "stuck" at the level of relationships and the impacts on context rather than the higher level of broader social rules and broader impacts. Gilligan attempted to debunk this study through a series of anecdotal interviews with women by which she intended to show that the female version of moral reasoning — which she seemingly admitted was heavily contextual and relationship-based — was nevertheless at least equal to the male way of looking at things (and heavily hinted to be superior as well, because it was "merciful, compassionate and empathetic" as compared with the male system of "cold, impersonal, impartial" justice). Gilligan was later roundly critiqued by Christina Hoff Sommers as having no sound basis in studies — Gilligan denied that, but never produced any underlying studies supporting her book. Nevertheless, Gilligan’s book has done incalculable damage to men and boys in the decades since it was first written. It was under the influence of that book, together with "Reviving Ophelia", that the school system was tilted dramatically towards girls and away from boys. And it’s still the case that numerous feminist lawyers, judges and legislators effectively buy Gilligan’s view that female-style context-based moral reasoning is superior to the supposedly "male" approach of applying the same rules to everyone.
The best riposte, or at least the most entertaining one, to Gilligan that I have read was in Steven Pinker’s "The Blank Slate" where he basically says that if Gilligan is correct about how women reason morally and legally, no woman should ever be appointed as a judge.
Can emotion distort our judgment and reasoning? It seems to me that there can be such a thing as false empathy, which is false because it is derived from an erroneous understanding of the human good. False empathy in turn can lead to wrong conclusions about what is right behavior and what is not. "Soft thinking" thus leads to an embrace of situation ethics or consequentialism?
Emotion may not only be the problem here; pride and a fault of the will can be the root causes. Those who pride themselves on having the right emotions are lead astray in their moral reasoning, despite seeming well-intentioned. Still, I'll concede that there may be those who are "sincere" in their wrong-headed empathy. How will they respond when confronted with the truth?
Besides false empathy there is also the fear of appearing to be "judgmental," offending someone else, and losing a friendship or relationship.
Related links:
Steven Pinker - Books - The Blank Slate
MIT World: The Blank Slate: The Modern Denial of Human Nature
TED: Steven Pinker chalks it up to the blank slate
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