METODOLOGÍA DE IMPLEMENTACIÓN DE LAS PRUEBAS

Some commentators have found it useful to analyze law's relation to women in terms of the enduring public- private dichotomy, a split that is reflected in life as

well as legal thought. Katherine O'Donovan, a leading

exponent of this analysis and critic of the dichotomy, uses the terms public and private to refer to distinctions between the aspects of life that are regulated by law and

those that are not/* While observing that the boundary

between these spheres shifts over time, she argues that the presence of the distinction is significant because it long has been imbued in legal philosophy and informed legal

policy.^ O'Donovan speculates that the distinction

between the two, while not totally static, is unlikely to collapse completely. She nevertheless advocates a union of the two spheres, visualizing such synthesis as a move that, simply speaking, would free both men and women from having to choose between them.*

Others have taken a different tack regarding the public-private dichotomy, arguing that it is best seen as reflective of the family-market split and is not perfectly synonymous with the male-female dichotomy, even though there is significant overlap amongst them in Western culture.* Accordingly, even if male-female analysis were

* Ka t h e r i n e O'Do n o v a n, Se x u a l Di v i s i o n s i n La w 3 (1985) (acknowledging and discussing other legal definitions of

public and private); see also Alan Freeman and Elizabeth

Mensch, The Public-Private Distinction in American Law and

Life, 36 Bu f f. L. Re v. 237 (1987) ("Nothing is more central to our experience in American culture than the split between the public and private.").

* Id. at 8. See also Nicola Lacey, Theory into

Practice? Pornography and the Public/Private Dichotomy, 20

J. OF La w & Soc. 93 (1993) ; Ruth Gavison, Feminism and the

Public/Private Distinction, 45 St a n. L. Re v. 1 (1992) . 98

Id. at 180.

* See Olsen, Family and Market, supra note 31, at

1499; Dowd, Work and Family, supra note 31, at 111-112,

no longer associated with the market-family dichotomy, the latter would continue to exist. This is very troubling for many feminist legal scholars who object to all dichotomous thinking and who would like to see these categories tran­

scended. These writers, like O'Donovan, advocate greater

market-family, public-private interrelation, noting that the structure of each part of the current dichotomy exacer­ bates the conflict between them, revealing a paradox of sorts when attempts are made to resolve that conflict. Nancy Dowd reveals that paradox, stating

Resolution [of the conflict] depends upon attack­ ing the socially and culturally constructed gender roles that infuse the highly gendered work-family structure. Confronting gender issues

is essential . . . . But it is not enough.

Dowd advocates elimination of the division of work and family responsibilities on the basis of sex, but she

See Dowd, Work and Family, supra note 31, at 110-

112; Olsen, Family and Market, supra note 31, at 1578; see

also O'Do n o v a n, Se x u a l Di v i s i o n s, supra note 31; Pa t e m a n, Se x u a l

Co n t r a c t, supra note 31, at 10-13.

Ngaire Naffine's explication of the relationship between public and private and the law's attitude toward the legal subject if worth quoting here:

[T]he legal subject [is] someone with a quite specific set of distinguishing characteristics. But these characteristics do not sit easily

together. On the one hand our man of law is

assumed to be a freestanding, autonomous crea­ ture, rationally self-interested and hard-headed; on the other hand he is a being who is assumed both to have and to need access to . . . family values, though he must not display them in his

public, legal [] life. The legal person

described here is thus essentially a pradox . . [T]he law assigns to women the job of holding

the two worlds together . . . . As the courts

continue to tell us, the [private] functions are vital and necessary ones, but they are most appropriately performed by dutiful wives and motehrs — not by the man of law. Women's domes­ tic labors sustain the paradox of the man of law.

recognizes that the social and cultural constructs of employment and parenting roles that rest upon the gender division would not necessarily change the relation between

work and family. Nor would they necessarily alter the

content of parenting or employment roles. This is because, as Dowd notes, that work-place structure is not solely a consequence of gender but also reflects hierarchies of class and race, the economic and organizational consequenc­ es of a post-industrialist advanced capitalist system; and fundamental concepts of the individual, family and communi­ ty, and their interrelationship with respect to children. Dowd wisely observes that if we stop at gender, we will merely reconstruct gender, reallocating roles, rather than questioning the content of the roles and the structure within which they o p e r a t e . D o w d concludes that society must prioritize neither work nor family, public nor pri­ vate, but rather should work to restructure the relation between the two.

So, while gender is a key determinant, it is not the sole one of the existing public-private dichotomy within

law. Beyond that, however, because it is not strictly a

gender issue, an adequate solution to the problems facing women requires that additional issues be addressed in each of these spheres, and that leaves us not far beyond where

we started. Still, the public-private doctrine is useful

at the point where some theorists conclude that the dis­ tinction between the two spheres should be obliterated so that strategies capable of empowering women and of trans­ forming the domestic and public lives of both women and men can be formulated and, eventually, render these concepts unrepresentative or, ultimately, redundant.

Dowd, Work and Family, supra note 31, at 111-112.

Id.

See Morgan, Legal Theory, supra note 3, at 751

(discussing Olsen, Family and Market, supra note 31, at

1566-67); Dowd, Work and Family, supra note 31, at 99-100,