Le teorie post-moderne del diritto: focus sulla teoria giuridica femminista e sulla teoria critica della razza

Modern European philosophers have played a key role in developing the concept of "race" as a way to classify and characterise the differences between the different human groups that exist. The critical philosophy of race (CPR) has largely developed as a critique of modern ideas and approaches to race itself offering solutions to racism. CPR has been influenced by the developments of Critical Legal Studies (CLS) and Critical Race Theory (CRT) since the end of the 20th century. Two of the main characters of this period are Langdell and Holmes although they were completely different. They had two different approaches to law: Langdell had a conceptual approach or formalism, Holmes had a normative approach also called instrumentalism. During the 1920s and 1930s started the American Legal Realist Movement and still nowadays is one of the most famous legal movements developed in American and worldwide legal history. The case study “Lochner vs New York State in 1905” is considered one of the most influential attacks made by the legal realist movement against the dogmatic approach used by judges while making decisions in the USA courts. The case “Mr. Justice Holmes dissenting opinion” too is an important case in the history of the USA dissenting opinion. This was the expression of formalism and anti-dogmatism of Holmes.The modern normative jurisprudence basically was born after a shift from the idea of conceptualism to normative thought during the 1960s. The balance between law and morality is found in the theory of the sources of law where rules are divided into primary and secondary rules of obligation. In 1976 in North America was born the Critical Legal Study, an intellectual and political phenomenon that developed between 1970s and 1980s. It is destructive rather than constructive even if there is no singular legal theory but just some common key points: law is indeterminate; law is politics; law is power. The central event that marks the start of the "race turn" is the conference of the Critical Legal Studies (CLS) in 1985. The CRT family tree includes several schools of thinking mostly of American origin. The Feminist Legal Theory as the Critical Race Theory, is descendent of the CLS movement. For some aspects they are totally different because of the authors of that period and their thoughts. The Feminist Legal Theory was born in the 1920s. Its origins could be traced back to the 19th with the so-called “suffrage movement”. Some of the more common approaches to feminist jurisprudence are: the model of liberal equality; the model of sexual difference; the dominance model; the model of the anti-essentialist; the postmodern model. Each model provides a distinct view of the legal mechanisms that contribute to the subordination of women, and each offers a distinct method for changing legal approaches to gender. Often illiterate and of modest origins, women who joined the National Union of Women’s Suffrage became real fighters. Emancipation was a long and painful journey. The feminist liberation movement, is one the most important and spread all over the European Union around 1960. Feminist legal scholarship has different shapes and sizes. There are three schools of feminist scholarship and it is possible to group them using these three categories: liberal feminism; difference feminism; radical feminism. The postmodern feminism has the same features of the post-modern philosophical movement.