평등권이론의 발전과 현대적 의의 - 여성주의의 관점에서

It is clear that the legal guarantee of equality and the guarantee of women’s rights equal to men’s, taken seriously in the liberalistic legal system, established the cornerstone of extending women’s rights. However, while women and men should be treated equally under law, there are situations based on gender differences in which they should be treated differently. Therefore, in addition to an ethic of justice based on the logic of universal moral principle, a concept of justice which takes human relationship seriously and gives more consideration to the loss impacting all concerned than to the relationships of particular interests, in other words, an ethic of care which manifest more with women, can also be understood as another principle of justice. According to MacKinnon, even a nation and the law are not neutral, and this is so because when the law is interpreted by the group in power, dominantly of men, there is ample likelihood of male-oriented interpretation. In addition to formal equality, if practical equality that takes into account the difference due to the woman’s body and the particularities of being the subject of sexual domination is not given consideration, then the meaning of equality for women becomes tarnished. Therefore a further step needs to be taken from the stage of guaranteeing formal equal rights to that of guaranteeing substantial equality. To achieve guarantee of substantial equality, a critical self-examination must first be made of the principle of formal equality that the liberalistic legal system, which had been developed based on the ideology of modern liberalism, attempted to guarantee. Walzer criticizes from a communitarian position Rawls’s theory of justice as being an unrealistic, abstract theory of justice and asserts a pluralistic theory of justice that takes cultural particularities and differences into account. The existing theories of justice can be seen as theories which, in nominally seeking the good for all human beings, do not take into account the real experiences of women, while Okin, Young, and Cornell are considered to be representative scholars who have developed theories of justice from the feminist perspective of promoting real equality of women. To achieve fair social justice, Okin draws attention to equality and justice within the home, the first place of socialization training regarding the female and male gender. Young criticizes the ideals of both communitarianism and liberalistic individualism and asserts as an alternative, the normative ideal of “city life” where strangers live together. Furthermore, in discussing the right to equality, there is a need to pay attention to the system in which women are perceived as an inferior class. Women have been physically and psychologically classified as an inferior entity, and marriage and family created from the union of both sexes were connected in a paternalistic relationship. Cornell asserted that gender functions as a system within society that is structurally connected with other social systems. One of the main reasons why the guarantee of equality under law for women does not have direct connection to substantial equality is that discrimination against women is systematized in society such that legal equality does not lead directly to equal treatment of women. Cornell’s observation that discrimination against women is embedded in society as a large hierarchical system shows the direction in which the work for guarantee of substantial equality for women needs to advance.