A Critical Examination of Abstraction in John Dewey’s Reflective Thought

The purpose of this paper is to critically examine abstraction in the context of John Dewey’s notion of reflective thought. Abstraction is to be understood as a pragmatic tool that underpins reflective thought. In other words, reflective thought—that is, the capacity to think of practical solutions to problems we confront in our lives,— needs to use the tool of pragmatic abstraction. In the context of reflective thought, I explore and explain how pragmatic abstraction is used. Here, I take issue with how pragmatic abstraction is used as merely a means to bring about ‘successful’ consequences to a problem. This use of pragmatic abstraction fails to consider the critical question of whose success is being brought about. Due to this, ‘successful’ consequences to a problem can result for some, while negative consequences to the same problem can result for others. The ‘reasonable woman standard’ that developed in the law illustrates a concrete example of this problematic split and a legal effort to resolve it. Ultimately, by reconsidering how reflective thought uses the tool of pragmatic abstraction, “successful” consequences to problems are brought about in a more inclusive manner.

BECAUSE OF SEX and A LAW OF HER OWN

Though published more than ten years apart, it is timely to review these volumes together. Both books adopt an historical perspective on women under men’s laws, with a strong message for the contemporary world. Because of Sex traces developments constituting, and bringing about, advances in how the law addresses women’s work and roles, and consequent change in society. A Law of Her Own proposes how the law should adopt a revised approach, substituting the ‘reasonable woman’ standard for the existing - generally ubiquitous – ‘reasonable man’ or ‘reasonable person’ standard – which Because of Sex indicates has at least to some degree, in some instances, occurred.

Battered Women and the Requirement of Imminence in Self-Defence

Should the South African courts abolish the traditional imminence standard, something must be used to stand in its place. The identification of the various alternatives which have been suggested to replace imminence - most notably the establishment of the "reasonable woman standard" as advanced in the case of S v Engelbrecht 2005 (92) SACR 41 (W) - has moved the law of self-defence into the realm of subjectivity. The end result not only undermines self-defence as a justification defence, but is also unworkable for a number of reasons. For instance, utilising expert testimony to explain how the battered woman’s syndrome affects individual perception would leave a judge with no meaningful way to determine if that abused woman’s belief in the imminence of danger was reasonable, even if viewed from her distorted perspective. It is suggested that no reference need be made to the "reasonable battered woman", since South African courts already do this to a limited extent by taking a number of factors into account in determining if the abused woman acted reasonably. By rethinking certain factors in the situation as a set of relatively innocuous normative propositions, the abused woman’s actions can be judged in accordance with standard propositions in the law of self-defence.

A reasonable woman standard in sexual harassment litigation

Sexual harassment litigation may be thwarted by judges failing to address the acts in question from the perspective of the victim, thus legitimising behaviour acceptable to men but unacceptable to women. This paper shows how this problem may be overcome by adopting a ‘reasonable woman’ standard to decide if: (i) objectively, the acts in question constitute harassment; and (ii) subjectively, whether the victim suffered injury. Using US case law the paper shows how the reasonable woman standard, which has been accepted in some courts, can allow women's perspectives to be heard. The paper suggests that a reasonable woman standard should be adopted in UK tort law, specifically in litigation under the Sex Discrimination Act, but also for litigation under trespass torts and under the Protection from Harassment Act. Doctrinally, the proposed standard fits within the fabric of tort la; and does not challenge the principle of corrective justice. From a feminist perspective, the reasonable woman standard can successfully redirect tort law to address gender-specific harms.

Sexual Harassment: The “Reasonable Person” vs “Reasonable Woman” Standards have not been Resolved

Previous research suggests that women are more likely than men to perceive a hostile environment of sexual harassment in job-related scenarios. Such findings raise questions about whether a “reasonable woman” standard might be preferable to a “reasonable person” standard for adjudication of some sexual harassment cases. There are sound arguments for both positions, and there is no basis at the present time for unequivocal and categorical support for one position over the other.