Argumentación Jurídica y Perspectiva de Género: Una alianza imprescindible

Abstract

The legal discourse has been the result of man's construction, in solitude, without the presence of the voice of women and of those who have been left out of the original social contract. The discourse is not only the text but also comes from a social construction and is projected beyond it: "it is a socially and institutionally specific historical structure of statements, categories, beliefs and terms" . In this sense, legal discourse is the expression of power by way of action insofar as “power captures sex through an act of language or rather an act of discourse that creates, by the very fact of articulating, a rule of law. He speaks and that is the rule." The discourse has its roots in history, which has been the manifestation and reproduction of power relations and patriarchal domination. Within this framework, the hegemonic discourse has been appropriated and reproduced in the legal field. The premises that make up the judicial discourse are built on "truths" and "values" that have been the result of powers and knowledge instituted only by men. Women have been excluded from the construction of such knowledge and stripped of such powers. To sustain this, it is enough to remember that it was not until the last century that women had access to universities, to speak in public, to vote and be voted for, to manage their assets, among other actions that have enabled their slow and unfinished access. to citizenship. Legal androcentrism as a manifestation of sexism has reaffirmed -through the disciplining power of the rule and language- the sex-gender binary system, a social order based on gender hierarchies and cis-heteronormativity, and has reproduced the assignment of roles and functions according to the sex and gender of people. So, legal discourse is an expression of an established gender order, but at the same time it has the capacity -in Foucault's terms- to speak and enunciate new rules through the establishment of new imaginaries, relationships and hierarchies of power. That is, it has the potential to create a new rule of law. In this framework, the question that arises is: what challenges must be assumed by those who participate in the construction of judicial discourse with a gender approach? What incidence does the imbrication of the gender perspective have in legal argumentation (as a method and as a praxis) in the transformation of the social order?