Category Archives: law

HERBERT SMITH AND THE TIMES ONLINE – DIVERSITY IN THE LEGAL PROFESSION – CAUSE FOR CONCERN OR A TRENDY BANDWAGON?

-Submission-

Diversification can be defined as providing all things “different” with an opportunity to argue in front of an ironclad tradition that prefers to continue entertaining what it knows and is comfortable with, rather than attempting – and subsequently failing miserably – to genuinely explore the currently nebulous and precarious void that is “different.” “Different,” “being different” and “different for the sake of being different,” however, are not only theoretic conceptualizations or normative pedestals onto which all hope for change is often placed, at times by the academic zealots of yesterday, but also equally invested tyrants that continue to aggravate the very social blister that they tirelessly try to cure. What creates a cause for concern then, is not that “different” has continued unfettered, but that “different” is actually beginning to retaliate after years of neglect and abandonment. Its owner, the carnivorous open market, is no longer interested in supporting its petulant thirst for surreptitious inequality and behind the scenes collusion. All of a sudden, the pretexts of merit, no longer carrying with them sufficiently wealthy and compelling substance to dictate otherwise, are incapable of negotiating with the claws of impending defeat.

To the foot-soldiers of the legal profession, marching to the beat of “different” may make public relations sense, an anomaly that modernity has failed to address. But to the efforts of those who genuinely wish to incorporate “different” so as to find perspective, open previously unexploited markets and deconstruct the myths that drive assumptions, “different” is but a platitude that is to be recycled for the purposes of extracting, pound-for-pound, the value of having access to a global, rather than a local, pool of opportunities. And so, the question that asks whether the legal profession would benefit from aligning itself with the regurgitation-friendly complications of retaining “different,” is but a foregone conclusion. “Different” is and should be, first and foremost, a choice, albeit one that may be influenced by the amount of black ink that is drying on a balance sheet at any one time. Conversely, “different” should not be a reflexive reaction to a frenzied political charade of mind-numbing populism that imposes a preference for homogeneity by replacing pragmatic business considerations, realties and choices, with a homogenized mix of merit, affirmative action and academic fist-pumping. This would be a complete waste of time, the end result of which would offer a valueless bag of equally harmless hypothermic solutions to a problem that is at best non-existent, given that “different” is and should be, as it has already been mentioned, the outcome of a choice and not the prerogative of an anticompetitive regime.

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The Terms of YOUR Agreement, Explained

Who cares if the disingenuous ant wanted to fight the mischievous caterpillar. Let’s be honest, really honest about this two-toned machination that only started becoming a problematic after the loaded-gun effect entered into the equation. So she was provoked! Big deal, alright! Matters of this complicated nature are a daily occurrence and by no means should be treated as statistical anomalies that fail to materialize. Her defence lawyer argued many-a-times, in previous proceedings, the ant’s propensity or for you schoolchildren of a more respectable social class, proclivity, for a pugilistic one-two after the ingestion of four pints into its depressed cavity.

Either way, you’re all insane, utterly mind-numbed. If you really believe the prosecution in this instance, you are only creating precedence for what is already quite obvious, namely that the man-made statute, erected for the benefit of the public at large, is now being appropriated by those with sufficient ulterior motives, to make me want to discontinue vomiting following a session of gorging on “propaganda popcorn.” Ah, such unnecessary evils.

My suggestion to the mother caterpillar is to stop playing one petulant child off another and rear-end herself into a different cause, preferably at a speed that can provide for her injury as well. No, nothing less than that proposition can ever be entertained and if less is suggested, I shall decree with the intention to repress and if my perfect state of imperfectness ripens by that point in time, oppress as well. Regardless, this cultural drama is creating a state of affairs in which I cannot, at least this time, do my best to avoid. Circumstantial evidence aside, my self-diagnosis is telling me that if I continue, psychological harm might just be recoverable, provided that my persuasive essay grades are high enough to convince a toothless but no less effective geriatric, perched atop an infant’s stool and with the moral savvy of a, pardon me, inflatable orangutan (sans the orange hair), that I, above all others, need legal treatment in every sense of the two words. Take this offer as you find it, I am not willing to sacrifice more of my continued perseverance, so that you may find yourself yelling at a television set without probable cause but most likely with an insanity conviction shortly after the foundation for the prosecution, a blind congregation of near-sighted bats, with four-year plans and a penchant for ridiculously low-rates, discovers that inside your chaotic but surely idiotic exclusion clause, you have hidden the terms “in no way” and “liability,” so as to inflict upon those less brilliant, a harm that lacks both an intention to ridicule and the act itself.

This all brings me back to my initial claim, in which I have every right to demand that I be reimbursed for my losses under the Fake Names Act 1429. My black-belt in corruption shall be honoured and principle will succumb to your will only insofar as you will bend to my desire for corrective justice in the playground. It is time the elephants met me in my office, or, if so desired, down at the Zoo, where we all can partake in the ginger petting of innocuous animals for the promotion of the public good. Otherwise, if the dinosaurs get here first, and I do mean what I say, I will only be open to negotiations if they furnish me with polyester dentures – must be made somewhere, anywhere will not suffice – and a carton of desperate vocal chords that were stolen from a location I will provide you with once I have made myself aware of what it is that I want to steal.

Repudiate at your own risk, but I do warn you that the offer is final and if you provoke me, unilaterally, arbitrarily and absolutely binding too.

Note: If you find the act of swallowing hard, please seek professional advice from a confectionary salesman. They’re trained to alleviate matters of such discomfort and will only recommend the most noxious of pleasantries, if of course, such are deemed necessary to cure your anxious but rather macabre depression.

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READER POLL: DO YOU? [YES/NO]

Do you believe that judges, from your own experience or knowledge, purposely although not always explicitly, undertake to create or construct ambiguous, aberrant and anomalous arguments, when establishing their reasons for why a case is to be judged a certain way, so as to promote and encourage the contentious nature of our litigious society with the intent to serve the self-interests, financial or otherwise, of lawyers and those occupying legal positions?

YES/NO? [feel free to comment]

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a discussion between my depression and my comedic side

pills

you are obsessively selfish, a point of urination among fountains of refreshing perspectives. if you thought i was going to allow myself to drain the cancerous fluid from your own closet-case insecurity, you may as well have not have been thinking at all. while it may be impossible to understand why neurological misfiring only affects you, i am sure that the other one percent of anomalies are more defective.

and that really brings all of us to a point of culmination that compels a solution to a problem you long indulged in its creation. i tried to convince myself that the best possible outcome of this political game of pugilistic afterthought was going to have to be delivered in a contained rebuttal-cum-vindication. however, logic is only sufficient when (or if) you are assessing the most efficient way to kill a terrible bunny rabbit, but in this case, it would be incredibly insufficient and perhaps lead to a foreseen malpractice claim intended to disrupt my very existence.

…fair enough, you said that you would talk yourself out of it and that if it simply was not going to work, that you would follow up by procuring the poison yourself. but how you managed to talk yourself out of committing self-inflicted suicide is really beyond my cognitive competency. either way, even if i was to stand up and applaud your brevity, it would not exactly be very conducive to principle to entertain a more candid approach to the relaxation of the axiomatic rule of ‘the accomplice.’

and now, that we are standing in front of a judge of a higher moral order, you begin to break down and disappoint. is it because the proposed solution was self-combustion or is it because i had no other choice but to commit arson (while being fully aware of the other aggravating nature of the offense, namely that you were trapped inside). it is a tragedy, i will concede that much. however, how did you expect me to regain the very freedom that human agency affords me in time of crisis? death by lynching was too violent, by hanging too cruel and by bullet too medically inappropriate. arson then, seemed to be the only justified way to dispel of your constant nuisance and to subsequently allow for the nourishment of the moral scab that has now been healing my culpable state of mind for longer than you can remember.

oh, and (if your grandmother asks), i no longer intend to be induced by a glucose-dripping parasite older than the word geriatric itself. my promise to you is that you will not be back.

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A Self-Interested Anomaly: Parliamentary Sovereignty in the United Kingdom

Nanny State Cop Car

QUESTION

Q: The traditional doctrine of parliamentary sovereignty can no longer be regarded as an immutable part of UK constitutional law.

INTRODUCTION

We are asked to consider whether the “traditional doctrine of parliamentary sovereignty can no longer be regarded as an immutable part of U[nited] K[ingdom] constitutional law.” What is to be argued then is that while to restrict the government of the day from ignoring Parliamentary Sovereignty is to restrict deference to alternative means of resolving contemporary ‘governmentality’ exigencies, the doctrine of Parliamentary Sovereignty in the United Kingdom is and will continue to be, insofar as political forces of self-interest do not intervene, conventionally entrenched. A further consideration that will be elaborated on, and one that is intrinsically linked to the aforesaid question, is i) whether or not this transfer of sovereignty, from the Crown to the Parliament, via the 1689 English Bill of Rights, was in essence a transfer of tyranny from the King to the oligarchs of Parliament (Loveland, pg. 29). And if the opposite turned out to be true, ii) whether or not tyranny as it is understood today has been better circumvented as a result of modernity and those features that constitute it, like the “rule of law” and principled adherence to a legal system that allows for legal predictability and sustainability.

THEORIES OF PARLIAMENTARY SOVERIGNTY

The legal doctrine of Parliamentary Sovereignty, as proposed by the Oxford professor A V Dicey, normatively stipulates that past parliaments cannot bind futures; that predecessors cannot negotiate on behalf of their successors. Dicey’s theory can be further broken down into two main components, namely the positive and negative branches of Parliamentary Sovereignty. The former branch or the “positive limb” asserts that Parliament is capable of making (read: positing) or unmaking any law that it wishes, as no other sovereign body exists to legally prevent it from doing so. In addition, the “negative limb” of Dicey’s theory adds that the legality of Acts of Parliament cannot be challenged in any legal court” (Loveland, pg. 24). Furthermore, while a second theory of Parliamentary Sovereignty is said to exist in the United Kingdom, namely that Parliament is “self-embracing” and can subsequently bind itself and future parliaments, constitutional commentators like Ian Loveland have argued that such a theory “has had no political effect in this country” (Loveland, pg. 37). However, a question of whether or not past Parliaments have bound future ones in the United Kingdom, and whether Parliamentary Sovereignty has in effect been tacitly repealed, can only be answered after unpacking the effects of the European Communities Act 1972 and whether such an unexplainable constitutional anomaly allowed for a “regime in which Parliament has bound its successors successfully and which is nothing if not revolutionary” (Wade, pg. 3).

IMPLIED REPEAL, DUALISM, STATUTORY HIERARCHY AND THE ENTRENCHING OF LEGISLATION

Implied Repeal

In 1934, the Court of Appeal held in Ellen Street Estates Ltd. v. Minister of Health [1934] that if an Act of Parliament “appeared inconsistent with previous legislation, the previous legislation must give way” (Loveland, p. 34). The effect of this was that legal statutes were to be impliedly repealed once new statutes that came into existence contradicted previous ones. In addition, such a decision was not inconsistent with an orthodox understanding of Parliamentary Sovereignty, as it allowed subsequent Parliaments to repeal (absolutely) the Acts of their predecessors whenever and wherever they saw fit. Without a written and entrenched constitutional framework to be adhered to, statutes and the rights they confer on those who are bound by them, are left to the mercy of politicians and political agendas of self-interest. While this paper is not intended to outline the instances of malfeasance in United Kingdom politics, the possibility of political transgressions is neither sufficiently checked nor prevented, notwithstanding judicial review in the area of administrative law.

International Legal Theory: Dualism

While the aforesaid case dealt with the domestic legal question of implied repeal, the international legal doctrine of “dualism,” as it stands opposed to “monism,” prevents Treaties and the subsequent obligations that such confer on their respective states (as they are entered into by consenting governments) from automatically being incorporated into domestic law. An express act of incorporation must first be passed in that respective state’s Parliament, acquiescing to its incorporation, in order for that Treaty to become legally binding in the realm of domestic or national law. The United Kingdom currently employs the legal doctrine of “dualism,” a legal state of affairs that was reiterated in both Mortensen v. Peters (1906) and Cheney v. Conn [1968]. In the latter, the claimant alleged that a portion of his tax money “was being used to build nuclear weapons, contrary to the principles of the Geneva Convention, a 1957 treaty which the British government had signed,” but had not incorporated into domestic law (Loveland, pg. 36). Cheney’s argument was rejected on the basis that “an unincorporated Treaty could not have that effect,” namely that of preventing the manufacturing of those sanctioned weapons in Britain (Loveland, pg. 36). As long as the doctrine or theory of dualism continues to be entertained by the United Kingdom, Parliamentary Sovereignty will continue to rule supreme in those cases in which the rights of individuals under Treaty law have been breached.

Entrenching of Legislation

It is often purported that the United Kingdom has an unwritten constitution and that certain statutes are conventionally fundamental and subsequently immutable. Historically however, there have been instances in which entrenched legislation has fallen victim to the ubiquitous and all-powerful will of Parliamentary Sovereignty. For example, in 1853 and in 1932, Parliament enacted legislation “contrary to the Acts of Union,” when it passed the Universities (Scotland) Acts (Trinade, pg. 389). On the flip side, section four of the Statute of Westminster 1931 and other “various Independence Acts did (emphasis added) impose territorial restrictions on the United Kingdom Parliament,” with respect to the sovereignty of their colonial governments and states (Trinade, pg. 388). However, the extent to which legislation is to be entrenched or breached is not predisposed to a test of objectivity or of principle, but is in turn haphazard and a further example of the arbitrary nature of United Kingdom politics (and politics in general) and those political actors and agents who undertake to implement self-interest behind the veil of ignorance that is Parliamentary Sovereignty.

Statutory Hierarchy

In Thoburn v. Sunderland City Council [2002], Laws L.J. held that constitutional statutes fall within a special category that is immune to implied repeal. What this in turn creates, if one is to accept Laws L.J.’s tenuous position, is that we are to imply a hierarchy of statutes. The aforesaid however, is irreconcilable with a previous understanding that all statutes passed by parliament may be repealed either implicitly, by passing subsequent legislation replacing a previous act, or by explicitly doing so using appropriate language. Furthermore, Laws L.J.’s judgement, that constitutional statutes fall in a special category and can only be repealed using express language, provisions or wording that outline such a desire, is completely oblivious to the political reality that dictates that Parliament can easily circumvent this ineffective and judge-imposed restriction.

ANALYSIS

European Communities Act 1972

The United Kingdom passed the European Communities Act (henceforth the ECA) in 1972, thereby making possible the legal entry into the European Community, as it was then known. The most relevant consequence of this act, inter alia, was the subsequent perceived transfer of sovereignty from London to Brussels; it should however be noted that the United Kingdom has only given up sovereignty in those legal areas that are covered by European Community Treaties. However, H.W.R. Wade argues that with the passing of the ECA, the parliament of 1972 bound future parliaments and that this was nothing but revolutionary (Wade, pg. 3).

A further dilemma lies with whether or not future British courts will be able to find an Act of Parliament that intends to abrogate the ECA and therefore the United Kingdom’s membership in the European Union (as per the Treaty of Maastricht 1991), to be legal under EU law. In Costa v. ENEL (1964), the European Court of Justice (henceforth the ECJ) established the supremacy of EU law over domestic law. Furthermore, in 1990, the ECJ in Factortame (No. 2), affirmed Costa and, after the House of Lords deferred the question of whether British courts could disapply acts of Parliament in those cases in which such acts are incompatible with EU law(s), returned an answer in the affirmative, namely that the Merchant Shipping Act 1988 was to be struck down.

While Parliamentary Sovereignty may be said to have been limited by the passing of the European Communities Act in 1972, due to its anomalous binding nature on future parliaments, this cannot realistically be a cogent interpretation of what is both politically possible and feasible given certain impetuses for acting otherwise. Parliament, like in the passing of the Statute of Westminster 1931, limited itself and by doing so, limited future Parliaments. International sovereignty theorists may distinguish between a vertical loss of sovereignty, and a horizontal loss of sovereignty. Such a distinction can disassociate Acts of Independence (as they were implemented during the end of imperialism) that limited the territorial sovereignty of the United Kingdom, from Acts of Subordination (vis-à-vis the European Union) that limit the sovereignty of a national Parliament in the territory it is “supposed” to be the supreme lawmaker in. However, the United Kingdom cannot be said to have neither experienced a horizontal loss of sovereignty, nor, in this instance, and as it applies to this discussion, a loss of Parliamentary Sovereignty, by virtue of having become a member of the European Community (as it was known then). Until the United Kingdom Parliament decides to repeal the European Communities Act 1972 and exit from the European Union (Black-Branch, pg. 79), an Act that can only be undertaken within a framework of Parliamentary Sovereignty, it will continue to be the supreme lawmaker, insofar as it has accepted to be bound by the decisions of the ECJ in those areas that it has, by virtue of incorporating according Treaties into domestic law (read: a positive act of sovereignty), agreed to transfer sovereignty to Brussels.

Human Rights Act 1998

The Council of Europe proclaimed the European Convention on Human Rights in 1950. In 1998, this convention was incorporated into United Kingdom domestic law via the Human Rights Act 1998 (henceforth the HRA). Although the HRA purports to protect individual citizens against both repression and oppression stemming from government abuse of power, in addition to allowing individuals to seek recourse in domestic courts (as per the decision in Van Gend En Loos (1963)), the remedies offered by the HRA are ineffective and vulnerable to political predation.

Firstly, the HRA “is not constitutionally entrenched and judges have powers to strike down secondary legislation but not primary legislation” (Black-Branch, pg. 65). Secondly, judges “can issue declarations of incompatibility if they feel there is an incompatibility between primary legislation and the rights in question, leaving it for Parliament to act on the issue if deemed appropriate to do so” (Black-Branch, pg. 74). Effectively then, the very same rights that are normatively supposed to offer some protection against oppression and repression, are in turn left to the mercy of absolute and arbitrary politicians that may have varying interests as to whether to rectify the deficiency of incompatibility. Allowing politicians the discretion to pass judgement on such matters of human rights may purportedly limit the breadth and depth of Parliamentary Sovereignty as it “fast-tracks” inconsistencies through Parliament with the intention to address such discrepancies, but in reality, the opposite is true.

CONCLUSION

Parliamentary Sovereignty dictates that past parliaments cannot bind future ones; that predecessors cannot negotiate on behalf of their successors. In 1689, following the Great Revolution of 1688, the English Bill or Rights contractually prevented the Crown from governing the English nation by means of royal prerogatives, which previous to the enactment of such Bill had the capacity to suspend the execution of those laws as passed by Parliament (Article 1, Bill of Rights, 1689). In principle, the effect of this legal agreement, between the Crown and the Parliament, was that the nation was to subsequently be (ostensibly) safeguarded “against the tyranny of its King” (Loveland, pg. 29). However, tyranny by one King is no different than tyranny by Parliament, especially when the doctrine of Parliamentary Sovereignty in the United Kingdom continues to be “pompously paraded to justify decisions which are really political choices and not constitutional necessities” (Black-Branch, pg. 77). If the arguments presented in this case carry any validity, Parliamentary Sovereignty in the United Kingdom has and will continue to be an immutable part of the United Kingdom’s body of constitutional (read: conventional) law, offering adherence to the “rule of law” when it is politically expedient (and political self-interests do not dictate otherwise) to do so.

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the unconscious sandbox

the united kingdom is a useless country full of lazy peasants and overexcited bovine. nothing really froth-inducing. last week i saw a few wealthy and pompous geriatrics trying to load the bus without foregoing their ‘property’ by means of appropriating the bus driver with what obviously was not his. this society is beyond-me complicated. i am expected to respect their religion, ahem, their belief that ‘to not work is better, to undermine contractual obligations is best,’ but to be honest, i have yet to find any argument in favour of that relationship.

last week i attempted to provoke capitalism by inducing a third-party to contract on my behalf. it failed miserably, but not so fast. traditionally, ‘rights’ have had further complications, namely an ‘appendix’ euphemistically called ‘obligations.’ it seems to me that this part of the pond is more concerned with the former rather than the latter; the right to own chattel (the right to slavery), the right to be accommodated, the right to express criticism directed at ‘those dogs,’ the right to enter into agreements (only) with your peers, ad nauseum, et cetera. on the flip side, obligations can be categorized as being all those undertakings that require a detriment to the person to be expressed as some sort of consideration for the ultimate cause, humanity. in plebeian words, fuck hierarchical power relations.

we really are left with a minor conundrum here. the equation is set up so as to allow only a pretending few to benefit from the detriments of others. however, the victims of ‘life-between-jobs’ themselves feel further entitled to the luxuries of fame by victimization, as appropriated through ‘pity-channels’ and realized via more modern models of efficiency, fraud, identity theft, clandestine activity and gum chewing.

so while we all bitch, complain, take the dog out for a walk and scratch our society’s back (in return for a gyro cheque), the visiting foreigner, in true stereotypical style, finds out just how important it is to spit out rhetoric in favour of a better, less corrupt, more accountable and ostensibly-less-on-the-fence (?)united-kingdom(?). at the very least, the foreigner will have an audience who is willing to listen. and that is in itself enough to conclude with…

have you been introduced to the word “incentive” yet?

addendum:

law school is a bit of a bore, but that is because in our constitutional law course we are given propaganda vhs tapes to take home and watch while ‘high’ on the ‘prospect that law school will make you rich.’ similar indulgences and sheer decadence is attempted in our contract law course but with a slightly less obvious success rate.

i noticed that life behind bars (euphemism for a life behind the great wall of the university of birmingham) is fairly docile. most inmates favour silence and servitude. they are content with vilifying their masters insofar as they do not raise any suspicion as to their true intent. ulterior motives live behind a vail of passivity that only imperialism was able to justify as being incredibly unnecessary.

it seems to me that the populist march continues to favour the modern fascist beat of twenty-first century ‘nanny statism.’ it’s personal.

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Part B: Provisional Excretion by Method Unknown

This is a discussion. Between an individual and an idea, one looking for answers, the other, looking for an author. I want to proceed with caution because of the sensitive nature of the inquiry. The boundaries and the social constructions need to be questioned and provocatively rebuilt.

Is it possible to find a suitable definition of ‘attraction’ as it is defined generally? Can the attractiveness of someone be decomposed into elements better understood?

Introduce Helmut Newton, a boisterous nostalgic who captured female vulnerability as it intersected with time-sensitive definitions of power. He did not only revolutionize fashion photography. Helmut inspired.

With that, an additional element is entered into the equation of attractiveness, one that describes the interaction between the two categories, power and vulnerability. This is an empty void, a complete nothingness, an abstraction, specifically, the ‘point of intersection.’

Where power and vulnerability meet, the effect is ‘attractiveness,’ or the extent to which something is attractive. This definition cannot be touched, fondled or undressed. Fee free to masticate on it and to marinate your own ideas.

A female’s attractiveness can be abstractly measured or quantified by the extent to which she both allows herself to capture and be captured. To be the hunter and the hunted, to will and to be willed on. A perfect duality.

However, a caveat. The female SEX does not have a monopoly over sexuality or ‘femininity,’ as it is generally understood. This can in turn also be applied to the opposite sex. Masculinity and Femininity cannot and should not be understood as existing in a static and fixed bond or relationship with gender. These two abstractions exist in both sexes, to varying degrees. Their dynamic manifestations transcend gender.

Some men see the men in other men. But they can also see the woman in other man. This also applies to women. If evidence is the proof you are after, recall homosexual relationships and attractions.

(Aside) The fixation on the self may produce unintended consequences. Obsessing over the reflection of yourself, as you observe it in others, may distract you to the extent that you forget to pay attention to the person you are interacting with. Vanity and narcissism. Further proof that ‘modern’ service economies would be unsustainable if not for the constant pursuit of self-aggrandization, self-patronization and self-promotion.

Returning to my previous discussion of attraction and the genderless state that it exists in, I wish to further add by asking whether or not the ‘modern’ feminist description of a liberal state has, instead of ‘rectifying deficiencies,’ created a state of affairs in which the tables, having turned one hundred and eighty degrees, have retained the vehicles by which oppression is institutionalized but have modified the message to exclusively benefit women. It has not – see MacKinnon.

Female opportunism exists. And it has been empowered by feminist emancipators who have done nothing to provide coherent solutions to a perceived state of oppression by male-centrists. In much the same way as women do not have a monopoly over femininity of femaleness, men equally fail to absolutely defend the bastion of male-isms.

A definition of attractiveness is important because it reproduces a genderless state in which traditional definitions of male- (power) and female-dominant (vulnerability) features are scrutinized, debunked and subsequently recreated to provide a starting point for a coherent critique of liberal feminist theory.

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