Law desubstantialization: gender dimension of branch formation

The article deals with the influence of gender factors on the formation of the traditional model of branch formation and substantiates the concept of law desubstantialization as a methodological approach that overcomes the notion of neutrality and ahistoricity of the legal system. It is shown that gender structures of thinking determine not only the criteria for dividing law into branches, but also the hierarchy of legal knowledge within the legal doctrine framework. Branch division is not a purely technical or logical classification, but is a manifestation of the hierarchy of social relations, where public law occupies a symbolically “higher” position compared to private law. Examples of changes in the ratio of public and private in certain areas, in particular in family law and environmental law, are given. The concept of law desubstantialization is revealed as a refusal to search for “objective” criteria for branch division and recognition of the social and historical conditionality of the legal system itself. In this context, it is shown that the notion of legal neutrality is an ideological fiction legitimizing existing discourses of power, in particular gender discourses. Feminist criticism of law is considered as an attempt not only to “include” women into the legal system, but rather to deconstruct the logic that reproduces asymmetry. Turning to judicial practice, in particular to the case of Bradwell v. State of Illinois (1873), it was possible to show that even formally neutral norms and decisions can reproduce gender selectivity. The court decision in this case illustrated how law can entrench social hierarchy under the guise of an “objective” interpretation of constitutional guarantees, determining who has access to public status and professional activity. This allows us to reveal that the legal substance – the concepts of field, competence, and legal status – is not gender neutral, but reflects the power structures of society. As a result, the desubstantialization of law is considered as a strategy that opens up the possibility of critically rethinking the legal system not as a closed logical construct, but as an open process of social articulation of power. Gender in this approach acts not only as a social, but also as an epistemological category that reveals the limits of legal thinking.