INTRODUCTION

Justice and law have an uneasy relationship, and running through the history of legal theory is a recurring concern about the connections between the two and about the ways law is implicated in injustice. Nicola Lacey somewhat provocatively argues: ‘it is something of a truism that justice can generally only be glimpsed in law, and that when law delivers justice, this is often as much by accident as by design’ (Lacey 1998: 247). Legal thinkers from Aristotle to Derrida have called law to account in the name of justice, yet the justice that is usually spoken about in these theories is elusive and disconnected from the embodied practice of law. Law, for its part, has come under severe pressure since the advent of deconstruction, which in its broadest terms reveals law as a construct, questions the possibility of giving objective meanings to legal texts and believes that legal issues are ultimately political and subjective. The question of whether morality needs to be an integral part of law is a further moot point in legal theory. Ronald Dworkin is highly critical of legal positivism and, as we will see in what follows, demands law to be representative of society’s moral positions. This chapter analyses two theories of justice which I consider relevant to the work of Carmen de Burgos, given that her feminism, like first wave feminism in general, defined justice as consisting of gender neutrality and equality before the law. At the time of Burgos the injustice of law with respect to women was blatantly obvious. The litmus test of contemporaneous legal thought was the issue of marriage, or more precisely its indissolubility. The question of divorce was feverishly debated and Burgos herself was one of the most outspoken champions of the modernisation of the divorcio law. As argued below, values that seem to be considered just by the legislators in Burgos's time appear blatantly unjust when recent theories of justice are applied to them. Marriage, divorce and adultery are issues most prominent in the writing of Burgos. Therefore, my analysis of justice will be limited to these three issues.