Thornton, Margaret --- "Feminist Legal Theory: an Introduction" [2003] ALRCRefJl 13; (2003) 83 Australian Law Reform Commission Reform Journal 5

---

Reform Issue 83 Spring 2003

This article appeared on pages 5 - 9 of the original journal.

Feminist legal theory: An introduction

By Professor Margaret Thornton*

Feminist legal theory does not have a precise denotation but embraces many different perspectives and ways of thinking about law and justice. It has grown out of the feminist movement more generally. Inspired by a vision of the way things might be, feminism is pre-eminently a reformist movement that seeks to make things better for women in all spheres of life. First Wave Feminism was associated with the struggle by women to be admitted to public office, universities and the professions in the late 19th century. Second Wave Feminism, of which feminist legal theory is a sub-set, emerged in the late 20th century and is more diverse and far-reaching, as this brief overview will suggest.

From the outset, Second Wave Feminism was very much concerned with praxis, or the interrelationship between theory and practice. The point is illustrated by the ongoing attempts by feminists to draw attention to the philosophical separation between public and private life, which is central to the western intellectual tradition. One of the early aphorisms of the feminist movement was: ‘The personal is the political’, suggesting that everything marked ‘private’ should be a matter of public concern. The feminist focus on the private sphere permitted not just a critique of family life, with its dark underside of violence, but it enabled exploration of the ways in which women’s responsibility for housework and caring for others facilitated the participation of men in public life and paid work.

Critiques of the gendered construction of social knowledge of all kinds have been central to the feminist theoretical project. What has been progressively established in respect of the dominant discourses of all academic disciplines, including law, is that the accounts, which have been presented as universal and true, are in fact partial because they are based almost exclusively on a masculinist point of view. That is, because men have conventionally dominated the public sphere, which has been privileged over the private sphere, male voices have come to be regarded as more authoritative. Therefore, the threshold question of academic feminism has been how can rational claims to universality be made if the experiences and perspectives of half the population are consistently omitted?

The reformist potential of law ensured that law was a major site of feminist activism from the outset. Feminist legal scholars may nevertheless evince some ambivalence about law for, while it has the potential for liberation, on the one hand, it has also been a primary mechanism for legitimating and perpetuating oppressive regimes against women, on the other. Thus, coverture, for example, which ensured the loss of all civil rights for a woman on marriage, was a creation of the common law. Its vestiges still operate to detract from the idea of married women as fully autonomous legal persons, despite a raft of legislative reforms enacted since the late 19th century. By exposing anomalies and proffering explanations for them, feminist legal scholars seek to challenge the well-entrenched liberal myths that the legal person is genderless, that one’s life course is a matter of personal choice alone, and that law is neutral, objective and fair.

Reform

Since the 1970s, Australian feminist legal scholars have campaigned for change and critiqued the gender bias of the law. Feminist reformers were keen to assist courts and other key institutions in grappling with new ways of seeing, in order to make the law more receptive to women. In light of liberalism’s much-touted claim of equal treatment before the law, it is probably unsurprising that overt inequalities within the law, particularly the criminal law, were the focus of many of the initial campaigns. The differential impact on men and women of the partial defences of provocation and self-defence to charges of homicide was a notable example. Feminist legal scholars demonstrated that both of these defences contained an inherent bias against women, which arose, in the main, from men’s superior physical strength. In time, most criminal law jurisdictions accepted the gender bias thesis and changes to the law were effected, although the best way of remedying the anomalies continues to be contested.

The issue of domestic violence received comparatively little attention until feminist scholars drew attention to its pervasiveness and the way that relational assaults in the home were treated less seriously than assaults between strangers in the street. Over more than two decades, an array of innovative reforms has been tested and fine-tuned, including telephone warrants, apprehended violence orders and counselling of offenders. While it would be overstating the case to claim an overall reduction in the incidence of violence against women, which is impossible to measure anyway, it is undoubtedly the case that public exposure and debate has caused social attitudes to change, including those of the police, magistrates and judges. The assault of a woman in the home is now less likely to be dismissed as ‘just another domestic’.

Rape, or what has come to be characterised as sexual assault, has also been on the feminist law reform agenda for a long time, particularly with regard to the definition of consent, the burden of proof and the nature of cross-examination regarding prior sexual history. Like domestic violence, social attitudes in regard to sexual assault have also changed. While the common law regarded the rape of a woman as a serious crime, this was because it was treated more as a crime against patriarchal property than the violation of the will of a human being. If a woman says, ‘No’, the law now recognises that she means ‘No’, not ‘Yes’. The feminist claim that women ought to be able to exercise autonomy over their own bodies also manifested itself in campaigns to decriminalise abortion and prostitution. In the case of prostitution, feminist activists drew attention to the unequal operation of the law: that is, that it was only the person offering the sexual services, not the (invariably) male client, who was liable to be prosecuted. Moves to legalise prostitution followed in some jurisdictions.

In respect of the civil law, feminist law reformers have addressed countless anomalies across the entire spectrum of law. They range from anachronisms, such as the gender-specific loss of consortium and the marriage discount (based on a judicial assessment of the attractiveness of a widow) to contemporary issues, such as wrongful birth, sexually transmitted debt and assisted reproductive technology. Family law has been an ongoing site of social change, as have the perennial issues of custody, property and inheritance. These issues have been complicated by contemporary forms of family formation, including de facto and homosexual relationships, which have caused law reform agencies to look to feminist legal scholars for advice as a matter of course.

The focus on employment and economic issues reflects the large-scale movement of women into the workforce that coincided with the rise of Second Wave Feminism. ‘Letting in’, the preoccupation of First Wave Feminism, has been replaced with a concern about the vastly different terms and conditions on which women have been admitted. Sexual harassment at work, for example, is a notable example of a feminist-inspired reform that was first recognised as a civil harm less than 20 years ago.¹

The first sex discrimination legislation was enacted in Australia in 1975 as a result of feminist lobbying. For women to make out claims of inequality and sex discrimination, it nevertheless had to be shown that they were in the same or similar circumstances to those of a real or hypothetical man, but were treated less favourably because they were women. The limitations of the formalistic approach became increasingly apparent in the gymnastics necessary to establish an appropriate comparison. In one infamous American Supreme Court case, pregnancy was analogised with the male-specific medical conditions of prostatectomy, haemophilia, circumcision and gout.² In the absence of a comparable pregnant man, it was reasoned, unfair treatment on the ground of pregnancy did not constitute sex discrimination. Comparisons of this kind induced many feminist scholars to espouse difference, that is, to accept that the category ‘woman’ was essentially different from the category ‘man’, and that gender difference should be celebrated rather than expecting women to conform to an artificial male standard. Others persevered with trying to improve sex discrimination legislation by arguing for the inclusion of affirmative action, indirect discrimination, maternity leave and the accommodation of workers with family responsibilities.

Scholarship

By the mid-1980s, some feminist legal scholars had moved beyond a focus on equality and the idea of reforming discrete aspects of law to thinking about how law itself was gendered. The new approaches struck a chord with other legal scholars, thereby generating debates, seminars, colloquia, and a flurry of publishing activity. Mainstream law journals began to publish articles by feminist legal scholars, which signalled a qualified degree of acceptance of feminist theory within the legal academy. Special issues of law journals were devoted to feminist legal theory, such as that of the Australian Journal of Law and Society in 1986. A specialist law journal, the Australian Feminist Law Journal, which was devoted to feminist legal theory, first appeared in 1993.

The major problem, it was argued, was that feminist legal reformers, who were themselves mainly white, middle class, able-bodied and heterosexual, sought to create a new legal subject in their own image. Non-English speaking, indigenous, immigrant, lesbian, disabled, and working-class women began to attack the depiction of woman within the feminist movement as possessing a single, identifiable ‘essence’, for they did not see themselves reflected in the image. White feminists were taken to task for prioritising gender over race.³ The attack on what came to be known as ‘essentialism’ sent shock waves through the feminist movement. But a conundrum presented itself: how could there be a viable women’s movement without a unitary category ‘woman’? In particular, how could law reform and legal discourse accommodate a multiple category ‘women’, when law believes in clear lines and neat categories?

The attack on essentialism signalled the increasing acceptance of post-modern critiques of one-dimensional causal accounts. Post-modern feminism cannot be defined in terms of a single theory, for it includes a range of perspectives that reject universality, objectivity and the idea of a ‘single truth’, although it could be argued that feminism itself might be understood as post-modern because of its multifaceted assault on universalism and orthodoxy. While not denying that many women are subject to violence and exploitation in their lives, post-modernism rejects subordination and victimhood as fixed characteristics of women’s identity. A fluid approach is favoured which seeks to take account of difference and privilege, as well as resistance and individual agency. As a result of being influenced by Aboriginal, non-English speaking background, disability and lesbian feminist legal theorists, the ‘woman’ of legal discourse became more diverse.

Legal education

Most prospective lawyers, men as well as women, are likely to have had some exposure to feminist legal theory during their law school experience, although the quality and extent of that experience is contingent on the interests and expertise of particular lecturers. Because of the prescriptive requirements of admitting authorities, the economically oriented core subjects, including property, contract, torts and commercial law, are privileged over those concerned with the affective side of life, such as family law, human rights, discrimination law and feminist legal theory.

Within the core subjects themselves, the focus tends to be doctrinal and applied, which means that little attention may be paid to critical and theoretical perspectives. However, as a result of lobbying by feminist legal scholars, an attempt to develop gender awareness within all compulsory subjects of the law curriculum was initiated by the Australian Government in 1993. This initiative followed a period of intense media focus on the issue of gender bias in the judiciary. The most notorious instance involved a remark by Justice Bollen of the South Australian Supreme Court in the course of a marital rape trial, to the effect that ‘rougher than usual handling’ was acceptable on the part of a husband towards a wife who was less than willing to engage in sexual intercourse.⁴ Two teams of feminist legal scholars prepared materials on the themes of citizenship, work and violence.⁵ Copies of the materials were sent to all law schools and were made available on the Internet, but it was left to individual academics to determine what use they would make of them.

Apart from the core curriculum, feminist legal academics have taught a cluster of dedicated electives, such as ‘women and law’, ‘anti-discrimination law’ and ‘feminist legal theory’. The primary topics within the feminist legal theory ‘canon’ have tended to involve violence, the family, reproduction and economic rights, closely parallelling the history of the reformist agenda.⁶ More recently, an interdisciplinary or cross-disciplinary focus that challenges the autonomy of law has replaced the teaching of feminist legal theory in some law schools. ‘Law and literature’ or ‘law and culture’, for example, have encouraged the deconstruction of legal texts themselves, as well as a focus on creative writing, film and television. The inclusion of fictionalised accounts within a law course disrupts the idea that the juridical voice is the only authentic and authorised voice in law. Popular culture, which may be as close as many people get to law, allows justice to be imagined in ways not otherwise attainable.⁷

Despite this vibrancy in feminist legal scholarship, it has been suggested that it has not exercised the impact on the curriculum that might have been expected.⁸ This is difficult to gauge. It is not known how many law teachers utilised the prepared ‘gender bias in the law’ curriculum materials, for example. My own research suggests that there has been a move away from legal theory of all kinds in favour of purely applied knowledge, a change that has coincided with the decline in government funding of universities and the dramatic increase in student numbers that began to occur in the 1990s. Elective subjects have clearly been deleteriously affected by declining staff numbers.

Legal practice

Feminist legal scholars have also turned their attention to legal practice to evaluate the impact of the dramatic change in the gender profile of the profession.⁹ While approximately 50 per cent of law students, 40 per cent of legal academics and 30 per cent of practising lawyers in Australia are women (a picture that is reflected in other parts of the western world), this ‘letting in’ is not necessarily synonymous with an acceptance of either the reformist or the critical dimensions of feminist legal theory.

Feminist legal theory may well have contributed to the acceptance of women in legal practice in increasing numbers over the past two decades, but there has also been an unstoppable demand for the delivery of legal services at both the national and the international levels. Accordingly, law firms have been happy to accommodate women lawyers where they are expected to serve the needs of corporate clients, certainly not a feminist agenda for reform. Although the corporate law firm in Australia is now likely to have sexual harassment and maternity leave policies in place, such policies invariably fall short of the rhetoric. It would seem that legal practice is being revolutionised by the power of corporate clients and economic rationality, key characteristics of the new political economy. Justice and equity, the values underpinning Second Wave Feminism, would seem to be playing a secondary role to property and profits.

Conclusion

I have sought to convey something of the transformative potential of feminist legal theory over the past 25 years. I have suggested that it is a dynamic and diverse movement of reformers and scholars that is not reducible to a single point of view. Feminist legal theory has played a major role in campaigning for and effecting changes to the law in order to make it more equitable for women. Despite the trail-blazing nature of these reforms and the wealth of published scholarship in recent years, feminist legal theory does not seem to have made a significant impression on either the law school core curriculum or mainstream legal practice. The resistance would seem to underscore the fear associated with social change, even when that change is rational and just.

* Professor Margaret Thornton is a Professor of Law and Legal Studies at La Trobe University, Melbourne.

Endnotes

1. O’Callaghan v Loder (1984) EOC 92-024 (NSW EOT).

2. Geduldig v Aiello [1974] USSC 129; 417 US 484 (1974).

3. For example, J Huggins, ‘A Contemporary View of Aboriginal Women’s Relationship to the White Women’s Movement’, in N Grieve and A Burns (eds), Australian Women: Contemporary Feminist Thought (1994) Oxford, Melbourne.

4. R v Johns, SA Supreme Court (unreported) 26 August 1992.

5. The citizenship materials were prepared by Professor Sandra Berns, Ms Paula Baron and Professor Marcia Neave, and the work and violence materials by Professor Regina Graycar and Associate Professor Jenny Morgan. The writer chaired the overseeing committee.

6. See, for example, R Graycar and J Morgan, The Hidden Gender of Law (2nd ed), (1996) Federation Press.

7. For example, M Thornton (ed), Romancing the Tomes: Popular Culture, Law and Feminism (2002) Cavendish, London.

8. R Johnstone and S Vignaendra, Learning Outcomes and Curriculum Development in Law: A Report commissioned by the Australian Universities Teaching Committee (AUTC) (2003) Commonwealth of Australia, Canberra.

9. M Thornton, Dissonance and Distrust: Women in the Legal Profession (1996) Oxford, Melbourne.