The Development of Feminist Jurisprudence

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Conclusion: What about Legal Practice?

In my overview of feminist jurisprudence, I have sought to convey a semblance of the intellectual vibrancy and diversity that has characterised this approach to law within the academy. I have made some suggestions for effecting change to the law curriculum, although I recognise that such proposals are likely to bring resistance in their wake. Contestation can occur at many sites. Legal positivism, for example, which remains in the ascendancy in most law schools, as well as in legal textbooks, despite disavowals, is very effectively able to disqualify countervailing knowledges with its claims to being apolitical and ahistorical.60 However, it is legal practice, particularly corporate practice, that represents a significant site of resistance — a site, furthermore, that significantly, but subtly, shapes legal education.

While approximately fifty per cent of law students and thirty per cent of lawyers in Australia are women (a picture that is reflected in other parts of the Western world), this “letting in” is by no means synonymous with an acceptance of either the reformist or the critical dimensions of feminist jurisprudence.61 Women lawyers have been accepted in increasing numbers over the last two decades in an endeavour to satisfy the unstoppable demand for the delivery of legal services at both the national and the international levels. As a result, they have tended to be slotted into increasingly bureaucratised mega-firms. Endowed with minimal autonomy, they are expected to serve the needs of corporate capital, certainly not a feminist agenda for reform. The corporate law firm, with its norms of hierarchy and depersonalisation, quickly sheds the social, the subjective and the affective. 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 in practice. Indeed, the evidence of the influence of feminist jurisprudence in legal practice, particularly corporate legal practice, would seem to be minimal. Corporate law firms are compelled to serve the interests of their corporate clients. If not, those clients will transfer their business elsewhere. Billable hours and the maximisation of profits leave little time for feminist reflexivity.

Legal practice is being transformed by corporatism and economic rationality, key characteristics of the “new economy”, whereby the welfare state is being progressively dismantled, and public services are being privatised and contracted out. The latter include public sector legal services where many women have felt that they could practise law in a manner that accorded with feminist principles. This scenario is characteristic of corporatism and the “new economy” — neoconservative phenomena presently spreading around the globe like wildfire.

Thus, in the West, it would seem that a paradoxical situation has arisen. That is, although feminist jurisprudence might be at the cutting edge of legal theory in the academy, there is a marked disjuncture between it and legal practice. The oppressive nature of corporate global capitalism is difficult to resist and I can proffer no simple solution. Nevertheless, I draw attention to this challenging dimension of modernisation for debate and discussion in law schools in the ongoing struggle for gender justice and human rights.

Some Casebooks and Collections on Feminist Jurisprudence

H Barnett, Sourcebook on Feminist Jurisprudence (London: Cavendish Publishing, 1997).

KT Bartlett and R Kennedy, Feminist Legal Theory: Readings in Law and Gender (Boulder, Col: Westview Press, 1991).

M Becker, CG Bowman and M Torrey, Cases and Materials on Feminist Jurisprudence: Taking Women Seriously (St Paul, Min: West Publishing, 1994).

A Bottomley ed, Feminist Perspectives on the Foundational Subjects of Law (London: Cavendish Publishing, 1996).

K Crenshaw, N Gotanda, G Peller, K Thomas eds, Critical Race Theory: The Key Writings that formed the Movement (New York: New Press, 1995).

R Delgado ed, Critical Race Theory: The Cutting Edge (Philadelphia: Temple University Press, 1995). MJ Frug, Women and the Law (Westbury, NY: Foundation Press, 1992).

R Graycar and J Morgan, The Hidden Gender of Law (Sydney: Federation Press, 1990).

N Naffine and RJ Owens eds, Sexing the Subject of Law (Sydney: LBC Information Services, 1997).

F Olsen, Feminist Legal Theory, 2 vols (New York: New York University Press, 1995).

JA Scutt, Women and the Law (Sydney: Law Book, 1990). P Smith ed, Feminist Jurisprudence (Oxford: Oxford University Press, 1993).

M Thornton ed, Public and Private: Feminist Legal Debates (Melbourne: Oxford University Press, 1995.

DK Weisberg, Feminist Legal Theory: Foundations (Philadelphia: Temple University Press,1993).

DK Weisberg, Applications of Feminist Legal Theory to Women’s Lives: Sex, Violence, Work, and Reproduction (Philadelphia: Temple University Press, 1996).

AK Wing, Critical Race Feminism: A Reader (New York and London: New York University Press, 1997).

* Professor of Law and Legal Studies, La Trobe University, Melbourne. This paper was presented at the Winter Workshop on Law, Development and Gender Justice, ILS Law College, Pune, India, 11–20 January, 1998. I would like to thank Dr Jaya Sagade for organising the workshop. I would also like to thank Ms Vaijayanti Joshi, the Principal of ILS Law College, Ms Laxmi Paranjape and Ms Sathya Narayan, as well as Dr Sagade, for their hospitality.
©1999. (1998) 9 Legal Educ Rev 171.

1 For a collection of articles commemorating the struggles to establish Women’s Studies in Australian universities in the 1970s and 1980s, see (1998) 13 Australian Feminist Studies 47–136. For a discussion of Indian feminism, see ME John, Discrepant Dislocations: Feminism, Theory, and Postcolonial Histories (Berkeley: University of California Press, 1996).

2 LC McClain, “Atomistic Man” Revisited: Liberalism, Connection, and Feminist Jurisprudence (1992) 65 Southern California Law Review 1171, at 1173.

3 For example, G Minda, Jurisprudence at Century’s End (1993) 43 Journal of Legal Education 27.

4 M Thornton ed, Public and Private: Feminist Legal Debates (Melbourne: Oxford University Press, 1995); K O’Donovan, Sexual Divisions in Law (London: Weidenfeld and Nicolson, 1985).

5 See, for example, R Kapur and B Cossman, Subversive Sites: Feminist Engagements with Law in India (New Delhi: Sage, 1996).

6 M Gatens, A Critique of the Sex/Gender Distinction, in S Gunew, A Reader in Feminist Knowledge (London: Routledge, 1991). For a discussion of American Supreme Court cases, for example, see TE Higgins, “By Reason of their Sex”: Feminist Theory, Postmodernism, and Justice (1995) 80 Cornell Law Review 1536.

7 For a critique of conventional legal methods, see MJ Mosanan, Feminism and Legal Method: The Difference it Makes (1986) 3 Australian Journal of Law and Society 30. For a consideration of feminist legal methods, see KT Bartlett, Feminist Legal Methods (1990) 103 Harvard Law Rev 820.

8 However, as Carol Smart points out, alternative accounts could emerge in women’s writings and feminist groups, if not in court. See C Smart, Feminism and the Power of Law (London & New York: Routledge, 1989) at 88.

9 Geduldig v Aiello 417 US 484 (1974), per Brennan J. Some feminists, such as Wendy Williams, continue to support the symmetrical approach. See WW Williams, Notes from a First Generation [1989] University of Chicago Legal Forum 99; WW Williams, Equality’s Riddle: Pregnancy and the Equal Treatment/Special Treatment Debate (1985) 13 New York University Review of Law and Social Change 325.

10 In a Different Voice: Psychological Theory and Women’s Development (Cambridge, Mass: Harvard University Press, 1982).

11 For example, P Cain, Feminist Jurisprudence: Grounding the Theories (1989) 4 Berkeley Women’s Law Journal 191; C Smart, supra note 8; M Thornton, Feminist Jurisprudence: Illusion or Reality? (1986) 3 Australian J Law & Society 5; H Wishik, To Question Everything: The Inquiries of Feminist Jurisprudence (1986) 1 Berkeley Women’s Law Journal 64; A Scales, Towards a Feminist Jurisprudence (1981) 56 Indiana Law Journal 375.

12 There are presently at least two dozen such journals published in Australia, Canada and the United States, including: Australian Feminist Law Journal, Canadian Journal of Women and the Law; Columbia Journal of Gender and Law; Feminist Legal Studies (UK); Yale Journal of Law and Feminism. More than twenty feminist law journals are published in the United States alone. See M Minow, The Young Adulthood of a Women’s Law Journal (1997) 20 Harvard Women’s Law Journal 1.

13 I have elaborated on this distinction in my study of women in the legal profession: M Thornton, Dissonance and Distrust: Women in the Legal Profession (Melbourne: Oxford University Press, 1996). See also W Brown, States of Injury: Power and Freedom in Late Modernity (Princeton: Princeton University Press, 1995) at 167ff.

14 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 (Melbourne: Oxford University Press, 1994); A Parashar, Essentialism or Pluralism: The Future of Legal Feminism (1993) 6 Canadian J Women and the Law 328; M Mahoney, Whiteness and Women in Practice and Theory: A Reply to Catharine MacKinnon (1993) 5 Yale J Law and Feminism 217; AP Harris, Race and Essentialism in Feminist Legal Theory (1990) 42 Stanford Law Rev, 581; M Kline, Race, Racism, and Feminist Legal Theory (1989) 12 Harvard Women’s Law J 115.

15 CT Mohanty, Under Western Eyes: Feminist Scholarship and Colonial Discourses in CT Mohanty, A Russo and L Torres eds, Third World Women and the Politics of Feminism (Bloomington: Indiana University Press, 1991); GC Spivak, Outside in the Teaching Machine (New York: Routledge, 1993); GC Spivak, In Other Worlds: Essays in Cultural Politics (New York: Routledge, 1988).

16 ME John, supra note 1, at 1. But compare S Suleri, Woman Skin Deep: Feminism and the Postcolonial Condition, in KA Appiah and HL Gates eds, Identities (Chicago & London: University of Chicago Press, 1995).

17 KA Appiah and HL Gates, Editors’ Introduction, in KA Appiah and HL Gates, supra note 16, at 1. See also G Prakash ed, After Colonialism: Imperial Histories and Postcolonial Displacements (Princeton, NJ: Princeton University Press, 1995).

18 For example, K Abrams, Sex Wars Redux: Agency and Coercion in Feminist Legal Theory (1995) 95 Columbia Law Review 304; C Smart, supra note 8, at 76–82.

19 For example, S Marcus, Fighting Bodies, Fighting Words: A Theory and Politics of Rape Prevention in J Butler and JW Scott eds, Feminists Theorize the Political (London: Routledge, 1992). The issue of resistance has been complicated by a conservative backlash which has resulted in attacks on women for having formally complained of sexual harassment or assault; they have been accused of being “over-sensitive” and of destroying the lives of “good” men who have momentarily erred. See, for example, H Garner, The First Stone: Some Questions about Sex and Power (Sydney: Picador, 1995), which sparked a major controversy in Australia. See also, J Mead ed, Bodyjamming: Sexual Harassment, Feminism, and Public Life (Sydney: Vintage Books, 1997). But compare K Abrams, supra note 18, at 343–44.

20 For discussion, see, for example, M Davies, Asking the Law Question (Sydney: Law Book, 1994); C Weedon, Feminist Practice and Post-Structural Theory (Oxford: Blackwell;1987).

21 I note, in passing, that significant French women theorists, such as Irigaray and Kristeva, appear to have exerted less influence on Anglophonic feminist theory than their male compatriots. See, for example, L Irigaray, This Sex Which is Not One (Ithaca, NY: Cornell University Press, 1985); T Moi ed, The Kristeva Reader (Oxford: Blackwell, 1986).

22 For example, P Cheah, D Fraser and J Grbich eds, Thinking through the Body of the Law (Sydney: Allen & Unwin, 1996); I Karpin, Reimagining Maternal Selfhood: Transgressing Body Boundaries and the Law (1994) 2 Australian Feminist Law Journal 36; R Mykitiuk, Fragmenting the Body (1994) 2 Australian Feminist Law Journal 63.

23 For an overview of gendered dualisms, see F Olsen, Feminism and Critical Legal Theory: An American Perspective (1990) 18 International Journal of the Sociology of Law 199.

24 For example, J Derrida, Margins of Philosophy trans Alan Bass (Chicago: University of Chicago Press, 1982).

25 D Cornell, Beyond Accommodation: Ethical Feminism, Deconstruction, and the Law (New York & London: Routledge, 1991) at 147 ff. See also L Irigaray, supra note 21, at 76.

26 M Foucault, Power/Knowledge: Selected Interviews and Other Writings, 1972–1977 ed C Gordon, trans C Gordon et a1 (New York Harvester Wheatsheaf, 1980) at 98. For an example of Foucauldian feminist scholarship, see A Howe, Punish and Critique: Towards a Feminist Analysis of Penality (London: Routledge, 1994).

27 For a somewhat different conceptualisation of the stages of feminist legal scholarship, see N Naffine, Assimilating Feminist Jurisprudence (1993) 11 Law in Context 78; N Naffine, Law and the Sexes: Explorations in Feminist Jurisprudence (Sydney: Allen & Unwin, 1990).

28 A Scales, Disappearing Medusa: The Fate of Feminist Legal Theory (1997) 20 Harvard Women’s Law Journal 34.

29 But compare A Parashar, supra note 14, at 348.

30 HW Arthurs and R Kreklewich, Law, Legal Institutions, and the Legal Profession in the New Economy (1996) 31 Osgoode Hall Law Journal 1.

31 For example, Naihua Zhang with Wu Xu, Discovering the Positive within the Negative: The Women’s Movement in a Changing China in A Basu with the assistance of CE McGrory eds, The Challenge of Local Feminisms: Women’s Movements in Global Perspective (Boulder, Col & Oxford: Westview Press, 1995).

32 B Cossman and R Kapur, Women and Poverty in India: Law and Social Change (1993) 6 Canadian J Women and the Law 278, at 300.

33 G Jordan and C Weedon, Cultural Politics: Class, Gender, Race and the Postmodern World (Oxford: Blackwell, 1995) at 563–564.

34 For critical studies of the discrimination against Indian women arising from the conjunction of family law and religion, see Kapur and Cossman, supra note 32; A Parashar, Women and Family Law Reform in India: Uniform Civil Code and Gender Equality (New Delhi: Sage, 1992).

35 Nivedita Menon points out that the question of the right to abortion has not been problematic in India, but it is the selective abortion of female foetuses that has made the issue one of concern to feminists. See N Menon, Abortion and the Law: Questions for Feminism (1993) 6 Canadian Women and the Law 103. For a discussion of the way the issue has permitted “First World” intervention into the “Third World”, see R Luthra, The “Abortion Clause” in U.S. Foreign Population Policy in AN Valdivia ed, Feminism, Multiculturalism and the Media: Global Diversities (Thousand Oaks, Cal: Sage, 1995).

36 For example, K Rosa, Women of South Asia (Colombo, Sri Lanka: Friedrich Ebert Stiftung, Gala Academic Press, 1995) at 41–42 et passim; P Diwan and P Diwan, Women and Legal Protection (New Delhi: Deep & Deep, 1994).

37 M Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (Melbourne: Oxford University Press, 1990).

38 The trailblazing work of Catharine MacKinnon in this area has to be acknowledged. See CA MacKinnon, Sexual Harassment of Working Women (New Haven: Yale University Press, 1979).

39 For example, A Basu with the assistance of CE McGrory, supra note 31.

40 M Thornton, supra note 13.

41 A Parashar, Reconceptualisations of Civil Society: Third World and Ethnic Women, in Thornton, supra note 4.

42 For other suggestions, see Commission on Women in the Profession, American Bar Association, Elusive Equality: The Experiences of Women in Legal Education (Chicago: American Bar Association, 1996).

43 Following an intense period of media focus on “gender bias in the judiciary” in 1993, the Australian Government funded the preparation of “gender sensitive” materials for law schools on the themes of Citizenship, Work, and Violence. 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. See R Graycar and J Morgan, Legal Categories, Women’s Lives and the Law Curriculum OR: Making Gender Examinable (1996) 18 Sydney Law Review 431. The materials are available on line at

44 M Thornton, Technocentrism in the Law School: Why the Gender and Colour of Law Remain the Same (1998) 36 Osgoode Hall Law Journal 369.

45 For example, S Bottomley, N Cunningham and S Parker, Law in Context, 2nd ed (Sydney: Federation Press, 1997); R Hunter, R Ingleby and R Johnstone eds, Thinking About Law: Perspectives on the History, Philosophy and Sociology of Law (Sydney: Allen & Unwin, 1995).

46 Leeth v Commonwealth (1992) 174 CLR 455, per Deane, Toohey and Gaudron JJ.

47 For example, M Thornton, Embodying the Citizen in Thornton, supra note 4.

48 For example, MA Baldwin, Public Women and the Feminist State (1997) 20 Harvard Women’s Law Journal 47.

49 TE Higgins, Democracy and Feminism (1997) 110 Harvard Law Rev, 1657.

50 For example, H Bhabha ed, Nation and Narration (London & New York: Routledge, 1990).

51 For example, C Pateman, The Sexual Contract (Cambridge: Polity Press, 1988); K O’Donovan, Family Matters (London: Pluto, 1993); P Goodrich, Gender and Contracts, in A Bottomley ed, Feminist Perspectives on the Foundational Subjects of Law (London: Cavendish Publishing, 1996).

52 C Dalton, Deconstructing Contract Doctrine (1985) 94 Yale Law Journal 997; MJ Frug, Re-reading Contracts: A Feminist Analysis of a Contracts Casebook (1985) 34 American University Law Review 1065.

53 See, for example, S Berns and P Baron, Company Law and Governance: An Australian Perspective (Melbourne: Oxford University Press, 1998); A Belcher, Gendered Company: Views of Corporate Governance at the Institute of Directors (1997) 5 Feminist Legal Studies 57; S Corcoran, Does a Corporation have a Sex? Corporations as Legal Persons in N Naffine and RJ Owens eds, Sexing the Subject of Law (Sydney: LBC Information Services, 1997); KA Lahey and SW Salter, Corporate Law in Legal Theory and Legal Scholarship: From Classicism to Feminism (1985) 23 Osgoode Hall Law J 543.

54 For example, J Conaghan, Tort Law and the Feminist Critique of Reason and P Peppin, A Feminist Challenge to Tort Law in Bottomley, supra note 51; L Bender, An Overview of Feminist Torts Scholarship (1993) 78 Cornell Law Rev 575.

55 For example, A Bottomley, Figures in a Landscape: Feminist Perspectives on Law, Land and Landscape and K Green, Being Here: What a Woman Can Say About Land Law, in Bottomley, supra note 51.

56 For example, J Grbich, Taxation Narratives of Economic Gain: Reading Bodies Transgressively (1997) 5 Feminist Legal Studies 131; Writing Histories of Revenue Law: The New Productivity Research (1993) 11 Law in Context 57; The Tax Unit Debate Revisited: Notes on the Critical Resources of a Feminist Revenue Law Scholarship (1991) 4 Canadian J Women and Law 512.

57 For example, R Hunter, Gender in Evidence: Masculine Norms v. Feminist Reforms (1996) 19 Harvard Women’s Law Journal 127; R Hunter & K Mack, Exclusion and Silence: Procedure and Evidence in N Naffine & RJ Owens, supra note 53.

58 M Waring, Counting for Nothing: What Men Value and What Women are Worth (Wellington: Allen & Unwin, 1988).

59 For example, Diwan and Diwan, supra note 35.

60 Thornton, supra note 44.

61 Thornton, supra note 13.
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