A Feminist Critique of the Law

Law is power.[1] Those in power make the law, those in power adjudicate the law, and those in power enforce the law. Any feminist critic of the law is a critic of power. As ‘first-wave feminists’ have pointed out for over a century, it is mostly men who hold this power.[2] While equality has come a long way to improving the representation of women in the law, it is still mostly men who are involved in the law making and enforcing process. The first-wave feminist project – to ensure equal access, representation and fairness for women – still has a long way to go, even after a century of fighting.

This inequality can still be seen today – in the parliament, the courts and the executive. This power concentrated in the hands of men still results in unfair laws against women. Aboriginal women are jailed at disproportionate rates (often for unpaid fines), women and their children are indefinitely detained in Australia and offshore for seeking a better life for their family, women still do not receive equal pay compared to men, and end up with half the superannuation of men.

Much of this failure to create equal laws for women can also be attributed to what ‘second-wave feminists’ refer to as ‘the male culture of the law’.[3] Men not only dominate the legal process, but the legal process itself is masculine. The legal system is adversarial – more focused on winning then achieving a just outcome. The law making process is also adversarial and ideologically driven, rather than restorative and community focused. This is highlighted by Smart, with her analysis of rape cases.[4] The legal precedent (i.e. the previous writings of men) in most jurisdictions allows for (or even encourages) the victim’s sexual history to be explored during rape cases. Yet the sexual history of the accused is never relevant. This contradiction is embed in the myth of a neutral precedence, as Smart concludes:

…the formulation of the rules guiding rape cases are shrouded in the mists of time – and by the myths of neutrality. The student who argues that this should not be relevant will never make a ‘good’ lawyer.[5]

How can this masculine process then seek to produce positive outcomes for women, when the entire system itself is inherently ‘man-made’?

A feminist critique of power must also not ignore the other dimensions of inequality. A feminist critique must be intersectional – recognising the multi-faceted levels of disadvantage. Men not only hold the power of the law, but these men are mostly white, Christian, middleclass (or upperclass), straight and abled. These dimensions cannot be ignored, especially as the laws which disproportionately affect women also disproportionately affected other minorities. Women who experience multiple disadvantaged are affected the worst – aboriginal women, disabled women, queer women. Thus, any attempt to improve the lives of women must address the needs of all women.

What should those who stand for the rights of women do in the face of such inequality? Can the law be reformed to improve its treatment of others? A third-wave feminist critique may argue that the law itself is the problem. Such power can never be wielded fairly – it will always be inherently inequitable. In 1880 anarchist Kropotkin makes this conclusion in his pamphlet ‘An Appeal to the Young’:

…if you analyze the law and strip off those cloudy fictions with which it has been draped in order to conceal its real origin, which is the right of the stronger, and its substance, which has ever been the consecration of all the tyrannies handed down to mankind through its long and bloody history; when you have comprehended this, your contempt for the law will be profound indeed.[6]

On the other hand, reforms to the law have brought many benefits to women. Women enjoy equal voting rights, laws against sex-discrimination, parental leave, custodial rights, abortion rights and better treatment in and out of marriage, among may other laws. These laws have been hard fought and won by women. These reforms have occurred by using the power of the law to better serve women – reforming the law from within, rather then seeking to abolish the law.

Yet critics may argue that while the law on paper may have improved, in practice there has been little change. Again, this can be attributed to the second-wave feminist critique, that the law itself is inherently masculine. As Smart argues, there is a significant difference between the ‘law-as-legislation’ and ‘law-in-practice’. While on paper the law may seek to improve the lives of women, the reality is that women still experience discrimination and disadvantage in most parts of society. Sexual harassment, discrimination, domestic violence and many other harms against still occur on a daily basis, despite the introduction of legislation apparently designed to address these issue.

Should feminist then look to the law to seek equality? Scholars such as Dahl have argued that women should not rely on the formal legal system to bring about change, but should rather seek to bring about societal change.[7] I would like to argue one step further – that as long as the law is inequitable, it is illegitimate and thus not binding upon society. Indeed, the power of the law ultimately derives from the people who give it such power. If that power does not serve the people fairly, then it is not legitimate. In the film Suffragette, one of the main protagonist shouts: ’You want me to respect the law? Then make the law respectable.’[8]

[1] Carol Smart, Feminism and the Power of Law (Routledge, 1989).

[2] Ngaire. Naffine, Law and the Sexes: Explorations in Feminist Jurisprudence (Allen & Unwin, 1990) 3.

[3] Ibid 6.

[4] Smart, above n 1, 22.

[5] Ibid.

[6] Petr Kropotkin, An Appeal to the Young (William Reeves, 1890).

[7] Smart, above n 1, 24.

[8] Sarah Gavron, Suffragette (2015).

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