ABSTRACT
The political pendulum that inscribes an arc from social to neoliberalism has shaped the fortunes of feminism in the Australian legal academy. The 1970s represented the high point of social liberalism when notions of the collective good and distributive justice were acknowledged in accordance with the egalitarian ideal. Although the modus operandi of any free-market society is in-equality, in which the values of competition, power, and hierarchy are central, under the Australian version of liberal democratic capitalism that prevailed in the 1970s and 1980s, the play of freedom was restrained by a modicum of state regulation in the interests of the common good. Social liberalism, with its focus on collective good, not only effected some
semblance of equality for women, it enabled legal feminism’s emergence and short-lived tolerance. A noted product of social liberalism in Australia was the existence of a centralized wage-fixing system rather than enterprise bargaining, which benefited women as well as all low-paid workers. While there was a gender gap in terms of pay equity, it was less than in comparable countries. Neoliberal or market liberalism, generally accompanied by a neoconservative morality, has induced a general contraction of civil society and a correlative decline in distributive justice and interest in social movements. Indeed, neoliberalism, with its moral and economic conservatism, has insidiously sought to effect a re-masculinization of the academy. Neoliberal technologies of power subtly carry gendered subtexts that include regimes of depersonalized top-down authority, entrepreneurialism, and promotion of the self. In the absence of restraint on the state’s exercise of power, feminism is struggling to survive within the contemporary academy. Leaving aside the vagaries of the liberal landscape and its susceptibility
to prevailing political mores, feminism will inevitably encounter resistance within the academy since it is an outsider movement. The law’s singular capacity to silence feminist discourse was a familiar refrain of second-wave feminism (e.g. Smart 1989). Nevertheless, feminism has exercised a discursive effect because it is multifaceted and heteroglossic, with a marked capacity to
reinvent itself. Consequently, it defies a neat definition. The tendency to use the plural form feminisms underscores the difficulty of setting up one theoretical framework that could offer liberatory or emancipatory possibilities for all women (Caine 1998: 419). Feminist legal theory (FLT) is similarly diverse. As an offshoot of 1970s feminism, it began by addressing the materiality of oppression against women with a platform of reforming the law but progressed to transforming fundamentally the nature of legal knowledge. These reformist and transformative dimensions roughly correspond with what used to be called liberal feminism and radical feminism (Jagger 1988). The influence of postmodernism and deconstructionism further disrupted any notion of a stable understanding of feminism, including the very idea of there being an identifiable woman at the center. FLT is concerned with the ontology and epistemology of law at a meta-level, but the phrase is loosely invoked to embrace the myriad forms of engagement between law and the feminine, broadly defined. This engagement may also include critiquing the imperialism of Western feminism from the perspective of indigenous women and those from developing countries. Nevertheless, in this chapter, I am not addressing the variegated history and philosophy of FLT so much as its dynamic relationship with the legal academy and the state. While feminism as a social movement is not dependent on the state for
its existence, FLT (with an emphasis on legal theory) does seem to need the state for its survival. The relationship with government is not direct but one effected indirectly through the public funding of university law schools, which is the case with most Australian law schools. Additionally, there is a high degree of control of higher education through federal government policy, which has not decreased with the state’s retreat from the funding of law school places. While it is theoretically possible for feminist legal scholars to operate as outside the legal academy, sustained by a commitment to feminism as a “form of life” (Naffine 2002), legal scholarship in the public domain generally requires the imprimatur of an institution for legitimacy. Paradoxically, the grit associated with outsider status may be viewed positively, for the institutionalization of feminism is thought to exercise a deleterious effect on it (Jackson 2000: 2; Thornton 2004; Wiegman 2002: 19). The suggestion is that a too comfortable life may blunt the critical faculties, although residing permanently in Siberia can be chilly. Life inside the academy undoubtedly poses difficulties for all feminist scholars,
but the discipline of law creates a double jeopardy because it is ambivalent about its own academic status. Law is uncertain whether it should be classified as a humanity, a social science, or something altogether different. Women’s studies, usually located within either the humanities or social sciences, originally provided a hospitable intellectual space for feminist scholarship (Jackson 2000: 4), and was not constrained by the intellectual presuppositions that beleaguer law as a professional discipline. Women’s studies developed new ways of seeing by invoking the insights of a range of disciplines (e.g. Langland and
Gove 1983); whereas law was constrained by entrenched cultural and professional norms that sought to ensure its disciplinary autonomy. A long tradition of positivist legal theory and self-referentialism has added to
law’s reticence about embracing feminist insights and alternative perspectives generally. Nevertheless, a short affair between feminism and the legal academy took place from the mid-1980s until approximately the turn of the century. It was inspired by and developed in tandem with initiatives from other parts of the common law world. For example, Judy Grbich and Adrian Howe participated in the Feminism and Legal Theory Project initiated by Martha Fineman, their papers appearing in At the Boundaries of Law (Fineman and Thomadsen 1991). Many fruitful collaborations followed in the heyday of FLT (e.g. Graycar and Morgan 1990, 2002; Naffine and Owens 1997; Thornton 1995). Pathbreaking work emerged in such traditionally masculinist areas as international law (Charlesworth et al. 1991) as well as legal theory and judicial method (Berns 1999). Additionally, the voices of indigenous women legal scholars began to be heard for the first time (Behrendt 1993). As a rich tapestry of scholarship emerged, the postmodern turn ended completely the idea of a grand narrative of feminism. Globalization, culture, whiteness, postcolonialism, lesbianism, and religion all contributed further to the diffusion of feminist scholarship (Australian Feminist Law Journal 1993-2009; Davies 2008; cf. Rosenbury 2003). Despite this flurry of activity, a national report on teaching and learning
claims that the influence of feminism on the Australian legal academy has been almost zero (Johnstone and Vignaendra 2003). How this conclusion was reached in view of burgeoning scholarly publishing is unclear, but it may have been based on the noticeable decline of FLT in the curriculum. The high point of legal feminism that coincided with the emergence of hardline neoliberalism may also have contributed to a desire to erase the seeming success of FLT. Moreover, a reductive view of FLT, as a static materialistic theory of women and the law, may have been hesitant to acknowledge the more diffuse and diverse manifestations as bona fide feminist scholarship. Finally, there is no doubt that the market discourses of consumerism and entrepreneurialism have exercised not just a depoliticizing effect on institutional feminism, but they have been accompanied by a misogynistic rhetoric averring that feminism is passé. This rhetoric is anti-feminist, racist, and homophobic. In a useful media analysis, Margaret Henderson (2008: 33) documents the way the words “feminism” and “feminist” continue to be associated with negative and often violent imagery in the media. Market discourse thereby became a convenient cloak for the reassertion of the dominance of masculinity and the heteronormative family.
