Chapter Title: Keynote: Reforming Law – The Role of Theory

Chapter Author(s): Margaret Davies

Book Title: New Directions for Law in Australia

Book Subtitle: Essays in Contemporary Law Reform
Book Editor(s): RON LEVY, MOLLY O’BRIEN, SIMON RICE, PAULINE RIDGE and
MARGARET THORNTON
Published by: ANU Press

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 Keynote: Reforming Law –
The Role of Theory
Margaret Davies1

I. Introduction
The anarchist Peter Kropotkin began his 1886 pamphlet Law and
Authority by describing the tendency of law to proliferate so that it takes
over every aspect of social life:2
when ignorance reigns in society and disorder in the minds of men, laws
are multiplied, legislation is expected to do everything, and each fresh law,
being a fresh miscalculation, men are continually led to demand from it
what can proceed only from their own education and their own morality.

Kropotkin continues by noting that, because of this demand for law to

fix things, laws continue to multiply, to the point that there is ‘a law
everywhere and about everything!’ As an anarchist, Kropotkin thought
that the desire for law to rectify society’s problems stemmed from a learned
reliance on others rather than reliance on the intrinsic resources of the self
and the immediate community. He argued that law achieves its power by
weaving together two elements: longstanding and useful customs which
society is committed to, and mechanisms allowing the privileged classes
to maintain their power. It was not an entirely simplistic view of law as
an instrument of dominance. However, he saw the socially accepted parts
of law as a foil, which were there to conceal the fact that law essentially
operates to strengthen the power of the privileged.

1 Matthew Flinders Distinguished Professor of Law, Flinders University.

2 Peter Kropotkin, Law and Authority: An Anarchist Essay (Open Socialist Publishing, 2006) 6.

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 New Directions for Law in Australia

If there was too much law for Kropotkin in 19th century Europe I don’t
like to imagine what he would have made of modern nation states and the
legal effects of globalisation. (Indeed the phenomenon of ‘juridification’
has been much analysed in the later 20th and early 21st centuries.3) In some
ways Kropotkin’s underlying image of law was not completely unlike the
image held by 19th and 20th century liberal thinkers. This image was of
a law with its own sphere, a law with a conceptual limit beyond which
people could organise their lives as they saw fit. Beyond law’s sphere
of regulation lay freedom and the private sphere. Kropotkin’s agenda was
to reduce and eventually eliminate law – he concludes his pamphlet with
the words ‘no more laws! No more judges!’4 The more moderate concern
of many other writers who also adopt the image of a limited law and
an outside or non-regulated area of freedom and privacy has been and
continues to be where to draw the line of legal intervention, and how
to improve the limited law to make it more efficient and consistent, less
obscure, and in tune with current social values.
The idea of a limited sphere of law and a non-legal sphere of freedom
was tested repeatedly throughout the 20th century, often in conjunction
with an appreciation of the disseminated nature of power. The image of
a limited law was, for instance, revealed to be incoherent in the 1980s by
feminist writers such as Frances Olsen and Katherine O’Donovan who
pointed to the many ways in which law shapes the conditions for social
life and structures legal subjects and their relationships.5 Law is not neutral
as regards social order, but rather creates, normalises and replicates social
life. At the same time, by perpetuating the idea that abstract individualism
is gender-neutral and race-neutral, and that the person is a  natural
rather than constructed feature of social life, law obscures its own role
in producing social relations. As feminists argued, beyond law was not
freedom but, rather, a pervasively normalised and legally inflected social
and private life. As Margaret Thornton wrote in the 1990s, ‘For women,
neither the polity nor the market have been realms of freedom or self-
realisation, but realms of hostility’.6

3 See, in particular, Jurgen Habermas, Theory of Communicative Action Vol 2 (Beacon Press, 1987)
356–73.
4 Kropotkin, above n 2, 34.
5 Frances Olsen, ‘The Family and the Market: A Study of Ideology and Legal Reform’ (1983)
96 Harvard Law Review 1497; Katherine O’Donovan, Sexual Divisions in Law (Weidenfeld and
Nicholson, 1985).
6 Margaret Thornton, ‘The Cartography of Public and Private’ in Margaret Thornton (ed), Public
and Private: Feminist Legal Debates (Oxford University Press, 1995).

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 Keynote

Sociolegal scholars also pointed to the unlimited nature of law. In 1990

Austin Sarat wrote an influential article about the legal experiences of
welfare recipients in New England.7 One of his respondents claimed
that the ‘law is all over’ – in other words it is pervasive and unavoidable.
This  was  not so much a view of formal law as having expanded
uncontrollably in the way that Kropotkin envisaged – rather, it was
a realistic assessment of the fact that law is a different thing for people in
different social situations. The welfare recipient had a constant need to
engage with law and so felt its presence immediately and materially. Such
necessity leads to an experience of law which is, as Sarat says, ‘embodied
in a particular set of lived conditions: … a law of practices, not promises,
of material transactions, not abstract ideals’.8 Understood from the bottom
up, law is everywhere and has an oppressive weight – it doesn’t liberate
but sets the conditions for survival and demands constant engagement.
Legal pluralists have also challenged the limited view of law, and I would
broadly divide this scholarship into two different types. One rather
dominant strand of pluralism has examined forms of law outside the state,
from Indigenous and religious law to semi-formalised systems of non-
legal governance. Such approaches, like legal positivism, tend to view law
as an objectifiable and self-contained thing. A second type of pluralism,
which has grown in part out of the first, looks at law as emerging from
human interactions and narratives, making it fluid and local, and often
leading to hybrid forms where people combine norms from different
sources in order to create a kind of social law.
Clearly the writers of recent decades did not mean (or perhaps did not
only mean) that the nightmare implied by Kropotkin had come to pass
– that doctrinal law has reached further and further into the interstices
it creates so that no corner of life is left unlegislated and unregulated.
It would perhaps be plausible to hold this view, but feminist, sociolegal
and many pluralist theorists start with a different view of law, where it is
always embedded in social life. Rather than think of law as an additive
or an intervention which expands from a small space to occupy almost
everything but which still has its own identity and autonomy, law is seen

7 Austin Sarat, ‘“The Law is All Over”: Power, Resistance, and the Legal Consciousness of the
Welfare Poor’ (1990) 2 Yale Journal of Law and the Humanities 343.
8 Ibid. 378.

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 New Directions for Law in Australia

as more pervasive and less cohesive, a dispersed set of practices and values,
not necessarily emanating from a single place, and experienced and
performed differently by different groups of people.
Where does law reform sit in an image of law which is ‘all over’, as Sarat’s
respondent said, and where different groups of people have quite different
views of what law is and how it operates? I’d like to address this question
in three parts. First, by reference to the familiar notion that law reform is
about changing doctrinal law so that it better suits the social conditions of
the times. Second, by thinking about the idea that law reform can equally
address a changing concept of law. Third, by looking at changes in the
social and cultural conditions which underpin law.

II. Reforming Law

First, then, to the familiar notion that law reform essentially concerns
improvements to the positive law to make it more coherent, to deal
with new social, economic and technological conditions, or to address
social problems. In 1949,9 Lord Denning compared a national society to
a river and the law to the ‘conservator’ who keeps the river in good shape.
He argued that once the law is stable and developed, the conservator only
has to do occasional maintenance – cutting the weeds and repairing the
banks, for instance. ‘The river flows peacefully and slowly’ he said.10
But in … days of great social changes … the law ha[s] to develop apace
so as to meet the needs of the time. The greater the social revolution, the
greater the need of law reform. The river is turbulent and restless and
is in danger of getting out of control. The hatches have to be opened.
New channels have to be cut. It requires legal statesmanship of the highest
order to keep the law abreast of the social changes. If it does not do so, the
rule of law itself may be engulfed and flooded out.

In this image, society usually goes along within the constraints set in
place by the law. Social life is the water which flows through the form
preserved by law. There is no sense in this image that the characteristics of
the river as a whole have been formed by the flow of water; rather, the flow
is determined by the solid surfaces maintained by the law. Law reform

9 Alfred Thomson Denning (Baron), ‘The Universities and Law Reform’ (1949) 1 Journal of the
Society of Public Teachers of Law 258.
10 Ibid. 258.

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 Keynote

is about tidying up the banks and eliminating obstructions, and, in times

of dangerous social upheaval, undertaking more substantial changes to
the size, depth and direction of flow. It is an extremely benign view of
law – law is basically fine and has a pre-given form, but needs to be tidied
up from time to time.
Denning’s river is a variation on the idea of a limited sphere of law outside
which there is freedom. The image does imply that law provides rather
total conditions and shape for social life, but it nonetheless promotes
a largely contained view of law. Law provides a neutral form for social
existence and, within the confines of the river banks, the individual water
molecules can do largely as they please.
There was of course dispute throughout the 20th century about whether
both parliament and judges are the appropriate agents of reform in
the law. The debate has many layers which I will not go into here, but
primarily it counterposes the common law tradition and the newer
theory of legal realism, against the more rationalist positivism of Austin
and Bentham.11 The common law tradition gave judges a prime role in
identifying and developing the law, and realists took the view that judges,
as human actors, necessarily interpret and apply law in the light of social
values. By contrast, Austin and Bentham were adamant about the need
to distinguish sharply the question of what law is from what it ought
to be. They saw the inquiry into what law is as a matter for those who
identify and apply the law, while the question of what law ought to be is
determined by parliament and law reformers. Keeping a clear view of the
separation of these things was essential for law reform to operate properly
and, indeed, in their view much law reform by way of clarification and,
ideally, codification was needed in order to make it possible.
As foreshadowed at the beginning of my chapter, the success of the
positivist  view of law also poses real dilemmas for broad change.
For  instance, in  gender relations, because the underlying idea of law is
so doctrinally focused, positivism enforces a pernicious choice between
engaging or not engaging with law, between standing inside or outside
the law.12 Because this idea of law is so invested with a view of its own

11 John Gava, ‘The Rise of the Hero Judge’ (2001) 24 UNSW Law Review 747; J D Heydon,
‘Judicial Activism and the Death of the Rule of Law’ (2004) 10 Otago Law Review 493; Michael Kirby
‘“Judicial Activism”? A Riposte to the Counter-Reformation’ (2005) 11 Otago Law Review 1.
12 See Mari Matsuda, ‘When the First Quail Calls: Multiple Consciousness as Jurisprudential
Method’ (1988) 11 Women’s Rights Law Reporter 7, 8.

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 New Directions for Law in Australia

neutrality vis-à-vis social power, engaging from a position that does not
accept its neutrality has been very difficult. This has led to a good deal of
caution among all critics of state law about whether and how to engage
with law and law reform: What can be expected of law reform? Does
engaging with law simply legitimate its exclusion of alternative knowledges?
How can values of care be imported into doctrinal law? How can the
experiences of marginalised others be incorporated into the assumed
knowledge of law? How can legal subjects be reconstructed as relational
rather than atomistic? How can entrenched biases in the operation of
law be addressed? How can we even commence the ‘horizontal dialogue’
that Irene Watson has spoken of between modern Australian colonial law
and the first, original, law of this country?13 The very form of positivist
law seems to prevent anything but ad hoc change which may, of course,
accumulate into something larger over time, but it is a very slow process.

III. Reforming Concepts of Law

It has always been extremely interesting to me to think that Austin
and Bentham were themselves engaged not only in law reform but in
a meta-legal reform – the reform of the concept of law. The theory of
legal positivism, much criticised throughout the 20th century but also
completely ingrained in legal pedagogy and ideology, was itself the product
of a strategic conceptual change and emerged as part of a reformist agenda.
Theory is not only about describing and understanding the world; rather,
it both responds to and makes the world. Legal positivism is an extremely
successful example of what might be termed conceptual reform.14 It made,
and continues to make, the concept of law as something separate from
society while also purporting to describe what it has itself made. The point
has been made by Wayne Morrison in relation to Austin:15
knowledge claims are part of, and not antecedent to, [Austin’s] overall
project. Austin is not a simple positivist in the sense that his knowledge
claim has no pretence to anything other than the ‘thing-in-itself ’, for his

13 Irene Watson, ‘What is the Mainstream? The Laws of First Nations Peoples’, see Ch 18, this
collection.
14 See, in particular, Frederick Schauer, ‘The Path-Dependence of Legal Positivism’ (2015) 101
Virginia Law Review 957, 960–69.
15 W Morrison, Jurisprudence: From the Greeks to Post-modernism (Cavendish, 1997) 227; see
also, discussing Bentham, Schauer, above n 14, 960–69; Tom Campbell, The Legal Theory of Ethical
Positivism (Dartmouth, 1996).

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 Keynote

image of positive law is one element of an overall project. … Austin’s

claims for jurisprudence are pragmatic in the sense that the demand for
a clear jurisprudence arises to get something done, and that something
is to create an image of law suitable for law to become a powerful and
rational image of modernity.

HLA Hart also described Austin and Bentham’s project in terms

of  conceptual reform – to construct a workable concept of law which
would enable the doctrinal law to be improved. He described them as
‘the vanguard of a movement which labored with passionate intensity and
much success’ and also insisted that their ‘prime reason’ for insisting on
the separation of law and morality ‘was to enable [people] to see steadily
the precise issues posed by the existence of morally bad laws’.16 In other
words, separating is from ought was not a description of a reality, but
rather an act of theory construction which was part of an overall agenda of
rationalisation in the law. They made what they wanted to describe and it
obviously resonated more broadly – in time it became true because people
acted as if it were true. However, as I have indicated, the problem with the
success of positivism was that it seemed to leave the only option for legal
change as change in the content of law – its doctrines and procedures.
I have laboured this point, because for some years I have taken inspiration
from Austin and Bentham on this issue and regarded theory to be not only
about analysing and describing, but also constructing alternative concepts
of law which are future-oriented. That this is possible is reinforced in
social theory and critical philosophy. Drawing out aspects of the present
which appear to provide direction for the future, and intensifying them
theoretically, prefigures a world that is commensurable with the present
and past, but which perhaps adds additional emphasis to those elements
of it worth promoting. Theory can therefore be seen as an imaginative
response to present circumstances, in which theorists actively choose their
abstractions from a complex world. This is true of all theory, not only
of theory based on an explicit normative vision.
This broader need for law reform to encompass not only reform in
doctrinal law but also new concepts of law was explicitly recognised in the
now disbanded Law Commission of Canada. As well as more recognisable
law reform objectives, it had a statutory mandate to ‘work towards the

16 H L A Hart, ‘Positivism and the Separation of Law and Morality’ (1958) 71 Harvard Law
Review 593, 596.

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 New Directions for Law in Australia

development of new concepts of law and new approaches to law’.17

The Law Commission stated that it ‘interprets this legislative purpose as
directing it to examine critically even the most fundamental principles
of the Canadian legal system’.18
Over the past half century there have been some efforts to develop
alternative concepts of law and I think it would be correct to say that some
paradigm shifting is underway. This was true when I began my career as
a legal scholar, though 25 years ago I hoped things would have become
more certain by now. That was a misplaced hope, and legal theory remains
in an uncertain but very interesting situation. No alternative concept has
at this stage reached the prominence of legal positivism which, as I have
said, has attained its status because of its widespread adoption. But some
themes can perhaps be observed.
First, as I indicated above, there is an appreciation of law as distributed
or networked across social life as opposed to existing in its own limited
sphere. Understanding law as distributed, or perhaps diffused, means
several things: it means, as many scholars have observed, that law shapes
and leaves imprints across all social relationships, even or especially those
that were once regarded as intrinsically private;19 it means that law has
a spatial and material presence and not just an abstract one;20 and it means
that doctrinal law is a conceptually crystallised form of human normative
relationships but is never self-contained or self-generating, because of
its reliance on human intervention in the form of interpretations and
applications of law.
These observations are connected to a second theme of the newer
approaches to law, which is that law is not simply a top-down imposition,
but also in many forms has to be regarded as emerging from subjective and
material human experiences.21 In a sense, this has involved two or possibly
three shifts. First, there is an appreciation that law is not a thing in itself
that can be reflected or represented in theory but, rather, is the product

17 Law Commission of Canada Act 1996 s 3(a).

18 Records of Law Commission of Canada held on the website of the Library and Archives
of Canada: epe.lac-bac.gc.ca/100/206/301/law_commission_of_canada-ef/2006-12-06/www.lcc.gc.ca/
about/mandate-en.asp.
19 O’Donovan, above n 5.
20 See, for example, David Delaney, The Spatial, the Legal and the Pragmatics of World-Making:
Nomospheric Investigations (Routledge, 2010).
21 For further elaboration, see Margaret Davies, Law Unlimited: Materialism, Pluralism, and Legal
Theory (Routledge, 2017).

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 Keynote

of active knowing, active performance and active construal. Second

there is an appreciation that those who ‘know’ and perform law are not
just legal experts and judges, and that legal knowledge is formed also
in the situated and narrative positions of a far more diverse range of
identities; in other words, that knowledge of law is produced and it can
be produced by people other than experts in law. Third, and increasingly,
we  are also seeing materialist ideas of law emerge, which place all
normativity in the relationships formed between human society and our
physical environments.
This is not to say that legal expert knowledge does not have its own specific
role and technical purpose; rather, that the theoretical questions ‘What is
law?’, ‘Where is law?’, ‘Who is law for?’ and so on cannot be answered
simply by reference to this perspective. Thus feminists and pluralists
have made efforts to replace the ‘embodied imagining’ of an idealised
masculine subject with diverse and relational subjectivities, situated in
gendered social contexts.22 Legal consciousness scholars have studied the
everyday knowledge about law, decentring official knowledge of law in
favour of everyday knowledge.23 And Robert Cover famously argued for
norm-construction or jurisgenesis at the level of religious communities,
an insight which has since been extended to the processes of norm
construction across all cultural groups.24 In all of these contributions, we
see an image where the traditional view of state law is only one narrow and
exclusive form distilled from the widespread circulation and construction
of norms throughout society. But we also see a different image of state law
emerging – instead of being a mirror image of the autonomous person
with his boundaries and rationality, the law constructed in the image of
(gender and otherwise) diverse subjects is more relational, more embedded
in social practices, and less cohesive.
What does such change in the concept of law have to do with law reform?
Or, to return to my original question, if law is distributed or ‘all over’,
how can we conceptualise change in legal doctrine? Who is in control
of it, how is change generated?

22 On ‘embodied imagining’, see Judith Grbich ‘The Body in Legal Theory’ (1992) 11 University
of Tasmania Law Review 26.
23 Patricia Ewick and Susan Silbey, ‘Conformity, Contestation, and Resistance: An Account
of Legal Consciousness’ (1992) 26 New England Law Review 731.
24 Robert Cover, ‘Nomos and Narrative’ (1983) 97 Harvard Law Review 4; see also Robert Post,
‘Who’s Afraid of Jurispathic Courts: Violence and Public Reason in Nomos and Narrative’ (2005) 17
Yale Law Journal of Law and the Humanities 9.

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 New Directions for Law in Australia

I don’t have a very clear answer to these questions, but my sense is that the
more traditional attitudes to law reform have substantially changed and
are now more in keeping with an expansive and even experimental view
of what law is. I would make a couple of observations.
First, critical and sociolegal approaches add support to using an evidence-
based approach to reform rather than an approach based on abstract
rationality. Empirical sociolegal evidence is very significant in this
context, as are efforts (discussed below) to read or interpret legal doctrine
in ways which accommodate both diversity of values and diversity of
life experiences. Second, a more disseminated image of law is perhaps
more receptive to efforts to test successor legalities in and around the
edges of state law. In some contexts, state law itself can become an
experimental space for new ideas about law. One could cite, for example,
so-called ‘alternative’ practices of law, such as non-court-based dispute
resolution or Indigenous sentencing courts which introduce values of
negotiation, accommodation, recognition of the other, and legal plurality
into the practice and meaning of law. At the margins of or beyond state
law, examples might include truth and reconciliation commissions and
efforts to mobilise civil society in justice initiatives, such as the Women’s
International War Crimes Tribunal and other people’s tribunals.25
These instances draw on state legality but also deliberately eschew it in
the interests of (in part) taking law beyond its self-defined boundaries.
They are of course indicative of a two-way process or oscillation between
practice and theory:26 new practices help to generate new theory, which
in turn widens the possibilities for further new practices.

IV. Changing Culture

The problem with deliberately choosing or trying to shape a concept of law
is that it is not possible to predict the consequences of such a change. And
therefore it is also necessary to pay attention to the surrounding culture and
the ways in which it informs what is even thinkable. Around the same time
as Denning was speaking about the river of society with its conservator – the

25 Ustinia Dolgopol, ‘Redressing Partial Justice – A Possible Role for Civil Society’ in Ustina
Dolgopol and Judith Gardam (eds), The Challenge of Conflict: International Law Responds (Martinus
Nihjoff, 2006); Christine Chinkin, ‘Women’s International Tribunal on Japanese Military Sexual
Slavery’ (2001) 95 American Journal of International Law 335.
26 Davina Cooper, Everyday Utopias: The Conceptual Life of Promising Spaces (Duke University
Press, 2014).

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 Keynote

law reformer – keeping it in order, Ludwig Wittgenstein also wrote about

a river in his collection of notes, subsequently published as On Certainty.27
Wittgenstein’s river differentiates between things we know to be true, and
the inherited mythologies and shared cultural background which we need
to support this knowledge. His writing is ambiguous, but essentially he
differentiates between the riverbed on the one hand, which is the substratum
of knowledge or the shared ideas we have that make knowledge possible,
and on the other hand the river flow itself, which consists of everyday claims
and propositions made possible by the background to our knowledge. The
image is very similar to Denning’s, except that in Wittgenstein’s case there
is no reformer to keep the river clear and flowing. It changes itself and, over
time, parts of the riverbed become dislodged:28
The mythology may change back into a state of flux, the river-bed of
thoughts may shift. But I distinguish between the movement of the waters
on the river-bed and the shift of the bed itself; though there is not a sharp
division of the one from the other.

Wittgenstein does not explicitly place law in his metaphor, but it might
be supposed that everyday knowledge about law is part of the flow, while
shared and presumed cultural knowledge is part of the riverbed – the
presupposed cultural knowledge would include the liberal and colonial
views of law as discrete, and as disconnected from social identity.
Philosopher Susan Hekman notes that philosophical theories that
differentiate between an epistemological background and everyday truths
are often extremely conservative, because they do not acknowledge that
cultural assumptions may change, and do not offer any ideas about how
to encourage such change.29 They simply rely on cultural background as
pre-given and immutable. She argues that Wittgenstein’s image holds
more potential for theorising and promoting change than most theories of
the background because it acknowledges that the riverbed may shift and
that it is not sharply divided from the everyday truths which it supports.
So how can cultural change be promoted? Cultural change does not occur
because people are presented with a logical argument as to why something
ought to be the case. It is much more incremental, and depends as much

27 Ludwig Wittgenstein, On Certainty, trans G E M Anscombe (Blackwell, 1969).

28 Ibid. s 97.
29 Susan Hekman, ‘Backgrounds and Riverbeds: Feminist Reflections’ (1999) 25 Feminist Studies
427. I would like to thank Sami Alrashidi for drawing my attention to this article and for his
persuasive arguments as to its significance.

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 New Directions for Law in Australia

on what are understood to be the criteria for truth within the cultural
background as it does on any new claim. As Hekman says, ‘feminist truth
does not make sense in the discourse of abstract masculinity’, and ‘we must
first alter the criteria of what it makes sense to say before we can proclaim
another “truth” and expect it to be heard’.30 To take a historical example,
claims for gender and racial equality could not be heard until presupposed
knowledge had shifted sufficiently for women and those of non-Caucasian
heritage to be regarded as people and equal citizens. Many cultural norms
still exist which make the resulting formal equality inadequate. Claims to
marriage equality still do not make sense to some people who see marriage
as necessarily heterosexual. There is no logic in this view but there is
a  foundation – the foundation provided by a heteronormative cultural
background that still divides people into two sexes. In a quite different
sphere, it is still almost impossible for those educated within a Eurocentric
legal paradigm, with its obsessive taxonomies and entrenched distinctions,
to comprehend the relationality and connectedness of First Nations’
approaches to law. It seems almost beyond impossible for us to move past
human exceptionalism and separation to a view where people are seen as
fully part of the physical and natural world.
Hekman argues that changes in the cultural background essentially occur
by the emergence of new narratives and perspectives which decentre,
defamiliarise and eventually alter accepted knowledge.31 The trends I have
alluded to above, in relation to bringing different perspectives into doctrinal
law and understanding law itself in a more disseminated and less hierarchical
way, are themselves part of such a cultural change, as is the extensive
scholarship which challenges the accepted nature and limits of law.
One partial illustration of a contestation of the doctrine, concept and
cultural presuppositions of law is evident in the feminist judgments
projects, which have an English and Australian iteration, as well as several
others to come.32 The feminist judgments projects asked academic and
activist writers to provide an alternative feminist judgment to a case
chosen by the writer. Although all of the judgments were feminist, there
are of course many varieties of feminism, and also many ways in which
feminism can be brought to bear on particular issues. The objective in

30 Ibid. 438.
31 Ibid.
32 Rosemary Hunter, Clare McGlynn and Erika Rackley (eds), Feminist Judgments: From Theory to
Practice (Hart, 2010); Heather Douglas, Francesca Bartlett, Trish Luker and Rosemary Hunter (eds),
Australian Feminist Judgments: Righting and Rewriting Law (Hart, 2014).

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 Keynote

the English project was to leave ‘a female-gendered mark on the law’.33

This was achieved not in any simplistic translation of feminist theory into
practice: feminism is far too diverse for that, and what a theory requires
in a practical sense is not always evident. Rather, the impact of the
feminist judgments projects lies in the amassing of feminist readings of
cases, which collectively illustrate a potential shift in legal consciousness.
That  is, the feminist judgments show how law is gendered and how it
could be different, how the resources for a different understanding of law
are to be found in the law itself in combination with the interpretations
made by (academic or real) judges.34 The judgments remained within the
narrowly circumscribed horizon of mainstream colonial law.35 But the
academic performance of this law did bring different voices to that law
and push it towards being a different thing.
In this way, changes in law may be promoted by foregrounding changes
in the cultural background. Like the alternative or experimental legal
forms mentioned above, feminist judgments also test the boundaries
of the present with an eye on the future. As I have said elsewhere, such
‘prefigurative practices cross the divide between the legal present and our
legal futures: they enact possible futures in the present and leave indelible
traces of what is to come on the here and now’.36

***
In this chapter I have very artificially distinguished between the law
understood as substance, the law understood as concept, and the cultural
presuppositions which constitute the conditions for thinking and talking
about law and its concept. But of course – and as I hope will be clear
by now – these are artificial distinctions. Changing the content of law
over time may also change its shape and contours, and such changes are
also connected to shifts in cultural presuppositions. The riverbed is not
distinct from the river, and more importantly, the flow of the river is as
important as the banks and bed in influencing its overall shape and form.

33 Hunter et al, ibid, 8.

34 See generally Margaret Davies, ‘The Law Becomes Us: Rediscovering Judgment’ (2012) 20
Feminist Legal Studies 167.
35 Irene Watson, ‘First Nations Stories, Grandmother’s Law: Too Many Stories to Tell’ in Douglas
et al, above n 32.
36 Davies, above n 21, 17.

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 This content downloaded from
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