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Margaret Davies[*]
For many, legal philosophy is an intellectual activity that has little if anything to do with the practicalities oflaw, including the practicalities of law reform. Although most legal philosophy is informed at some level by moral and political presumptions, many legal theorists have found it difficult to establish a direct link between the abstract delineation of the nature of law, and a vision of legal regimes which better reflect their ideals. This is especially true of those theoretical perspectives which make a strong separation between the form or nature of law and its content: the form of law is the subject of jurisprudential and theoretical debate, while its content, more susceptible to minor revision, is the subject of moral scrutiny and political criticism.
The purpose of this article is to consider some of the contributions legal philosophers have made to law reform, including some of the concerns which critical legal scholars have held about law as a central mechanism for achieving social change. My intention is to make a case for legal theory which directly promotes an interest in the questions of legal change and law reform, without discarding its more 'abstract' concerns. This is motivated by a desire to respond to the view that legal theory, and especially 'critical' and postmodern legal theory, is little concerned with practical matters. Law reform ought to be undertaken reflectively in the context of other, more fundamental, transitions, such as transitions in social and political discourses. Of equal interest to a legal theorist is the view that law reform ought also to be undertaken in the context of transitions in how law is understood conceptually. Law reform is in many contexts limited as an instrument of change. It must be coupled with an emphasis on social change and change in the way law is perceived, in order that fundamental shifts can occur.
The article begins with an overview of the way in which legal positivists have classically articulated the relationship of law reform and legal philosophy. The positivist view, which has probably been the most influential of the past two centuries, essentially holds that theoretical debates about the nature of law are distinct from social, moral, or political debates about its content. The second part of the article outlines some alternative visions of legal change embedded or explicitly articulated in post-positivist legal thought. In this context, I consider some of the approaches to law reform taken by feminist legal theorists. This area is of particular interest because some feminists have seen positivist state-centred law as a patriarchal institution with limited potential to affect fundamental change in gender relations. At the same time, others have promoted law reform, with numbers of successful outcomes, at least where success is measured by changes in law rather than changes in social attitudes and structures.[1] A lively debate still exists as to the usefulness of reform where legal institutions are seen to participate in marginalising or completely excluding significant social groups. Feminists have been interested in many types of reform, and the particular issue I will consider concerns feminist approaches to how gender difference is reflected in law.
While many legal positivists have been prominent in law reform campaigns, they have regarded the activities of legal theory and law reform as conceptually different. Legal positivism is founded on the premise that what the law is and what it ought to be are completely different matters.[2]
Positivist thought is concerned centrally with the definition and limits of law and how to understand those dimensions of law which appear to challenge its institutional character, such as judicial law-making and indeterminateness in interpretation. Positivists have frequently also been activists for reform, but have regarded law reform as informed by political or moral theories such as liberalism or utilitarianism.
To put the classical positivist view simply,[3] jurisprudence helps us understand what law is, while moral or political thought helps us understand why law is the way it is, or how it should be changed to better reflect social values. John Austin famously said, 'the existence of law is one thing; its merit or demerit is another ... A law, which actually exists, is a law, though we happen to dislike it.'[4] Similarly Jeremy Bentham, a great theorist and reformer, categorised his jurisprudential activities as either expository or censorial.[5] Expository jurisprudence was a descriptive activity -the theoretical delineation of law. By contrast, censorial jurisprudence for Bentham was the practical elaboration of the moral theory of utilitarianism: thus, he advocated extensive and fundamental law reform, but distinguished this dimension of jurisprudence from the descriptive understanding of what law actually is. In this fashion, positivism has maintained a strict separation between description and prescription in legal thought.
Since the Second World War, the reputation of legal positivism has suffered-possibly unfairly-as a result of a perception that it tends to focus on the dry substance of what law is, thus legitimising offensive legal doctrines and on occasions, entire legal regimes such as that of Nazi Germany.[6] I say that this perception may be unfair, because legal positivists have been among the most vocal activists for socially progressive reform. However, it remains the case that the practical triumph of legal positivism has been a scholarly and judicial emphasis on the analysis of existing doctrine, often at the expense of evaluation and critique of law.
Legal positivists have, however, made lasting contributions to law reform debates, and have argued that the separation of positive law from moral and political standards in fact provides evaluative standpoints from which law may be critiqued. This point was made in one of HLA Hart's early defences of legal positivism:
Bentham and Austin were not dry analysts fiddling with verbal distinctions while cities burned, but were the vanguard of a movement which laboured with passionate intensity and much success while cities burned.[7]
And further,
Both thinkers' prime reason for this insistence [on the separation oflegal from moral thought] was to enable men to see steadily the precise issues posed by the existence of morally bad laws, and to understand the specific character of the authority of a legal order.[8]
Positivists have argued consistently that the institutional separation of law from other standards by which human behaviour might be judged (morality, religion, politics) provides the means by which law itself may be evaluated and – if needed - reformed. The strength of this argument rests on the perception that if law were to be tied conceptually to morality, there would be no basis on which law could be objectively criticised. There would also be some confusion about the content of legal standards themselves, a criticism which Bentham raised in relation to the quasi-natural law position of William Blackstone.[9]
Hart himself made numerous contributions to the law reform debate, most notably in relation to the Wolfenden Committee's recommendations regarding sexual morality. Hart famously rejected the argument that law, in particular criminal law, ought to enforce moral standards because to fail to do so would result in social degeneration.[10] In this matter, he adopted John Stuart Mill's principle that limitations on the liberty of individuals can only be justified on the basis of preventing 'harm to others'.[11] Hart's influence in areas such as the decriminalisation of homosexuality and the enactment of a defence for the crime of abortion cannot be underestimated.
Liberal feminist approaches to law reform provide another example of the acceptance of the positivist thesis in pursuance of social change. Reform aimed at correcting gender inequalities has been a major source of legal and social change over the past century and a half. These reforms have most often taken place within the context of a liberal positivist world-view: as outlined above, this approach accepts the separation of law from politics and has at least some faith in law reform as a mechanism for change. Thus, liberal-feminist-inspired law reform starts with the premise that there is a problem of inequality in some context. In the earliest years of liberal feminism this discrimination appeared to flow directly from the legal status of women-it imposed legal disabilities on women such as the inability to vote, to retain private property after marriage, or to practise in certain professions. Law reform was seen by some as providing a sufficient path to social equality. Later, it was acknowledged that the disabilities were by and large not imposed by a legal status, but were social and cultural in origin. Law reform was necessary to prohibit such discrimination. In this way, the approach of liberal feminists has been to accept that the law is, or can be, neutral as regards sexual politics: relying on law is, in the liberal world-view, therefore a logical method of equalising male and female status. The difficulty, as articulated by numbers of feminists, was that the acceptance of law as the forum for change meant having feminist issues assimilated and redefined by law.
Liberal law reforms such as those supported by Hart and the liberal feminists presuppose the neutrality of law and, hence, its ability simply to regulate without intervening in social distributions of power. Liberalism appeals precisely because it insists that many social differences are merely the result of prejudice, and that law can lead the way in eliminating such prejudice by upholding a standard of equality as sameness.
The positivist separation of law from morality therefore appears to provide a coherent framework around which law reform debate can be structured. Certainly, the positivist view, combined with liberal political and moral thought has been immensely influential in achieving law reform goals, and continues to structure debate over a range of reforms.
However, critical legal theories have rejected the notion that law can be separated from politics. One of the central insights of the 'critical' legal movements (critical legal studies, critical race theory, feminism, postmodernism, queer theory) is that the separation of the legal from the political domain is a myth perpetuated by law in order to mask its true level of involvement in the construction of regimes of power. Law, in other words, is not separate from patriarchal power, from the power of whiteness, from class interests, or from heteronormativity -the social power of heterosexual norms.
Confronted with this insight, critical legal theorists have taken a variety of approaches to questions of legal change and to law reform in particular. Given the complicity of law with social systems of power it is not possible, from these perspectives, to accept unreflectively the notion that law is a neutral force for change and that simply reforming parts of the law will result in social progress. The concept of legal change must be much broader than simply law reform-what is needed, perhaps alongside law reform, are changes in how the law itself is conceptualised, and changes in some of its fundamental concepts.
Theorists have therefore adopted a range of different approaches to the question of legal change, some of which can be summarised as follows.
First, some (though by no means all) early critical legal theorists, accepting that the institution of law is complicit in oppression based on class, race, and gender, rejected the notion of reform altogether. They argued that positive law reform ought to be rejected in favour of a negative strategy -'trashing', 'delegitimation', or 'moral terrorism',[12] The point of the negative strategy was essentially to try to undo the legal conscience, to undermine the ideology of liberalism, and most importantly, to expose its 'fundamental contradictions'. This approach had the advantage of resistance and subversion, meaning that it did not uncritically assume that legal change or a new grand theory about law could eliminate the oppressions reinforced and sometimes perpetrated by law. However, it was strongly criticised for failing to negotiate the immediate social impacts of law. For instance, by arguing that rights were an alienating liberal construct and that appealing to rights or strengthening them would only reinforce the liberal legal consciousness, early critical legal scholars failed to take account of the hope, if not always actual protection, that robust notions of rights can offer to marginalised peoples.[13] The law reform strategy of enhancing legal rights such as that of equality is still far from exhausted. This is indicated by current efforts to extend relationship recognition to same-sex couples. However, as Emma Henderson suggests by reference to the still recent decriminalisation of homosexuality in Tasmania, such reform efforts are increasingly being played out by linking legal reform to broader social change.[14]
The British feminist sociologist Carol Smart offers a second, more subtle, approach to legal change, which does not hinge on simple acceptance or rejection of reform strategies or notions such as rights. Like the earlier critical legal studies writers, Smart places little faith in changing substantive law as a method of achieving significant social change:
feminism needs to engage with law for purposes other than law reform and with a clear insight into the problems of legitimating a mode of social regulation which is deeply antithetical to the myriad concerns and interests of women.[15]
For Smart, the problem is not simply that law reinforces various oppressive social orders. Indeed she argues that it cannot be reduced in such a way to a unified theory and instead must be understood as fragmented, layered, often self-contradictory. Moreover, law is simply too blunt as an instrument of change, and has unpredictable and often ambivalent results in terms of any social agenda.
The aim of 'fitting' feminist ideas ... into a legal framework that might be 'workable' (in narrow legal terms) or politically 'acceptable', means that many of the subtle insights and complexities of feminist analysis are necessarily lost.[16]
In Smart's view, it is a strategic mistake to over-emphasise the power of law: as other critical legal scholars had argued before her, the 'resort to law' reinforces law's power. Smart's distinctive contribution consisted in her more positive and strategic approach to the question of law. She argued, in effect, that effort ought to be directed at broader social and symbolic change, not just changes in legal doctrine. In this way, feminism (and, by extension, other movements concerned with the normative power of law) needs to de-centre law. This does not mean ignoring or rejecting law altogether, but rather co-opting its power to define, its power to tell the 'truth'. As law is not the only discourse holding such power, other 'truths' can offer alternatives and may even find their way into legal discourse. Although not always articulated clearly, the so-called 'postmodern' and deconstructive approaches to law have also emphasised transformation in the discourse and symbolism of law, rather than changes in legal doctrine which do not challenge the broader structures and meanings of law. [17]
A third strategy involves a pragmatic extension, in a sense, of the second, and has been endorsed by a number of feminist writers. It is essentially the view that it is not possible simply to reject or accept engagement with law: we cannot have a single position, but must both engage and critique. Although we know that law is not separate from prevailing moral standards and political divisions in society, it is structured around a powerful discourse that naturalises this separation. We cannot pretend that the separation does not exist because it has extremely powerful effects - therefore we should work with it, but continue to critique it. This approach was expressed a number of years ago by Mari Matsuda:
There are times to stand outside the courtroom door and say 'this procedure is a farce, the legal system is corrupt, justice will never prevail in this land as long as privilege rules in the courtroom'. There are times to stand inside the courtroom and say 'this is a nation of laws, laws recognising fundamental values of rights, equality, and personhood'. [18]
The argument is essentially that we can and should be working to achieve change along at least two fronts, one 'internal' to law and accepting (however conditionally) its power to define and redefine; the second from a position of scepticism and critique of law. Taken in a context of acknowledging the limitations of law - that is, that we should not expect mere legal reform to effect significant social change-such an argument provides a practical path for theorists who remain critical of law's role in enhancing and legitimising social division.
The radical feminism of Catharine MacKinnon provides one example of a seemingly contradictory, and in all probability highly strategic and localised, approach to characterising law and its ability to intervene in distributions of power. As Mary Heath explains, MacKinnon characterises law as masculine in its totality, yet appears to place faith in law as a site for social change: MacKinnon's view of the state as 'always ... the willing servant of the male power which it institutionalises' is at odds with her involvement in major law reform initiatives, such as the Pornography Ordinance and the Violence Against Women Act.[19] Put bluntly, how can MacKinnon argue that the state and its law represents a totalistic institutionalisation of male power over women which holds no promise for fundamental change, while at the same time turning to that law as an avenue for improvement in the situation of women? How can law promote feminist change, when it is so universal and total in its expression of patriarchy? There are various ways in which this apparent contradiction can be reconciled[20] (for instance by reference to the two-pronged strategy of Matsuda). What it does illustrate very powerfully is the tension between theories critical of law's institutionalised power, and the demand for practical legal solutions to social problems.
It can be seen, therefore, that there is considerable doubt in the minds of feminists and other critical legal theorists about the extent to which law reform-in and of itself-can achieve substantial change. At most perhaps, law reform can alleviate some of the symptoms of unequal distributions of power but, in doing so, cannot be characterised as part of a simple 'progression' toward a more just legal order. What is common to all of the post-positivist approaches to legal change outlined above is an emphasis on fundamental transformations in the meanings oflaw, and a view that mere evolution in doctrine is insufficient if the goal is to achieve significant change in social relationships and values. That does not mean that law reform is always meaningless - clearly it is frequently of great significance -but that it needs to be framed by a broader context of legal and social transition.
Positivist writers saw their theory of law as promoting clarity in thinking about law reform and, in this sense, can be seen as linking the theory of law to an approach to law reform. Similarly, feminists and critical legal theorists have linked their perceptions of the politics of law to approaches to law reform and, as I indicated, have suggested that critique can and must take place in parallel with reforming strategies. The ideal is to envisage new possibilities for law while working within the existing constraints.
In my opinion, it is important to reflect on law reform in a context of fundamental conceptual change. Part of the project for critical legal theorists is to conceptualise law differently - to see it as something other than an institutionalised system of positive rules and principles, for instance, by recognising the interdependence of law and social and cultural norms. There are few examples where such an approach has been fully developed, so I will outline only one -certainly not perfect - attempt to envisage law differently on a conceptual level, and to tie this to liberatory ideals.
The French feminist Luce Irigaray suggests that we need to confront directly 'men's' law and rights, with a notion of women's law and rights. Accepting the premise that law, as we know it, is patriarchal in that it draws on and reinforces conventional notions of masculinity and sexual relationships, Irigaray proposes that there is a need for a women's law which can reflect women's existences.[21] For Irigaray, sexual difference is universal and immutable: there are women and men, and therefore there must be women's law and men's law, rather than just men's law (into which women are assimilated). Irigaray is careful to emphasise that the content of these two laws/legal systems is yet to be imagined, and does not simply repeat the enforced and stereotyped identities currently given to women and men. There are a number of presumptions built into this view making it untenable[22] (for instance from a queer point of view, that sexual identity is only twofold and that we are immutably different because of our biology). My own preferred instinct is to move in the opposite direction from that proposed by Irigaray. I think we need to question whether it is necessary for sex as a legal status category to be imposed by law at all.
The point I wish to draw out, however, is that Irigaray links social change not just to changes in substantive law but also to novel forms of law and to a certain degree, to a form of law quite different from that currently in existence - law based on dual subjectivities. Two laws, in other words, not one. While this may not be a preferred method of legal change for many people, it illustrates the point that one task for critical legal theorists is to begin to think law differently, and to link this thinking to social goals.
Another reconceptualisation of law, more fundamental than the legal dualism proposed by Irigaray, is to be found in the (not new) notion of legal pluralism. Theories of legal pluralism take a number of different forms, and it is not possible to explore them here.[23] However, pluralism can be explained essentially as the recognition that there are forms of normative control other than state-based institutionalised law. State law co-exists with other forms of social order, many of which may be as powerful as state law in shaping our relationships and existences. The pluralism in question is not just of the values and cultures which may exist under the one law, but rather of varieties of laws which coexist and interact. Moreover, state law can itself be seen as plural in that it is derived from plural sources, relies upon plural modes of reasoning, and interacts in complex and often contradictory ways with 'non-legal' regimes of social order. According to such an understanding of law, legal reform cannot be conceptualised simply as something taking place 'inside' law, while social change takes place 'outside' law.
Nor can law be seen as an autonomous and theoretically closed system of regulating behaviour. Understanding law as plural may open different avenues for change in yet-to-be envisaged ways.
The theme of this edition is 'If I were the Attorney General ... ' and I have tried in this article to outline some of the approaches to the issue of law reform held by legal theorists of various types. If there is one thing that is clear to me, it is that law reform should not be rejected as an emancipatory strategy, but that we need to continue to reflect (as feminists have been doing for some time) about the context and broader meanings of law reform, and be pragmatic in our engagements with law as well as idealistic in our imaginings of alternative legal regimes. It is possible to think of legal change as transformational of the values and ideology of law and of the very understanding of what law is: critical theorists have often regarded this form of change as being of equal importance to legislative change.
[*] Margaret Davies teaches law at Flinders University.
© 2003 Margaret Davies (text)
© 2003 John Lynch (cartoon)
email: margaret.davies@flinders.edu.au
[1] See Mary Heath and Ngaire Naffine, 'Men's Needs and Women's Desires: Feminist Dilemmas About Rape Law "Reform'" (1994) 3 Australian Feminist Law Journal 30.
[2] A classic statement of this principle is to be found in John Austin, The Province of Jurisprudence Determined H LA Hart (ed) (1954, first published 1832), Lecture 5.
[3] There are many modem variations of positivism, and for reasons of space I cannot analyse them here. See, for instance Neil MacCormick and Ota Weinberger An Institutional Theory of Law: New Approaches to Legal Positivism (1986); Tom Campbell, The Legal Theory of Ethical Positivism (1996).
[4] Austin above n 2, 184.
[5] Jeremy Bentham, 'A Fragment of Government' in J H Bums, and H L A Hart (ed) A Comment on the Commentaries and A Fragment of Government (1977) 397.
[6] Lon Fuller, 'Positivism and Fidelity to Law-A Reply to Professor Hart' (1958) 71 Harvard Law Review 630,657-9.
[7] H LA Hart 'Positivism and the Separation of Law and Morals' (1958) 71 Harvard Law Review 593, 596.
[8] Ibid 597.
[9] Jeremy Bentham, 'A Comment on the Commentaries' in Bentham above n 5.
[10] Patrick Devlin, The Enforcement of Morals, Oxford University Press, 1965.
[11] H L A Hart, Law, Liberty and Morality (1963).
[12] See Mark Kelman, 'Trashing' (1984) 36 Stanford Law Review 293; Alan Freeman, 'Truth and Mystification in Legal Scholarship' (1981) 90 Yale Law Journal 1229; David Fraser, 'Truth and Hierarchy: Will the Circle be Unbroken?' (I984) Buffalo Law Review 729, 773.
[13] Richard Delgado, 'The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want?' (I987) 22 Harvard Civil Rights-Civil Liberties Law Review 301.
[14] Emma Henderson, "I'd Rather Be An Outlaw': Identity, Activism and Decriminalization in Tasmania' in Carl Stychin and Didi Herman (eds), Sexuality in the Legal Arena (2000) 35.
[15] Carol Smart, Feminism and the Power of Law (1989) 164.
[16] Ibid 115; see also 163-4.
[17] See for instance Drucilla Cornell, The Philosophy of the Limit, 1992.
[18] Mari Matsuda, 'When the First Quail Calls: Multiple Consciousness as Jurisprudential Method' (1988) 11 Womens Rights Law Reporter 7, 8; Matsuda's approach has been endorsed by various feminist writers: sec Heath and Naffinc above n 1; Reg Graycar, and Jenny Morgan, The Hidden Gender of Law (2nd ed, 2002), 449; Margaret Davies, Asking the Law Question (2nd ed, 2002), 17.
[19] Mary Heath, 'Catharine MacKinnon: Toward a Feminist Theory of the State' (1997) 9 Australian Feminist Law Journal 45, 49.
[20] A very detailed analysis has been written by Mary Heath in The Feral State: A Feminist Critique of the Gendered and Colonialist Theoretical Premises of 'The State' (unpublished PhD thesis, Flinders University) (2003), on file with the author, ch 4.
[21] Lucc Irigaray, I love to you, (1996) 35-42; Sexes and Genealogies, Columbia University Press (1993) I.
[22] See Drucilla Cornell, At the Heart of Freedom: Feminism, Sex, and Equality (I998), 119-23.
[23] Some recent explorations of legal pluralism include Roderick Macdonald, 'Metaphors of Multiplicity: Civil Society, Regimes, and Legal Pluralism' (1998) 15 Arizona Journal of International and Comparative Law 69; Brian Tamanaha, 'A Non-Essentialist Version of Legal Pluralism' (2000) Journal of Law and Society 296; Martha-Marie Kleirthans, and Roderick Macdonald, 'What is a Critical Legal Pluralism?' (1997) 12 Canadian Journal of Law and Society 25.
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