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Thornton, Margaret --- "Towards Embodied Justice: Wrestling with Legal Ethics in the Age of the 'New Corporatism'" [1999] MelbULawRw 28; (1999) 23(3) Melbourne University Law Review 749


Towards Embodied Justice: Wrestling with Legal Ethics in the Age of the 'New Corporatism'


[This article considers what feminist ethics might be able to offer public law and challenges the idea of ‘public’ law when strategically invoked by private interests. The article argues that ostensibly neutral phenomena, such as the public law–private law distinction, norms of universality and adversarialism are key technologies of power that facilitate the ‘new corporatism’. It is suggested that ‘care’, which is commonly assumed to be a corollary of feminist ethics, is problematic because it is associated with what is termed the ‘fictive feminine’, an impoverished notion of femininity within the popular imagination. An ethical feminist consciousness can nevertheless contribute to a new vision of justice by incorporating the perspective of the ‘other’, which involves effecting a dialogue between the universal and the particular.]


The separation between public and private law has an extensive history within Western jurisprudence, having been accepted by almost all systematic writers.[1] Some ancient historians date the division from as early as pre-republican Rome.[2] The Roman jurist, Ulpian, writing in the early third century AD, identified public and private as the two branches of law — public law relating to the circumstances of the Commonwealth, and private to the interests of individuals.[3] The Digest of Justinian also defined public things as nobody’s property, for they belonged corporately to the whole community.[4]

The English scholars of the Enlightenment accepted a distinction between public and private law, although its ideological significance had changed over time.[5] Modernity favoured private law because it facilitated the interests of a laissez faire economy, and public law occupied a smaller and less conspicuous space, reflecting the classical liberal suspicion of government intervention in private affairs.[6] Although the emergence of the modern regulatory state in the twentieth century changed the relative weightings accorded to public and private, disproportionate attention has continued to be paid to private law in the law school ‘core’ curriculum, as well as in the requirements for admission to legal practice.[7] The propulsion towards a welfare state only temporally camouflaged the reality of the capitalist state with its support for ‘private’ profit making.

The philosophical concept of ‘private’ is once again being extolled under the sway of what I term the ‘new corporatism’, which includes the contraction of the welfare state, deregulation, the privatisation of public goods, globalisation, and a preoccupation with economic rationalism and profits.[8] The political reality of the ‘new corporatism’ has significant ramifications for the development of a changed ethical schema in the practice of law. If a narrow and conventional view of ‘public law’ is adopted, the enormous power wielded by corporations is cleverly disguised by the private characterisation, particularly in the way these so-called private interests are able to deploy public law to their own ends.[9] A singular focus on the abstract principles of public law also disguises the way that the market and the domestic sphere, both of which are characterised as ‘private’ within the liberal tradition,[10] are intimately linked to the public sphere.

What is striking about the phenomenon of the ‘new corporatism’ is that it has not sprung unaided, like Athena from the head of Zeus, but it has been secured with the active participation of government — that is, the mainstay of the public sphere.[11] Thus, whereas corporatism, as conceptualised in the political theory of the 1970s,[12] encompassed the various distinctive economic and political interests in the capitalist state that are associated with civil society, the ‘new corporatism’ seems to be solely concerned with the alliance between government and the market.


A Private Parts

Although categorical assertions are commonly made about public and private interests within analytic jurisprudence,[13] the distinction is far less easily demonstrated in practice. When we scrutinise an area conventionally characterised as private, such as contract law, we see that public interests shape the way that courts (which are themselves public institutions) view averredly private agreements. ‘Private’, however, is by no means an uncontested category, as can be seen when we compare the judicial treatment of market and domestic agreements. Provided certain basic conditions are satisfied, courts are likely to regard as relatively uncontentious the question of whether a contract existed in the case of a commercial arrangement to buy and sell goods. In contrast, in the case of a husband and wife who enter into an agreement to arrange their everyday lives, courts are likely to adopt quite a different approach.[14]

The ‘private’ interests that arise from both the market and civil society are regarded by law as qualitatively different from the ‘private’ interests that emerge from the private qua domestic sphere.[15] The private sphere is not immune from regulation and never has been, despite the well entrenched myth that, there, ‘the King’s writ does not seek to run’.[16] Furthermore, it is apparent that when the political and juridical voices of the public sphere determine what is public and what is private, a judgment shaped by prevailing political values is made. The contradictions inherent in the term ‘private law’ begin to cause discomfort, as does the notion of an unadulterated ‘private sphere’.

The idea of dichotomised public and private spheres diminishes the significance of civil society, even though civil society might be conceptualised as the locus of justice within liberal theory. Civil society can be imagined as a realm located in the shadowy space between the market and government. Within this sphere, which has recently ‘exploded into a multitude of immeasurable parts’,[17] citizens are free to litigate, to travel, to acquire property and to associate for collective purposes such as religion, union activities, education and lobbying. When asserting ‘private’ rights, such as rights pertaining to breach of contract, litigation is deemed to be private.[18] Judges, nevertheless, with the imprimatur of the state, make authoritative public pronouncements about the nature of contract and the regulation of the market. As suggested by Balfour v Balfour,[19] judges are able to regulate the boundary between public and private, as well as shape the nature of marriage, and the meaning of masculinity and femininity, in determining whether a justiciable contract exists or not. Thus, while an analysis of the concepts of public and private can be helpful when focusing on a public law project, a rigid distinction must be rejected in the face of permeability and ambiguity.

In the case of a commercial contract, the ‘private’ element can be discerned in the freedom of the parties to decide with whom they should contract and on what terms, but the influence of an intimate relationship between government and the market is also apparent in authorising that freedom. Although somewhat less overt, the juridical validation of commercial contracts, together with a panoply of other commercial activities, shows how law facilitates market activities,[20] or how it ‘oils the wheels of capitalism’, as a Chinese metaphor aptly expresses it. It is therefore no surprise to find that the ethics of the market underpin the law of contract, despite the positivist myth that law is autonomous and neutral — that is, that law is a self-referential system which is unmarked by history, politics and sociality.[21] It is likely that deregulation, the linchpin of the ‘new corporatism’, will bolster the facilitative role of law as private actions are instituted to resolve employment and other contractual disputes, although many such practices of multinational corporations which trade in Australia will escape justiciability because of offshore production.[22] Modernist incarnations of law are grounded in the notion of the sovereign state.[23]

In Balfour v Balfour,[24] the husband, an Englishman residing in what was then Ceylon, promised to pay an allowance of thirty pounds per month to the wife who had decided to remain in England. He reneged on the promise and she instituted suit. The primary question was whether an agreement between a husband and wife constituted a legally binding contract. The King’s Bench determined that the requisite elements of contract, namely, consideration and an intention to enter into legal relations, were absent.[25] In addition, the family was deemed to be a private domain beyond the reach of the law.[26] I am not suggesting that every agreement between domestic intimates is necessarily synonymous with its commercial analogue, and therefore justiciable. Rather, I wish to draw out the ramifications of the fact that while the private law of contract embraces the market with the imprimatur of the state, it remains tentative about entering into the private sphere qua family. If the state does intervene in the family, it does so selectively, primarily on the breakdown of marriage.

Paradoxically, however, the existence of a regime to regulate divorce means that family law must necessarily be characterised as public rather than private law within the conventional schema, although the embodied reality of familial relations means that family law is regarded as less public than, say, constitutional law. The domestic sphere, the legitimate sphere of corporeality, affectivity and particularity, has long been cordoned off from scrutiny, as a space deemed private at the instigation of benchmark men — that is, those men who are middle class, white, heterosexual, and able-bodied, and who have historically dominated law and politics.[27] Benchmark men would prefer that the dark and violent underside of family life remained hidden. The political ambiguities of ‘private’ pertaining to the market and the family are reflected in and reproduced by law, which has largely been an artifact of benchmark men, aided by corporate capital. The political and ethical significance of the differing meanings of ‘private’ in law is profound.

B Public Parts

1 Disembodiment and Constitutionalisation

Just as private law cannot be viewed as a discrete category, regard must be paid to the private underpinnings of public law as a prelude to exploring the possibility of a changed ethical schema. I do not propose to deal with the vagaries of the Australian Constitution itself,[28] but merely to highlight how ‘constitutionalisation’ typically involves the treatment of issues at a very high level of abstraction so that distinctive private or subjective features are sloughed off. Thus, issues ostensibly located within the public domain of law can also be hidden from view, if contrary to the interests of benchmark men. In this way, the body of an individual complainant can become a mere spectre behind the text. This is so even in discrimination cases where the sexed or raced identity of the complainant constitutes the basis of the legally cognisable harm. The universality of constitutional law purports not to have a point of view but, as Iris Marion Young argues, the ‘ideal of impartiality is an idealist fiction’.[29] Nevertheless, its familiarity invests it with the appearance of the real. The fiction can be readily illustrated by two examples.

In Wardley v Ansett Transport Industries (Operations) Pty Ltd,[30] the respondent had rejected the complainant’s application to become a trainee pilot because of the possibility that she might become pregnant — that is, she was rejected for no other reason than because she was a woman of child-bearing age. The former Victorian Equal Opportunity Board found in the complainant’s favour and required the respondent to employ her as a trainee pilot. The respondent challenged the finding of the Board and sought to terminate the complainant’s employment, relying on the relevant federal pilots’ employment agreement which, unsurprisingly, had nothing to say about either pregnancy or sex, since the agreement had been drafted at a time when the possibility of women becoming pilots had not been envisaged. The unequivocal evidence of sex discrimination was relegated to the background before the High Court when the complaint was transmuted into a case of constitutional inconsistency between the agreement, which had the status of a federal award, and a State Act.[31] Thus, through the process of constitutionalisation, the absolute exclusion of women citizens from an area of work by virtue of their sex (or the possibility of pregnancy) could be suppressed and treated as irrelevant to the status question.

Along with the body of the litigant, the materiality of discriminatory harm and knowledge of systemic injustice, constitutionalisation also sloughs off affectivity — whether it be passion, pain, anger, desire, or care — which is deemed to belong more properly to the private sphere and to be of no interest to law. In Metwally v University of Wollongong,[32] harassing acts of racial discrimination caused the complainant to abandon his doctoral studies, which resulted in a finding in his favour by the former New South Wales Equal Opportunity Tribunal. The complainant was an Egyptian national to whom the respondent University had offered a postgraduate scholarship to enable him to complete a PhD in Metallurgy. Soon after his arrival, relations with his supervisors and other staff began to break down when the complainant was taunted for not drinking alcohol, and derogatory remarks were made about Egyptians in his presence. The breakdown of relations culminated in a decision by the University to terminate the complainant’s candidature. The Tribunal found that the discrediting of the complainant’s work arose from race-based discrimination and from victimisation.[33]

As with Ansett Transport Industries (Operations) Pty Ltd v Wardley,[34] the substantive acts and their devastating impact on the complainant disappeared altogether, as did the question of institutional racism, when the issue became one of constitutional inconsistency before the High Court. Mr Metwally was left without a remedy as a result of the application of Viskauskas v Niland,[35] which invalidated part of the Anti-Discrimination Act 1977 (NSW). In Viskauskas v Niland (the substance of which dealt with the denial of hotel service to an Aboriginal person), the Racial Discrimination Act 1975 (Cth) (‘RDA’) was held to cover the field by virtue of s 109 of the Constitution. Although an amendment was subsequently effected to the RDA (s 6A) to permit concurrent operation of the federal and State legislation, the question that arose in University of Wollongong v Metwally[36] related to the retrospective validity of the Anti-Discrimination Act 1977 (NSW) — that is, was it operative at the time of the discriminatory conduct? The High Court held that it was not, despite the intention expressed in s 6A of the RDA that the concurrent provision was to have retrospective operation. The resolution of the inconsistency issue meant an affirmation of the finding in Viskauskas v Niland[37] that the RDA covered the field, and Mr Metwally was bereft of a remedy. Two judges of the High Court, Murphy and Deane JJ, did suggest, obiter, that an ex gratia payment be made by the New South Wales Government to compensate for the lost damages,[38] but there is no evidence that this was ever done.[39]

While constitutional law can be a source of empowerment for groups such as indigenous peoples, albeit at great effort and expense,[40] it more often than not enables those with power and resources to blanch a dispute of the merits of the case, as Wardley and Metwally reveal. Appellants are invariably corporate litigants who are able to constitutionalise a dispute to their advantage with the assistance of adroit legal counsel. As suggested, constitutionalisation enables a dispute to be completely reconceptualised, a process legitimised through the exercise of a right of appeal, a ‘right’ that only the corporate litigant may be able to afford. While the representation of constitutional law as abstract, decorporealised and neutral accords with the idealised and universal norms of justice, such rhetoric serves to disguise the injustice at the root of the case — that is, the particularity of the harm that led to the search for a remedy. Constitutionalisation legitimises the recounting of narratives that are likely to be unrecognisable to the complainants. The sorrow of the Aboriginal ‘Stolen Children’[41] evaporates in the face of a legalistic excursus on the legislative scope of the Territories power (s 122 of the Constitution).[42] Constitutional law thereby fashions fictional meanings from its storytelling.[43] These fictionalised accounts then become the authoritative texts of constitutional jurisprudence.

The ‘public’ interests associated with constitutional law, which are inferentially of greater significance than private law decisions, are likely to be subverted by the same adversarial system that operates in private law litigation. The partiality of constitutional law is more insidious because the discourse is conducted at such a high level of abstraction. Bentham, Austin and Dicey were responsible for the development of a positivistic approach to public law in an endeavour to sever it from its political roots.[44] The attempt to apply scientific method to political and moral questions was thought to promote fairness, predictability and procedural equality.[45] Indeed, positivism has fostered the myth that law is apolitical and amoral.[46] Constitutional law might be imagined as a paradigm of positivism, as well as of public law, which could partially explain why it has been even more resistant to critique, including feminist critique,[47] than other branches of law.

2 The Discriminating Body: Administrative Law

Administrative law is also characterised as ‘public law’, because it involves the interpretation of statutes, regulations and policy which emanate from the polity. However, it is beset with ambiguities. First of all, the role of the executive long caused administrative law to be regarded with suspicion by positivist theorists as not ‘real law’ because it could not be severed from its ‘political roots’.[48] Indeed, the teaching of administrative law in law schools is a relatively recent phenomenon.[49] Second, disputes arising from regulatory regimes are frequently dealt with by tribunals that are located at the pyramidal base of the adjudicative hierarchy. Third, the materiality of claims is not consigned to the periphery, as occurs in the rarefied atmosphere of constitutional claims. Certain categories of complaints, particularly those involving sex discrimination, pregnancy and sexual harassment, are understandably resistant to the sexed body being relegated to the shadows.

The anti-discrimination jurisdiction illustrates well how notions of public and private are etched onto law. As a feminist inspired reform, it could illuminate the issue of ethics in public law because of the way that it insists on the relevance of sexed (as well as raced, ethnicised and sexualised) identities. Thus, the identity of the ‘authentic’ legal person, with whom the complainant must effect a comparison, can be exposed as benchmark man, despite attempts to camouflage him by a facade of neutrality.[50]

The legislative initiative designed to challenge the normativity of benchmark man through policies of equal employment opportunity (‘EEO’) was that women ought to be able to realise their sense of self-worth by occupying positions in employment and in public life from which they formerly had been excluded altogether, or in which they had been accorded differential conditions.[51] EEO challenged the cherished assumption of liberalism that there was a congruence between public life, including the market and civil society, and masculinity, on the one hand, and private life qua family, and femininity, on the other hand.[52] The introduction of the ethic of equal opportunity coincided with the development of an ethical schema in the public sphere in Australia in the 1970s that included the New Administrative Law,[53] with its adherence to accountability and judicial review, together with a commitment to a public service governed by principles of merit,[54] rather than homosociability and seniority. The focus on credentialism, aptitude and experience disrupted the ‘old boy’ network, at least so far as lower-level and middle-rank positions were concerned.[55]

Anti-discrimination schemata carry with them, nevertheless, a sense of unease arising from the entry of the ‘other’ into public, professional, and institutional life. Despite the egalitarian rhetoric, the legislation upholds the liberal tenet articulated in Balfour v Balfour[56] that private qua domestic life is beyond the purview of the state. Thus, a complaint cannot be lodged by one family member against another: a wife cannot complain that she is compelled to undertake the preponderance of child care and housework, for example. Not only is the domestic sphere tacitly immunised, but the possibility of complaint is foreclosed by the form of law which requires a clearly identified tortfeasor who must be linked both to the impugned act and to the complainant. In this case, the harm of the ‘double shift’ is buried deep within the social psyche so that the notion of the unequal treatment of those who are similarly situated cannot be met. Thus, not only are the inequities of domestic life suppressed, but the essential symbiosis between such inequities and public life is rendered invisible. The legitimation of the separation between public and private qua domestic life underpins the idea that equality and justice are principles attainable only in the public sphere, thereby underscoring the Aristotelian idea that the domestic sphere is a realm of inequality and necessity,[57] and therefore inferior.

Perhaps the clearest evidence of legislative ambivalence concerning substantive equality for women and ‘others’ in public life arises from the procedure for dealing with complaints under anti-discrimination legislation. All Australian federal and State legislation mandates the conciliation of complaints in the first instance in a confidential setting,[58] which means that there can be very little public scrutiny of either what transpires during the secret process of conciliation or the generative harms themselves. Nevertheless, conciliation, as the pyramidal base of the dispute resolution hierarchy, does allow a legitimate space for corporeality and affectivity. A small percentage of unconciliated complaints proceed to public hearing before specialist tribunals,[59] which also acknowledge narratives of difference, by allowing the voices of complainants to be heard through less formal procedures, including the admission of hearsay evidence, the presence of lay members and the possibility of self-representation. Conservative governments, however, are currently moving to disband these tribunals, if they have not already done so.[60]

The positivist orientation of courts of general jurisdiction renders them less receptive to the particularity of individual complaints, a factor that subtly raises the burden of proof. The favouring of a technocratic approach by generalist courts also necessitates formal representation, thereby increasing the cost of ‘justice’. The effect of the trend in favour of greater formalism is to downgrade the role of specialist tribunals, with their procedural flexibility and their ability to make a distinctive contribution to public law, signalling a reversion to a situation where the private character of the market is privileged. The withdrawal by the state of accessible, informal and user-friendly fora in which to challenge discriminatory and exploitative corporatist practices represents another manifestation of the ‘new corporatism’.[61] Corporate respondents have little interest in specialist tribunals, for they would prefer to rely upon the malleability of formal rules and the greater likelihood of authoritative judicial voices to tell them that they were ‘right’.[62] Individual citizens, for the most part, cannot afford to litigate in formal courts, particularly when they have to meet a strict burden of proof and the respondent corporation monopolises the evidence. Removal of the pyramidal base of adjudication under the guise of economic rationality subtly aids in the legitimation of discrimination. As already suggested in the case of constitutionalisation, legal formalism represents a significant site for the play and production of power in the interests of corporatism and conservatism.

A conservative politics is anxious to maintain the conventionally gendered boundary between public and private life. It wishes to deny or downplay the elements that contribute to the instability of the boundary, including the symbiosis between domestic life and the market, civil society and the polis.[63] Conservatives take comfort from having women at home taking responsibility for the necessities of everyday life, in order that men might be free to participate in the public and quasi-public spheres of life. Female corporeality evokes the old fear of disorder in the public sphere, the fear that rationality and good order, paradigmatically associated with law, will decompose with the entry of women.[64] However, as it is no longer feasible to exclude women from public life, technologies[65] such as the sexual division of labour, the demolition of the centralised industrial system and the casualisation of large segments of the workforce ensure that the preponderance of women workers remain an ancillary and subordinated workforce. Restriction on the autonomy of women workers extends to lawyers and academics, who tend to find themselves assigned to the pyramidal base of organisational hierarchies, a site that is invariably feminised.[66] Top-down workplaces, in which workers are under constant surveillance from a line of managers within highly bureaucratised ‘Fordist’ workplaces, generally allow little scope for an idealised feminist ethic of consultation and care.[67] Issues of power are confined to the aphasic realm of the subliminal within liberal legal discourse.

Anti-discrimination legislation is unable to address either the structures of organisations or the ubiquitous issues of power. Thus, public law practice is resistant to the feminine even in a jurisdiction that has been expressly designed to facilitate the entry of women into public life. The resistance does not bode well for a transformative feminist legal ethic.


A Adversarialism in Context

Despite the aspirations of neutrality and universality accorded positivistic prescripts, the promotion of the interests of one’s client is a pre-eminent value of advocacy and may include a range of practices that many would question, such as ‘dollaring to death’, whereby the opponent’s costs are driven up exponentially. Defending the interests of one’s client, particularly a powerful corporate client, requires dedication, long hours and a total commitment to means–ends rationality. In a highly competitive legal market in which one or two wealthy corporate clients can assure the future of a law firm, a corporation will soon find another firm that will accede to its will. The pressure on lawyers to make profits and satisfy their quota of ‘billable hours’ permits little space for what one might term, oxymoronically, ‘ethical capitalism’. A principled lawyer may feel that she has no option but to leave the firm. For example, a woman I interviewed for Dissonance and Distrust worked for a law firm with a large insurance company client which routinely engaged in practices involving the surveillance of claimants.[68] The interviewee found these practices increasingly unacceptable, and resigned, but it was unlikely that her resignation prompted the law firm to question the practices of its client. A replacement lawyer would undoubtedly have been found because of the likelihood of a client transferring its business elsewhere if its practices were challenged. The corporate underpinnings of the preponderance of lawyering and litigation, together with the partiality purchased by corporate wealth, are rendered invisible by the myth of equality before the law.

In this context, it should also be noted that corporate law firms have themselves become corporatised, reflecting the ‘Fordist’ structure of their corporate clients. Instead of the collegial and egalitarian structure that typified the myriad small firms of the past,[69] economic rationality has resulted in the growth of mega-firms which increasingly transcend state and national borders. The lawyers in mega-firms are no longer able to participate equally in decision-making. An increasingly large number of associates vie with one another for the prize of partnership. This highly competitive ethos, which values productivity and profits, as manifested in ‘rainmaking’ and ‘billable hours’, necessarily compromises the service ideal.[70] Specialisation and institutional loyalty within a bureaucratised and hierarchised organisation sit uneasily with the ideals of professional autonomy and professional good.[71] The bureaucratisation of legal practice has profoundly affected the ethics of public service, public interest and public good that have traditionally been ideals of the legal profession.

Anthony Kronman articulates the deep sense of malaise felt by prudential legal commentators.[72] He bemoans the disappearance of the ‘lawyer statesman’ who is imbued with a ‘spirit of citizenship’, who is a ‘leader in the realm of public life’, who is ‘prepared to sacrifice his own well-being’, and who is distinguished by ‘exceptional wisdom’ in determining the ends of law.[73] However, we cannot resuscitate this paragon, even if we place him on a permanent life support system, for he is an anachronism. Not only is he benchmark man who resides in a mythical homogeneous society, he refuses to acknowledge the extensive socio-political changes that have occurred within the profession itself.

The deontological (rights-based) interests in advocacy suggest that they can be distinguished from the teleological (ends-based) interests of politics and that the former operate within an amoral positivist legal paradigm, the parameters of which seem to be infinitely elastic. It is this amorality (or immorality, some might suggest) of the adversarial system that causes virtue to be so elusive for corporate lawyers, even though it might be argued, albeit somewhat lamely, that the adversarial system enjoys the tacit consent of the governed.[74] I am not, however, suggesting that we jettison the adversarial system. As David Luban argues, it is pragmatically justified because rival systems, such as the inquisitorial system, the socialist system and trial by ordeal are not necessarily better and, in the case of the latter, may be significantly worse![75] The difficulty is how to graft a notion of ‘the good’, however such a problematic concept may be defined, onto a system that is so entrenched, so pragmatically based, and so inherently anti-ethical. To this issue, I now turn.

B Ethical(?) Positivism

Legal positivism, with its pervasive myth of autonomy, has ensured that the ethical underpinnings of law, whether public or private, receive scant attention. For law students, ethics have all too often been confined to a small portion of a course devoted to the professional rules of conduct rather than vexing questions of public morality;[76] a critical reflexivity about what lawyers do is not usually accepted as a legitimate subject of analysis. Despite diversification, law teaching still displays a tendency to be treated as propositional, rule-based, divorced from its social context, internally consistent and amoral.[77] This approach serves a crucial ideological role within liberal legalism. Questioning may make an appearance in jurisprudence and optional courses but, by and large, law students are soon acculturated into a system where the technical rules are accepted as all-important and the morality of what lawyers do is accepted as incidental.[78] This is despite the fact that this approach is strongly critiqued by those who desire to reclaim positivism.[79]

According to classic formulations, ethics entails making qualitative judgments as to the rightness or wrongness of conduct in accordance with an agreed social standard.[80] Ethics ‘begins with the concept of duty and seeks obligatory ends.’[81] Within a classical liberal framework, law permits all acts except those that are inconsistent with the freedom of others: ‘Legal duties are therefore essentially negative prohibitions whose validity is presupposed in ethics’ more particular structure of positive injunctions’.[82] But how is a notion of ‘rightness’ internalised? The paradox of advocacy requires the lawyer to evince simultaneously the values of neutrality and partisanship, regardless of the client’s activities. Thus, the criminal lawyer must respond dispassionately to the client’s alleged crime, whether it be a homicide, rape or wife-beating, but be totally committed to defending the client.[83] Justice, which is supposed to emerge from an adversarial process, is thought to imply a contact between ethics and law,[84] but what sort of ethics can be grounded in a practice based on a paradox? Rand Jack and Dana Jack’s work on lawyer morality illustrates the identity crisis that results as lawyers endeavour to draw a line between personal morality and the ethical obligations imposed by the legal profession.[85] This artificial line-drawing would seem to be yet another technology of positivism that legitimises the amorality and pragmatism of the preponderance of legal practice.

The elusiveness of ethics is further underscored by the fact that it is no longer possible to speak meaningfully of ‘community values’ or ‘common standards of decency’. As postmodern scholars recognise, the search for absolutes and universals within a fragmented modern age is misguided, and has largely been abandoned.[86] In any case, it is only those with power who traditionally have been able to impose their values on others — with the aid of law.[87] The technocratic carapace of legal positivism has enabled it to discard the vexing issues posed by those who are not benchmark citizens and to pretend that morality is irrelevant within an adversarial framework. The scapegoating of individuals has been utilised to immunise the immorality of the context in which they operate.[88] While it is undeniable that many discursive challenges have been initiated by ‘others’ in recent years, the centripetal pull of positivism is all too often able to resist such challenges. When we move beyond a few general rules pertaining to professional conduct, ethics become evanescent, causing them to be abandoned by judge and legal educator alike.[89] I turn to feminism to see whether it might assist us out of the morass.


Feminism is another elusive term with many strands that need to be untangled. Hence, an univocal concept of ‘feminist ethics’ cannot be accepted unproblematically any more than can a concept of ‘legal ethics’. Feminism may include a belief in EEO within existing structures or a range of radical positions that affect choice of lifestyle, including the rejection of heterosexuality.[90] Feminism may also include perspectives on race, disability and age.[91] Allowing for a range of political positions in conjunction with diverse life experiences renders any generalisation simplistic and reductive. With that caution, feminism can be said generally to recognise a belief in the right of women to choose the course of their lives, rather than accept a biologically predetermined trajectory. Feminism is therefore liberatory, aspirational and visionary.

Feminist scholarship has become highly complex and sophisticated as a result of the onslaught on traditional epistemology by feminist scholars across disciplines, including law. Academic feminism is not synonymous with grassroots or activist feminism. While the latter is grounded in a political desire to resist oppression and change the lives of women, feminism’s intellectual and scholarly aims may have more to do with challenging knowledge claims to truth and universality, as well as forging new theoretical paths. The feminist challenge has set out to deconstruct the entire corpus of knowledge within the Western intellectual tradition in order to expose its masculinist partiality. Thus, in the 1970s, feminist lawyers and legal scholars first performed activist roles in seeking to improve the position of women by remedying injustices in the law but, by the 1980s, they were challenging the nature of law itself.[92] In the 1990s, feminist legal scholars are rewriting jurisprudence,[93] just as feminist historians have been rewriting history.[94]

‘Feminism’ needs to be distinguished from the ‘feminine’, which includes a cluster of values conventionally ascribed to women, including care, corporeality, emotion, dependence and docility. Some of these terms have negative and disempowering connotations, and are the antithesis of notions of freedom, independence and autonomy. To stress the constructivist meaning of the feminine and to avoid its conflation with biological women, which all too often occurs within legal and other discourses, I use the term ‘fictive feminine’.[95] I contrast this term with the ‘imagined masculine’ which includes a cluster of characteristics likely to be ascribed to (benchmark) men and which carry more positive connotations — such as rationality, objectivity, independence, and strength. Within the Western intellectual tradition, these imagined values of masculinity and femininity have come to be associated with public and private and, in turn, with law and non-law, binarisms that are themselves open to question.[96]

Political, philosophical, religious and legal discourses have extolled the public realm qua polis as a masculinised and superior space. This association of masculinity with rationality and the life of the mind crystallises within the ‘imagined masculine’. So powerful has the trope of the disembodied ‘Man of Reason’ become in resisting the corrupting influence of the ‘other’ and safeguarding the pure rationality of the public sphere,[97] that women have struggled, first, to be admitted and, secondly, to be accepted as agents of legality.

Within a conservative politics, the public sector has become more and more impoverished and its status has declined,[98] causing its character to become feminised. In contrast, the masculinised high status character of certain aspects of the private sphere is extolled, particularly those aspects associated with the market and the ‘new corporatism’. Legal practice cannot be strictly characterised as a market activity in itself, although it evinces market elements, such as the pursuit of profits, and shares an intimate relationship with business and corporate clients. Legal practice in the public sector, particularly in subordinate and low paid positions, is feminised.[99] If men occupy such positions, they aspire to flee from them as soon as possible.[100]

Once women had been ‘let in’ to law and the professions, many feminists hoped that the positive and softer values associated with the ‘fictive feminine’, namely, community, consultation, conciliation, compassion, consideration and care, would replace or at least temper the harshness of the values associated with the ‘imagined masculine’, namely, competitiveness, adversarialism, and a commitment to a cold and uncompromising vision of justice that extols means–ends rationality. The flaw in this aspiration arose from the conflation of biological woman with the ‘fictive feminine’, against which feminism has reacted. Indeed, women are not universally more caring, considerate or community-oriented than men. Jack and Jack found that while the American women lawyers in their study were more likely to have ‘care orientation’ in their personal morality, this was not necessarily the case.[101]

As caring is conspicuously absent from the constellation of values associated with the ‘imagined masculine’, it has been conveniently assumed that most men are incapable of caring — that is, looking after children, the sick and the elderly on a day-to-day basis. The cultural construction of women in terms of care has served a significant ideological purpose, for it has ensured that women take primary responsibility for care — largely in an unpaid capacity in the home, thereby leaving men free to engage in public and professional life. This point also underscores the essential symbiosis between public and private spheres. Thus, the ability of public (benchmark) man to be noble and self-sacrificing has invariably depended on the existence of a ‘good woman’ behind the scenes who has attended to his everyday wants and nurtured his children. While his acts have been lauded and rewarded throughout history as the quintessence of ethical conduct, his achievements have in fact been largely parasitic on the unacknowledged contributions of an invisible wife (or lover, mother, sister, daughter and/or servant). If the wife seeks to assert a contractual right to financial recompense during marriage, it is still likely to be rejected, as we saw in the case of Balfour v Balfour.[102]

It is ironic, then, that just as women have sought to slough off the baggage of the ‘fictive feminine’, together with roles as full-time housewives and carers, and to replace or supplement them with professional and authoritative roles in the public sphere in accordance with the feminist ethic of self-realisation and autonomy, one strand of feminist scholarship has sought to normalise a feminised ethic of care. The psychological theorisation of Carol Gilligan posits that women’s interconnection with and concern for others leads women to reason differently.[103] Using the web as a metaphor to capture this feminised style of reasoning, based on interconnection with others, she contrasts it with the ladder as a metaphor for a masculinised hierarchy of abstract rights in which the impact of one’s actions on others is of incidental importance, reminiscent of the phenomenon of constitutionalisation that I have outlined.

Initially, some feminist legal scholars responded very positively to Gilligan’s theory. It was hoped that the voices of relationship, care and connection would ‘change the adversarial system into a more cooperative, less war-like system of communication between disputants’.[104] However, other feminists felt that there was something disempowering and discomforting about an eternal conjunction between women and care.[105] Indeed, Gilligan’s work seemed to echo rather too graphically the theory of sexual complementarity of a bygone age, as encapsulated in Rousseau’s gentle, docile Sophy, forever subject to the rational, wise Émile.[106] The trenchant attack on the theory of sexual complementarity by Mary Wollstonecraft can only increase our sense of discomfort, particularly as Wollstonecraft published her Vindication two hundred years ago.[107] Modern feminist legal scholars, such as Catharine MacKinnon, have been highly critical of Gilligan’s approach.[108] However, Gilligan does recognise the constructionist role of care and the fact that women have been acculturated to speak ‘in a different voice’;[109] she does not suggest that caring is an innate characteristic, although the qualification is not always heeded.

The sociobiological heritage is evinced by the way in which the ‘imagined masculine’ and the ‘fictive feminine’ have been inscribed on the bodies of men and women and become normalised in the public sphere. For example, a more caring consultative style of leadership may be used to detract from the authority of a professional woman,[110] although such a style may also be invoked to challenge the appointment of an ethnicised man to an authoritative position.[111] In view of the functionality of the conjunction between ‘others’ and care, we must be wary of too quickly embracing an ‘ethics of care that will keep women within patriarchy’s clutch’.[112] Indeed, Drucilla Cornell takes Catharine MacKinnon and Robin West to task for an essentialist mapping of the feminine onto femaleness.[113]

As these variant positions on care suggest, there is not just one strand of feminism, but many, which are reflected in a multifaceted feminist jurisprudence and which inform ethical understandings differently. For example, most feminist liberal legal scholarship, a strand of feminism which itself embraces manifold perspectives, acknowledges the separation between public and private qua domestic life, and accepts the privileged position accorded to the market and the invisible role of power.[114] In contrast, most postmodern feminist legal scholarship, including poststructuralism, rejects foundational causal accounts and categorisations of the kind that abound within legal and ethical frameworks, which necessarily include positivistic accounts of the separation between public and private law.[115] Postmodernists have focused on critiquing essentialised and rigid depictions of women, such as the Gilliganesque idea that care is a fixed characteristic of women’s identity. While postmodernism does not deny the reality of the oppression to which many women are subjected, it rejects the idea that victimhood can constitute a fixed characteristic of women’s identity, any more than caring.[116]

Although eschewing simplistic taxonomies and rigid positions, as well as a progressivist perspective on feminism itself, I have identified freedom and independence as key feminist values that do not appear within the cluster of values associated with the ‘fictive feminine’. Positive concepts, such as autonomy, agency and resistance, enable women to move beyond social straitjackets and a notion of victim feminism: ‘Without such a potential, feminism would be impossible in a sexist society’.[117] However, while freedom and autonomy are affirming for many women, these concepts mask the fact that we are all interdependent to some extent.[118] Freedom also has connotations of the means–ends rationality of legal practice — that is, the freedom to employ any of the vast arsenal of techniques to advance the interests of one’s client. This representation of freedom accords with the masculinist ladder of rights critiqued by Gilligan, which can involve trammelling the interests of ‘others’.[119] Freedom is also the linchpin of contract theory, but we know that Ms Balfour’s freedom to contract was significantly less than that of her husband.

Cognisance must also be taken of the status of ‘unfreedom’ and dependence which has conventionally been accorded to all those who are ‘others’ to benchmark men. Furthermore, the classical liberal view of freedom, as expounded by Locke,[120] is contingent on owning property. Those who possess property and wealth have more choices available to them than those who do not. Similarly, the corporate client is always free to use its power and resources to its advantage, while poor people, among whom women, people from non-English speaking backgrounds and Aboriginal people are disproportionately represented, are denied access to formal justice. Consequently, there is a danger that extolling freedom and autonomy may reaffirm the aggression and competitiveness of the ‘imagined masculine’, which has been associated stereotypically with the public sphere.[121] As freedom and autonomy are not feminist values alone and are not always beneficent, they need to be deployed strategically.


Whether we are contemplating Utopia, or merely modest reformism, our telos must be the attainment of justice — in contexts where no-one is subordinated by reason of sex, race, ethnicity, sexuality, or any other facet of their identity. However much we might wish to infuse justice with care, it has to be remembered that we are not contemplating a Rawlsian pure space,[122] but a legal terrain that is saturated with the values of the ‘imagined masculine’ — adversarialism, competition, aggression, and the desire to win — values which are again being emphasised as a result of the ‘new corporatism’ and the ascendancy of the market.

I suggest that the linchpin of feminist ethics involves a conscious advertence to the ways in which power underpins law.[123] Thus, instead of deferring to the positivistic pretense of neutrality and universality in ‘public law’, we should interrogate it and expose its masculinist and corporatist partiality. Scrutiny may also reveal other facets of identity traditionally associated with the public sphere, particularly the white, heterosexual, able-bodied and middle-class orientation of the benchmark man.

Ideally, the caring, considerate and contextual voice should be an integral dimension of justice, not just an impoverished notion of the ‘fictive feminine’. Justice and care should not be regarded as dichotomous, but their conjunction appears to be at odds philosophically.[124] Alison Jaggar points out that ‘[m]ost proponents of the ethic of care ... dispute the possibility of any easy synthesis of care with justice’, for these concepts are conceptualised as two non-assimilable moral orientations.[125] The disjuncture brings us back to the sharply polarised values associated with public and private within liberal thought. Care retains overtones of necessity, the basis on which Aristotle excluded women and slaves from the polis, which was the locus of justice and the site of the realisation of the good life. Sara Ruddick elaborates on the differing moral orientations of justice and care:

The two moral orientations foster distinctive cognitive capacities, appeal to distinctive ideals of rationality, elicit distinctive moral emotions, presume distinctive conceptions of identity and relationships, recognize distinctive virtues, and make distinctive demands on institutions.[126]

Proponents of care thinking do not deny the significance of reason, as Jaggar points out.[127] However, there is not a corresponding degree of deference on the side of justice. Indeed, caring is treated largely as recessive in legal discourse.[128] It brings the body, with all its uncontrolled flows to the fore, in a way that is deemed corrosive of reason and legality. The dominant thinking in the public sphere has been shaped by benchmark men — who traditionally do not care, but are cared for. Their exclusive domination of the administration of justice for so long has enabled them to imbue legal discourses with the values of the ‘imagined masculine’. Similarly, the facilitative role of law has produced versions of justice that legitimise the competitive morality of the market while disguising the inequalities of power that the market produces.

It might be noted that the welfare state has been legitimated by care, as Wendy Brown points out,[129] although care, along with social justice, is fast disappearing from the contemporary political agenda. Caring concepts are not being replaced by some Aristotelian ideal of the good life but by a degraded idea of the ‘good’ based on privatisation, the ‘new corporatism’ and economic rationality. However, care itself is not an unqualified good, as Jaggar reminds us in her thoroughgoing critique, as it can be indulgent and even abusive in dyadic relations.[130] Despite such shortcomings, care thinking has made valuable contributions to philosophical understandings of moral rationality.[131] Nevertheless, to expect care to be accepted by the ‘new corporatism’ would seem to be somewhat naive, to say the least, even though the rhetoric of care has won favour with a strand of contemporary managerialism.[132]

In contrast, particularity is broad enough to encompass care, as well as corporeality. To bring the particular into constitutional law, the paradigmatic site of universality, is difficult, although not impossible. After all, dramatic assaults have been made on the strict positivism of the High Court, as typified by Sir Owen Dixon,[133] over the last couple of decades, even though a progressive judicial politics is no longer in the ascendancy. There is resistance to particularity, which is confused with partiality in the positivistic credo although, as suggested, this conflation is designed to serve an ideological purpose:

Yet we need to rethink as well how those particular circumstances are socially constructed. Perhaps the impoverishment of our vocabulary for discussing caring is a result of the way caring is privatized.[134]

Like care, particularity ‘involves a distinctive moral orientation toward another person or persons’.[135] Without the assertion of moral claims on behalf of others, caring does not transcend the particular.[136] Justice mandates a distillation of particularities, but not so that we lose sight of them altogether. It is necessary to return to the material base and test the validity of the abstract proposition each time, refining it, if necessary. This reflective movement allows us to view justice as a process, not just a finite end in itself.[137] Conducting a dialogue with the ‘other’ can produce a changed conceptualisation of justice — that is, mimetic justice,[138] an idea that captures an ethical feminist imaginary.

In this context, mimesis is not to be understood as mimicry, but as a taking on board of the metaphors of ‘the other’ and creating something new.[139] Mimesis eschews mere co-option for, in the words of Cornell, it represents a ‘non-violent ethical relation to what is Other’.[140] Bringing in the narratives, experiences and perspectives of formerly objectified others is deeply corrosive of the bland constitutionalised abstractions that presently parade across legal texts. By naming corporate exploitation and violence, for example, mimetic justice can expose private power, which is effectively either camouflaged or normalised by the ostensibly neutral abstractions and technologies of public law, including constitutionalisation. Such discursive practices may not counteract the insidiousness of the ‘new corporatism’, which is a massive global phenomenon, but they can make chinks in the corporatist armour and encourage the emergence of a new ethical sensibility within public law discourse.

While the injection of the language of care and concern into public law has many attractions for feminists, its close association with the ‘fictive feminine’ has caused me to query it. Furthermore, it is unlikely that an expressly caring voice could presently be heard above the tintinnabulations in favour of the ‘new corporatism’. Particularity is only a notch away from care, but it allows cognisance to be taken of subjectivity, corporeality and situated identities, as well as the materiality of context, and care itself in selected instances. Furthermore, particularity connects with prevailing legal discourses in ways that care does not, as suggested in the case of administrative law, particularly discrimination law. At the same time, particularity challenges universalistic, normative and positivistic accounts, with the aim of producing new legal meanings. By incorporating the perspectives of ‘the other’ by means of a dialogue between the universal and the particular, justice becomes a mimetic act. Feminist ethics therefore does have something to offer public law, albeit nothing as simplistic as an instantaneous solution.

[*] BA (Hons) (Syd), LLB (NSW), LLM (Yale), FASSA; Professor of Law and Legal Studies, La Trobe University. Paper presented at a workshop entitled ‘Constitutional Law, Administrative Law and Institutional Ethics: The Role of Feminist Values’, organised by Associate Professor Margaret Allars, University of Sydney, 16–18 April 1998. I would like to thank all the contributors, particularly Kathryn McMahon, for their helpful comments. The paper was also presented at the 16th Annual Law and Society Conference, La Trobe University, Melbourne, 7–9 December 1998. I would like to thank Jan Doust for research assistance.

[1] Sir Frederick Pollock, Jurisprudence and Legal Essays (A L Goodhart ed, 1961) 51.

[2] Alan Watson, The State, Law and Religion: Pagan Rome (1992) 24.

[3] Ulpian (Domitius Ulpianus) is one of the Roman jurists attributed with authorship of The Digest of Justinian. See E C Clark, History of Roman Private Law: Part I — Sources (first published 1906, 1990 ed) 135f; Hans Julius Wolff, Roman Law: An Historical Introduction (1951) 138–42 et passim; H F Jolowicz, Historical Introduction to the Study of Roman Law (1965) 402–3.

[4] The Digest of Justinian (Theodor Mommsen, Paul Krueger and Alan Watson eds, 1985) vol 1, bk I, ch 8, para l.

[5] Martin Loughlin, Public Law and Political Theory (1992) 4ff. While contemporary ideas about constitutionalism grounded a dichotomised approach to public law and private law, the division was by no means rigid. Blackstone, for example, included constitutional law in Book I of his Commentaries, while Book II is devoted to private property, Book III to private wrongs and Book IV to public wrongs: see Sir William Blackstone, Commentaries on the Laws of England (first published 1765, 12th ed, 1978).

[6] John Locke, The Second Treatise of Government (first published 1690, J W Gough 1976 ed), especially chh 7 and 9.

[7] William Twining, Blackstone’s Tower: The English Law School (1994) 163; Margaret Thornton, Portia Lost in the Groves of Academe Wondering What to Do about Legal Education (1991) 2–3; Harry Glasbeek and Reubon Hasson, ‘Some Reflections on Canadian Legal Education’ (1987) 50 Modern Law Review 777, 795.

[8] Arthurs and Kreklewich employ the term ‘the new economy’ to encompass these trends, which have occurred in Canada, New Zealand and Europe, as well as in Australia: see Harry Arthurs and Robert Kreklewich, ‘Law, Legal Institutions, and the Legal Profession in the New Economy’ (1996) 34 Osgoode Hall Law Journal 1.

[9] The anomalies arising from the private character of corporations are addressed in Sandra Berns and Paula Baron, Company Law and Governance: An Australian Perspective (1998). The suggestion that regulation be directed towards institutions per se, without regard for their public or private character, has been made as a preferable way of dealing with multinational corporations: see Charles Sampford, ‘Law, Institutions and the Public/Private Divide’ (1991) 20 Federal Law Review 185; Paul Loftus, ‘Common Heads of Obligation: An Institutional Law Construction of the Duties of Public Officials’ [1995] DeakinLawRw 12; (1995) 2 Deakin Law Review 255.

[10] See, eg, Frances Olsen, ‘The Family and the Market: A Study of Ideology and Legal Reform’ (1983) 96 Harvard Law Review 1497.

[11] The clearest statement of the liaison between government and the private business sector in the Australian context is found in Independent Committee of Inquiry into National Competition Policy, National Competition Policy (1993) (‘Hilmer Report’). See also Industry Commission, The Growth and Revenue Implications of Hilmer and Related Reforms: A Report by the Industry Commission to the Council of Australian Governments (1995).

[12] See generally Peter Williamson, Corporatism in Perspective: An Introductory Guide to Corporatist Theory (1989); Alan Cawson, Corporatism and Political Theory (1986).

[13] See, eg, Hans Kelsen, Introduction to the Problems of Legal Theory (Bonnie Litschewski Paulson and Stanley Paulson trans, 1992). Once again, however, it should be noted that the distinction should not be thought of as totally rigid. Austin, who made a significant contribution to analytic jurisprudence, takes issue with the strict Roman division between public and private law because of its inherent ambiguity, although the division, he notes, was also accepted by Continental jurists: see John Austin, The Province of Jurisprudence Determined (2nd ed, 1961) cvi–viii.

[14] Balfour v Balfour [1919] 2 KB 571, which is still good law in Australia, although the federal government announced in 1999 its intention to legitimise ‘private’ pre-nuptial, nuptial and post-nuptial agreements: Caroline Milburn, ‘Attack on New Family Legislation’, The Age (Melbourne), 11 September 1999, 3. See Family Law Amendment Bill 1999 (Cth).

[15] The separation between public and private life is central to Western political philosophy. For an overview, see Margaret Thornton, ‘The Cartography of Public and Private’ in Margaret Thornton (ed), Public and Private: Feminist Legal Debates (1995) 2. See also Jeff Weintraub and Krishan Kumar (eds), Public and Private in Thought and Practice: Perspectives on a Grand Dichotomy (1997); Katherine O’Donovan, Sexual Divisions in Law (1985); Olsen, above n 10.

[16] Balfour v Balfour [1919] 2 KB 571, 579 (Atkin LJ).

[17] Anne Barron, ‘Legal Discourse and the Colonisation of the Self in the Modern State’ in Anthony Carty (ed), Post-Modern Law: Enlightenment, Revolution and the Death of Man (1990) 107, 107.

[18] See, eg, Geoffrey Samuel and Jac Rinkes, Law of Obligations and Legal Remedies (1996) 32–5, 73–4.

[19] [1919] 2 KB 571.

[20] See, eg, Paddy Ireland, Ian Grigg-Spall and Dave Kelly, ‘The Conceptual Foundations of Modern Company Law’ in Peter Fitzpatrick and Alan Hunt (eds), Critical Legal Studies (1987) 149.

[21] See, eg, H L A Hart, The Concept of Law (1961) 253.

[22] Berns and Baron identify the law’s inability to come to terms with the multinational corporation as a significant dilemma of our times: above n 9, 503–4.

[23] See, eg, A V Dicey, Introduction to the Study of the Law of the Constitution (10th ed, 1961) 37.

[24] [1919] 2 KB 571.

[25] Ibid 575 (Warrington LJ), 576–7 (Duke LJ), 578–80 (Atkin LJ). For a critique of this decision, see Michael Freeman, ‘Contracting in the Haven: Balfour v Balfour Revisited’ in Roger Halson (ed), Exploring the Boundaries of Contract (1996) 68.

[26] Balfour v Balfour [1919] 2 KB 571, 579 (Atkin LJ).

[27] The benchmark male standard was developed to explain the concept of comparability in discrimination law: see Margaret Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (1990) 1.

[28] The issues are more than adequately dealt with elsewhere: see, eg, Tony Blackshield and George Williams, Australian Constitutional Law and Theory: Commentary and Materials (2nd ed, 1998); H P Lee and George Winterton, Australian Constitutional Perspectives (1992).

[29] Iris Marion Young, Justice and the Politics of Difference (1990) 104.

[30] [1984] EOC 92-002.

[31] Relying on the inconsistency provision, s 109 of the Constitution, the respondent argued that the Equal Opportunity Act 1977 (Vic) did not apply. The inconsistency argument was rejected by the High Court: Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8; (1980) 142 CLR 237.

[32] [1984] EOC 92-030.

[33] The Tribunal awarded the complainant damages of $46,500, being $35,000 for the victimisation and $11,500 for the discrimination: ibid 75,564.

[34] [1980] HCA 8; (1980) 142 CLR 237.

[35] [1983] HCA 15; (1983) 153 CLR 280.

[36] (1984) 158 CLR 447.

[37] [1983] HCA 15; (1983) 153 CLR 280.

[38] University of Wollongong v Metwally (1984) 158 CLR 447, 470 (Murphy J), 481 (Deane J).

[39] It was informally reported to the writer by staff of the NSW Anti-Discrimination Board that Mr Metwally felt that he had been destroyed by his experience of the Australian legal system and had abandoned his studies.

[40] See, eg, Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1; Wik v Queensland; The Thayorre People v Queensland (1996) 187 CLR 1.

[41] Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (1997).

[42] Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1. For a damning indictment of the decision, see Valerie Kerruish, ‘Responding to Kruger: The Constitutionality of Genocide’ (1998) 11 Australian Feminist Law Journal 65.

[43] Lewis LaRue, Constitutional Law as Fiction: Narrative in the Rhetoric of Authority (1995).

[44] Loughlin, above n 5, 20–1, 230.

[45] Jeremy Bentham, Of Laws in General (H L A Hart ed, 1970); A V Dicey, above n 23, especially ch 1. In beginning his excursus into the nature of constitutional law, Dicey posed the question as to whether or not constitutional law could be considered a legitimate strand of legal science: at 22. He went on, at 24, to explain that:

[C]onstitutional law consisted of two elements: the one element, here called the ‘law of the constitution,’ is a body of undoubted law; the other element, here called the ‘conventions of the constitution,’ consists of maxims of practice which, though they regulate the ordinary conduct of the Crown, of Ministers, and of other persons under the constitution, are not in strictness laws at all.

The idea of law as science underpinned nineteenth century legal positivism. Austin, for example, referred to the ‘science of ethics’, the ‘science of deontology’, the ‘science of law and morality’, the ‘science of legislation’ and the ‘science of jurisprudence’: see generally Austin, above n 13.

[46] A proposition supported by Hart’s definition of positivism: see Hart, above n 21, 253 et passim.

[47] See, eg, Margaret Baldwin, ‘Public Women and the Feminist State’ (1997) 20 Harvard Women’s Law Journal 47; Tracey Higgins, ‘Democracy and Feminism’ (1997) 110 Harvard Law Review 1657; Deborah Cass and Kim Rubenstein, ‘Representation/s of Women in the Australian Constitutional System’ [1995] AdelLawRw 2; (1995) 17 Adelaide Law Review 3.

[48] Loughlin, above n 5, 230.

[49] David Gilbert Benjafield and Harry Whitmore, Principles of Australian Administrative Law (4th ed, 1971) 1.

[50] A notable example is the finding that differential treatment on the basis of pregnancy did not constitute sex discrimination. The relevant distinction was held to be between ‘pregnant and non-pregnant’ persons, not women and men: see General Electric v Gilbert, [1976] USSC 209; 429 US 125 (1976).

[51] I have dealt with the issue at length in Thornton, The Liberal Promise, above n 27.

[52] Alison Jaggar, Feminist Politics and Human Nature (1983) 143–4.

[53] See, eg, Administrative Appeals Tribunal Act 1975 (Cth); Administrative Decisions (Judicial Review) Act 1977 (Cth); Federal Court of Australia Act 1976 (Cth).

[54] Clare Burton, Redefining Merit (1988); Margaret Thornton, ‘Affirmative Action, Merit and the Liberal State’ (1985) 2 Australian Journal of Law & Society 28; New South Wales, Directions for Change: Review of New South Wales Government Administration, Parl Paper No 290 (1978) (‘Wilenski Report’).

[55] For an overview of the changed ethos, see Women’s Co-ordination Unit for the NSW Women’s Advisory Council to the Premier, A Decade of Change: Women in New South Wales 1976–86 (1987).

[56] [1919] 2 KB 571.

[57] Aristotle, Politics (John Warrington ed and trans, 1959) [1252b], [1254b].

[58] Disability Discrimination Act 1992 (Cth) ss 74–5; Racial Discrimination Act 1975 (Cth) ss 24C–D; Sex Discrimination Act 1984 (Cth) ss 55–6; Anti-Discrimination Act 1977 (NSW) s 106; Equal Opportunity Act 1995 (Vic) s 112; Anti-Discrimination Act 1991 (Qld) s 158; Equal Opportunity Act 1984 (SA) s 27; Equal Opportunity Act 1984 (WA) ss 878; Sex Discrimination Act 1994 (Tas) ss 44–5; Discrimination Act 1991 (ACT) s 83; Anti-Discrimination Act 1992 (NT) s 78.

[59] For example, both South Australia and Western Australia have Equal Opportunity Tribunals, Queensland has an Anti-Discrimination Tribunal, and the Australian Capital Territory has a Discrimination Tribunal.

[60] Jill Anderson, ‘Something Old, Something New, Something Borrowed ... The New South Wales Administrative Decisions Tribunal’ (1998) 5 Australian Journal of Administrative Law 97; John Daley, ‘Abolishing a Specialist Tribunal’ (1996) 7 Public Law Review 73; Justice Michael Kirby, ‘Abolition of Courts and Non-Reappointment of Judicial Officers’ (1995) 12 Australian Bar Review 181.

[61] Note, for example, that the Equal Opportunity Tribunal (NSW) has been replaced by the Administrative Decisions Tribunal (NSW) by virtue of the Administrative Decisions Tribunal Act 1997 (NSW), and the Equal Opportunity Tribunal (Vic) has been replaced by the Victorian Civil and Administrative Tribunal by virtue of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

[62] This argument is developed more fully in Thornton, The Liberal Promise, above n 27, especially 166–70.

[63] I am using the Classical Greek word, as used by Aristotle, above n 57, to denote the business of government of the state. The polis is contrasted with the oikos, the household or private realm. My use of the word polis distinguishes governance from the market and civil society, which are also sometimes loosely included within the public sphere to distinguish these sites from the oikos, although they are more commonly categorised as ‘private’, particularly within the ‘new corporatism’. In fact, they are both permeable, in a way that disrupts the notion of a strict public–private ‘dichotomy’.

[64] See, eg, Carole Pateman, The Disorder of Women: Democracy, Feminism, and Political Theory (1989); Lynn Hunt (ed), Eroticism and the Body Politic (1991).

[65] I am using the word ‘technologies’ here to emphasise its etymology — from the Greek technç — meaning something crafted, or the product of skill or cunning, in order to capture the contrived character of the phenomena.

[66] I have addressed this fear in relation to the legal profession in Margaret Thornton, Dissonance and Distrust: Women in the Legal Profession (1996).

[67] The erosion of employment benefits, including tenure and a high degree of autonomy, conventionally associated with academic staff, is well illustrated by the practices of the ‘new corporatism’. Deans and unit heads, who are responsible for the policing of staff, are now likely to be appointed, rather than elected, and are themselves likely to be subject to supervision by an additional layer of control, comprising ‘mega-deans’ and pro-Vice-Chancellors who, in turn, are answerable to the Vice-Chancellor — the chief executive of the corporation. Clark and Tsamenyi refer to this transformation of the academy as ‘creeping corporatism’: Eugene Clark and Martin Tsamenyi, ‘Legal Education in the Twenty-First Century: A Time of Challenge’ in Peter Birks (ed), Pressing Problems in the Law: What Are Law Schools For? (1996) vol 2, 17, 43.

[68] Thornton, Dissonance and Distrust, above n 66, 151.

[69] Arthurs and Kreklewich, above n 8, 44; Marc Galanter and Thomas Palay, Tournament of Lawyers: The Transformation of the Big Law Firm (1991) 16–17; David Weisbrot, Australian Lawyers (1990) 257–66.

[70] Anthony Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession (1993) 273; Alan Freeman, ‘A Critical Look at Corporate Practice’ (1987) 37 Journal of Legal Education 315.

[71] Deborah Rhode, ‘Ethical Perspectives on Legal Practice’ (1985) 37 Stanford Law Review 589, 631.

[72] Kronman, above n 70. Cf Mary Ann Glendon, A Nation under Lawyers: How the Crisis in the Legal Profession Is Transforming American Society (1994).

[73] Kronman, above n 70, 14–16.

[74] David Luban, ‘The Adversary System Excuse’ in David Luban (ed), The Ethics of Lawyers (1994) 139, 164–5.

[75] Ibid 168f.

[76] For a comparatively progressive example of the genre, see Julian Disney et al, Lawyers (2nd ed, 1986).

[77] Margaret Thornton, ‘Technocentrism in the Law School: Why the Gender and Colour of Law Remain the Same’ (1998) 36 Osgoode Hall Law Journal 369.

[78] Charles Derber, ‘Managing Professionals: Ideological Proletarianization and Mental Labor’ in Charles Derber (ed), Professionals as Workers: Mental Labor in Advanced Capitalism (1982) 167. I have elaborated on the point in Thornton, ‘Technocentrism in the Law School’, above n 77.

[79] Tom Campbell, for example, argues that the amoral thesis is profoundly mistaken. He seeks to revise legal positivism so that it is grounded in an ethical consciousness: see Tom Campbell, The Legal Theory of Ethical Positivism (1996). However, he does not address the enormous pressures on lawyers induced by bureaucratised mega-firms, ‘billable hours’ and the ‘new corporatism’.

[80] See, eg, Aristotle, Nichomachean Ethics (Drummon Percy Chase trans, 1937) especially bk II.

[81] Ernest Weinrib, The Idea of Private Law (1995) 111, a proposition based on Immanuel Kant, The Metaphysics of Morals (first published 1785, Mary Gregor trans, 1991).

[82] Weinrib, above n 81, 111.

[83] For a detailed treatment of the paradox, see William Simon, ‘The Ideology of Advocacy: Procedural Justice and Professional Ethics’ [1978] Wisconsin Law Review 30. See also Jill Hunter and Kathryn Cronin, Evidence, Advocacy and Ethical Practice: A Criminal Trial Commentary (1995); Stephen Parker and Charles Sampford (eds), Legal Ethics and Legal Practice: Contemporary Issues (1995); David Luban (ed), The Ethics of Lawyers (1994).

[84] Marinos Diamantides, ‘Ethics in Law: Death Marks on a “Still Life” — A Vision of Judgment as Vegetating’ (1995) 6 Law and Critique 209.

[85] Rand Jack and Dana Jack, Moral Vision and Professional Decisions: The Changing Values of Women and Men Lawyers (1989).

[86] See, eg, Zygmunt Bauman, Postmodern Ethics (1993).

[87] For an illuminating analysis of the inventive role of lawyers in relation to corporatist interests, see Maureen Cain, ‘The Symbol Traders’ in Maureen Cain and Christine Harrington (eds), Lawyers in a Postmodern World (1994) 15. See also the other essays in the collection.

[88] To illuminate the point, see Ann Daniel, Scapegoats for a Profession: Uncovering Procedural Injustice (1998).

[89] Felix Cohen, Ethical Systems and Legal Ideals: An Essay on the Foundations of Legal Criticism (1959) 3ff.

[90] See, eg, Anna Chapman, ‘Sexuality and Workplace Oppression’ [1995] MelbULawRw 23; (1995) 20 Melbourne University Law Review 311; Bridget Gilmour-Walsh, ‘Exploring Approaches to Discrimination on the Basis of Same-Sex Activity’ (1994) 3 Australian Feminist Law Journal 117; Kristen Walker, ‘The Participation of the Law in the Construction of (Homo)Sexuality’ (1994) 12 Law in Context 52.

[91] See, eg, Adrien Wing (ed), Critical Race Feminism: A Reader (1997); Melinda Jones and Lee Ann Basser Marks (eds), Disability, Divers-ability, and Legal Change (1999); Paul Komesaroff, Philipa Rothfield and Jeanne Daly (eds), Reinterpreting Menopause: Cultural and Philosophical Issues (1997).

[92] See, eg, Margaret Thornton, ‘Feminist Jurisprudence: Illusion or Reality’ (1986) 3 Australian Journal of Law & Society 5; Margot Stubbs, ‘Feminism and Legal Positivism’ (1986) 3 Australian Journal of Law & Society 63.

[93] Regina Graycar and Jenny Morgan, ‘Legal Theory’ in Barbara Caine (ed), Australian Feminism: A Companion (1998) 188; Margaret Thornton, ‘The Development of Feminist Jurisprudence’ (1998) 9 Legal Education Review 171.

[94] Ann Curthoys, ‘Gender in the Social Sciences in Australia’ in Academy of the Social Sciences in Australia, Challenges for the Social Sciences and Australia (1998) vol 2, 177, 187–9.

[95] Thornton, Dissonance and Distrust, above n 66. Drucilla Cornell states that ‘[w]oman and women cannot be separated from the fictions and metaphors in which she and they are presented, and through which we portray ourselves’: Drucilla Cornell, Beyond Accommodation: Ethical Feminism, Deconstruction, and the Law (1991) 3. The negative and disempowering connotations of the ‘fictive feminine’ cause me to resist the conflation, although we may wish to embrace selective characteristics of the feminine from time to time.

[96] In relation to the questioning of binary systems, see above n 15.

[97] For a thoroughgoing critique of the ‘Man of Reason’, see Genevieve Lloyd, The Man of Reason: ‘Male’ and ‘Female’ in Western Philosophy (1984).

[98] See, eg, Jane Kelsey, Rolling Back the State: Privatisation of Power in Aotearoa/New Zealand (1993).

[99] Thornton, Dissonance and Distrust, above n 66.

[100] Ibid 161. See also Ann Game and Rosemary Pringle, Gender at Work (1983) 18–19 et passim.

[101] Jack and Jack, above n 85, 10f. Cf discussion of women judges by Alison Young, ‘Feminism, Pluralism and Administrative Law’ in Michael Taggart (ed), The Province of Administrative Law (1997) 331, 349–56.

[102] [1919] 2 KB 571.

[103] Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development (1982). See also Nancy Chodorow, The Reproduction of Mothering: Psychoanalysis and the Sociology of Gender (1978); Nel Noddings, Caring: A Feminine Approach to Ethics & Moral Education (1984).

[104] See, eg, Carrie Menkel-Meadow, ‘Portia in a Different Voice: Speculations on a Women’s Lawyering Process’ (1985) 1 Berkeley Women’s Law Journal 39, 54–5; Leslie Bender, ‘From Gender Difference to Feminist Solidarity: Using Carol Gilligan and an Ethic of Care in Law’ (1990) 15 Vermont Law Review 1.

[105] Mary Joe Frug, ‘Progressive Feminist Legal Scholarship: Can We Claim “A Different Voice”?’ in Mary Joe Frug, Postmodern Legal Feminism (1992) 30; Joan Williams, ‘Deconstructing Gender’ (1989) 87 Michigan Law Review 797.

[106] Jean-Jacques Rousseau, Émile (first published 1762, Barbara Foxley trans, 1993). For a history of the theory of sexual complementarity, see Londa Schiebinger, The Mind Has No Sex? Women in the Origins of Modern Science (1989).

[107] Mary Wollstonecraft, A Vindication of the Rights of Woman (first published 1792, Carol Poston 1988 ed).

[108] Catharine MacKinnon, Feminism Unmodified: Discourses on Life and Law (1987) 39.

[109] Gilligan, above n 103.

[110] See, eg, Judy Wajcman, Managing Like a Man: Women and Men in Corporate Management (1999) especially 55ff; Amanda Sinclair, Doing Leadership Differently: Gender, Power and Sexuality in a Changing Business Culture (1998) especially 100ff.

[111] See, eg, Department of Health v Arumugam [1988] VicRp 42; [1988] VR 319.

[112] Rosemarie Tong, Feminine and Feminist Ethics (1993) 226.

[113] Cornell, above n 95, 100, 126 et passim.

[114] See, eg, Regina Graycar and Jenny Morgan, The Hidden Gender of Law (1990); Jocelynne Scutt, Women and the Law: Commentary and Materials (1990); Susan Atkins and Brenda Hoggett, Women and the Law (1984).

[115] Pheng Cheah, David Fraser and Judith Grbich (eds), Thinking Through the Body of the Law (1996); Cornell, above n 95; Carol Smart, Feminism and the Power of Law (1989).

[116] See, eg, Mary Hawkesworth, ‘Knowers, Knowing, Known: Feminist Theory and Claims of Truth’ (1989) 14 Signs: Journal of Women in Culture and Society 555; Sharon Marcus, ‘Fighting Bodies, Fighting Words: A Theory and Politics of Rape Prevention’ in Judith Butler and Joan Scott (eds), Feminists Theorize the Political (1992) 385.

[117] Susan Williams, ‘A Feminist Reassessment of Civil Society’ (1997) 72 Indiana Law Journal 417, 427.

[118] Ruth Lister, ‘Women, Economic Dependency and Citizenship’ (1990) 19 Journal of Social Policy 445, 446.

[119] Gilligan, above n 103, 19 et passim.

[120] Locke, above n 6, ch 4.

[121] For a useful discussion of the ambiguities of autonomy for feminism, see John Christman, ‘Feminism and Autonomy’ in Dana Bushnell (ed), ‘Nagging’ Questions: Feminist Ethics in Everyday Life (1995) 17.

[122] Rawls’ theory of justice is based on human beings occupying the ‘original position’ or a state of nature in which they are untainted by contemporary values, such as those emanating from differences in property and status: John Rawls, A Theory of Justice (1972).

[123] Smart, above n 115, made an important contribution to the literature in identifying the power of legal discourse, with particular regard to issues of female corporeality. I am seeking to expose the way the power of law also operates through the somewhat more abstract sites of ‘public law’.

[124] Susan Moller Okin presents a useful critique of some of the key political philosophers who have contributed to the perpetuation of the dichotomy: Susan Moller Okin, ‘Reason and Feeling in Thinking about Justice’ (1989) 99 Ethics 229.

[125] Alison Jaggar, ‘Caring as a Feminist Practice of Moral Reason’ in Virginia Held (ed), Justice and Care: Essential Readings in Feminist Ethics (1995) 179, 187.

[126] Sara Ruddick, ‘Injustice in Families: Assault and Domination’ in Virginia Held (ed), Justice and Care: Essential Readings in Feminist Ethics (1995) 203, 204.

[127] Jaggar, above n 125, 181.

[128] An exception would be Lord Atkin’s famous neighbour principle in Donoghue v Stevenson [1932] AC 562. But note that this is the same Lord Atkin who was quoted in the context of Balfour v Balfour [1919] 2 KB 571 for his less than caring attitude towards a wife who sought to enforce a maintenance agreement.

[129] Wendy Brown, Manhood and Politics: A Feminist Reading in Political Theory (1988) 183.

[130] Jaggar, above n 125, 192.

[131] Ibid 198.

[132] See, eg, Industry Task Force on Leadership and Management Skills, Enterprising Nation: Renewing Australia’s Managers to Meet the Challenges of the Asia-Pacific Century (1995) (‘Karpin Report’).

[133] ‘It may be that the Court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism’: Sir Owen Dixon, Jesting Pilate (1965) 247.

[134] Joan Tronto, ‘Women and Caring: What Can Feminists Learn about Morality from Caring?’ in Virginia Held (ed), Justice and Care: Essential Readings in Feminist Ethics (1995) 101, 113.

[135] Jaggar, above n 125, 180.

[136] Cf Helga Kuhse, ‘Clinical Ethics and Nursing: “Yes” to Caring, but “No” to a Female Ethics of Care’ (1995) 9 Bioethics 207, 210.

[137] Cf Paul Patton, ‘Post-Structuralism and the Mabo Debate: Difference, Society and Justice’ in Margaret Wilson and Anna Yeatman (eds), Justice & Identity: Antipodean Practices (1995) 153, 169.

[138] Cornell, above n 95, 147–52.

[139] Irigaray points out that the only subject position available to the feminine has been one of mimicking the masculine because the subjectivity of the ‘other’ is always denied: Luce Irigaray, This Sex Which Is Not One (Catherine Porter and Carolyn Burke trans, 1985) 76.

[140] Cornell, above n 95, 148.

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