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Feminism and the Flat Law Theory

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Abstract

This article examines two modalities of law, depicted spatially as the vertical and the horizontal. The intellectual background for seeing law in vertical and horizontal dimensions is to be found in much socio-legal scholarship. These approaches have challenged the modernist, legal positivist and essentially vertical view of law as a system of imperatives emanating from a hierarchically superior source such as a sovereign. In keeping with the socio-legal critical tradition, but approaching it from the perspective of legal philosophy, my aim is to address three matters. First, why is vertical law problematic for feminists? Second, what are the theoretical characteristics of law in its horizontal register? Third, how is an appreciation of this ‘flat’ law useful for feminist legal theory and practice? In particular, I consider the ways in which feminist legal theory operating in the horizontal dimension can transgress, without transcending, the vertically determined perimeters of the nation state.

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Notes

  1. It is true, as one of the referees has usefully pointed out, that there is a “heuristic value in analysing law as a separate entity whilst not maintaining such a separation is pre-theoretic or necessary”.

  2. David Nelken clarifies the similarities and differences between Ehrlich and Pound by explaining that Ehrlich distinguishes between two types of law, that which is legislated and the local, plural, obligatory normative orders engaged with by citizens. Pound, on the other hand, distinguishes only between two aspects of official law—how it is represented “in books” and how it is engaged with “in action” (Nelken 1984). Thanks to Martin Krygier for bringing this point and the reference to my attention.

  3. For instance, the values underpinning the ‘reasonable’ person, ‘human’ rights, or legal personality in specific contexts (Naffine 1997, 2003). Even where gender is institutionally recognised, as in ‘gender mainstreaming’, it can operate as merely a bureaucratic strategy which can “tame and deradicalise claims to equality” (Charlesworth 2005, p. 2).

  4. For instance, the use of the partial defence of provocation against women, and the unwillingness of judges to apply it to gendered violence except where the masculinity of a killer was under threat by a ‘homosexual advance’ (Morgan 1997; De Pasquale 2002). Or, the lack of recognition of gender-specific harms in areas of international law (Gardam and Jarvis 2001; Orford 2002; Charlesworth and Chinkin 2000).

  5. For instance, the forcing of lesbian and gay political activism towards the agenda of same-sex marriage (Loader 2004; Auchmuty 2007; Boyd and Young 2006).

  6. Thanks to Wendy Larcombe for this point.

  7. Petersen says that “the term legal polycentricity indicates an understanding of legal norms – or legal sources – as being engendered by different, overlapping, coexisting, cooperating and/or competing centres” and likens polycentricity to Falk Moore’s semi-autonomous normative fields (1997, p. 154, cf. Falk Moore 1973). This is to be distinguished from Lon Fuller’s discussion of “polycentric” situations which do not admit of an X or Y solution, but rather raise issues of proper distribution among several parties. According to Fuller, these situations test the limits of adjudication (and are better settled by arbitration or negotiation) (1978, pp. 393–404).

  8. Thanks to one of the referees and Tony Connolly for prompting me to clarify the relationship between contemporary positivism and the vertical view of law.

  9. The I–you is also a ‘we’, temporarily posited by the meeting. Vertical law governs how people relate, for instance through tort law or criminal law, and establishes formalised categories of relationship such as marriages or business partnerships. Its transcendental subject is also a ‘we’ as in “we the people”, unified and reified for the purpose of promoting the myth that the law is of the people. None of this poses a particular challenge to the unity of vertical law. Looked at horizontally, however, the ‘I–you’ meeting creates something, a ‘we’, which remains however, a plurality—two or more unique persons with an existence beyond the formal law. There is obviously a great deal that could be said about this, and I thank the referee who raised this intriguing issue.

  10. As Martin Krygier has pointed out to me, insofar as such systems are themselves centralised and institutionalised, they might be regarded as alternative vertical systems. For instance, as an institution, the Roman Catholic church is characterised by strong verticality. But of course, as with law, a description of that institution should not be taken to describe the phenomenon which is Catholicism.

  11. In the use of ‘ugly’ neologisms, I take my lead from Kevin Gray, who wrote of “propertising” resources which are excludable (Gray 1991, p. 256).

  12. Identifying all of the ‘contextual’ horizontal elements as ‘the social’ in this Figure is, of course, a significant over-simplification. In the ‘social’, I include everything to do with the construction of normativity and knowledge in the broadly Western consciousness, including some things which others would categorise as belonging to the cosmos rather than to human society, such as our constructions of science and scientific norms and all moral and religious imperatives. But even if my assumption of the human/social basis of all perception/knowledge/morality is rejected, that does not necessarily impede the horizontalising moment; rather, we would simply need a more complex notion of these ‘environmental’ factors and would also then question the purely social nature of human law

  13. It would be possible to say much more about the relationship between what I am proposing here and Luhmann’s work on legal and other systems. However, because of the complexity of that question, I must leave it to another occasion.

  14. Thanks to Joanne Conaghan for this image, and her explanation of astigmatism.

  15. Thanks to Kevät Nousiainen for making this point.

  16. Here I gloss over some of the more technical discussions within legal philosophy. For instance, Raz talks of decisions as “exclusionary reasons”, while Kelsen calls them “individual norms”. I have simplified my discussion so that it coheres more with what I perceive to be common usage among non-analytically-minded scholars and practitioners.

  17. Clearly, the extent to which law is really secular, even in nations with no established religion, is contentious.

  18. Women’s International War Crimes Tribunal for the Trial of Japan’s Military Sexual Slavery, Case no. PT-2000-1-T, delivered 4 December 2001, The Hague. (WIWCT 2001). The judges were Gabrielle Kirk MacDonald, Carmen Argibay, Christine Chinkin and Willy Mutunga.

  19. This was exacerbated by the refusal of the Japanese government to recognize the legal responsibility of the state (Dolgopol 2003).

  20. The inserted quotation is from Falk (1988, p. 29), as cited in WIWCT (2001, n. 32).

  21. In particular, Lundy and McGovern discuss the book of interviews and case studies produced by the Ardoyne Commemoration Project, Northern Ireland. The truth-telling aspect of participatory action research aims to use community participation to uncover truths which would be otherwise inaccessible.

  22. For an especially interesting and rather large-scale example of a participatory claim for redress and compensation, see the report by Reg Graycar and Jane Wangmann on the Grandview Agreement (2007).

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Acknowledgements

Research for this article was funded by an Australian Research Council Discovery Grant (DP0451107). The paper was originally written for the AHRC Centre for Law, Gender and Sexuality conference ‘Up Against the Nation States of Feminist Legal Theory’, held at the University of Kent, June/July 2006. Many thanks to the conference organisers for the opportunity to present this paper and to the participants for their many useful questions, suggestions and comments. Versions of the paper have also been presented on three occasions in Australia in 2008: at the University of Queensland School of Law Seminar Series in May, the Australian Society of Legal Philosophy conference hosted by Monash University in June, and the Julius Stone Institute of Jurisprudence seminar series in July. Again, I received some very useful feedback on these occasions. Tina Dolgopol provided information, materials and feedback concerning the Women’s International War Crimes Tribunal. For their comments on various written versions of the paper, I would like also to thank Laura Grenfell, Mary Heath, Niki Lacey, Ngaire Naffine, Hanne Petersen, Emilios Christodoulidis, Jonathan Crowe, Wendy Larcombe, Tony Connolly, Kevin Walton and Reg Graycar. The anonymous referees contributed many constructive and thought-provoking comments, and I thank them for the care they put into their reports. Finally, I would like to thank the editors of FLS, in particular Rosemary Hunter and Emily Grabham, for their comments and their meticulous work on the text.

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    Margaret Davies

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Davies, M. Feminism and the Flat Law Theory. Fem Leg Stud 16, 281–304 (2008). https://doi.org/10.1007/s10691-008-9096-z

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