- See, for example, Benhabib Sevla Critique, Norm and Utopia: A Study of the Foundations of Critical Theory Columbia University Press New York 1986 p 340; Benhabib Seyla ‘The Generalized and the Concrete Other: The Kohlberg-Gilligan Controversy and Feminist Theory’ in Benhabib Seyla, Cornell Drucilla (eds) Feminism as Critique: Essays on the Politics of Gender in Late Capitalist Societies Polity Press Oxford 1987 p 77; Noddings Nel Caring: A Feminist Approach to Ethics and Moral Education Berkeley University of California Press 1984 pp 1–3, 26–27, 36, 55, 66. Feminist legal scholars influenced by Gilligan include West Robin L Caring for Justice New York NYU Press 1997; Minow Martha Making all the Difference: Inclusion and Exclusion in American Law Ithaca Cornell University Press 1990. Compare Diprose Rosalyn The Bodies of Women: Ethics, embodiment and sexual difference Routledge London 1994.
- Gilligan Carol In a Different Voice: Psychological Theory and Women's Development Harvard University Press Cambridge 1982. Adopting the experimental method developed by her PhD supervisor and former mentor, Laurence Kohlberg, Gilligan used responses to standard moral dilemmas to explore the moral reasoning of girls and women. Whereas Kohlberg's male subjects moved from a ‘morality of association’ through reasoning based upon the idea of a ‘social contract’ to a meta-ethical focus upon principles (Stage 6), Gilligan's female subjects did not follow this pattern. Kohlberg had discarded the data from his female subjects, because they did not advance beyond the reasoning associated with the morality of association. Gilligan examined their reasoning more carefully and argued that as subjects mature beyond ‘Stage 4’ two different meta-ethical pathways are available. While the first involved the use of hierarchically ranked principles, the second involved a focus upon relationships and the importance of resolving conflicts while preserving relationships.
- This term is apt to describe both Gilligan's account and that of Kohlberg and refers to a careful analysis of the meaning and justification of ethical claims.
- See Kohlberg Laurence The Philosophy of Moral Development Harper & Row San Francisco 1981; Rawls John A Theory of Justice Belknap Press Cambridge 1971.
- Generally see Gilligan, above note 2.
- For example the Women's Christian Temperance Union in Australia and the United States.
- See Roberts Jan ‘Maybanke Anderson: The Domestic and the Public’ in Irving Helen (ed) A Woman's Constitution: Gender & History in the Australian Commonwealth Sydney Hale & Iremonger 1996 at 21 and Headon David ‘No Weak-kneed Sister: Catherine Helen Spence and “Pure Democracy”’ in Irving at 42. As Nancy Fraser notes: ‘[E]lite bourgeois women… [built] a counter civil society of alternative women-only voluntary associations… in some respects, these associations aped the all-male societies… yet in other respects the women were innovative because they creatively used the… “private” idioms of domesticity and motherhood… as springboards for public activity’: Fraser Nancy Justice Interruptus: Critical Reflections on the ‘Postsocialist’ Condition Routledge New York 1997 p 74.
- Lake Marilyn ‘Personality, Individuality, Nationality: Feminist Conceptions of Citizenship 1902–1940’ (1994) 19 Australian Feminist Studies 25 at 28.
- It is sometimes termed the ‘morality of the ladder’, the ethic of care being the ‘morality of the web’: see Mahoney Kathleen E ‘Obscenity, Morals and the Law: A Feminist Critique’ (1984) 17 Ottawa Law Review 33 at p 35.
- See Rawls (1971) above note 4 pp 137–142; Rawls John ‘Justice as Fairness: Political not Metaphysical’ (1985) 14 Philosophy & Public Affairs pp 223–251.
- See note 1. Drakopoulou Maria ‘The Ethic of Care, Female Subjectivity and Feminist Legal Scholarship’ (2000) 8 Feminist Legal Studies 169 at pp 216–221 is perceptive on the problems of a relational jurisprudence: its foundation in a subjectivist epistemology and the risk that, in rejecting subjectivism, it must abandon the feminist project in law.
- MacKinnon Catharine Feminism Unmodified: Discourses on Life and Law Harvard University Press Cambridge 1987 p 30.
- DuBois Ellen, Dunlap Mary, Gilligan Carol, MacKinnon Catharine, and Menkel-Meadow Carrie ‘Feminist Discourse, Moral Values, and the Law—A Conversation’ (1985) 34 Buffalo Law Review 11 at 27. MacKinnon conflates negotiation and appeasement. See 4.0 ‘Meaning and difference: developing a feminist Public sphere ethic’ below.
- See the four typologies of caring in Fisher Berenice and Tronto Joan C ‘Towards a Feminist Theory of Caring’ in Abel Emily K and Nelson Margaret K (eds) Circles of Care: Work and Identity in Women's Lives University of New York Press Albany 1990 p 33.
- This is exemplified by the treatment of childcare expenses as ‘private’ and, therefore, not deductible except in the case of families with a primary breadwinner where they are deducted from the separate income of the homemaker in determining eligibility for the Family Tax Benefit Part B under A New Tax System (Family Assessment) Act 1999. See Stewart Miranda ‘Domesticating Tax Reform: The Family in Australian Tax and Transfer Law’ (1999) 21 Sydney' Law Review 453.
- See Waring Marilyn Counting for Nothing: What Men Value and What Women are Worth Wellington Allen & Unwin 1988. On its essential role in a capitalist economy see Galbraith John Kenneth ‘How the Economy Hangs on Her Apron Strings’ September 1975 Ms Magazine 37.
- The Sex Discrimination Act 1984 and the Affirmative Action (Equal Opportunity for Women) Act 1986 have had little effect on the earnings gender gap. On their failure see Thornton Margaret ‘The Seductive Allure of EEO’ in Grieve Norma, Burns Ailsa (eds) Australian Women: Contemporary Feminist Thought OUP Melbourne 1994 p 215; Thornton Margaret The Liberal Promise: Anti-Discrimination Legislation in Australia OUP Melbourne 1990.
- The balance is due to occupational segregation. See Anker Richard Gender and Jobs: Sex segregation of occupations in the world Geneva ILO 1998 159; Anker Richard ‘Theories of occupational segregation by sex: An overview’ (1997/3) 136 International Labor Review at www/ilo.org/.
- See Berns Sandra Women Going Backwards: Law and Change in a Family Unfriendly Society Aldershot Ashgate 2002 pp 51–88.
- Dowd Nancy Redefining Fatherhood NYU Press New York 2000 pp 204–5 describes mothers as ‘gatekeepers’ to men's relationship with their children.
- In March 2000 the ‘participation rate’ for Australian women aged 15 and over was 63.9 per cent. Data from Statistics Canada at www.statcan.ca/english/.
- See Hall Richard, Harley Bill and Whitehouse Gillian ‘Contingent Work and Gender in Australia: Evidence from the 1995 Australian Workplace Industrial Relations Survey’ (1998) 9 The Economic and Labour Relations Review 55 at 77. Anker (1998) above note 18 p 159 suggests Australian women's overrepresentation in sales and clerical work is higher than the OECD average.
- See Ellman Laurence M ‘The Theory of Alimony’ (1989) 77 Calif LR 1 at 46–49.
- See Hochschild Arlie The Second Shift: Working Parents and the Revolution at Home Viking New York 1989; Hochschild Arlie The Time Bind: When Work becomes Home and Home becomes Work Metropolitan Books New York 1997.
- See Berns above note 19 pp 16–20, 43–45. Also see Galbraith above note 16.
- Derrida Jacques ‘Force of Law: The “Mystical Foundation of Authority”’ in Cornell Drucilla, Rosenfeld Michel and Carlson David Gray (eds) Deconstruction and the Possibility of Justice New York Routledge 1992 p 3 at 28.
- See note 7.
- Lake Marilyn ‘Childbearers as Rights-bearers: feminist discourse on the rights of Aboriginal and non-Aboriginal mothers in Australia, 1920–50’ (1999) 8 Women's History Review 347 at 357 suggests that maternalist arguments backfired.
- See Stevenson Kim ‘Unequivocal Victims: The Historical Roots of the Mystification of the Female Complainant in Rape Cases’ (2000) 8 Feminist Legal Studies 343 at 353–363, Mack Kathy ‘“You Should Scrutinise Her Evidence with Great Care”: Corroboration of Women's Testimony about Sexual Assault’ in Easteal Patricia (ed) Balancing the Scales: Rape, Law Reform and Australian Culture Federation Press Sydney 1998 p 65, Hunter Rosemary, Mack Kathy ‘Exclusion and Silence’ in Naffine Ngaire (ed) Sexing the Subject of Law LBC Information Services Sydney 1997 p 185.
- Swain Shirlee ‘“I am Directed to Remind You of Your Duty to Your Family”: public surveillance of mothering in Victoria, Australia, 1920–40’ (1999) 8 Women's History Review 247 at p 253.
- See Bowlby John Maternal Care and Mental Health Schocken Books New York 1966.
- See Dworkin Ronald Law's Empire Belknap Press Cambridge 1986 pp 299–301; Rawls John ‘The Idea of an Overlapping Consensus’ (1987) 7 Oxford Journal of Legal Studies 1 pp 2–8.
- Rawls above note 4 p 461 speaks of the conduct appropriate to a good daughter or a good son.
- Rawls' overlapping consensus and Dworkin's equality of resources exemplify this. See Rawls above note 32 pp 28 and Dworkin above note 32 p 299.
- Boyd Susan B ‘Challenging the Public/Private Divide’ in Boyd Susan B (ed) Challenging the Public/Private Divide: Feminism, Law and Public Policy University of Toronto Press Toronto 1997 at 3 p 4.
- Fraser above note 7 p 81.
- On the rhetorical strategies of fathers' rights groups see Kaye Miranda and Tolmie Julia ‘The Discourse of Fathers' Rights Groups’ (1998) 22 Melbourne University Law Review 162.
- Rawls John above note 32 provides a liberal model, but does so at the cost of excluding otherness from the political.
- Habermas Jurgen ‘Three Normative Models of Democracy’ in Benhabib Seyla (ed) Democracy and Difference: Contesting the Boundaries of the Political Princeton University Press Princeton 1996 p 21–22.
- Generally see Rawls above note 32.
- Rawls John (1982) ‘Social Unity and Primary Goods’ in Sen Aymarta, Williams Bernard (eds) Utilitarianism and Beyond Cambridge University Press Cambridge at 159.
- Rawls above 32 p 17.
- Rawls above note 32 pp 2–8. Contrast with Rawls above note 4 p 3.
- Rawls above note 32 p 8.
- Rawls above note 32 p 8.
- The emphasis is upon the ‘liberties of the moderns’: see Cohen Joshua ‘Procedure and Substance in Deliberative Democracy’ in Benhabib above note 39 at 95 pp 97–99.
- Habermas above note 39 p 22.
- See Rousseau Jean-Jacques The Social Contract and Discourses (trans with an introduction by Cole GDH revised and augmented by Brumfitt JH & Hall John C) JM Dent & Sons London 1973.
- Rousseau believed partial societies would contaminate the general will: see Rousseau Jean-Jacques above note 48 p 185. On Rousseau and Geneva see Starobinski Jean Jean-Jacques Rousseau: Transparency and Obstruction University of Chicago Press Chicago 1988 pp 286–289; Horowitz Asher Rousseau, Nature, and History University of Toronto Press Toronto 1987 pp 168–193.
- See Rousseau, above note 48 p 185. The distinction between ius sanguinis and ius solis, between a nation bound by ties of blood and one in which birth establishes citizenship, is central. Rousseau's ideal state was defined by ius sanguinis: see Turner Brian ‘Outline of a Theory of Citizenship’ in Mouffe Chantal (ed) Dimensions of Radical Democracy: Pluralism, Citizenship and Community Verso London 1992 p 33 at p 54 contrasting Rousseau with Burke.
- See Siim Birte Gender and Citizenship: Politics and Agency in France, Britain and Denmark Cambridge University Press Cambridge 2000 pp 24–43 for a discussion of these and other approaches to citizenship.
- These arguments draw upon Cover Robert ‘Foreward—1982 Term, Nomos and Narrative’ (1983) 97 Harvard Law Review 4.
- Walbv Sylvia Gender Transformations Routledge London 1997 p 179 suggests that social citizenship and the rise of the welfare state ‘is about a transition from private to public patriarchy’.
- Contrast Dalton Clare ‘An Essay in the Deconstruction of Contract Doctrine’ (1985) 94 Yale Law journal 997 at 1013–14.
- Mason Gail ‘Not our Kind of Hate Crime’ (2001) 12 Law and Critique 253 discusses Australian vilification legislation at 256–260. See further Ahmed Sara ‘The Organisation of Hate’ (2001) 12 Law and Critique 345 at 356–363; Western Aboriginal Legal Service Ltd v Jones & Anor [2000] NSWADT 102.
- See Kymlicka Will, ‘Three Forms of Group-Differentiated Citizenship in Canada’ in Benhabib above note 39 p 153.
- Kymlicka, above p 159. Compare Okin Susan Moller ‘Is Multiculturalism Bad for Women?' (1999) Boston Review Princeton University Press at <http://bostonreview.mit.edu/BR22.5/okin.html> Yeatman Anna ‘Voice and Representation in the Politics of Difference’ in Yeatman Anna (ed) Feminism and the Politics of Difference Allen & Unwin Sydney 1993 p 228.
- Habermas, above note 39 p 27. Ethnicity and sexuality are relevant to criminal law doctrines such as provocation and self-defence to determine whether the defendant's response was ‘reasonable’.
- Habermas above (emphasis added).
- See Cohen above note 46 pp 108–110.
- Habermas above note 39 p 27.
- For example surrogacy contracts. See In re Baby M 537 A2d 1227, 109 NJ 396 (1988) and contrast Surrogate Parenthood Act 1988 (Qld) which deems such arrangements void and penalises the parties. On the ethics of surrogacy see Diprose above note 1 at pp 1–6, 111–118.
- See Trade Practices Act 1974 (Cth). US statutes such as the Fair Packaging and Labelling Act 1967 USC Sect Sect 1451–1461 have a similar effect. American legal realists argue that contract is a subsidiary branch of public law: see Dalton above note 54 pp 1013–14.
- See for example Far Horizons Pty Ltd McDonald's Australia Ltd [2000] VSC 310.
- For example Sex Discrimination Act 1984, Racial Discrimination Act 1975, Marriage Act 1961 ss 23, 94, Family Law Act 1975 s 43.
- Where enforceable, the effect is to ‘privatise’ family law: see Fehlberg Belinda and Smvthe Bruce ‘Binding Pre-Marital Agreements: Will They Help?' (1999) 53 Family Matters 55. See also Atwood Barbara A ‘Ten years later: lingering concerns about the uniform pre-marital agreement’ (1993) 19 Journal of Legislation 127. Contrast Kingdom Elizabeth ‘Cohabitation Contracts’ (2000) 8 Feminist Legal Studies 5.
- Definitions of ‘neglect’ in early child welfare laws targeted the poor: see for example State Children Act 1907 (WA) s 4. The first significant article on battered children was published in 1962 but sexual abuse was not fully recognised until 1978. See Kempe C Henry, Silverman Frederic N, Steele Brandt F, Droegemuller William and Silver Henry K ‘The Battered Child Syndrome’ (1962) 181 Journal of the American Medical Association 17–24; Kempe C Henry ‘Sexual abuse, another hidden pediatric problem: the C Anderson Aldrich lecture’ (1978) 62 Pediatrics 282–289.
- See Hunter Rosemary, Stubbs Julie ‘Model Laws or Missed Opportunity?' (1999) 24 Alternative Law Journal 12 at 15.
- For example TvS [2001] FamCA 1147; Blanch & Blanch & Crawford [1998] FamCA 1908. See Behrens Juliet and Bolas Kim ‘Violence and the Family Court: Cross-Vested Claims for Compensation’ (1997) 11 Australian Journal of Family Law 164.
- See Pohjonen Soile ‘Partnership in Love and Business’ (2000) 8 Feminist Legal Studies 47 p 48–51.
- See Pohjonen above p 51; Dalton above note 63. The classic exposition is Maine Henry Sumner Ancient Law Dent London 1917 chapter 5. Contrast Wightman John ‘Intimate Relationships, Relational Contract Theory and the Reach of Contract’ (2000) 8 Feminist Legal Studies 93.
- See Berns Sandra ‘Regulation of the Family: Whose Interests Does it Serve?' (1994) 2 Griffith LR 152.
- For example A New Tax System (Family Assistance) Act 1999 discussed in Berns (2002) above note 19 pp 181–2.
- See Macneil Ian R ‘Relational Contracts: What We Do and Do Not Know’ (1985) 3 Wisconsin Law Review 483; Wightman above note 71.
- See Nozick Robert Anarchy, State and Utopia Basil Blackwell Oxford 1974; Dworkin above note 32 pp 297–301; Dworkin Ronald Sovereign Virtue: The Theory and Practice of Equality Harvard University Press Cambridge 2000 65–119.
- See Olsen Frances E ‘The Family and the Market: A Study of Ideology and Legal Reform’ (1983) 96 Harvard LR 1497.
- See generally Rawls John Political Liberalism Columbia University Press New York 1993; Dworkin above note 32 p 299.
- The distance between A Theory of Justice and Political Liberalism is profound. Whereas, in A Theory of Justice Rawls said ‘Justice is the first virtue of social institutions as truth is of systems of thought’ (Rawls above note 4 p 3) he now seemingly argues 'Justice is the first virtue of political institutions as truth is of systems of thought.' The formulation in Rawls above note 32 at pp 2–5 is particularly clear.
- Dworkin above note 32 p 297–309 makes a similar point.
- See the discussion of theoretical models of citizenship in Siim above note 51 pp 24–43. See also Berns above note 19 pp 33–59, Thornton Margaret ‘Embodying the Citizen’ in Thornton Margaret (ed) Public and Private: Feminist Legal Debates OUP Melbourne 1998 p 198, Yuval-Davis Nira ‘Women, Citizenship and Difference—citizenship as a multitier construct’ in Causes of Women's Exclusion: Actors, Processes and Institutions Turin Aalborg University Seminar 2 of EC program ‘Gender and Citizenship’ 4–6 April 1997 pp 49–70.
- West above note 1 p 112.
- See Rawls above note 32. Dworkin above note 32 pp 297–312 describes equality of resources as mediating between competing preferences. Walzer Michael Spheres of Justice: A Defence of Pluralism and Equality Martin Robertson Oxford 1983 seeks to reconcile pluralism and equality, arguing different social goods require different patterns of distribution.
- I use ‘grammar’ in the Chomskian sense, the formal, wired-in structure of all languages: see Chomsky Noam Language and Problems of Knowledge: The Managua Lectures MIT Press Cambridge 1988.
- Chomsky above.
- See Rawls above note 78 pp 4–5, 11–12.
- Hobbes Thomas Leviathan Pelican Harmondsworth England 1968 sought to defuse these with an absolutist state, the Leviathan. Rousseau above note 48 p 276–77 postulated a civil religion.
- Kierkegaard Soren Fear and Trembling: and The Sickness unto Death Penguin New York 1985 p 83 used this phrase to describe the suspension of the ethical (the universal) inherent in Abraham's willingness to sacrifice Isaac.
- Contrast Abella Madame Justice Rosalie Silverman Human Rights and the Judicial Role 9th AIJA Oration in Judicial Administration, presented at the School of Electrical Engineering and Computer Science, Melbourne University, 23 October 1998.
- Rawls above note 4 pp 17–22, 60–67.
- Dworkin above note 75 pp 73–83.
- For similar arguments see West note 1 pp 79–84.
- See Drakopoulou above note 11 pp 216–221.
- See Swift Caroline F ‘Surviving: Women's Strength through Connection’ in Straus Martha B (ed) Abuse and Victimization Across the Life Span Johns Hopkins University Press Baltimore 1988 p 153 at 157 discussing a study by Alsdorf.
- See Siim above note 51 pp 34–36. Compare Sandel Michael Liberalism and the Limits of Justice (2nd ed) Cambridge University Press Cambridge 1998 pp 62–65, 179–83.
- Exemplified by Rawls John Political Liberalism Columbia University Press New York 1993.
- Gabel Peter ‘The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves’ (1984) 62 Texas Law Review 1563 equates autonomy to anomie.
- Pitkin Hanna Fortune is a Woman: Gender and Politics in the Thought of Nicollo Machiavelli University of California Press Berkeley 1984.
- Pitkin above p 7.
- The phrase is from Woolf Virginia A Room of One's Own Penguin Harmondsworth 1977.
- West Robin L ‘Jurisprudence and Gender’ (1988) 55 University of Chicago Law Review 1 p 42.
- Pitkin above note 97 p 10.
- Rousseau Jean-Jacques The Emile (trans by Barbara Foxley) Dent London 1911 p 35. Compare Rousseau above note 48 pp 174–75, where he speaks of the social contract as one in which each man surrenders himself with all his rights to the whole community and p 177 where this surrender is stated to secure him against ‘all personal dependence’.
- Rousseau above note 48 p 177.
- Fraser Nancy and Gordon Linda ‘A Genealogy of ‘Dependency’: Tracing a Keyword of the US Welfare State’ in Fraser above note 7 p 121 at 125.
- See Berns Sandra S ‘Women in English Legal History: Subject (almost), Object (irrevocably), Person (not quite)’ (1993) 12 University of Tasmania Law Review 26.
- Pitkin above note 97 p 8.
- Pitkin above note 97 p 8.
- Rawls above note 4 pp 17–22.
- Rawls above p 128. Fraser and Gordon in Fraser above note 7 p 125 remind us that only the head of the household had legal standing.
- See Rawls John ‘Kantian Constructivism in Moral Theory’ (1980) 77 Journal of Philosophy 515 pp 524–5.
- Rawls above p 524. See the discussion of rational and full autonomy therein, pp 515–535.
- Rawls above note 4 p 101 describes our natural advantages as a common asset.
- Pitkin above note 97 p 7.
- Others attempting a synthesis include Minow Martha and Shanley Mary ‘Relational Rights and Responsibilities: Revisioning the Family in Liberal Political Theory and Law’ (1996) 11 Hypatia 4.
- See Rorty Richard ‘Justice as a Larger Loyalty’ in Cheah Pheng, Robbins Bruce (eds) Cosmopolitics: Thinking and Feeling Beyond the Nation University of Minnesota Press Minneapolis 1998 p 45 at 57 where he argues that Enlightenment liberalism must be unshackled from Enlightenment rationalism.
- Fraser Nancy ‘Multiculturalism, Antiessentialism, and Radical Democracy’ in Fraser above note 7 at 173 p 186.
- Rawls' overlapping consensus and constraints on public reason do just that: see the text accompanying note 42 above.
- Reagon Bernice J ‘Coalition Politics: Turning the Century’ in Home Girls: A Black Feminist Anthology Kitchen Table-Women of Colour Press New York 1983 pp 356–357 summarised in Honig Bonnie ‘Difference, Dilemmas, and the Politics of Home’ in Benhabib above note 1 p 257 at 267.
- Honig above at 269 (emphasis in the original).
- See note 12 and accompanying text and Hélie-Lucas Marie-Aimée ‘Women, Nationalism and Religion in the Algerian Liberation Struggle’ in Badran Margot and Cooke Miriam (eds) Opening the Gates: A Century of Arab Feminist Writing 1990 p 107.
- France Anatole The Red Lily Lane London 1914 chapter 7.
- Cornell Drucilla The Imaginary Domain: Abortion, Pornography and Sexual Harassment Routledge New York 1995 p 16 warns of the dangers in the ‘flight towards subjectivity’ and provides a useful framework for possible legal arrangements.
- For example Labour in Factories Act 7 & 8 Vict cap 15 (1844) limited women's employment to 12 hours per day and prohibited night work, driving women out of factory labour and into ‘unregulated’ domestic service.
- For cognate approaches see Phillips Anne Engendering Democracy Polity Press London 1992; Democracy and Difference Polity Press London 1993; The Politics of Presence OUP New York 1995 and Mouffe Chantal The Return of the Political Verso London 1993.
- Hochschild above note 24.
Australian Feminist Law Journal
Volume 18, 2003 - Issue 1