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University of New South Wales Law Journal Student Series |
BEYOND POSITIVISM: UNVEILING FEMINIST PERSPECTIVE ON LAW AS DYNAMIC INTERACTIONS
YUFEI YAN[1]
I INTROD UCTION OF FEMINIST JURISPRUDENCE
Feminist jurisprudence, an evolving body of legal theory that encompasses a wide range of social attitudes and political and economic concerns about gender equality, serves as a critical foundation for the conception of law. In reaction to the high prevalence of ongoing inequalities and gender-based stereotypes encountered by women, feminist jurisprudence aims to challenge the societal norms and laws that perpetuate social issues of equality. Feminist jurisprudence contests that the traditional legal framework have been intricately woven with patriarchal norms, which provides men privileges over women. It challenges the core idea of legal positivisms, advocating for legal system to recognise the diverse contexts in which law is lived. In this essay, we will delve into the work of Australian legal theorist Margaret Davies to explore law through a feminist lens. First, we will look at how Margaret Davies redefines our understanding of law from a feminist perspective and how this alternative view of law challenges legal positivism. Second, we will closely examine what this ‘different set of interactions in law’ represents in feminist theory. Later, we will assess how this reimagined legal regime changes our understanding of law. Lastly, this paper will discuss the transformation of legal paradigms and possible reforms in implementing feminist jurisprudence.
II UNDERSTANDING LAW FROM A FEMINIST PERSPECTIVE
Despite extensive critiques by feminists and other critical scholars highlighting the limitations of legal positivism, positive law has been suggested to be the presumed form of legal system.[1] The core idea of legal positivism posits that law is divorced from moral considerations and is defined by certain limited features that distinguish law from non-law.[2] In other words, the concept of positive law sets limits and boundaries, excluding ‘non-identified’ rules and principals from contaminating the existing legal realm. However, legal positivism tends to uphold static legal rules that exist in a separate domain from everyday contexts. It has often been criticised that positive law fails to account for the dynamic nature of everyday human interactions in which law is experienced.[3] By regarding law as an autonomous and abstract entity, feminist legal scholars pointed out that there is a tendency for ‘chronic deafness’ in normative contexts of those characterised as ‘non-identified’ rules.[4] From a feminist perspective, this blindness to marginalized contexts and detachment from everyday social life potentially impedes the ability to address the underlying social issues of gender-based disparities.
To address the limitations of legal positivism, feminist jurisprudence emerges as a response to tackle the issues of gender equality. Within the framework of feminist legal theory, there are three main strands of models that have evolved. The first strand is the liberal equality model, which advocates for gender similarities and equality, promoting that women and men should be treated equally.[5] This equality model is dedicated to promoting genuine and comprehensive equality for women, challenging the issue of gender disparities within traditional legal structures. The second is the sexual difference model, which emphasises the differences between men and women and argues that the law should recognise these differences and provide women and men with appropriate remedies for their disadvantages.[6] According to the difference model, the divergences between men and women is rooted in biological distinctions and diverse lived experiences. It stresses the significance of recognizing the inherent distinctions between men and women so that the legal system could address the gender disadvantages faced by women by providing appropriate remedies. The third model is postmodern feminist legal theory, which challenges both liberal equality and difference theory, arguing that women are not inherently similar or different to men.[7] Postmodern feminists recognized that laws are created in a patriarchal context and are, therefore, subject to change in the presence of any forms of oppression.[8] The postmodern model argues that the traditional legal systems are crafted by people with hidden biases, and it should not be infallible. Through the lens of feminist jurisprudence, the postmodern model underscores the significance of embracing the multiplicity of complex social existence, paving the way for a legal realm that evolves alongside dynamic social sphere.
Unlike the static nature of legal positivism, feminist jurisprudence seeks to remedy the blindness to gender inequalities by embracing a dynamic legal interpretation that responds to diverse dimensions. From a feminist perspective, perceiving law through the lens of diverse dimensions of everyday life can disrupt the hegemonic powers embodied within conventional law, as well as bring new insights in understanding the practical contexts in which law is lived.[9] By juxtaposing positivism with feminist jurisprudence, feminist jurisprudence provides nuanced understanding of law in different set of interactions, challenging the perception of regarding law as a separate domain from marginalized context and everyday life.
According to Margaret Davies, she introduced the idea of looking at ‘law as a different set of interactions altogether’,[10] offering a profound departure from the traditional conception of viewing law as a single authoritative realm. Davies contends that positivists failed to provide an adequate account of the law by removing the law from its complex social existence.[11] This separation perpetuates resistance and neglects a comprehensive understanding of everyday practical contexts through a ‘less-formal’ channel. Beneath the surface of legal diversity, often involves hegemonic inclusion by emphasising traits related to privilege and power, such as masculinity and whiteness. The emphasis on those characteristics shapes the expectations and norms within the legal realm and conceals the insidious exclusion outside of hegemonic norm. While the outward appearance of inclusive legal environment, women, non-white community, and other marginalized norms still face systematic barriers to full participation in the legal sphere. Despite there being a consensus in jurisprudence about the significance of positivism in maintaining the neutrality of law,[12] one cannot deny the fact that gender equality and marginalized normative contexts face challenges in gaining full legal recognition. Traditionally, there are concerns that incorporating feminist perspectives might jeopardise the neutrality of law as the standard would be tilted toward women. For example, the application of the ‘reasonable women standard’ faces criticisms that the introduction of women’s standard undermines the neutrality of sextual harassment law by giving women special treatment.[13] However, as other legal scholars noted,[14] the exclusion of gender bias and other marginalized does not help to maintain the neutrality of the law, but rather detaches it from social realities. Exploring the implication of ‘reasonable women standard’, it becomes evident that the incorporation of a different perception not only enriches legal practices but also allows the possibility of co-exist with other dimensions in everyday life. Furthermore, part III will delve into the feminist conceptualization of law by exploring Davies’ idea of ‘regarding law as a different set of interactions altogether’ in depth.
III DIFFERENT SET OF INTERACTIONS IN LAW
A Margaret Davies’ Flat Law Theory
To understand the claim of ‘regarding law as a different set of interactions altogether’, it is useful to incorporate Davies’ Flat Law Theory into analysis. Davies’ idea of ‘Flat Law’ shed light on the existence of law as existing not just in a vertical dimension, but also has a horizontal dimension that encompasses everyday microprocesses of human interactions in practical contexts.[15] With regard to law in the vertical modality, the vertical structure of law is perceived as a structure with superior and inferior rules and principal arranged in a hierarchy order.[16] The vertical concept of law is characterised as a unified set of norms emanating from a sovereign authority like the state. [17] Additionally, vertical law also sets boundaries and limits to exclude ‘non-law’ from the legitimate legal realm. It operates through the system of inclusions and exclusions, depicting what is classified as ‘law’ and what is classified as ‘non-law’. However, feminist scholars have long criticised how this exclusionary approach embodied in vertical law perpetuates the marginalized normative context, especially for social issues like gender-disparities.[18] Despite the fact that feminism jurisprudence is ostensibly reactive to legal system, the engagement with vertical law paradigm masks other legal registers. The vertical structure of law constrains the intra-territorial distinctions in order to gain a unified set of norms, as for illustration, the assimilation of religious and indigenous law occurs within the established boundaries of the state law. As Davies outlines, vertical law emphasises legal singularity and forecloses the possibility of co-existing with other dimensions of everyday life.[19] This limitation stifles the possibility of having a legal framework that genuinely embody inclusivity and equality. With the realization of the intricacies of legal diversity and its attachment with everyday life, it becomes imperative to explore an alternative framework that addresses the detachment from dynamic social realities.
As a response to the limitation of engaging solely with vertical law, Davies offers ‘flat law’ as an alternative perspective recognizing the dynamic practical contexts that law engages with. Rather than existing as a vertical hierarchy, flat law incorporates a wider conception of legal practices and complex human interactions in everyday life.[20] This ‘flatting out’ of law prioritizes the multiplicity, intersectionality, and the interpretative possibilities of law. Drawing from diverse feminist literatures, viewing law through a horizontal lens disrupts the singular narrative of law through a more expansive network of practices, potentially resulting in a more inclusive understanding of law.[21] The concept of horizontal law involves flatting the hierarchy order of vertical structure of law, recognizing the interdependence of each legal element within the complex and dynamic social environment.
In considering the distinction between vertical law and horizontal law, many feminists contend that vertical law forecloses the opportunities to coexistence with marginalized contexts, emphasising a colonialist tendency.[22] It has long been criticised that legal singularity perpetuates the isolation from social realities and the issue of gender blindness.[23] Furthermore, the hierarchical vertical law can also leads to insidious exclusion outside of hegemonic norm through silencing certain voices in socio-political discourse. In contrast, flat law offers a means to recognize alternative legalities and marginalized contexts within national jurisdiction. [24] Unlike the hierarchical structure, flat law does not eliminate the existence of sovereign authority like the state law. It offers a means to acknowledge both legal and non-legal elements, whether they are inside or outside of their established boundaries. The historical silencing of religious norms, Indigenous and customary laws could be challenged when the law is viewed horizontally. This is because flat law opens to infiltration of external influences and accepts diverse voices instead of monopolizing definition. The complex interactions between what is perceived as ‘law’ and what is perceived as ‘non-law’ challenges the perception of legal singularity, encouraging scholars to envision a more dynamic and inclusive legal system. By embracing normative creation at the edge of law, as illustrated in flat law, feminism jurisprudence can foster a more equitable and inclusive legal realm.
It has frequently faced criticism that vertically imposed law uses the so called ‘neutral’ doctrine to provide privilege for masculinity.[25] Appreciating law’s horizontality opens paths for feminist jurisprudence to resolve the vertical law’s blindness to marginalized context that are positioned as ‘non-identified’ rules. More deeply, the very structure of horizontal decentralized control from ‘women’ or any other marginalized groups from the sovereign authority, therefore fostering law to be more inclusive in reflecting the plural experiences in society.
Davies’ Flat Law Theory offers an alternative lens to understand the structure of law, which also supports her claim that we should regard law as ‘different set of interactions altogether’. Examining this assertion from a horizontal perspective, flat law provides a means to recognizes fragmented perceptions, pluralistic practices, and everyday interactions. By viewing law as a different set of interactions altogether, horizontal engagement tactics creates an opening to reimage law from alternative perspectives in other dimensions.
B The Pluralistic View of Law
In addition to Davies’ Flat Law theory, the conception of legal pluralism also contributes to the understanding of law by recognizing diverse normative contexts that co-exist in the social sphere. Whereas traditional legal theory focuses primarily on the positivism, legal pluralism acknowledges that normative orders that exist in other dimensions also function as ‘law’.[26] According to the pluralistic view, law is lived in a complex and dynamic social environment, and it is impossible to divorce law from the plural normative fields. The singular definition of law has been critiqued by many feminist scholars for neglecting the marginalized contexts, such as Indigenous and religious norms, that exists in the ‘less popular’ domain.[27]
By embracing multiplicity and opening new interpretative possibilities, legal pluralism corresponds well with feminist jurisprudence. It has been suggested that the pluralism approach helps to make alternative legal concepts and marginalized contexts visible to law, providing means to remedy positive law’s blind spot on those positioned as ‘non-law’.[28] Both feminist jurisprudence and legal pluralism aim to challenge the singularity and hegemonic forms of conventional definition of law.[29] Rather than presenting law as an autonomous and abstract entity, pluralism sees law as imbedded within complex social existence. This is consistent with feminist legal theory, where the conventional definitions of law failed to recognise the complex web of human interactions and marginalized normative contexts. In Griffiths’ empirical research,[30] she suggested that regarding law as ‘plural and plastic’ rather than as ‘static and singular’, leaves room to argue for norms and legal principles that exist in non-state laws, it could help in enhancing our comprehension of the complexity of gendered interactions within the legal framework.[31]
In essence, legal pluralism challenges the singularity of the conventional definition of law by recognizing normative diversity that co-exists in the social sphere. It stresses the necessity of understanding law from a plural perspective by presenting a picture of law interwoven with the complex web of social relations.[32] The pluralistic view of law also supports Davies’ idea of viewing law as a different set of interactions altogether, as legal pluralism opens the opportunities for regarding law not solely as a singular and closed system, but rather as a varied set of everyday interactions. Through the lens of legal pluralism, law is inseparable from its complex web of normative contexts, which also corresponds with the feminist perspective that law is a facet of a complex society.
In conclusion, the conception of both ‘flat law theory’ and ‘legal pluralism’ explores Davies’ assertion from multiple angles. The flat law theory provides an alternative perspective to view law through a horizontal lens, incorporating a broader conception of normative contexts. The core of flat law theory is the acknowledgement of the interdependence of each legal element within the complex and dynamic social environment. In response to the limitations posed by the detachment from complex everyday realities when engaging solely with vertical law, flat law recognizes both legal and non-legal elements that exist in diverse normative contexts. As illustrated in flat law, scholars are encouraged to envision law through a horizontal lens, fostering a more equitable and inclusive legal system. In line with the flat law theory, legal pluralism contends that law is inseparable with dynamic social contexts, challenging the notion of legal singularity and legal positivism. The concept of legal pluralism provides a means to regard law not simply a singular and closed system, but rather regard law as a facet of a complex web of social interactions. Both flat law theory’ and ‘legal pluralism’ support the legality of regarding law as a different set of interactions altogether, with an emphasis on a more inclusive understanding of law. Next, Part IV will address how this alternative view of law changes our understanding of law.
IV CHANGING OUR UNDERSTANDING OF LAW
Feminist scholars have long criticised the objectivity and impartiality of the legal systems in the context of gender,[33] especially after the postmodern feminist, many feminists realized the inherent masculinist bias within the legal systems. MacKinnon argues that the supposed neutral ground for legal decisions is based on the male point of view, neglecting the perspectives of women.[34] Moreover, it has frequently faced criticism that the objectivity within legal framework was the objective standpoint of male supremacy, perpetuating the exclusion of women’s experiences.[35]
A The ‘Reasonable Women Standard’
Traditionally, the legal standards of reasonableness were based on the concept of ‘average reasonable man’ in various areas, including criminal, tort, and contract law.[36] Feminists actively seek to reveal the biases and challenge the male-centred existing legal standards. As a result, feminists sought to incorporate an additional standard in understanding the idea of reasonableness, such as the conception of ‘average reasonable women’. One illustrative example of effectively employing the ‘standard of reasonable women’ can be found in the legal precedent set by the case of Ellison v Brady (‘Ellison’).[37] In Ellison, the court recognized the conceptual differences of reasonableness between men and women in perceiving the severity of sexual harassment. By adopting the perspective of a reasonable women, the court reasoned that the occurrence of ‘offensive behaviour’ may not be perceived as such by a male harasser,[38] therefore it would be impartial to apply the male-biased standard of ‘average reasonable men’. The Court’s approach acknowledged the diverse experiences perceived by women, creating a means to reimage law from alternative perspectives in other dimensions. In the judging process, the Ellison court incorporated a ‘thick description’ of human interactions, whereby the judge considered the complexity of social situations and read facts in a way that extended beyond the assumed definition.[39]
The shift in the standard in sexual harassment law from ‘reasonably male’ to ‘reasonably female’ is far-reaching. While the application of the ‘reasonable woman standard’ has been criticised for confusion in understanding the new standard, it has been argued that such scepticism is unfounded, as specialised jury instructions help to understand the reasonable standard from a woman's perspective.[40] Since the Ellison court, the incorporation of a women’s standard in perceiving sextual harassment cases helps to remedy the inherent masculinist bias in using the ‘reasonable men’ standard. Research found that the severity of harassing behaviour tends to be viewed differently between men and women.[41] For example, men may view some jokes and shoulder touching as harmless, but women may find such behaviour offensive and threatening. The incorporation of ‘reasonable women standard’ in the sexual harassment law not only provide better account for social realities, such as women’s vulnerability to violence, but also enriches legal diversity by embracing alternative voices from a different point of view.
B Changes in Understanding of Law
With the growing acceptance of ‘reasonable women’ in legal standards in various domains, our interpretations of law have made incremental changes as compared to the conventional definition of law. Traditionally, the court would apply presumed objective legal standards in assessing various cases without delving too deeply into the intricacies, complexities of human interactions and everyday experiences. Rather than relying solely on the patriarchal legal standards, feminist jurisprudence attempted to appreciate the women’s varied perceptions and consider the profound differences between men and women that came before courts.[42] Moreover, it also challenges the ‘neutrality’ of previous legal doctrine that were constructed from the male standpoint, revealing the androcentric biases permeating legal judgements.[43]
In conclusion, the feminists’ intervention in challenging the patriarchal definition of law highlights the need to acknowledge the absolute distinctness between individuals, especially the relationship between men and women. As for Davies’ claim of regarding law as a different set of interactions all together, the ‘thick description’ of human interactions provides a way to counteract the traditional simplified way of reading facts.[44] By encompassing a more detailed and nuanced interpretation of complex social interactions, it may help to provide a more inclusive understanding of the diverse dimensions of human experiences in which law lived. While feminist legal theory is far from perfect implementation, it has begun to transform law and reconceptualize legal reasoning from a women’s standpoint. Furthermore, the feminists’ efforts of incorporating diverse subject positions and considers the multiplicity of law, pushes for a more equitable and just legal doctrines.
V LAW REFORM: REFLECTING FEMINIST JURISPRUDENCE
A Rethink the Established Legal Norms
To embrace feminist theory, there is a need to recognize and remedy the inherent masculinist bias of the laws directly implicated in women. In considering the frequent criticisms regarding the objectivity and impartiality of the patriarchal definition of law, the reinterpretation of legal conceptions becomes crucial to overcome the androcentric biases within the legal framework.[45] As for illustration, rethinking the legal standards of ‘consent’ and ‘reasonableness’ through a feminist lens can help to close the gap and inconsistences in statutes, aligning them more closely with the principal of equality and justice.
In recent decades, feminist interventions aimed at rethinking legal norms based on female standpoint have played a significant role in pushing for law reform. For instance, the reinterpretation of ‘consent’ from a female perspective has led to the passage of the Crimes Amendment (Intimate Images) Act 2017 in New South Wales, Australia.[46] This act was passed to criminalize the conduct of sharing intimate images without consent.[47] In terms of the effectiveness of rethinking the established legal standard, the passage of the Crimes Amendment (Intimate Images) Act 2017 proves how feminist knowledge shapes the craft of legislation. Through active engagement in parliamentary debate and extensive empirical research, patriarchal reasoning must acquire flexibility when equality demands new standards.
Overall, integrating feminist jurisprudence requires an incremental yet continuous re-examination of the legal concepts, as well maintaining continuous responsiveness to feminist standpoints and perspectives from legal institutions.
B Nuanced Understanding of Diverse Experiences
Conceptually, reflecting feminist jurisprudence means to incorporate broaden range of normative contexts, and consider the complex web of human interactions and relationships within the legal framework. As outlined earlier, the criminalization of distributing non-consensual intimate images underscores the importance of a nuanced and detailed understanding of the ‘image-based’ harm among the victims. This suggests that law should delve into the complexities and emotional dimensions of human experiences, rather than relying solely on the presumed abstract principals. By encompassing a nuanced understanding of specific social situation when interpreting legal standards, the different sets of interactions were considered, thereby providing a more profound understanding of social existence.
C Transformative Law Reform
According to empirical research, many feminists contend that the previous law reform failed to provide an adequate account for women’s experiences, because the pre-existing legal categories were too narrow to embrace female standpoint.[48] It has been suggested that this narrowness excludes marginalized normative contexts, including women’s experiences. [49] Therefore, rather than reform law based on the pre-existing legal categories, starting with the distinct social situations and experiences, may help provide a more comprehensive understanding of the complex web of normative contexts.
Research also revealed that focusing too much on the formal outcomes of achieving gender equality limits the effectiveness of law reform.[50] For example, employment law that seeks to address the issues of workplace discrimination should not overly emphasis the formal outcomes of equal work opportunities, but rather pay attention to the existing employment issues and their surrounding circumstances. In other words, law reform should consider context-specific situations to gain a comprehensive understanding of social existence.
VI SUMMARY
In conclusion, this paper first introduces an overview of feminist jurisprudence, and then we delve into how law is constructed through the lens of feminist perspectives. Unlike the static nature of legal positivism, feminism jurisprudence perceive law through the lens of everyday microprocesses of human interactions, aiming to remedy the blindless to gender inequalities and the detachment from societal realities. This paper discussed an alternative understanding of law by analysing the meaning of Margaret Davies’ assertion that challenges positive law. According to Davies’ claim, scholars are encouraged to envision law as a different set of interaction altogether. We closely examined what this ‘different set of interactions in law’ represents by introducing the conceptions of ‘Flat Law Theory’ and ‘legal pluralism’. The flat law theory offers an alternative lens to perceive the structure of law. Appreciating law’s horizontality challenges the insidious exclusion outside of hegemonic norms, resolving the vertical law’s blindness to dynamic social environment. Similar to horizontal law, the theory of legal pluralism also challenges legal singularity and vertical law. Legal pluralism perceive law as imbedded within dynamic social environment, acknowledging the diverse contexts that co-exist in complex social realities. Later, this essay assessed how this reimagined legal regime changes our understanding of law. We conclude that while feminist legal theory is far from perfect implementation, it has begun transform law by reconceptualizing legal reasoning from a women’s standpoint. Finally, for the application of feminist jurisprudence, this paper explored various potential reforms aimed at comprehending law from an alternative dimension and, fostering a more inclusive understanding of the social existence in which law operates.
* Juris Doctor, University of New South Wales. The author is grateful for the feedback provided by Professor Philip Quadrio and the reviewers on this article.
[1] Margaret Davies and Vanessa E. Munro (eds), The Ashgate Research Companion to Feminist Legal Theory (Ashgate Publishing Company, 2013).
[2] HLA Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71(4) Harvard Law Review 593.
[3] Margaret Davies, ‘Feminism and the Flat Law Theory’ (2008) 16(3) Feminist Legal Studies 281 (‘Flat Law Theory’).
[4] Margaret Davies, ‘Pluralism and Legal Philosophy’ (2006) 57(4) Northern Ireland Legal Quarterly 577 (‘Pluralism’).
[5] Martha Albertson Fineman, ‘Gender and Law: Feminist Legal Theory’s Role in New Legal Realism’ (2005) 2 Wisconsin Law Review 405.
[6] Catharine A MacKinnon, ‘Difference and Dominance: On Sex Discrimination (1984)’ in Katharine T Bartlett and Rosanne Kennedy (eds), Feminist Legal Theory (Routledge, 1991) 14.
[7] Robin West, ‘Women in the Legal Academy: A Brief History of Feminist Legal Theory’ (2018) 87(3) Fordham Law Review 977.
[8] Ibid.
[9] Davies and Munro (n 1).
[10] Margaret Davies, ‘Feminism and the Idea of Law’ (2011) 1(1) feminists@ law 1, 4.
[11] Ibid.
[12] Leslie P Francis, ‘Feminist Philosophy of Law, Legal Positivism, and Non-Ideal Theory’ (Working Paper, University of Utah College of Law Research Paper, 2017) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3370633>.
[13] Jeffrey A Gettle, ‘Sexual Harassment and the Reasonable Woman Standard: Is It a Viable Solution?’ (1983) 31(4) Duquesne Law Review 841.
[14] Emily Jackson, ‘Catharine MacKinnon and Feminist Jurisprudence: A Critical Appraisal’ (1992) 19(2) Journal of Law and Society 195.
[15] Davies ‘Flat Law Theory’ (n 3).
[16] Ibid.
[17] Ibid.
[18] Jackson (n 14).
[19] Margaret Davies, ‘Exclusion and the Identity of Law’ [2005] MqLawJl 2; (2005) 5 Macquarie Law Journal 5.
[20] Davies, ‘Flat Law Theory’ (n 3).
[21] Davies and Munro (n 1).
[22] Davies, ‘Flat Law Theory’ (n 3).
[23] Ibid.
[24] Ibid.
[25] Jackson (n 14).
[26] Jennifer Hendry, ‘Margaret Davies: Law Unlimited: Materialism, Pluralism, and Legal Theory’ (2019) 46(1) Journal of Law and Society 169.
[27] Francis (n 12).
[28] Davies, ‘Pluralism’ (n 4).
[29] Ibid.
[30] Anne Griffiths, ‘Reconfiguring Law: An Ethnographic Perspective from Botswana’ (1998) 23(3) Law & Social Inquiry 587.
[31] Ibid.
[32] Jennifer Hendry, ‘Margaret Davies: Law Unlimited: Materialism, Pluralism, and Legal Theory’ (2019) 46(1) Journal of Law and Society 169.
[33] Christine A Littleton, ‘Feminist Jurisprudence: The Difference Method Makes’ (1989) 41(3) Stanford Law Review 751.
[34] Jackson (n 14).
[35] Fineman (n 5).
[36] Francis (n 12).
[37] Howard A Simon, ‘Ellison v. Brady: A “Reasonable Woman” Standard for Sexual Harassment’ (1991) 17(1) Employee Relations Law Journal 71.
[38] Debra A Profio, ‘Ellison v. Brady: Finally, a Woman’s Perspective’ (1992) 2(0) UCLA Women’s Law Journal 249.
[39] Margaret Davies, ‘The Law Becomes Us: Rediscovering Judgment’ (2012) 20(2) Feminist Legal Studies 167 (‘The Law Becomes Us’).
[40] Profio (n 38).
[41] Ibid.
[42] Simon (n 37).
[43] Jackson (n 14).
[44] Davies, ‘The Law Becomes Us’ (n 39).
[45] Jane Wangmann, ‘Law Reform Processes and Criminalising Coercive Control’ (2022) 48(1) The Australian Feminist Law Journal 57.
[46] Crimes Amendment (Intimate Images) Act 2017 (NSW).
[47] Kcasey McLoughlin and Alex O’Brien, ‘Feminist Interventions in Law Reform: Criminalising Image-Based Sexual Abuse in New South Wales’ (2019) 8(4) Laws 35.
[48] Margaret Davies, ‘Legal Theory and Law Reform: Some Mainstream and Critical Approaches’ [2003] AltLawJl 51; (2003) 28(4) Alternative Law Journal 168.
[49] Kcasey McLoughlin and Alex O’Brien, ‘Feminist Interventions in Law Reform: Criminalising Image-Based Sexual Abuse in New South Wales’ (2019) 8(4) Laws 35.
[50] Fineman (n 5).
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