Abstract: There has sometimes been a naive confidence that better law can be a panacea, ameliorating social and other ills. Law reform, particularly legislative reform, has been touted as a means of facilitating progressive change. Liberal feminists, for example, have resorted to law to respond to the inequalities and inequities women experience. Other feminists have been sceptical of law reform, disillusioned with law's resistance to feminist legal analysis and challenges, and with the uncertain outcomes of feminist-inspired legal and policy changes. A brief survey of recent legislative reform in Australia would confirm this bleak estimation. Law has been used to facilitate neo-liberal economic programs and individualise employment relations; exclude asylum seekers; send single parents back to work; thwart legal recognition of same sex relationships and erode civil and political liberties. At such political junctures, reliance on litigation, rather than legislative reform, may be more effective to 'restrain, or at best, make visible unjust practices and policies ... [and] restore a cautious confidence in the law to effect change.' (1) This paper seeks to examine some of the scholarly literature about law reform to evaluate whether confidence in law reform is misplaced. It begins by distinguishing what one commentator has called classical and progressive approaches to law reform, and attempts to situate these approaches within broader philosophical, sociological and political theories. It then reviews some of the debates within feminist legal theory about the value of and risks associated with law reform. It concludes that although law reform will never be a sufficient response to inequalities and oppression, there will be times when it will be possible and necessary. Approaches to law reform Law reform is an elusive concept. The threads of reform do not form any 'clear and consistent pattern.' (2) Lawrence Friedman declares it has no objective meaning, although the scholarly literature suggests that law reform has a number of meanings. (3) The starting point of any discussion of law reform, Noel Lyon observes, is to ask the 'most basic question of jurisprudence: what is the nature and purpose of law?' (4) The answer from the law reform literature is less than clear, however, as few legal scholars directly address this question or articulate the political or philosophical position informing their analysis. Although there is a growing body of critical legal commentary about law reform, (5) particularly from feminist legal scholars, (6) much law reform scholarship is pragmatic, instrumental and atheoretical. Implicit in most of this discussion, however, is the idea that law is a social and political phenomenon and that it ought to serve the needs of society. (7) Roderick MacDonald has distinguished classical and progressive approaches to law reform. (8) He does not clearly identify what constitutes the classical approach, but his discussion suggests he is referring to commentary influenced by sociological jurisprudence and the American realist thinkers of the early twentieth century. (9) Although neither the realists nor the sociological jurists developed a single or uniform theory, themes common to both schools of thought may be identified, and some of these inform the classical (and also some of the more recent progressive) scholarship about law reform. Legal realists and legal sociologists reject legal formalism and are sceptical of 'law in books', concerning themselves with 'law in action'. (10) Both schools of thought perceive reality and knowledge (and thus law) as socially constructed and empirically verifiable. As Margaret Davies observes, the realist's 'emphasis on the real operation of law [meant that] law is not separate from politics, ... law is not an end in itself, but a means to an end--we have law for purposes of social regulation and it must be studied as such, not in isolation from society. …
Publication Year: 2006
Publication Date: 2006-01-01
Language: en
Type: article
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Cited By Count: 5
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