Tools for Change: Why Feminist Legal Theory Matters

Sally Ward (she/her)

Aside from learning about the law as it is, students need to be able to imagine how it could be. 

Feminist Legal Theory (FLT) is one tool that can allow students, as eventual practioners, to see how the law could be restructured to create better outcomes for those who the system was not designed for. Equipping professionals with critical perspectives can create space for diversity, and for those perspectives to be valued.

FLT combines the experiences of women with critical perspectives from other areas like feminism generally. This is to work out the relationship between law and gender. It reveals new understandings, and limits and opportunities for legal reform. It is an ocean of work and intersects with other bodies of thought like critical race theory, environmental feminism and radical feminism. 

The legal profession is overwhelmingly white and male in the upper echelons. The Law Society’s data from late 2019 shows that women make up only 39% of partners in law firms. It doesn’t add up because women comprise 60% of people admitted to the bar each year. 

Gender isn’t the only aspect of identity that impacts those working in the field. Only 6.3% of legal professionals are Māori, with 78.2% Pākehā. Kelly Gage (Te Whānau-ā-Apanui and Ngāti Tūwharetoa) is a recent graduate working in the legal profession. She writes about Māori underrepresentation in the field for the 2020 Employment Law Bulletin. Gage notes that the Māori economy is worth $42 billion, and asks how a team can “specialise in Māori affairs and business with such a clear lack of Māori staff?” 

Gage also explains that experience and knowledge of te ao Māori is necessary to tackle the overrepresentation of Māori in the criminal justice system. She later draws on the ‘ethics of care’, an FLT concept highlighting the way the law “traditionally embodies one dominant set of perspectives and assumptions.” These assumptions tend to favour rationality over emotion, and individual accountability, over a communal approach. 

Dr Zoë Prebble was walking across a stepping stone path at her friend’s house. As she walked along the stones, she noticed that she didn’t have to stretch to get across. Zoë “had never experienced walking effortlessly” in this way. The path had been paved by her friend, who had spaced it according to shorter legs. 

It matters who builds the paths we walk because different experiences inform the journey. 

I’m sitting with Dr Zoë Prebble, who is a professor at the law school. Her research looks at gendered harms, and the ways it is criminalised. She explained that she first engaged fully with her research when she got into gendered harms. The “work started to feel meaningful” and she could see its ability to “effect real people”. 

I lifted some definitions from Zoë’s 2018 publication: gendered harms refers to “harms predominantly carried out against women and continue due to the unequal status of women in society. ‘Women’ is not an undifferentiated category, it interacts with race, class, economic status, sexual orientation [...] to produce different vulnerabilities to harms.” 

Zoë speaks with pace and precision. She has recently received a VUW teaching award, and you can see why. The students I spoke to about her classes were full of positivity; it is clear that she is making a huge difference to their learning. 

Zoë takes an honours paper on Feminist Legal Theory, amoung others like Criminal Law. Nina Weir, who has taken the paper, explained that FLT sounds like it’s “just one broad thing”, but the course was a “chance to realise how many different perspectives there are.” ‘Feminism’ can easily be reduced to something that is just a womens’ issue and siloed away.

Zoë had a whole list of names of academics and pointed me toward the work of Patricia Williams—“she’s really cool”. Williams is an African American scholar known for her work on Critical Race Theory, and also happens to be a contract lawyer. 

Williams sometimes writes in the first person which is unusual for legal writing. In one example, Williams recounts going Christmas shopping at one o’clock in the afternoon. At the time, there was a buzzer system that allowed shop owners to be selective about who they let in: “I pressed my round brown face to the window and finger to the buzzer seeking admittance.” She was told the store was closed, even though it clearly wasn’t. Williams uses this story to express rage at existing power structures. 

“You can be a serious thinker and use the first person.” Zoë can still “picture lines and images” from Williams’ work—“how often do you get that?” This is just one way that different perspectives and approaches can improve the quality of study.

I asked about the state of the legal system generally. Dr Prebble’s view was that “it’s not perfect, but it’s also a site of real power.” It’s important to challenge that power, and make sure it serves the people it’s supposed to protect. We “talk about the law as [if] it’s this rational thing”, but “sometimes it’s just an accident of history”, Zoë said. The legal system is so much about the way humans make decisions.

We shifted our focus to the law school, as a “feeder to the legal profession”. What is the place of FLT in a law school curriculum? Zoë believes it helps us understand “how things could be different”. Although, we still need to know “what the law is, you can’t throw that out.”

One of the difficult things about teaching topics like FLT, is having staff with the expertise, the time to deliver courses, and the funding. There is an appetite for it, it’s something to reach for. 

Wang, a New Zealand case, is famous for its decision on the use of self-defence in the context of what can be described as a ‘gendered harm’—domestic violence. Dr Prebble teaches a chapter from ‘Fem Legal Judgements’ alongside Wang in Criminal Law. ‘Fem Legal Judgements’ is an initiative where hypothetical judgements on existing legal decisions are written by judges, through an FLT lens. 

Theories can be used to defog our vision. Imagine if Fem Legal Judgements were written in real life, and not hypothetically after the fact. FLT is relevant to cases like the Grace Milane trial, and the case examining the treatment of inmates at Auckland Women’s Prison detailed in the media earlier this year.

I also talked to the current president of the VUW Feminist Law Society, Abby Jones. The 10-member exec sat down and asked themselves “why are we feminist? And everyone had different answers.” Abby went on to say that “what people need from feminism is different”, the best thing to do “is create space and recognise that we have different needs.” So if there’s anything to take away, it’s that feminism should be underlined by differences. 

The group focuses on advocacy and activism. Taking to the streets didn’t happen a lot last year, so their attention has been on advocacy. 

Abby had spoken to a lawyer who worked in a firm where cases are allocated to lawyers who feel comfortable with taking them on—lawyers can say “actually that’s a case that’s too violent.” Once that’s acknowledged, it allows the work to go to someone who is comfortable. 

VUWFLS has plans to introduce content warnings for lectures. A lot of the topics discussed in LAWS courses can be about domestic violence or racial violence. Generally lecturers do provide warnings so we know it’s possible, but it is on an ad-hoc basis. 

Content warnings are “about giving people the space for people to do it at home, in their own way.” This is possible with online learning, which Abby says is also beneficial for students with learning difficulties, for example. It’s not to say that students should be able to opt out of topics that are violent, it is a necessary part of law. It is to acknowledge that this might be the first time a person is facing these issues in a learning environment. It’s not unreasonable to need space. 

I would add that lecturers are often not equipped with the time to offer pastoral support which could help students in these situations (even though many do). I have fought back tears in class and needed a big cup of tea afterwards. I can see the benefit of occasionally being able to deal with that quietly, although I also enjoy learning alongside others. 

FLT has a lot to offer legal studies, and the legal profession. It is one tool that can help us create change, and overlaps with other theories like critical race theory. It’s exciting that there are academics, including Dr Prebble here at VUW, empowering students to see how these ideas can be applied to reality. It’s time to repave the steps.