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Recent years have seen the advent of two feminist judgment-writing projects, the Women’s Court of Canada, and the Feminist Judgments Project in England. This article analyses these projects in light of Carol Smart’s feminist critique of law and legal reform and her proposed feminist strategies in Feminism and the Power of Law ( 1989 ). At the same time, it reflects on Smart’s arguments 20 years after their first publication and considers the extent to which feminist judgment-writing projects may reinforce or trouble her conclusions. It argues that both of these results are discernible—that while some of Smart’s contentions have proved to be unsustainable, others remain salient and have both inspired and hold important cautions for feminist judgment-writing projects.

This article takes up Smart’s suggestion to examine the way the law works in practice. It explores the context of current criminal prosecutions of domestic violence offences in Queensland, Australia. This article argues that legal method is applied outside the higher courts or “judge-oriented” practice and that the obstacles inherent to legal method can be identified in the practices of police, lower court staff, magistrates and lawyers. This article suggests that it may be difficult to deconstruct legal method, even by focussing on law in practice, and as a result it may be difficult to successfully challenge law’s truth claims in this way. The analysis of criminal prosecutions of domestic violence offences reported here supports Smart’s earlier findings that women and children who seek redress through the criminal justice process find the process at best ambivalent and at worst, destructive. However, the article also shows how, in the Queensland context, women sometimes find their way to feminism and personal empowerment by going to law.

In Feminism and the Power of Law Carol Smart argued that feminists should use non-legal strategies rather than looking to law to bring about women’s liberation. This article seeks to demonstrate that, as far as marriage is concerned, she was right. Statistics and contemporary commentary show how marriage, once the ultimate and only acceptable status for women, has declined in social significance to such an extent that today it is a mere lifestyle choice. This is due to many factors, including the ‘sexual revolution’ of the 1960s, improved education and job opportunities for women, and divorce law reform, but the catalyst for change was the feminist critique that called for the abandonment (rather than the reform) of the institution and made the unmarried state possible for women. I conclude that this loss of significance has been more beneficial to British women in terms of the possibility of ‘liberation’ than appeals for legal change and recognition, and that we should continue to be wary of looking to law to solve women’s problems.

This special issue derives from a workshop held in April 2010 in Marrakech by the Working Group on Gender and Law of the Research Committee on Sociology and Law. The workshop took as its theme 'Law and the power of feminism,' a title derived from Carol Smart's book Feminism and the Power of Law (1989) which had just celebrated the twentieth anniversary of its publication. Contributors to the workshop (who came from Australia, Canada, South Africa, the United Kingdom and the United States) were invited to present papers on their own research interests that engaged with the arguments of Feminism and the Power of Law. Although the book was our starting-point, the papers were not intended to offer a direct critique of the book or Smart's work generally. Rather, the workshop presented an opportunity to demonstrate (rather than to assess) the continuing significance and relevance of Smart's ideas across a range of subject areas and jurisdictions - to show, indeed, what an inspiration she has been to us all. Reprinted by permission of Springer

In this article the author revisits Carol Smart’s 1989 publication Feminism and the power of law . She engages with Smart’s main claims by way of a number of other thinkers. Following Marianne Constable’s description of contemporary American legal thought as socio-legal, the author tentatively considers if it could be argued that some strains in contemporary legal feminism that adopted a sociological method resulted in a similar absence of justice that concerns Constable. Smart’s caution against the development of a feminist jurisprudence is critically analysed with the benefit of hindsight. Drawing on Deleuze and Guattari, Foucault and Goodrich, the author tentatively considers the becoming of a feminist jurisprudence as a minor jurisprudence. What we most lack is a belief in the world, we’ve quite lost the world, it’s been taken from us. (Deleuze 1995 , 176) Sociology takes social creation to be the whole of what is and will be. (Constable 1994a , 589)

In Feminism and the Power of Law Carol Smart argued “law must also be tackled at the conceptual level if feminist discourses are to take a firmer root” (Smart in Feminism and the power of law, Routledge, London, 1989 , 5). In Canada, the Women’s Legal Education and Action Fund (LEAF) ’tackled‘ the concept of comparison in the age equality case of Withler v Canada , 2008 BCCA 539. Rejecting ’similarly situated ‘(or ’groups‘) comparison as inconsistent with substantive equality, LEAF advocated a “contextual” approach to import gender into the Withler frame. However, LEAF did not identify a male comparator even though all of the plaintiffs were women. Accordingly, it is unclear whether LEAF’s contextual approach obviates comparison, permits comparing some women to other women, or is synonymous with ‘grounds’ comparison. I argue LEAF could have named the patriarchal state as the male comparator in Withler , thereby aligning their contextual approach with ‘grounds’ comparison and offering substantive equality a ’firmer root’.

In 1989 Smart problematised law as a masculinist knowledge which disqualified other forms of knowledge, particularly feminism. Twenty-one years later Smart characterises the relationship between law and feminism quite differently. In this account law responds to feminism and outcomes are progressive. Smart suggests that rather than continuing to focus on law’s disciplinary and normalising role, it is more productive to conceptualise contemporary family law as a creative kinning practice. We argue, however, that we must also bring into this account the changes to the state brought about by neo-liberalism. The paper tests these observations about the trajectories of feminism, law and neo-liberalism by reflecting upon our study of the Albert Kennedy Trust (AKT). AKT was established in 1989, in the wake of gay and lesbian resistance to Clause 28, to provide homes with gay and lesbian adults for homeless gay and lesbian teenagers. We are interested in AKT’s shift in its description of the adults’ relationship with the teenagers in their care from ‘brothers and sisters’ to ‘carers’ as it moved from a marginal force to mainstream partner/provider. In this context we explore the complexity of law’s responsiveness to feminism’s dynamism, its contingent recognition of kinning practices and, in the light of neo-liberalism, its continuing disciplinary role.

How can women create a meaningful and joyous life for themselves? Is it enough to be equal with men? In this provocative and wide-ranging book, Drucilla Cornell argues that women should transcend the quest for equality and focus on what she shows is a far more radical project: achieving freedom. Cornell takes us on a highly original exploration of what it would mean for women politically, legally, and culturally, if we took this ideal of freedom seriously--if, in her words, we recognized that \"hearts starve as well as bodies.\" She takes forceful and sometimes surprising stands on such subjects as abortion, prostitution, pornography, same-sex marriage, international human rights, and the rights and obligations of fathers. She also engages with what it means to be free on a theoretical level, drawing on the ideas of such thinkers as Kant, Rawls, Ronald Dworkin, Hegel, and Lacan. Cornell begins by discussing what she believes lies at the heart of freedom: the ability for all individuals to pursue happiness in their own way, especially in matters of love and sex. This is only possible, she argues, if we protect the \"imaginary domain\"--a psychic and moral space in which individuals can explore their own sources of happiness. She writes that equality with men does not offer such protection, in part because men themselves are not fully free. Instead, women must focus on ensuring that individuals face minimal interference from the state and from oppressive cultural norms. They must also respect some controversial individual choices. Cornell argues in favor of permitting same-sex couples to marry and adopt children, for example. She presses for access to abortion and for universal day care. She also justifies lifestyles that have not always been supported by other feminists, ranging from staying at home as a primary caregiver to engaging in prostitution. She argues that men should have similar freedoms--thus returning feminism to its promise that freedom for women would mean freedom for all. Challenging, passionate, and powerfully argued, Cornell's book will have a major impact on the course of feminist thought.

Contemporary theorists have become increasingly receptive to the selective incorporation of Foucaultian theory within feminist frameworks. However, the reception of Foucault within feminist legal critique has been less enthusiastic. The most celebrated theorist to argue for the incorporation of Foucaultian insight within the feminist analysis of law is Carol Smart. While conceding the significant contribution of her work, this article will argue that her interpretation of the Foucaultian thesis on law is considerably more problematic. Illustrating the extent to which she adopts an unnecessarily pessimistic prognosis for the development of Foucault within legal analysis and reform, this article will examine an emerging counter-interpretation of Foucault that presents the possibility for a more promising application, seeking to provide a defence both of the utility of Foucault for feminist jurisprudence, and of the utility of legal reform strategies being exercised for feminist purposes.

A TOTAL of 6,516 couples have cemented their relationships with a civil partnership since legislation came into force last December.