Volume marred by lack of critical analysis, Ruth Butterworth

Claiming the Law: Essays by New Zealand Women in Celebration of the 1993 Suffrage Centennial
Elisabeth McDonald and Graeme Austin (eds),
Victoria University Press, $29.95

I was brought up in a matriarchy, educated at a girls’ school by confident women who had achieved in a variety of spheres besides teaching and at a women’s college where most of my tutors were women of high and established academic reputation. New Zealand in 1965 came as something of a shock. In retrospect I understand how the feeling might have been mutual.

What shocked was not so much the invisibility of women, or how pathetically daring and ‘advanced’ the likes of Jaycees and Rotarians thought themselves in inviting (annually) a female speaker, it was the almost total absence of any public critical analysis of any aspect of the society and economy, barring the occasional moral panic about juvenile delinquents. Judge Henwood sums up this vacuity in a comment to Janet November about the 1975 Workshop on Women and the Law. Talking of abortion law and making child care tax deductible, she says,’… it was the first time we’d ever looked at those issues as women’s issues’.

Unhappily, there is not much in this volume which takes us beyond those ‘discoveries’ of the women’s movement in the 1970s. That movement in fact generated the circumstances in the political arena which enabled the preferment onto the bench and into commissions and tribunals of a number of the women who make an appearance in Claiming the Law. They, or their interlocutors, appear blithely unaware of the connections. Joy Liddicoat provides a useful summary of the legal policy and legislative drafting process; but it is innocent of any structural analysis. She contents herself with a glancing reference to the process of policy-making as ‘the political arm of the patriarchy’. This, which is a cop-out, can scarcely be laid against Liddicoat or any other contributor as a criticism for there seems to be neither organising principle nor editorial direction in this volume.

A recent graduate, Carmel Rogers, contributes a howl of rage about legal education and species of legal reasoning. She quotes, disapprovingly, from one authority who having acknowledged the fragility of the law as institutionalised reason nevertheless sees it as all that stands between us and the tyranny of mere will and feeling. Rogers is of the opinion that ‘our will and our feelings are the mass and measure of our human being’ and says that if they mean tyranny, then roll on tyranny. She adds, for good measure, that ‘legal reasoning is scarcely better than a fascist fiction’. Given that the elevation of will and the manipulation of feelings are at the root and branch of the Holocaust and currently rampage across Bosnia, Rogers’ rage should perhaps more accurately be directed against an education which left her in historical unconsciousness.

Not that Rogers does not have every right to be angry about legal education and those aspects of legal reasoning which exclude context. The points are well made by Elisabeth McDonald in an essay on teaching feminist legal theory and why and how the Socratic method should be buried under the nearest dunghill. If Claiming the Law had begun from here and provided us with a feminist exploration of legal education, we would have had a useful contribution to Suffrage Year.

As it is, there are a few clues here that readers may pick up on. In wider terms, only two essays in this volume come close to critical theory. In a technically dense piece on the evolution of accident compensation legislation, Margaret Vennell provides a paradigm case. In her essay, ‘Engendering Poverty’, Jane Kelsey provides an accurately targeted polemic. Between these two it is possible to discern the reality of the law and women today.

Vennell points to the five principles that informed the Woodhouse Commission recommendations. These were comprehensive entitlement, real compensation, complete rehabilitation, community responsibility and administrative efficiency. She traces the derogation from thereto the ‘Unfair Scheme’ of 1992.

Kelsey extracts from her well-exemplified catalogue of recent measures which have disempowered and impoverished women the principles which underlie the present government’s legislation. In contrast to the Woodhouse principles, these are self-interest, competitive individualism and anti-statism. They have been achieved, Ms Rogers please note, by the elevation of authoritarian will and the manipulation of feelings for that specious ‘tradition’ of false notions about Jack and his master and never mind Jill that I encountered a generation back.


Ruth Butterworth lectures in political studies at Auckland University.



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