This article engages with the vogue for predicting the effects of the Human Rights Act 1998 by focusing on the rape prosecution and trial. The specific interest is feminist scrutiny of the right to a fair trial, particularly the concept of ‘fairness’, in light of the increasing use of disclosure rules (in Canada and England) to gain access to medical and counseling records. Transcending the two contemporary narratives of ‘victims’/women’s rights and defendants’ rights in the criminal justice system, the authors (...) argue for the infusion of the legal debate on disclosure with feminist understandings of wider cultural debates. They suggest that an increased reflexivity about intimacy, publicity and power, leading perhaps to the development of a concept of ‘democratic publicity’ (Fraser, 1997, p. 100), might help to revision the meaning of ‘relevant’ evidence in the rape trial. They also suggest that the wide-ranging cultural debate about memory, truth and history, and the emerging commitment to experimentation in responding to massive, institutionalised human rights violations (including apartheid, war crimes and child abuse) might be of use in deepening current thinking about the rape trial and listening to the ‘voice’ of the complainant. (shrink)

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. (shrink)

This article explores the tensions between autonomy and expectations of mother-caregivers, in the context of normative trends in post-separation parenting law. Going back to first principles of feminism, the article asks what scope for autonomy there is for modern mothers in the face of socio-legal norms that prioritise shared parenting. The very relationship between mother-caregivers and children illustrates the important connection between relationships and autonomy: the caregiving that mothers provide enables children to become autonomous persons yet, at the same time, (...) this caregiving relationship constrains maternal autonomy. In the current context that encourages shared parenting, the potential for maternal autonomy may be even more compromised—a deep irony in a supposedly post-feminist era. A responsible mother is now expected to nurture a child’s relationship with the father, unless he is proven to be harmful. The ability of women to be at all autonomous from the fathers of their children in the face of this normative expectation is dubious, even when the adults live separately. Moreover, the dominance of the heterosexual and patriarchal family—always a challenge for women’s autonomy—is reproduced in this imposition of equal parenting in the name of children’s rights. This article uses a contextual approach to relational autonomy to point to an approach that might challenge the normative climate of shared parenting. (shrink)

This thesis examines some of the contested meanings of what it is to be a self, person and individual. The law of obligations sets the context for this examination. One of the important aspects of contemporary feminist philosophy has been its move beyond highlighting inconsistencies in political and legal theory, in which theoretical frameworks can be shown to rely upon an ambiguous treatment of women. The feminist theorists whose work is considered use these theoretical weaknesses as a point of departure (...) to propose different conceptual frameworks. I start by analysing contemporary work on the self from within both philosophy of science and feminist metaphysics to draw out common approaches from these diverse positions. These themes are then discussed in the context of the law. I then critically examine the concept of legal personhood in the work of Drucilla Cornell and her proposals for the amendment of tort law. This is juxtaposed with an analysis of the practical operation of tort law by adapting François Ewald's work on risk and insurance to English law. I concentrate on women's ambiguous position with regard to both risk and to the image of the individual that is the subject of Ewald's critique. This is followed by an examination of the changing position of women with regard to 'possessive individualism', 'self-ownership' or 'property in the person' in relation to contract law and social contract theory. There are a number of different social contracts discussed in the thesis: Cornell's reworking of John Rawls and the stories of Thomas Hobbes and of Carole Pateman. The final 'social contract' to be discussed is that of 'new contractualism', the employment of contract as a technique of government. I argue that Pateman's critique of possessive individualism continues to be relevant at a time when the breadwinner/housewife model has broken down. (shrink)