The Law Becomes Us: Rediscovering Judgment

Introduction

Thirty years ago, when feminist legal theory was in its infancy, it might have been difficult to imagine women and feminists occupying en masse the most privileged, senior and interior positions available in the common law. It might have been even more difficult to imagine a large number of such feminists putting feminist theory and scholarship into practice in the constrained environments of the superior court. It would undoubtedly have been hard to imagine this making a significant difference to law in general, which has often appeared to be so widely oppressive to women in its doctrines and practices. Feminist legal thought from the 1980s does suggest that these imaginative leaps might have been difficult. An early focus on liberal equality and the inclusion of women into the profession and into public life gave way in the 1980s to a more complex and extensive account of the doctrinal, structural, and cultural reach of male dominance (Rifkin 1980; Dalton 1988, 4–8). Many feminists perceived themselves as outsiders, critics of a largely intractable, privileged, almost exclusively male, generally masculinist, often misogynist, legal monolith which still carried many overt remnants of its recently paternalistic and outrightly discriminatory past (see especially MacKinnon 1983). Under these conditions, even if feminists could imagine women becoming judges, the other obstacles—that women would be feminist judges and make a difference to law—might have appeared almost insurmountable.

Regardless of whether or not feminist judging was imaginable in the 1980s, a large number of feminists have imagined it now and, in fact, done so persuasively. They have imagined themselves as legal insiders, even if their gender and feminist perspective would situate them still as outsiders and subversives, though perhaps to varying degrees (depending on the style of their feminism and other contextual factors such as socio-economic background, ethnicity, and sexuality). At the outset, and before getting into detail, I would like to say that this is a remarkable achievement on several scores: the book and the project which led to it are impressive and, more broadly the fact that some (not all) can, and do, now imagine themselves in this way surely illustrates the success—slow and incremental as it may have been—of the larger feminist project as well as of its myriad components. At the very least, it is perhaps possible to say that the imaginative gap between the legal establishment and feminist legal theory is at last being reduced. Arguably, the judgments also represent the return of feminist scholarship to feminist activism through the socially engaged practice of judging (Hunter et al. 2010, 8).

The idea of writing a book of feminist judgments appears on its face to be a conceptually straightforward one. It simply peoples the higher courts with judges who are reflective about gender and about the effects of power on the operation of the law. The exercise of course assumes the judge-driven dynamism of the common law rather than the more certain legislatively controlled civil law, but it takes place within the relatively stable context of well-trodden legal concepts, rhetoric, and discourse. We know that judges are human, that they have discretion and that several axes of choice are always present in the process of reaching a decision (Stone 1959, 610–615; Conaghan 2010, 417)—what if they exercised that discretion as feminists? Undoubtedly there will be complexities and disputes over what it means to judge as a feminist: what the doctrinal possibilities are, what the appropriate reasoning and outcomes might be, and how far the boundaries can be pushed while remaining in some sense ‘true’ to the law. Nonetheless, isn’t the idea of putting feminist theory into judicial practice reasonably straightforward? Despite the superficial simplicity of the concept, however, what this book illustrates—and what I would like to elaborate upon in this review—is that the exercise of feminist judging foregrounds critical questions about the substance, structure and very concept of law. Not only does the book resonate with a diversity of areas of substantive law of interest to feminism it also resonates with the complexity of possible feminist approaches to these issues, with some two decades of scholarship about women and feminists as judges, as well as jurisprudential and methodological matters of some depth and controversy. Predictably, some of these critical issues arise as a result of what feminists have long understood as the inability of much of the doctrine and underlying principles of law to deal with the material conditions of women’s lives: abstract rights, formal equality, the public/private distinction, and the model of the rational individual lead to a legal practice which is exclusionary and often unsympathetic to core modes of women’s existences and relationships. In addition to these matters of doctrine and principle, however, are similarly enduring questions about the nature of law, its place in the socio-political complex, the nature of legal authority, and the position of individual agents—as subjects and officials—in the construction of law. After briefly describing the project and offering a few initial observations and impressions, I will focus on some of these theoretical questions.

‘Ferment is Abroad’

Llewellyn (1931), 1222.

Briefly, after seeking proposals for feminist judgments and receiving a large number of responses, the editors of Feminist Judgments selected a number of cases which had been decided by courts in England and Wales. The geographical reach of the project was (understandably) limited essentially by jurisdictional factors, but—unlike the Canadian experiment from which it took its inspiration—was not limited by subject-matter. The objective of the project was for each self-appointed judge to reconsider the issues with the benefit of their feminist consciousness and to add a judgment or an imagined appeal to the case. The result is 23 re-written judgments ranging across extraordinarily diverse subject matters and areas of law. In the book, the cases are divided into five categories—parenting, property and markets, criminal law and evidence, public law, and equality. Each judgment is accompanied by a commentary which reflects upon the area of law, the broader circumstances of the case, and the feminist nature of the judgment. A number of the judgments do not reverse the original decision, but rather reach the same outcome using a different reasoning process.

The book is part of a wider project of academic legal activism. I hesitate to use the term ‘movement’ because it has not yet come to that, and perhaps never will, though there is certainly some momentum toward a collective enterprise. As the editors explain in their introduction, the Feminist Judgments Project, which has resulted in this book, was inspired by the Women’s Court of Canada, a group of activists and academics who reconsider and rewrite equality cases under section 15 of the Canadian Charter of Rights and Freedoms (Majury 2006). The Women’s Court of Canada was preceded by two books in which US scholars rewrote their major cases on race segregation and abortion (Hunter et al. 2010, 3 n. 2). A further feminist judgments project is now being proposed for Australia.² In a yet more practical setting, women-driven enactments of legal events, such as the Women’s International War Crimes Tribunal (Chinkin 2001), take the initiative in reconstructing law with attention to gendered harms ignored or downplayed by formal law. So while ‘movement’ might be premature, a modest degree of ‘ferment’ may be apparent.³

I read the entirety of the text (a rarity for me these days) though not exactly ‘cover to cover’ since I took the commentaries/judgments and introductory chapters in more or less random order. Before getting into my more serious analysis, several first impressions are perhaps worth mentioning. First, the superficial categorisation adopted in the table of contents hardly does justice to the diversity here, which includes cases on manslaughter by neglect, pregnancy discrimination, consent to medical treatment, same-sex marriage, capacity to marry, refugee law, trespass to property, custody to children under family law, the defence of provocation, consent to bodily harm, evidence and many more. The excellent introductory chapter by the editors surveys this complex terrain in detail, providing a much more nuanced account of the material than any table of contents can convey. The complexity is not, of course, reflected only in the doctrinal subject-matter of the cases, but also (as explained in the introduction) in the very practical task of deciding cases. Decisions had to be made not only within the significant constraints of legal doctrine, the judicial role, and facts available at the time of the decision, but also in view of some decades of feminist critique of law. In many cases, the feminist outcome and process of reasoning is arguable, adding to the sense that the individual authors have not taken the easy path, but deliberately chosen more difficult and contestable areas.⁴

Second, although the cases are not fully ‘representative’ of English and Welsh law they obviously do grow out of it and—to my surprise—this was a law which was far less recognisable to me than I expected. Having been educated in an Australian university in the days (prior to the Australia Acts 1986 and well before the UK Human Rights Act 1998) when an Australian law degree contained quite a bit of English law outside constitutional and real property law, I was struck by how far the two systems appear to have diverged in the past 25 years. The book was, therefore, very instructive even at the level of substantive English and Welsh law. The divergence in legal doctrine and systems has not, however, produced very significant differences one way or the other when it comes to questions of gender—the underlying issues remain predictably similar.

Thirdly, as I have indicated and this was not a surprise to me, I found it persuasively both judicial and critical. I say this with the qualification (confession) that I rarely, to my discredit, read judgments. Brenda Hale, who is a judge (the only woman ever to sit on the House of Lords and Supreme Court), says—more cautiously—“it is remarkable how plausible [the judgments] mostly are” (Hale 2010, emphasis added). It is of course one of the many objectives of the book to show that feminist ‘perspective’ adds a socially reflective dimension which is in fact far more than mere ‘perspective’ but rather an ethically good, critical, and responsible mode of interacting with the law (Hunter 2010, 31). It should not be in the least surprising that reflection of this nature used in the service of judicial decision-making should lead to decisions which are plausible and even persuasive. The best judgments in actual courts are reflective and responsive, regardless of whether we would characterise them as feminist (cf Roach Anleu and Mack 2011). Many of the feminist judges have also clearly relished the opportunity to write in a judicial style, adopting rhetorical flourishes to intensify the delicate balance of parody, critique, and incisive commentary (see e.g. Auchmuty 2010; McGlynn 2010). The commentaries add scholarly context but they also, more importantly, emphasise the reflexive and dialogical character of judgment. The judges were, like all judges, obliged to decide the cases, but the fact that they necessarily do so in the context of broader dialogue and critique cannot here be erased because of the immediate proximity of commentary on the process.

Finally, I really do want to emphasise how extremely useful the three introductory chapters are in describing, analysing and to some degree self-critiquing the project and the judgments. Introductory material in edited books is frequently tedious, even irritating. This can be because the editors have not had the opportunity (or the will) to draw out and expand upon the difficult intellectual connections between the contributions. Or it can be that the writing process has not provided sufficient opportunity for those connections to develop and mature. This book is different in that it is evident that it is only the end product of a genuinely participatory process in which the results were grounded in the process itself and not simply externally imposed by existing theory. Of course there is to some degree a common intellectual terrain shared by the feminist editors, commentators, and judges here but I also gained the strong sense that the material had been thoroughly worked through and collectively and individually agonised over. The introductory chapters capture a good deal of this richness and complexity, placing it within a broader scholarly and theoretical context.

One consequence for me of this excellent beginning to the book is that much of what needs to be said about the practice and theory of feminist judging has already been said thoroughly and self-reflectively. Rather than rehearse this material in further detail, or nitpick about various details which I may not entirely agree with, or add extra fuel from an uninformed position to the very considerable literature about feminist judging, I want to ask rather what this book and this project mean and what they do for the law.

Dressing Up

Being a judge is of course a deadly serious business, but it is also essentially about playing a role—assuming the authority, the conventions, the context, and the centuries-old tradition of the system we call ‘law’. To reverse and undoubtedly mutilate a phrase used some time ago by Drucilla Cornell, the justice dresses up as the law (Cornell 1992, 155).⁵ There is a circle here, or perhaps a spiral—the human justice dresses up as/in law in order to repeat and give weight to the association of law and abstract justice. Nonetheless, abstract justice is never completely served by the law alone because there will always be a new case which is not addressed by law and because there are often genuine difficulties about what constitutes ‘justice’ in a particular case. Moreover, no matter how much law the judge is clothed in, she is still in the end responsible for deciding the case. Ultimately, the judge is on her own, a situation described by the editors as a “bracing experience for some of the feminist judgment-writers” (Hunter et al. 2010, 17).

By taking on the mantle of judge, the feminists in this project have taken on the law—dressing up as judges they have also dressed themselves in law, in order to expose or reveal it. In a striking comment which I would like to reflect on for a few moments, the editors of Feminist Judgments put it like this:

The Feminist Judgments Project represents a form of academic activism, an attempt to tackle power and authority not from the distance of critique but on their own ground. By appropriating judgment-writing for feminist purposes the judgment writers engage in a form of parodic—and hence subversive—performance. In much the same way as Judith Butler describes ‘drag’ as a performance that subverts gender norms, these feminist academics dressed up as judges powerfully denaturalise existing judicial and doctrinal norms, exposing them as contingent, and as themselves (the product of) performances (Hunter et al. 2010, 8, emphasis added).

Of course, the most celebrated woman-dressed-up-as-judge engaged in a parodic, though arguably neither straightforwardly subversive nor feminist, performance was Portia.⁶ The editors have wisely chosen to avoid such problematic and in any event now clichéd comparisons (though I am evidently not above it). But the reference to Butler is very apt. A female judge is no longer literally in drag as Portia unavoidably was, though she is still performing a traditionally and still predominantly male role. The reified masculinity of the judge is illustrated in legal theory by Ronald Dworkin’s ideal judge Hercules—the epitome of male strength and decisiveness, if not wisdom or fairness (Dworkin 1986). There is a singular inappropriateness of modelling the judicial ideal on an ancient hypermasculine and occasionally unhinged superhero whose labours consisted of various forms of violence against animals, monsters and women—the Amazons (Rackley 2005, 217–218). His gender, of course, has been remarked upon by numbers of feminists, as has his completely implausible ability to find consensus in a diverse community and his resulting exclusionary politics (Berns 1991; Hunter 2002, 264; Hutchinson 1987). Dworkin’s Hercules appeared in the 1980s, when female superior court judges were still a rarity, but the imagined masculinity of the judge has not yet receded, meaning that the female judge—like any woman operating in a strongly male-identified field—has to reinvent the part for herself. She can’t simply step into a role which matches her social identity as a woman, but has to code as both a woman and a judge. These roles are culturally in tension and still lead to negative gendered commentary and sometimes ostracism and hostility (Menkel-Meadow 1988; Rackley 2002; Thornton 2007). Unsurprisingly, there is empirical evidence that women perform and experience the role differently to men (Feenan 2009; Roach Anleu and Mack 2009).

There is also certainly a sense in which a feminist judge undertakes a kind of metaphorical drag, in the sense that she consciously attires herself in a masculine tradition and performs this tradition with a feminist consciousness. Like drag, the result is a subversive iteration of a normative context. Drag artists consciously perform gender by taking on roles and conventions which are not their own. Similarly feminist judges (whether or not they self-identify as such) must to some degree be conscious of the distance between legal imperatives and feminist politics (Hunter 2010). At the same time, failing to keep faith with the law would result in a failure of the performance. Feminist judges are not at liberty to ignore legal conventions in favour of simply applying a feminist approach but rather must, like all drag artists, be faithful to pre-existing normative ideas. In some cases, this may take the form of holding others to legal account—in a sense making the law more legal and judgment more impartial, especially where its interpretation has been noticeably distorted by stereotypes or by some reasoning process conventionally regarded as beyond the boundaries of law (Backhouse 2003, 168–172).⁷ Having said this, I would argue that drag is the judicial norm, not the exception, and that all judges are performing a role. The differences posed by feminist judging are first, of degree (is the judge’s person reflective of or in tension with the idealised judge?) secondly, of consciousness (is the judge aware of this tension and of the gendered nature of law) and thirdly of purpose (is she willing where possible to promote equality?)

Performing

Insofar as the academic feminist judges are performing a role as outsiders—a traditionally masculine role within a decidedly un-feminist tradition—they are in drag, and defined or subjected to a system not of their making. In this instance (unlike ‘real’ feminist judges) they are not judges, but academics and activists. And of course, as the editors suggest in the quotation extracted above, all judges are performing a role and one point of consciously adopting it is to expose and denaturalise the judicial performance. But as usual there is another side to this question—a sense in which women, feminists, and all judges, are not (only) drag artists taking on and defined by a foreign role but simply agents and performers in a large and ongoing legal drama, creating their role, their identity and their law as they go along. The distinction may appear to be a difficult one, but I think it is important because it underscores what we think the law is, and how we identify ourselves in relation to the law (that is, as mere subjects of law, or as agents of it).

To put the matter simply (I hope). As drag artists, feminists (and other judges) assume the mantle of a law which is different from or outside their own identity. At the same time they actively perform and construct the law, and are therefore thoroughly at one with it. The action of taking on a role and doing so persuasively is inevitably characterised by these outside-inside and imitative-constitutive tensions. Do we see ourselves as separate individuals taking on and simply mimicking a role in a pre-existing system other to ourselves (the law) which is different to our identity? Or, do we see ourselves as networked in a unique and original process in which we perform the law (in the way that we perform gender) in all of the roles we happen to have, judicial, academic, activist, or otherwise? The concept of performance implies that we do both, at the same time (see Derrida 1981, 191–198; Butler 1990, 137; Davies 1996, 134–139). This is not a paradox or contradiction, because the two views of the law-subject connection are different aspects of the one relationship. On the one hand, the subject is subjected to a law which is foreign to her identity and which does not welcome her because she is not made in its preferred image. On the other hand, the law is nothing more than the collective performances of a multitude of agents fictionalised into a system, a unity, or ideational entity. It is a living, not reified, system, not distinguishable from the human relationships which constitute it.

This much is suggested, if not spelt out, in the Introduction to Feminist Judgments, and reiterated in the approach of the judgments in the book. While the editors do not elaborate on the nature of law, the emphasis on judicial performance and their insistence that the objective is to change the law and intervene in its constructions of truth strongly suggests a performative rather than a system-based notion of law (Hunter et al. 2010, 8–9). The judges are dressed up in the law but, having taken it on, it is their law to perform, not a system from which they are simply alienated. Judges are obviously constrained by law, and by the legal system as a system. On the performative view, however, they never simply apply law, but rather replay it in view of new situations and changing social contexts. Moreover, judges are not the only people who create the law. The legally constitutive roles of counsel and those sometimes permitted to intervene as amicus curiae are sometimes forgotten or downplayed in thinking about who shapes legal outcomes and our (provisional) statements of what law ‘is’ (but see Berns 1999, 102–106). Such figures are also performers. And following Ehrlich, Cover and others, I would extend the active performance of law beyond those permitted to interpret the law in the courtroom, to all subjects of law in all contexts (see Davies 1996, 2008, 2011; Ehrlich 1922). Sometimes these performances filter up into official statements of law, but more broadly they constitute the background, the context, and the cultural environment which give meaning and substance to official pronouncements of law. It is, after all, not literally the statute or constitution that is ‘always speaking’⁸ or even the individual judge who originates novelty in the interpretation of a statute. Society changes as a result of the microprocesses of interaction between people, and although it never speaks with a single voice, it does provide a substratum of meanings from which the law is drawn (Cover 1983).

The duality of performance consists in the fact that in the one process, a person assumes a code and reinvents it. It is now trite but still important to repeat that even minimally, every repetition—even if its departure from what has gone before is not very evident—is different (Derrida 1988, 53; Davies 1996, 111–112). The ‘code’—whether we are talking about law or gender—is nothing more than the performances which constitute it, though we reify it as a system or structure with its own identity (meaning that it still makes sense to talk of law as if it has boundaries, insides and outsides). This is different to saying that judges experience freedom and constraint, or stating that they make as well as apply the law. The difference is that the idea of performance sees the law as the performance, rather than as some system, code or set of norms which exists apart from and before judicial decision-making.

It is for this reason, that once we deploy the notion of performativity as definitive of law, we cannot stop merely at judges. Judges do perform law, but so also do lawyers, legislators, bureaucrats, and legal subjects through countless actions on an everyday basis which interpret and operationalise law. There are innumerable differences, of course, in these performances. Each action has its own space and scale, its own embodied performers, its own normative context. The judge hearing a case in her courtroom plays a different part to the feminist scholar re-conceptualising and re-writing a judgment or debating the feminist merits of a particular approach with her peers. But they are both in their own way constitutive of law. There is nothing intrinsically radical or progressive about saying that judging is (part of) a performance (Davies 1996, 134–139; Klare 1998, 170). It is just another way of understanding law. A performance will often reinforce the status quo. What makes the performance potentially transformative are the values and the reflectiveness with which it is undertaken, and the degree to which the judge is able to push the boundaries of legal convention. It is in the accumulated detail of the judgments, rather than in theoretical abstractions, that the point is made, and I will elaborate on this further in the next section. I have dwelt on the notion of performativity in the law because in my view it is very important to see the feminist judges, as well as the commentators, in this project as having real agency in defining and understanding law. They are not simply outsiders dressing up in the law in order to play a judicial part and in doing so show what the law might be (if things were different). They are also actors in (and inside) an intricate and extended legal network and their performances show the law as it is—not necessarily what doctrine is (though in many cases their rendering of doctrine appears far more compelling than the accepted view⁹) but rather how the law operates, what judges do, where law works and where it has gaps, and so forth. To quote the editors again, “[r]ather than accepting our (feminine) invisibility and powerlessness, we have exercised collective agency to attempt to leave “a female-gendered mark on the law”” (Hunter et al. 2010, 8).

Multi-dimensional Law

As I have said, it is in the accumulated practical detail—and there is a huge amount of it—that the book makes its most powerful theoretical case. However, there is no ‘law as integrity’ here in which a best light of legal principle is seamlessly harmonised with the idealised values of a community of feminists (Dworkin 1986). There are, of course, some cases where the feminist approach is relatively uncontroversial.¹⁰ But on the whole, feminist judgment—like all ‘critically aware’ judgment (Hunter 2010, 43)—proves to be messy jurisprudence: the judgments often expose emotional suffering and profound relational complexities, they reveal the constant strain involved in meshing human lives with abstract principle, and they struggle with the frequent intractability of the universal-particular disharmony. ‘What is right in this situation?’ compared with ‘what understanding of legal principle will achieve the best overall outcomes?’ ‘What is right for this particular woman?’ compared with ‘what will improve the lot of women in general?’(see e.g. Sheldon 2010, 63) How should we read situations in which brute fact poses a direct challenge to fundamental ontological narratives including those relied upon by feminists (such as that of individual bodily unity)? (Huxtable 2010; Hastings 2010). To paraphrase Zenon Bankowski: how can I, the individual judge who is existentially alone with my decision, reconcile my own integrity and identity with these particular facts in the context of legal reason? (Bankowski 2007, 27, 33) Most painfully, feminist jurisprudence struggles with silences and exclusions: what part of this story hasn’t been told, cannot be told, or will never be heard in a legal medium? (see e.g. Edwards 2010; Bano and Patel 2010). How can vulnerable parties be made visible to law and their interests recognised, without negatively affecting the situation of others? (Diduck 2010, 108) As indicated above, in many instances the authors have deliberately chosen the difficult rather than the easy cases, meaning that such questions can’t be answered once and for all (except perhaps by moral dogmatists). They can only be answered ‘in the judgment space’ (Bankowski 2007) where an effort is made to understand the situation both normatively and in its absolute distinctness.

A frequent concern of feminist legal theory has been the apparently unyielding detachment of law from everyday realities and the complexity of women’s lives. One of the strikingly successful elements of the feminist judgments project is the incorporation of more of what social scientists refer to as the thick description (Geertz 1973) of human relationships into the process of judging. In consequence, a real effort is made to counteract law’s frequently two dimensional rendering of facts and through this thick reading of facts to infer legal principles from life’s substance. Judges who are attentive, for instance, to the many forms of social power can read facts in a way which is not available to those who presume abstract equality between individuals. This is demonstrated very cogently in Rosemary Auchmuty’s judgment in Etridge, a case which concerned the problematic area of sexually transmitted debt and the difficulty of balancing the principle of formal equality with continuing unequal distributions of power: “the knowledge that women enjoy formal equality should not blind us to the fact that almost all the case law concerns married women and that, for historical and cultural reasons, there are special pressures upon women in marriage” (Auchmuty 2010, 156). In Auchmuty’s judgment, the broader cultural situation of married women is an integral element of understanding the facts fully as is the absolute imperative to ensure that the women are treated with equal respect by legal professionals, banks, and ultimately the judges who decided the case (Auchmuty 2010, 158, 165; Horton and James 2010, 410). The objective of seeing, comprehending, and foregrounding the interests of those marginalised or even erased by abstract individualism is a common theme in these judgments (see also Carr and Hunter 2010).

It is also possible to detect in some judgments not only appropriately detached judicial attention to real-life relationality and complexity, but also a more (conventionally) challenging judicial empathy, engagement, and even intimacy concerning disputes and their resolution (see e.g. Bridgman 2010; Harris-Short 2010). Again, this is not a characteristic exclusive to feminist judging, and nor is it a necessary element of feminist judging. It is however a further example of the attempt to shift judicial discourse into a new terrain in which both relation and empathy are not exceptional or even notable, but rather unremarkable.

There are many examples of a more relational and empathetic approach in the book, but I will take just one. The judgment in Baird Textile Holdings v Marks & Spencer is emblematic of this effort to give legal meaning to interlocking lives. Baird was a case decided by the Court of Appeal in 2001. It involved a claim by a clothing supplier to British retail giant Marks & Spencer (M&S) following the severing at short notice by M&S of a 30 year supply relationship. The problem for Baird was that the only formal contracts concluded between the parties were of short duration—concerning only the immediate future supply rather than any long-term expectations. Baird claimed a breach of an (implied) contact and, moreover, that M&S were estopped by their long-term behaviour and Baird’s reliance on it, from terminating the agreement without reasonable notice. The Court of Appeal rejected both claims and although, as John Wightman comments, as a commercial case it may appear to be “unpromising material for a feminist judgment”, in fact it turns out to be an “excellent candidate” (Wightman 2010, 184) because it rests on the extent to which long-term co-operative relationships give rise to legal expectations and ultimately obligations. The feminist judgment emphasises a relational rather than an individualist ethics, and the need to balance flexibility with certainty in business dealings, carefully drawing these principles from a re-telling of the facts which emphasises the mutuality of the parties’ business dealings. The parties were not abstract contracting individuals who made a purely commercial arrangement on a cost-benefit basis: over time, they became enmeshed with each other’s businesses, Baird in particular, opening their business to M&S involvement, as the feminist judges, Linda Mulcahy and Cathy Andrews, observe:

M&S were much more intricately involved in Baird’s business than might be expected of a relationship consisting of a series of seasonal contracts between two arms-length parties. In particular, they took part in decisions about investment, acquisition, design and manufacturing and required Baird to supply a level of confidential information to them which would have been inconceivable without an overarching understanding of duties owed to each other (Mulcahy and Andrews 2010, 192, see also 197).

M&S were clearly the senior and more powerful partner, and this involvement in commercial decision-making was not reciprocated. Nonetheless, the identity of M&S as a business was in a real sense a product of the types of close relationships it formed with its suppliers (Mulcahy and Andrews 2010, 193). Even more obviously, the business identity of Baird was very much shaped by its dealings with M&S. The recognition by the feminist judgment that an umbrella contract is at least plausible in such circumstances represents an affirmation of that identity and the relations which underpinned it. Even on this brief description I think it can be seen that although the case lacks an evidently gendered aspect it nonetheless provides a profound illustration of a feminist—and generally critically aware, responsible, responsive, and contemporary—approach to the issue. It is not an exclusively or distinctively feminist response because it is also underpinned by relational contract theory: this theory does, however resonate more strongly with a feminist ethos than abstract individualism. Of course, law never achieves (and nor could it) a thick description in the manner of ethnography, because law imposes normative limits on what can be seen and taken into account. Those limits can, however, be stretched, and they can also be very carefully unpacked and re-aligned so that, for instance, matters and people marginalised by existing doctrine become more fully visible and significant (see e.g. Munro and Shah 2010; MacKenzie 2010). In this sense, the judgments arguably reinforce what is most central and most powerful about the common law—which I have described in the language of performativity—that is, its ability in the one moment to renew the law and apply it to an immediate and often complex set of facts. Law has the potential to develop a culture which is moribund, inhibited by dogma, and pointlessly attached to tradition (as critiqued in Harding 2010, 440–441). The best antidote is surely the ability of critically-aware judges to draw law out of challenging circumstances in a way which is responsive to changing social contexts and which retains law’s emphasis on the human.

Feminist Legal Cultures

In the end, the law (as opposed to individual laws) is not going to be changed by theory, it is not going to be changed by specific reforms or by individual judges, and it is not going to be changed by critique. All of these interventions have an influence, of course. But the only way the identity of law—in its ethos, its culture, its fundamental attachments, its boundaries, and its metaphysics—has ever changed, and the only way it ever will change, is through sustained critical-mass practices which bring new meanings, and new directions to legal culture. For this reason it is the collective effect of this book rather than individual pieces or any theoretical rationalisation, which most contributes to legal change. It does show what is plausible and possible for the law in individual cases, but more importantly it constitutes a collective effort to shift the discourse and emphasis of law. Although it presupposes many things—including prior worlds of feminist theory, feminist activism, judicial practice and the entirety of the law—as a collection of performances its power lies in what it does as much as what it says.