Armstrong, Susan M --- "Evaluating Law Reform" [2006] UWSLawRw 7; (2006) 10(1) University of Western Sydney Law Review 157

EVALUATING LAW REFORM

Susan M Armstrong*

There has sometimes been a naïve confidence that better law can be a panacea, ameliorating social and other ills. Law reform, particularly legislative reform, has been touted as a means of facilitating progressive change. Liberal feminists, for example, have resorted to law to respond to the inequalities and inequities women experience. Other feminists have been sceptical of law reform, disillusioned with law’s resistance to feminist legal analysis and challenges, and with the uncertain outcomes of feminist-inspired legal and policy changes. A brief survey of recent legislative reform in Australia would confirm this bleak estimation. Law has been used to facilitate neo-liberal economic programs and individualise employment relations; exclude asylum seekers; send single parents back to work; thwart legal recognition of same sex relationships and erode civil and political liberties. At such political junctures, reliance on litigation, rather than legislative reform, may be more effective to ‘restrain, or at best, make visible unjust practices and policies … [and] restore a cautious confidence in the law to effect change.’^[1]

This paper seeks to examine some of the scholarly literature about law reform to evaluate whether confidence in law reform is misplaced. It begins by distinguishing what one commentator has called classical and progressive approaches to law reform, and attempts to situate these approaches within broader philosophical, sociological and political theories. It then reviews some of the debates within feminist legal theory about the value of and risks associated with law reform. It concludes that although law reform will never be a sufficient response to inequalities and oppression, there will be times when it will be possible and necessary.

Approaches to law reform

Law reform is an elusive concept. The threads of reform do not form any ‘clear and consistent pattern.’^[2] Lawrence Friedman declares it has no objective meaning, although the scholarly literature suggests that law reform has a number of meanings.^[3] The starting point of any discussion of law reform, Noel Lyon observes, is to ask the ‘most basic question of jurisprudence: what is the nature and purpose of law?’^[4] The answer from the law reform literature is less than clear, however, as few legal scholars directly address this question or articulate the political or philosophical position informing their analysis. Although there is a growing body of critical legal commentary about law reform,^[5] particularly from feminist legal scholars,^[6] much law reform scholarship is pragmatic, instrumental and atheoretical. Implicit in most of this discussion, however, is the idea that law is a social and political phenomenon and that it ought to serve the needs of society.^[7]

Roderick MacDonald has distinguished classical and progressive approaches to law reform.^[8] He does not clearly identify what constitutes the classical approach, but his discussion suggests he is referring to commentary influenced by sociological jurisprudence and the American realist thinkers of the early twentieth century.^[9] Although neither the realists nor the sociological jurists developed a single or uniform theory, themes common to both schools of thought may be identified, and some of these inform the classical (and also some of the more recent progressive) scholarship about law reform. Legal realists and legal sociologists reject legal formalism and are sceptical of ‘law in books’, concerning themselves with ‘law in action’.^[10] Both schools of thought perceive reality and knowledge (and thus law) as socially constructed and empirically verifiable. As Margaret Davies observes, the realist’s ‘emphasis on the “real” operation of law [meant that] law is not separate from politics, … law is not an end in itself, but a means to an end – we have law for purposes of social regulation and it must be studied as such, not in isolation from society.’^[11] Consequently both the realists and the legal sociologists characterised law as a ‘social instrument which ought to be directed at achieving specific goals’.^[12]

Pragmatic instrumentalism

Some writers have characterised these schools of thought and their contemporary variants more broadly as ‘pragmatic instrumentalism.’^[13] Philosophical pragmatism is part of a movement in science and philosophy which associates meaning and truth with practical consequences or real effects of actions.^[14] Empirical knowledge may then be applied instrumentally to solving practical social problems. Legal pragmatism is concerned with the goals, efficacy and limits of law.^[15] This means relying on experience, context, concreteness and changing social circumstances to judge the relevance and impact of legal principles and legal practice.^[16] Reliance on context suggests that there may be more than one truth. This relativism, and the ‘substantive emptiness’ of pragmatism,^[17] has made it attractive to a diverse range of contemporary thinkers, including legal feminists, critical legal scholars as well as some from the law and economics school.^[18] Martha Minow and Elisabeth Spelman have observed that,

the call to context in the late twentieth century reflects a critical argument that prevailing legal and political norms have used the form of abstract, general and universal prescriptions while neglecting the experiences and needs of women of all races and classes, people of colour and people without wealth.^[19]

Like pragmatic instrumentalism, law reform can also be enlisted in support of different goals and values: the status quo, economic efficiency or substantive justice, for example. A pragmatic instrumentalist approach may be detected in both classical and progressive literature on law reform, although there are also important points of distinctions between these approaches. These differences are discussed below.

A number of evaluations of the law reform experience in Australia,^[20] Britain,^[21] Canada,^[22] New Zealand,^[23] and the United States^[24] illustrate the traditional or classical approach to law reform. These evaluations reveal a general confidence in instrumentalism. Introducing a collection of articles on law reform, Donald King stated that the challenge for law reform was whether ‘knowledge will be utilized for reform and social change … and a better society realized.’^[25] A number of features tend to typify this approach and most are found in these evaluations. They demonstrate a fairly limited concept of law; focus on legal problems and the need to rationalise and improve laws; favour legislation as the outcome; and prefer that the reform project be undertaken by a select group of legal experts, preferably in the institutional framework of law reform commissions. Whilst some very valuable observations are made in this literature, particularly in respect of law reform processes, many of the criticisms Michael Freeman makes of sociology of law might also be made about this law reform commentary. Freeman states that legal sociology is

largely lacking in any [overt] theoretical underpinning. The law – note this often defined narrowly – and the legal system were treated as discrete entities, as unproblematic, and as occupying a central hegemonic position. There was rarely any attempt to relate the legal system to the wider social order or to the State. When reforms were suggested – and … reform was often the aim – they were to make the legal system operate more efficiently or effectively.^[26]

Rarely was law reform suggested to challenge the ways in which society operates. The legal sociologists’ (and also the classical law reformers’) model of society is generally a consensual one: ‘homogenous, static and cohesive, one with shared values and traditions and a common cognition of reality.’^[27] The choice of social model informing analysis is significant, as it will influence what data is looked for, observed and fitted into a broader explanation.^[28] A consensual social model describes, or more often assumes, how ‘power should be exercised in liberal democratic society’.^[29] Like the realist tradition, legal sociologists maintained a ‘liberal confidence in the effectivity of law.’^[30] As Alan Hunt has observed,

[w]ithin … the problematic of legal realism and of mainstream sociology of law we find lurking the general dichotomy. Law in books/law in action is the manifestation of the opposition between ideal/reality; the central content of this opposition within liberal democracy is seen as that between the ideal of social equality and the persistence of the structures of hierarchy and dominance.^[31]

An awareness of the role of law in reinforcing inequality and supporting structural hierarchies of power distinguishes what MacDonald has called ‘progressive’ commentary on law reform from the more limited traditional or classical approach which uncritically relies on pragmatic instrumentalism. Many progressive law reform scholars remain pragmatists however. Although they acknowledge that law is largely supportive of unequal power structures, they accept that law may on occasions be used to challenge these hierarchies, and may assist to ameliorate social inequality. The significance of an awareness of power structures is illustrated in the development of the concept of ‘social’ law reform.

‘Social’ law reform

Several North American legal scholars reject the traditional law reform preoccupation with ‘legal’ reforms in preference for a model of ‘social’ law reform. Two who straddle the traditional/ progressive divide are Canadians Noel Lyon and Robert Samek. Lyon argues that ‘law reform needs reform’ to ensure it responds to the ‘real problems of the legal order.’^[32] Lyon is concerned with reform of law, but within the larger context of public decision making.^[33] He suggests that

the process of reform must plant its feet firmly on the ground in the community where all the messy, insoluble problems are found, … to get a sense of where and how the law might serve to alleviate and possibly overcome some of these injustices.’^[34]

Lyon argues that with the assistance of those who work ‘in the firing line of the legal system’, law reform should develop contextual, holistic and systemic responses which address the ‘root cause of the injustice’.^[35] Lyon claims he strikes a middle course between ‘the two extremes of obsession with statutes and legal doctrine on the one hand, and a too broad concern with social policies and priorities … on the other.’^[36]

Robert Samek makes a stronger case for ‘social’ law reform. He argues that ‘legal change cannot guarantee social change, and that law reform should therefore focus on the latter.’^[37] He distinguishes his argument from Lyon’s which, he says, prioritises legal solutions to social problems, whereas Samek maintains that ‘[g]enuine law reform is social reform.’^[38] Reform must project into people’s lives if it is to be of any use, Samek asserts. Although legislation may be useful he states, it should not be assumed to be, and other ‘systematic, well-founded and sustained’ measures may be more effective.^[39] Although short on practical detail, Samek conceptualises social law reform as a dynamic, inclusive and ‘ongoing process which involves all those human beings who seek to change social practices which may raise doubts about the humanity, justice or efficiency of the established legal system.’^[40]

Lyon and Samek sit between the traditional/progressive approaches to law reform because they are concerned with the ideal of social equality Hunt refers to, but do not incorporate any analysis of power structures. Nor do they question the very construction of social problems. Murray Edelman reminds us that the construction of a social condition as a ‘problem’ is highly politicised and may serve a number of purposes, including to ‘rationalise inequalities based upon class, race and gender.’^[41] He further states that the most common solution proposed is the enactment of a law that promises to solve or ameliorate the problem ‘even if there is little likelihood it will accomplish that purpose.’^[42] Social problems are therefore ‘separated from the human condition’ (and, I would add, their economic and political context), and converted into legal problems.^[43] As Pat O’Malley has remarked about access to justice, this makes ‘a particular judgment about the appropriate solutions to that problem and then … recast[s] the conception of the problem to accord with the nature of proposed solution.’^[44]

It is worth briefly considering some of the literature about access to justice for what it might contribute to an analysis of law reform. Contemporary concern with access to justice and law reform has its genesis in social and political radicalism of the 1960s and 1970s and may trace its intellectual roots back to the realists and to legal sociologists. Like the term law reform, access to justice ‘remains a vague concept within which many assumptions are buried.’^[45] One shared assumption is that justice is provided by legal solutions. MacDonald has traced the displacement from justice to law, and from access to justice to access to law.^[46] Andrea Durbach and Gordon Renouf have recently remarked that there is more concern with access than there is with justice.^[47]

Access to justice debates demonstrate insufficient regard for the points of view and voice of disadvantaged social groups, Renouf argues. He claims that discussion about access to justice rarely takes seriously

the right of poor and excluded people to participate in societal decision making, including in the definition of rights that affect them — that is to participate in the debates about the formulation of law and the processes of governance.^[48]

Tracing the relationship between access to justice and law reform, MacDonald identifies another omission, namely the absence of equal access to law-making institutions such as the legislature and executive, and equal access to the resources to make use of those institutions.^[49] Emphasising this aspect of access to justice not only permits participation by disadvantaged groups, but also promotes public accountability by controlling and limiting ‘the exercise of power by public agencies and officials.’^[50]

Critical progressive scholarship

As noted above, both Lyon and Samek assume a consensual and idealised social model and neither explicitly addresses power structures. Audrey Macklin extends Samek’s prioritising of social law reform. She adopts a conflictual social paradigm which recognises that attempts to alter structural social inequality using law may be resisted. ^[51] She considers law reform to be an instrument in the broader project of social change, but a limited one. Macklin’s pragmatism is fuelled by the need for more participatory and socially useful law reform, but is tempered by an appreciation that existing power structures will often ‘resist and subvert reformist measures.’^[52] With this awareness, she argues that genuine reform must explicitly adopt a more pluralistic approach to generate a broad range of legal and non-legal responses. She demands that law reform be premised on a ‘real group of people and their real life experience … as opposed to an ostensibly genderless, raceless, faceless doctrine.’^[53] Macklin argues for a more expansive concept of law reform which includes the perspective of those whose experience of law is either oppressive or absent, as, for example, when women and children seek law’s protection and law is not activated. These claims provide the basis for what she calls ‘the emergence of a more inclusive and socially responsible and responsive reform mechanism.’^[54]

Considering these demands for more socially responsive and inclusive law reform, MacDonald remarks that the ‘contemporary rhetoric of citizen empowerment advanced by many progressive legal scholars’ is driven by the same ‘legal theory of pragmatic instrumentalism’ that has afflicted traditional approaches to law reform.^[55] However, MacDonald fails to identify key differences between critical pragmatic scholarship like Macklin’s, and traditional pragmatic instrumentalist approaches to law reform. The critical progressive literature on law reform appreciates that decisions about law are made in the context of structural power hierarchies. The pragmatism of critical progressive scholarship acknowledges the limits of law and of reform in an unequal social system where law is often one of the structures used to reinforce inequality. Critical pragmatism also recognises that social systems change, often because of struggles against inequality, and that law reform may be one means used to secure change, even if only incrementally. A pragmatist who critically appraises law reform recognises that aspects of the legal system may be used in different ways to secure, reinforce and perhaps even trigger social change, but their broader political awareness reminds them not to overestimate law’s potential. As Macklin demonstrates, a critical pragmatist will also be sceptical of the impact of law reform and conscious of a possible backlash against progressive legal change.

Feminist approaches to law reform

One of the key weaknesses of traditional approaches to law reform was the failure to consider the way in which law was implicated in the dynamics and structures of power. In her discussion, Macklin draws on the rich vein of feminist legal scholarship which considers law reform. Because feminists have sought to invoke law as one means to address women’s inequality, the merits and risks of doing so have been subject to sustained critical scrutiny.^[56] Feminist legal analysis makes problematic the ways in which law and legal institutions support the social, political and economic structures which construct women’s inequality. Given law’s complicity in social systems of power, legal feminists do not view law reform neutrally as a force for social change.^[57] Those committed to ameliorating women’s inequality have generally recognised it is not possible to abstain completely from engaging with law however, and that sometimes law reform will be necessary. Mary Heath and Ngaire Naffine conclude that ‘law intrudes to such a large degree on the lives of women that feminist engagement is essential.’^[58] I have elsewhere described feminists willing to engage with law reform as critical or sceptical pragmatists.^[59] Sceptical feminists share with legal pragmatists an acceptance that law can, and in some instances must, be used in an instrumentalist sense to achieve some broader social goal, or to limit the erosion of existing entitlements. They are sceptical because they appreciate the political limitations and practical difficulties associated with law reform.

Many legal feminists share this ambivalence about resorting to law, and to law reform in particular. They are cautious about engagement with law reform for a number of reasons. Margaret Davies has acknowledged that law reform has been useful to address inequality where this is the result of legal status, such as where legal prohibitions prevented women from owning property or from voting.^[60] However, she and others are critical of liberal feminists’ naïve expectation that law reform could correct systemic gender inequalities sourced in social, economic and cultural structures. Much feminist disillusionment with law reform is grounded on failed experiments of feminist law reform,^[61] although they acknowledge that law reform has made a difference in some women’s lives.^[62] Feminist law reform has attempted to disrupt the symbolic dimensions of law, conceiving struggles over meaning in law as ‘important sites of definition and resistance’.^[63] Challenging and seeking to redefine the narrow frameworks within which law reform issues are debated,^[64] may sometimes alter the shape and direction of law reform.^[65]

Sceptical legal feminist analysis of law reform theorises law’s coercive and ideological power and law’s relationship to the state.^[66] Sceptical feminists reject the myth of state neutrality, conscious that decisions made will often be dismissive of or hostile to those most disenfranchised, and be supportive of dominant social and economic alignments. Despite their cautious support for law reform, sceptical feminists also appreciate that the institutions of the contemporary Australian state have little will or capacity to prioritise the concerns of those at the margins, or to pursue law reform agendas that might address these concerns, and that this is an inauspicious time to be making these arguments.^[67] However, given their commitment to long term social transformation, and an historical appreciation of the possibilities of political realignment, sceptical feminists understand the need to maintain the pressure on state agencies to ensure inclusive and responsive state practices, including in law reform. As Ruthann Robson asserts, someone does have to perform the role of agitating the state and developing alternative agendas.^[68] The difficulty of doing this, and the theoretical dilemmas involved, are not to be underestimated, however.

Some assessments of feminist law reform have attempted to go beyond a ‘balance sheet’ approach of wins and losses to examine the process of feminist law reform.^[69] Consideration of these issues is instructive because the integrity of the internal dynamics and manner of feminist engagement with law reform may be as important as substantive outcomes. Feminist engagement with law reform creates further tensions concerning women’s agency in the ‘triangular relationship’ between feminist reformers engaging with the state to seek change on behalf of a particular constituency of women.^[70] There are several issues here. One is the dilemma of representing the interests of ‘women’, a category that itself has been considered so contestable. This is particularly pronounced in a law reform context as demands may need to be made on behalf of ‘women’ because state institutions are responsive to simplistic and singular claims.^[71] Another issue is the extent to which advocates for women can represent the distinct and diverse experiences of the women for whom they speak, without appropriating their voices.^[72] A third issue relates to the ‘complex positioning’ within state institutions required of feminist law reformers: ‘finding acceptable routes to engage with those on the inside who have the power to make a difference … while retaining the critical perspective of outsiders.’^[73] Canadian feminists attempted directly to confront these issues to ensure that their contribution to legislation concerning rape avoided some of the problems that have afflicted feminist law reform. Sheila McIntyre has argued that the ‘measure of achievement’ of their model of feminist law reform was

not the reform’s particular substantive legal yield or its potential as a building block for changing other laws, but the degree to which it translate[d] principles of accountability to, inclusion of, and genuine power sharing among the broad women’s community into feminist legal practice.^[74]

This suggests that the way feminists engage with other women and women’s groups in any reform campaign, and the understandings and allegiances they develop from this, may be as important for successful feminist law reform as unpredictable and uncertain legislative change.

The value of the law reform literature

Progressive legal scholars locate their analysis of law reform in the social and the political. Whilst the model of law reform processes derived from uncritical pragmatic instrumentalist approaches to law reform is idealised and incomplete, the appraisal by legal feminists suggests a more theorised and concrete model. Legal feminists feature prominently in this discussion, not because they are ‘more likely than most to be driven by a concern to do justice,^[75] but because they present one of the most sustained and thorough analyses of the risks and value of engaging in law reform.

Macklin affirmed that law reform should be responsive to ‘the social context from which [it] emerges and into which it speaks’.^[76] The first task is to articulate the social context with greater particularity, so it is clear what the issue or problem is; the next is to identify how it should be changed, and whether legal change is a necessary element. An emphasis on particularity would make it more likely that inquiries would be inclusive of diverse people’s real life experience. To be fully inclusive, analysis needs to document life at the margins, to not assume this experience is the same, and to identify the structures and practices sustaining marginalisation as the ones that must be changed. In the absence of the state assuming this responsibility, those committed to social transformation need to be actively engaged in these tasks, to publicly voice these issues and attempt to influence reform agendas. The challenge is to manage the contradictions of law reform so that positive outcomes are secured, and reformism’s risks minimised.^[77] Implicit in the analysis of law reform by progressive legal scholars is the premise that for law reform to be meaningful for disadvantaged groups, it must be accountable, participatory and responsive.

This review of law reform scholarship suggests that law reform should be responsive to real social problems and inclusive of the perspectives of people with experience of those problems. It illustrates what Mari Matsuda has called ‘looking to the bottom - adopting the perspective of those who have seen and felt the falsity of the liberal promise.’^[78] More participatory and socially responsible law reform is only one element of the liberal promise however: a necessary, but insufficient response to inequality.

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* BA, LLB, PhD, Lecturer, School of Law, University of Western Sydney ([e-mail])

¹ Andrea Durbach, 'Conscientious participation: working the law back to its bones' in Rosemary Hunter and Mary Keyes (eds) Changing Law: Rights, Regulation, and Reconciliation, Ashgate, London (2005) 155.

^[2] Donald King, ‘The Law Reform Challenge’ (1969) 13 St Louis University Law Journal 403.

^[3] L M Friedman, ‘Law Reform in Historical Perspective’ (1969) 13 St Louis University Law Journal 351, 351.

^[4] J N Lyon, ‘Law Reform Needs Reform’ (1974) 12 Osgoode Hall Law Journal 421, 423.

^[5] For example, Richard Delgado and Jean Stefancic, Failed revolutions: social reform and the limits of legal imagination, Westview Press, Boulder (1998).

^[6] I reviewed some of this scholarship in Susan Armstrong, 'Is feminist law reform flawed? Abstentionists & Sceptics' (2004) 20 Australian Feminist Law Journal 43.

^[7] Although contemporary disciplinary boundaries are very blurred, I have confined my discussion here to legal scholarship considering law reform. There is an extensive political and sociological literature considering law reform, for example, Michael McCann, Taking Reform Seriously: Critical Perspectives on Public Interest Liberalism, Cornell University Press, Ithica (1986).

^[8] Roderick MacDonald, ‘Recommissioning Law Reform’ (1997) 35 Alberta Law Review 831, 867.

^[9] MacDonald, ibid, 839. Exponents of sociological jurisprudence use the terms ‘law and society’, ‘sociological studies’, ‘sociology of law’, ‘sociological jurisprudence’ interchangeably. D M Trubeck and J Esser, ‘'Critical Empiricism' in American Legal Studies: Paradox, Program or Pandora's Box’ (1987) 14 Law and Social Inquiry 3, 3.

^[10] M D A Freeman, Lloyd's Introduction to Jurisprudence, Sweet and Maxwell Ltd, London (2001) 7^th Edition, 660.

^[11] Margaret Davies, Asking the Law Question: the dissolution of legal theory, Law Book Company Ltd, Sydney (2002) 147.

^[12] Ibid 145.

^[13] MacDonald, above n 8, 867; R S Summers, Instrumentalism and American Legal Theory, Cornell University Press, Ithica (1982) 36.

^[14] Brian Tamanaha, Realistic Socio-Legal Theory: Pragmatism and A Social Theory of Law, Oxford University Press, Oxford (1997) 28.

^[15] Summers, above n 13, 21.

^[16] Davies, above n 11, 144-45.

^[17] Tamanaha, above n 14, 39; 41.

^[18] See M J Radin, ‘The Pragmatist and the Feminist’ (1990) 63 Southern California Law Review 1699; Ricahrd Posner, 'What has Pragmatism to Offer Law?' (1990) 63 Southern California Law Review 1653, and the other essays in this volume on law and pragmatism.

^[19] Martha Minow and Elisabeth Spelman, ‘In Context’ (1990) 63 Southern California Law Review 1597, 1632.

^[20] G Sawer, ‘The Legal Theory of Law Reform’ (1970) 20 University of Toronto Law Review 183; Michael Kirby, ‘Law Reform, Why?’ (1976) 50 Australian Law Journal 459.

^[21] L C B Gower, ‘Reflections on Law Reform’ (1973) 23 University of Toronto Law Review 257; P M North, ‘Law Reform: Processes and Problems’ (1985) 101 Law Quarterly Review 338.

^[22] Ruth Deech, ‘Law Reform: the Choice of Method’ (1969) 47 Canadian Bar Review 395; J Beetz, ‘Reflections on Continuity and Change in Law Reform’ (1972) 22 University of Toronto Law Review 129; Hurlburt, W H, Law Reform Commissions in the United Kingdom, Australia and Canada, Juriliber Limited, Edmonton (1986) which considers all three jurisdictions.

^[23] Kenneth Keith, ‘Philosophies of Law Reform’ [1991] OtaLawRw 1; (1991) 7 Otago Law Review 363.

^[24] King, above n 2; Friedman, above n 3; P W Salsich, ‘Reform through legislative action: The poor and the law’ (1969) 13 St Louis University Law Journal 373.

^[25] King, above n. 410.

^[26] Freeman, above n 10, 684.

^[27] Ibid 676.

^[28] Stephen Bottomley and Stephen Parker, Law in Context, Federation Press, Sydney (1994) 161.

^[29] Ibid 161.

^[30] Alan Hunt, ‘Dichotomy and Contradiction in the Sociology of Law’ (1981) 8 British Journal of Law and Society 47, extracted in Freeman, above n 10, 744.

^[31] Ibid 742.

^[32] Lyon, above n 4, 428.

^[33] Ibid 430.

^[34] Ibid 431.

^[35] Ibid 427, 434-435.

^[36] Ibid 430.

^[37] Robert Samek, ‘A Case for Social Law Reform’ (1977) 55 Canadian Bar Review 409, 410.

^[38] Ibid 412, emphasis in original.

^[39] Ibid 417.

^[40] Ibid 409, 435.

^[41] Murray Edelman ‘The Construction of Social Problems as Buttresses of Inequality’ (1987) 42 University of Miami Law Review 7.7.

^[42] Ibid 17.

^[43] MacDonald, R, ‘Access to Justice and Law Reform’ (1990) 10 Windsor Yearbook of Access to Justice 287, 287.

^[44] Pat O'Malley, Law, Capitalism and Democracy, Allen and Unwin, Sydney, (1983), 104.

^[45] Bottomley and Parker, above n 28, 72.

^[46] MacDonald, (1990) above n 43, 290.

^[47] Andrea Durbach, ‘Defining Pro Bono - Challenging Definitions For the Public Good’ (2000) NSW Law Society Journal; Gordon Renouf, ‘A Client Centred Approach to Access to Justice’ in Law and Justice Foundation of NSW (Ed) Access to Justice Roundtable: Proceedings of a Workshop, Sydney, (2002), http://www.lawfoundation.net.au/publications/reports/ajr/ajr4.html#3

.

^[48] Ibid.

^[49] MacDonald, above n 43, 297.

^[50] Austin Sarat, ‘Access to Justice: Citizen Participation and the American Legal Order’ in L Lipson and S Wheeler (eds), Law and the Social Sciences, Russell Sage Foundation (1986), cited by Bottomley and Parker, above n 28, 70.

^[51] Audrey Macklin, ‘Law Reform Error: Retry or Abort?’ (1993) 16 Dalhousie Law Journal 395. 415.

^[52] Ibid 412.

^[53] Ibid 403

^[54] Ibid 409.

^[55] MacDonald, above n 8, 867.

^[56] I have evaluated this extensive literature elsewhere, see Armstrong, n 6 above. See also Ruth Lewis, Rebecca Dobash, Russell Dobash, Kate Cavanagh, ‘Law's Progressive Potential: the Value of Engagement with the Law for Domestic Violence’ (2001) 10 Social and Legal Studies 105.

^[57] Margaret Davies, ‘Legal Theory and Law Reform: Some Mainstream and Critical Approaches’ (2003) 28 Alternative Law Journal 168, 170.

^[58] Mary Heath and Ngaire Naffine, ‘Men’s Needs and Women’s Desires: Feminist Dilemmas about Rape Law Reform’ (1994) 3 Australian Feminist Law Journal 30, 35.

^[59] Armstrong, above n 6.

^[60] Davies, above n 57, 169.

^[61] Heath and Naffine, above n 58, 38; Margaret Thornton, ‘Feminism and the contradictions of law reform’ (1991) 19 International Journal of the Sociology of Law 453, 463; Lesley Laing, Progress Trends and Challenges in Australian Responses to Domestic Violence, Issues Paper 1 (2000) 5.

^[62] Lily Trimboli and Roseanne Bonney, An Evaluation of the New South Wales Apprehended Violence Order Scheme (1997); see also Ruth Lewis, Rebecca Dobash, Russell Dobash, Kate Cavanagh, ‘Protection, Prevention, Rehabilitation or Justice? Women’s Use of the Law to Challenge Domestic Violence’ (2000) 7 International Review of Victimology 1.

^[63] Elizabeth Schneider, Battered Women and Feminist Lawmaking (2000) 37, 45.

^[64] Reg Graycar and Jenny Morgan, ‘Law Reform: What’s in it for Women?’ (2005) 23 Windsor Yearbook on Access to Justice, 393, 397.

^[65] See for example, Reg Graycar, (1999) ‘“If it ain’t broke, don’t fix it”: Matrimonial Property Law and the Forgotten Majority’, <http://www.familycourt.gov.au/papers/html/graycar.html

>. This critique was part of a broad ranging opposition to proposed family law property reforms which were ultimately abandoned.

^[66] Susan Boyd, "(Re)placing the State: Family, Law and Oppression" (1994) 9 Canadian Journal of Law and Society 39, 59; Nicola Lacey, Unspeakable Subjects: feminist essays in legal and social theory (1998) 184.

^[67] Hunter Rosemary ‘The Mirage of Justice: Women and the Shrinking State’ (2002) 16 Australian Feminist Law Journal 53.

^[68] Robson Ruthann ‘Sexual Minorities & the State: Some Struggles and US Perspectives’ (1997) 2 Flinders Journal of Law Reform 67 at 74.

^[69] Lise Gotell, ‘Litigating Feminist “Truth”: an Antifoundational Critique’ (1995) 4 Social and Legal Studies 99, 100.

^[70] Thornton, above n 61, 455.

^[71] Gotell above n 69, 102, 106; Elizabeth Jackson, ‘Contradictions and Coherence in Feminist Responses to Law’ (1993) 20 Journal of Law and Society 398, 403, 409.

^[72] Kathryn Abrams, ‘Sex Wars Redux - Victim Agency Debate’ (1995) 95 Columbia Law Review 304; Martha Mahoney, ‘Legal images of Battered Women: Redefining the Issue of Separation’ (1991) 60 Michigan Law Review 1.

^[73] Kelly L and Catherine Humphries C ‘Stalking and paedophilia: ironies and contradictions in the politics of naming and legal reform’ in Radford J, Friedberg M and Harne L Women violence and strategies for action: feminist research policy and practice Open University Press Buckingham (2000) 22.

^[74] Sheila McIntyre, ‘Redefining Reformism: the Consultations that Shaped Bill C-49’ in Julian Roberts and Renate Mohr (eds), Confronting Sexual Assault in Canada: a Decade of Legal and Social Change (1994) 295.

^[75] Joanne Conaghan, 'Reassessing the Feminist Theoretical Project in Law' (2000) 27 Journal of Law and Society 351, 376.

^[76] Macklin, above n 51, 401.

^[77] Thornton above n 61, 468.

^[78] Mari Matsuda, ‘Looking to the Bottom: Critical Legal Studies and Reparation’ (1987) 22 Harvard Civil Rights and Civil Liberties Law Review 323, 324.