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DRAFT – JUNE 2006
FEMINISM AND THE FLAT LAW THEORY
MARGARET DAVIES*
ABSTRACT
This paper examines two modalities of law, depicted spatially as the vertical and the horizontal. The
intellectual background for seeing law in vertical and horizontal dimensions is to be found in much
socio-legal scholarship. These approaches have challenged the modernist, legal positivist and
essentially vertical view of law as a system of imperatives emanating from a hierarchically superior
source. In keeping with this tradition, but approaching it from the perspective of legal philosophy, my
aim is to address three matters. First, why is vertical law problematic for feminists? Second, what are
the theoretical characteristics of law in its horizontal register? Third, how is an appreciation of this
‘flat’ law useful for feminist legal theory and practice? In particular, I consider the ways in which
feminist legal theory operating in the horizontal dimension can transgress, without transcending, the
vertically-determined perimeters of the nation state.
PERIMETERS OF LAW AND LEGAL SCHOLARSHIP
This conference foregrounds some of the most problematic issues for feminist thought
which exist in the world today. It asks us to reflect upon the spatially-limited histories
of feminist thought. It suggests that feminist practices and theories may be as much
shaped by their national environments as by their desire for gender equality. It asks us
to consider feminism in the context of the changing status of the nation state. Of
course, in order to avoid conflating ‘nation’ with a dominant culture, it is also
necessary to address the internal divisions and spatial layers which make up any
nation and any nation’s feminisms. Differences within any entity (whether nation,
religion, or culture) should not be masked by a focus upon the differences between
several such entities. The conference therefore also throws out an implicit challenge to
Western feminists in particular to relocate ourselves in both our (multi)cultural and
our national spaces, and to ensure that inter-cultural and international feminist
dialogue takes place with an awareness of ongoing imperialism and even colonialism.
In this way, the conference theme asks us to re-examine the very terms upon which
our own version of feminist debate is founded. Perhaps most centrally, it asks us to
reflect upon what it means to be a feminist, when differences of power are so
evidently irreducible to gender.
*
Professor of Law, Flinders University. Research for this paper has been funded by an Australian
Research Council Discovery Grant (DP0451107). This paper was written for the AHRC Centre for
Law, Gender and Sexuality conference ‘Up Against the Nation States of Feminist Legal Theory’ held
at the University of Kent June/July 2006. Many thanks to the conference organisers for the opportunity
to present this paper and to the participants for their many useful questions, suggestions and comments.
With a few exceptions, these comments have not yet been incorporated into this draft. I would also like
to thank Tina Dolgopol for information, materials and feedback concerning the Women’s International
War Crimes Tribunal, and Mary Heath, Niki Lacey and Ngaire Naffine for their comments prior to the
original presentation. I welcome further feedback, especially on the practical elements and examples.
Feedback can be sent to me at [email protected] References in this paper are not
complete.
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I approach these matters as a legal theorist in the Western and specifically
Anglocentric tradition, meaning that my focus is upon what law is and how to
understand its relationship to the social environment. Before going any further, I
should point out that speaking of law and its relationship to the social presumes a
separation, and a difference, between law as an entity and an external sphere. The
terms of this difference have been of central interest to feminist critiques of law, since
the separation of law from its conceptual others defines it as being about inclusion and
exclusion. Who is represented in the law? Whose stories are told and heard? Who is in
control? Common formulae such as ‘law and morality’, ‘law and politics’, ‘law and
society’, ‘law in context’ tend to embed this positivist presumption in many forms of
legal thought, even where the intention is to critique the absolute difference between
law and its others. Law appears inevitably to be superstructural, exclusive, and
identified with the nation state. It is not politics, society, culture, context – though it is
related to these spheres. At the same time, much theory (socio-legal more than
philosophical) depicts law differently, as something which is inseparable from the
social landscape rather than superimposed upon it. Even so, legal theorists have
struggled to find a language which does not separate law from variously defined
contexts.
My objective in this paper is to outline two modalities of law, depicted spatially as the
vertical and the horizontal. The vertical is associated with the exclusionary tactics of
the nation state, while the horizontal is based on relationships of actual proximity or
contiguity. The intellectual background for seeing law in vertical and horizontal
dimensions is mainly to be found in socio-legal critiques. These have challenged the
modernist, legal positivist and essentially vertical view of law as a system of
imperatives emanating from a hierarchically superior source. To take a few examples:
in the early part of the 20th century, Eugen Ehrlich distinguished between official law
and living law (1922; 1962). In a similar vein, Roscoe Pound wrote of law in the
books and law in action (1910). Much later, Foucault saw power as a discursive force
which circulates through socio-political spheres. Foucault differentiated this view of
power from more traditional theories which located power in hierarchical and
politically sovereign institutions (1980). Through the 1970s and 1980s legal pluralists
wrote of official and unofficial, informal, or customary law (eg Griffiths, 1986; Merry
1988). In the closing stages of the century and much closer to my own intellectual
home, Niki Lacey has invited critical legal theorists to revalue ‘the horizontal without
obscuring the vertical’ (1998; 157). Even more recently, Ost and van de Kerchove
have written about a paradigm change from the idea that law is pyramid to the idea
that law is a network (2002), while Kaarlo Tuori has insisted upon the significance of
both the normative and practical ‘faces’ of law (Tuori, 2002; 121-146)
In what follows, I take inspiration from most of these theorists as well as a number of
others. Perhaps most significantly, I think that Lacey has correctly identified the need
to understand the interaction between vertical and horizontal dimensions of law, and
to strengthen the place of the horizontal in legal theory. Acknowledging the horizontal
is crucial to any legal theory which aims to reconstruct or transform the concept of
law. It disrupts the systems of inclusion and exclusion maintained by hierarchical law.
It opens new terrain for understanding the relationship between law and power.
Moreover, the coming together of these two axes of the legal arena provides the most
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promising opportunity for a viable dialogue between philosophy and sociology of law
(see generally Lacey, 1998: 157-164).
My aim in this paper is to address the theoretical characteristics of horizontal or flat
law and consider how it might be useful for feminist legal theory, especially in the
context of the changing nature of the nation state. I will approach my topic from three
angles. First, I summarise the problems of formal and vertical law for feminism.
Second, I outline what law looks like in its horizontal modality – flat law, as my title
refers to it. Third, I provide some practical examples and ask how an appreciation of
flat law is useful for feminist legal theory, especially in the context of the diminishing
status of nation state.
FEMINISM AND VERTICAL LAW
Before exploring the flattened out perception of law, there is an introductory matter
which is basically – ‘what problem does this approach address?’ Why is there a need
to engage with law other than in its vertical register? What particular difficulties does
the vertical understanding of law pose for feminism? As my objective is to explain the
flat law approach in some detail, I will address this preliminary, but very important,
question only briefly.
Defined vertically, law is a hierarchy of superior and inferior rules and principles. It is
seen to be a unified and orderly arrangement of norms, emanating from a single
authoritative centre. Law in the vertical modality operates via a conceptually
straightforward (though in practice very intricate) system of inclusions and exclusions,
defining the territory, the subjects, the content, and the reasoning of law. The vertical
concept of law sets limits and boundaries, including the limits which comprise the
nation state and its associated notions of jurisdiction. Seen in this light, law can
resolve conflicts, but it does not itself exist in conflict with other spheres of social
regulation because law is institutionally superior to all other forms of normativity.
(Jurisdictional conflicts do of course arise, but these are also governed by law.) This
superiority of positive law as against the social arena is in the end due to practical
factors – for instance, community acceptance, efficacy, or force. Regarded vertically,
law appropriates and domesticates difference, and enforces commensurability upon
things which, in the absence of law, would be incommensurable.
The difficulties for feminists engaging with law understood as a positivist
superstructure are very well known, and have been theorised for at least 25 years.
Mostly, these problems centre on the detachment of positive law from everyday
realities, its wilful blindness to gender as a meaningful social difference, and the
construction of legal subjects as idealised white, heterosexual, masculine types
(references; for a fuller summary see Davies, 2006). Much feminist critique of law has
been about the seemingly endless mechanisms of exclusion and disempowerment
associated with law. These forms of exclusion can rarely be characterised as explicit
status-based discrimination by law, although some examples of this do remain. More
commonly, the forms of exclusion identified by feminists centre upon the gendered
values read into its so-called ‘neutral’ doctrines,1 the selectivity of legal doctrine in
For instance, the values underpinning the ‘reasonable’ person, ‘human’ rights, or legal personality in
specific contexts: Naffine, 1995; 2003. Even where gender is institutionally recognised, as in ‘gender
1
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addressing harm,2 the normalising effects of law on socio-political movements,3 the
silencing of certain voices and narratives in court-based dialogue, the gendered nature
of legal culture, and so forth. It has therefore become clear that hierarchical positive
law does not exclude merely by virtue its formal operation. The channelling of legal
power and privilege is a consequence of law’s interactions with wider socio-political
discourses and culture. However, while critics have indicated how the cultural
bedrock is absolutely essential to the operation of vertical law, its influence is
normally underestimated if not completely denied by mainstream accounts of law
ideologically committed to the narrative of a single and separate law.
Within this framework, it is easy to see why engagement with the positive law has
been regarded as only a partial solution by feminists and other critical legal scholars.
It is only too evident that the remedy for exclusion is not simply formal inclusion, and
that disempowerment cannot be addressed only by a conferral of rights. In essence,
feminists have realised that positive law is not an entirely satisfactory medium for
social change. This is because of the inbuilt limitations of its culture, its definitional
structures, and its approach to reasoning. Moreover, when law is seen as a hierarchical
imposition, persons become rather passive recipients of law: we are constructed,
individualised, subjected, personified, according to legal imperatives. Any reform of
the law necessarily passes through an entire organisation of legislators, judges, legal
experts and professionals. The top-down construction of law places definitional and
interpretive power in the hands of those defined internally as the source of legal
meaning, as Lacey says, that ‘law-creating subject and the subject of law’s power are
irreducibly divided’ (1998: 158). Whether or not the officials who populate law’s
hierarchy are demographically diverse is not the issue: the issue is rather the
monopoly held by this hierarchy on constructions of legal truth. That is not to deny
the evident and positive impact which feminism has had upon both the content and the
culture of law.
In addition, and with more specific reference to the conference themes, law in its
vertical modality is modelled upon the nation state. The state provides the conceptual
perimeter, the source, the territory, and ultimately the identity of law. This law is not
only defined against ‘other’ territorially-defined laws, primarily other states, it also
suppresses intra-territorial differences in the name of state unity and formal equality.
Vertical law insists, in other words, upon legal singularity and forecloses the
possibility of, for instance, religious and indigenous laws. It unifies the internal spaces
and localities of law, while insisting upon the disunity of itself with ‘other’ law.
International and regional legal orders such as the EU mimic this vertically-operating
notion of law on a multi-national basis: such instances of supra-state law can be
hierarchical and top-down in their concept and exclusionary techniques (Koskenniemi,
1997), despite their apparently polycentric origins.
mainstreaming’, it can operated as merely a bureaucratic strategy which can ‘tame and deradicalise
claims to equality’ Charlesworth, 2005, 2.
2
For instance, the use of the partial defence of doctrine of provocation against women, and the
unwillingness of judges to apply it to gendered violence except where the masculinity of a killer was
under threat by a ‘homosexual advance’: Morgan, 1997; Pasquale, 2002. Or, the lack of recognition of
gender-specific harms in areas of international law: Gardam and Jarvis 2001; Orford 2002;
Charlesworth and Chinkin, 2000.
3
For instance, the forcing of lesbian and gay political activism towards the agenda of same-sex
marriage: Loader, 2004.
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At the same time, privileged cultural markers, the marks of hegemonic masculinity,
heterosexuality, racial preferences, colonial ideologies, concepts of ‘family’, are
merged with the vertical structures of law. At the top end, the result is the
collaboration of nation state, legal singularity and cultural (including sexual)
homogeneity. On the ground, the result is empowerment and disempowerment of
legal subjects, determined in part by their relationship to the matrix of
law/state/culture.
Among other things, one difficulty posed for feminists by all of this is simply that law
in its vertical register governs the agendas of critique. This may seem obvious –
feminist legal theory is on one level necessarily reactive to law, which limits the terms
upon which feminist discussion proceeds. But engagement with the law of a single
territorially-defined space masks other spaces, other registers of law. It limits the
possibilities of legal change, represses the imagination, and forecloses certain voices
and certain arguments from being heard within the legal domain. For instance, in
Australia feminist legal theory largely complies with the colonialist imperative which
defines law by reference to our Constitution, a British Act of Parliament. I am not
saying we have a choice about this. But I am saying – what we already know – that
the entry-point for Australian law is constituted by a denial of other possible legal
spaces, Indigenous and other. Similarly, in its vertical form law places jurisdictional
limits on feminist trans-national engagement.
Thus, to quote Lacey (1998, 163):
…there is a powerful argument for broadening the horizons of critical legal theory beyond the
rails of the formal legal order to encompass the tracks and sidings to which it has too often
consigned the practices forming the object of socio-legal studies. This would allow critical legal
theorists to encompass a wider conception of legally relevant practices in the search for glimpses
of empathy for and recognition of the Other and hence for insight about how to weaken the
arbitrary, excluding and hierarchical in the operations of legal power. It would also give us a
more acute appreciation of the continuing exclusions inherent in institutional changes with rosy
theoretical credentials.
Insofar as critical legal theory prioritises a critique of the hierarchical understanding
of law, it does not draw into the theoretical net other legalities which impinge upon
and interact with vertical law. In contrast, prioritising the horizontal entails cutting
across and disrupting the vertical and its associated exclusions, and has the potential
to disperse the unidirectional flow of hierarchical power through a more expansive
network of relationships.
LAW AS VERTICAL AND HORIZONTAL
Pragmatic and Speculative Method
Like accounts of the state which reduce it to a single authoritarian narrative, the
concept of vertical law is now regarded by many legal scholars as outmoded (Brown,
1995: 174; Murphy, 1999; MacCormick, 1993): the power of law does not just flow
down from a single centre, but is located in multiple sites, for instance of
interpretation, regulation, and alternative practices of law. At the same time, the
vertical aspect of law is very familiar to legal scholars, so familiar in fact that it
appears to represent a universal truth about the nature of law or at least a necessary
truth about the experience of law in Western societies. Thus, Western legal
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scholarship often proceeds as though the vertical aspect of law is its essential form:
we nonetheless subject it to critique and call for its conceptual reconstruction.
My approach to the matter of reconstruction is partly pragmatic, partly speculative.
The pragmatic part is to recognise that the vertical description of law does have its
place in legal theory and feminist theory. It is a ‘true’ account of law because as legal
actors, legal subjects, and legal theorists, we believe it to be true and act on this basis.
To put this another way, legal actors make the vertical account of law true by
presuming it to be so and acting in accordance with this presumption. For feminism,
this means that there is much sense in continued practical engagement with law in its
vertical register, including interventions in law and policy reform, promotion of new
rights, gender mainstreaming projects, anti-discrimination initiatives, and reformulations of legal doctrines. There is sense in this because the vertical dimension
of law is not about to disappear and because the formality of legal processes do
sometimes work in the interests of marginalised groups.
The speculative part of my approach involves locating and amplifying alternatives to
vertical legality. As I shall explain, there are a number of instances of the vertical
authority of law being displaced by practical demands, such as the need to
acknowledge social diversity in dispute resolution, the need for reflective and nonimperialist action in relation to gendered harms, or the need for colonial law to
recognise its co-existence with Indigenous law. Legal pluralism theorises these and
other developments as ‘semi-autonomous social fields’ or alternative spheres of
normative ordering, which exist alongside legal regulation (Moore, 1973; Teubner,
1997; cf Koskenniemi, 2005). They have a parallel existence with state law.
I am more interested in the ways in which horizontal practices may be regarded as
another dimension of formal law, a dimension which – though underrated – is
nonetheless intrinsic to law – an inherent pluralism of law. The horizontal dimension
to law, or flat law, is not a new concept or theory of law – I do try to avoid the
philosophical imperative of grand theory. Rather, my intention is to build upon
alternative practices of law, alternative knowledges about law, alternative localities in
which law exists, and alternative legal subjectivities. The objective is a philosophical
distillation of practices and understandings of law which already exist and not the
construction of a new and alternative theory. Such a distillation is not (only) an end in
itself, but may also act to legitimise and strengthen alternative legal practices.
Two Expressions of Law
Horizontal law replaces the values of superiority and certainty with the values of
contiguity and contingency, that is, of mutable relationships formed with the persons
and communities next to you and around you. It replaces the limited spaces of lawstate unity with the more expansive, illimitable, and multi-dimensional (or stratified)
spaces of intersubjective actions. Schematically and quite simplistically, the
difference between law in its vertical modality and law in its horizontal form can be
depicted in this way:
VERTICAL DIMENSION OF LAW
or, law being singular
defined exclusively
coherent
HORIZONTAL DIMENSION OF LAW
or, law being plural
defined inclusively
non-coherent
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unified, essential identities
monocentric, univocal
limited territory/nation state
position
commensurability enforced
hierarchical
appropriative/proper
sovereignty, neutrality, sameness
self-obsessive
non-unified, inessential identities
polycentric, multivocal
illimitable and layered spaces
superposition
incommensurability recognised
participatory, distributive
improper/common
anarchy, situatedness, difference
self-reflective
(FIGURE 1)
It will be obvious that this table is partly a composite of ideas already available in
critical and feminist legal thought, though I have extended the metaphor and
synthesised the elements into a schematic form. For instance, the opposition between
monocentric and polycentric law is derived from Nordic scholarship which uses this
terminology and which, as Hanne Petersen has illustrated, has a specific relevance to
feminist legal thought (Petersen, 1997). The opposition between law being singular
and law being plural disjoins Jean-Luc Nancy’s state of ‘being singular plural’ (Nancy,
2000). 4 I have added some elements to this synthesis, such as the notion of
‘superposition’ which describes the ability of law to exist in two or more states or
conditions at once.5
Although this table suggests a dichotomy between two types of law, I would like to
make it clear that my primary intention is to represent two different angles or
perspectives on the one object – the law of the nation state. First and foremost the
difference comprises two ways of seeing and practicing the one thing. The vertical
register of law, of which Hans Kelsen was the archetypal theorist (Kelsen, 1934), sees
law as a hierarchy or pyramid of norms, in which the validity of each law is ensured
by a superior norm. All law is ultimately enclosed within the perimeter dictated by
law’s sovereign centre: the ‘unity of a plurality’ (Kelsen, 1934: 55) of law subsists in
this vertical arrangement. In contrast, flat law, as I have called it, names the multiple
locations, manifestations, and interpretive possibilities of state law. Flat law is state
law understood as a national and cultural artefact which cannot in the end be
separated from the social spheres of which it is such an intrinsic part. There is no
unity to the plurality of law seen in this light.
In this sense, the horizontal/vertical terminology should not be confused with the
more empirical distinction drawn by legal pluralists between official law and
unofficial law, or formal law and living law. In order to avoid misunderstanding I
need to be as clear as possible on this point. Other normative spheres, for instance
those centred on religious law, Indigenous law, non-legal regulative regimes or social
institutions, are deserving of independent scholarly attention on their own terms, as
semi-autonomous social spheres interacting with each other in particular ways (Moore,
1973; Griffiths, 1986). My concern, however, is only upon how these ‘other’
4
The disjunction should not be taken to suggest that being singular and being plural are autonomous
conditions of law, though I have separated them for the sake of analysis. In fact, as I have argued
elsewhere, legal singularity is inherently plural – the singular and the plural are inseparable, though two
conceptual angles on the one object.
5
I have taken this suggestive term from quantum theory but since I would not pretend to understand
that theory in the least, am using it in an analogical way.
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normative environments interact with, feed into and affect the concept, the culture and
the content of state law. My analysis is not about all of the systems which could
conceivably be called ‘law’, but rather of a flattened out perception of state law which
is nonetheless cognisant of all of these contexts. I realise that speaking of state law
like this begs a rather crucial question, indeed it begs the whole history of
jurisprudential and legal philosophical debate over the definition and limits of law.
This is, nonetheless, a question which I am prepared to leave to one side, adopting
(for now) a pragmatic acceptance of the discursive and institutional limitations of
state law.
Flattening Law
Given that the structure of law seems so self-evidently vertical, a question arises as to
how we might reconstruct it into a horizontal format. I will start with a systematic
attempt to describe flat law in its relation to more traditional accounts. Very simply,
the vertical dimension of law might be represented like this:
source

content

practice
(FIGURE 2)
‘Content’ is a little vague, so to be more specific in a way which suits my purposes:
source

norms/reasoning


subjects spaces

practices
(FIGURE 3)
The ‘institutional and ideational sources’ of law (Goodrich, 1986: 4) determine the
legal norms (for instance legislation, cases, regulations) and also what counts as valid
forms of legal reasoning. Legal norms constitute subjects and citizens, and also
determine the jurisdictions, territories and domains in which law operates (the nation,
the public sphere, specific courts etc). Underneath the abstract content of law subsist
all sorts of legally-defined practices, such as obtaining a passport, freezing an embryo,
transferring property, driving a car, getting married, constituting a corporation,
commencing litigation, and so forth. As anyone can recognise, even this is a very
simplistic account of any legal order, since in fact each element of the hierarchy is
itself complex and composed of various layers. There is a hierarchy of sources, and
the division between conceptual and institutional sources is very murky indeed. Legal
norms and other reasons such as decisions are compelling or persuasive to differing
degrees (Raz, 1990: 25), and some reasons override or exclude all others (Raz, 1990:
39-45).
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There are two ways of ‘horizontalising’6 the system described above, both of which
are useful and valid interventions against the vertical construct of law. The first way is
to think of each term in the vertical system as itself existing in a horizontal plane, as
defined not only by its up and down relationships, but with its sideways relationships.
Each term becomes outward looking and exists in proximity with so-called ‘nonlegal’ elements, except that we see that because the non-legal has a constitutive effect
on the law, it must be part of the definition of law and is in fact intrinsic to it. Here is
a representation:
s  source  s

s  norms/reasoning  s
 
s  subjects spaces  s

s  practices  s
(s = the social, including religion, culture, knowledge, politics, morality, socio-economic
conditions, human perceptions of environmental imperatives etc)7
(FIGURE 4)
The diagram is an attempt to show that each of the elements in the vertical system of
law is itself constituted within a horizontal context and is not simply determined by a
closed normative system. The picture could be far more subtle – as it is, it seems
simply to suggest a ‘law in context’ model, whereas my intention is to convey a more
dynamic, more mutually constitutive, and less determinate set of relationships. For
example, it is not just a question of the legal category of ‘subject’ (or citizen, identity,
or person) being partly constituted by cultural factors such as gender and sexuality. It
is also a question of how legal categories impinge upon and shape social identities,
how human persons move (sometimes seamlessly and sometimes awkwardly)
between multiple normative environments, how knowledge of the law is derived from
the plural perspectives of these ‘inessential identities’, and how law lives in the social
sphere (Ehrlich 1962; Manderson 1996: 1064). In practical terms, as I will explain,
there is also a sense in which legal activists, including feminists, engage in a
deliberate blurring of law/non-law distinctions, so that active participation at the
edges of law contributes to its redefinition.
The second method of looking at law horizontally is simply to flatten the hierarchy, so
that each term has conceptual and functional equality with the others. That is:
practices  subjects  norms  spaces  sources
(FIGURE 5)
In the use of ‘ugly’ neologisms, I take my lead from Kevin Gray, who wrote of ‘propertising’
resources which are excludable (Gray, 1991, 256).
7
Identifying all of the ‘contextual’ horizontal elements as ‘the social’ is of course a significant oversimplification. In the ‘social’, I include everything to do with the construction of normativity and
knowledge in the broadly Western consciousness, including some things which others would categorise
as belonging to the cosmos rather than to human society, such as our constructions of science and
scientific norms and all moral and religious imperatives. But even if my assumption of the
human/social basis of all perception/knowledge/morality is rejected, that does not necessarily impede
the horizontalising moment, rather, we would simply need a more complex notion of these
‘environmental’ factors and would also then question the purely social nature of human law.
6
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In this diagram, we see a change in traditional descriptions of law, a change
comprised essentially by a refusal to privilege any aspect of law as fundamental or
basic. Practices and subjects constitute law just as much as institutional and ideational
sources (Petersen, 1997; Kleinhans and MacDonald, 1997; Chiba 1998: 239).
Like the other diagrams, this is also a simplification: at the very least, it needs to be
combined with figure 4 in a three dimensional form, which would combine both types
of horizontalised law. Each ‘legal’ element has both a horizontal and a vertical
relationship to each other legal element, and they all have a relationship to the socalled non-legal elements. The various elements reflected in the picture are not
distinct, but overlapping and entangled. And there are still local hierarchies or
relationships of superiority and inferiority, but not necessarily those we see in Figures
2 and 3, representing the more conventional approaches to law. This is an important
point, because it indicates that while the flow of power through the system may be
altered and decentralised, the operations of power cannot be eliminated. To give an
example, an alternative practice of law, such as an Indigenous court or sentencing
circle, might substitute the conventional sources of law with an Indigenous law. The
subjects of such a practice are empowered (to a limited degree) to constitute the
source of law, thus inverting the normal hierarchy where an official source constitutes
a particular practice through the medium of legal reasons (rules, doctrines,
conventions). Legal power is transferred to a traditionally non-legal site. At the same
time, such an initiative may still reflect the gendered structure of the vertical legal
system, the society at large or the local community in its hybridised form (Goel, 2000;
cf McNamara, 2000). Power is not eliminated, but it may be re-located.
The projected Figure 6, combining and building upon Figures 4 and 5 is what I mean
by ‘flat law’, even though I do not have the skill to represent it in a diagram. (It is, of
course, unrepresentable). ‘Flat law’ it is not entirely flat, and not entirely law.
These observations highlight the reductionist and ultimately misleading nature of
simplistic images such as the horizontal/vertical portrayal of law. Rather than ‘flat
law’ we could more accurately imagine ‘astigmatic law’, meaning that the horizontal
and vertical lines have different focal points. 8 Or, we could hypothesise that legal
structures are folded, much as spacetime in the universe is seen as curved, or like a
mobius strip, an image which brings out the indeterminate nature of the insides and
outsides of law.9 There are perhaps even more technical mathematical possibilities for
imagining law’s spatial properties. The simplistic image I have presented, on the other
hand, has a strategic purpose: it allows us to focus upon (and perhaps encourage) a
more easily understood change in legal consciousness and practice, while appreciating
that it is not intended as a ‘representation’ or ‘reflection’ of law.
There is also a sense in which representing law in diagrams such as these suggests that
it is a static structure, or a set of fixed relationships. In fact, all of the elements of all
of the diagrams should also be regarded as having a temporal and dynamic aspect.
They all exist in relation to a past and a possible future, and because of its inherent
fluidity, it is not possible to describe the system as a positive fact. The descriptive and
8
9
Thanks to Joanne Conaghan for this image, and her explanation of astigmatism.
Thanks to Kevät Nousiainen for making these point.
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the normative, the present and the future, and the is and the ought of flat law cannot
be separated.
FEMINISM AND FLAT LAW
I would now like to give some practical examples of what I mean by the horizontal
aspect of law, and to show how efforts to challenge the verticality of law can be of use
to feminist legal practice and theory. Not all of the examples are defined around
questions of gender, though I hope that they suggest first, the changing paradigm of
law, and second, some parallels for gender-oriented interventions in law. Most
importantly, they illustrate possibilities for the voices of legal subjects to be heard in
different ways and in different spaces, and show these subjects constituting law
differently. I take as my point of departure figures 4 and 5, and the ‘content’ elements
of legality I have identified there: norms, spaces, and subjects. I do not separately
consider the extremities of the hierarchy, that is, the sources and practices of law. This
is because efforts to see and to practice law in a horizontal modality always invoke
alternative sources and often invoke alternative practices of law.
Legal Norms and Legal Reasoning
Legal reason is in a sense the prototype as well as the most vulnerable point of the
vertical dimension of law. The reasons of law consist in its system of norms,
precedents, principles, doctrines, and conventions – that which we ordinarily identify
as the substance of law.10 Such legal norms provide the premises for what is known as
‘legal reason’, typically deductive or analogical modes of thought directed at
particular types of legal action – judicial decision-making, administrative actions, and
legally-constrained behaviour by legal subjects. I don’t want to go into great
analytical detail about these matters, though there is a clear risk of over-simplification.
The central point is that norms and reasoning are in a sense the core business and
identity of law in its conventional sense, and that there is an obvious vertical and
exclusionary aspect to the use of legal reasons and norms: systems of law establish
hierarchies of norms and the processes of legal reasoning operate to include some
sorts of reasons (those with a pedigree) and exclude others (see eg Schauer, 2004).
Reasons and reasoning are core legal techniques for ensuring the unity, the coherence,
and the limitedness of law.
At the same time, the reasons and reasoning of law has proved to be its most
vulnerable point for two very simple reasons – language and human beings – both of
which are absolutely essential to the vertical operation of law, but neither of which
can be constrained by it. Language requires interpretation, and human beings are
complex multiply situated subjects. Both introduce elements of indeterminacy and
plurality which strikes right at the heart of the concept of a separate law. Theory after
theory has tried to organise language, human agents, and law into an orderly system
(eg Hart 1992; Dworkin 1986), but the simple fact is, as critic after critic has pointed
out, that while law cannot exist without human agency and language, they are also
both intrinsically indeterminate and incapable of the theoretical closure which vertical
law seeks. This accounts for the slippery nature of the law/culture relationship in key
10
Here I gloss over some of the more technical discussions within legal philosophy. For instance, Raz
talks of decisions as ‘exclusionary reasons’, while Kelsen calls them ‘individual norms’. I have
simplified my discussion so that it coheres more with what I perceive to be common usage among nonanalytically-minded scholars and practitioners.
11
DRAFT – JUNE 2006
legal concepts (see Naffine 2003) but it also opens up the possibilities for political
action by redefinition.
Much could be said about feminist efforts to critique and redefine specific legal
concepts. Starting with the ‘reasonable man’ or the thinly neutralised ‘reasonable
person’ (Finley, Bender), legal feminists have patiently and incrementally unpacked
the elements of law’s complicity with patriarchal culture, and attempted to insert more
open and gender-sensitive readings into our understanding of law. Such efforts exploit
law’s alleged limits (Gunnarsson et al, 2007) by first, unmasking the law/power
dichotomy and showing how power is central to law and second, by reasserting law as
law, though redefined in some particular aspect. Such interventions could be seen as
horizontalising our understanding of law at the micro level of specific legal doctrines.
Although thoroughly grounded in an engagement with positive law, such feminist
work supplements a merely reformist approach to positive legal change because it
attempts to exert control over legal meanings via legal culture rather than via
legislation. At the very least it does this by exposing law’s duplicity in relation to key
social distributions of power.
At the macro level, a perhaps more confrontational feminist strategy involves resisting
the traditional taxonomies of law by reordering it in ways which are more socially
meaningful. An early example of this sort of intervention was Tove Stang-Dahl’s
positing of a sphere of women’s law (Stang Dahl 1987). Some years later, Reg
Graycar and Jenny Morgan adopted a comparable strategy in their book The Hidden
Gender of Law (1990 and 2002), which is organised according to the socio-legal
experiences of women rather than according to law’s vertically-defined categories.
I read such acts of theoretical activism as attempts to resist and redefine law’s
verticality in a way which transgresses its inside/outside dichotomy. Such
engagements with law do not take place within the hierarchy of law, but nor are they
entirely outside it. Rather, the social is explicitly brought into the definition of law,
and the law is explicitly located throughout the social domain. The strategy negates
vertical law’s unique power to define the world, making formal law one factor among
others.
The ability for feminists and critical theorists to relate across national or cultural
borders without having the terms of this relationship dictated by formal law (though
still cognisant of its existence) is vital. For instance, debate has raged over the
occasional use of Indigenous law in Australian courts in the light of a perception that
it condones sexual violence against women and children. (This is a transnational issue,
since Indigenous law has never been recognised as legitimate in its own right. Of
course from the perspective of vertical law it is an internal issue, since Australian law
purports to apply uniquely and entirely to the territory it claims.) In this instance, the
formal law has proved to be an obstacle to understanding, despite what many might
regard as well-intentioned efforts to be culturally sensitive. Formal law often seems
institutionally incapable of listening to the voices of women, in particular Indigenous
women, preferring instead the more familiar knowledge of white anthropologists,
legal precedents, and arguments framed by lawyers. In this way, the political choice
imposed upon minority women between cultural rights and gender-based rights is
reinforced by law’s vertical structure. Formal law rarely sees beyond cultural
12
DRAFT – JUNE 2006
difference as the difference between cultures, a focus which masks the equally
significant differences within cultures (Post, 2003).
Spaces
As indicated above, the vertical dimension of law delimits the spaces within which
law is legitimately practised. It delimits the nations, the jurisdictions, and the
institutions (such as the courts and the legislatures) of law. In addition, law colludes
with political theories such as liberalism to divide the social world into public and
private spaces, which supposedly correlate to regulated and unregulated spheres of
activity.
Feminist theory has critiqued and actively intervened in this vertical structure by
relocating law: that is, by locating law in spaces beyond its vertically-defined spheres.
One critical illustration is the now-routine insight that law is not in fact confined to its
own sphere of operation but constructs and otherwise impinges upon subjects, social
life, so-called ‘private’ relationships, and so forth (O’Donovan, 1985; Lacey, 1998,
chapter 3). This critique dislocates law, blurs its self-defined edges, and suggests that
it has an illimitable and pluralist character: it is ‘illimitable’ because its boundaries are
not effective, and ‘pluralist’ because it manifests differently in different contexts. eg,
While heterosexual de facto couples, single people, same-sex couples, and unmarried
cohabitees may not have their relationships directly defined by the marriage law in
Australia, the normative impact of marriage on each of these groups in their everyday
lives and their homes, is undeniable, though differently expressed in each case.
(Graycar and Morgan, 2002: 14) It is different again for those whose religious faith is
at odds with the secular law (Mirza …). Thus, the edges of marriage law are not clear,
and its social effects cannot be meaningfully unified in a single normative form or
confined to any particular space or sphere.
A more positive reconstructive example is the positive performance of legal dramas in
spaces beyond the formal domain of law. In 2000, for instance, the Women’s
International War Crimes Tribunal heard a case against Japan and various of its
military and government personnel in relation to the sex slavery perpetrated by the
Japanese army in World War II. This was not a tribunal established under
international law or, obviously, under Japanese domestic law, though it conducted its
hearings in Tokyo. It was constituted as a ‘people’s court’ or ‘people’s tribunal’,
established by an alliance of grassroots activists, NGOs and academics. At the same
time (and in contrast to truth commissions) the tribunal followed ordinary legal
conventions regarding evidence and procedure (Chinkin, 2001: 337-338) and applied
legal concepts of standard of proof, responsibility and guilt, thus re-enacting the law
in a space where the formal law feared to tread. The ‘legal’ nature of the proceedings
was underlined by the appointment of four highly qualified judges, and their
production of a legally rigorous and lengthy opinion.11 The ‘re-enactment’ of law was
not completely faithful: as Dolgopol notes, understandably the procedures did not
permit witnesses to be cross-examined (Dolgopol, 2006, 495). The tribunal redefined
justice in relation to civil society rather than only in relation to government (Dolgopol,
2006; Chinkin 2001) and although its findings could not be binding in any official
Women’s International War Crimes Tribunal for the Trial of Japan’s Military Sexual Slavery, Case
no PT-2000-1-T, delivered 4 December 2001, The Hague. (WIWCT, 2001) The judges were Gabrielle
Kirk MacDonald, Carmen Argibay, Christin Chinkin and Willy Mutunga.
11
13
DRAFT – JUNE 2006
legal sense, it nonetheless provided a space for the foregrounding of some extreme
harms otherwise unacknowledged by law.
There are obviously some limitations or criticisms which might be raised about such a
marginally legal performance: it remained formal, and reproduced even as it
transgressed the vertical dimension of international law. It could not bind or legally
affect any perpetrator, it could not deliver real reparations to the victims of crime, and
the quality of its findings was largely moral. On the other hand, however, I would see
such an activist intervention in the formal law as an attempt to relocate and redefine it
beyond the state and government, and beyond the spaces and institutions formally
constituted by vertical law. Given that the survivors were at least partly in control of
the process, the flattened law of the tribunal is more participatory and inclusive than
vertically-defined law. It could also be regarded as ‘polycentric’ in that it refers to
both ‘legal’ and civil society-based sources. It could not have taken place without the
participation of lawyers, but it was centrally driven by victims of crimes against
humanity, by NGOs and by political activists. It is horizontal in both of the senses
referred to above: the spaces of law were extended by the enactment of law in an
alternative setting (cf figure 4); in addition, the tribunal was motivated by a need for
law to emanate from grassroots movements,12 thus equalising the sources, the subjects,
and the content of law (cf figure 5).
An evident objection to my analysis at this point is that the Women’s International
War Crimes Tribunal does not illustrate a horizontal dimension to law at all, but
rather an effort to enact a normativity beyond law. It could be seen as a normative
order which is parallel to formal law, rather than intersecting with it in a
transformative way. On this view the tribunal would simply be a non-legal repetition
of law, rather than a horizontalised manifestation of the legal. The resolution to this
issue depends largely on whether the limits of formal law are seen as relatively fixed
and self-defining or as permeable and open to transgression. Clearly, my preference is
for the latter view, meaning that this particular intervention can be read as legal in a
horizontal if not a vertical sense. It was also the view of the judges, who argued that
‘”law is an instrument of civil society” that does not belong exclusively to
governments’ 13 and that ‘where states fail to exercise their obligations to ensure
justice, civil society can and should step in’ (WIWCT, 2001, paragraph 65). Even
more directly, they noted that the term ‘“mock trial” inaccurately describes the work
of the People’s Tribunal, as it is not a fake trial, but essentially a real trial without
legal force.’ (WIWCT, 2001, para70) Regardless of its formal ‘status’, I would say
that the tribunal participates in a broader feminist project to reimagine law as taking
place across jurisdictions, across nationalities, and beyond normal constructions of
subjectivity. Its methodological innovation was to ‘combine traditional women’s
organising methodologies – networking, consciousness-raising, and alliance
building – with procedural initiatives that have established legitimacy among states
and within civil society.’ (WIWCT, 2001, paragraph 72) Thus, the tribunal provides a
forum for gender-based critique and reconstruction of the state and its formal legal
processes. In this sense the tribunal envisions a future participatory law, at the same
time as it tries to reconstruct an appropriate legally-defined version of the past.
12
Exacerbated by the refusal of the Japanese government to recognize the legal responsibility of the
state (Dolgopol, 2003).
13
The inserted quotation is from Falk, 1988, 29 as cited in WIWCT, 2001, n32.
14
DRAFT – JUNE 2006
Subjects Practising Law
The third aspect of the horizontal is the role of the subject in practising, knowing, and
constructing law. Legal positivism has always seen law as a human construction,
something ultimately posited by humans and not by any transcendental agent. Law
cannot be read off the nature of the cosmos and is not divinely revealed. As a
description of the Western understanding of law, I have always believed this to be
correct. Positivism took law away from God and universal truth and gave it back to
human society. However, in the same gesture, positivism also removed dynamic,
immediate human agency from law: positive law is channelled through formalised
institutions and is seen to operate at several removes from everyday life. Here, I have
always thought that positivism gets it wrong, both as a description of how law can and
does work, and as a view of how it ought to work.
The historical reasons for this segregation of law from the social are fairly obvious: in
the movement from natural law to positive law, legal authority was transferred from
God to Leviathan and then to the demos or the people. The people are seen to
comprise a unitary community existing within a single public space contained within
a national border. The people is singular not plural, it is the coming together of
reduced rational, individual, human types. Through a variety of rather formalised
mechanisms, the people constructs a single law. Such a single law is always
conceptually and practically removed from the plurality of human beings inhabiting
numerous intersecting public and national spheres. (cf Bohman, 2005)
Feminists and critical theorists have often wondered whether, instead of a single
‘benchmark man’ law ought to be reconstructed so that it represents a variety of
human types, rather than just one (Irigaray …). There are several problems with such
an approach, not least of which is that may simply essentialise a multitude of
identities (Drakopolou 2000: 213; cf Cooper, 2004: 83-88). This is little conceptual
advance on a system which reduces all to one essential identity. From my point of
view, an added difficulty is that multiplying subjects under the law does not address
the foundational problem, which is the hierarchical view of law in which subjects are
subjected, or constructed, by law but play little role as (re)producers and authors of
law.
Looking at law horizontally enables a repositioning of the subject as an active
participant in law-creation, rather than its merely passive recipient. One angle on this
is epistemological: it concerns creation of knowledge about law. Instead of assuming
that the hierarchically-empowered legal officials, jurists and judges must be the
starting point for legal knowledge, it is also possible to look at the understandings of
law generated by plural, inessential subjects with complex affiliations of sexuality,
ethnicity, gender, religious identity, and class. Such a plurality of persons necessarily
generate a plurality of legal knowledges (cf Cover 1983), which are not, however,
completely subjective since they originate in shared meanings and common identities
(see also Kleinhans and MacDonald; Manderson). From the perspective of vertical
law such meanings are marginal to any truth about law, but this marginality is a
consequence of the vertical control over legal meaning: it is politically enforced
marginality, not the necessary condition of plural knowledges about law. As I have
written about this in several other contexts, I will not pursue it here (See Davies, 2005;
2006; 2007a; 2007b).
15
DRAFT – JUNE 2006
Another more immediate aspect of horizontal or distributive law creation occurs in the
practical dimension. A number of ‘alternative’ legal practices now exist which have as
their aim the positive empowerment of legal subjects as authors of legal outcomes or
even legal regulation. I have already mentioned, for example, the Tokyo Women’s
War Crimes Tribunal in which the survivors of wartime sex slavery participated in the
construction of a quasi-legal process designed to bring moral judgment on the
perpetrators. Other forms of transitional justice can also attempt, with varying degrees
of success, to equalise subjects and laws. In domestic contexts, alternative dispute
resolution, sentencing circles, restorative justice, and responsive regulation, are all
types of participant-driven practice which contribute to a more horizontal
understanding of the legal system and its processes.
Here, however, the risks of simply associating legal practices which purport to
empower subjects with more equal outcomes becomes evident. Feminists have long
recognised that alternative dispute resolution does not necessarily promote better
outcomes for women and that formal law can actually have an important role to play
in equalising socially-enforced differences of power: as Lacey comments, ‘socio-legal
research has shown that the informalisation of justice can play into the hands of the
powerful, whilst the more inflexible application of legal rules by courts can on
occasion provide some protection to the powerless.’ (Lacey, 1998: 159; see also
Angela Harris, c1991). Similar risks arise in transitional and restorative justice
initiatives (See Stubbs 2004; Daly and Stubbs, 2006): while the ‘deadly simple
empowering feature of restorative justice’ is that it enables stories to be told beyond
the congealed medium of lawyers and legal jargon, (Braithwaite, 2002: 564) standards
and strategies are needed to ensure that re-victimisation does not occur. Indeed,
Braithwaite argues that the ‘principle of non-domination’ is integral: without it, a
process cannot be restorative (2002; 565).
CONCLUSION
Reaching out into the horizontal dimensions of law disrupts the exclusionary power so
intrinsic to its vertical form, and opens new possibilities for legal meanings to emerge.
Instead of looking at the substance of law and asking that it be more relational,
flexible, or person-centred, a horizontal perception of law places the values of
relationality, contiguity, and subject-empowerment at the heart of what law is.
At the same time, it is important not to assume that disrupting legal hegemony with a
more flexible, more pluralistic, more open-ended understanding of law will
necessarily benefit women and other legally marginalised groups. Here, as always, no
paradigm or model can wholly determine political outcomes, since these are also
shaped by the cumulative power of absolutely local practices, discourses and
relationships.
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