Anti-patriarchal activism should pragmatically engage the law, as particular tactic informed by feminist jurisprudence --- this recognizes that the law can be a tool in the toolbox on a case-by-case basis

It appears to have a very clear message and poured a bucket of very cold water over second wave feminists’ enthusiasm for trying to use law for women.70 This has led to a disjuncture between feminist theorising and practice, which is regretted by many feminists.71 It is my disquiet about this call to turn away from law, and the belief that legal feminists, both scholars and activists, have a responsibility to engage with law that underpins the thesis. Critique of law is insufficient. There is a need to use law’s tools in traditional and imaginative ways not only to expose its gendered character but to find new ways of doing law.

This aligns the thesis alongside feminists who seek to reconstruct liberal values rather than reject them outright.72 Feminists have interrogated liberalism and found it wanting. They have critiqued the individualistic and autonomous nature of the liberal subject, the dualism that liberalism presents in its divisions between the rational versus the emotional, its formal view of equality, the vision of the neutral state and its separation of the public and the private realm. 73 Jaggar concludes that feminism has often relied on liberal ideas and has many reasons to be grateful to liberalism, but that it is incapable of bringing about the changes desired.74 Nussbaum, on the contrary, accepts much of the critique of liberalism, but she has famously mounted a spirited defence of its principles of ‘personhood, autonomy, rights dignity [and] self respect’.75 She has pointed out the diversity of liberal thinking, and notes that it has attempted to respond to feminist criticisms. She tries to persuade the reader that, ‘[t]he deepest and most central ideas of the liberal tradition are ideas of radical force and great theoretical and practical value’.76 Nussbaum’s own project, based on human capabilities, articulates a set of needs necessary for autonomy and human flourishing.77 My concern that Smart’s exhortations to desist from legal engagement, are overly dismissive of law’s possibilities, are shared by other legal feminists and critical theorists. Sandland criticizes Smart for creating a dichotomy between politics/philosophy and between deconstruction/reform thus closing down all political and legal options. 78 Being outside the system as a form of resistance is, according to Sandland, a strategy of ‘no resistance’. He sees Smart as being overly pessimistic, by dismissing the significance of cases such as R v R, where the judges removed the marital rape exemption, there is a danger of feminism ‘understating its own political and jurisprudential purchase as a subversive force interrupting the “unmodified” liberal paradigm’.79 Feminism needs to use the tension between recognition and denial of law to evaluate the merits of legal intervention on a case-by-case basis. Sandland sees there being value in finding the gaps in law that provide a space to struggle over law’s meaning.80Lacey appears sympathetic to Smart’s theoretical project, and to Smart’s insight that law’s belief that it is objective, true and impartial inflates its status so that it appear superior to other forms of knowledge. This makes it harmful to women.81 But she also has reservations about Smart’s political strategy and argues that it would be unfortunate to give up attempts at legal reform. She notes that it is unclear that other institutions such as the family, religion or politics are more susceptible to reconstruction than law.82 Writing just under ten years later Munro argues that feminism should not relinquish its attempts to reconstruct law. She is not uncritical of liberal values, but given law’s resistance to competing discourses she thinks there are pragmatic reasons for using law rather than remaining silenced by an oppositional stance.83