Engendering the rule of law: tautology or trick?

Abstract

The rule of law is widely recognised as ‘the preeminent political ideal’ that extols obedience to law in contrast with arbitrary power, but it invariably ignores the fact that it has traditionally authorised the idea of male entitlement. Although feminist scholars have sought to modify legal knowledge so that it no longer privileges masculinity at the expense of the feminine, Indigeneity and sexual difference, the rule of law continues to be resistant to the Other. The gender bias of the rule of law has been sustained historically through a range of ideological tropes, such as liberal legalism's focus on public life, a formalistic rather than a substantive interpretation of equality, and attacks on 'activist judges’ for embracing alternative interpretations of the rule of law. Through an analysis of the philosophical literature and exemplary Anglo-Australian case law, this thesis will be illustrated, arguing that greater attention needs to be paid to the gendered nature of power that shapes the epistemology of the rule of law and is conventionally discounted. It will also be argued that the rule of law may be invoked informally in everyday discourse to underscore masculinist power.