ABSTRACT
Emerita Professor Margaret Thornton's edited collection, Romancing the Tomes: Popular Culture, Law and Feminism was published in 2002, and grew out of the workshop Margaret organised under the auspices of the Humanities Research Centre at the Australian National University in 2000. In 2021 as part of the Institute of International Law and the Humanities (‘IILAH') Festival of Conversations Margaret spoke to Johanna Commins about the original workshop, the edited collection, and Margaret's reading of High Court Justice Ian Callinan’s first published novel, The Lawyer and the Libertine. The following edited conversation was held at Melbourne Law School in May 2023 and opened the workshop Romancing the Tomes 2.0: Feminism, Law and Popular Culture. It continued via email in early 2024.
Emerita Professor Margaret Thornton's edited collection, Romancing the Tomes: Popular Culture, Law and Feminism was published in 2002,Footnote1 and grew out of the workshop Margaret organised under the auspices of the Humanities Research Centre at the Australian National University in 2000.Footnote2 In 2021 as part of the Institute of International Law and the Humanities (‘IILAH') Festival of Conversations Margaret spoke to Johanna Commins about the original workshop, the edited collection, and Margaret's reading of High Court Justice Ian Callinan’s first published novel, The Lawyer and the Libertine.Footnote3 The following edited conversation was held at Melbourne Law School in May 2023 and opened the workshop Romancing the Tomes 2.0: Feminism, Law and Popular Culture. It continued via email in early 2024.
Johanna Commins (JC)
Margaret, it is so lovely to be here with you today and thank you so much for making the trip from Canberra, we really appreciate it.
Most people would associate your name with your work on discrimination law,Footnote4 or your work on women in the legal profession.Footnote5 But we are here today to talk about the space that you created in the early 2000s, with the feminists working at the interstices of feminism, law and popular culture, and to once again occupy that space.
In my work on The Handmaid’s Tale,Footnote6 law and popular culture literally (and figuratively) come together in the figure of the handmaid protester, a figure that has appeared across multiple jurisdictions.Footnote7 It seems to me that in the moment of her appearance, popular culture, the political (and as I argue, the legal) come together. I wanted to start today by asking you: is there always a relationship between popular culture and the political do you think?
Margaret Thornton (MT)
Thank you. And I thank the organisers for organising this conference, which is a fantastic testament to one’s work because often it just disappears into the ether after a year or two, and this is after 20 years! So, I’m really honoured to have what Jo and others have called Rom Tom 2.0.Footnote8
Yes, of course there’s always a relationship between the political and popular culture, but who is responsible for identifying that culture? So, if you look at, say, the eighteenth and nineteenth centuries when women were beginning to be politically active, there were cartoons that appeared in newspapers of women who had the temerity to think about entering public life. At the time of the French Revolution, for example, there were really, really vicious cartoons depicting what women were likely to do, how they would corrode the public space by sexualising it and engaging in obscene acts. And then, similarly, in the UK, the struggle for the vote, which is such a simple thing that we take for granted, took decades and decades. There were cartoons that were the work of newspaper proprietors who had the power. It wasn’t women but the men who used popular culture to depict women in horrible clothing, sites and situations, imagining what they might do once they had the vote. They couldn’t be trusted and, as one lawyer said in writing to The Times, ‘Why would they want the vote anyway when their husbands already had it?’
So, there was antipathy all the way, which women, of course, resisted by writing tracts and things like that – which are, I suppose a form of popular culture, because they were written for ordinary women – or those who were literate – which, of course, was actually a small proportion of the population at the time, to understand the inequities that were so common. For example, a woman legally became a non-person on marriage because it was believed that she was absorbed into the persona of her husband, which is an extraordinary thing to think of – the total evisceration of a person’s identity – which feminists spent years campaigning against.
The presence of women in popular culture increased with the proliferation of newspapers and magazines. Twenty years ago, we didn’t have social media but rapid technological developments have made things much easier, enabling feminism to become stronger and more powerful. Dissident voices can seize the available space and do something with it in writing, and through film and radio, which have been important. The Coming Out Show was a radio show on the ABC for years, 40 years maybe. That was a very important dimension of popular culture where what was happening around the country as well as different ideas came into people’s homes.
Radio was an important medium, but newspapers were perhaps less so. I remember the ‘women’s pages’ of the Sydney Morning Herald and other newspapers, which suggested that what women did was somehow trivial, was not part of mainstream politics but was consigned to the periphery. Women had to cope with that. But then, of course, they also wrote novels, which were politically quite significant, say from the 1930s in Australia, when there were several notable novels about the situation of women at the time, such as those of writers like Ruth Park. So, of course, there’s always been an ongoing relationship between politics and popular culture.
JC
You went to law school after completing your bachelor’s degree in Ancient History, and you were motivated in part, I think, by your experiences as an activist. I wondered if you could tell us a little bit about those experiences.
MT
Well, the 1970s was a really vibrant time in terms of feminism within Australia. I think it was interesting that we had a Prime Minister for a short time – Gough Whitlam – who was actually on the side of feminism, and I think that was an extraordinary thing and the sort of reforms that Gough initiated had lasting effect: no-fault divorce, free higher education (we had it for only 15 years but some of us were the beneficiaries of that) so that that was incredibly important. And a whole range of other things in terms of discrimination, human rights, and so on. And that inspired me to go to law school because of what was happening and what was possible with law. One’s ideas about that obviously change over time, but at that stage I think it was such an optimistic period about the possibilities of law (to effect positive change) that encouraged one to go into law.
When I finished, I was a founder of FLAG – the Feminist Legal Action Group. We worked on various cases and problems that we saw, and you know, many of them are so familiar and are still on the permanent feminist agenda – sexual assault, violence against women, defences in terms of homicide. There was the Violet Roberts case,Footnote9 which I was involved in by getting some money from the Criminology Research Council to look into the issue of the partial defence of provocation in cases where women kill intimate partners after a prolonged period of violence, which became quite significant, together with self-defence. There was a whole range of things that we worked on.
At one stage I remember I went on television. Helen Coonan, who later became a Liberal politician – she wasn’t actually a member of a FLAG but she allowed us to use the boardroom in her law firm for our meetings – came on television with me. And she said, ‘Yes, anyone who has a problem, please let FLAG know about it’. Well of course we were absolutely inundated. I mean, there were thousands of letters (it was letters in those days) from women all over Australia with these problems and it was just absolutely overwhelming. We couldn’t possibly deal with them, you know, as a small group of volunteers, but it highlighted the enormity of the problems and the things that needed to be done. I have worked on those issues as an academic and activist since then, as have many others. So, all of that was really important.
I taught first at Macquarie University, and at one stage, I was on WAM, WAC and WITI simultaneously. WAM was Women at Macquarie, which was trying to advance the position of women in the university, where initially we had quite a supportive Vice Chancellor – Edwin Webb.
WAC was the Women’s Advisory Council to the Premier of New South Wales. Neville Wran had set up an Advisory Council of Women to advise the government on women’s issues. It looked at sexual assault and provocation, as well as all the ongoing issues. It was quite inspired that Wran did that and was an important initiative.
I suppose it was the earlier history, you know, the heritage of Whitlam and I forgot to mention Elizabeth Reid, of course, who was appointed by Whitlam as the first women’s adviser to government in the world, which was another extraordinary initiative. So that idea of having women’s voices in government, or as advisers to government, was something that appealed to Neville Wran in New South Wales.
WITI was the other body and stood for Women in Tertiary Institutions. So, I was interested and continue to be interested in the position of women, and how feminist knowledge is marginalised within universities. The numbers are deceptive because about 65% of law students are now women, which is very high,Footnote10 so there’s been some change. One of my interests has involved looking at the impact of the corporatisation of universities, particularly in relationship to law schools, which I've written quite a bit about.Footnote11 Not many legal scholars have written about that; I remember one legal philosopher who said, ‘I don’t know how you can write about this, it’s bad enough living it!’ But I thought it was important to draw attention to what was happening and how this was changing the nature of knowledge, and how it meant that there was less space for feminist research because the corporatisation of the university was about generating funds. We’ve seen that happen increasingly as the so-called public university has become privatised and dependent on student fees – euphemistically referred to as ‘a contribution’, which has made it extremely difficult.
I was interested in the different ways that feminism was impacting upon a whole range of things. So not just the usual things in terms of what was happening with domestic violence, rape, discrimination and so on – I wrote about those things too, but also how feminism was impacting on more esoteric things, such as what was happening in the university, and how government controls filter through to university management and impact on the construction of knowledge. I think I got off the point.
JC
No, you’ve demonstrated that shift from activism outside institutions, including the academy, to forms of activism practiced within institutions. The edited collection from the 2000 workshop was Romancing the Tomes: Popular Culture, Law and Feminism.Footnote12 We are really fortunate that people who contributed to that volume are with us today, including Professor Ann Genovese, who is in the room, and Professor Isabel Karpin and Professor Carolyn Strange who are joining us online. What did it mean to you to put together that collection in 2002?
MT
Well, it was certainly an important thing to do. At the time, I was at La Trobe University, and we had a strong group of feminist scholars, but feminism was not the flavour of the month and, indeed, management announced (and it was later reported in the press) that the idea was to ‘get rid of the feminists’. Feminist scholarship was actually seen to be a sort of negative. What they wanted us to do and what they thought the law school should be engaged in, was commercial law. We should have been on the side of those making money and the big boys downtown generating profits. That was what law school was about – not this critical stuff that some of us were engaged in. It’s not peculiar to La Trobe; what I’m talking about is endemic to the tertiary sector, you could say, although places change over time. As some of my colleagues were being forced to leave the academy, I thought it would be nice to put something together.
At the time there were a lot of stories on television that had a sort of law basis. Remember LA Law and Rumpole of the Bailey? They were very masculinist for the most part and there were few women appearing; it was usually the length of their skirt that was the important thing, not their intellect. And another thing was that I thought the students were being influenced by what was offered on television – in terms of popular culture – to come to law school because they thought it would be all about sex and murder cases. So that was one thing that I thought would be interesting to capture. No one really addressed that issue, and how it was structuring the notion of what it meant to be a lawyer.
Initially, at La Trobe University, students had to write a piece as to why they wanted to come to law school (I think it was only 250 words), so when I was Head of School it was interesting to read those accounts and people would often say: ‘I am fascinated by law – “fascinated”’. I remember it being such an overused word, and it often came from students watching these television shows. No one had really written about this that I knew about, so that was in part the genesis, as well as bringing together people who had interesting perspectives on the nexus between popular culture and law, which I thought would make a really interesting conference. A number of other people were involved as well, it wasn’t just women from La Trobe, but that was the genesis for it.
Then there was the Humanities Research Centre at ANU. I wasn’t there at the time, but I think they must have had a call for conference proposals on the law and humanities theme, and so this is where I put up the proposal for this conference, which was accepted. It was a very enjoyable experience working on these things together with people of like mind. So that was the beginning. It developed into the published collection, and I’m very happy for it to be revived in 2023.
Additional questions:
JC
Representations of women in law in popular culture have come a long way in the past 20-plus years since the days of Ally McBeal in her short skirts and Ian Callinan’s depiction of the ‘ball breaking’ Chief Justice Shirley Leeme. Despite this, as you write in the postscript to your most recent manuscript, Law and the Quest for Gender Equality, there have been many, recent ‘salutary reminders that women are still far from equal in our society … ’.Footnote13 Is writing about law and popular culture a distraction for feminist scholars when the material circumstances of women and gender non-binary people’s lives seem so little improved?
MT
This is a very good question. While it is true that inequities continue to be perpetrated against women, particularly those who are racialised and sexualised, and there has been no discernible reduction in the incidence of violence perpetrated against them, I do not think that feminist scholars should feel pressured to write perennially about such issues in conventional ways. Indeed, art, literature and popular culture necessarily encompass all aspects of life, which allow us to develop a novel perspective on the human condition and to imagine how things might be. As you well know, The Handmaid’s Tale exposes brilliantly the insidious nature of violence and control over women in a dystopian setting in a way that is far more effective than conventional scholarship.
Popular culture is unlikely to improve immediately the material circumstances of those who are oppressed, but the shock of the new can sharply illuminate familiar problems in profound ways. This was what was so exciting about Romancing the Tomes as it enabled problems that feminists had been wrestling with for a long time to be to be addressed in novel ways. Furthermore, if people are still thinking about the issues 20 years later, this suggests that popular culture as a method is not an idle distraction.
JC
In trying to figure out where to situate my work in the existing scholarship – whether it’s a law and literature project or a cultural legal studies project or a law and popular culture project or whether it straddles all of these – I was struck by two things. The first was the abundance of interdisciplinary work of this nature that is happening in Australia (which coming from New Zealand was such a delightful discovery), and the second was that feminist projects in this space remain in the minority. While the 2023 conference of the Law, Literature and the Humanities Association of Australasia hosted a number of panels dedicated to feminist scholarship to celebrate the 30th anniversary of this journal, during the 2021 conference only one out of 31 panels had ‘feminist’ in the title. Furthermore, despite the proliferation of scholarship that has occurred since the publication of your edited collection, there has been a dearth of expressly feminist manuscripts in this space.
Do you agree with that assessment, and do you have any reflections on why that might be?
MT
The phenomenon to which you refer is associated with new iterations of feminism, variously referred to as third or fourth wave feminism, or postfeminism. These iterations have arisen not only from the backlash against feminist success, but they have also been influenced by the anti-feminist rhetoric of prominent figures like Donald Trump, as well as the prevailing political philosophy of neoliberalism.
Postfeminism suggests that the goals of feminism have been achieved and that equality rights and social justice are now passé. Neoliberalism, with its focus on profit maximisation and competition policy flavours individual success and personal gratification. Second wave feminism began to be derided by young women who saw it as an outdated movement that was associated with their mothers’ generation. When I conducted interviews a few years ago with legal academics in the UK, Canada and New Zealand, as well as Australia, for Privatising the Public University, academics everywhere reported that their students had turned away from any course with ‘feminist’ in the title as they felt that it would hinder their chances in the job market. The students’ thinking fitted in with the neoliberal idea that promotion of the self was their primary goal, rather than any vague idea of gender justice. Some of that thinking probably lies at the basis of the choice not to use the word ‘feminist’.
However, the focus on sexual harassment as a result of #MeToo brought about something of a feminist renaissance. This did not mean a complete reversal to the 1990s, but what Roslyn Gill refers to as an ‘entanglement’ of feminist and anti-feminist ideas.Footnote14 Thus, at the same time as the anti-feminist rhetoric of Trump and the right was in the ascendancy, feminism was being invigorated by the renewed focus on sexual harassment, as well as a significant turn towards race, sexuality and other forms of intersectional feminism. So significant was the revival of feminism that it was chosen by Merriam-Wester as the word of the year in 2017.Footnote15
JC
Do feminists need different strategies to take up more space in critical legal scholarship?
MT
While it is regrettable that anti-feminism has inhibited the development of feminist perspectives within critical legal scholarship, backlash is a pervasive reaction to challenging the status quo, as Elizabeth Reid reminds us.Footnote16 This is apparent when we consider many instances of the past, such as the fact that it took 70 years of struggle to convince courts that women were ‘persons’ for the purpose of entry to the legal profession.
Anti-feminism would appear to be on the rise again, as can be seen by the anti-abortion movement and the wokeism that emerged in the US and many other parts of the world following the repeal of Roe v Wade.Footnote17 Feminist scholars should therefore resist timidly policing themselves in the belief that blandness will have more appeal to gatekeepers. One way to do this successfully is by developing new ways of seeing. Journals are always on the lookout for innovative and imaginative articles, which is where popular culture comes into its own, as this special issue on Romancing the Tomes II reveals.
However, it is always a dilemma as to whether to publish in mainstream law journals in the hope that the uninitiated might read your work and be persuaded by it, or to go with a more receptive audience in a feminist law journal. I don’t have the answer to that as it is a conundrum that has beset me throughout my career. I suppose it shows how having to manoeuvre around the entanglement of feminism and anti-feminism is part of everyday life for many of us.
The 1990s were undoubtedly the high point of second wave feminism in Australia when there was a plethora of activity, which included the launch of the Australian Feminist Law Journal. While the ‘post’ in postfeminism may be read as a sign that feminism has past, it can also signify a new beginning. Thus, rather than accept the blandness of neutrality in the belief that it will secure the approbation of gatekeepers, scholars should be prepared to eschew timidity in flavour of boldness in their scholarship because history shows that is the only way that social change can be achieved.
Acknowledgements
The authors would like to thank the Institute for International Law and the Humanities and Melbourne Law School for generously hosting the Romancing the Tomes 2.0 workshop. They would particularly like to thank Professor Sundhya Pahuja and Professor Ann Genovese who were early champions of the original conversation and the workshop it gave rise to. Johanna Commins’s research is supported by an Australian Government Research Training Program (RTP) Scholarship.
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No potential conflict of interest was reported by the author(s).
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Notes on contributors
Margaret Thornton
Margaret Thornton is Emerita Professor of Law at the Australian National University in Canberra. She has published extensively on issues relating to women and law and her current research project entails a study of the new ways of practising law with regard to gender, professionalism and technology. She is a Fellow of the Academy of Social Sciences in Australia and a Foundation Fellow of the Australian Academy of Law. Her latest book is Law and the Quest for Gender Equality (ANU Press 2023).
Johanna Commins
Johanna Commins is an Early Career Researcher at Melbourne Law School. Her PhD dissertation, ‘Double Handmaid: Tales of Law and Literature’, considers representations of women in law and literature through a close reading of Margaret Atwood’s novel The Handmaid’s Tale and selected legal and non-legal texts.
Notes
1 Margaret Thornton (ed), Romancing the Tomes: Popular Culture, Law and Feminism (Cavendish 2002).
2 Ibid xi.
3 Ian Callinan, The Lawyer and the Libertine (Central Queensland University Press 1997); Margaret Thornton, ‘The Illusion of the “Real” in Ian Callinan's the Lawyer and the Libertine’ in Margaret Thornton (ed), Romancing the Tomes: Popular Culture, Law and Feminism (Cavendish 2002) 257–268.
4 Margaret Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (Oxford University Press 1990).
5 Margaret Thornton, Dissonance and Distrust: Women in the Legal Profession (Oxford University Press 1996).
6 Margaret Atwood, The Handmaid’s Tale (Vintage Books 2010).
7 Peter Beaumont and Amanda Holpuch, ‘How the Handmaid’s Tale Dressed Protests Across the World’ The Guardian (London, 3 August 2018) <www.guardian.co.uk> accessed 21 January 2020; Johanna Commins, ‘Composing the Handmaid: From Graphic Novel to Protest Icon’ (2021) 11(1) <https://www.comicsgrid.com/article/id/4045/> accessed 28 February 2024.
8 ‘Rom Tom 2.0’ was the organisers abbreviated name for the 2023 workshop.
9 R v Violet Mary Roberts, Bruce Maurice Roberts, unreported Supreme Court of New South Wales, Newcastle, 15 March 1976.
10 In noting that women now comprise 55% of all lawyers in Australia in 2022, the Financial Review reports that women have comprised the majority of law graduates since 1993 (Michael Pelly, ‘Women Reach an Important Milestone in Legal Profession’ Finance Review (5 May 2023)). Disaggregated figures are not available for the percentage of law students, as law is incorporated within Society and Culture, which was 65.8% female in 2019 (Workplace Gender Equality Agency, Higher Education Enrolments and Graduate Labour Market Statistics, 2021).
11 Eg, Margaret Thornton, Privatising the Public University: The Case of Law (Routledge 2012); Margaret Thornton, ‘Universities Upside Down: The Impact of the New Knowledge Economy’ (2009) 21 Canadian Journal of Women and the Law 375; Margaret Thornton, ‘How the Higher Education “Industry” Shapes the Discipline of Law: The Case of Australia’ (2017) 5 Griffith Journal of Law and Human Dignity 101; Margaret Thornton, ‘The Challenge for Law Schools of Satisfying Multiple Masters’ (2020) 62 Australian Universities Review 5; Margaret Thornton, ‘What is the Law School for in a Post-pandemic World’ in Rachel Ann Dunn, Paul Maharg and Victoria Roper (eds), What is Legal Education For? Re-assessing the Purpose of Early Twenty-First Century Learning and Law Schools (Routledge 2022).
12 Margaret Thornton (ed), Romancing the Tomes: Popular Culture, Law and Feminism (Cavendish 2002).
13 Margaret Thornton, Law and the Quest for Gender Equality (ANU Press 2023) 399.
14 Roslyn Gill, ‘Postfeminist Media Culture: Elements of a Sensibility’ (2007) 10(2) European Journal of Cultural Studies 147.
15 Merriam-Webster, ‘Lists of Merriam-Webster's Words of the Year’ Wikipedia (2017) <en.wikipedia.org/wiki/Lists_of_Merriam-Webster%27s_Words_of_the_Year> accessed 5 February 2024.
16 Elizabeth Reid, ‘Revolution and Reform: The Women’s Liberation Movement and the Whitlam Years’ (Whitlam Institute, University of Western Sydney 2023).
17 Roe v Wade 410 US 113 (1973). Women’s right to abortion was overruled by Dobbs v Jackson Women’s Health Organization (2022) 597 US 215.