1. Wittgenstein, Ludwig, Philosophical Investigations, 2d ed. (Oxford: Blackwell, 1967) at 94.Google Scholar

2. It is neither a complete statement nor an invitation, although perhaps I am just being unimaginative in saying this.

3. Perhaps it wouldn't be a woman-identified “law” at all, but rather an “ethics,” such as the one Hoagland has begun to articulate. See Hoagland, Sarah Lucia, Lesbian Ethics (Palo Alto: Institute of Lesbian Studies, 1988).Google Scholar

4. There is now a very large literature on the “queer.” A few recent works include Jagose, Annamarie, Queer Theory (Melbourne: Melbourne University Press, 1996)Google Scholar; Driscoll, Sally, “Outlaw Readings: Beyond Queer Theory” (1996) 22 Signs 30CrossRefGoogle Scholar; Walters, Suzanna Danuta, “From Here to Queer: Radical Feminism, Postmodernism, and the Lesbian Menace (Or, Why Can't a Woman Be More Like a Fag?)” (1996) 21 Signs 830.CrossRefGoogle Scholar

5. Jeffreys, Sheila, The Lesbian Heresy: A Feminist Perspective on the Lesbian Sexual Revolution (Melbourne: Spinifex, 1993) at c. 8.Google Scholar

6. Jo, Bev, “Female Only” in Hoagland, Sarah Lucia & Penelope, , eds., For Lesbians Only: A Separatist Anthology (London: Only women 1988) 74 at 74.Google Scholar

7. See generally Wittig, Monique, The Straight Mind and Other Essay (Boston: Beacon, 1992)Google Scholar; Jeffreys, supra note 5 at 169, calls for a “deeper separation” which is “an intellectual, and ethical one.”

8. See Kelsen's opening comments in Kelsen, Hans, The Pure Theory of Law (Berkeley: University of California Press, 1967) at 1.Google Scholar See also Austin, John, The Province of Jurisprudence Determined and the Uses of the Study of Jurisprudence (London: Weidenfeld & Nicholson, 1954).Google Scholar

9. Tom Campbell interprets most of the tradition of legal positivism as grounding positivism on some basis of value, which has to be right but which itself, in my view, somewhat undermines the claims of positivist thought to simply descibe the law. See Campbell, Tom, The Legal Theory of Ethical Positivism (Dartmouth: Aldershot, 1996) at 74.Google Scholar

10. Fuller, Lon, “Positivism and Fidelity to Law: A Reply to Professor Hart” (1958) 71 Harvard Law Review 630 at 630–31.CrossRefGoogle Scholar Fuller continues by pointing out that it is not necessarily contradictory to adopt both positions: “There is no reason why the argument for a strict separation of law and morality cannot be rested on the double ground that this separation serves both intellectual clarity and moral integrity.” Ibid. at 631.

11. Hume, David, Treatise of Human Nature (Harmondsworth: Penguin, 1969) at 521.Google Scholar Austin famously said: “The existence of law is one thing; its merit or demerit is another.” Austin, supra note 8 at 184.

12. In relation to indigenous peoples, see Watson, Irene, “Nungas in the Nineties” in Bird, Greta, Martin, Gary & Nielsen, Jennifer, eds., Majah: Indigenous Peoples and the Law (Sydney: Federation, 1996) 1 at 4.Google Scholar Brownlie describes self-determination in terms which indicate that what is being envisaged mirrors traditional forms of state sovereignty: “[T]he right of cohesive national groups (‘peoples’) to choose for themselves a form of political organisation and their relation to other groups. The choice may be independence as a state, association with other groups in a federal state, or autonomy or assimilation in a unitary (non-federal) state.” Brownlie, Ian, Principles of Public International Law, 4th ed. (Oxford: Clarendon, 1990) at 595.Google Scholar See also Steiner, Henry & Alston, Philip, International Human Rights in Context: Law, Politics, Morals (Oxford: Clarendon, 1996) at c. 14.Google Scholar

13. “Skeletal principles” is a reference to the judgement of Brennan J. in Mabo v. Queensland (No. 2) (1991–1992), 175 Commonwealth Law Reports 1 at 29, where his honour said: “In discharging its duty to declare the common law of Australia, this Court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency.” In this case, the court held that it could not question the sovereignty of Australian law.

14. I am indebted to Ruthann Robson for helping me to clarify my thoughts on this matter.

15. Marilyn Frye, “Some Reflections on Separatism and Power” in Hoagland & Penelope, eds., supra note 6 at 62 [also published in Frye, Marilyn, The Politics of Reality: Essays in Feminist Theory (Trumansberg: Crossing, 1983)Google Scholar].

16. Ibid. at 62.

17. Some of the possible separatist strategies are listed in Hawthorne, Susan, “In Defence of Separatism” in Gunew, Sneja, ed., A Reader in Feminist Knowledge (London: Routledge, 1990) 312 at 312–13.Google Scholar

18. See supra note 4. See also Didi Herman's critique of Ruthann Robson's lesbian jurisprudence: Herman, Didi, “A Jurisprudence of One's Own? Ruthann Robson's Lesbian Legal Theory” (1994) 7 Canadian Journal of Women and the Law 509.Google Scholar

19. Thus, I have not attempted to deal with the complicated relationship between lesbian politics and feminist politics. See Calhoun, Cheshire, “The Gender Closet: Lesbian Disappearance Under the Sign ‘Woman’” (1995) 21 Feminist Studies 7CrossRefGoogle Scholar; Allen, Hilary, “Political Lesbian and Feminism: Space for a sexual politics?” (1982) 7 m/f 15.Google Scholar

20. Lorde, Audre, Sister Outsider: Essays and Speeches by Audre Lorde (Trumansberg, NY: Cross, 1984).Google Scholar

21. The “politics” which are accepted as underlying positivist thought will make all the difference to our view of whether it is a benign protector of basic human values or a protector of the politically dominant. Clearly my view on this matter is very different to that of Campbell, supra note 9, who argues that there are sound ethical grounds for a positivist world-view.

22. For instance, in relation to feminist legal theory, see comments made by Robson, Ruthann in Lesbian (Out) Law (New York: Firebrand, 1992) at 21–22.Google Scholar

23. That is, law which is popularly and professionally understood to be separate, self-defining, and sovereign. I conflate law with the theory of positivism because it seems clear to me that basic positivist arguments now shape our general understanding of law. Whatever it once was, the law is now broadly understood as separate and autonomous, a perception which masks law's essentially political function.

24. In Roman law there was a distinction between the civilians who had active legal personality and subjects who could only receive law. Goodman, Ellen, The Origins of the Western Legal Tradition: From Thales to the Tudors (Sydney: Federation, 1995) at 132.Google Scholar Although there are still human beings who do not have full legal personality, the distinction no longer reflects clear-cut legal categories. However, there are obviously still more subtle legal means of maintaining the distinction. A recent work which considers many aspects of this question is Naffine, Ngaire & Owens, Rosemary, eds., Sexing the Subject of Law (Sydney: Law Book, 1997).Google Scholar

25. Irigaray, Luce, “Commodities among Themselves” in This Sex Which Is Not One (Ithaca, NY: Cornell University Press, 1985) at 192.Google Scholar

26. Ibid. at 193.

27. This is perhaps not a very difficult argument to make, given that masculinity itself is constituted by such exchanges, which define the man against the woman. Exchanges between men are sexual because they help to define what it is to be a man.

28. Jagose, supra note 4 at 51–53, considers the work of several lesbian theorists who make a similar comparison. I have altered my opinion of Irigaray's, comments since I wrote “The Heterosexual Economy” (1995) 5 Australian Feminist Law Journal 27.Google Scholar

29. Morgan, Wayne, “Queer Law: Identity, Culture, Diversity, Law” (1995) 5 Australasian Gay and Lesbian Law Journal 1 at 12.Google Scholar

30. See especially Robson, supra note 22; Morgan, ibid.; Morgan, Wayne, “Still in the Closet: The Heterosexism of Equal Opportunity Law” (1996) 2 Critical in Queeries 119.Google Scholar

31. Elsewhere, I have applied Judith Butler's notion of gender as performance to law. See Butler, Judith, Gender Trouble (New York: Routledge, 1990)Google Scholar; Davies, Margaret, Delimiting the Law: “Postmodernism” and the Politics of Law (London: Pluto, 1996) at 129–30, 134–39.Google Scholar

32. The scholarship is so vast as to make even the task of selecting a few representative articles meaningless. See generally Littleton, Christine, “In Search of a Feminist Jurisprudence” (1987) 10 Harvard Women's Law Journal 1Google Scholar; Fineman, Martha Albertson, “Feminist Theory in Law: The Difference It Makes” (1992) 2 Columbia Journal of Gender and Law 1Google Scholar; Charlesworth, Hilary, Chinkin, Christine & Wright, Shelley, “Feminist Approaches to International Law” (1991) 85 AJIL 613CrossRefGoogle Scholar; O'Donovan, Katherine, “Engendering Justice: Women's Perspectives and the Rule of Law” (1989) 29 U.T.L.J. 127.CrossRefGoogle Scholar

33. See Greta Bird, “Koori Cultural Heritage: Reclaiming the Past?” in Bird, Martin, & Nielsen, eds., supra note 12, 100.

34. An especially powerful insight into this issue is provided by the report into the “stolen generation” of Australian Aboriginal children who were removed from their parents and forced to live with non-Aboriginal families, a feature of Australian treatment of its indigenous population which has not yet been eliminated. See Human Rights and Equal Opportunity Commission, Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Straight Islander Children from Their Families (Commonwealth of Australia, 1997).Google Scholar

35. The debate between H. L. A. Hart and Lon Fuller about the proper characterisation of Nazi “laws” was partly concerned with this issue: Fuller, supra note 10 at 659–61. See also Tom Campbell's response to the feminist arguments against rules in Campbell, supra note 9 at 64. A mainstream account (i.e. which, by and large, accepts the terrain defined by Hart, Dworkin, and those who take their work to be central in jurisprudence) of the political implications of positivist theory is offered by Dyzenhaus, David, “Why Positivism is Authoritarian” (1992) 37 American Journal of Jurisprudence 83.CrossRefGoogle Scholar

36. In relation to the Aboriginal cultures of Australia, see Bird, supra note 33; Rigney, Daryle, “Moving the Boundaries and Undoing the Restrictions” in Johnston, Elliott, Hinton, Martin & Rigney, Daryle, eds., Indigenous Australians and the Law (Sydney: Cavendish, 1997) 31.Google Scholar

37. Hart, H. L. A., The Concept of Law, 2d ed. (Oxford: Clarendon, 1954) at 91–92.Google Scholar Hart speaks suggestively of the defective nature of primitive pre-legal systems, which are remedied by the “rule of recognition.”

38. As it has done in the cases of Mabo v. Queensland (No. 2) (1992) 175 C.L.R. 1 and Wik and Thayorre Peoples v. Queensland (1996) 141 A.L.R. 129. As a matter of logic, perhaps the High Court cannot do anything which would undermine its own jurisdiction such as questioning the aquisition of sovereignty by the British in Australia, although it needs to be remembered that the High Court is continually recreating its own jurisdiction or “pulling itself up by the bootstraps” by refusing to ask such questions. There is no absolutely grounded “logic” here, just power.

39. Alice et al., “Separatism” in Hoagland & Penelope, eds., supra note 6, 31 at 31–33.

40. Molina, Maria Luisa “Papusa”, “Fragmentations: Meditations on Separation” (1994) 19 Signs 449 at 452.Google Scholar

41. Diane Bell, “Aboriginal Women, Separate Spaces, and Feminism” in Gunew, ed., supra note 17, 13. Bell notes that Western separatists are attempting to withdraw from the “heterosexual battleline,” which “is an artefact of white society.”

42. I take Austin's work as the beginning of the tradition, even though it was clearly preceded by other influential works.

43. Hart says “Bentham and Austin were not dry analysts fiddling with verbal distinctions while cities burned, but were the vanguard of a movement which laboured with passionate intensity and much success to bring about a better society and better laws.” Hart, H. L. A., “The Separation of Law and Morals” (1958) 71 Harvard Law Review 593 at 596.CrossRefGoogle Scholar

44. This point was made very clearly by Fuller: “When Austin and Gray distinguish law from morality, the word ‘morality’ stands indiscriminately for almost every conceivable standard by which human conduct may be judged that is not itself law. The inner voice of conscience, notions of right and wrong based on religious belief, common conceptions of decency and fair play, culturally conditioned prejudices—all of these are grouped together under the heading of ‘morality’ and are excluded from the domain of law.” Fuller, supra note 10 at 635. I am not convinced that, even having identified it, Fuller himself avoided such vagueness. Certainly, 20th-century positivists have not avoided the vagueness, although Hart does attempt to specify some aspects of “morality.” See Hart, supra note 37 at c. 8.

45. Hart, ibid. at c. 9; Austin, supra note 8.

46. Campbell, supra note 9 at 3, 86–87.

47. Ibid. at 3, 72.

48. Positivist thinkers do not have a monopoly on this assumption that the “community” is a relatively coherent body defined by its cultural sameness or at least its acceptance of basic political dogmas. The community represented in Dworkin, Ronald, Law's Empire (London: Fontana, 1986)Google Scholar is very much of this homogeneous type.

49. MacCormick, Neil, “Law, Morality, and Positivism” in MacCormick, Neil & Weinberger, Ota, eds., An Institutional Theory of Law: New Approaches to Legal Positivism (Dordrecht: Kluwer Academic Publishers, 1986) 127 at 128.CrossRefGoogle Scholar

50. This is an argument which is so broadly recognised, at least in relation to so-called “hard cases,” that it seems impossible to refute. However, the really important point to my mind is not how to characterise what judges do in hard cases, but that even easy cases have absolutely no significance except in the discursive context within which they are enunciated. Even easy cases and easy statutes must refer outside their own boundaries, and outside the law. They are not separate, and are always inherently nonlegal. See Davies, supra note 31, c. 4.

51. See generally, Gabel, Peter, “Reification in Legal Reasoning” (1980) 3 Research in Law and Sociology 25.Google Scholar The term “language game” is, of course, derived from the work of Wittgenstein, supra note 1, at 65–71. To give the point a technical explanation within the Wittgensteinian framework, I would say that one of the “rules” of the language game of law is that the term “law” is given this separate and abstract significance. It is a transgression of the rules to use “law” to refer to ordinary cultural norms or to give it a more pragmatic sense as the legal realists did. Thus, it is necessary to the functioning of “law” that the term be reified: the game itself resists any alternative usage. The game of law is founded upon this particular usage.

52. “That all this is described as a ‘pure’ theory of law means that it is concerned solely with that part of knowledge which deals with law, excluding from such knowledge everything which does not strictly belong to the subject-matter law. That is, it endeavours to free the science of law from all foreign elements. This is its fundamental methodological principle.” Kelsen, Hans, “The Pure Theory of Law: Its Method and Fundamental Concepts, Part I” (1934) 50 Law Quarterly Review 474 at 477–78.Google Scholar See also Kelsen, Hans, “The Pure Theory of Law, Part II” (1935) Law Quarterly Review 517.Google Scholar

53. MacCormick, supra note 49 at 128.

54. See, for instance, Stubbs, Margot, “Feminism and Legal Positivism” (1986) 3 Australian Journal of Law and Society 63 at 67Google Scholar; Gabel, supra note 51.

55. Campbell, supra note 9.

56. In particular, I will focus on Frye, supra note 15; Hoagland, supra note 3; Lugones, María, “Purity, Impurity and Separation” (1994) 19 Signs 458CrossRefGoogle Scholar [hereinafter “Purity, Impurity and Separation”].

57. Frye, ibid.

58. See Davies, Margaret, “The Proper: Discourses of Purity” (1998) 9 Law and CritiqueCrossRefGoogle Scholar [forthcoming] [hereinafter “The Proper”].

59. For instance, Diane Bell describes the “jilimi,” which is a women's space in an Aboriginal community of central Australia; Bell, supra note 41.

60. See generally (1996) 48 Journal of Australian Studies on the theme “Secret Women's Business: The Hindmarsh Island Affair,” especially Lyndall Ryan, “Origins of a Royal Commission,” ibid., 1; Deane Fergie, “Secret Envelopes and Inferential Tautologies,” ibid., 13; Christine Nicholls, “Literacy and Gender,” ibid., 59.

61. See e.g. “Purity, Impurity and Separation,” supra note 56.

62. Thanks to Mary Heath for this point.

63. María Lugones, in “Purity, Impurity and Separation,” supra note 56 at 476, says: “The logic of transparency shines in the constructed lover of purity himself, the modern subject, the impartial reasoner. He is the measure of all things. He is transparent relative to his position in the hetero-relational patriarchy, to his culture, his race, his class, his gender. His sense is the only sense. So curdled thoughts are nonsensical.”

64. Frye, supra note 15 at 69.

65. Hoagland, supra note 3 at 55. Brodribb has satirised this argument very effectively. Brodribb, Somer, “Withdrawing Her Energy” in Brodribb, Somer, ed., Nothing Mat(t)ers: A Feminist Critique of Postmodernism (Melbourne: Spinifex, 1992) 413.Google Scholar

66. Lugones, María, “Hispaneando y Lesbiando: On Sarah Hoagland's Lesbian Ethics” (1990) 5 Hypatia 138 at 143CrossRefGoogle Scholar [hereinafter “Hispaneando y Lesbiando”].

67. Ibid. at 145.

68. The pathologising of the “battered woman” is one example. Although the position of victims of domestic violence has achieved some legal recognition, it is at the cost of categorising as a “syndrome” behaviour which, from another point of view, might look perfectly normal and understandable.

69. Micheal Dodson, “Human Rights and the Extinguishment of Native Title” in Johnston, Hinton & Rigney, eds., supra note 36, 149 at 149; Nettheim, Garth, “Native Title, Statutory Title and ‘Special Measures’” (1993) 63 Aboriginal Law Bulletin 4Google Scholar; Watson, supra note 12.

70. Hoagland, supra note 3 at 60.

71. “Purity, Impurity and Separation,” supra note 56.

72. Ibid. at 460, 464.

73. Ibid. at 465–67.

74. Ibid. at 469.

75. In relation to the legal subject, see Naffine, Ngaire, Law and the Sexes (Sydney: Allen & Unwin, 1990)Google Scholar; Thornton, Margaret, Dissonance and Distrust: Women in the Legal Profession (Melbourne: Oxford University Press, 1996).Google Scholar

76. Feminist standpoint epistemology has been criticised for assuming a common experience among women, and for resting on some notion of absolute “truth.” However, standpoint epistemology is not invalidated by such criticisms, only modified. See Haraway, Donna, Simians, Cyborgs, and Women (New York: Routledge, 1991)Google Scholar; Harding, Sandra, Whose Science? Whose Knowledge? Thinking from Women's Lives (Ithaca, NY: Cornell University Press, 1991)Google Scholar; Hartsock, Nancy, “The Feminist Standpoint: Developing the Ground for a Specifically Feminist Historical Materialism” in Harding, Sandra, ed., Feminism and Methodology (Bloomington: Indiana University Press, 1987) 283Google Scholar; Elliott, Terri, “Making Strange What Had Appeared Familiar” (1994) 77 The Monist 424.CrossRefGoogle Scholar

77. The separateness imposed by standard academic language is considered by Molina, supra note 40 at 453.

78. “Purity, Impurity and Separation,” supra note 56 at 459.

79. Ibid. at 476–79.

80. In speaking of the “propertisation” of law, I am applying Kevin Gray's idea that property is constructed essentially through its “excludability.” Law is “propertised” by the manifest exclusions which are entrenched in law. See Gray, Kevin, “Property in Thin Air” (1991) Cambridge Law Journal 252CrossRefGoogle Scholar; Davies, Margaret, “Feminist Appropriations: Law, Property, and Personality” (1994) 3 Social and Legal Studies 365CrossRefGoogle Scholar; “The Proper,” supra note 58.

81. See Kuhn, Thomas, The Structure of Scientific Revolutions (Chicago: University of Chicago Press, 1996)CrossRefGoogle Scholar. I am indebted to Andrew Goldsmith for this idea.

82. In a sense, such questions resonate with Kant's conclusion to the Critique of Practical Reason: ‘Two things fill the mind with ever new and increasing wonder and awe, the oftener and the more steadily I reflect upon them: the starry heavens above me and the moral law within me […] The starry heavens begin at the place I occupy in the external world of sense, and they broaden the connection in which I stand into an unbounded magnitude of worlds beyond worlds and systems of systems and into the limitless time of their periodic motion, their beginning and duration. The latter begins at my invisible self, my personality, and exhibits me in a world which has true infinity but which only the understanding can trace.” Reprinted in Beck, Lewis White, ed., Kant: Selections (New York: Macmillan, 1988) at 325–26.Google Scholar

83. Detmold, Michael, “Law and Difference: Reflections on Mabo's Case” (1993) 15 Sydney Law Review 159.Google Scholar

84. Morgan, supra note 29 at 120.

85. Butler, Judith, “Against Proper Objects” (1994) 6 Differences 1.Google Scholar