The contemporary thirst for law as a route to equality does not address deeper more structural questions of inequality. As Smart tells us, “feminist scholarship has become trapped into debates about the ‘usefulness’ of law. These are necessary debates but have the overwhelming disadvantage of ceding to law the very power that law may then deploy against women’s claims.” Although Smart does not fully develop the idea that the focus on law-as-solution leads to a kind of “methodological blindness,” she contends the issue is one of “challenging a form of power without accepting its own terms of reference.” Academics have subsequently called upon her work in order to advocate a move from legal-focused routes to justice to “something else.” In this regard, Halley advises us to “take a break” from feminism, in a rejection of the paradigms that have dominated social justice politics in recent years.

This article explores this prospect, in examining the place of law in addressing core issues within the feminist discourse. With reference to issues of sexual violence and marriage equality, I argue law, as a mechanic of justice, does not address wider issues of inequality. In doing so, I deviate from the suggestion that we must engage in a “participatory resistance” with law. Instead, I argue we must explicitly remove ourselves from the reliance on law in order to challenge it.

Sharon Cowan, “Sex/Gender Equality: Taking a Break from the Legal to Transform the Social,” in David Cowan and Daniel Wincott (ed), Exploring the ‘Legal’ in Socio-Legal Studies, (Palgrave Macmillan2016).

Janet Halley, Split Decisions (Princeton University Press2006).

Carol Smart, Feminism and the Power of Law (Routledge1989).

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In order to come to a logical conclusion, I break this article into three sections. Part 1 considers ‘what’ we are taking a break from. Part 2 explores ‘why’ we must take a break. Part 3 details ‘how’ we ought to take this break.