The Scarlet Letter | Season 1 | Episode 3 | Patrick Emerton

Ever wondered what happens when a constitutional law expert, a feminist legal studies group, and a couple of very sharp podcast hosts walk into a recording studio? Today’s hosts Dr Azadeh Dastyari and Dr Ronli Sifiris sit down with Dr Patrick Emerton – who at the time of this podcast recording, was an Associate Professor in the Monash Law Faculty and a member of the Faculty's Feminist Legal Studies Group. He shares his thoughts on feminism, liberation, and why men can’t just sit on the side-lines sipping coffee when it comes to making feminist change. Dr Emerton discusses his perspective on feminism as a liberation movement, comparing it to other social justice movements like racial and industrial liberation. A light is shined on the unique challenges of feminism, particularly the ongoing coexistence of men and women in society, and the role men must play in fostering non-oppressive structures.

First published 2017.

The Scarlet Letter podcast is produced by the Feminist Legal Studies Group. This podcast features interviews with feminists connected to the law, discussing their life, work, and feminist perspectives. It's perfect for anyone passionate about feminist legal scholarship.

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Transcript | The Scarlet Letter | Season 1 |Episode 3 | Patrick Emerton

Ronli Sifris: [00:00:00] Good morning. We are Azadeh Dastyari and Ronli Sifris. And welcome to the third episode of The Scarlet Letter, the podcast of the Feminist Legal Studies Group at Monash University's Faculty of Law.

Azadeh Dastyari: Today, we'll be interviewing Dr. Patrick Emerton, an Associate Professor in the Monash Law Faculty and a member of the Feminist Legal Studies Group.

Ronli Sifris: Patrick is an expert in constitutional law, anti terrorism law, human rights, international law, as well as legal and moral philosophy. And he's also a committed feminist. Welcome, Patrick.

Patrick Emerton: Hello.

Azadeh Dastyari: Perhaps we can begin by asking you, what does feminism mean to you?

Patrick Emerton: I think feminism's the, I guess, the theory and the practice of women's liberation.

I see it as a liberation movement. [00:01:00]

Azadeh Dastyari: Okay.

Patrick Emerton: So It's quite interesting. I think it's, in its, often in the theoretical framing, it draws heavily on other liberation movements, say racial liberation, and and also certain industrial liberation movements. But I think it has actually interesting differences from other liberation movements as well.

So if we think of classic industrial liberation movements, socialism for example, the idea is to universalize the situation of a liberated working class. Often, racial liberation movements are often grounded in sort of a type of self determination or national identity. Whereas I think at least most feminist theory doesn't intend to universalize the situation of women, at least in the sense that there will still be women and men, and then intersex and so on as well.

But I guess women and men is the predominant animating characters for feminist work. And they will be living among one another, not separately. So the radical lesbianism, for example, is an interesting, different view, which I think is much closer in [00:02:00] structure to classic national liberation. Because I think it's an interesting liberation project that draws on those other histories, but has different and interesting dimensions, which also create different challenges, I think.

Azadeh Dastyari: And when you talk about feminism as a liberation movement then what are you thinking about in terms of liberation from what? So,

Patrick Emerton: I guess so, liberation from coercive structures, from alienating structures from mean, kind of, I guess, like, literal forms of bondage So I think that feminism is a very important criticism of marriage, for example, as a, at least in various forms, as a type of bondage.

I think it focuses on certain aspects of domestic life as a form of bondage. So I think, so some of it draws heavily on domestic life. Classic conceptions of liberation, but also, I think, ideas around alienation and and related around life choices, I think, are also quite important. So, which I think curves perhaps to more strands into identity [00:03:00] politics or sort of the politics of self realization.

So I think there's a, I think the notion of liberation in the context of these sorts of social movements, I think, has to be understood on a expansive rather than a narrow fashion. I mean, even the, excuse me, once the, the, The most paradigmatic of liberation movements, the movement for emancipation of slaves in the United States, wasn't focused just on freeing people from slavery, but also from establishing the necessary conditions for the full realization of, sort of economic and political and cultural citizenship within the United States.

Mm

Azadeh Dastyari: hmm.

And so, when did you begin to identify as a feminist? Is that something you've always felt, or was there a moment in time? Well, so it's in, so I'd say I'm probably as a teenager in high school. I mean, sort of when one's forming one's political views. It's, it's, I mean, So in the same way that there are challenges, say in the way that white people, of whom I'm one, engage with Black Lives Matter, for example.

Patrick Emerton: So likewise, I [00:04:00] think there are challenges in the way that men engage with Identifying as or being feminist because it's the nature of a liberation movement that generally that liberation comes from the self. I think that's a significant difference between say, liberation movement and a sort of a humanitarian movement.

So if you think about the the suffragists, Bertrand Russell, great I'm a great admirer of Bertrand Russell, stood as a suffragist candidate in one of the pre First World War British elections. That's a kind of a humanitarian movement. Suffragettes are a liberation movement. And so I think there are, because liberation in, in a sense, I'm thinking of it, right, people achieve their own liberation by sort of throwing off their own shackles.

I think that's the importance of consciousness raising, for example, which is, say, a big part of racial liberation movements of the 1950s and 60s and a big part of the women's liberation movement of the 1960s and 70s. Understanding one's own situation as a precursor to then identifying bonds and then Taking steps to overcome them.

And so I, so I think there, I think there are, therefore, for that reason, complexities for [00:05:00] men. But it's, as I say, it's different also from, I mean, from a national liberation movement, because At least, some way of understanding that, the oppressors just get the hell out. Or, again, you think of socialist liberal liberation movements, there won't be any capitalists left on the other side of the revolution.

Whereas, the interesting thing about feminism is there will still be men, and there will still be men in very close and intimate relationships, and not, not, not, obviously including sexual, but not, not only sexual intimacy, intimate relationships with women, and so, men perhaps inevitably have to somehow factor into the solution.

As well as being part of the problem in a way that's different from other forms of liberation movement, which are there. And I think, again, additionally colours the complexities in what it means for a man to say he's a feminist. But, but it's something I've been thinking about as a teenager in high school.

Ronli Sifris: So do you then see any point for men within this kind of liberation movement?

Patrick Emerton: Well Well, again, because men are still going to be around, and so, [00:06:00] right, so it's not just a case that they're all going to go up against the wall and get shot. And so, so somehow finding modes of collective life which involve men and women in sort of non oppressive structures is probably going to require men to, to, certainly to accept some things, but probably also to do some things.

I would think.

Ronli Sifris: Did you think men could benefit from the liberation of women?

Patrick Emerton: So yes. But, but again, it's complicated. So. As you've already seen, a lot of my framing of this is in terms of comparison because at least particularly both the literature I'm familiar with and also I think greater longevity of certain movements means that some ideas have been more fully worked out in other spheres and are still being developed by me, but maybe also in the broader activities.

But George Orwell wrote an essay during the Second World War when he said that one thing that British workers have to confront is that when India is free, [00:07:00] which he saw that it was. would be, their living conditions will drop, because part of the living conditions of English workers depended upon all the gold of India flowing from India to England.

And probably more if that went to the Queen than to the workers, but some went to the workers. So, so I think, right, so does it benefit the workers of, does it benefit the workers of England that India is free? Well, in some senses yes, but in some senses no, they'll be poorer. And so does it benefit men that women will be free?

Well, insofar as men have benefited from the such as, say, unremunerated or coerced labour of women, well, no, actually, men will be worse off. Right? But in some other ways, like, insofar as, is it better to live among kind of free people, kind of self determining both collectively and through individual autonomy?

Well, probably that's a fuller type of human life, and in that sense, the answer's probably yes. I think it's complex, because there's those different things in play. I mean, to some extent, everyone's freedom is a game for every human being, but it becomes harder if you have to change the [00:08:00] nappies as well.

Ronli Sifris: Yes.

Patrick Emerton: So, yeah, that's I think it's overly romantic to think that liberation never costs those who are benefiting from the oppression. So, again, this is why, say I think some Perhaps even many black activists sometimes get frustrated by the way people who aren't of color engage with ideas about racial liberation because they get frustrated that they won't confront and recognize the benefits they obtain from systems of oppression.

And then you can see in practical terms this blows out when say the theory of affirmative action is very hard to articulate. Because that's actually about trade offs and redistributing benefits. And I think exactly the same things apply in relation to feminism. And I think it would be unrealistic to suppose that you can liberate women and men just sit there and say, yep, it's all great.

And otherwise, things are going to change for men when they no longer have a subordinate class at their behest.

Ronli Sifris: Yeah. That's really fascinating. How do you think these ideas [00:09:00] have influenced your work or have they kind of bled into your research?

Patrick Emerton: So, so I'd say, so particular ideas around women's liberation haven't informed my published, published work to date.

I'm currently in preliminary stage, well, I'm currently in preliminary stages of developing. certain ideas about the Constitution, which do connect directly to this, which maybe I'll talk about in a moment. But, but ideas around the theory of liberation and of compromise which I think I take to be different from kind of a, sort of a, Utopian conceptions that everyone can be free with no one noticing costs to them.

That's been very important and so that was very significant in my doctoral work and then in, so, a lot of my work to date's been on just war theory and other aspects of international justice, human rights theory and and I guess that work could be framed broadly as anti [00:10:00] liberal. Not in the sense that, say The National Front in France is anti liberal, thinking kind of like salient anti liberals, but in a sense that they're trying to recognize that the questions about realizing freedom are about social institutional structures and expectations they create and generate, and so not just about certainly not just about assertions or ideas about freedom and not just about certain narrow questions about, say, the laws under which a state operates.

And and then particularly, liberals have to recognize ideas around trade offs. Some of that might even be seen to, I think, by some feminists to be, to be dubious. Because, for example, some of my work on human rights law, my own and done in collaboration with my colleague Toby Handfield and it defends the legitimacy of national defense by non liberal states.

And so, and non liberal states, if we look [00:11:00] around the world, is going to tend to include states which might, say, have stronger traditions of gender, distinct, different gender roles than than do, sort of, more sort of liberal democratic states. But part of our My thinking there is that imposing, kind of imposing liberalism from the outside has tremendous costs that it destroys the forms of life in which people are, however imperfectly, trying to survive and flourish.

And it's very, very hard to construct liberal institutions, so ex nihilo, from nothing. And so that if you want If liberals hope that transformation is happening in other places, well, that's in a sense up to those places to, to transform themselves. And I think this also goes back to how liberation comes from within a person and a people, not, it's not a gift that's bestowed, it's an entitlement that's taken.

[00:12:00] So but in in Australian constitutional law. There's an interesting doctrine of political freedom that I'm very interested in, and I think it's actually the heart of our constitutional system. And And there was a famous case called the Coleman case, where there was a Queensland law that made it Well, it's a public order offence, so it made it a criminal offence to say offensive things in public.

And it didn't distinguish between political and non political things. And so a person who was charged with offensive language who had said a offensive political comments about and towards a police officer was was charged under this and he argued that the offense was unconstitutional because it burdened his political freedom.

And he didn't quite win because the court said, well, actually we're going to read down the offense so that it only criminalizes Offence of speech is likely to provoke violence, and criminalizing the provocation of violence is consistent with political freedom, because [00:13:00] people can't live their political lives in circumstances of violence.

So that's okay. Then about or so years later there's a, another case comes up involving Monis, who was shot dead in the Sydney. In the events in Sydney, in the Lindt Cafe there. And he had been sending political material, which was taken to be offensive through the post. And it was a criminal offence, making it a crime, to send offensive material through the post.

And he said, well, just like Coleman, this is an unconstitutional burden on me. And the High Court split, and it's the first time We've had a gender split in the court on a constitutional matter. Now, partially, that's because it's the first time we've had enough women on the court to let a gender split emerge.

But, but, but also, I think the nature of the issue is very interesting. Because the men on the court took the view that because [00:14:00] receiving Even very offensive male isn't going to provoke violence because the person who sent it to you isn't there, so you can't take out your distribution. There's no reading down available of the sort that they did in the earlier case, and so they said this is just unconstitutional and they struck it down.

But but the women on the court took the view that, to use language they didn't use, that it's not all politics all the time. And so that there's a certain value in having, sort of, that in one's home, opening one's mail, one's not going to be confronted by certain sorts of material, even if it's carrying political messages that kind of might be important to the government of the republic.

And I think So, and again, I don't think it's a coincidence that that split was on gender lines. You've got different conceptions of the function of the home, the nature of domesticity, the significance [00:15:00] of external political intrusion into that. I don't think it either can be said as a simple public private split.

To some extent, it's the men who are saying everything is public, that everything is the Republic. It's all public. Everything is the agora. It's all politics all the time, whereas it was the women who were affirming that actually there's a, a non political space where, which it's not unconstitutional that that be protected from certain sorts of offensive political intrusion.

So it's not a simple public private case. No. But,

Ronli Sifris: How do you account for that then?

Patrick Emerton: But I think, but I think it's not surprising that people, that women in at least Justice Virginia Bell's a self identified feminist and I think, I'm not even sure about the other two judges who in their legal backgrounds might be a little bit more conventional, but I don't think anyone, any, no woman of their age and era gets to be on the High Court without having thought pretty deeply about the challenges of being [00:16:00] a woman.

in a situation, in a profession, in a broader political situation where, on the whole, men tend to dominate the positions of power. So, whether or not they self identify as feminist, there's no doubt they've thought pretty hard about a lot of these issues, right? So but I think it's not entirely a surprise that they have a different conception of the importance or the significance of, sort of, What I'll call, hoping it's not sort of pejorative or condescending, domesticity.

Because if you think of the classic, one of the classic critiques of, sort of the gendered division of labour, that men can afford to be all public all the time because there's someone else making sure the domestic services are provided. Right? So, but the people who are actually providing the domestic services, right?

They don't have anyone to provide them with comfort and support if it becomes all politics all the time, like if they're a public So I think there are ways of framing what's going on, which kind of [00:17:00] fit within some of the received patterns of feminist analysis. But I think it's not an utterly trivial or straightforward analysis.

I think it could be quite subtle. And I think it a colleague of mine Johnny Nadarajalingam, and I are currently working on a paper A paper that deals with this question of kind of what's the nature of the Republic, what I'm calling the Republic, the, the polity under the Australian constitution looking at other types of public order offences.

And so there are cases where protesters have been in public parks, there was a case in Australia, then there was a similar case in Canada. And again, they were sort of moved on. Under laws which stop people camping in public parks. And again, they're sort of arguing this is a burden on their political freedoms.

And they're, of course, they're political activists. And the courts have accepted that public parks serve a valuable function other than providing a platform for advocates. And so it's kind of consistent with the integrity of the Republic that there be non political spaces in public parks. Again, I think that raises some similar [00:18:00] questions.

Is it all politics all the time? Or are there places which are places of kind of where, you know, of domesticity or places of, kind of like recreation in the case of parks. And this is a, this is a challenging question. I mean, there's a tendency in liberation movements to frame everything as all politics all the time because even aspects of life that are often seen as private are experienced as politicized by those who are subordinated.

So there are tensions in defending non political spaces from the point of view of a liberation movement. But it's not definite. Tension isn't synonymous with incoherence. Some of this work is still, for me, in its preliminary stages, but I, I don't think this particular issue in the Chinese constitution has yet really been explored or worked on.

Ronli Sifris: A while ago we were having a chat about some other high court cases and you had a really interesting feminist perspective on rape in marriage cases. [00:19:00] And yeah, I was wondering if you could tell us your point of view there.

Patrick Emerton: Oh, so it's an interesting, it's an interesting case. So this was. So, it used to be the case in the law of England, and therefore in the law of Australia, that a woman, when she got married to a man, consented to have sex with him whenever he wanted.

And so, it was therefore not possible that a man could rape his wife. And, there was a series of statutory enactments. Some beginning in the 1970s, but really sort of in particularly the 1980s that abolished this law. But the question that came before the high court was a man who had, whether in the legal sense, he had raped, that was up for grads, but in the everyday sense.

He had raped his wife in South Australia in the 1960s.

Azadeh Dastyari: Yeah. Oh, I remember this.

Patrick Emerton: And the questions was whether the, [00:20:00] whether. As the law stood in South Australia in the 1960s without the statutory changes, whether being married meant that he, that his wife had consented to have sex with him whenever he wanted.

And, and it was a very interesting judgment. So you had a strong majority judgment a dissent from Justice Hayden that I won't talk about her then, but a very interesting descent from Justice Bell, so Justice Virginia Bell though I mentioned before that she's probably the most overtly feminist of the High Court judges, because the majority ran a line which I think could easily be seen as very in favor of the liberation of women.

So their argument was that Both the way marriage law had developed in late 19th century through 20th century Australia and the way it conferred certain rights on women and also the way that the [00:21:00] constitution that deliberately didn't exclude women from the polity and opened the door to their inclusion through an equal franchise that was enacted very early in federation.

That all these things meant that the criminal law of Australia couldn't depart from these other changes. And so the criminal law couldn't include an assumption that women, per se, by getting married had agreed. to have sex with their husbands whenever he wanted to and so the fact that everyone in South Australia in 1960 thought that marriage was a defense to rape just meant they were all wrong if you like they were bringing sexist preconceptions It was clouding their understanding of what the law really was.

Yeah, but Justice Bell took a different view She said there was this law It was a bad law and many of us fought bloody hard to abolish it and don't now go and tell us all we're wasting our time as I don't negate the significance of our political agency. Of the struggle as well. Yeah. And, I mean, which is, which should be seen as the true feminist position.

I mean, it's a very challenging question. I mean, all political [00:22:00] movements have disagreements and Is it the ideas that the majority articulate, or the significance of the struggle that Justice Bell articulates? But I thought it was a very interesting, a very interesting case. And I think again, I think not as widely studied probably as it could be, I think sometimes.

Australian jurisprudence can sometimes be very blinkered and miss, because the decisions aren't framed in rights terms, can miss that we have a very interesting jurisprudence from the point of view of the majority. the politics of liberation as well, just as much as, for example, America, where because it's framed overtly in rights terms, people often notice that much more easily.

So, one of my goals as a constitutional scholar in Australia is to try to change that part of our, of our culture to, to get people to understand more of the political significance, including the kind of the liberation significance of the way our jurisprudence and our constitution works.

Azadeh Dastyari: Yeah. And do you think the way to do that is to be framing things in [00:23:00] terms of rights, or to be

Patrick Emerton: No, no, I think to, to, to be framing, I think to be looking at what our legal system has, which is a system of institutions.

Political institutions, judicial institutions, the institution of the franchise. The institution of the people. So I think that in terms of institutions and what they mean. So Justice Keene gave a very interesting address to the faculty here last year called The People and the Constitution. Where he said that what he thought to be the error in American 14th Amendment jurisprudence, particularly as far as racial equality is concerned, is to focus on equality.

And then, for example, Decisions about affirmative action get mired in debates about who's being treated equally and what. He said that he thought a much sounder way was to focus on a different liberation value, solidarity.

Yeah, right.

Patrick Emerton: And he thought that our constitution's framing of the people suggests that kind of a type of solidarity is at the [00:24:00] foreground in our constitutional jurisprudence.

And he thought that that has resources to deal with some of these issues that a purely equality framing doesn't have. And again, I think, These ideas around the people, perhaps the indivisibility of the people so including, so in that sense, the indivisibility of men and women, which would then mean that sort of laws that Do divide the people in that way, of which an extreme version will be, say, disenfranchisement laws will be unconstitutional.

I also think another thing I'm interested in is that in Australia, broader political debate often doesn't take place with reference to constitutional values, or it takes place with reference to the constitutional values of other countries. Yeah.

But but I think our constitution, for better or worse, has given us certain values, and so I think, in America, No one would limit claims about constitutionality or constitutional value to the technical legal realm.

They see the constitution sort of inspires. Right, so they feel like members of the Congress have [00:25:00] constitutional obligations and, and legislation can serve constitutional ends without that being a juridical question of validity. I think Australian political discourse can sometimes be impoverished in that way, but I think but I think Justice King's speech, although a lot of people think of him as a rather conservative judge, I think, was actually, I think, very interesting for, to see a high court judge articulating some of these ideas of constitutional value.

And a few years ago when I was doing some anti racism training with various community groups, I was pointing to the same provisions Justice Keene was to say that here's where in our Constitution we find, again, the values that in which we can articulate the political wrong of, say, racial profiling by police, or other racist presentations.

And it will go the same to issues around subordination of women. Claims about economic equality and so on. These are dividing the people in a way that our constitution doesn't contemplate. It contemplates a solidarity of a commonality among the people. [00:26:00] In the republic, as I've been calling it earlier in this conversation.

Azadeh Dastyari: Thank you so much, Patrick, for that interesting and thought provoking conversation. That was really fascinating. We're very grateful for you to have given us your time today.

Patrick Emerton: It's always a pleasure to talk about one's work and it's a pleasure particularly to be pressed as you have to think about framing in a feminist context.

It's nice to be pushed in that way and to articulate some new ideas. Thank you.

Ronli Sifris: Well, you're doing really interesting work. We look forward to reading more of it. And thank you all for listening to The Scarlet [00:27:00] Letter.