Judicial fictions and the fictive feminists: re-imagination as feminist critique in PGA v The Queen

Hale's dictum about conjugal rights suggests that imagination plays an important role in the propagation of legal fictions as the basis for enduring legal judgments. Imagination is no less important for understanding how feminist legal theorists might redress the stark reality of women's exclusion from the bastions of legal power, no less than for considering how women might transform the law and legal processes. The emergence of feminist judgment writing as feminist method and critique is yet another act of imagination supporting this transformation. This article examines the imagined parameters of the spousal immunity for rape at common law imagined in PGA v The Queen (2012) 245 CLR 355, and those imagined in the feminist judgment crafted in response to it. The article explores the ways in which legal fictions are deployed in these judgments to construct both real and imagined understandings of the intersections of law and marital rape. By holding a mirror to the real and the imagined in this specific case, the article critically interrogates imagination and judgment as feminist method with a view to assessing their methodological importance for considering questions of fundamental concern to feminist legal theory