Elle May delivers a rant on male legal reasoning.
Of teaching, liberal nations, for the poor
Who sit in darkness when it is not night?
No cure for wicked children? Christ, – no cure!
No help for women sobbing out of sight
Because men made the laws?
— Elizabeth Barrett Browning, From “Casa Guidi Windows” Part 2 (634-639) 1851.
After three years of studying law, I have some hostility towards the British male judges of past and present which I need to get off my chest.
UK law is governed by a theory of dualisms that is simply not applicable to authentic modern identities. To everyone’s detriment, the horse-hair wigged white men of the historical bench have constructed a dualistic apparatus which remains a part of the British legal system today. Rules are created by identifying competing interests and selecting between them, for example: mind/body, reason/emotion, culture/nature, private/public. Of the two opposing units in the dualism, the common law, by virtue of its authors, has historically prioritised what is considered to be the ‘“male”, self-interested, “rational” option over the seemingly “feminine” alternative.
This dualist approach, while not compulsory, is the most common theoretical model used by judges. Why? Because they’re mostly still white and male and white males seem to follow the decision-making of their forefathers. Big mistake. HUGE.
By definition, the dualist approach is entirely opposed to intersectionality since it stakes claims against each other, providing no basis for a multi-discrimination claim. As Crenshaw explains, ‘sometimes, [Black women] experience discrimination as Black women – not the sum of race and sex discrimination, but as Black women’. Evidently, being a Black Woman cannot be defined merely by the addition of ‘woman’ and ‘black’, but is an entirely different experience of its own. This identity should never be forced to split into two separate identities merely because the white judicial heteropatriarchy cannot understand combined identity claims.
This is what is most frustrating about studying law: the white male perspective is still considered the default. MacKinnon’s thesis explains how through legal mediation the dominant group – men – manipulate law to mirror their subjective standards, concealed as the objective standard by calling this “neutrality”. Male dominance therefore begins to appear ontological – natural – which both upholds and is reinforced by the mystical quality attributed to law and neutrality itself.
Neutrality is male domination in disguise – hence MacKinnon’s oxymoronic assertion that ‘‘when it is most ruthlessly neutral, it is most male’. The construction of the “reasonable man” standard is an example of this manipulation. When a woman commits a violent crime, the court asks, what would the reasonable man have done in her situation? This biased notion of what it means to be reasonable therefore posits women, both legally and socially in the context of their crime, as “other”.
Thinking back to my first year, Lord Denning was heralded by numerous lecturers as the father of modern Contract and Tort law. Nobody mentioned his resignation as Master of the Rolls in 1982 following repugnant racist statements, or the passage from his book The Due Process of Law where he claimed that ‘the principle task in life of women is to bear and rear children’. He justified this by stating that ‘Man is physically the stronger and woman is the weaker. He is temperamentally the more aggressive and she the more submissive. It is he who takes the initiative and she who responds’. He wrote and published this in 1980.
The legal system is crying out for more creative and intersectional legal reasoning approaches. This is not to say that leaps and bounds have not been made by numerous brilliant women, BME and male judges. However, progress is slow. The most radical and dazzling ideas seem to remain on the shelf in the feminist approaches to Law sections of the library – which in Wills is, by the way, on the bottom shelf.
Imagine a more progressive legal system where a woman who has survived rape is no longer likely to be excluded as a juror in a rape trial but rather is recognised as having a more nuanced and informed understanding that is capable of challenging male preconceptions as a result of her experience. A system where multi-discrimination claims are the norm, where judges creatively reason away from dualisms and towards a broad, multi-dimensional spectrum of brilliance. Let’s remove the blindfold from Lady Justice. But rather than revealing only one pair of eyes, let’s promote, in the words of Dame Helena Kennedy, an ‘all-seeing goddess.’
Illustration by Rivka Cocker