Legal Feminisms

Theory and Practice

Clare McGlynn

• Publisher: Routledge
• Year: 2018
• ISBN:
  9780429819254
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

First published in 1998, this book explores the links between theories of feminism and the practice of law, and does so through an examination of a number of contemporary themes in feminist legal studies. From an interdisciplinary perspective, this book examines, as one of its overarching themes, the existence of a distinctively female legal voice, or voices. In arguing for a recognition of the diversity of women's experiences of the law and in the law, it is also maintained that the role of feminism as a political strategy must not be lost. Feminist legal studies is one of the most exciting and dynamic areas of contemporary legal studies and the ambition of this book is both to capture and channel this dynamic. In introducing themes from politics, philosophy, literature, sociology and cultural studies, this book will be of interest to a wide ranging audience.

PART I
PERSPECTIVES ON SEX, GENDER AND THE LEGAL PROFESSION

1. The Gendering of the Professional Subject: Commitment, Choice and Social Closure in the Legal Profession

HILARY SOMMERLAD

Introduction

Recent studies of women in the legal professions of several countries have argued that whilst the proportion of women employed as lawyers has increased, their position in the profession remains marginal (Sommerlad, 1994a; Skordaki, 1996; Hagan and Kay, 1995; Thornton, 1996). This chapter examines this phenomenon in the context of the parallel changes taking place in the profession, and identifies the means whereby the marginalisation of women lawyers is effected. I will argue that social closure against women in the profession is being reinforced through the notion of ‘commitment’ as a core criterion for participation in the primary legal labour market.

The conception of commitment, whilst distinct from the altruistic dimension traditionally attributed to professionalism, is necessarily polyvalent, though its ultimate definition is in terms of a ‘lack’; something which women cannot demonstrate. It is naturalised, through what Podmore and Spencer described as the dominant ‘cultural mandate’ (1982, p.28) of the profession, and through the crystallisation of this ‘common sense’ view in academic labour market sociology (Hakim, 1995). Consequently, the professional subject is gendered in such a way as to render women’s marginal position the apparent consequence of their own ‘choice’.

In developing a theoretical framework to support this analysis, I have drawn on feminist writers on social closure, on Pateman’s work on the ‘sexual contract’ and on Bourdieu’s concept of ‘cultural capital’. The supporting empirical material results from research carried out with women solicitors in West and North Yorkshire between 1990 and 1994 (Sommerlad and Allaker, 1991; Sommerlad, 1994b). The study was concerned predominantly with women returners to the profession, and the means by which their re-entry into practice could be facilitated through training, but also considered the extent to which women solicitors experienced disadvantage in their careers. The principal research method was a questionnaire survey. In 1990, the sample comprised all senior or managing partners and all practising female solicitors in the sample area; the latter group being divided into two categories: those who had never taken a career break and returners. A third category of female respondents comprised those women out of practice who could be traced. In 1994, 50 per cent of the original sample received a questionnaire. Both surveys produced an average response rate across all groups of between 55 per cent and 69 per cent. The quantitative data was supplemented by in-depth interviews with a purposively selected group drawn from the questionnaire samples in both 1991 and 1994.

Professional Restructuring and ‘Commitment’ in the Discourse of Legal Employment

It is of course not new to argue that women are, through their life pattern choices, the authors of their own destiny. However, this approach has recently been revived through the curious coincidence of the publication of Catherine Hakim’s assault on ‘feminist myths’ concerning women’s employment (1995), and the election of Martin Mears to the Presidency of the Law Society with a programme which combined anxiety over the oversupply of qualified solicitors with explicit hostility to ‘equal opportunities’ in general and ‘feminists’ in particular.

The strategy by which women began to enter the professions in large numbers can be described, using Witz’s terminology, as a credentialist usurpationary strategy (1992, pp.64–65), and coincided with the development of the solicitors’ profession as an exclusively graduate profession (Skordaki, 1996; Burrage, 1996). The importance of credentialism as an instrument for formal equality is crucial. The classical ‘knowledge mandate’ of the legal profession was in large part a function of processes of socialisation; the imbibing of the mystical integrity of professional knowledge through the process of apprenticeship. There was no necessary link between professional expertise and ‘hard work’ in the classical model, except during the period of apprenticeship, and it does not merit comment in academic texts on professionalisation. However, the concurrent transformations wrought by the increase in women entrants to the profession; together with the expansion of demand for professional services, the development of the corporate model of lawyering and the increasing involvement of the State in the provision of legal services, have all combined to undermine the stability of the profession and its image of itself (Sommerlad, 1995). In this new world, credentials no longer stand as a proxy for conformity to the dominant male norm and the ‘knowledge mandate’ no longer acts as a satisfactory form of social closure, especially since women out-perform men academically (Lewis, 1997).

The emphasis on ‘commitment’ in career development in the legal profession represents a response to this situation. In its vagueness and flexibility, the concept of commitment recreates the almost mystical character of the classical ‘knowledge mandate’: it enables key actors in the labour market to discount women’s formal credentials and expertise against this key ‘deficit’, without ever being explicit about how it can be demonstrated. Crucially, it enables the ideal type of the professional to be reconstructed normatively as male. In the remainder of this section, I will consider the discourse of commitment in the responses of employers in the research sample referred to above (Sommerlad, 1994b), and through a critique of the academic rationalisation of the concept in the work of Hakim (1995).

A longstanding response by employers to the charge that there exist glass ceilings to female career progression is that occupational segmentation of any kind is not a consequence of structural discrimination but rather a rational preference on the part of the discriminated. This explanation is sometimes related to the tendency to ‘choose’ (what have become) less prestigious specialisms, but is most frequently utilised in connection with career breaks for child-rearing. One employer therefore ascribed the continuing large-scale exit of female solicitors from private practice to ‘nature - women bear children and men do not’. In 1995 the Law Society President reacted to survey evidence of slow female career progression with a denial that this was in any way indicative of discrimination, remarking instead that ‘it is a fact that many women solicitors do … put their families before their careers’ (Ward, 1995). Hence, as Menkel-Meadow has argued, ‘women are perceived as ‘opting-out’ without any examination of whether the work structure has within it impediments or obstacles that preordain the outcome’ (1989, p.217).

Both in 1990 and 1994, employers tended to place all responsibility for their career patterns onto female solicitors. For example, in 1990 one employer stated that women had ‘difficulty in long term planning caused by lack of ability to give total commitment to the career’. Commitment was named, by virtually all employers in both surveys, as the principal criterion both for selection for employment and for partnership. Furthermore, the central importance of commitment to professional inclusion and progression was confirmed by all three categories of female lawyers, in whose responses the term repeatedly surfaced. For instance, a returner argued that ‘there should be understanding that just because you have children does not mean that you lack commitment’. Women who had never taken a career break noted that ‘a request for a career break is seen to be a lack of commitment’, and another observed that career breaks are viewed as ‘a sign of a lack of commitment (the death knell)’.

The continuous need to demonstrate commitment also clearly affected employee behaviour. Many women referred to the need to obtain promotion or partnership before having children, because even if only a short maternity leave was taken, the perception of increased domestic commitment would inevitably harm career prospects. Part-time returners reported working regular and extensive overtime, partly because of pressure to prove their commitment. Thus, one commented: ‘I am taken by those with whom I do not work closely to be giving less than a full commitment to the firm’. Another explained: ‘it is very easy to feel that you have to do a full-time job in part-time hours … difficult not to feel guilty about being part-time and feel as though you have to prove your seriousness about the job by over-committing yourself’.

Although professional fragmentation has resulted in an extremely varied demand side of the legal labour market (Flood, 1996), giving women a variable range of career possibilities and barriers, my research findings indicated similarities throughout the different variants of legal firm (for an international comparison, Thornton, 1996). However, it became clear that the larger commercial firms may be viewed as paradigmatic of the new approach to women solicitors. Hantrais and Walters (1994) have noted a connection between the rapid growth of such firms and the increased numbers of female solicitors. In my survey, such firms tended to be both the biggest employers of women and those most likely to shed women once they had family commitments.¹ In the words of one female respondent: ‘all big firms have the reputation of being real hard nosed bastards - if you’re a woman with children you don’t have a hope in hell with them’.

Hakim’s work on employment, referred to above, gives academic respectability to the employer perspective on commitment and choice. Her approach is firmly located in the ‘rational choice’ model. Indeed, rather than viewing occupational segregation as an aspect of structural discrimination, she argues that it ‘has been reconstructed in the late twentieth century to provide separate occupations and jobs for women following the marriage career, which allows only non-committed contingent work and non-career jobs which are always subordinate to non-market activities’ (1995, p.450). The concept of commitment is fundamental to Hakim’s argument: ‘criticisms of labour market discrimination as unfair and unjustified often rest on claims that … women workers are just as commited, dedicated, hard-working and productive as men’. Hakim proceeds to argue that in reality there exist significant gender differences in the concept of commitment, which emerge particularly clearly with part-time workers: ‘the commitment of a part-time worker to a part-time job is not equal to the commitment of a full-time worker to a full-time job. At the minimum, the two levels of commitment differ in degree, and arguably they differ qualitatively as well’ (1995, p.434).

Despite the centrality of commitment to Hakim’s work, there is no formal definition of the term. As I indicated in the introduction to this chapter, the very indeterminacy of ‘commitment’ is one of its most important features. In practice, Hakim, like the employers surveyed, sees commitment as coterminous with extensive working hours. However, the number of hours is not an objective measure across occupations or even employment sites: it clearly varies according to the cultural norms of the profession and of the particular firm.

A Critique of ‘Commitment’

In this section I will consider this ideological construct of ‘commitment’: first in terms of its own logical inconsistencies; secondly by reviewing the alternative models of professional commitment, before finally theorising the use of commitment as a gendered device for social closure.

First, Hakim’s measure of work commitment is unidimensional and based on a single question concerning desire to work in the absence of financial necessity (1995, p.435). Arguing from data which actually proves little gender difference between full-time workers, she claims that the demonstrated gender difference between the total populations of men and women are significant in looking at gendered attitudes to work. It could be argued that the findings are at least equally significant in measuring men’s commitment to home, but clearly the gendered construction of the relationship between private and public spheres is accepted as a given.

Secondly, Hakim relies heavily of the views of employers about the ‘instability’ of women part-time workers, views echoed in my own research, and fails to examine the way in which the attitudes of employers are crucial determinants in the career decisions of employees. My own research provides clear evidence that employers’ views result in a deterioration of working conditions and career prospects, which in turn contributes to women’s so-called ‘employment instability’.

Thirdly, the use of a single measure fails to encompass the quality of commitment offered by employees, which may also be gendered. A more exhaustive analysis of commitment than that offered by Hakim relates it to the ‘unique constellation of (professional) traits’ (Kaldenberg et al., 1995, p.1359). Kaldenberg’s study of dentists has approached the concept in terms of behavioural and affective commitment. Behavioural commitment is interpreted as the investment of a ‘limited resource (money, time) … in pursuit of an end’ and is found to vary according to gender, largely because such an investment may be ‘credited to several different ends’ (1995, p....

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Contributors
• Introduction
• Part I: Perspectives on Sex, Gender and the Legal Profession
• Part II: Interdisciplinary and Theoretical Perspectives
• Part III: International, European and Comparative Perspectives
• Index