Gender, Sexualities and Law

Jackie Jones, Anna Grear, Rachel Anne Fenton, Kim Stevenson

• Publisher: Routledge
• Year: 2011
• ISBN:
  9781136829222
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Bringing together an international range of academics, Gender, Sexualities and Law provides a comprehensive interrogation of the range of contemporary issues – both topical and controversial – raised by the gendered character of law, legal discourse and institutions. The gendering of law, persons and the legal profession, along with the gender bias of legal outcomes, has been a fractious, but fertile, focus of reflection. It has, moreover, been an important site of political struggle. This collection of essays offers an unrivalled examination of its various contemporary dimensions, focusing on: issues of theory and representation; violence, both national and international; reproduction and parenting; and partnership, sexuality, marriage and the family. Gender, Sexualities and Law will be invaluable for all those engaged in research and study of the law (and related fields) as a form of gendered power.

Part I

Theory, Law and Sex

Chapter 1

Women and the Cast of Legal Persons

Ngaire Naffine

Introduction: A Thought Experiment

Let me begin with a simple thought experiment.

1. Picture in your mind’s eye a person. Please give this individual a face, a body, a set of clothes and perhaps an activity. This person is just a standard person, no one in particular. But fill in as many details as you can in order to personify them – even a name perhaps.
2. Now picture in your mind’s eye a woman, giving her a face and a body, a set of clothes. She too is engaged in an activity. She too is no one in particular.
3. Now return to your first person and ask yourself ‘Did they have a sex, and if so, what was it?’

In most cases where this experiment is conducted, most people envisage a man: Mr Anybody.¹ The reason is that there is a deep powerful tradition of thinking of standard, paradigmatic persons as men and of seeing women as something else again. This deep automatic thinking about the sex of persons, I suggest, is to be found in law and remains troubling for the moral and legal personhood of women. Though there are two sexes, and though women are slightly more populous than men, it is a man who forms the automatic idea of a person. Sex and personhood tend to be incompatible legal concepts for women, while they tend to be compatible for men. There is an easy unthinking automatic conflation of men and persons, culturally and in law, which we just witnessed (culturally) in the simple thought experiment. This chapter seeks to explain and defend this proposition: that the personhood and the sex of women remain in tension in law.

Before this chapter comes to look too much like old-style feminism, the sort that alleges that men are the social and legal norm while women are always the exceptions, the odd ones, who must fit themselves to the male case, I need to complicate things by explaining the multifaceted nature of modern legal personhood. The matching or mismatching of women as a sex with legal persons is not as simple as my thought experiment might suggest. For there is serious disagreement in legal circles about what constitutes a legal person, and this disagreement must be factored into the experiment of matching women to persons. This disagreement about the nature of legal personhood is not always made explicit. Sometimes it resides in the background premises about the role that law should take in reflecting what is thought to be our human nature – whether law should reflect that nature or remain fully autonomous. Sometimes it resides in the background premises about what that nature is (supposing that there is such a thing at all). For the present exercise, it is therefore important to identify the varieties of legal persons and to appreciate that women are being matched to different legal beings, depending on context, purpose and the scheme of interpretation of the one doing the matching.

These various competing understandings of our purported human natures (which I will explain shortly), and the role that law should take in reflecting them, must be catered for in our basic exercise. We need to acknowledge that law’s concept of the person changes according to the guiding scheme of interpretation; that legal persons are therefore multiple rather than singular; that within different parts of law some views of the person hold greater sway than others. These different understandings of the term ‘person’, depending on their influence, implicitly determine whether women are fitting legal persons, as women. This complex approach to legal personhood (and to women’s capacity for personhood) is therefore at odds with the view, once held by some feminists (perhaps myself included), that law adopts a monolithic or singular or static view of the person which, in turn, either forces women out or obliges them to conform to it if they are to be regarded as persons too.

Law’s Persons

In Law’s Meaning of Life I expounded four influential ways of thinking about persons in law.² I called them legalism, rationalism, religionism and naturalism. Here I suggest that each of these ways of thinking about persons bears a particular relation to women: that there are in effect four related sets or conditions of possibility of women being persons in law as women. The relative degree of influence of each of these views of the person tends to depend on the particular legal purpose in view, on the nature of the specific legal relation in question and on the relevant area of law and who and what is involved.

My further suggestion, as a feminist, is that the patriarchal nature of the historical development of these different ways of thinking about persons in law tends to give all of them a masculine flavour which makes it difficult to conceive of legal persons as women. This does not mean that women can never be legal persons. On the contrary, for most of the time, for most legal relationships, women clearly are persons. They can now bear personifying rights and responsibilities in much the same manner as men can as legal persons. But it is far less clear that women, as women, are persons in law. As soon as there is something about the condition of women which seems to mark them out as women, as specifically not-male, then problems of personification are encountered.

We might say that the material with which we have to constitute a female legal person, rich and varied though it is, still tends to come in a masculine brand. If we consider a little more closely the repertoire of identities to be found in law, we can see this masculinism at work. Necessarily, in a work of this length, this articulation of the most influential views of the person, and their implications for women, can only be schematic and suggestive.

The Rationalist’s Person

Particularly influential among criminal and contract lawyers is what I call the rationalist view of the person as a rational actor, the person of rationalist philosophy and liberal and moral philosophy.³ In this understanding of law’s person, there is a good match between law’s person and the liberal philosopher’s person. The philosophical literature on the nature of persons is extensive, but for my current purpose I will employ the broadly accepted definition supplied by Brian Garrett, that ‘a person is a mental being … [who] possesses a mind’. As Garrett explains, not just any sort of mind will do: ‘Persons possess a range of particularly sophisticated mental states, including – most crucially – self-reflective mental states.’⁴ The pedigree of this characterisation of the person can be traced directly to John Locke, who provides the most-quoted definition of a person – as ‘a thinking, intelligent being, that has reason and reflection, and can consider itself the same thinking thing, in different times and places’.⁵

Rationalists believe that it is the capacity for reason that most defines and dignifies us and which law should reflect and preserve. Their paradigm legal person is the rational actor. Creatures incapable of reason, on this view, should not be a central concern of law because they are incapable of receiving law’s communications and responding to them directly. Only practical reasoners, persons who act for reasons, are the type of people to whom law directly communicates its norms – say, in the criminal trial, ideally understood, as a rational communicative enterprise.⁶

The rationalist view of the person developed with certain educated men in mind and with a quite explicit rejection of women as a sex. The inclusion of women as rational legal subjects of the public realm – who could hold public office, vote, attend university – a move which came with the final ‘persons’ cases, did not make for a rethinking of this tradition. The nature of reason, its value, why it counted, was not re-conceptualised. Significantly, whether women were thought to possess the natural conditions for rational self-government was not a subject of concern or a cause for rethinking the rationalist person. It was simply a matter of adding women.

The rationalist model of the person has not just been exclusive of women. It has been, and really remains, a model of humanity in which a developed capacity for reason is thought to be the most important thing about us (it is most humanising, most dignifying, most central to our persons) and therefore tends to be exclusive of many men. Paradoxically, it is a view of the person which has had the strongest purchase in criminal law theory.⁷ This is paradoxical, because the rationalist’s idea of the person poorly describes the majority of the defendant population who tend to be characterised by nearly every indicator of social, economic and cultural disadvantage. And typically they do not engage eloquently in rational dialogue with legal officials.⁸

The Religionist’s Person

Also highly influential in certain parts of law is a religionist understanding of the person as sacred being and the correlative idea of human sanctity and inviolability. This understanding of the person is influential in human-rights law generally and also in medical jurisprudence. The idea is that the mere presence of human life generates rights because all human life is divinely valued and valuable – we are all sacred. We all have the spark of the divine. (Divine) humanity (defined spiritually, not according to the capacity to reason) is the hallmark of law’s true subject. In this view, all human beings are fitting legal subjects, whether or not they are competent to make their own legal decisions, because all human life is sacred – of infinite value.

The idea of human sanctity as the basis for legal personhood is not always expressed in explicitly religious terms, but a religious tradition most clearly informs it and makes sense of it. Those jurists who are willing to employ explicitly religious language in defence of the sacred person in law tend to come from the Roman Catholic tradition. John Finnis has been particularly eloquent about the basis and nature of human sanctity and the nature of the soul and the timing of ensoulment – when the moral and legal person comes into being.⁹

The timing of ensoulment is critical here for women because many religionists believe that the soul enters the body well before birth – and so they render incoherent or compromised the personhood of the pregnant woman. Those who invoke the sacred subject of law, the legal idea of human sanctity, tend to sidestep the problem of the pregnant woman – the problem of two souls in one body and therefore of two potentially conflicting rights-holders inhabiting the very same space.

The Naturalist’s Person

Furthermore, there is also to be found in law a more naturalistic view of the person, typically rendered as an embodied and bounded self, a sovereign subject.¹⁰ All laws that protect the right of persons to bodily integrity, often regarded as the most fundamental common law right, tend to conjure up a naturalistic understanding of the person.¹¹ This view of the person as an enclosed, bounded and sovereign being is highly compatible with rationalism, which emphasises the right of the rational person to exercise autonomy over his own person – what J. S. Mill thought of as our essential right to physical self-government.¹² The idea is that law should preserve our physical sovereignty – what is thought to be our natural human bodily au...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Contents
• Notes on contributors
• Acknowledgements
• Introduction
• Part I: Theory, law and sex
• Part II: Representations, law and sex
• Part III: Violence, law and sex
• Part IV: International violence, law and sex
• Part V: Reproduction, law and sex
• Part VI: Relationships, law and sex
• Index