Category FEMINIST PERSPECTIVES. ON FAMILY LAW

Concluding remarks

Writing in the Australian Feminist Law Journal, Margaret Thornton has recently spoken of her wish to begin ‘a conversation which I hope others will join so that we might discursively constitute a new episteme of feminist legal theory that is linked to the political’.[1082] In exploring whether ‘the conjunction of postmodernism and neoliberalism’ might add up ‘to post-feminism’,[1083] Thornton questions whether the ‘institutional base’ of feminist legal scholarship may well be ‘disap­pearing beneath our feet’ in the context of the rapidly changing political economy[1084] in which feminist research into law is now undertaken within and beyond universities.[1085] What is necessary, she suggests, is a return to ‘political engagement, rather than introspection’, a discouraging of ‘an exclusive focus upon the individual and micropolitical sites.. . disconnected from the broader political picture’[1086]

This chapter has sought to contribute to this new episteme of feminist legal theory by re-examining how the male subject has been conceptualised in critical family law scholarship to date. Thornton has suggested that ‘clinging to the uni- versals of the past [cannot] save legal academic feminism’.[1087] Rather, she argues, what is necessary is to locate both feminist legal studies and post-modernism in the context of ‘a particular politico-historical moment’.[1088] This is a moment which is, I have suggested, marked by an embrace of formal gender neutrality and the twin pincers of neo-liberalism and post-modernism. In such a context, it has become a paradox of gender and law scholarship that the development of the academic study of masculinity has itself, in so many ways, concentrated on the individual and micropolitical sites, on issues of text and discourse, rather than these wider questions about terrain, political engagement and social power referred to by Thornton. Indeed, there is a sense in which the very model(s) of masculinity central to much feminist legal scholarship must themselves now be seen as, in fact, the product of a particular ‘episteme’ – one whose time is, if not past, then at least now open to question in some far-reaching ways.

It is in such a context that these questions about masculinity take on a particu­lar significance. There is growing reason to believe that, in many respects, the study of masculinity and law is at an important juncture. Increasingly, the concept central to so many feminist engagements with law and gender – the gender of men, termed, variously, masculinities, masculinism, masculinity – has been subjected to critique. This chapter has questioned the implications for family law of the grow­ing call for researchers in this area to rethink actively both their categories of analysis and focus of enquiries in relation to the study of men and masculinity;[1089] to question, for example, the overarching epistemic frame of sex/gender which has informed so much of the studies to date;[1090] to rethink the dualism between hetero­homosexuality;[1091] and, in particular, to re-appraise the place of materialist analyses of labour in developing an understanding of the politics of law. The latter issue assumes a particular significance in the light of the potentially ‘corrosive impact’ of neo-liberalism and marketisation on feminist legal scholarship within the acad­emy more generally.[1092] As Whitehead argues, it is only through a much more egalitarian material sexual division of labour that it will be possible to explore the ‘freeing up’ of gender identities advocated within so much of the work on mascu­linities and law; or, at the very least, to do so without the suspicion and recrimin­ation about motive which appears to mark so many interventions in this area.[1093] Tackling material inequalities in the relative position of women and men is more likely to bring about change than attempts pitched solely at the level of textual/ deconstructive reforming men’s ‘selves’, personalities or identities, or else aimed at ‘subverting’ dominant discourses around masculinity.[1094]

Ultimately, it is important to remember, as Connell himself has long argued, that as a material practice, gender cannot be detached from what are increasingly global(ised) struggles around power and material interest.[1095] ‘Changing men’, as a political end, cannot be reduced to questions of individual or collective projects of self-actualisation. The approach outlined in this chapter has sought to appreciate the undoubted strengths and insights of those analyses which have sought to develop understandings of masculinity in the field of family law. Yet it is through a recognition of the limitations of these approaches that it becomes possible to see what the ultimate problem in this area of scholarship may be: not one of the limits of deconstructive analysis per se but the analytic and political limitations of a model of structured action which has rested on outmoded and essentialist notions of masculine identity. At the same time, and in recognising the force of perspec­tives originating from within a broadly post-modern frame, it is equally imperative that questions of power, interest and political economy are not overlooked. What is as intriguing as it is worrying about recent developments is the way in which, whilst a range of cultural discourses have certainly problematised the relationship between men and family law in far-reaching ways, they are doing so in such a way that, behind a purportedly progressive rhetoric of gender equity, questions of power and material interest continue to be systematically marginalised and depoliticised. The current debate about contact law reform in the UK can itself be seen to serve as a case in point in this regard.

Family law has a particular significance in these debates. Indeed, it can be seen to exemplify the effects of a depoliticising of gender, an issue which has a worrying significance for feminism. Across a number of areas of family law and policy, gender-neutral norms and assumptions about gender neutrality are being applied to what remain, in many cases, profoundly gendered areas of social life.[1096] What is so revealing about present struggles in this area is how, alongside a downplaying of questions of the wider political economy in which knowledge of ‘masculinity’ is produced, much of the rhetoric in conversations about men and the changing family then takes the form of attempts to bolster and re-affirm traditional social relations in the face of the challenges posed by economic and cultural change. If that is where the study of masculinity and law has led us then there is, perhaps, good reason to take up the call by Thornton to seek to ‘discursively constitute a new episteme of feminist legal theory’.[1097] For all the seeming heterogeneity of the ‘new ways of being a man’ foregounded in so much of the literature on masculinities, what tend to be side-stepped are questions of the material basis of what research suggests are still-entrenched sexual divisions of labour;[1098] still-pertinent questions about the autonomy of men to ‘opt out’ of caring relations; and, importantly, still- unanswered questions about what all of this might tell us about the way con­temporary advanced capitalist neo-liberal societies value social care and intimacy.

[1] Chapter 11.

[2] See, for example, Malik, Chapter 11; O’Donovan and Marshall, Chapter 6.

[3] Lacey (1998); in this volume see Smart, Chapter 7; Stychin, Chapter 2; Kaganas, Chapter 8; Piper, Chapter 9; Mumford, Chapter 10.

[4] See Stychin, Chapter 2; Jackson, Chapter 4; Bottomley and Wong, Chapter 3.

[5] See Jackson, Chapter 4.

[6] O’Donovan and Marshall, Chapter 6; Bottomley and Wong, Chapter 3; Jones, Chapter 5.

[7] Malik, Chapter 11.

[8] Stychin, Chapter 2.

[9] Smart, Chapter 7; Kaganas, Chapter 8; Piper, Chapter 9.

[10] Piper, Chapter 9; Jones, Chapter 5; Smart, Chapter 7.

[11] Collier, Chapter 12.

[12] Jackson, Chapter 4.

[13] Mumford, Chapter 10; Piper, Chapter 9; Stychin, Chapter 2.

[14] Morgan (1996).

[15] See, eg, Piper, Chapter 9; Jones, Chapter 5.

[16] Collier, Chapter 12; and see Boyd and Young (2004).

[17] Douglas and Michaels (2004).

[18] See, eg, Smart (1989).

[19] Chapter 10.

[20] See, eg, Collier, Chapter 12.

[21] Philipps (2004).

[22] Chapter 3.

[23] Chapter 3.

[24] Chapter 2.

[25] Chapter 5.

[26] Chapter 4.

[27] See, for example, Ghaidan v Mendoza [2004] UKHL 30; R (on the application of Williamson) v Secretary of State for Education and Employment [2005] UKHL 15; Miller v Miller; McFar – lane v McFarlane [2006] UKHL 24.

[28] [1986] AC 112.

[29] [1991] 4 All ER 481.

[30] [2001] AC 596.

[31] Chapter 8.

[32] Wicks, The Rt Hon Malcolm, MP, Minister of State for Pensions (2004), Speech to TUC Conference, ‘Women and Pensions’.

[33] Ibid.

[34] Smart (1984).

[35] Chapter 12; and (2001).

[36] Okin (1989), p 170.

[37] Ibid, vii.

[38] Chodorow (1978).

[39] Chapter 12.

[40] Neale and Smart (2002), p 196.

[41] Ibid.

[42] Gender Recognition Act 2002.

[43] Civil Partnership Act 2004.

[44] Beck and Beck-Gernsheim (1995); Dewar (1998); Diduck (2003; 2005).

[45] Dewar (1998).

[46] Diduck (2003; 2005).

[47] Cossman (2002); Boyd and Young (2004); Fineman (2004); Diduck (2005).

[48] Collier, Chapter 12; Piper, Chapter 9; Kaganas, Chapter 8.

[49] Philipps (2004), p 605.

[50] O’Donovan (1993); Diduck and Kaganas (2006).

[51] Olsen (1992), p 209.

[52] Employment Act 2002; Work and Families Bill 2005.

[53] Domestic Violence, Crime and Victims Act 2004, s 5; A v UK [1998] 2 FLR 959.

[54] Piper, Chapter 9.

[55] Mumford, Chapter 10; Philipps (2004); Boyd and Young (2004).

[56] Immigration Rules; and see, for a discussion of the concept of family life under Article 8 ECHR,

Singh v Entry Clearance Officer New Delhi [2004] EWCA Civ 1075.

[57] I v UK [2002] 2 FLR 518; Goodwin v UK [2002] 2 FLR 487.

[58] Bottomley and Wong, Chapter 3.

[59] See, eg, Jobseeker’s Act 1995; New Deal for Lone Parents; New Deal for Partners.

[60] Grant v Southwest Trains [1998] 1 FLR 839; Webb v EMO Air Cargo [1994] ECR 1-03567. See, generally, Salford, 2002.

[61] Cotterrell (2002).

[62] See O’Donovan (1993); Diduck (2003).

[63] See Diduck (2005); Fineman (2004).

[64] Philipps (2004).

[65] Chapter 7.

[66] Philipps (2004), p 605; Kaganas, Chapter 8; Smart, Chapter 7; Stychin, Chapter 2.

[67] Chapter 7.

[68] Chapter 8.

[69] Weitzman (1981); O’Donovan (1985).

[70] Lacey (1998).

[71] See also Boyd and Young (2004).

[72] Barlow and Duncan (2000).

[73] Chapter 10.

[74] Chapter 11.

[75] Chapter 6.

[76] See, eg, Silva (1996); Diduck (1997); Fineman (1995). Motherhood’s association with care and nurture is so ingrained that the lesbian mother is now more acceptable in law than the mother who chooses not to mother. See, for example, discussion in Re G (Children) [2006] UKHL 43.

[77] Chapter 4.

[78] Chapter 5.

[79] Finer and McGregor (1974), p 101.

[80] Diduck and Kaganas (2006).

[81] Ibid; Maidment (1984).

[82] Weitzman (1981), p 323.

[83] See, for example, the Supreme Court of Canada’s remarks in Moge v Moge [1992] 3 SCR 813.

[84] White v White [2001] 1 AC 596.

[85] [2006] UKHL 24.

[86] R v Secretary of State for Work and Pensions ex parte Kehoe [2005] UKHL 48.

[87] Boyd (1994), p 69.

[88] Diduck and Kaganas (2006), ch 7.

[89] Office for National Statistics, Social Trends 2005, Tables 2.4, 2.10, 2.13.

[90] Barlow et al (2005); Law Commission (2006).

[91] See, eg, Smart (1984); Cossman and Ryder (2001); Day Sclater and Piper (2000); Diduck (2005).

[92] See also Diduck (2005), who argues that this extension also disciplines society.

[93] Fudge and Cossman (2002), p 16.

[94] HM Treasury (2004) Child Poverty Review.

[95] Ibid.

[96] Piper, Chapter 9.

[97] Chapter 9.

[98] Chapter 9.

[99] Fineman (2004), p 228.

[100] Fudge and Cossman (2002), p 28.

[101] Cossman (2002), p 169.

[102] Philipps (2004), p 606.

[103] See Reece (2003); Diduck (2003).

[104] Hansard, Commons, 12 October 2004, p 190: Mr Alan Duncan (Conservative).

[105] Local Government Act 1988 s 28.

[106] www. womenandequalityunit. gov. uk/lgbt/key_facts. htm: Angela Mason, who led the campaign at Stonewall for the Civil Partnership Act, later became the head of the Women and Equality Unit.

[107] These guidelines were issued on 7 July 2000.

[108] www. womenandequalityunit. gov. uk/lgbt/partnership. htm.

[109] The pension questions raised by the Act are complex and not entirely resolved. In particular, the issue of pension provision for dependent surviving civil partners remains a contentious issue. The argument that the survivor partner’s pension should be based upon all of the deceased’s pension contributions, and not just those made since the coming into force of the Civil Partner­ship Act, has not been accepted by the government. Further announcements are promised from the government on the pension implications of partnership.

[110] The ability to transfer property upon death free from inheritance tax has proven to be one of the most controversial areas of debate, leading to wider questions regarding why same-sex couples should be financially ‘privileged’ in this way over other dependent relationships. It has also led to debate regarding the relative merits of inheritance tax more generally; an interesting question which is beyond the scope of this chapter.

[111] www. womenandequalityunit. gov. uk/lgbt/partnership. htm.

[112] Hansard, Lords, 22 April 2004, p 388, Baroness Scotland (Labour).

[113] Hansard, Commons, 9 November 2004, p 776, Ms Jacqui Smith (Labour).

[114] Hansard, Lords, 22 April 2004, p 405, Baroness O’Cathain (Conservative).

[115] Department of Trade and Industry (DTI) (2004), p 22.

[116] See, eg, O’Donovan (1993); Auchmuty (2004).

[117] Stychin (2003), ch 2. See also, eg, Bell and Binnie (2000); Carabine and Monro (2004); McGhee (2003); Powell (2000); Rose (2000); Sevenhuijsen (2000); Williams and Roseneil (2004).

[118] DTI (2004), pp 16-17.

[119] Ibid, p 22.

[120] Ibid, p 2.

[121] DTI (2003), p 15.

[122] Ibid, p 38.

[123] DTI (2004), p 16.

[124] Ibid.

[125] See, eg, Barlow and Probert (1999); Pratt (2002); Steiner (2000); Stychin (2003), ch 3.

[126] On French republicanism, see, eg, Favell (1998); Jennings (2000); Laborde (2001).

[127] Stychin (2003), ch 3.

[128] See generally Bell and Binnie (2000).

[129] See McGhee (2003).

[130] www. womenandequalityunit/lgbt/partnership. htm.

[131] Stacey and Davenport (2002), p 356.

[132] Roseneil (2002), p 34.

[133] Ibid.

[134] Cooper (2002), p 232.

[135] See, eg, Diduck (2001).

[136] DTI (2003), p 38.

[137] DTI (2004), p 16.

[138] DTI (2003), p 23.

[139] See, eg, Bell and Binnie (2000); Butler (2002); Freeman (2002); Roseneil (2004).

[140] Roseneil (2004), p 411.

[141] Ibid.

[142] Stacey and Davenport (2002), p 364. See also Fineman (2004), p 135; Diduck (2001).

[143] See, eg, Giddens (1992); Weeks (2004).

[144] Freeman (2002), p ix.

[145] Ibid.

[146] Roseneil (2004), p 411.

[147] DTI (2003), p 36.

[148] Ibid, p 35.

[149] See, however, how strategic litigation can bring a case into the Family Division Bottomley,

(1994a).

[150] See, eg, Barlow and James (2004).

[151] Ibid.

[152] Ibid and Bottomley (1994b). See also Oxley v Hiscock [2004] EWCA Civ 546, [2004] 3 All ER 703.

[153] See the government’s ‘Living Together’ campaign, which was launched on 15 July 2004. For further information, refer to the Department of Constitutional Affairs website at www. dca. gov. uk/family/cohabit. htm and www. advicenow. org. uk/.

[154] See also Stychin, Chapter 2 in this volume.

[155] Hansard, Commons, cols 177-8, 12 October 2004, Jacqui Smith. The government’s view is that the Civil Partnership Act 2004 provides a ECHR-compliant secular approach to recognis­ing stable and committed same-sex relationships and for such partners to receive the same rights and take on the same responsibilities as those who enter into a civil marriage, but without undermining (heterosexual) marriage.

[156] Especially the Law Society; see Law Society (2002).

[157] See the advertisement placed by the Christian Institute in The Times, 9 November 2003. See also Stychin, Chapter 2 in this volume.

[158] Hansard, Commons col 179, 12 October 2004, Jacqui Smith. The Property and Trusts Law section of the Law Commission has already looked, over a long period of time, into the question of property and home sharing but decided in 2002 not to make any recommendations for change. See Law Commission (2002). See now Law Commission (2006).

[159] [2002] EWCA Civ 1533; [2002] 4 All ER 1162, CA at 35.

[160] Conversely, too much slippage between status issues and specific concerns with property often obfuscate the debate; such a slippage is all too easy, given the diversity of legislative programmes in the many jurisdictions which have tackled these issues.

The term and our usage of a ‘utopian moment’ is similar to the idea of ‘liminal utopias’ developed by Sargisson (1996).

[162] The De Facto Relationships Act (New South Wales) was amended and renamed the Property (Relationships) Act in 1999 so as to extend to both opposite – and same-sex de facto couples as well as carers, while Tasmania enacted the Relationships Act in 2003 to replace the earlier legislation and extend to both de facto couples and carers.

[163] At present, only the Domestic Relationships Act and the Relationships Act do not impose a cohabitation requirement.

[164] Cf the previous definition found in s 3(1) of the De Facto Relationships Act (New South Wales), which reinforced the genders of the respective de facto partners twice in the definition.

[165] See previously De Facto Relationships Act (New South Wales) s 3(1); De Facto Relationships Act (Tasmania), s 3; cf Property (Relationships) Act, s 4(1); Relationships Act, s 4(1).

[166] The issue of the presence, or not, of a sexual relationship may well re-emerge at the level of guidelines given for, say, deciding whether a de facto relationship exists, or in the making of awards or dealing with case material.

[167] Eg, Boyd and Young (2003); Millbank (1998); Millbank and Morgan (2001); Millbank and Sant (2000).

[168] For a fuller discussion of this particular development in the Australian legislation and how this form of de-sexing is used to ‘stretch’ protection in relation to property matters to a wider range of relationships, see Wong (2004).

[169] The Relationships Act, on the other hand, does not go as far as the Family Court Act; the Tasmanian courts, for example, have more limited powers in relation to making maintenance orders. See Family Court Act s 205ZC and s 205ZD, which replicate Family Law Act (Cth) s 72 and s 75; cf Relationships Act s 46 and s 47.

[170] This was rather disingenuous – it involved taking the focus away from equality arguments and placing it on economic vulnerability arguments.

[171] Boyd and Young (2003).

[172] Domestic Relationships Act, s 3(1).

[173] Domestic Relationships Act, s 3(2)(a).

[174] The qualifying relationships have been variously termed as ‘domestic relationships’ (as in the Property (Relationships) Act and the Domestic Relationships Act) and ‘personal relationships’ (in the Relationships Act). For the purposes of this chapter, ‘domestic relationships’ will be used, since it is the more commonly employed terminology.

[175] The parties (a) must be domiciled or ordinarily resident in Tasmania, (b) must not be married or a party to a deed of relationship, and (c) are in a significant or caring relationship. The second condition points to the need for exclusivity in order to qualify for registration of the relation­ship. Hence only parties in exclusive de facto or care relationships are permitted to register their relationship.

[176] Relationships Act, s 15.

[177] Rowthorn (2002), for instance, argues that marriage is traditionally seen as an institution for establishing a permanent and sexually exclusive union between a man and a woman. This ‘signal’ serves the threefold function of indicating: their commitment for an enduring relation­ship; their unavailability, sexually, to others; and the likely stability of the relationship. The application of signalling theory to marriage will have implications for any proposed reform of cohabitation and same-sex relationships, that reform calling for the recognition of such rela­tionships would tend to favour a policy that ensures an effective signal of commitment and stability.

[178] We could have employed the anthropological term ‘dyad’ but chose not to, given that this would have led us on to ‘tryad’. However, what has been employed here is the use of ‘stretch’ as informed by the work of Strathern (1999).

[179] Relationships Act, s 11(1)(b) and (2)(a).

[180] See n 27 above; Relationships Act, s 15(1).

[181] All three statutes refer to applications made in relation to the property of both parties or either

of them, thus reinforcing the bilateral nature of the statutes. See Property (Relationships) Act, s 14(1); Domestic Relationships Act, s 15(1); Relationships Act, s 40(1).

[182] These are financial and non-financial contributions made directly or indirectly towards the acquisition, improvement or conservation of any property, as well as domestic contributions for the welfare of the other party or the family constituted by the parties.

[183] Domestic Relationships Act, s 19(2)(a)-(f); Relationships Act, s 47(2)(a)-(m).

[184] See, eg, White v White [2001] 1 All ER 1; Cowan v Cowan [2001] 3 WLR 684; Lambert v Lambert [2003] Fam 103; Miller v Miller; McFarlane v McFarlane [2006] UKHL 24.

[185] Butler (2004); Boyd and Young (2003); Stychin, Chapter 2 in this volume; Cooper (2001; 2004).

[186] The legislative process was a reaction to the Ontario Superior Court decision in Halpern v Canada [2001] 95 RFL (5th) 41. It included an amendment to the Preamble to the Marriage Act: ‘Whereas marriage is the foundation of family and society, without which there would be neither civilization nor progress; Whereas marriage between a man and a woman has from time immemorial been firmly grounded in our legal tradition, one that is itself a reflection of long standing philosophical and religious traditions.’ See Boyd and Young (2003) on Canadian reforms and also Butler (2004) and Cooper (2001; 2004) on wider issues.

[187] Boyd and Young (2003). See also Stychin, Chapter 2 in this volume.

[188] Rowthorn (2002).

[189] See especially Boyd and Young (2003).

[190] Hill (1991).

[191] Bartlett (1984), p 879. See also Jones, Chapter 5 in this volume.

[192] Births and Deaths Registration Act 1953, s 34(2).

[193] Family Law Reform Act 1969, s 23(1); In re A (A Minor) (Paternity: Refusal of Blood Test) [1994] 2 FLR 463.

[194] Re H (A Minor) (Blood Tests: Parental Rights) [1996] 3 WLR 505; Re J (A Minor) (Wardship) [1988] 1 FLR 65.

[195] Re F (A Minor) (Blood Tests: Parental Rights) [1993] Fam 314.

[196] Re H and A (Paternity: Blood Tests) [2002] EWCA Civ 383, [2002] 1 FLR 1145.

[197] Human Fertilisation and Embryology Act 1990, s 28(2).

[198] U v W (Attorney General Intervening) [1998] Fam 29, per Wilson J, p 40.

[199] [2005] UKHL 33, [2005] 2 FCR 223

[200] [2003] EWHC 259, [2003] 1 FLR 1091.

[201] Schedule 3.

[202] Human Fertilisation and Embriology Authority (HFEA) (2004), Part 6.

[203] Brazier et al (1998), para 5.7.

[204] 72 Cal Rptr 2d 280 (Ct App 1998), review denied, No S069696, 1998 Cal LEXIS 3830 (June 10, 1998).

[205] Human Fertilisation and Embryology Act 1990, s 27.

[206] [1977] AC 547, p 577.

[207] See O’Donovan and Marshall, Chapter 6 in this volume.

[208] Shultz (1990), p 352.

[209] Ibid, p 394.

[210] [1988] AC 806, p 812.

[211] (1997) 24 EHRR 143.

[212] Ibid, p 175.

[213] Bainham (1999), p 25.

[214] Hill (1991), p 360.

[215] Children Act 1989, s 12.

[216] Human Fertilisation and Embryology Authority (Disclosure of Donor Information) Regula­tions 2004, SI 2004/1511.

[217] [1996] 3 WLR 505, p 523.

[218] Ibid.

[219] See, for example, S v McC (orse S) and M (D S intervener); W v W [1972] AC 24; In re G (A Minor) (Parental Responsibility) [1994] 2 FCR 1037; In re H (A Minor) (Blood Tests: Parental Rights) [1996] 3 WLR 506.

[220] In re O (A Minor) (Blood Tests: Constraint) [2000] Fam 139, p 144.

[221] Claire, interviewee (emphasis added).

[222] When asked during the interview, Claire confirmed that she was specifically referring to couples in heterosexual relationships. For the purpose of brevity I use the phrase ‘heterosexual couples’ here.

[223] As Day Sclater, Bainham and Richards (1999), p 15 argue, social parenting aside, Anglo-Welsh law has increasingly drawn on the concept of biological parenthood with regard to the familial relations between parents and children. However, given the distinction between genetic and gestational motherhood for example, ‘biological’ parenthood requires clarification in legal discourse (Johnson (1999), pp 49-58). Hence my preferred term is ‘bio-genetic’ parenthood.

[224] Smart (1987), p 114; Bainham (1999), p 26.

[225] Haimes (2002), p 444.

[226] Ibid.

[227] Haimes (2002), pp 444-6; also Haimes (1990), pp 167-8.

[228] However, from 1 April 2005 donor anonymity was removed (the Human Fertilisation and Embryology Authority (Disclosure of Donor Information) Regulations 2004, SI 2004/1511).

[229] See also Jackson, Chapter 4 in this volume.

9a Elsewhere I have considered the construction of implied bio-genetic links between donor – conceived children and co-mothers, and to co-mothers’ extended families, see Jones (2005).

[230] This refers to donor insemination undertaken at a fertility clinic licensed by the Human Fertil­isation and Embryology Authority and therefore regulated by the Human Fertilisation and Embryology Act 1990.

[231] Hayden (1995); Gabb (1999); Comeau (1999).

[232] Births and Deaths Registration Act 1953, s 2.

[233] Births and Deaths Registration Act 1953, s 10(1).

[234] Bainham (1999), p 43.

[235] See Bridge (1999).

[236] The provisions contained in the Adoption Act 1976 have been superseded by the Adoption and Children Act 2002.

[237] Where surrogacy is involved, see Human Fertilisation and Embryology Act 1990, s 30.

[238] Bainham (1999), pp 33-4, lists these effects.

[239] With regard to the ambit of parental responsibility, see Herring (2004), pp 256-66.

[240] Children Act 1989, s 2(1).

[241] Human Fertilisation and Embryology Act 1990, s 28(2).

[242] Children Act 1989, s 4(1)(a): see Sheldon (2001); Wallbank (2002). However, Children Act 1989 s 2A provides that parental responsibility acquired under s 4 can be removed by a court order.

[243] Children Act 1989, s 4(1)(b).

[244] Children Act 1989, s 4(1)(c).

[245] Children Act 1989, s 12(1).

[246] Children Act 1989, s 12(2): see Re C (A Minor) (Residence Order: Lesbian Co-parents) [1994] Fam Law 468 (unreported elsewhere); G v F (Contact and Shared Residence: Applications for leave) [1998] 2 FLR 799; and now Re G (Children) [2005] EWCA Civ 462. Co-mothers (and other non-parents) who cannot satisfy the terms of Children Act 1989 s 10(5)(b), which requires the child to have lived with that person for a period of at least three years, have to apply to the court for leave in order to make the application under s 8 Children Act 1989. From 30 December 2005 it has been possible for step-parents to seek parental responsibility under s 4A(1) Children Act 1989, as amended. However, this is limited to those persons who have married or undertaken a civil partnership with the child’s parent(s).

[247] Hence, the provisions permitting same-sex adoption (ie by both partners) under the Adoption and Children Act 2002 are to be welcomed, as this ensures parental responsibility and parental status.

[248] Bainham (1999), p 33.

[249] [2003] EWCA Civ 182, [2003] Fam 129, [2003] 2 All ER 131 (emphasis added). See Sheldon (2005); Lind (2003). The High Court decision in this case was reported as Re D (Parental Responsibility: IVF baby) [2001] 1 FLR 972. In May 2005, the Court of Appeal decision was upheld in the House of Lords, and reported as Re D (a child appearing by her guardian ad litem) [2005] UKHL 33.

[250] See also Jackson, Chapter 4 in this volume.

[251] Pfeffer (1987), p 94; for an anthropological account, see Strathern (1992).

[252] Snowden and Mitchell (1981), p 17.

[253] Smart (1987), pp 99-101.

[254] Wallbank (2001).

[255] Franklin (1993).

[256] Hereafter HFE Bill.

[257] Franklin (1993), pp 103-5.

[258] Ibid, p 104.

[259] Franklin (1993, p 104) cites embryo research and the limitation of 14 days imposed in the HFE Bill (s 3) as an example. That is, the actual emergence of the primitive streak in a particular embryo is displaced in favour of a blanket limitation period for all embryos.

[260] Franklin (1993), p 104.

[261] Hereafter HFEA 1990.

[262] Franklin (1993), p 104.

[263] See also Jackson, Chapter 4 in this volume.

[264] Franklin (1993), p 105 (emphasis added).

[265] The presumption of paternity is rebuttable if the husband can show he did not consent to the insemination (see also Schedule 3 HFEA 1990; Lee and Morgan (2001), p 237).

[266] See Re D (a child appearing by her guardian ad litem) [2005] UKHL 33, [2005] FCR 223.

[267] See also Wallbank (2004).

[268] Franklin (1993), p 105.

[269] Probert (2004), p 288.

[270] Saffron (1994; 1996; 1998; 2001).

[271] www. issue. co. uk/dinet (last accessed 2001).

[272] www. dcnetwork. org/ (last accessed September 2005).

[273] Family Law Reform Act, s 27(1).

[274] This aspect of the Family Law Reform Act 1987 was incorporated into HFEA 1990, s 28(2).

[275] Emphasis added.

[276] Hoggett (1993), p 28.

[277] Blythe and Moore (2001), p 221; Jackson (2001), p 165.

[278] Snowden and Mitchell (1981), pp 35-6, original emphasis.

[279] Emphasis added.

[280] Foucault (1980).

[281] Wallbank (2001).

[282] Smart (1987); Haimes (1990); Jackson (2001).

[283] Smart (1987).

[284] Sarah, interviewee; emphasis added.

[285] The issue of secrecy falls outside the focus of this chapter: see further Snowden and Mitchell (1981); O’Donovan (1988; 1989; 1998); Daniels and Taylor (1993); Golombok et al (1996; 2004); Murray and Golombok (2003).

[286] Section 50 Adoption and Children Act 2002 provides for same-sex couples to adopt together. For the purposes of s 50, ‘a couple’ is defined under s 144(4)(b) as ‘two people (whether of different sexes or the same sex) living as partners in an enduring family relationship’. It is possible that permitting same-sex adoption could lead to the development of alternative nam­ing practices. For example, a co-mother like Andrea may be more inclined to label herself a ‘parent’ as opposed to ‘sort of a parent’. It is significant to note that the gender-neutral term ‘parent(s)’ is used in Schedule 1 of the Adopted Children and Adoption Contact Registers Regulations 2005, which governs the form of entry in the Adopted Children Register. Roger Errington, Head of Adoptions at the General Register Office, explains that ‘this was the straightforward summary wording which the lawyers were satisfied would cover all possible combinations of adoptive relationship. . . The above use of “parent(s)” replaces the use of “adopter or adopters” currently in use as prescribed by the Forms of Adoption Entry Regula­tions 1975’ (personal communication, 7 September 2005). It is not clear why ‘adopter(s)’ would not encompass all adoptive relationships. Nevertheless, the use of these gender-neutral terms suggests normative hostility to the possibility of two ‘mothers’ (or indeed ‘fathers’) within legal discourse.

[287] Emphasis added.

[288] See the discussion under ‘Joint residence orders’ below.

[289] Cussins (1998); also Thompson (formerly Cussins) (2001).

[290] Cussins (1998), p 55, emphasis added.

[291] See discussion in Jackson, Chapter 4 in this volume. However, the New Zealand Law Commis­sion recently raised the possibility of a child having more than two legal parents: see New Zealand Law Commission (2005), paras 6.67-6.73 and 8.15-8.17.

[292] Dunne (2000), p 24.

[293] See Dunne (2000) for a discussion of parenting practices that are not necessarily mediated along gender-specific lines, a detailed discussion ofwhich falls outside the focus of this chapter.

[294] See Weeks, Heaphy and Donovan (2001) for a discussion of same-sex partners (in Britain) remaking ‘family’ or ‘families of choice’, outside of heterosexual norms and legal discourse rooted in those norms. Weeks et al note that, while these processes can be difficult for non­heterosexuals, the emergent ‘practices of freedom’ can also be liberating, and provide ongoing challenges to traditional heterosexual assumptions.

[295] Emphasis added.

[296] Human Fertilisation and Embryology Authority (2004), paras 7.28-29.

[297] Kennedy and Grubb (1994), p 789; also Jackson (2001), pp 239-40.

[298] Dunne (2000).

[299] Emphasis added.

[300] Cussins (1998), p 55.

[301] Children Act 1989, s 3.

[302] See Montgomery (2003), pp 289-304.

[303] See Jones (2003; forthcoming 2007).

[304] This was acknowledged by Thorpe LJ in Re G [2005] EWCA Civ 462, at para 7. Citing s 75(2) Civil Partnership Act 2004 (which, when enacted, will amend Children Act 1989 s 4A(1)

(acquisition of parental responsibility by step-parent) to include applications by civil partners), he stated that this is ‘an indication of a perceivable statutory trend towards the relaxation of the boundary originally set by section 4 [Children Act 1989]’.

[305] See Baroness Hale in Ghaidan v Mendoza [2004] 2 WLR 113, paras 141-3.

[306] [2005] EWCA Civ 462. Now see also Re G (Children) [2006] UKHL 43, on appeal from [2006] EWCA Civ 372.

[307] Para 27, emphasis added.

[308] Paras 25, 27.

[309] Indeed, this issue is only addressed specifically with regard to noting the mother’s evidence that ‘Miss W should be viewed as an extended family member, not in a parental position’, para 11. However, no further discussion of the mother’s evidence was undertaken with regard to this point.

[310] Cooper and Herman (1995), p 176.

[311] See Diduck (1998).

[312] Beverley, interviewee.

[313] Children Act 1989, s 5(3).

[314] Barton and Douglas (1995), p 100.

[315] Children Act 1989, s 5(6)-(8).

[316] HFEA 1990, s 28(6).

[317] Children Act 1989, s 6(7).

[318] Barton and Douglas (1995), p 100.

[319] HFEA 1990, s 28(3). Though the case of X, Y and Z v UK (1997) 24 EHRR 143 involving a transsexual social father indicates that one must legally be considered to be a man for s 28(3) HFEA 1990 to apply. However, Gender Recognition Act 2004 s 9(1) states that after a full gender recognition certificate is issued ‘the person’s gender becomes for all purposes the acquired gender.’ Consequently, a female-to-male transsexual could in future be legally regis­tered as the father of a donor-conceived child. However, as s 12 of the 2004 Act makes clear, issuing a gender recognition certificate does not alter the (pre-certificate) parental status of an individual.

[320] Franklin (1993), outlined above.

[321] Barton and Douglas (1995); Bainham, (1999); Bridge (1999); Johnson (1999); Jackson (2001) and Chapter 4 in this volume; Herring (2004); and Probert (2004).

[322] Bainham (1999); Probert (2004).

[323] Currently this would mean a maximum of two parents, although Johnson (1999) discusses future possible developments in assisted reproductive technologies that could increase this number.

[324] Wallbank (2004).

[325] Bainham (1999), p 44.

[326] Barton and Douglas (1995).

[327] Probert (2004), pp 284-5; Herring (2004), pp 328-9.

[328] Herring (2004), p 328.

[329] Probert (2004), p 285.

[330] Re D [2005] UKHL 33; Sheldon (2005); Lind (2003).

[331] Haimes (2002).

[332] O’Donovan (1993); Diduck (1995, 2003).

[333] Probert (2004), p 278.

[334] Ibid.

[335] Per Ghaidan v Mendoza [2004] UKHL 30, [2004] 3 All ER 411.

[336] Ibid, and the decision in Re G, as discussed above.

[337] Clearly, a number of women become co-mothers following self-insemination (Saffron, 1998), to whom the consent provisions would not apply. Class issues and the access policies of licensed clinics, which can act to frustrate lesbian women’s use of licensed donor insemination, are salient considerations but fall outside the scope of this chapter: see Jones (2003, 2004).

[338] Births and Deaths Registration Act 1953.

[339] See also Adopted Children and Adoption Contact Registers Regulations 2005, SI 2005/924, Schedule 1.

[340] Children Act 1989, s 12(2).

[341] I am grateful to both Carol Smart and Lisa Young for alerting me to the Australian provisions.

[342] Nedelsky (1989), p 221.

[343] Jackson (2001); Nedelsky (1989).

[344] See, for example, Malik, Chapter 11 in this volume.

[345] For example, Nussbaum (2000).

[346] Jackson and Lacey (2002).

[347] Ruddick (1989), pp 18-19. Ruddick’s distinction has been made in French law since the eight­eenth century.

[348] Re AB (Care Proceedings) [2003] EWCA Civ 1842.

[349] Odievre v France (Application no 42326/98) 13 February 2003; [2003] 1 FCR.

[350] See O’Donovan (1985); Olsen (1995); Pateman (1987; 1988); Lacey (1998).

[351] Okin (1979; 1989).

[352] Du Bois (1985); Pateman (1987); Olsen (1995); Phillips (1999); MacKinnon (1989); Gilligan (1982); Bock and James (1992).

[353] This is particularly the case in medical ethics.

[354] Kant (1988); see also Dworkin (1999).

[355] See Lloyd (1984).

[356] Taylor (1992); Sandel (1998); see analysis also by Reece (2003), ch 2.

[357] Nedelsky (1989); MacKinnon (1989); Nussbaum, (1999; 2000); MacKenzie and Stoljar (2000).

[358] Nedelsky (1989); MacKenzie and Stoljar (2000).

[359] Phillips (1993), p 43.

[360] De Beauvoir (1997); Lloyd (1984).

[361] See Evans (1997), p 45.

[362] Firestone (1971), pp 8-9.

[363] Firestone (1971).

[364] Gilligan (1982); Rich (1976); West (1988).

[365] West (1988).

[366] According to West (1988), women fear separation from the other rather than annihilation by him, and count it as a harm, because women experience the separating pain of childbirth and feel more deeply the pain of the maturation and departure of adult children.

[367] West (1988).

[368] Rich (1976), p 127.

[369] Ibid, p 280.

[370] Ibid, p 160.

[371] Ibid, p xxii.

[372] Okin (1979).

[373] Cornell (1998).

[374] Chodorow (1978); O’Brien (1981); Dally (1982).

[375] Pateman (1987); Phillips (1993); Okin (1989); Chodorow (1978).

[376] Chodorow (1978).

[377] Ibid, p 208.

[378] Ibid, p 212.

[379] Okin (1989); Nussbaum (2000).

[380] Okin (1989).

[381] Sheldon (1997).

[382] Or a resignation, again based on a conflation of the two concepts, that there is little choice to do otherwise.

[383] Stumpf (1986), pp 187-208.

[384] Ruddick (1989), p 51.

[385] Sarah Ruddick (1989) includes the work of gestation and the trauma of giving birth in the idea of birthing labour.

[386] Rothman (1989), p 161.

[387] MacKinnon (1991), p 1316.

[388] Sevenhuijsen (1998), p 56.

[389] Diduck (2003), p 83.

[390] Douglas and Michaels (2004).

[391] See, eg, Crittenden (2001); Eyer (1996); Maushart (1999).

[392] Douglas and Michaels (2004), p 4.

[393] Brockington (1996).

[394] Lee et al (2004).

[395] National Research Council (1987), p 27, cited in Lee et al (2004), p 1.

[396] Lee et al (2004), p 21.

[397] Concealment of pregnancy followed by infanticide is reported in all studies: see Brockington (1996).

[398] Firestone (1971); Okin (1989).

[399] Sandel (1998), p 19.

[400] Reece (2003), ch 1.

[401] Griffiths (1995).

[402] Griffiths (1995), p 179.

[403] Ibid, p 93; see also Malik, Chapter 11 in this volume.

[404] Reece (2003), p 14.

[405] Gilligan (1982).

[406] Badinter (1981).

[407] Reece (2003) argues that the search for authenticity, in following the right path in personal decisions, can be never-ending, and is an aspect of the therapeutic state. Eventually this search is coercive, as much so as the traditional rules it replaces.

[408] Re AB (Care Proceedings) [2003] EWCA Civ 1842.

[409] Children Act 1989, s 2. Since he was married to the mother, he has automatic parental responsibility. Nevertheless, the case suggests that a discretion does exist on the question of whether he is joined as a party.

[410] In Re J (Adoption: Contacting Father), Family Division 14/02/03, upon the woman’s request, the father of a child placed for adoption was not contacted. In Re M (Adoption: Rights of Natural Father) [2001] 1 FLR 745, the father was not contacted as there was ‘no established family life’. See also Re M (Adoption: Rights of Natural Father) [2001] FLJ 240. Where ‘family life’ is established the court will require that the father be contacted: Re R (Adoption: Father’s Involvement) [2002] 1 FLR 302. In these cases the parties were unmarried.

[411] As detailed in the appeal: Re AB [2003] EWCA Civ 1842.

[412] Re AB, para 19.

[413] McClain (1996).

[414] Reece (2003). The writers of this chapter have debated this point. One argues that autonomy is not just about ‘doing your own thing’, and that people should be helped to make the right choices. The other argues that there may be a distinction between what seems to be ‘right’ at the time and what one sees as ‘right’ in later years. When under pressure, it is the present that has to be taken care of, not the future.

[415] Re AB, para 19.

[416] Scheiwe (2003), p 144.

[417] Thorpe LJ in Re AB.

[418] McClain (1996).

[419] Registration of Births Act, 1953, s 2; Human Fertilisation and Embryology Act 1991, s 27.

[420] Offences Against the Person Act 1861, s 27.

[421] Panter-Brick and Smith (2000).

[422] Adoption and Children Act 2002, s 79.

[423] O’Donovan (2000a), pp 73-86.

[424] Odievre v France (2004) EHRR 43, [2003] 1 FCR 621.

[425] O’Donovan (2000b), pp 68-85.

[426] Odievre v France (2004) EHRR 43, [2003] 1 FCR 621.

[427] Steiner (2003).

[428] O’Donovan (2000b). See also paras 15 and 16 of the judgment in Odievre v France.

[429] Etzioni (1988). See also analysis in Part One above.

[430] O’Donovan (2002).

[431] Odievre v France.

[432] Odievre v France, para 44.

[433] United Nations Convention on the Rights of the Child, Articles 7 and 8; European Convention on Human Rights, Article 8; Steiner (2003).

[434] Scheiwe (2003). The situation in the United States, where anonymous abandonment has been legalised in a large number of states, is discussed in Magnusen (2001) and in Raum and Skaare (2000).

[435] Steiner (2003), p 430.

[436] Douglas and Michaels (2004).

[437] Nedelsky (1989), p 221.

[438] Ibid, p 225.

[439] Gilligan (1982); Sevenhuijsen (1998); Tronto (1993).

[440] Gillies (2005).

[441] Gillies (2005), p 77.

[442] Murch (1980); James and Hay (1993).

[443] Smart and Sevenhuijsen (1989); Diduck (2003).

[444] Tronto (1993).

[445] Advisory Board on Family Law (2002); Amato and Booth (1997); Morgan (1998).

[446] See also Kaganas, Chapter 8 in this volume.

[447] For example, the headline in Guardian Unlimited, 28 October 2004, read ‘Stand up for your rights, minister tells fathers’. The minister was Lord Filkin, who has responsibility for reform of existing policies in family law. Also John Humphreys, on the BBC Radio 4 programme Today, 18 June 2004, stated that we all know that fathers are discriminated against.

[448] Smart et al (2003).

[449] Wallbank (1998).

[450] Smart and Sevenhuijsen (1989).

[451] DfES (2005).

[452] Gillies (2005).

[453] Bainham (2003a; 2003b); Collier (1995).

[454] In McKenzie, the National Newsletter of Families Need Fathers, Issue 58, December 2003, the front page headline read ‘Get political’ and featured a message from Bob Geldof. The final paragraph read: ‘This law can and will be changed. Use your agony and dismay. Channel it to action. Let every humiliation and tear move you forward so that no child nor man may suffer again what you have. Good luck!’

[455] Geldof (2003).

[456] [2003] 2 All ER 131.

[457] Marsden (1969).

[458] B and D v R [2002] 2 FLR 843, p 846.

[459] Presumably this was important because it could be speculated that the child might resemble the non-genetic father’s physical characteristics to some degree and that this strengthened his claim to becoming the legal father.

[460] B and D v R [2002] 2 FLR 843, p 845.

[461] Re R (a child) [2003] 2 All ER 131, p 137. See also Jones, Chapter 5 in this volume.

[462] Re R (a child) [2003] 2 All ER 131, p 139.

[463] See also Sheldon (2001).

[464] These excerpts are from interviews carried out in 2003-4 as part of a Department for Consti­tutional Affairs funded project on contact and residence disputes. For a full account of the study, see Smart and May (2005). We interviewed 27 fathers and 34 mothers in three different regions in England. All had been involved in disputes over contact or residence that had gone to court.

[465] Bailey-Harris (2001); Cantwell et al (1999).

[466] Contact father, contact dispute.

[467] Contact father.

[468] Day Sclater (1999).

[469] Contact father, residence dispute.

[470] Brophy (1982).

[471] Geldof (2003).

[472] Wallbank (1998).

[473] Fineman (1995).

[474] Ibid.

[475] This recognition has occurred on an international scale. See Declaration on the Elimination of Violence Against Women 1993, Article 2; Council of Europe Committee of Ministers (2002), Appendix, para 1.

[476] See Hearn (1998), pp 7-8. See also Mawby and Walklate (1994); Itzin (2000).

[477] On feminist engagement with law, see Lewis et al (2001).

[478] See Itzin (2000).

[479] See Mullender and Morley (1994), p 7; Hearn (1998), p 11; Itzin (2000), p 360.

[480] It is not the intention here to draw definitive conclusions about the prevalence or otherwise of male victims of domestic violence. The intention is to point out that those groups contending that women’s violence against men is a major problem do not produce evidence that it is.

[481] See Cabinet Office and Home Office (1999); Home Office (2000a); Home Office (2003). See further Diduck and Kaganas (2006) ch 10.

[482] See, for example, Family Law Act 1996, as amended, ss 1, 4 and 46(3A).

[483] Domestic Violence, Crime and Victims Act 2004; Protection from Harassment Act 1997, ss 5A and 12; Youth Justice and Criminal Evidence Act 1999, s 17. See further Diduck and Kaganas (2006), ch 10.

[484] Including rape: see Sentencing Advisory Panel (2002); R v Millberry [2003] 1 WLR 546. See also, on domestic violence in the context of domestic homicide, Law Commission (2003).

[485] Home Office (2000b). See also Metropolitan Police (2001).

[486] Crown Prosecution Service (2001).

[487] See also Sentencing Advisory Panel (2004), para 9.

[488] See, for a summary of criticisms, Diduck and Kaganas (2006), ch 10.

[489] See also Mitchell (2004).

[490] The judge’s observations were, however, made in the context of contact disputes.

[491] Hamilton (2003), p 5.

[492] Ibid, p 7.

[493] See Diduck and Kaganas (2006), ch 10. See also HM Crown Prosecution Service Inspectorate and HM Inspectorate of Constabulary, 2004.

[494] Sentencing Advisory Panel (2004).

[495] Home Office (2003), p 28. See, on specialist courts, Cook et al (2004).

[496] Home Office (2003), pp 26-7.

[497] Ibid, p 28.

[498] Ibid, pp 38^0.

[499] Ibid, pp 42^.

[500] Newburn and Stanko (1994), p 155.

[501] See Diduck and Kaganas (2006), ch 10.

[502] See, for example, Dobash and Dobash (1992), pp 26 and 63.

[503] Ibid (1992), pp 63-6.

[504] See ibid, pp 27 and 118.

[505] See, for example, ibid, pp 112-13.

[506] Dobash and Dobash (2000), p 190.

[507] Fontes conducted research in the USA for his PhD and has published a number of pieces on the web on the topic of male victimisation. He claims to have dealt with abused men in his profes­sional capacity, but restricts his evidence to an anecdote about one man and to the bald statement that he ‘was surprised by the number of men who shared with [him] their stories of being physically assaulted by their female partners’ (Fontes (1998), accessed 19 July 2004). However, he does rely on surveys by family violence researchers using the Conflict Tactics Scale (see Fontes (1998: 2003), 20ff, accessed 27 May 2004). See below for criticisms of this meth­odology. Fontes also relies on the rising arrest statistics for women, but does not explore the extent to which this might be the effect of arrest policies; in some areas in America the police have been known to arrest both parties routinely (Chesney-Lind, 2002).

[508] Worrall (2002), p 55.

[509] See Mirrlees-Black (1999), pp 37, 39, 61-2.

[510] The research usually includes abuse by women and by other men, without providing separate figures for these categories.

[511] See, for discussion, Gadd et al (2002).

[512] Simmons et al (2002).

[513] As was the case for the earlier British Crime Survey, these figures do not include sexual offences.

[514] Dodd et al (2004), Table 5.01.

[515] Dobash and Dobash (2004), p 324. See also Barnish (2004), para 2.1.

[516] Dobash and Dobash (2004), p 326.

[517] Ibid, p 327.

[518] Ibid, p 328.

[519] Ibid, p 328. But see Dispatches, shown on Channel 4 on 7 January 1998. See Dewar Research

(1998).

[520] Dobash and Dobash (2004), p 328.

[521] Dobash and Dobash (2000), p 190.

[522] Ibid, p 190.

[523] Ibid, p 117. See also pp 111-12. See also Barnish (2004), para 4.3.

[524] Ibid, p 115. See also Barnish (2004), para 4.3.

[525] Dobash and Dobash (2004).

[526] See further Dobash and Dobash (1992), ch 8.

[527] See, for example, Dobash and Dobash (2004), p 329.

[528] Ibid, p 329.

[529] Ibid, p 330.

[530] Ibid, p 331.

[531] Dobash (2003), p 314.

[532] Gadd et al (2002).

[533] Ibid, p 1.

[534] Ibid, p 3.

[535] Ibid, p 3.

[536] Ibid, p 3.

[537] Walby and Allen (2004).

[538] Ibid, p 15: albeit adapted to take account of criticism.

[539] Ibid.

[540] See, for example, ibid, p 37.

[541] See also Barnish (2004), para 2.3.

[542] Walby and Allen (2004), p vii.

[543] Ibid, p 11. See further pp 18, 29-31.

[544] Ibid, p vii. See further pp 23 and 25.

[545] Ibid p viii.

[546] Ibid, p viii. See further pp 33-7. Domestic violence also appears to affect women’s health but not men’s (p 87).

[547] Ibid, p 19.

[548] Ibid, p vii. Of the women who were raped, 45 per cent were raped by a husband or partner and 9 per cent by a former husband or partner (p ix).

[549] Cases where there was violence in addition to stalking.

[550] Walby and Allen (2004), pp ix and 61.

[551] Ibid, p ix.

[552] Ibid, p 19.

[553] Ibid, p 19.

[554] See also Stanko and Hobdell (1993), pp 401 and 413; Goody (1997).

[555] Fontes (1998: 2003), p 39.

[556] Walby and Allen (2004), p 91. See also Barnish (2004), para 2.5.

[557] See Walby and Allen (2004), p x and p 94. See also p 53.

[558] Ibid, p 98.

[559] Ibid, p x.

[560] Ibid, p x. See further pp 101-2.

[561] Dobash and Dobash (2004).

[562] See ibid, pp 343-4.

[563] Ibid, pp 336-7.

[564] Ibid, p 336.

[565] Ibid, p 338.

[566] Ibid, p 338.

[567] Ibid, p 314.

[568] Ibid, p 343.

[569] Ibid, p 340.

[570] Ibid, p 341.

[571] This term is borrowed from Forbes (1992).

[572] Graycar (2000), para E.

[573] MacKinnon (1987), p 170.

[574] Worrall (2002), p 48.

[575] MacKinnon (1987), p 171.

[576] Worrall (2002), p 48.

[577] (1992). She discusses the ‘discovery’ of the female sexual abuser.

[578] Ibid, pp 107-8.

[579] Ibid, p 109.

[580] Collier (1999), p 126.

[581] Collier (1995).

[582] Collier (1999), p 127.

[583] Collier (1995), p 202.

[584] Ibid, p 177.

[585] Ibid, p 202.

[586] Ibid, p 202.

[587] Ibid, p 212.

[588] Mullender et al (2002), p 180.

[589] See, for example, Mullender et al (2002).

[590] Rock (2002), p 14.

[591] Some websites include material that is simply misogynous. See, for example, Manorama, Door 3: http://homepage. ntlworld. com. verismo/index. html (accessed 19 July 2004).

[592] It is not claimed that any of these groups is representative of a significant segment of the British male population. However, these groups are significant in that they seek to influence law and policy and it is these groups that lobby politicians and policy makers, ostensibly on behalf of men as a constituency.

[593] The ‘it does happen network’ at www. itdoeshappen. org/mambo/index. php? option= content&task=view&id=8&it (accessed 5 November 2004; emphasis in original).

[594] See The Mankind Initiative at www. mankind. org. uk/charter. html (accessed 1 June 2004). It is also a strong proponent of the ‘traditional family’.

[595] See at www. mankind. org. uk/dv. html (accessed 26 November 2004).

[596] Although the organisation states that it is gender neutral, Men’s Aid has undergone organisa­tional change and has completely rewritten its website since the bulk of the research for this paper was done. Parts of the website appeared to be still under construction at the time of writing, and by proof stage it contained almost no information about domestic violence on men. Gordon’s paper (2003) had disappeared (see below).

[597] www. crisisline. co. uk/mensaid/ (accessed 5 November 2004).

[598] See at www. mensaid. org/history. htm (accessed 25 May 2004). Women constitute about 45 per cent of their contacts (Gordon (2003), p 5) and most of these are mothers, sisters and daughters of male victims of domestic violence. See www. mensaid. org/domestic-violence. htm (accessed 6 May 2004).

[599] Gordon (2003), p 5.

[600] Ibid, p 21. They also refer to ‘the hundred thousand or so female perpetrators’ (p 24).

[601] Ibid, p 27.

[602] www. itdoeshappen. org/mambo/ (accessed 5 November 2004).

[603] www. crisisline. co. uk/mensaid/dv. htm (accessed 26 November 2004).

[604] www. mankind. org. uk/dv. html (accessed 1 June 2004).

[605] See, for example, Gordon (2003), p 12.

[606] Ibid, p 55.

[607] But see Dewar Research (1998). See also Richards (2004), para 5.1.7.

[608] See, for example, The Mankind Initiative (2004), para 3.2, which refers to ‘verbal’ abuse, a term that could extend to ‘nagging’.

[609] Gordon (2003), p 14.

[610] See Smart, Chapter 7 in this volume.

[611] Families Need Fathers (undated), p 3.

[612] Ibid, p 3.

[613] The Justice for Fathers UK website links to a page entitled ‘The Truth About Domestic Violence. Exposing Stanko’s Big Lie of 1 in 4’ (www. justiceinfamilylaw. co. uk/ The%20big%20lie. htm). This webpage refers to the 1996 British Crime Survey to show equivalence (accessed 9 February 2004). See also The Mankind Initiative, at www. mankind. org. uk/charter. html.

[614] Families Need Fathers (2001) (accessed 26 November 2004).

[615] Families Need Fathers (undated), p 3.

[616] Ibid, p 4.

[617] Ibid, p 4.

[618] The ‘it does not happen network’ at www. itdoeshappen. org/mambo/ (accessed 5 November 2004, emphasis in original).

[619] Families Need Fathers (1999), p 3. See also Families Need Fathers (1999), p 9.

[620] The Mankind Initiative at www. mankind. org. uk/dv. html (accessed 1 June 2004).

[621] Ibid and Fontes (1998).

[622] Gordon (2003), p 8.

[623] Fathers4Justice (2003), p 11.

[624] Families Need Fathers (undated), p 2.

[625] Ibid, p 3. See also p 5.

[626] Ibid, p 6.

[627] Ibid, p 6.

[628] Ibid, p 8.

[629] Ibid, p 5.

[630] The Men’s Aid Philosophy, at www. crisisline. co. uk/mensaid/philosophy. htm (accessed 5 November 2004). Although this does not refer to the gender of the parties, it is clear that it is the resident parent, normally the mother, who is alleged to have lied.

[631] See also Gordon (2003), p 27.

[632] It is suggested that allegations of violence be removed altogether from the family courts and be confined to criminal courts with the criminal standard of proof (Families Need Fathers (1999), p 2).

[633] Families Need Fathers (2001). See also Families Need Fathers (1999), p 2.

[634] Families Need Fathers (undated), p 8.

[635] Ibid, p 11. See also Mankind Initiative, ‘Family Policy Document’ at www. mankind. org. uk/ fampol. htm (accessed 1 June 2004); Men’s Aid ‘Domestic Violence’ at www. crisisline. co. uk/ mensaid/dv. htm (accessed 5 November 2004).

[636] Families Need Fathers (undated), p 9.

[637] Gordon (2003), p 27.

[638] Ibid, p 50.

[639] See at www. crisisline. co. uk/mensaid/philosophy. htm (accessed 5 November 2004).

[640] Families Need Fathers (2001) (emphasis added). See also Families Need Fathers (1999), p 3; Gordon (2003), p 30.

[641] Families Need Fathers (undated), p 5. Walby and Allen (2004, p ix) report that in 2 per cent of cases of post-separation contact involving violent men there had been threats to the children and in 1 per cent of cases, the perpetrator hurt the children.

[642] Families Need Fathers (undated), p 5.

[643] Ibid, p 5.

[644] Gordon (2003), p 8.

[645] Ibid, p 5.

[646] Families Need Fathers (1999), p 11.

[647] Ibid, p 2. See also p 10.

[648] Men’s Aid at www. mensaid. org/general-info. htm (accessed 25 May 2004).

[649] Of course, women’s groups have also used and expanded the definition of domestic violence in strategic ways.

[650] www. mensaid. org/about-us. htm (accessed 6 May 2004).

[651] www. justiceinfamilylaw. co. uk (accessed 9 February 2004). See also the Mankind Charter at www. mankind. org. uk/charter. html (accessed 1 June 2004). The courts too, in a limited range of cases, have held children to have been emotionally abused by mothers who have made unfounded allegations of sexual abuse. See Re M (Intractable Contact Dispute: Interim Care Order) [2003] EWHC 1024 (Fam), [2003] 2 FLR 636; V v V (Contact: Implacable Hostility) [2004] EWHC 1215 (Fam), [2004] 2 FLR 851.

[652] The Mankind Initiative ‘Denigration’ at www. mankind. org. uk/denigrat. html (accessed 9 February 2004).

[653] Gordon (2003), p 16.

[654] Ibid, p 55.

[655] See Families Need Fathers (undated), p 3. See also Families Need Fathers (1999).

[656] National Society for the Prevention of Cruelty to Children.

[657] Families Need Fathers (undated), p 3. See also Sacks (undated); Fathers4Justice (2003), p 8.

[658] Families Need Fathers (undated), p 3. See also Families Need Fathers (1999).

[659] Families Need Fathers (undated), p 7.

[660] Ibid, p 7.

[661] According to Fontes, ‘emotional abuse’, in the form of ‘yelling’, constitutes provocation that can lead to physical violence by the man (Fontes (1998: 2003), p 31).

[662] Families Need Fathers (undated), p 10.

[663] Ibid, p 10.

[664] Gordon (2003), p 16.

[665] Ibid, p 24.

[666] Ibid, p 25.

[667] Ibid, p 26. See also ibid p 27.

[668] Ibid, p 38.

[669] The Mankind Initiative (2004), para 3.1.

[670] See also Families Need Fathers (1999), p 1.

[671] Families Need Fathers (undated), p 4.

[672] See also Gordon (2003), p 10.

[673] Ibid, p 26.

[674] www. justiceinfamilylaw. co. uk (accessed 26 November 2004). The family law system has come under sustained attack from men’s groups. Bob Geldof, for example, in the context of contact with children, has posted a message on the Families Need Fathers website alleging that ‘family law remains flagrantly biased, prejudicial and discriminatory’, and that ‘men and our children are forced through this disgusting and baleful construct, cruelly and surely ironically called “Family” law’ (Geldof, undated). Fathers4Justice say in their manifesto: ‘We challenge the bias inherent in the family law system’ and ‘advocate the dismantling of every element of the existing grotesque, cruel, unjust and unaccountable Family Law Industry and the removal of all existing family court judges’ and seek to ‘ex-pose miscarriages of justice’ (emphasis in original), at http://homepage. ntlworld. com/f4jswansea/manifesto. htm (accessed 9 February 2004). The UK Men’s Movement (UKMM) alleges that ‘feminists have almost entirely succeeded in destroying men’s rights in marriage and the family’. And the law, it says, gives rise to ‘persecution of honest and decent men, and massive privileges for women’ (UKMM, undated a). Fathers4Justice claims there is a ‘war on Fatherhood’ with ‘mass fatherlessness’ leading to social decay (Fathers4Justice (2003), p 12). For an exceptionally intemperate attack, see at www. justiceinfamilylaw. co. uk (accessed 26 November 2004).

[675] Daily Mail (2003) at www. justiceinfamilyaw. co. uk (accessed 26 November 2004).

[676] The Mankind Initiative (2004), para 3.8. See also UKMM (undated b); www. mankind. org. uk/denigrat. html (accessed 9 February 2004).

[677] Fontes (1998: 2003), p 42 (emphasis in original).

[678] Ibid, p 46.

[679] The Mankind Initiative (2004), paras 5.1-2.

[680] Ibid, para 6.10.

[681] Ibid, p 1.

[682] Fontes (1998: 2003), p 49.

[683] Ibid, p 47. See also Gordon (2003), p 9.

[684] UK Men’s Movement.

[685] UKMM (2001), Conclusions (accessed 1 June 2004).

[686] See also Collier (1999), p 127.

[687] Corry (2002).

[688] See Farrington and Painter (2004).

[689] Boyle et al (2002).

[690] See Day Sclater and Piper (2000).

[691] See Fortin (2003), p 556.

[692] For reprimands and warnings, see the Crime and Disorder Act 1998, ss 65-6.

[693] For referral orders see Powers of Criminal Courts (Sentencing) Act 2000, ss 16-27.

[694] See Piper (1994), and the references therein.

[695] Under the Education Act 1996, ss 443-4; Crime and Disorder Act 1998, s 8(1)(d). For guidance on parenting contracts and orders see Home Office et al (2004).

[696] Home Office (2000), para 3.17

[697] Campbell (2003).

[698] Home Office (2003b), para 9, p 5.

[699] Campbell (2003), p 3.

[700] See, for example, DfES (2004b), a recent research report on risk of becoming involved in criminal or anti-social behaviour.

[701] See Piper (1999).

[702] DfES (2003); see also DfES (2004a).

[703] Home Office (2003b).

[704] See: www. commonsleader. gov. uk/output/page798.asp. However, whilst a Youth Justice Bill was announced in the Queen’s Speech in 2004 and drafted in the 2004-5 session, such Bill is not in the list of Bills for 2005-6; see the Queen’s Speech, May 2005, at www. number- 10.gov. uk/output/Page7489.asp.

[705] Youth Justice Board (2004), para 6.3.

[706] Ibid, para 6.6.

[707] See Piper (2005); for the use of ‘criminalisation’ as a state response to poverty and educational disadvantage, see Drakeford and Vanstone (2000).

[708] Farrington and Painter (2004).

[709] Ibid, p 56.

[710] Ibid. In this sample, 12 per cent of sisters and 44 per cent of brothers were convicted.

[711] Ibid, pp 57-8.

[712] See the discussion below concerning the ASSET assessment tool.

[713] At the same time, non-criminal cases were moved to the newly created Family Proceedings Court: Criminal Justice Act 1991, s 68 and Schedule 8; Children (Allocation of Proceedings) Order 1991, SI 1991/1677.

[714] See Crime and Disorder Act 1998, ss 37-41.

[715] See Piper (2001).

29 www. homeoffice. gov. uk/inside/org/dob/direct/jou. html.

30 Home Office (2003b).

31 DfES (2003).

32 Home Office (2003b). See, for example pp 4-6 and 8.

33 Burney (2002), p 473.

34 Crime and Disorder Act 1998, s 34.

35 Fortin (2004), especially pp 256-7.

36 Hibbert et al (2003), p 6.

[716] www. bbc. co. uk/insideout/southwest/series5/drinking_binge_pubs. shtml

[717] See article by C Hall on 15 December 2004.

[718] Daily Mirror, 4 February 2005. See, for a balanced analysis, the article on motivations and outcomes of a study on underage drinking in Childright, April 2005.

[719] Sunday Times, 27 November 1994.

[720] Jansen Robinson, quoted in The Times, 28 April 2002, p 2.

[721] National Association for the Care and Resettlement of Offenders (NACRO) (2001), p 2.

[722] Glasgow: Girls and Violence Project. See www. gla. ac. uk/girlsandviolence/facts. htm

[723] NACRO (2001).

[724] See www. regard. ac. uk/research_findings/R000239150/report. pdf. See also www. ed. ac. uk/news/ truancy. html.

[725] NACRO (2001), p 2.

[726] Home Office (2003c), Table S2.1E.

[727] Home Office (2004b), Table S2.1E.

[728] NACRO (2001).

[729] Boyle et al (2002), p 393.

[730] Burman et al (2001); see also Batchelor and Burman (2004).

[731] Muncie (2003), p 54.

[732] Ibid.

[733] Since the implementation of s 95 of the Criminal Justice Act 1991, the agencies of the criminal justice system must provide statistics broken down into different race and sex categories and so sentencing statistics are available by age, sex and race.

[734] Audit Commission, Youth Justice (Home Office (2004a), p 81).

[735] DfES (2005), para 169 in reference to the need for careers advisers to challenge gender stereo­types. The words ‘girl’, ‘boy’, ‘young women’ and ‘young men’ do not feature in the report.

[736] See Carlen (1983), for an early detailed study of women in Corton Vale Prison in Scotland; see Easton and Piper (2005), ch 12, for a recent review of research about women and custody.

[737] See, for example, Edwards (1984); Gelsthorpe (1986); Morris (1988); and Pearson (1976) for early, seminal work on these issues.

[738] See, for example, Morris (1988), p 163.

[739] Hedderman and Gelsthorpe (1997), pp vii-viii, and also Part 1.

[740] Carlen (1983), discussed in Morris (1988), pp 166-7.

[741] Hedderman and Gelsthorpe (1997), p viii.

[742] Ibid. The sentencing criterion is now to be found in the Criminal Justice Act 2003 at s 148(1).

[743] Hedderman and Gelsthorpe (1997), p viii and ch 2.

[744] See Harris and Webb (1987), p 134; see also Webb’s 1978 research on the supervision order (Webb, 1984).

[745] Harris and Webb (1987), p 134.

[746] Heidensohn (1986), p 297.

[747] Hudson, A (2002).

[748] Harris and Webb (1987), p 135.

[749] See Hudson, B (2002), p 21.

[750] See Easton and Piper (2005), ch 3.

[751] Hudson, B (1994), p 10.

[752] Criminal Justice Act 2003, chapter 12; see Easton and Piper (2005), ch 5, particularly pp 145-6. There is also a focus on persistence in relation to drug offences and burglary through the ‘three strikes’ legislation; see Powers of Criminal Courts (Sentencing) Act 2000, ss 110-11.

[753] Hudson, B (2002), p 25.

[754] See Holdaway and Desborough (2004).

[755] Farrington and Painter (2004).

[756] Burman et al (2001), p 446.

[757] Campbell (2003).

[758] Ibid, pp 4-5.

[759] Home Office (2004a), para 2.17.

[760] Ibid, paras 2.20 and 2.21 respectively. A note by Judy Renshaw to the Youth Justice Board, Advice on Accommodation (YJB(00)72), noted at paras 44 and 51 that 16-17 year olds who are ‘fleeing domestic violence’ are now treated as ‘vulnerable’ under housing legislation and the Safer Communities Housing Fund; see www. youth-justice-board. gov. uk/Publications/Down- loads/AccomVulnerYP. pdf.

[761] Piper and Kaganas (1997).

[762] Campbell (2003), p 5.

[763] Howard League (1997).

[764] Office for Standards in Education (2004).

[765] Ofsted (2004).

[766] Carlen (2001-2), p 44. For a discussion of one particular community-based project see Roberts (2002).

[767] Home Office (2000), para 6.3.

[768] Home Office (2003a).

[769] Alder (2003), p 119.

[770] Ibid, p 120.

[771] Under the Powers of Criminal Courts (Sentencing) Act 2000, ss 100, 91 and 90 respectively.

[772] Four privately run institutions with health and educational services, inspected by the CSCI (Commission for Social Care Inspection).

[773] Howard League for Penal Reform (2004).

[774] Owers in conversation with Wadsworth (2005), pp 10-11.

[775] Ibid, pp 9-10.

[776] National Society for the Prevention of Cruelty to Children.

[777] Creighton (2004), Table 1.

[778] DfES (2004c), paras 6.8 and 6.9.

[779] Chesney-Lind and Pasko (2004), pp 25-7.

[780] HM Inspectorate of Prisons (2005).

[781] HM Inspectorate of Prisons (2004).

[782] See Borrill et al (2005), p 57.

[783] Ibid, pp 6-61.

[784] Gender and Justice Policy Network (2001), para 2.3.2.

[785] See, for example, Kaganas, Chapter 8 in this volume.

[786] See, for example, Smart, Chapter 7, and Collier, Chapter 12, both in this volume.

[787] Worrall (2002).

[788] Muncie (2003).

[789] See, for example, Crowley (1998), for research evidence of the abusive backgrounds of 12-14 year olds eligible for what are now detention and training orders.

[790] HM Inspectorate of Prisons (2004).

[791] Lyon et al (2000).

[792] Walklate has also argued that there is a gendered victimology with an unhelpful ‘deeply embedded male view of the problem of victimisation’ (2003, pp 32-3).

[793] Danner (1998).

[794] Miller (1998), p xviii.

[795] The author would like to express warmest thanks to Prof Lisa Philipps of Osgoode Hall Law School for her invaluable assistance in the writing of this chapter; ana, also, to acknowledge the contribution of the Issues in Taxation class (2005-6) at the LSE, whose feedback on earlier drafts is very much appreciated.

[796] Sainsbury (1999), p 185.

[797] Ibid.

[798] Ibid.

[799] Minow (1991), p 270, cited at Kornhauser (1993), p 64.

[800] Women’s Budget Group (2003).

[801] Bennett (2002), p 579.

[802] Per Tax Credits Act 2002, Ch 21.

[803] Ibid, at s 3(a). Section 5A, as amended by the Civil Partnership Act 2004, defines ‘couple’ as those who are either married or civilly registered and not living separate, or those who are living as husband and wife or as civil partners.

[804] www. taxcredits. inlandrevenue. gov. uk/HomeIR. aspx.

[805] Tax Credits Act 2002, s 7(1)(a). For 2005-6, see http://www. hmrc. gov. uk/pbr2004/pn02.htm.

[806] Tax Credits Act 2002, s 8(4)(a).

[807] Tax Credits Act, ibid.

[808] Ibid, s 12.

[809] See Mumford (2001).

[810] Gerfin and Leu (2003), p 13.

[811] Staudt (1997), p 542.

[812] Blundell (2004), p 234.

[813] Ibid.

[814] Ibid, p 235.

[815] Women’s Budget Group (2003).

[816] Blumberg (1972), cited at Staudt (1997), p 535.

[817] Sainsbury (1999), p 185.

[818] Ibid, pp 186-7.

[819] Ibid, p 187.

[820] Adler (2004), p 87, citing HM Treasury (1972) Proposals for a Tax Credit System, Green Paper, London: HMSO (Cmnd 5116).

[821] Ochel (2001), p 6.

[822] Adler (2004), p 88, citing Brewer, M (2000) Comparing In-Work Benefits and Financial Incentives for Low-Income Families in the US and the UK, Working Paper WP 00/16, London: Institute of Fiscal Studies.

[823] Ibid.

[824] Ibid.

[825] Ochel (2001), p 6.

[826] Blundell and Meghir (2002), p 10.

[827] Leigh (2004), p 16.

[828] See generally Andrews (1991).

[829] As Kornhauser explains, ‘[traditionally, the power to manage and control determines whether income should be attributed to a taxpayer’: (1993), p 74.

[830] Feenberg and Rosen (1980).

[831] Oberst (1988), p 671-2.

[832] Kornhauser (1997).

[833] Blundell (2004), p 245.

[834] Becker (1999), p 32.

[835] Ibid.

[836] Ibid.

[837] The Civil Partnership Act 2004, Pt 14, s 3(c), ensures that ‘two people of the same sex who are civil partners of each other’ will be entitled to claim tax credits. This need not impact, however, on the gendered roles that continue to define the family, as explained in Eskridge (1995), pp 62-3.

[838] Bennett (2002), p 564.

[839] Ibid, p 579.

[840] Ibid.

[841] See Hockenjos v Secretary of State for Social Security [2004] EWCA Civ 1749, [2005] Fam Law 464.

[842] Kilkey and Bradshaw (1999), p 148.

[843] Ibid.

[844] Ibid, p 149.

[845] Ibid.

[846] Fredman (2004), p 299.

[847] Ochel (2001), p 3.

[848] Adler (2004).

[849] Ochel (2001), p 18.

[850] Ibid, p 5.

[851] Ibid.

[852] Ibid.

[853] Leigh (2004), p 2.

[854] Ibid, p 18.

[855] Or, in their analysis, ‘subsidies’ for children.

[856] Greenwood et al (2000), p 35.

[857] Ochel (2001), generally.

[858] Ibid, p 18.

[859] Ibid.

[860] Blundell and Meghir (2002), p 6.

[861] Ibid.

[862] Women’s Budget Group (2003).

[863] Alstott (2004). This might be described as a radical version of the UK’s Child Benefit.

[864] Ibid.

[865] Ibid.

[866] Ibid.

[867] Ibid.

[868] Fineman (1991).

[869] Ibid, p 282.

[870] Alstott (2004).

[871] Ibid.

[872] Ibid.

[873] Ibid.

[874] Ibid.

[875] Ibid.

[876] Ibid.

[877] Livingston (1998), p 1801.

[878] Ibid, p 1802.

[879] Minow (1998), p 342.

[880] Kilkey and Bradshaw (1999), p 149.

[881] Ibid.

[882] Ibid.

[883] Ibid, p 36.

[884] Greenwood et al (2000), p 7.

[885] Alvarez and McCaffery (2000).

[886] Ibid.

[887] Ibid, p 19. Interestingly, however, women also were significantly more likely to express ‘no opinion’ than men, and to emphasise their ‘ignorance’ about tax law and policy (Ibid).

[888] Ibid, p 12.

[889] Greenwood et al (2000), p 34.

[890] Orloff (2002), p 113.

[891] Lardy (2004), p 303.

[892] Staudt (1997), pp 542-3.

[893] Ibid, p 543.

[894] Adler (2004), p 91.

[895] Bennett (2002), p 566.

[896] Goode, J, Callender, C and Lister, R (1998) Purse or Wallet? Gender Inequalities and Income Distribution within Families on Benefits, London: Policy Studies Institute, cited at Bennett (2002), p 566.

[897] Ibid.

[898] Orloff (2002), p 112.

[899] As then was.

[900] Inland Revenue Annual Report (1998). The Inland Revenue has now been merged with HM Customs and Excise to form one, combined ‘new’ organisation. See the O’Donnell Report (2004).

[901] Ibid.

[902] Blundell (2004), p 234.

[903] Ibid.

[904] Pay As You Earn.

[905] Brewer (2002), p 245.

[906] Ibid.

Andrews (2001), p 306.

Ibid, p 307.

Ibid.

BBC, 10 November 2004.

Ibid.

Ibid.

Ibid.

Wikeley (2004), p 22.

[915] Women’s Budget Group (2001).

[916] Organization for Economic Cooperation and Development.

[917] Women’s Budget Group (2001).

[918] Ibid.

[919] Bennett (2002), pp 561-2.

[920] Staudt (1997), p 533.

[921] See Graglia (1995).

[922] Ibid.

[923] Gerfin and Leu (2003), p 15.

[924] Alstott (1996), p 2033, citing McCaffery, E (1993) ‘Taxation and the family: A fresh look at behavioral gender biases in the code’ 40 UCLA L Rev 983, and McCaffery, E (1993) ‘Slouch­ing towards equality: Gender discrimination, market efficiency, and social change’ 103 Yale LJ 595.

[925] Ibid, p 2035.

[926] Orloff (2002), p 114.

[927] Dennis (1993), p 34. As Bennett observed, ‘[w]hen the government has applied a gender lens to its tax and benefit policies, it has typically tended to focus on mothers’. Bennett (2002), p 563.

[928] Howard, speech, 11 November 2004.

[929] Ibid.

[930] Ibid.

[931] Ibid.

[932] Ibid.

[933] Cahn (2001).

[934] Matthaei and Brandt (2001).

[935] Kilkey and Bradshaw (1999), p 149.

[936] Ibid.

[937] Ibid.

[938] Ibid.

[939] Davis (1988), p 233.

[940] Per Sainsbury (1999), n 1.

[941] See, for example, The Employment Equality Directive 2000/78/EC, implemented in Britain via the Employment Equality (Religion or Belief) Regulations SI 1660/2003 (introduced/presented 26 June 2003; in force 2 December 2003).

[942] See Malik (2000a).

[943] Okin (1998).

[944] See, for example, Baroness Hale’s opinion in the case of R (on the application of Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15.

[945] See ‘Women and Cultural Diversity: A Digest of Cases’ at http://webdb. lse. uk/gender (accessed on 20 May 2005).

[946] Susan Moller Okin (2002; 1998) makes the point that leaving young girls to be raised in a culture which does not respect their autonomy can cause them harm even – and especially – where these young girls internalise the values of the culture.

[947] See Eekelaar (2004), p 191.

[948] For a summary of relevant primary and secondary sources, see the bibliography at www. at- torneygeneral. jus. gov. on. ca/english/about/pubs/boyd/bibliography. pdf.

[949] See report in The Forward, 14 January 2004: ‘In a move that is angering Jewish feminists, B’nai Brith Canada is supporting the demands of conservative Muslims in the province of Ontario who wish to have the right to use private arbitration based on Islamic law for the resolution of their marital, custody and inheritance disputes. A report prepared for the Ontario Ministry of the Attorney General recommended last month that family arbitration based on Islamic law be permitted, but regulated, under the province’s Arbitration Act. But both Muslim women’s groups and Jewish feminists are opposed, fearing that vulnerable female immigrants will be coerced into submitting to Islamic arbitration.’ Cited in The Pluralism Project. See www. pluralism. org/news/.

[950] Baroness Hale discusses this issue in the Begum case, n 4 above.

[951] The right to exit argument is defended by Kukathas (1995). For the opposite view, see Green (1995). See also an application of this argument in Shachar (2001).

[952] Shachar (2001), ch 3. For a critique of the right to exit argument in the specific context of minority women see Okin (2002).

[953] For a discussion of the case for, and some scepticism about, consciousness raising in feminist theory see Smart (1989), p 80. A classic exposition of consciousness raising is to be found in the work of the late Andrea Dworkin: see, for example, Pornography: Men Possessing Women (1983). Feminist theory that draws on methods from psychoanalysis understandably gives great status to consciousness raising as a useful method for theory and practice. Luce Irigaray and Julia Kristeva’s work are examples of this; see Duchen (1986).

[954] The LSE Gender Institute’s Project Grant Report on the Nuffield Sexual and Cultural Equality: Conflicts and Tensions states in the context of forced marriage: ‘The UK initiatives have focused very heavily on exit, and more specifically, on assisting individuals forced into mar­riage with an overseas partner. . . our research suggests that exit only works up to a point. It leaves to many individuals with what they perceive as no choice, for when the choice is between rejecting an unwanted marriage partner or being rejected by one’s family (and as many experi­ence it, then having to abandon one’s cultural identity), the costs are set impossibly high.’

[955] Shachar (2001), pp 132-45. In England and Wales, see s 10A Matrimonial Causes Act 1973.

[956] See, for example, Susan Moller Okin’s comment (1979), p 282 that: ‘In spite of the supposedly individual premises of the liberal tradition, JS Mill was the first of its members to assert that the interests of women were by no means automatically upheld by the male heads of the families to which they belonged, and that therefore women, as individuals, should have independent political and legal rights.’

[957] See Kymlicka (1995), p 7. See also Malik (2000b).

[958] For a discussion of some of these issues, see Nussbaum (1999), especially pp 8-10.

[959] Taylor (1992).

[960] Scott (1992), p 40.

[961] For a discussion of the importance of theory see Crosby (1992).

[962] Smart writes (in the context of feminist jurisprudence, but the arguments have a more general relevance to feminist theory): ‘It sets up a specific feminist theory as superior to other versions, not on the basis of a set of political values, but on the basis that radical feminism is the Truth and its truth is established through the validity of method and epistemology. This is scientific feminism; it attempts to proclaim its unique truth above all other feminisms and other systems of thought. It turns experience into objective truth because it has taken on the mantle of a positivism which assumes that there must be an ultimate standard of objectivity.’ (1989,

p 68.)

[963] MacKinnon (1987). See also a passage from MacKinnon’s earlier work on feminist method by Smart (1989, p 70): ‘Radical feminism is feminism. . . Because its method emerges from the concrete conditions of all women as a sex, it dissolves the individualist, naturalist, idealist, moralist structures of liberalism, the politics of which science is the epistemology. Quoted from MacKinnon (1983).’

[964] See Smart (1989), p 71.

[965] Cornell (1995).

[966] Smart (1989), p 71.

[967] Ibid.

[968] Ibid.

[969] See Segal quoted in Smart (1989), p 79.

[970] See, for example, Hooks (1984).

[971] Spelman (1988).

[972] Ibid, p 6.

[973] For a general discussion of these issues and a critique of Spelman, see Okin (1979).

[974] See Nicholson (1995), p 5.

[975] Smart writes, ‘I hope to show below why we need to theorize women’s oppression and why we cannot simply rely on experience as if it were a concrete reality which merely needs to be exposed thereby circumventing the problems and difficulties of intellectual work.’ (1989, p 72.)

[976] See Segal quoted in Smart (1989), p 79.

[977] Gertz (1993).

[978] See Kymlicka (1995). See also Malik (2000b).

[979] See discussion in Collier, Chapter 12 in this volume. For a challenge to the definition and use of the term post-modernism see Butler (1995a; 1995b).

[980] Butler (1995a; 1995b).

[981] For an example of the use of this term see the work of Schumacher: eg, Schumacher (1973).

[982] 1971, p 171.

[983] Examples include leading works such as John Rawls (1971), A Theory of Justice and, more recently, his Political Liberalism (1993); also Ronald Dworkin (1986), Law’s Empire.

[984] See, for example, Oakeshott (1975).

[985] This idea is captured by AJ Ayer’s famous statement that: ‘Just as I must define material things… in terms of their empirical manifestations, so I must define other people in terms of their manifestations – that is, in terms of the behaviour of their bodies, and ultimately in terms of

sense-contents.’ (1971, p 171.)

[986] Weber (1978).

[987] This is the idea of ‘strong evaluations’ that we find in the work of Charles Taylor and the idea of second-order desires and reflexivity in Harry Frankfurt discussions of the mind-body problem. The idea is that motivations, intention and inner states of consciousness should be a central focus for the study of human conduct. See, for example, Taylor (1985a); Frankfurt (1971).

[988] Macintyre (1985), ch 15.

[989] For a full discussion of inter-subjective interpretations, see Taylor (1985b). See also Malik (2000b).

[990] See Murdoch (1997).

[991] Max Weber states, in relation to ideal types: ‘The sociologist seeks also to comprehend such irrational phenomena as mysticism, prophecy, inspiration and emotional states by theoretical concepts which are adequate on the level of meaning. In all cases, rational and irrational alike, he abstracts himself from reality and advances our knowledge of it by elucidating the degree of approximation to which a particular historical phenomenon can be classified in terms of one or more of these concepts. . . In order that these terms should have clear meaning, the sociologist must for his part formulate “pure” or “ideal” types of systems of the relevant kind which exhibit the internal coherence and unity which belongs to the most complete possible adequacy at the level of meaning.’ (1978, p 23).

[992] Benhabib (1995).

[993] Butler (1995a).

[994] Iris Murdoch (1992), p 204 states: ‘Theories which endeavour to show that all evaluation (ascription of value) is subjective, relative, historically determined, psychologically determined, often do so in aid of other differently described or covert value systems, whether political or aesthetic.’

[995] Gadamer (1986).

[996] Many of the cases that arise where there is a conflict between women’s rights and traditional cultural and religious practices raise issues of consent. More specifically, many of these cases relate to the apparent consent of young women to marriage which they later repudiate. See, for example, Sohrab v Khan [2002] SCLR 663, Outer House (Scotland), and P v R [2003] Fam Law 162, Family Div. See also Baroness Hale’s comments in the Begum case above, n 4.

[997] One possible source for establishing limits on consent to harmful practices is international human rights law: see McGoldrick (2005). An example of existing limits on consent to harmful practices is female circumcision. The Female Genital Mutilation Act 2003 repealed and re­enacted the Prohibition of Female Circumcision Act 1985. It makes it an offence for UK nationals or permanent UK residents to carry out female genital mutilation abroad, or to aid, abet, counsel or procure the carrying out of female genital mutilation abroad, even in countries where the practice is legal. The 2003 Act also increases the maximum penalty from five to 14 years’ imprisonment.

[998] One response to this challenge is Drucilla Cornell’s call that definitions of the concept ‘woman’ require feminism to take seriously issues of ‘ethics’ and define what we mean by the ‘feminine’. In the context of the discussion on minority women this raises particular problems: how do we define the ‘ethical’ and ‘feminine’ in the face of deep differences between women? Cornell (1995).

[999] On the analytic shift towards an engagement with the plural term masculinities see further Morgan (1992). The broader interrogation of the relationship between masculinities and law has been, regardless of the political orientation, methodology or underlying epistemological presuppositions of the work in question, a longstanding and significant presence within femi­nist legal studies.

[1000] Thornton (2004), p 10.

[1001] Graycar and Morgan (1990).

[1002] Compare in the field of criminology the argument of Newburn and Stanko (1994).

[1003] Family law is, of course, a conceptually unclear, ambiguous and profoundly contested sub-field of legal study: see further, and generally, Diduck (2003; 2001); O’Donovan (1993; 1986).

[1004] Thornton (2004).

[1005] See, for example, the debates between: Bottomley (2004); Naffine (2004; 2002); and Barron (2000); Goodrich (2001). Note, generally, the arguments of Drakopoulou (2000); Conaghan (2000); Sandland (1998a; 1998b; 1995). An excellent account of the relationship between men and legal feminism can be found in Halewood (1995).

[1006] The broader sociological study of masculinities within the academy has itself largely, although by no means exclusively, emerged as part of an attempt to develop a self-identified ‘pro­feminist’ politics.

[1007] See, for example, in addition to the works cited above, n 7, Smart (1989); Lacey (1998).

[1008] This approach is, I recognise, problematic, not least in the way in which it tends to categorise together a vast body of work and assume a linear narrative underscoring what is, in fact, a far more complex history. Equally, it is important not to assume a conceptual ‘clean break’ with earlier (pre-feminist) sociogenic sex role accounts of masculinity: see further Carrigan et al (1985). Contrast, generally, the approach of Naffine (1990), ch 1.

[1009] Naffine (1990), pp 3-6.

[1010] Brittan (1989), p 4.

[1011] An excellent account of which can be found in Thornton (1996).

[1012] See, for example, Bell (1995).

[1013] This idea has itself been a recurring issue within legal feminism and links to a theme within the critical study of masculinity concerning the tendency for men to claim reason as taken-for – granted, a positionality regarded as finalauthority and arbiter of social Truth: see, for example, Seidler (1989).

[1014] See Thornton (1998).

[1015] Fineman (1995).

[1016] Harding (1987; 1986).

[1017] Atkins and Hoggett (1984). Note also Sachs and Wilson (1978).

[1018] See, for example, West (1988).

[1019] Itself a central theme in feminist scholarship: note, for example, although from a different perspective, the argument of O’Donovan, (1985); cf Rose (1987).

[1020] MacKinnon (1983), p 644; also MacKinnon (1987).

[1021] MacKinnon (1983), p 658.

[1022] Naffine (1990).

[1023] Jackson (1993), p 211.

[1024] On which see, more generally, Segal (1994), p 46.

27 Thornton (2004), p 12.

28 Smart (1989). Contrast Sandland (1995), p 3.

29 Smart (1984); also O’Donovan (1985).

30 Smart (1984), p 17, my emphasis.

31 Brophy and Smart (1985).

32 Smart and Brophy (1985), p 17, my emphasis.

33 Smart (1989), p 86, my emphasis.

[1026] Smart (1989), pp 86-7, my emphasis.

[1027] Note, for example, the depiction of the ‘phallogocentrism’ of legal discourse as the fusing of a masculine, heterosexual imperative and the fixing of sign/signifier within a patriarchal structure of power/knowledge relation (Smart (1989), p 86); also ‘the needs of the masculine imperative which receive a cultural response’ (O’Donovan (1993), p 5).

[1028] Contrast Smart (1992).

[1029] Thornton (2004), p 15. See further Middleton (1992), p 159.

[1030] Thornton (2004), p 12; see also Thornton (1989).

[1031] Collier (1995).

[1032] As simply an illustration of this body of work note, for example, Bibbings (2000); Berger et al

(1995); Carver (1996); Collier (2000); Liddle (1996); Naffine (1994); Thomas (1995); Heins (1995); Williams (1995). On law, crime and criminal justice see Newburn and Stanko (1994); Goodey (1997); Jefferson and Carlen (1996); Collier (1998); Groombridge (1998).

[1033] As earlier examples of this kind of study note, for example, O’Donovan (1993), ch 5; Moran (1990); Collier (1992).

[1034] See Hyde (1997). Contrast Bridgeman and Millns (1995).

[1035] Hyde (1997), p 172.

[1036] In addition to work cited above, see also Waldby (1995).

[1037] Naffine (1994).

[1038] Sheldon (1999); also (2001).

[1039] Bibbings (2000).

[1040] Collier (2002b; 2001; 2000; 1999a; 1999b). See also Coltrane (1996).

[1041] Morgan (1999), p 13. Also Morgan (1996).

[1042] See further Brittan (1989), pp 25-36; Hearn (1987), pp 16-31; Connell (1987), pp 183-6; Carrigan et al (1985), p 598. Compare Clare (2000); Faludi (1999).

[1043] See further Beck and Beck-Gernsheim (1995); Giddens (1992).

[1044] Collier (1999a).

[1045] See further Smart (1999); Smart and Neale (1999a; 1999b).

[1046] Diduck (1995); Wallbank (1997).

[1047] See Smart, Chapter 7, and Kaganas, Chapter 8, both in this volume. On the ‘zero-sum’ conception of power implicit in such a view see Collier (1999b).

[1048] See, for example, Brown and Day Sclater (1999); Day Sclater (1999a; 1999b); Day Sclater and

Yates (1999).

[1049] Day Sclater (1999a); Arendell (1995).

[1050] Compare Dewar (1998), who suggests that the concerns about justice expressed by fathers’ rights groups appear to be shared by many who have expressed a growing dissatisfaction with the perceived limits of a broad discretionary system in the family law field.

[1051] An appeal to a normative familial masculinity has been directly linked to a defence of a ‘trad­itional’ (heterosexual) family; a family premised on broadly clear-cut sexual divisions of labour and male economic authority: see below.

[1052] Kaye and Tolmie (1998a; 1998b); Collier (1996); Arditti and Allen (1993); Berotia and Drakich (1993); Berotia (1998); Smart, Chapter 7, and Kaganas, Chapter 8, both in this volume.

[1053] Boyd (2003); Boyd and Young (2002); Graycar (2000).

[1054] See further Whitehead (2002), pp 84-99, 103.

[1055] Connell (1987; 1995; 2000). See further Whitehead (1999); Hall (2002).

[1056] Walklate (1995), p 180.

[1057] Collier (1995).

[1058] Walklate (1995), p 181.

[1059] See Wetherell and Edley (1999).

[1060] As above, for example, in relation to accounts of post-divorce family life; also, on interventions aimed at addressing men’s violence in families, see Gadd (2000; 2002).

[1061] Adams (1996).

[1062] Compare Pease (2000); Jefferson (1994).

[1063] Contrast Butler (1993; 1990).

[1064] Thornton (2004), p 10.

[1065] See Frosh (1997; 1994).

[1066] Connell (1995), pp 50-1.

[1067] Hood-Williams (2001), p 37.

[1068] Middleton (1992), p 152.

[1069] Note the argument of Hearn (1996), p 203.

[1070] Middleton (1992), p 142.

[1071] Ibid.

[1072] Collier (1998).

[1073] Hearn (1996), p 202; contrast Connell (2002).

[1074] It is possible, Hearn suggests, that masculinity might in many respects be ‘an ethnocentric or even a Eurocentric notion’, a product of a particular historical moment which is, in some cultural contexts at least, at best ‘irrelevant or misleading’ (1996, p 209).

[1075] Brown (1990), p 48. It is important to consider in this regard the diversity and conceptual ambiguity of ‘family law’ as a field of study.

[1076] Ibid.

[1077] Does an account such as this suggest, for example, a return to the (inevitability) of establishing some kind of normative foundation of the human subject?

[1078] See McMahon (1999).

[1079] McMahon (1993), p 689.

[1080] Thornton (2004).

[1081] See Messner (1997).

[1082] Thornton (2004), p 22, my emphasis, following Drakopoulou (2000).

[1083] Thornton (2004), p 21.

[1084] Contrast Hillyard and Sim (1997).

[1085] The wider literature on this subject is itself now voluminous. See, for example, Brooks and Mackinnon (2001); Currie and Newson (1998); Slaughter and Leslie (1997); Currie et al (2002); Thornton (2001). See also Collier (2002a).

[1086] Thornton (2004), p 9.

[1087] Ibid.

[1088] Ibid.

[1089] Whitehead (2002).

[1090] See, for example, Daly (1997).

[1091] Edwards (1994).

[1092] Thornton (2004), p 1.

[1093] Whitehead (2002).

[1094] MacInnes (1998).

[1095] Connell (1998).

[1096] Note, for example, the arguments of Boyd (2003; 2001; 1991); Rhoades and Boyd (2004); Kaganas (1999); Kaganas and Day Sclater (2004); Fineman (1995; 1991).

[1097] Thornton (2004), p 22, original emphasis.

[1098] McMahon (1993), p 689; see also Duncombe and Marsden (1999).

Practice, politics and the limits of masculinity

The above concerns point to the conceptual limits of masculinity in relation to family law. I wish to draw this discussion to a close by considering an issue central to feminist legal scholarship – the way in which such analytical imprecision[1074] renders the concept potentially fraught with political dangers for feminism at the present moment.

The project of ‘revealing’ the presence of the hegemonic masculine in law – the common tactic, I have suggested, within much critical work in the field of family law to date – rests on a number of assumptions. There is a tendency here for social theory and the practices, texts and institutions of law to appear linked in what is, in effect, a systematic unity of shared assumptions, each embodiments of ‘the masculinity of law’. Depicting law as contingently, essentially or otherwise irredeemably masculine in nature, however, fails to address ‘the theories or institu­tions [of law] as such. .. the significance of… statements within their specific discursive contexts’.[1075] The depiction of law as masculine or masculinist can con­flate, by reference to preconstituted definitions of ideological or cultural meanings of masculinity, certain culturally specific beliefs about practices, identities, value systems and so forth.[1076] And such a model of analysis – ironically, given its pro­gressive political intent – can also be seen to result in a systematic depoliticisation of issues of power and material interest.

Why is this so? We return to a familiar question – what is left after the ‘decon­structive moment’?[1077] There is a level of abstraction involved in the above kind of engagements with masculinity which can easily slide into something else – an effacing of broader questions about the development of a political, economic and materialist analysis of gendered labour.[1078] Far from focusing attention on men’s practices – what men do – the focus of analysis has all too often been the gender category masculinity. What is left open to question in such a line of thinking is the extent to which men’s gender then itself appears as ‘a reification. . . of men’s practices (and, of course, the practices of women that support them) … [a] reifi­cation [which] is then employed to explain these same practices’.[1079] What fades from view, that is, are questions about social power – the very issues raised by the feminist scholarship during the 1970s and 1980s in the first place. It is this issue which, at the present moment, would then appear to have far-reaching implica­tions for feminist legal scholarship in the context of a politico-economic episteme framed, not just by neo-liberalism and post-modernism, as Margaret Thornton has recently indicated,[1080] but also by a general acceptance and embrace of formal gender neutrality across many areas of law. It is this latter point which, I would suggest, further calls into question the use of masculinity within feminist legal studies in family law at the present moment.

The political limitations of masculinity for feminism are not simply a matter of the way in which the open-ended nature of the term means it can be (and has been) deployed as much by explicitly anti-feminist social movements[1081] (notably when allied to the idea of masculine crisis, as above) as it has by feminists and pro-feminist men. It relates, rather, to the way in which a public debate on masculinities has, across a diverse range of cultural artefacts, rested upon what is in effect an individualising of a politics of gender. Instead of questioning whether men should change their behaviour, or else looking to broader questions about materialist analyses of labour and political economy, a debate has effectively been con­structed around ideas of men ‘wrestling with the meaning of masculinity’. Such a political and cultural project itself in many respects appears disconnected from any appreciation of the many insights of feminist scholarship around the gendered nature and material realities of issues around care and caring.

(Re)conceptualising the male subject in family law

Recent empirical and theoretical scholarship concerned with exploring the gen­dered discourses of family law has sought, in a number of ways, to explore the masculine subjects of family law. Whether it be in relation to studies of divorce law and practice, contact law reform, marriage, parenthood or men’s relation to employment, for example, it is possible to see in family law the concept of mascu­linity being deployed in a number of ways.[1048] There has occurred a questioning of the way in which ideas about masculinity have mediated men’s and women’s experiences of the family justice process, with research speaking of the emergence of a distinctive ‘masculinised discourse’ of divorce; of men adopting ‘masculine’ subject positions within the processes of separation;[1049] of ideas of a normative masculinity correlating, broadly, with the tendency of men to relate to, and appeal in their engagement with the legal process in terms of, a rights-based framework.[1050] Elsewhere, a sense of challenged masculinity has been evoked in such a way as to link aspects of male identity either to an embrace of or (more frequently) resist­ance to changes seen as taking place in the (nuclear) family unit.[1051] The latter theme has been particularly evident in recent studies of fathers’ rights groups and, more generally, in work focused on the interventions of the men’s movement in the field

of family law.[1052] Far from seeing women as the real or potential victims of family law reform and/or practice – a position which has, arguably, informed debates about family law at various points in the past – a powerful discourse has emerged which suggests that a range of ostensibly liberalising reforms may have, in fact, rendered men the real ‘losers’ in the field of family justice. It is against this back­ground that feminist scholars have suggested that what is in fact taking place in this area is, internationally, something akin to, if not a ‘backlash project’, then a resistance to ‘feminist inspired’ legal and social changes; a development which reflects the disproportionate influence of fathers’ rights groups in managing to set reform agendas in the field of family law.[1053]

In much of the textual-based study of law discussed above, however, it is pos­sible to identify a rather different object of analysis; it is in relation to these kinds of study that, I would suggest, the problems with masculinity can appear particularly marked. It has been a recurring theme within the study of masculinity in legal studies that law has been involved in the reproduction and/or embodiment of a form of ‘hegemonic masculinity’. This is an idea closely associated with the structured model of gender power[1054] developed in the work of RW Connell.[1055] Repeatedly, this hegemonic masculinity has appeared as something which is to be unpacked, deconstructed or uncovered in law. Certainly, such work engages with the contested nature of law, the ever-present possibility of resistance, in ways that are in keeping with themes developed in feminist legal scholarship during the 1980s around the ‘open-ended’ nature of law. However, it does leave certain questions unanswered. It is unclear, in particular, how the model of hegemonic masculinity seen to be embodied in law relates to the actual lives and gendered practices of men and women. Thus, whilst textual readings can provide a wealth of information about how law constructs, sees or produces particular ideas about men and gender in the context of family law (although see further below), what we do not find is any account of how this relates to what individuals do. Why, for example, should it be the case that, whilst some men might ‘turn to’ or invest in particular (hegemonic) masculine subject positions (let us say, within a post­divorce separation context), others do not? Men encounter a diverse range of circumstances which frame their individual experiences of ‘family life’. If it is to be argued that a distinctive kind of familial masculinity is ‘offered up’ for all men within a particular socio-cultural, structural location, why do individual men choose one, and not another, masculine identity? (And who, in any case, is doing this ‘offering up’?)[1056] There is clear evidence that men might identify with a diverse range of resources to ‘accomplish’ their masculinity in this sense. This does not, in itself, argue against the proposition that men are ‘doing’ hegemonic masculinity in the process of ‘doing’ family practices. However, it remains unclear how questions of individual life-history and biography impact on any such choice. How adequate, in short, is this kind of theorisation in seeking to account for the subjectivity of individual men? And what is the process by which these distinctive ‘masculinities’ are then constituted?

In this kind of deployment of a normative hegemonic masculine subject within critical scholarship, there does appear to be a certain rigidity in terms of how men are understood to be accomplishing or aspiring to the attributes of a dominant form of masculinity. Indeed, a model of gendered power would appear to hold in place a normative masculine gender as the object of (feminist) critique; one to which is then assigned a range of (broadly undesirable/negative) characteristics. Yet, at the same time, it appears to impose ‘an a priori theoretical/conceptual frame on the psychological complexity of men’s behaviour’.[1057] What this means is that masculinity can all too easily appear, at once, as both a primary and under­lying cause (or source) of a range of social effects (of what men do); and, simul­taneously, as something which results from certain social actions. This is, at the very least, a tautologous proposition.[1058] There is a sense in which social structure would appear to constrain men’s practice. Yet a vast body of empirical, historical and autobiographical research on men suggests that there can be a richness, tex­ture and subtlety to the ‘gendered lives’ of men, which this kind of deployment of hegemonic masculinity – and the associated (selective) focus on what are seen to be the negative connotations of the hegemonic masculine – cannot by itself account for.[1059]

Underscoring these problems is another issue: how the masculine social subject has itself been theorised. There has emerged in recent years, within the sociology of masculinity, an attempt to build on the above critique of the structured action model and to seek, in contrast, to take the psychic dimensions of (masculine) subjectivity seriously. This is a perspective which has begun to inform studies of family law and practice in a number of ways.[1060] It is not possible to do justice here to the complexity of the substantive analyses which have been produced in this area; nor the complex groundings of strands of this work within contemporary psychoanalysis.[1061] It is, however, possible to trace elements of this development in terms of what it might have to say about developing understandings of the male subject in family law.

This psycho-social perspective, as it has been termed, tends to draw on the concept of discourse[1062] rather than that of social structure. It has evolved, as it were, from the ‘third stage’ thinking as outlined above. In one strand of this work, what is placed centre stage is an attempt to engage with the presentational forms of masculine performances, identities, corporeal enactments and so forth.[1063] In rejecting, in suitably post-modern fashion, the idea of a unitary rational male subject, the aim has been, rather, to develop a social understanding of the mascu­line psyche; one which might, it is argued, shed light on men’s behaviour across diverse areas of law and legal practice. Allied to the insights of queer theory (a body of work, arguably, strangely absent within the field of family law), the masculine subject has appeared as a ‘performative construction’ naturalised through repetition; contingent, unstable, nothing more (or less) than (at most) a temporary association with a particular desire and/or social identity; a manifest­ation of a gendered self conceptualised in terms of a series of constantly shifting practices and techniques.

This approach does offer up a way of prising open the possibility of making sense of the contradictions and difficulties that particular men may experience in becoming masculine. For example, by seeking to integrate questions of individual biography and life history, it is argued that a handle is given on the important question, noted above, of why some men do, and others do not, invest or engage in certain kinds of behaviour or subject positions. Importantly for feminist legal studies, questions of social power do remain. However, the focus of analysis shifts to how a (non-unitary) ‘inherently contradictory’ social subject comes to invest, whether consciously or unconsciously, in what are then seen at particular historical moments as socially empowering discourses around masculinity.

This approach has a rich potential for feminist scholarship in the field of family law, as has been evident in relation to studies of the fluid, evolutionary nature of post-divorce family life. It offers a great advance politically on the (always, already) empowered subject implicit within both the structured model of gender power, as above, as well as strands of feminist and pro-feminist thought. It would also appear to reject any ‘reductive view of men as oppressors.. . [one] that [has] not endeared feminism to those men who might otherwise have been sympa – thetic’.[1064] However, criticisms can also be made of this approach. Leaving aside the issue of whether the more explicitly psychoanalytically informed strand of this recent work on masculinity might itself be premised on an unduly mechanistic model of personality formation, an argument remains: although what we have here can offer a rich story for describing the effects of discourses of masculinity within particular contexts relating to families, they remain, at the end of the day, just that – stories. It is difficult to see how readings produced about the ‘taking up’ of a masculine subjectivity can ever be tested or proven in any meaningful way.[1065] It is also unclear whether we are reduced, ultimately, to an ‘all is discourse’ position, an issue which links to the broader critique of post-modernism within and beyond feminist scholarship. In disavowing any outer reality, is one left with a wholly semiotic account in which, as Connell himself observes, ‘with so much emphasis on the signifier, the signified tends to vanish?’[1066] As John Hood-Williams has noted,[1067] is it not difficult to maintain that there are many ‘discourses of subjectivication’ whereby masculine identities become attached to individuals and, at the same time, maintain (as some do) that the claims this approach is making are grounded in real, historically specific and irreducible psychological processes?

What, ultimately, is meant by the term masculinity in this context? ‘Is it a discourse, a power structure, a psychic economy, a history, an ideology, an identity, a behaviour, a value system, an aesthetic even?’ Or is it ‘all these and also their mutual separation, the magnetic force of repulsion which keeps them apart… a centrifugal dispersal of what are maintained as discrete fields of psychic and social structure’?[1068] Masculinity has encompassed within feminist legal studies such diverse attributes as the psychological characteristics of men, a range of gendered (as masculine) experiences and identities, psychoanalytic readings of social prac­tices (as above), as well as analyses of men’s gendered behaviour within specific institutional settings.[1069] To speak legitimately in this work of a ‘discourse of mascu­linity’, however, entails showing that ‘a particular set of usages was located struc­turally within a clearly defined institution with its own methods, objects and practices’.[1070] It is possible one could argue this in relation to law, although the heterogeneity and diversity of the issues discussed above would suggest otherwise. Yet if that is the case, references to ‘discourses of masculinity’ are themselves simply references to ‘repeated patterns of linguistic usage’.[1071] Whilst masculinity may be produced within some discourses, most examples ‘of “masculine” utter­ances’ are not necessarily discourses. At the very least, I have argued elsewhere,[1072] masculinity is not a fixed, homogenous or unchanging concept; it encompasses a complex range of ideas and debates about the connections between a multiplicity of parallel worlds: of, for example, workplace, family, friendships, body regimes, sexual practices and relationships.[1073]

‘Deflecting the gaze?’ Textual analysis and the critical study of the ‘family man’ in law

Deflection of the objectifying gaze from women and Indigenous people to bench­mark masculinity and heterosexuality, as well as ‘whiteness’, represents an attempt to disrupt the conventional orderings of modernity within legal texts.[1029]

It was in an attempt to explore the above concerns that a range of studies developed in family law during the 1990s concerned explicitly with addressing issues around men and masculinities. In turning attention to men, and ‘in a dis­cursive attempt to stop the depiction of women as “the problem” ’,[1030] this work sought to engage, in particular, with the ‘social construction’ of the ‘man’, ‘men’ or ‘masculinities’ within, or of, legal discourse. My own book, Masculinity, Law and the Family,[1031] published in 1995, illustrates aspects of this approach in its attempt to unearth or reveal the ‘hidden’ masculinities of law, the assumptions about men contained within a range of family law texts and practices. At the same time, and across diverse areas of legal study,[1032] a growing feminist and pro-feminist literature has sought to unpack the diverse ways in which ideas about men as gendered subjects have been constructed or depicted at particular historical moments in laws relating to the family.[1033] This work has involved the analysis of cases, statutes, legal utterances and cultural representations of law; what has emerged is what has since become a complex, rich picture of what might be termed ‘the (family) man of law’.

This masculine subject in family law has been seen, in a number of respects, as a distinctively ‘embodied’ being.[1034] Thus, in relation to laws around marriage and divorce, for example, it has been argued that whilst the penis frequently appears within law as somehow subject to a man’s rational thought and control, the vagina, in contrast, has been presented as a space, as an always-searchable absence.[1035] Related assumptions have been noted around the idea of there being a natural (hetero)sexual ‘fit’ between the bodies of women and men, with notions of male (hetero)sexual activity and female passivity informing the legal determin­ation, historically, of what does, and does not, constitute a valid marriage[1036] (as well as, indeed, a legally valid exit from any such marriage). In accounts of how paid employment can inform ideas of men as ‘respectable’ (and socially safe) familial subjects, meanwhile, an ideal of the liberal rational individual had been deployed in such a way as to depict a sexed, autonomous masculine subject as, in marked contrast to women, a peculiarly disembodied being; a figure bounded, constituted as male, in ways ever dependent on a separation from other men and, crucially, on a hierarchical difference from women.[1037] Such dissociation appears particularly marked, it is argued, in relation to ideas of care, caring and vulnerability commonly associated with the private sphere and ‘family life’.

In keeping with the broader corporeal turn in legal scholarship during the 1990s, later work on masculinities has noted the way in which, whilst women’s bodies in law often appeared as incomprehensible, fluid, unbounded, defined by ‘openings and absences’, the bodies of men, Sheldon suggests, all too often appear to be marked by ideas of bodily absence and physical disengagement rather than any sense of presence.[1038] For Sheldon, men’s ‘safe’, stable and bounded bodies signify a somewhat tangential and contingent relation to gestation, fertility and reproduction in families; one which, certainly, stands in marked contrast to women. In the work of Bibbings, similarly, although working more in the field of criminal law, the bodies of men are positioned in particular ways in relation to ideas about masculinity, not least a cultural condoning of intra-male violence.[1039] In my own work,[1040] men’s subjectivity has appeared, across a number of contexts, as related to historically specific ideas about heterosexuality, parenthood and ‘family practices’;[1041] and, once again, on some (in fact questionable) assumptions about the nature of men’s physical and emotional relationship to children, child care and ideas of dependency.

The engagement with masculinity in feminist and pro-feminist scholarship in family law cannot be confined to such analyses of legal texts. There has also occurred a broader political and cultural debate focused around the notion of ‘masculine crisis’ or ‘crisis of masculinity’,[1042] which has itself informed a range of issues concerning policy and practice relating to law and the family. Across diverse cultural artefacts, recurring concerns and anxieties around the meaning of social, economic, cultural and political change have served to redraw the param­eters of what is deemed to constitute a normal/normative (hetero)sexual family; in so doing, struggles around what has (or has not) been happening to men and ‘their’ masculinity/ies is an issue which has assumed an emblematic status, a powerful, symbolic significance – a cipher for broader transitions and tensions around shifting relations between men and women (as well as, importantly,

children).[1043]

This latter development has a number of dimensions. In some contexts, for example at the interface of family and employment law, there has emerged an agenda concerned with promoting (gender) equity by, explicitly, challenging ideas of masculinity which, it is argued, have become increasingly anachronistic. The aim here has been to engage with law reform in such a way as to encourage and/or reinforce certain kinds of behaviour on the part of men.[1044] Thus, whether it be in relation to securing a satisfactory balance between the commitments of ‘work and home’, in the promotion of ‘good enough’ post-divorce/separation parenting on the part of men[1045] or in securing the provision of child support,[1046] we find a concern with changing men’s practices and attitudes bound up within this debate about what is happening to contemporary masculinity. In other contexts, however, such questions of gender equity, law and law reform have been placed centre stage in some rather different – and far more contentious – ways. Nowhere, perhaps, have these issues and concerns been clearer – or more publicly and politically visible – than in relation to what has become, internationally, an increasingly high-profile debate about the gender politics of family law reform; a debate in which, it has been suggested – significantly for feminist legal studies – it is, in relation to the area of contract law in particular, men, and not women, who have now become the ‘new victims’ of family law.[1047]

Where does my argument thus far leave us? Masculinity, I have suggested, has been deployed in a number of different ways within feminist legal scholarship at different historical moments. If there has been no one model of masculinity in this work, however, it is possible to identify the contours of a distinctive masculine subject of family law which has emerged within feminist and pro-feminist legal studies: a man or male figure who has embodied a certain kind of masculinity. At the same time, we have seen, masculinity has been politicised more generally, an issue which has had far-reaching implications for questions of policy and reform across diverse areas of law relating to the family.

In the remainder of this chapter, I do not wish, in any way, to downplay the insights and value of the work undertaken to date in family law on the subject of men and masculinity. In suggesting that this work can itself be seen as the product of a particular cultural and political moment – a distinctive ‘episteme’ of feminist legal theory – I do, however, wish to unpack a number of unanswered questions in this area; questions which, in a context of formal equality and the rise of the ‘male victimhood’ referred to above, lead one to believe that masculinity may well have become an increasingly double-edged concept for feminist legal studies developing a critique of the gendered politics of family law. Why is this so?

Towards the ‘post-modern frame’: Discourse, text and the ‘man of (family) law’

By the mid/late 1980s, in work which, by 1990, Naffine felt able to describe as itself constituting a ‘third phase’ of feminist scholarship,[1022] a far-reaching critique had taken place of the limits of each of the above two approaches. Yet, once again, a conceptualisation of masculinity appeared central to how the relationship between law, the family and the power of men was understood within feminist legal scholarship. A key criticism of the second phase work, as above, had been that it ascribed to the category ‘woman’ an essentialist ontological status; in so doing, it negated the discursive construction of the (feminist) subject ‘Woman’, the diverse positionality within/between women’s lives. It was also recognised, however, that much of the earlier feminist work had itself often tended to conceive of men as, in some way, a homogenous group, and law then as the (unproblem­atic) embodiment of the social power of men. Seen by those writers increasingly informed by post-modernism and post-structuralism as an approach which was, ultimately, as androcentric as the theories it purportedly sought to supersede, singled out for particular criticism was an underlying essentialism (something which resulted in ‘a paradoxical mix of debilitating pessimism and unfathomable optimism’);[1023] and, related to this, an embrace of an apparently all-encompassing notion of the ‘masculinity of law’ (and, with it, of male (hetero)sexuality),[1024] which served, it was suggested, to efface the complexity and diversity in the lives both of men and women.

It is not difficult to see, in retrospect, why a transition should have taken place within feminist work at this time, and, in turn, why feminists and pro-feminist scholars should have sought to turn ‘their attention to men and masculinity in a discursive attempt to stop the depiction of women as “the problem”, as well as to resist the on-going objectification of women’.27 The shift is perhaps encapsulated in the work of the British scholar Carol Smart, whose 1989 book Feminism and the Power of Law28 illustrates themes subsequently taken up in the study of masculinity and family law during the 1990s. Within her earlier work in family law, such as The Ties that Bind: Law, Marriage and the Reproduction of Patri­archal Relations (1984),29 Smart had sought to question whether there might be a distinction between what she termed ‘legal regulation’ and ‘male control’; whether the fact particular legal agents may be understood as ‘subscribing to sexist atti­tudes to protect their material interests’ necessarily rendered law itself, as a whole, ‘sexist or somehow masculine in nature’.30 Such questions had similarly informed the 1985 text Women in Law: Explorations in Law, Family and Sexuality, co-edited by Julia Brophy and Carol Smart,31 in which it was argued that law

is not in fact a unity, organised with the specific purpose of oppressing women, although clearly this is how it may be experienced. . . the law [is not] … a homo­genous unit with a unitary purpose. It is possible to find contractions both in law and legal practice, and between legal agents, which cast doubt upon the existence of a male, legal conspiracy.[1025]

Building on a growing concern in feminist work to address the nature of the gendered subject in family law, and drawing on the broadly Foucauldian under­standing of the relation between law and power which was developing within (as well as, of course, beyond) feminist scholarship at the time, Smart’s analysis in 1989 begins, in contrast, with a belief that although law may be ‘constituted as masculine on both empirical and cultural grounds’ (that, at the very least, ‘doing law’ and being identified as ‘masculine’ can be congruous), this is not because of any straightforward biological imperative. Rather, what is at issue are the ‘signifi­cant overlaps’ or ‘mutual resonances’ between how ‘both law and masculinity are constituted in discourse’.33 Thus:

Law is not rational because men are rational. . . law is constituted as rational as are men, and men as the subjects of a discourse of masculinity come to experience themselves as rational – hence suited to a career in law. In attempting to transform law, feminists are not simply challenging legal discourse but also naturalistic assumptions about masculinity.[1026]

This argument continues to fuse a challenge to dominant notions of masculinity with a feminist critique of law. It is, after all, ‘assumptions’ about masculinity which are to be challenged and questioned as part of developing a feminist politics of law.[1027] Yet what is significant here is the notion of men ‘as the subjects of a discourse of masculinity’: a theme which opens out to analysis of the plurality and contingency of those discourses which speak not only of ‘Woman’/‘women’, but also of ‘men and masculinity’ across diverse institutional and cultural contexts. There is (albeit implicitly) an acceptance that all men do not have equal access to cultural, symbolic or economic capital; that there might, at the very least, be a need to engage with the plural (discursively encoded as) ‘familial’ masculinities. In turn­ing critical attention to the construction of the Woman of legal (and, indeed, of feminist) discourse,[1028] what was (inescapably) brought into the critical frame is the nature of the ‘Man’ of law – and, one might add, the ‘man’ of legal feminism itself.

Institutions, practices and the (hidden) gender of family law

Within what has been termed ‘first phase’ liberal-progressivist feminist scholar – ship,[1009] through to the work of those writers who later sought to engage with what was seen as the inherent ‘maleness’ of patriarchal legal systems, methods and reasoning (below), the concept of masculinity has been linked in diverse ways to ideas about law and the power of men. Masculinity has been deployed extensively in studies of institutions and practices relating to aspects of law and legal regula­tion concerning families; in accounts, for example, of the work of solicitors, bar­risters and judges; the administration of criminal and civil justice; and in studies of legal education, the law school and the legal curricula. Within earlier feminist work, the presence of the distinctive masculine culture (or cultures) of law was singled out as particularly problematic for women, a hetero-normative definition of family life historically enmeshed with a range of gendered, sexualised, sexist beliefs. This ‘masculinism’[1010] of legal institutions and practices was identified in such phenomena as the sexualisation (the rendered ‘Other’) of women’s bodies; in the denial of women’s corporeality;[1011] in the prevalence of homosocial and homo­phobic behaviour;[1012] and, encapsulating each of the above, in what has been seen as a persistent benchmarking and assessment of women against a normative, ideal ‘benchmark’ figure[1013] – an individual understood (somewhat paradoxically) to be both gendered (male/masculine: authoritative, rational, competent, unemotional and so on);[1014] and, equally, gender neutral, in particular with regard to those commitments and ‘inevitable dependencies’ seen as relating to the private familial domain.[1015]

Within much of this work, and perhaps in particular in studies framed by what Harding[1016] has termed a form of feminist empiricism, the maleness, masculinity or masculinism of law was seen as in some way distorting the gaze of an otherwise neutral observer. Thus, in accounts of family law and practice during the 1970s and 1980s, we find an identification of the ‘sexism’ of family law enmeshed with the critique of the benchmark ‘man of law’: a gendered subject(ivity) who embodied, it was suggested, a particular kind of masculinity. Discussions of equality of opportunity, motherhood, marriage, violence and ‘breadwinners and homemakers’ in Atkins and Hoggett’s influential 1984 text Women and the Law perhaps illustrate this kind of approach.[1017] If such work tended to engage with studies of case law, statute and the gendered cultures of legal practice, however, a body of feminist jurisprudential thought was seeking to develop a rather different critique of the masculine nature of law: one based, in contrast, on a critique of the masculine nature of legal methods and legal reasoning itself.

Within later standpoint (or ‘second phase’) feminist scholarship, there occurred a shift in how men, masculinity and the power of law are conceptualised. Drawing on a forceful critique of the earlier liberal-progressivist position, classic tenets of liberal legalism (for example, individualism, autonomy and so forth) were refig­ured as quintessentially ‘masculine’ values.[1018] Family law, not least in relation to a construction/reproduction of a public-private dualism,[1019] was seen as profoundly implicated in a historical effacing of the distinctive social experiences of women. In one strand of this work, in particular, a direct link is made between law’s status as an androcentric, positivist discipline and the masculine nature of law’s govern­ance, institutions and jurisprudence. Here, law, implicated with other phallo – centric, totalising and oppressive knowledge formations, did not just equate with the power of men; law could be seen, in some accounts at least, to constitute, in its purest form, that power. Oft quoted, but summarising neatly: ‘The state is male in the feminist sense. The law sees and treats women the way men see and treat women.’[1020] Family law’s purported neutrality would thus itself appear to be simply a mask for the ‘masculinity of its judgements’ .[1021]

Family, law and feminism: Putting masculinity on the agenda

The study of men and masculinities in the field of family law has occurred at a nexus of developments which, although linked, draw on distinct political and intellectual trajectories in terms of how the central relationship between law and the power of men has been conceptualised. A number of authors associated with the critical study or new sociology of men and masculinities have figured, with varying degrees of prominence, in this work. The most significant influence on the analysis of masculinity within family law has, however, undoubtedly been that of feminism.[1006] The very project of feminist legal studies is, of course, contentious, not least in terms of an epistemological foundation around the unified subject ‘Woman’.[1007] It is nonetheless, for heuristic purposes, possible to identify a number of distinctive ‘phases’ or approaches within feminist scholarship in family law, each of which have conceptualised men and masculinity in some very different ways.[1008]

Feminist Legal Studies and the Subject(s) of Men: Questions of Text, Terrain and Context in the Politics of Family Law and Gender

Richard Collier

Introduction

Within feminist legal scholarship in the field of family law, a critical engagement with the gender of men approached via recourse to the concept of masculinity/ies is a now well-established theme.[999] In recent years, in particular, it has become commonplace within literary and hermeneutic projects informed by the ‘post­modern frame’[1000] to find discussion of how law has been involved in the constructing, embodying or reproduction of various ideas about men, women and (hetero­normative) ‘family life’ approached via reference to the concept of masculinity. This work has sought to unpack, reveal or, more precisely, deconstruct the presence of the ‘hegemonic masculine’ in law (see below) as part of developing an under­standing of the hidden gender[1001] of (family) law. A recurring assumption in this work has been that there is a political, analytic and policy gain to be made for feminism by ‘taking masculinity seriously’.[1002] It is an assumption certain aspects of which I wish to question. What follows presents, in short, a re-reading of the male subject of feminist scholarship within the field of family law.[1003] I wish to explore the limitations, ambiguities and confusions which, I will suggest, have come to surround the concept in this area of legal study. I will argue that there are pressing reasons to reconsider what an engagement with masculinity – in particular one approached via the analysis of legal texts – can bring to feminist legal scholarship at the present political moment.

Family law, as a sub-field of legal studies, has in many respects been at the forefront of the study of masculinity within legal scholarship; it is family law, I will argue, which has come to exemplify and illustrate some of the conceptual and political limitations of masculinity for feminism more generally, resulting from a number of political and theoretical developments over the past decade. A rethinking of the male (gendered) subject in family law is a project linked to – indeed, I want to suggest, it is inseparable from – a growing debate taking place

about the future direction and politics of feminist scholarship within legal studies. It has been suggested that ‘feminist legal theorists are in disarray’;[1004] a situation engendered significantly (although by no means exclusively) by the twin impacts of neo-liberal market imperatives on the academy and the impact of post­modernism on feminist legal theory. This debate is embracing concerns about the relation between ‘high theory’ and (feminist) practice, questions of audience and accessibility; of the relationship of men to legal feminism;[1005] and, my concern here, about what it means to speak at the present moment, in the context of a growing debate centred around what has been termed the new ‘male victimhood’ in the field of family justice, of there being an interconnection between men, masculinity and family law.

Theorising difference: ‘From their own perspective…’

One alternative to traditional approaches in feminist theory is what we can loosely label post-modern feminist theory.[979] Post-modern feminism is especially useful in any attempts to accommodate the claims of minority women because it challenges assumptions about the definition and status of the subject ‘woman’, therefore providing room for alternative definitions and analysis. It also makes clear that definitions of identity – such as women, race or religion – are never merely descriptive; they are also normative categories that need to be challenged and reconstructed (‘resignified’ in Butler’s terms). In the present discussion about feminist theory, post-modern feminism’s insights into the way in which power (and politics) influences our choice of theory are particularly pertinent.[980] The methods and conclusion of post-modern feminism confirm the earlier criticism of ‘scientific feminism’ by acknowledging the uncertainty in basic categories such as ‘women’ and ‘their interests’ and ‘tradition’ and ‘culture’. In all these ways, post-modern feminism is invaluable to any attempt to analyse and accommodate the claims of minority women.

In the discussion that follows, many of the insights about theory are influenced by post-modern feminism. However, rather than explicitly making a choice between alternative ways of ‘doing’ feminist theory, I want to take a different approach. I do not want to set myself the impossible challenge of providing a conclusive answer on how we should theorise difference. Instead, I want to make a tentative gesture towards examining whether there are methods that can assist us in capturing the beliefs and experiences of minority women without distortion and misrepresentation. One way of making this issue more manageable is to reduce the methodological choices that we face to two contrasting models. Of course, such a reductive choice is vulnerable to the criticism that it is a caricature. At the same time, presenting the arguments in this way has a number of advan­tages. I hope that this contrast will make clear not only what, but more importantly just how much, is at stake in the initial choice of method. In addition, the reduction of complex positions to their simple end results will allow us to see that each of the models reflects ideas, presuppositions and debates which will be immediately familiar. The aim of this analysis, therefore, is neither to resolve the issue between post-modern feminism and its critics nor to provide one overarching theoretical approach. Rather, it is a more modest task of retrieval: what modifications do we need to make to the usual methods of feminist analysis so that we can better understand – and accommodate – minority women?

The first cluster of ideas, which I have loosely called ‘scientism’,[981] is similar in some respects to the ‘scientific feminism’ of approaches that have been criticised by Smart and Cornell. It has as its central presupposition the belief that the study of human practices can model themselves on the natural and physical sciences. It is partly summarised in the approach of certain writers such as AJ Ayer: ‘Just as I must define material things… in terms of their empirical manifestations, so I must define other people in terms of their empirical manifestations – that is, in terms of the behaviour of their bodies.’[982] There are a number of aspects of this approach which are important for an analysis of gender and minority women. The first is the belief that there must be a strict separation between fact and value: description of a social practice is one thing; its evaluation is something quite different. The second is the priority of the right over the good: the belief that human agency is about the capacity to create an identity through the exercise of radical choice, rather than about participating in any prior conception of the individual or com­mon good.[983] Third, the subject is abstracted from the context of decision making such as language, community and culture; identity tends to be interpreted as a ‘monological’ process. Thus, there is an atomistic treatment of human conduct: complex human actions are analysed in terms of their simple components. This ahistorical analysis emphasises the basic action as the proper temporal unit for the study.[984] The importance of the intentions, motivation and inner states of consciousness of the human agent is ignored, or at the very least marginalised.[985]

The techniques for analysis which this model advocates are description and observation. The theorist is encouraged to neutralise her own perspective and evaluative criteria before studying the subject matter. In this way, the subject matter is made more manageable: the focus is on qualities which are absolute and can be stated with precision; the theorist is necessarily forced to concentrate on the outward rather than inner dimensions of human conduct. A particular practice is described using accurate, certain and definite concepts, and in an all-or-nothing way. Finally, this positivist model is consistent with an understanding of language as an instrument for ‘designating’ existing subject matter and reality which exists ‘out there’.

I think it will be clear from the way in which I have presented the model that I do not consider it an attractive way to proceed, and nor do I find its assumptions concerning human agency convincing. Moreover, this method is inappropriate to address the central challenge of understanding minority women because it does not have the appropriate resources to allow description of, and qualitative distinctions relating to, inner states. These inner states – motivations, feelings and desires – cannot be stated with scientific accuracy or tested by the empirical tools of scientism.

Most importantly, this approach ignores the need for feminist theory to move beyond claims that it has access to one absolute truth and to accommodate the complexity of difference in the lives of women. Recognition of difference means that the focus of our enquiry – the lives and practices of women – is no longer homogenous or stable. Both Smart and Segal argue for a method that is willing to sacrifice some certainty and objectivity in favour of greater responsiveness to difference. Their approach comes closer to what I term a ‘human sciences’ approach that lies in contrast to the scientific feminism I described above. I do not want to undertake a point-by-point comparison of ‘scientific feminism’ and a ‘human sciences’ approach to feminism, but some contrast between the two is illuminating because it reveals the specific ways in which we need to modify feminist analysis to accommodate minority women in a way that takes experience and difference seriously.

The key distinction between the two models is that the human sciences approach takes as an essential principle the fact that human agency raises unique issues for method and analysis. This has a number of consequences for theory. First, this alternative approach challenges not only the validity but also the possi­bility of describing human conduct without first undertaking the difficult task of evaluation: that is, we cannot understand human action without first understand­ing the purpose pursuant to which that action was undertaken. Therefore, under­standing the point, value and significance of conduct as conceived by the people who performed those actions – and which are reflected in their discourse, actions, and institutions – is a key task for the theorist.[986] Second, any study of individual human conduct must also attend to the communal context of actions: for instance, language, community and culture, which mediates and is mediated by family, including affective ties and emotional, physical and economic hierarchies and dependencies. This means that individuals cannot be understood in an atomistic, all-or-nothing way; the exercise of freedom and choice by an individual must be understood in this wider context. Third, this different approach is less resistant to shifting the focus of analysis from the outward manifestation of human conduct towards inner states of consciousness. It is consistent with the view that an essential rather than contingent feature of human agency is that agents not only make choices about what they want, but also undertake a process of reflection about these choices, by ranking them against evaluative criteria. They undertake a process of self-interpretation to judge certain inner states as belonging to an integrated, and therefore more valuable, mode of life; and others as unworthy.[987] Purpose, intent, motivations and inner states necessarily require us to place these features within the context of the agent’s history, and social practices become intelligible only when understood as part of an ongoing tradition. The basic action gives way to a different temporal unit for analysing human conduct. Human action therefore needs to be analysed not as a static one-off event, but as part of a dynamic process. To paraphrase Alisdair Macintyre’s observations: human agency is ‘a quest – a narrative – a progression towards purpose and unity’.[988] Like post-modern feminism, this approach takes seriously the need to ‘situate’ women in a wider context for analysis.

These modifications will allow a greater focus on the purposes, intentions, motives of subjects. They will also take seriously the way in which historical and social contexts are important to the self-definition of women, their feelings and their choices. In this way, it is more likely that the experiences of minority women can be better articulated, understood and accommodated.

This alternative approach has important implications for our choice of method, concepts and language. Observation and description remain important devices, but the theorist has to start by undertaking the difficult task of identifying the good, point, value and significance which the subjects feel they are pursuing. Rather than mere description of outer action, this method gives a better under­standing of the subject from her own perspective. In this sense, it is an inter­subjective understanding rather than an objective description that is being forced from the outside.[989] However, this move from neutral universal description to inter-subjective understanding raises some intractable problems. How can an outsider to the tradition (race, culture or religion) accurately understand purpose and inner motivations? Are there any evaluative criteria by which we can judge these purposes and inner motivations as being better or worse; beneficial or harmful to women? There will be a wide variety of purposes and inner states of consciousness which will vary between minority women and within the indi­vidual lives of minority women. How can a method capture such unstable subject matter?

A non-distorted understanding of a tradition might come from women who are themselves able to recognise, appreciate and accurately describe the inner motivations of subjects, but at all times, analysis must align itself with the lived experiences of minority women, as they understand them. In a less formal sense, this idea is reflected in Iris Murdoch’s philosophical and fiction writing, which is a passionate call for our theorising to connect with essential features of our human experiences.[990] In the present context, paying attention to texts that have authority in the lives of minority women, and their own writing and literature, will be an essential task for any theorist who sets herself the task of making minority women’s inner lives more intelligible.

There remain more fundamental problems of ‘uncertainty’ which arise because attention to point, motivation and inner states of consciousness complicates the subject matter. These features vary between different persons and contexts; they can also vary considerably within the life of the same person over a period of time. Taking them into account makes the lives of women less amenable to study using descriptive and ‘all or nothing’ concepts. Conceptual devices such as the identification of the focal meaning or the ideal type of a traditional practice, which are then used as the basis for evaluation and analysing how and in what ways the current practice has become corrupted, become more useful.[991]

Other acute problems of uncertainty will arise in evaluating the lives of minority women. Recent post-modern scholarship tells us that this problem of ‘ethno – centrism’ arises whenever we seek to understand a tradition as outsiders by applying evaluative criteria which are external to that tradition. Feminist theory has taken both sets of issues seriously. Critics have argued that these approaches risk eliminating ‘normative philosophy’ from feminist theory. Benhabib, for example, argues that to move away from universal claims about the importance of equality as a universal value underpinning feminism is to throw away crucial foundations that are ‘the branch on which we sit’.[992] Butler replies that there is a need to challenge these foundations because power precedes theory, but argues that the resulting uncertainty need not collapse into nihilism.[993]

Their disagreement reflects the longstanding debate between post-modern feminism and its critics. Post-modern theory provides two interrelated ways of treating the problem of applying evaluative criteria by ‘outsiders’ to the prac­tices of ‘different insiders’. First, there are those – often relying on the work of Nietzsche and Foucault – who suggest that all criteria are ultimately a matter of ‘power’ and therefore refuse to use any standards for evaluation. Second, there are others who emphasise ‘diversity’ and suggest that the application of judgments is to do ‘violence’ – a term which Jacques Derrida uses – to the other, and shows a failure to respect the ‘difference’ of the other. In the present context of under­standing minority women, it is unlikely that refusal to apply evaluative criteria, for whatever reason, will be helpful. For minority women, especially for those who rely on traditional cultural and religious norms, it is of critical importance that they believe these norms to be objectively true criteria for making value judgments. Therefore, a proper understanding of these norms and their status in the life of minority women must take this fact seriously. In these circumstances, it is tempting to fall back on a descriptive method that is ‘neutral’ between truth claims. At least observation – and adopting a neutral ‘point from nowhere’ – has advantages because it allows us to bypass difficult questions of the choice of evaluative criteria. However, this model – as suggested above – is not ideal. The evaluation becomes obscure, but that does not mean that it is not operating.[994] In particular, this method will miss altogether purpose, motive, intention and sentiment, which are essential features for a non-distorted understanding of the other tradition. Therefore, a seemingly innocuous description results in distortion and misunderstanding.

This dilemma may be resolved – in part – by remaining committed to, rather than abandoning, the central requirements of the human sciences model. Hans Gadamer’s work reminds us that, in these contexts, we come to understand through an act of comparison which allows us to ‘place’ the different practice against a similar or analogous home practice. Attention to the purpose, intention and motivation which is necessary for us to make sense of our own practice also provides the basic modular frame within which the different practice is accom­modated and made more intelligible. Gadamer states: ‘Only the support of the familiar and common understanding makes possible the venture into the alien, the lifting out something out of the alien, and thus the broadening and enrichment of our own experience of the world.’[995]

The introduction of a method that makes comparison between the familiar ‘home’ understanding of a practice and the new ‘alien’ practice has a number of significant consequences for those involved in theorising difference. For observers, this requires moving beyond the dominant idea that ‘understanding’ is about reaching agreement on foundational arguments, which is an epistemology which is particularly attractive for scientific modes of thought. Once we start to move away from the assumptions of that model, we can start to see the way in which the idea of ‘understanding’ needs to be recast as a hermeneutic and relational process. On this analysis, the act of comparison of the practices and experiences of minority women with our home understanding carries within it the seeds of its own success.

Whereas previously the other practice may have been viewed as merely different, undertaking comparison in a self-conscious and formal context can be illuminat­ing; placing the different practice against an analogous ‘home’ practice which has point, value and significance within the life of the observer may allow a shift – albeit modest – in understanding.

The use of hermeneutic methods, in a comparative context of a theorist seeking to make the practice of minority women more intelligible, may also have some transformative potential in two important respects. First, most obviously, it can allow the ‘outsider’ theorist to gain a more accurate appreciation of the value of the practice and beliefs of minority women as they themselves experience them. Second, more subtly, it presents a formidable and intimate challenge to the theorist’s own perspective. This alternative approach uses a ‘home’ understanding rather than a neutral point from nowhere as the essential starting point for under­standing. It follows that success in this method will require the theorist to have a more accurate understanding of her own ‘home’ perspective: that is, she will need to review and re-examine her own commitments as a (possibly minority) feminist. Self-understanding and the ability to analyse these pre-existing commitments will be as important as objective observation and description. The theorist will need to remain open to the possibility of transformation: the study of minority women may lead to a change and shift in the fundamental criteria which are the starting point of her analysis.

There will also be important limits to this method. Most importantly, it could lead to the problem of the ‘hermeneutical circle’ into which all women cannot enter, because they are not able to share the ‘home’ understanding of the particu­lar theorist, and which cannot be broken because we have jettisoned the appeal to objective and neutral criteria. The method will work well in those cases where, despite difference, there remains a sufficient basis for some shared goals, attributes and experiences. It will not work as well where these criteria start to diverge significantly and it may fail altogether where there is a substantial chasm or binary opposition between the two world views: that of the theorist and that of the ‘different’ subject. Therefore, in some cases, the tradition or practice of minority women may be so alien and irrational that there is no possibility of any advance in understanding. One example of this may be the clash between a commitment to autonomy in the home understanding of the theorist and a minority woman’s insistence on adhering to a practice that causes her substantial harm. There are many practical examples of exactly these types of conflict: ranging from the extreme case of consent to female circumcision through to other examples such as voluntary veiling or gender segregation. In the family context, the Islamic and Jewish law practice of making a right to divorce conditional on the consent of the husband is an obvious example. When faced with these fact situations, the immediate response of the outside observer may be: ‘Why did she consent?’ In these cases, comparison between the theorist’s pre-existing commitments and values and the claims of minority women may not be illuminating. The ‘home’ understanding in these cases may be an absolute barrier to understanding. These practices will remain irrational and inexplicable to the theorist, as well as being accompanied by a judgment (using the home understanding as evaluative criteria) that they are wrong. Therefore, it could be argued that this approach will fail in exactly those situations where there is the most need to make the practices of minority women more intelligible.

This last problem sheds light on the limits inherent in attempts to move away from neutral objectivity as the preferred method for analysis. My argument suggests that the term ‘woman’ needs to be subjected to analysis to allow greater accommodation for minority women. The methods I advocate do not resolve all the issues, but they do provide one way of gaining a more accurate understanding of the claims of minority women from their own perspective. Further work needs to be done that allows us to delineate the issues with greater precision. Is differ­ence always relevant? If not, what are the circumstances in which we need to be specially vigilant about differences caused by race, culture and religion? We also need to ask ourselves about the status of traditional values in the lives of women and the limits of consent.[996] Is there a floor of individual rights which minority women cannot negotiate away?[997] Out of these enquiries we can start to develop a better theoretical understanding of the priorities – emotions, desires and choices – of minority women and whether, and if so how, feminist theory and family law can accommodate these aspects.

Feminism already contains considerable resources that allow us to develop an intelligent and sensitive response to many of these questions. For example, sophis­ticated concepts such as ‘autonomy’, ‘power’, ‘hierarchy’ and ‘false consciousness’ can be used, carefully, to analyse the position of minority women within their own communities. The starting point must be a better understanding of the choices, experiences and feelings of these women from their own perspective. With this knowledge in place, it becomes easier to imagine the way in which sustained and rigorous analysis can inform discussions about why minority women may consent to harmful practices. Feminism and multiculturalism both also require a more nuanced and sophisticated definition of social and political equality: one in which gender is aligned with categories of identity such as race, culture and religion. Clearly, we must reconsider dominant constructions of ‘woman’ to take into account these criteria and accept multiculturalism’s charge that the misrecogni – tion of private identity is a serious injury. Yet, at the same time, we should also acknowledge that misrecognition and the forced assimilation of a minority are not the only harms that should preoccupy feminists. Analysis needs to move on to delineate the nature and limits of valid consent. There are other injustices – violence, poverty and social exclusion – that remain urgent issues for feminists. Can we find a common basis for a ‘home’ understanding of feminist theory around these wider sets of concerns? Is it possible to challenge dominant construc­tions of ‘woman’ without collapsing into nihilism?[998] Is it unrealistic to hope that autonomy remains a fundamental and transformative organising principle for feminism? What is the ‘branch’ upon which feminists sit? Before we can under­stand and accommodate the needs of minority women, we will need to achieve some consensus – or, at the very least, reach a modus vivendi – on these essential questions. Until then, multiculturalism will continue to trouble feminism and family law.

Acknowledgments

I would like to thank Professor Anne Phillips, The Gender Institute, London School of Economics, for her patient assistance with this work.

References

Ayer, A (1971) Language, Truth and Logic, Harmondsworth: Penguin

Benhabib, S (1995) ‘Subjectivity, historiography and politics’, in Benhabib, S, Butler, J, Cornell, D and Fraser, N (eds) Feminist Contentions: A Philosophical Exchange, London: Routledge

Butler, J (1995a) ‘Contingent foundations’, in Benhabib, S, Butler, J, Cornell, D and Fraser, N (eds) Feminist Contentions: A Philosophical Exchange, London: Routledge

Butler, J (1995b) ‘For a close reading’, in Benhabib, S, Butler, J, Cornell, D and Fraser, N (eds) Feminist Contentions: A Philosophical Exchange, London: Routledge

Cornell, D (1995) ‘What is ethical feminism’, in Benhabib, S, Butler, J, Cornell, D and Fraser, N (eds) Feminist Contentions: A Philosophical Exchange, London: Routledge

Crosby, C (1992) ‘Dealing with differences’, in Butler, J and Scott, J (eds) Feminists Theorise the Politics, London: Routledge

Dworkin, A (1983) Pornography: Men Possessing Women, London: The Women’s Press

Dworkin, R (1986) Law’s Empire, London: Fontana Press

Duchen, C (1986) Feminism in France, London: Routledge & Kegan Paul

Eekelaar, J (2004) ‘Children between cultures’, 18 International J of Law, Policy and the Family 178

Frankfurt, H (1971) ‘Freedom of the will and the concept of a person’, 67(1) J of Philosophy 5

Gadamer, H (1986) ‘The universality of the hermeneutic problem’, in Linge, D (ed) Philosophical Hermeneutics, Berkeley, CA: University of California Press

Gertz, C (1993) The Interpretation of Cultures, London: Fontana Press

Green, L (1995) ‘Internal minorities and their rights’, in Kymlicka, W (ed) The Rights of Minority Cultures, Oxford: Oxford University Press

Hooks, B (1984) Feminist Theory: From Margin to Center, Boston: South End Press

Kukathas, C (1995) ‘Are there any cultural rights’, in Kymlicka, W (ed) The Rights of Minority Cultures, Oxford: Oxford University Press

Kymlicka, W (1995) ‘Introduction’, in Kymlicka, W (ed) The Rights of Minority Cultures, Oxford: Oxford University Press

LSE Gender Institute (2005) Sexual and Cultural Equality: Conflicts and Tensions, The Nuffield Foundation: Project Grant Report, www. lse. ac. uk/collections/ genderInstitute/pdf/finalnuffield. pdf

Macintyre, A (1985) After Virtue, London: Duckworth

MacKinnon, C (1983) ‘Feminism, Marxism, Method and the State: An agenda for theory’, 8(2) Signs 635

MacKinnon, C (1987) Feminism Unmodified: Discourses on Life and Law, Cambridge, MA: Harvard University Press

Malik, M (2000a) ‘Minorities and human rights’, in Campbell, T, Ewing, K and Tomkins, A (eds) Sceptical Approaches to Human Rights, Oxford: Oxford University Press

Malik, M (2000b) ‘Faith and the state of jurisprudence’, in Douglas-Scott, S, Oliver, P and Tadros, V (eds) Faith in Law: Essays in Legal Theory, Oxford: Hart Publishing

McGoldrick, D (2005) ‘Multiculturalism and its discontents’, 5(1) Human Rights Law Review 27

Murdoch, I (1992) Metaphysics as a Guide to Morals, Harmondsworth: Penguin

Murdoch, I (1997) Existentialists and Mystics: Writings on Philosophy and Literature, London: Random House, Chatto and Windus

Nicholson, L (1995) ‘Introduction’, in Benhabib, S, Butler, J, Cornell, D and Fraser, N (eds) Feminist Contentions: A Philosophical Exchange, London: Routledge

Nussbaum, M (1999) Sex and Social Justice, Oxford: Oxford University Press

Oakeshott, M (1975) On Human Conduct, Oxford: Clarendon Press

Okin, S (1979) Women in Western Political Thought, Princeton, NJ: Princeton University Press

Okin, S (1998) ‘Feminism and Multiculturalism’, 108 Ethics 661

Okin, S (2002) ‘ “Mistresses of their own destiny”: Group rights, gender, and realistic rights of exit’, 112 Ethics 205

Rawls, J (1971) A Theory of Justice, Cambridge, MA: Harvard University Press

Rawls, J (1993) Political Liberalism, New York: Columbia University Press

Schumacher, E (1973) Small Is Beautiful: Economics as if People Mattered, New York: Harper and Row

Scott, J (1992) ‘Experience’, in Butler, J and Scott, J (eds) Feminists Theorise the Political, London: Routledge

Shachar, A (2001) Multicultural Jurisdictions: Cultural Differences and Women’s Rights, Cambridge: Cambridge University Press

Smart, C (1989) Feminism and the Power of Law, London: Routledge

Spelman, E (1998) Inessential Woman: Problems of Exclusion in Feminist Thought, Boston: Beacon

Taylor, C (1985a) What is Human Agency, Philosophical Papers, Vol I, Cambridge: Cambridge University Press

Taylor, C (1985b) Interpretation and the Sciences of Man, Philosophical Papers, Vol II, Cambridge: Cambridge University Press

Taylor, C (1992) Multiculturalism and the Politics of Recognition, Princeton, NJ: Princeton University Press

Weber, M (1978) ‘The nature of social action’, in Runciman, W (ed), Matthews, E (trans) Selections in Translation, Cambridge: Cambridge University Press

Chapter 12