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About this book

The first textbook to consider gender perspectives in relation to the whole undergraduate law curriculum in England and Wales. Gender is of central importance in every area of law and every area of people’s lives but is rarely mentioned in the formal LLB syllabus; this book is designed to fill some of those gaps. Eighteen chapters, written by experts in the field, cover all the core modules on the English LLB together with 11 of the most popular options.

Aimed at students and lecturers on undergraduate and postgraduate Gender and Law modules, the book will also be useful for all LLB and LLM students studying English law, who may use it to accompany their studies from their first to their final year, and also for prospective law students, legal scholars from outside England and Wales, and scholars in other disciplines.

Table of Contents

Chapter 1. Contract Law

Contracts project our intentions outwards, prolonging our autonomy into an uncertain future.1They allow people to create new legal structures; to ‘make arrangements for themselves, and so to change their respective rights and duties’.2Law promises to support that creative agency; women often distrust that promise. The first debate here introduces critiques of freedom of contract which are concerned with gender and power. The second explores efforts to address those critiques through relational contract theory. For reasons of space, I focus here on the common law rather than statute, and on commercial contracting rather than consumer law.
Prof.Rosemary Auchmuty, Máiréad Enright

Chapter 2. Tort Law

The relationship between tort law and gender is longstanding. Feminist legal scholars have long sought to expose gendered assumptions behind key concepts of tort law (such as reasonableness, autonomy, personhood), the gendered nature of specific harms (for example, sexual harassment, ‘nervous shock’, reproductive harms) and/or the gendering effects of tort law itself (in the assessment of damages, for example, or its failure to respond to ‘relational harms’).1At other times, the overlapping nature of criminal law and tort has been harnessed to argue for recourse to tort in order to expose failings in the criminal justice system and to provide victim-survivors,2particularly in the context of sexual and domestic abuse, with effective redress.3
Rosemary Auchmuty, Kirsty Horsey, Erika Rackley

Chapter 3. Public Law

Constitutional and administrative law has been a remarkably closed world to feminist critique and very few of the traditional textbooks consider issues of equality and non-discrimination. Perhaps this is not surprising given that the leading scholar on the British constitution, A.V. Dicey – whose work still dominates most public law syllabuses – was actively against female suffrage!1In public law textbooks, women’s struggles for the vote and for equal representation in key institutions are rarely considered worthy of mention.
Rosemary Auchmuty, Harriet Samuels

Chapter 4. Criminal Law

All law aims to regulate our behaviour and conduct towards each other, but the criminal law has a uniquely coercive role. It defines behaviour that is not allowed; if a person breaches its rules, then they may be subjected to punishment including permanent loss of liberty. Given such serious consequences, behaviour ought not to be criminalised without strong justification, but there is no consensus on what does justify making something a crime. For example, the liberal harm principle asserts that state power should only be exercised against the individual ‘to prevent harm to others’, not to enforce notions of morality.1By contrast, Lord Devlin argued that the purpose of criminal law is precisely to protect a shared morality which binds the community together.2In practice, the criminal law is based on a mixture of both approaches: inevitably, it reflects and reinforces social norms.
Rosemary Auchmuty, Caroline Derry

Chapter 5. Land Law

Perhaps more than any other area of the law curriculum, land law is most often presented as gender-neutral, devoid of power, highly technical and fundamentally apolitical. Its students, relying heavily on standard textbooks and rarely encouraged to read anything else on the subject, find it ‘mystifying and uncongenial’.1Cowan et al. diagnose the reason as follows: Perhaps because land law is a foundational subject for the professional bodies in the UK, it is somehow regarded by many as ‘bounded’ by the needs of the profession; and property law teaching is often geared to imply that the subject exists to underpin conveyancing practice.2
Rosemary Auchmuty, Ambreena Manji*

Chapter 6. Equity and Trusts

Questions of gender permeate ‘Equity & Trusts’. For example, equity’s duty of care refers to the prudent manof business1and the presumptions of resulting trust and advancement differentiate between women’s and men’s respective intentions in transferring property. But these are treated as historical anomalies, with no real effect (the prudent man of business) or one of diminishing relevance and soon to be abolished (the presumption of advancement). To the extent that there is engagement with the gendered aspects of Equity & Trusts, the tendency is to focus on the family home, most notably on implied trusts, undue influence and the liability of sureties.2Here the gendered aspect is not considered to be some historical trace but as equity’s active intervention – and invention – for the protection of women. This in turn cultivates an image of equity as the protector of women and of equity as a ‘feminine jurisprudence’. Unlike other areas of law, equity does not hold it itself out to be neutral, but intervenes to prevent the exploitation of positions of trust and confidence.3Equitable doctrines and remedies are seen as creative, flexible and holding the potential for recognising women’s experiences and advancing women’s equality. However, feminists have also been suspicious of the ‘siren call’ of equity.4For example, they have noted that equitable remedies possibly entrench gendered assumptions about the roles of women and men and that equity’s rhetoric does not always match reality, particularly in the context of claims over the family home and the liability of sureties.
Rosemary Auchmuty, Nick Piška

Chapter 7. EU Law

What is today the European Union (EU)1began life in the 1950s as a supranational organisation comprising three Communities: the ECSC, the EEC, and Euratom. Established as a response to the catastrophe brought by the Second World War, the long-term aim of the Communities was to maintain peace and to prevent another war in Europe; their immediate objective, however, was to achieve economic integration among the participating states by building a common market.2Accordingly, gender and sexuality issues were very far from the Treaty drafters’ minds back in the 1950s, when the founding Treaties of the Communities were prepared. Hence, it is not surprising that those Treaties did not make any reference to lesbian, gay, bisexual and transgender (LGBT) rights, nor did they include any provisions requiring equality between the sexes, bar an article which required equal pay for equal work between men and women (what is, currently, Article 157 TFEU), the rationale behind which was, at the time, mainly economic.3However, equality between the sexes and the protection of LGBT rights now occupy a central position in EU law and, as a result of the introduction of mainstreaming provisions,4the EU institutions are required to take these aims into account when taking action in any policy area.
Rosemary Auchmuty, Alina Tryfonidou

Chapter 8. International Law and Human Rights

The scope of international law has grown significantly and it now covers areas as diverse as the regulation of space, international trade, the environment, laws of war and international human rights. The mainstream view is that international law concerns the rules and obligations of states. Broadly, this means that substantive international law applies to states, which have legal personality and thus legal standing. As such, statehood is fundamental to how one understands and uses international law. This is not to say that the concept of the state is without contention. It is merely to suggest the traditional assumption that is presupposed when speaking of the ‘context’ of international law.
Rosemary Auchmuty, Nora Honkala

Chapter 9. Family Law

Family law was one of the first areas of law to be subjected to feminist analysis. This may be because, historically, it did not even pretend to be gender-neutral. In the past, the laws regulating family living and family relationships were created, developed and sustained specifically to treat men and women differently as husbands and wives or as mothers and fathers. Further, because of the family’s status as a timeless and private institution, the forms it took and the ways it functioned were simply taken to be ‘natural’ and were, therefore, largely immune from state interference. The effect, however, of this gender-based difference of treatment, which did indeed seem ‘natural’ in the nineteenth century, combined with the veil of privacy draped over ‘the family’, was that women were systematically disadvantaged by family law.
Rosemary Auchmuty, Alison Diduck, Felicity Kaganas

Chapter 10. Employment/Labour Law

Evidence suggests that, despite many years of legislative and judicial interventions, inequalities still exist in the UK labour market. In 2016 the average gender pay gap stood at 9.4 per cent for full-time employees and 18.1 per cent for part- and full-time employees combined.74 per cent of directors and over 90 per cent of executive directors of FTSE (Financial Times Stock Exchange) 100 companies were men.In 2016 the Equality and Human Rights Commission and Department of Business, Innovation and Skills reported a ‘shocking’ increase in pregnancy and maternity discrimination at work with around half of women experiencing a detrimental effect on their career as a result of having children.Research by the Trades Union Congress and the Everyday Sexism Project found that over half of women experience some form of sexual harassment in the workplace.
Rosemary Auchmuty, Rachel Horton

Chapter 11. Health Law, Medicine and Ethics

In common with many relatively new legal disciplines, health or medical law is often cast as a ‘mongrel’ subject lacking clear parameters or disciplinary boundaries. In part because of its origins in more established subjects, including criminal, tort, contract and public law, underpinning principles have been crucial in shaping health law. Autonomy is widely viewed as the core of these principles, although others such as the protection of bodily integrity and patient dignity have been significant. Autonomy is equally key to the question of gender, since the concept has been interpreted in ways which support a particular exclusionary conception of the human person. In determining who is autonomous, conceptions of disembodied rationality remain the benchmark. In this chapter, therefore, we address two issues which take up various aspects of autonomy and embodiment. Our first debate deals with consent to medical treatment, focusing on informed consent and capacity to consent. The second focuses on abortion regulation, demonstrating how the criminalisation of abortion in the UK is at odds with the construction of patients as autonomous citizens.
Rosemary Auchmuty, Marie Fox, Jaime Lindsey

Chapter 12. Company Law and Corporate Governance

Much about the institution of the company from a legal perspective is indefatigably male and masculine. Many company law textbooks for an academic and practitioner audience are written by men, the protagonists in the traditional canon of cases are almost uniformly male, and very little of the periodical literature (still mostly written by men) that academics and students draw upon in the study of company law and corporate governance offers a feminist perspective. Women legal academics fractionally outnumber male legal academics today but men considerably outnumber women in the more senior grades of employment. This employment pattern does not account for the disparity in authorship in the field of company law and business/commercial law more generally. Anecdotally it seems that male law students are attracted to company and commercial law in greater numbers than female students whose preference is for what they see as subjects more relevant to social justice and social welfare law.
Rosemary Auchmuty, Sally Wheeler

Chapter 13. Intellectual Property Law

Intellectual property (IP) law is an umbrella term that encompasses a range of protections for the intangible property emanating from human creativity and innovation. Early approaches saw a distinction between principles relating to literary and artistic works, such as copyright, and approaches to what was termed ‘industrial property’, including patents and trademarks. This distinction has been diluted and the law has evolved to the point at which a product such as mobile phone can be covered by numerous patents, trademarks and copyright protections. This complexity is exacerbated by this area of law’s international reach, originating in early bilateral instruments and continued through to the Paris and Berne Conventions and to the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS agreement), an international agreement between all the member states of the World Trade Organization.
Rosemary Auchmuty, Catherine Easton

Chapter 14. Jurisprudence/Legal Theory

A jurisprudence is a theory of the relation between life and law. Few courses elicit such mixed student responses as jurisprudence and/or legal theory. For some, it is a welcome relief from the doctrinal emphasis of the core curriculum; for others, an irritant to be endured, or, even better, avoided, assuming one follows a programme in which jurisprudence is not required. It is true that in recent decades the subject has undergone considerable transformation. The traditional emphasis on general jurisprudence, cast as a seemingly irresolvable tension between certain schools of jurisprudential thought (usually legal positivism and natural law), has given way to a more diverse, eclectic selection of themes, encompassing both the traditional syllabus and a proliferation of new legal theories somewhat different in orientation and approach. Whereas legal positivism and natural law are preoccupied in various ways with the question of what law is, new approaches – feminism, critical legal studies and critical race theory – appear more concerned with what law does, with the effects of law on lived experience and the potential of law to transform that experience in positive ways. Too often, though, the jurisprudence curriculum unfolds as a succession of discrete debates within self-referential bodies of literature with little or nothing to say to one another.
Rosemary Auchmuty, Joanne Conaghan

Chapter 15. Legal History

Legal history, both as taught in UK universities and generally, is largely the history of men. Students rarely encounter any discussion of women’s place in law, let alone a consideration of gender. The debates chosen for this chapter will illustrate each of these gaps. The first asks ‘Are women persons?’ – an extraordinary question to modern eyes, but one which occupied courts and legislature for a good century until it was finally conceded that, for some purposes at least, they were. The second debate moves from the specific to the general to ask ‘What is legal history?’ This debate considers the content of legal history and whether legal history should confine itself to the formal development of the law, the law-making institutions and the law-makers, or whether it should also consider informal legal processes, the impact of law on both men and women, women’s efforts to work with and change it, and men’s responses to these efforts.
Rosemary Auchmuty, Rosemary Auchmuty

Chapter 16. Law and Literature/Literary Jurisprudence

Why turn to literature – fiction – to learn about law in the lives of people, when textbooks, journal articles and, above all, cases themselves can tell you about the actual, ‘real’ relationship between law and its subjects? There are a number of points to make but perhaps the most important is that literature may provide a powerful challenge to the orthodoxies of law in understanding the moral and legal status to be attached to the acts and omissions of persons. This chapter will consider two examples of phenomena concerning gender and law: violence against women, and the problems for female personhood, referencing some literary sources in order to demonstrate how these may extend the insights developed in law. First, some general observations. The field ‘law and literature’ is often explained as dividing into ‘law as literature’ and ‘law in literature’.
Rosemary Auchmuty, Melanie L. Williams

Chapter 17. Sexuality

The significance of gender to sexuality studies is not immediately apparent. As Alina Tryfonidou shows in her chapter on EU law (Chapter 7), the original attempt to frame sexuality as an aspect of ‘sex discrimination’ failed to offer adequate protection to lesbians and gay men, and sexuality is now accorded a separate protected status. Gender is relevant to sexuality studies, however, for the obvious reason that men and women are different, both biologically and, more importantly, in the way we are socially constructed. Although our current laws treat lesbians and gay men as normal people just like everyone else, in fact, by choosing to relate emotionally and sexually to people of their own sex, they have always challenged the very basis of a patriarchal society premised on men having power over women, as a group in the public sphere and as individuals in the private. Gay men have often seemed to challenge other social constructions of appropriate masculinity by, for instance, adopting what were seen as ‘effeminate’ mannerisms, or cross-dressing (‘drag’), or by hyper-masculine promiscuity, while lesbians challenged notions of ideal womanhood by, for example, cropping their hair and wearing trousers when long hair and skirts were the norm, or by remaining childless – or, worse still, having children without a male head of the family.
Rosemary Auchmuty

Chapter 18. Legal Professions

Although the diversity of the legal professions in England and Wales (legal executives, solicitors, barristers and judges) has increased substantially since the 1980s, serious challenges remain in relation to access to, and promotion and retention within, the professions for women and minorities, as illustrated by the 2013 figures in the table. The legal profession’s historically white male and socially privileged roots are very well established. But unlike many of the other old professions, this has been exacerbated by the fact that access to full professional recognition within the practising legal professions is, in most instances, via an apprenticeship controlled by private practice lawyers rather than simply by successful completion of the necessary qualifications followed by registration with the professional body (as in, say, the USA).
Rosemary Auchmuty, Lisa Webley
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