28 Jun Gender in Academia, Research and the Law

A judge in the UK, recently stated that he “cannot think of any more obviously fundamental human right than the right of a man to have sex with his wife – and the right of the state to monitor that.” This statement was met with backlash from both the national and international media and leads us to consider once more how notions of gender have come to shape our society, and even the laws that govern us.

Charlesworth and Chinkin, the two authors of ‘The Boundaries of International Law: a feminist analysis’ shone a spotlight on the status of women in human rights and international law. In their book they argued that the “absence of women in the development of international law has produced a narrow and inadequate jurisprudence” (Charlesworth and Chinkin, p. 1) that does not challenge the unequal position of women in society but rather it reinforces and legitimises it. Therefore, the law ignores any notion that there are fundamental differences between how the law should consider the experiences of men and women in the public sphere (Cook, 1994, pg. 63) because it equates sexual equality to equal treatment (Cook, 1994, pg. 63) and structuring it “along the male comparator (Cook, 1994, pg. 11). Thus, rendering the laws that govern us, ignorant of the experiences of men and women and in turn, reinforcing societal divides within society. The experiences which affect men and women differently, can vary from simple every-day things such as walking down the road at night in a dimly light neighbourhood to more complex things. For instance, when pursuing different career opportunities and advancements, women do not apply unless they feel completely qualified whereas men often apply for a job even if they do not fulfil all the criteria listed.

In her most recent book, “Criminal Law and the Man Problem” Ngaire Naffine discusses this difference, in detail with reference to criminal law. She states early on in her book that:

“criminal law is not about protecting men as men or women as women, but rather about the vulnerable and threatening person […] [however], it engages mainly with men and their antisocial behaviour, and the formulation of its offences has necessarily been in response to male behaviour and male social norms. Men have made the legal world. They have drawn it up, decided on its priorities and they are also its central characters.”

Naffine, 2019, pg. 27

The author looks at some of the influential men in criminal law and how they have shaped the doctrine and its application over time with a reference to the crime of rape. She argues that men have been the only real subjects of concern of criminal law to the point that the legal person to which criminal law applies to has been conflated to a man. This has meant that the “rights and duties considered essential to a criminal legal person have been those considered necessary to men” (Naffine, 2019, pg. 149) and that the rights of women have been curtailed, as a consequence. In fact, women were seen as an extension of the men, as their property.

Now, the author argues we have a character of modern criminal law whose history if one of male power, male interests and male rights but who is now construed as genderless, raceless, classless individual (Naffine, 2019, pg. 149). However, this ‘jump’ has been done without a rethinking or recreation or historicisation of the legal person along the way (Naffine, 2019, p. 163), leaving unexamined the differences between men and women, the fact that it is mostly men who commit crimes and ignoring the historical abuses of women.

The author in fact concludes that despite this abstraction, the criminal legal subject has yet to be reimagined or remediated for the modern age. This is partly due to the fact that when imagining the legal person, a man often comes to mind due to the historical and societal fixation on him (Naffine, 2019, pg. 172) thus leading the old forms to keep asserting themselves. The author notes:

“To understand a person, socially and legally, you need to see how they are present within relations and or this you need to give them a context and a history. Bold statements about the essential nature of the human will not do the job […] we need greater reflection from influential men.”

Naffine, 2019, p.179

This book is not only eye opening in terms of the history of women within criminal law, but it also makes a strong case for complete change rather than reform. Not only this but the author pushes us to critically examine ‘the man’, his identity and power within criminal law, who up until now has remained largely invisible.

Once again, we are reminded that inequality is found everywhere, including in the laws which govern our society. In order to tackle inequality, and bias, we must have a reformulation of the law. In fact, we must strive for the law, research and education to reveal the differences between men and women. It is through showcasing these differences and bringing them to the forefront that we may begin to eradicate them.

GEARING-Roles is a four-year project which aims to do just this, through the implementation of six Gender Equality Plans (GEPs), in six research institutions across Europe. These plans will seek to expose the processes and practices within each institution, which appear neutral, but are actually perpetuating gender inequalities. Through this exposure. the project then aims to find best practices, which may be unique to each institution, to eradicate inequalities and thus, lay the foundation for true institutional change.