Monthly Archives: October 2016

Mistresses in modern law reports and legal writing

After the last post’s moan about emasculation imagery in legal writing and law reports,  today I turn to another annoyance which happens to appear in my recent land law reading: the strange survival of the term ‘mistress’.  It comes up in the important case of Stack v Dowden, and, as another quick electronic search shows, in many other places as well.

And what is wrong with using ‘mistress’, it may be asked. Well, while it can’t really be escaped in certain historical contexts (think Louis XIV), and, when a person calls herself that (Mistress R’eal appeal – dominatrix not bound by video on demand ruling (Case Comment) Ent. L.R. 2016, 27(3), 118-121), then what else can you do?, but, otherwise, it is best avoided when talking about the modern world, because of (a) its ambiguity and (b) its embodiment of extremely unequal assumptions about gender relations.

So – a quick survey (Clearly this is something which is worthy of much more sustained research – where is my Research Council grant?) Mistresses can be seen in academic article titles – either real women  (e.g. ‘Grierson spent GBP 630,000 on mistress’, S.J. 2012, 156(23), 5) or more metaphorical (and not in a nice way – ‘fickle mistress’ anyone – ‘A flexible friend or capricious mistress?’ E.G. 1994, 9416, 138-139). Have to say I am quite taken by the title ‘Power is my mistress’ (great indie album title, no?) – but not enough to read a journal called ‘Tax’ (Tax. 2007, 159(4092), 102).

Looking at cases, (once head-mistresses and post-mistresses are filtered out) there are many examples of the term being used by others and transferred into the reports – e.g. in defamation cases against newspapers etc. Can’t really hold that against the reports. But there are also still too many other examples of unnecessary and inappropriate mistressings – in all sorts of cases, from crime to ecclesiastical matters.

Succession cases are another stronghold of the usage (see e.g. Rowena Ferneley v Stephen John Napier, Catherine Emma Brooks, Derrick Arthur Napier [2010] EWHC 3345 (Ch) at [3]; Elisabeth Gorjat, Philippe Gorjat, Sophie Charriere v Lucrecia Gorjat [2010] EWHC 1537(Ch) at [25]

Although the old beneficial interests cases are stuffed full of mistresses, it’s a shock to see it still being used in Stack v Dowden  [2007] UKHL 17 , [73] quoting the first instance judge’s description of a couple as ‘man and mistress’. As well as being sexist (not partners, cohabitants,  the symmetrical man and woman, nor pairing mistress with some equally judgmental male word [which doesn’t exist]) it is quite obviously inappropriate to use this single designation for a couple with a complex and fluctuating relationship, in which the female partner was at least her partner’s equal.

There might be half an argument for keeping ‘mistress’ if it helped to define the relationship better than other, less offensive words, but when it is used, ‘mistress’ now seems rather indefinite. It no longer means a ‘kept’ woman. It may or may not involve adultery by the ‘mistress’ or the ‘man’ (Lilburn v HM Advocate [2015] HCJAC 50 [124]). It may or may not involve the pair living together, or having a family (pair living together – with man’s wife as well – R. v Barry McCarney [2015] NICA 27 at [25]). She may be a much younger woman with whom a man has ‘taken up’ (Re Lindley (Setting of Minimum Term), Re Queen’s Bench Division [2007] EWHC 1436 (QB), Westlaw Case Analysis). A ‘man’ may have more than one ‘mistress’ (Hawk Recovery Limited v Natasha Anastasia Eustace, Brunswick Wealth LLP [2016] EWHC 115 (CH) at [36])

The ‘mistress’ appears in some ecclesiastical cases to have an almost official standing, though the exact definition is not explained (see discussion of the rights of mistresses against widows in In re St Augustine’s Churchyard, Droitwich Spa; In re Spickenreuther’s Petition [2016] ECC Wor 2; Ormandy, Re (Court of Ecclesiastical Causes Reserved  25 August 2009, Westlaw Case Analysis, unreported). In succession cases, the ‘mistress’ may be set up as the rival of a former wife (John Arthur William James, Stephen Neil Mountford v Kathleen Louise  Williams and others [2015] EWHC 1166 (Ch) at [7]). Again, I am not sure the full meaning is beyond dispute.

Another level of ambiguity comes from the fact that ‘Mistress’ has come to have overtones of (transgressive?) sexual dominance (Stephen Dawson v Laura Bell [2016] EWCA Civ 96, concerning ‘a fetish website with a Mistress Directory’. The idea of mistress as  dominant partner in sex is seen in  Y v Slovenia  (2016) 62 E.H.R.R. 3 at [34]),

All in all, it seems best jettisoned. Failing that, perhaps a movement to insist that every usage of ‘mistress’ is paired with an appropriate demeaning/judgemental term from the list: ‘philanderer’, ‘fancy man’, ‘little turtle dove’ etc. etc.

Update, 11/8/2018

Article in the Guardian with reference to a woman having been somebody’s ‘mistress’. In 2018. (Also note lack of realisation that we are in the midst of a huge UCU strike which is proving pretty successful … top journalism) https://www.theguardian.com/commentisfree/2018/mar/10/dont-look-to-len-mccluskey-and-his-sorry-ilk-to-defend-workers-interests

Update (sort of!) 29/4/2020

Disappointing sighting – Helen Maud Cam, Law Finders and Law Makers, 214, oh Helen M., did you have to give us the image of Law and History as ‘Maitland’s two mistresses’ ? Really???

Update (again, sort of) 27/6/2021

Sleazy Matt Hancock/Hat Mancock story – didn’t take long for the woman involved to become his ‘mistress’ … at least as far as the Telegraph is concerned. Let’s just move on, shall we?

Emasculation-watch

In doing my pre-tutorial reading for a cycle of land law tutorials on proprietary estoppel, I came upon a well-known case comment entitled ‘Emasculating Estoppel’ ([1998] Conv 210). I am always left wondering why academics and lawyers are so keen on the imagery of emasculation, and why they are not more frequently ‘called out’ on the implications of using a word which assumes that that which is good and useful has male genitalia, and that its goodness and usefulness are located in the aforesaid genitalia.

It really is pretty common, and is often used in rather odd ways. A quick database search threw up examples relating to the emasculation of:

  • various statutes and statutory sections (including a section of the Equality Act – particularly inappropriate?:  The Queen on the Application of Mrs JH, Mr JH v Secretary of State for Justice [2015] EWHC 4093 (Admin) at [22]; See also, e.g. Gold Nuts Limited and others v. Commissioners for Her Majesty’s Revenue & Customs [2016] UKFTT 0082 (TC) at [218])
  • ‘all the provisions of the statute’: Hudson v Parker (1844) 1 Robertson Ecclesiastical 14; 163 E.R. 948 at 40.
  • other regulations (‘Emasculating TUPE: transfers of undertakings and the concept of the “economic entity” L.T. 2002, 3, 23-28
  • a tax (The Queen on the application of: Veolia ES Landfill Limited et al.[2016] EWHC 1880 (Admin) [182]
  • the beneficial principle of proprietary estoppel: Thompson’s article, and also Thorner v Major [2009] UKHL 18 at [98](Lord Neuberger combines an emasculation image with ‘fettering’ here – all a bit S & M sounding).
  • the doctrine of restraint of trade (‘EC competition policy: emasculating the common law doctrine of the restraint of trade?’R.P.L. 2007, 15(3), 419-431
  • the doctrine of legitimate expectation (R v IRC ex p MFK [1990] 1 WLR 1545 at 1569–70
  • the option (‘Emasculating the optionVAT Int. 1997, 15(1), 1380-1383).
  • a regulation’s purpose (M v W [2014] EWHC 925 (Fam): [34]
  • a sanction (JKX Oil & Gas Plc v Eclairs Group Ltd [2014] EWCA Civ 640 [124] and [126]
  • a right (Neil Pattullo v The Commissioners for Her Majesty’s Revenue & Customs [2014] UKFTT 841 (TC) [85].
  • ‘the meaning of the deed’ (meaning to distort? Westlaw Case Analysis, Adedeji v Pathania, Chancery Division 22 April 2015).
  • the concept of ordinary residence (Regina (Cornwall Council) v Secretary of State for Health and another [2015] UKSC 46 at [145]
  • incentives (Lloyds Bank Leasing (No 1) Limited v The Commissioners for Her Majesty’s Revenue and Customs [2015] UKFTT 0401 (TC) at [14])
  • the High Court’s role: Ghosh v GMC [2001] 1 WLR 1915 at [34]
  • obligations in a mortgage deal (Mark Robert Alexander (as representative of the “Property118 Action Group”) v West Bromwich Mortgage Company Ltd  [2016] EWCA Civ 496 at 81).
  • warranties (P &P Property Limited v Owen White & Catlin LLP, Crownvent Limited t/a Winkworth [2016] EWHC 2276 (Ch) at [101])

So – we see pieces of legislation and various less tangible things and ideas portrayed as damaged male bodies – decidedly odd at best.

Perhaps the oddest and most jarring use of this imagery is in Regina v “RL” [2015] EWCA Crim 1215 in which a barrister is said to have indicated (at [12]) that ‘the combined effect of the judge’s rulings was so to emasculate his cross-examination of boys A and B that he was in effect reduced to putting a bald proposition and having to accept the answer given by the boy concerned without further elaboration.’ Hard to know what to say to that – just – really? Best choice of words?

There may be some hope that people are beginning to see that this might be best avoided – applause for the appearance of a set of “” around the word in  Miss S C Hall v Chief Constable of West Yorkshire Police 2015 WL 5202319, before Mrs Justice Elisabeth Laing DBE, at [32] in her judgment. So, other judges, academic commentators, barristers, what about trying out ‘undermine’, ‘weaken’, ‘render useless’ or some such non-violent and not unnecessarily gendered phrase? Go on – it won’t ’emasculate’ your scholarship.

Postscriptt/Update 24/02/2017

More Land Law preparation, more emasculation!

Fundamental human rights are ‘at risk of emasculation’ in Lord Neuberger’s judgment in Mayor of London (on behalf of the Greater London Authority) v Hall and others [2010] EWCA Civ 817 at [37]. And we have an act ‘emasculating’ a doctrine (the Land Registration Act 2002 and adverse possession, respectively) in: M Dixon, ‘The reform of property law and the LRA 2002: a risk assessment’ (2003) Conv. 136, at 150 and again at 151, See also Conv. 2005, Jul/Aug, 345-351; Conv. 2011 335  at 338 and (on prescription this time) Conv. 2011, 167 at 170. The use of ‘emasculation’ in relation to adverse possession has a slightly different character to many of the uses noted above, at least 2003 Conv 136, 151, the emasculation of the doctrine by the LRA scheme ‘does of course, mean the end of adverse possession as a threat to the security of registered title.’ So removal of the doctrine’s metaphorical male genitalia = removal of a threat/danger. Intriguing.

Watching out for more, and would specially like to find the bingo row of ‘emasculation’ plus a ‘mistress’, plus a cricketing metaphor in the same case or article.

 

Latest Journal of Legal History – some more for the reading list

issue 3 for 2016 features articles on: the reception of Magna Carta in early modern Germany, charitable trusts and the 1857 divorce law reforms.

German legal history is something with which I have always meant to become better acquainted: it has just always seemed so daunting in its variety. That being so it is good to have an entry point like Magna Carta to use.  Carsten Fischer’s ‘The Reception of Magna Carta in Early Modern Germany, c. 1650–1800’, pp. 249-268 describes the reception of MC in German scholarship and letters more generally. His clear point is that this amounted to the reception of a trope or reputation, with interest centred upon the 17th C revival/ translation of MC, and the assumption that MC = liberty, rather than a careful excavation of the actual content and medieval context of MC. I was particularly interested in some of the less-impressed comments from 18th C German commentators – conveying the idea that the English were deluded in their idea of their own freedom (some interesting resonances in these darkening times), and in the idea of using discussion of MC as a proxy for possibly dangerous comment on German issues.

The requirements of charitable trusts is something which featured on my radar a few years ago when I was joint-supervisor of a Ph.D. in this area. It was, therefore, interesting to see the careful and convincing research and argument in this area in M. Mills, ‘The Development of the Public Benefit Requirement for Charitable Trusts in the Nineteenth Century’. This traces the familiar oddness of doctrinal development in England, with strands of obiter, general comment and elements of mortmain law reasoning combining with social developments to create a rule for qualification for charitable trust status. Admirably done.

And finally, one which I will be using with my Legal History students, H. Kha and W. Swain, ‘The Enactment of the Matrimonial Causes Act 1857: The Campbell Commission and the Parliamentary Debates’. This provides an accessible and illuminating account of the Campbell Commission and debates leading up to the MCA 1857. Interesting psychological effect (in this moment of clashing past and present, as we wonder what is the best response to convictions of former crimes now not seen as wrong https://www.theguardian.com/law/2016/oct/21/chris-bryant-commons-plea-gay-pardon-law )- although I am always conscious of not regarding medieval people with contempt, even when I disagree with them, I do find it difficult not to get exasperated with the hypocrisy of Victorian lawyers and parliamentarians. Will have to work on my anti-19th C prejudice.

 

 

 

 

Brand on medieval judges and juries

Paul Brand (2016) ‘Judges and Juries in Civil Litigation in Later Medieval England: The Millon Thesis Reconsidered’, Journal of Legal History, 37:1, 1-40.

Professor Brand takes a less pessimistic view than did Millon of whether medieval juries actually followed what appeared to be the ‘official’ legal rules (as seen in legal texts) as opposed to making decisions based on their own discretion. Looking at plea roll cases c. 1300, he finds a clear connection between what the rules appear to have said should happen, and what did happen. Judges and courts helped keep decisions consistent with the rules, and the pleading process, in framing issues sent to the jury, also ensured some control.

Impeccably argued and bristling with hard-won documentary evidence, this needs the reader’s full attention, but is worth the effort. It will be an important point of reference for anyone looking at medieval law, and a check on the common temptation to look for exceptions to rules, to emphasise dissent and resistance, in legal history. This article is a powerful reminder that medieval judges and juries often pulled together, and law texts might be reflected in practice.

Cheeks, jowls and pampas grass: history of neighbours

Recent read: E Cockayne, Cheek by Jowl: a history of neighbours (Bodley Head, 2012)

Only 4 years after its publication, got around to reading this. I had heard of it via an old episode of R4’s Thinking Allowed, and thought it might be worth a look to get some quotes for my lectures in Land Law. Didn’t have much at all to say about easements, unfortunately, (I think that was a gap) but very enjoyable nonetheless.  Lots of examples of nuisance, and crime between neighbours. Also learned – rather worryingly – that pampas grass is ‘the swingers’ signature plant’ (it was prominent in the front garden of my childhood home!) and that there is a porn studio near Bradley Stoke (Bristol/S. Glos). Who knew?

Also baffled by the mystery which is academic publishing. This cost me less than £5 for the Kindle version, while other things I would like to buy cost something over £60. Bonkers.