‘Emasculation’: they are still at it …

I have a long-standing concern with the metaphorical use of the concept of  ‘emasculation’ as a way of describing weakening something or effectively rendering it useless. (See older comments on it). Why – well, think about it, the message is ‘something with male genitalia good, powerful, strong; something without male genitalia feeble, damaged, pointless’. It is less frequently encountered in legal sources, these days, but not as absent as it should be.

A quick New Year scan of Westlaw shows that it came up in some recent cases, discussing the weakening of statutes, statutory provisions, powers, etc. (see, e.g., DPP v Bailey et al. [2022] EWHC 3302 at para 18; Interactive Ltd. v. Oovee Ltd [2022] EWCA Civ 1665 at para 40; Novartis [2022] EWHC 959 (Ch) at 31). Particularly striking, perhaps, was its appearance in the Supreme Court (Lady Arden) in Triple Point v PTT [2021] UKSC 29 at 53, in relation to emasculation of a cap on liability by way of a ‘cap carve-out’ (which seems an odd mixture of different parts of the body, apart from anything else, though I suppose the ‘carve out’ idea has some resonance with the process of castration).

There is not too much resort to this sort of thing in modern legal scholarship, but I did note a pair of emasculations in an article in one of the most prestigious English law journals: see Neil Duxbury, ‘Final court jurisprudence in the crystallisation era’ L.Q.R. 2023, 139(Jan), 153-166, 165, in which a law professor chose to describe the practice of undermining or weakening precedents through the language of removal of male genitalia. It is very interesting to ponder what is the ‘spin’ on the subject matter of the article – jurisprudence, modern legal history of a sort – which is given by this emasculation vocabulary, to what extent its inclusion was uncritically carrying on the patterns of past analysis, to what extent it was a considered choice, and whether there is any sense in which it was necessary to use this metaphor in an article in 2023.




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