Tag Archives: emasculation

Emasculating emasculation

For a long time, I have been conscious of an odd habit amongst many of those writing about law: referring to the weakening, diminution or nullification of laws and institutions as ’emasculation’. After doing some pre-tutorial reading for a cycle of Land Law tutorials on proprietary estoppel some time ago, I could contain my annoyance no longer: why are academics and lawyers so keen on this 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? I started collecting examples, and have updated this a number of times. It came up once again in my Land Law preparation this week (Human Rights & Land Law, What is Property?) so it felt like time to revamp and re-post.

The one which started me off was a well-known case comment entitled ‘Emasculating Estoppel’ ([1998] Conv 210), but I soon saw that 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:

  • Fundamental human rights. These 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]. This is the one that got to me today: something which is explicitly non-gendered being considered as a default-male body, at risk of having reproductive bits chopped off. Grim.
  • 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.
  • Possibly the most incongruous use of the language of emasculation in the context of legislation relates to the eventual Sex Disqualification (Removal) Act 1919– an important Act which, however, did not go as far as an earlier version, the Women’s Emancipation Bill. As was pointed out in A. Logan, ‘Building a New and Better Order’? Women and Jury Service in England and Wales, c.1920–70’, Women’s History Review, 22 (2013), 701-16, at 702, ‘Cheryl Law claims the Act [Sex Disqualification (Removal) Act 1919] was an ‘emasculated’ version of the Labour-sponsored Women’s Emancipation Bill’. [C. Law,  Suffrage and Power: the women’s movement 1918–28 (London, 1997), 97.] Another author preferred the ‘broken reed’ metaphor for the Act’s subsequent effectiveness [M. Pugh, Women and the Women’s Movement in Britain, 2nd ed. (Basingstoke, 2000), 90.], which might just about be construed as a touch phallic, but is certainly an improvement.
  • 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 option VAT 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])
  •  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.
  •  An ‘emasculation’ in an account of alterations in the role/power of juries: J. Getzler, ‘The Fate of the Civil Jury in Late Victorian England: Malicious Prosecution as a Test Case’, in J.W. Cairns and G. McLeod, The Dearest Birth Right of the People of England : The Jury in the History of the Common Law (Hart: Oxford and Portland Oregon, 2002), c.11, p. 218: ‘The emasculation or diminution of the civil jury was then followed in the second stage by its elimination.’ So – emasculation is more or less synonymous with diminution (and a preliminary to elimination. Nice imagery. What are the implications for the study of early women jurors, I wonder: was their inclusion actually all about some long-drawn- out phobia of jury male genitalia?
  • The risk of ‘the emasculation of fiduciary duties’ (Mrs Justice Cockerill, para. 72 of Recovery Partners v Rukhadze [2018] EWHC 2918 (Comm) [because trust and trustworthiness are male-genital related, and there’s no particular reason that women should know better …]
  • The danger of ‘the total emasculation of the civil law’ (HHJ Saffman, para. 9 of Durham County Council v James Bradwell 2018 WL 05823332 [because private law is characterised by its possession of male privates …]
  • The worry that a previous case will be ‘emasculated’ (with diminution of particular rights) if this case goes a certain way (counsel in Goddard-Watts v Goddard-Watts [2016] EWHC 3000 (Fam), mentioned at para 73 [because more male = more expansive, better etc …]And one which jumped out in my sifting of articles for ‘Blended Learning’ preparation for undergraduate Legal History … W. Swain, ‘The classical model of contract’ Legal Studies 30  (2010) 513-32, 532  the emasculated law of restitution.’ Always did find restitution a bit of a macho thing …A competition lawyer talks about a conclusion being ‘emasculated’, and couples it with an image of a snake eating its own tail – The Competition and Markets Authority, Flynn Pharma Limited, Flynn Pharma (Holdings) Limited (“Flynn”) v Pfizer Inc., Pfizer Limited (“Pfizer”) v The Commission of the European Union [2020] EWCA Civ 339, 2017 WL 11508568, at 232. One for the Freudians, I think. The protective nature of male genitalia: men’s bits must be understood as somehow protective, since we have a nice reference to ‘emasculating’ protection in Mr Lee Walsh v CP Hart & Sons Ltd [2020] EWHC 37 (QB), 2020 WL 00137207, at 53.The concern that a proposed solution is based on the ‘emasculation’ of a statute section (Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust  [2016] EWCA Civ 607, para. 56) [because there is no special inappropriateness in using male-genitalia based imagery in a SEX DISCRIMINATION CASE …]
  • 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?
  • Counsel general of Wales, Jeremy Miles on Tory plans to ‘emasculate’ the devolution settlement.https://www.theguardian.com/politics/2020/jul/12/boris-johnson-accused-of-plan-emasculate-uk-devolutionMust we? Must we read about weird metaphorical portrayals of good legislation as having male genitalia, weakened legislation as lacking them? Grim. Sexist. Nonsense. Also in the context of ‘union’, (and indeed Boris Johnson) getting into genital metaphor mode brings up all sorts of unpleasant images and consequences. Best not. The level of distraction (from an entirely plausible and righteous objection) is not helped by the additional corporeal metaphor of Brexit, or the UK government, bringing a big fist down on devolution – fist or men’s bits, make your mind up. Or is the ‘emasculation’ being done (somehow) with a ‘big fist’?
  • Those academics, lawyers and judges who care about such things might consider the many alternatives to ‘emasculating’ language – why not try ‘evisceration’ (we all have, and need, viscera) or nullification (because – big news – it isn’t actually necessary to use a violent physical metaphor at all!). For a more traditional and picturesque feel, at least in relation to legislation, why not go back to the old favourite ‘driving a coach and horses through [insert name of Act]’? Daft but at least not sexist-daft. And you may be able to style it out as knowing and retro.

In a previous iteration, I had noted the odd rays of hope suggesting that people are beginning to see that this language might be best avoided, and tipped my hat to the appearance of a set of scare quotes 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. Perhaps other judges, academic commentators, barristers, might try out ‘undermine’, ‘weaken’, ‘render useless’ or some such non-violent and not unnecessarily gendered phrase? Surely it wouldn’t ’emasculate’ their arguments? But no, ’emasculation’ remains a metaphor of first resort for many people. A cursory look suggests that there’s most waving of ‘emasculation’ in commercial cases these days, but it’s not only the more traditional, hide-bound areas in which it crops up – e.g. we see a sneaky ‘emasculation of the State’s health and safety enforcement agency’ in K.D. Ewing and John Hendy, ‘Covid 19 and the failure of labour law Part I’, Industrial Law Journal 2020, 49(4), 497-538, note 105. Depressing.

Until ‘the penny drops’, I will be watching out for more, and would specially like to find the casual sexism bingo row of ‘emasculation’ plus a ‘mistress’, plus a cricketing metaphor in the same case or article.

GS

(various times, updated 11/3/2021)

(Image- a tasteful picture of medieval underwear: File:Braies 14th century.jpg – Wikimedia Commons It was difficult to find an appropriate, but not too rude, picture for this. I have gone with ‘pants’, which has a certain connection with the subject at hand, and also has the benefit of bringing to mind a slangy metaphorical usage of its own, used as it is – in the UK at least – to denote something which is not very good at all … Take that as you will.)

 

Private compensation and fear of castration in medieval Nottinghamshire

An entry on the Nottinghamshire trailbaston roll for 1305-6 tells an intriguing tale of certainly illicit, possibly unwelcome, advances made by one Master William de Newark, to a girl or woman called Beatrix, daughter of Walter Touk, the response of Beatrix’s family to this, and the way in which this was eventually resolved.[i] Once I am free to get to libraries once more, I look forward to being able to check up on some of the personalities involved, but, for now, the entry itself is worth noting.

In the trailbaston session (an ad hoc, mostly ‘criminal’ judicial session, one of several sent out at this time), jurors of the wappentake of Newark presented Walter Touk, Henry his son, and others, for an assault on Master William de Newark, parson of the church of North Muskham. They were accused of having imprisoned and detained him with force and arms and against the king’s peace until he made fine with them for 50 marks, and of having made off with two swords, worth four shillings, belonging to Richard Cauwode, a servant of Master William.

Walter and Henry told a different story, denying that they had committed any trespass against the king’s peace. Exactly how the more detailed tale came out is unclear – was it volunteered by Walter and Henry, who thought that there was nothing wrong with what they had done, or did the jurors learn about it in some other way? Anyway, the jurors told it this way …

Walter Touk, his wife (who doesn’t get a name here), his daughter (Beatrix), and Henry, went to Master William’s house, in North Muskham, to ask him to eat with them. (The Touks and Master William would therefore seem to have been on good terms, but it was not to last …) William spoke secret and unseemly words of love to Beatrix (oculta et indecentia verba de amore), and then he came to Walter’s manor of Kelham at twilight. Secretly, William entered the house. Henry (Walter’s son, Beatrix’s brother) became aware of this incursion. Henry and John de Dunwyche, his groom, followed William, and entered the room where he was, to find William and Beatrix sitting together (with Richard Cauwode, William’s servant, there as well). Henry and John took out their swords and hit William and Richard. John wounded them both. Walter heard some shouting. He came and did not allow any more damage to be done to the intruders. Nevertheless, the Touks made it clear that they thought William had wronged them in a serious way, and had, in particular, damaged Beatrix’s reputation (enormiter defamavit & … scandalizavit) and they demanded that he compensate them at once for this with 50 marks, or else he would face serious consequences (not exactly specified, but sounding severe and physical). William, terrified by these threats, and fearing that they would otherwise castrate him,  agreed to pay. Henry wrote in his own hand a document obliging William to pay him 50 marks. William authenticated it with Henry’s seal, because he did not have his own seal there, and delivered the deed to Henry. The document was made in the presence of Walter, Henry’s father, who, according to the jury,  consented to the requiring of emends and the making of the document of obligation. On the matter of the alleged taking of two swords, the jurors said that John took from Richard a sword, a bow and arrows (worth 9 ½ d) so that Richard did him no damage with them, and that, if Richard had asked for their return, this would have happened.

Rather than continuing to a straightforward finding of culpability or acquittal, the roll notes that the matter was referred upwards to Parliament, and, on a date in 1306, Henry Touk came to Westminster before the council and made a fine for himself and Walter with £20. It says no more of Master William, nor of the two servants, nor of Beatrix.

 

So What?

Well so quite a lot. This case has several interesting or suggestive legal historical nuggets.

I have found that these trailbaston rolls are particularly rewarding in their illustration of the location of certain borderlines, uncertainties and arguable issues in the common law. To a greater extent than in ordinary plea rolls, in these rolls, we often see people bringing cases, and jurors, showing what they thought the law should be, or where they were unsure as to what it was. Here, it would appear that there was some doubt as to whether the tale of the events of that evening in Nottinghamshire was enough to mean that the defendants were not guilty of an offence. The jurors clearly did not dismiss it, and the whole thing was sent off to be dealt with by a higher power, rather than by the common law. This may have something to do with the relative wealth of the defendants, but the nature of the case itself was probably also debatable. It seems likely that there was considerable sympathy with the efforts of the Touks to make Master William pay for his misconduct – clearly seen as a grave wrong against them all. At what point did forceful action against somebody who had sneaked into one’s house and was perhaps making moves towards violation of a daughter  cross the line into (social or legal) unacceptability?  Castration of sexual offenders was not an unknown response (and may have been official policy in some earlier periods, though not by this point), and settlement of quarrels by financial payment was likewise often tolerated. In a world which assumed a certain degree of self help, was the ‘privatised compensation plan’ thought up by the Touks completely indefensible?

The roll deals with the criminal assault side of things, and so does not go into the question of the compensation agreement. Presumably Master William would have been able to avoid paying by claiming duress of imprisonment. As a social fact, though, it is quite revealing. First, we should note the degree of literacy and technical skill which is implied in Henry’s ability to draw up an obligation, to insist on its being sealed (even if, surely, having William use his seal would have invalidated it) and delivered.

In terms of the background, it is impossible not to be frustrated at the lack of information about Beatrix and her role. We do not know Beatrix’s age, but can assume that she was unmarried, and therefore probably quite young. Was she in any sense a willing participant in events with Master William? Did she understand what was going on? How did she come to see things after the intervention of her brother and father? Perhaps all that can be deduced is that the evidence about the secret and indecent words of love must have come from her (otherwise they would not have been secret, would they?) so that suggests at least a later preference for family and reputation over an involvement with Master William. To a modern reader, it is difficult not to see this as something of a ‘grooming’ situation – man of God and trusted friend of the family, ‘our little secret’, etc. The truth, however, cannot be judged at this distance.

GS

20/12/2020

[i] JUST 1/675 m. 2 (AALT IMG 4702).

Emasculation-watch (with updates)

For a long time, I have been conscious of the odd habit of those writing about law of referring to the weakening, diminution or nullification of laws and institutions as ’emasculation’. It seems to be an obviously clumsy way of expressing these ideas, and one which identifies the good with the possession of male genitalia.

After doing some pre-tutorial reading for a cycle of land law tutorials on proprietary estoppel some time ago, I could contain my annoyance no longer: why are academics and lawyers 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? I started collecting examples. 

The one which started me off was a well-known case comment entitled ‘Emasculating Estoppel’ ([1998] Conv 210), but I soon saw that 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.

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.

Update 14/10/2018

Possibly the most incongruous use of the language of emasculation in the context of legislation relates to the eventual Sex Disqualification (Removal) Act 1919– an important Act which, however, did not go as far as an earlier version, the Women’s Emancipation Bill. As was pointed out in A. Logan, ‘Building a New and Better Order’? Women and Jury Service in England and Wales, c.1920–70’, Women’s History Review, 22 (2013), 701-16, at 702, ‘Cheryl Law claims the Act [Sex Disqualification (Removal) Act 1919] was an ‘emasculated’ version of the Labour-sponsored Women’s Emancipation Bill’. [C. Law,  Suffrage and Power: the women’s movement 1918–28 (London, 1997), 97.] Another author preferred the ‘broken reed’ metaphor for the Act’s subsequent effectiveness [M. Pugh, Women and the Women’s Movement in Britain, 2nd ed. (Basingstoke, 2000), 90.], which might just about be construed as a touch phallic, but is certainly an improvement.

Update 25/11/2018

Oh dear – just found another one. Reading over some chapters from J.W. Cairns and G. McLeod, The Dearest Birth Right of the People of England : The Jury in the History of the Common Law (Hart: Oxford and Portland Oregon, 2002), I came across an ‘emasculation’ in an account of alterations in the role/power of juries.

It’s in c. 11, J. Getzler, ‘The Fate of the Civil Jury in Late Victorian England: Malicious Prosecution as a Test Case’, on p. 218: ‘The emasculation or diminution of the civil jury was then followed in the second stage by its elimination.’ So – emasculation is more or less synonymous with diminution (and a preliminary to elimination. Nice imagery. What are the implications for the study of early women jurors, I wonder: was their inclusion actually all about some long-drawn- out phobia of jury male genitalia?

There are also a few more recent uses of emasculation in litigation to note. We have:

·         the risk of ‘the emasculation of fiduciary duties’ (Mrs Justice Cockerill, para. 72 of Recovery Partners v Rukhadze [2018] EWHC 2918 (Comm) [because trust and trustworthiness are male-genital related, and there’s no particular reason that women should know better …]

·         the danger of ‘the total emasculation of the civil law’ (HHJ Saffman, para. 9 of Durham County Council v James Bradwell 2018 WL 05823332 [because private law is characterised by its possession of male privates …]

·         the worry that a previous case will be ‘emasculated’ (with diminution of particular rights) if this case goes a certain way (counsel in Goddard-Watts v Goddard-Watts [2016] EWHC 3000 (Fam), mentioned at para 73 [because more male = more expansive, better etc …]

·         the concern that a proposed solution is based on the ‘emasculation’ of a statute section (Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust  [2016] EWCA Civ 607, para. 56) [because there is no special inappropriateness in using male-genitalia based imagery in a SEX DISCRIMINATION CASE …]

Those academics, lawyers and judges who care about such things might consider the many alternatives to ‘emasculating’ language – why not try ‘evisceration’ (we all have, and need, viscera) or nullification (because – big news – it isn’t actually necessary to use a violent physical metaphor at all!). For a more traditional and picturesque feel, at least in relation to legislation, why not go back to the old favourite ‘driving a coach and horses through [insert name of Act]’? Daft but at least not sexist-daft. And you may be able to style it out as knowing and retro.

(I have been watching out for emasculation-talk in relation to Brexit, but it seems that the inappropriate imagery of choice there is that of slavery, vassalage, colonialism. No better, obviously, but an interesting difference.)

Update 12/7/2020

Oh dear – here we are once more – counsel general of Wales, Jeremy Miles apparently thinks Boris Johnson plans to ‘emasculate’ the devolution settlement.

https://www.theguardian.com/politics/2020/jul/12/boris-johnson-accused-of-plan-emasculate-uk-devolution

Must we? Must we read about weird metaphorical portrayals of good legislation as having male genitalia, weakened legislation as lacking them? Grim. Sexist. Nonsense. Also in the context of ‘union’, (and indeed Boris Johnson) getting into genital metaphor mode brings up all sorts of unpleasant images and consequences. Best not.

The level of distraction (from an entirely plausible and righteous objection) is not helped by the additional corporeal metaphor of Brexit, or the UK government, bringing a big fist down on devolution – fist or men’s bits, make your mind up. Or is the ‘emasculation’ being done (somehow) with a ‘big fist’? And Miles apparently gets another legislative cliché in by talking about ‘driving a coach and horses’ through the relevant legislation. A little tiny bit behind the times?!

Update 2/9/2020

And one which jumped out in my sifting of articles for ‘Blended Learning’ preparation for undergraduate Legal History … W. Swain, ‘The classical model of contract’ Legal Studies 30  (2010) 513-32, 532  the emasculated law of restitution.’ Always did find restitution a bit of a macho thing …

… To be continued.

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.

 

Update 14/10/2018

Possibly the most incongruous use of the language of emasculation in the context of legislation relates to the eventual Sex Disqualification (Removal) Act 1919– an important Act which, however, did not go as far as an earlier version, the Women’s Emancipation Bill. As was pointed out in A. Logan, ‘Building a New and Better Order’? Women and Jury Service in England and Wales, c.1920–70’, Women’s History Review, 22 (2013), 701-16, at 702, ‘Cheryl Law claims the Act [Sex Disqualification (Removal) Act 1919] was an ‘emasculated’ version of the Labour-sponsored Women’s Emancipation Bill’. [C. Law,  Suffrage and Power: the women’s movement 1918–28 (London, 1997), 97.] Another author preferred the ‘broken reed’ metaphor for the Act’s subsequent effectiveness [M. Pugh, Women and the Women’s Movement in Britain, 2nd ed. (Basingstoke, 2000), 90.], which might just about be construed as a touch phallic, but is certainly an improvement.

Update 25/11/2018

Oh dear – just found another one. Reading over some chapters from J.W. Cairns and G. McLeod, The Dearest Birth Right of the People of England : The Jury in the History of the Common Law (Hart: Oxford and Portland Oregon, 2002), I came across an ‘emasculation’ in an account of alterations in the role/power of juries.

It’s in c. 11, J. Getzler, ‘The Fate of the Civil Jury in Late Victorian England: Malicious Prosecution as a Test Case’, on p. 218: ‘The emasculation or diminution of the civil jury was then followed in the second stage by its elimination.’ So – emasculation is more or less synonymous with diminution (and a preliminary to elimination. Nice imagery. What are the implications for the study of early women jurors, I wonder: was their inclusion actually all about some long-drawn- out phobia of jury male genitalia?

EmasculationWatch update 30/4/2020

Emasculation still going strong. The same old things about emasculating sections, statutes etc. are still sadly in evidence.

Some notable new entries!

A competition lawyer talks about a conclusion being ‘emasculated’, and couples it with an image of a snake eating its own tail – The Competition and Markets Authority, Flynn Pharma Limited, Flynn Pharma (Holdings) Limited (“Flynn”) v Pfizer Inc., Pfizer Limited (“Pfizer”) v The Commission of the European Union [2020] EWCA Civ 339, 2017 WL 11508568, at 232. One for the Freudians, I think.

The protective nature of male genitalia: men’s bits must be understood as somehow protective, since we have a nice reference to ‘emasculating’ protection in Mr Lee Walsh v CP Hart & Sons Ltd [2020] EWHC 37 (QB), 2020 WL 00137207, at 53.

A cursory look suggests that there’s most waving of ‘emasculation’ in commercial cases these days. It would be an interesting thing to compare and contrast the language used in different sorts of case (and then cross-reference with gender, social class etc. of lawyers in various areas?).

 

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.