Tag Archives: law reports

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.

 

Just when you thought it was safe to go back into a volcano … or the law reports

Inspired by the recent ‘Sharkano’ story (hammerheads surviving in an acidic volcanic crater – clearly a bad horror film waiting to happen – I am thinking Shannen Doherty in the lead role of misunderstood voice of reason, following her turn in the Killer Lampreys film: http://www.mirror.co.uk/news/technology-science/science/terrifying-heat-proof-sharks-found-living-6057016 ), I felt compelled to check out the role of sharks in legal history.

Hard to believe as it may seem, they do not feature in the Year Books (though there are many cases on fishing rights). I had been hoping for a neat Magna Carta link-up with a shark being caught in an illegal fish weir, but sadly no joy. So on to the English Reports. Not surprisingly, there is a ship called the Shark (most ER searches turn up at least one ship-name case for whatever is placed in the search engine) – Neptune the Second (1814) 165 ER 1380, the Shark coming in on p. 1381); see also 143 ER 303, 312; 144 ER 212; 156 ER 463 for this ship, or a similarly named one. There are also a number of parties to cases with the surname Shark.

At last, an actual shark appears in In re the ‘Eleanor’ (1809) 165 ER 1058, an appeal against condemnation for breach of the navigation laws. The shark is mentioned in the ship’s log book as having been caught by the sailors, and this is part of the case against the claim that the ship was forced into port by distress. No further details of our fishy friend, sadly.

More recent cases from England and Wales feature plenty of ‘loan sharks’, an idea which seems to go back some way – see e.g. the similar usage of ‘land sharks’ (and harpies) in a case of a sailor duped into signing a disadvantageous agreement: Taylour v Rochfort 28 ER 182. There are many tired metaphors involving ‘shark-infested waters’ and ‘swimming with sharks’ (for bullying business practices of various kinds, probably not involving sleek top-of -the-food pyramid predators), an intrigung disputed invention called the ‘flying shark’ (sounds a bit Sharknado to me), a shark trade-mark row, Then there is a family case in which part of the evidence was a child’s drawing of his father being eaten by a shark – W v. T [2007] EWHC 2312, and the spoilsport refusal of planning permission for a fibre-glass model of a shark crashing into the roof of a suburban house- Oxford CC v Heine 91992) 7 P.A.D. 481. There is one ‘murder by shark’ case, R v Clarke and King [1962] Crim. LR 836, in which the victim was thrown into shark-infested waters and not seen again. Looking further afield, there is an amazing murder case with a crucial role for a shark: the Sydney Shark case in S. Smith, Mostly Murder (1959) p. 222 ff. I won’t spoil it, but it involves a vomiting shark, and a theory that a man was murdered and his remains cast out to sea, only for some of them to come back inside the said vomiting shark.

To return to the shark as a metaphorical beast, one well-known association is, of course, between the shark and the lawyer – see the well-worn joke about sharks, lawyers and professional courtesy. This has long roots as well – a poetic guide to pleading of 1803 has characters called Hawk and Shark: J.J.S, The Pleader’s Guide (1803) Lecture III – and I am sure there will be earlier antecedents. Another one for the ‘to do’ list.