Tag Archives: metaphor

Byways and rabbit holes in ‘bastardy’ research

Today, I have mostly been creating a very interesting internet search history by looking up variations of the word ‘bastard’ in various legal and historical databases. I have a legitimate (!) reason to be doing this , as I prepare a paper on such things for the SLS conference, but it does still feel a bit like being back at school and looking up rude words in the big German dictionary in preparation for an (eventful) exchange trip to Hamburg.

Anyway, all of this searching revealed some interesting uses of ‘bastard’ – the expected ones (status, insult) plus some more metaphorical, with various products and concepts described this way (not always with the same implications). This will all be useful stuff for the SLS paper. But I spent a happy few minutes going off down another path, when a ‘bastard’ reference brought me back to questions of sex and gender, and the way in which they were understood in different historical and cultural contexts. This is something I touched on in c. 1 of Women in the Medieval Common Law, but I had more notes on it than I could use in the book, and it struck me that there are aspects of the area which I’d like to revisit.

The first step from ‘bastard’ searching to issues of sex/gender was coming across a case of mistake as to whether a ‘bastard’ child was male or female, in an article in the excellent Welsh Newspaper Archive. It caught my attention because of its Bristol context (I am very aware that, though I have lived here for ages, I have not really made an effort to write about it, so it is always good to find something with a local angle). The case was an attempt by the mother of a child to enforce maintenance payments for the child by the man she claimed was the father (this is all long before DNA tests or even blood tests, so in a world of extreme difficulty in pinpointing paternity). It took place in Bristol, before the local magistrates, in 1869. The Western Mail of 10th June, 1869 notes that there had been an ‘EXTRAORDINARY MISTAKE IN THE SEX OF A CHILD’. The defendant, Daniel Williams was charged with failure to pay sums due under a ‘bastardy order’ (i.e. an order that the man said to be the father of a child should pay towards its maintenance). The mother in the case was the splendidly named ‘Jane Vulture’. On the defendant’s behalf, it was argued that the order in question had specified that he had to pay to support a male child, born on 9th November, 1866, but the child now brought for inspection was female. Ms Vulture may, perhaps not have been able to read, since the story seems to have been that she signed statements about the child which were read out to her – and now claimed that she had never said it was a male, and that that must have been a mistake by the clerk. Sadly for her, this did not sway the court, and the case against Williams was dismissed. Who knows the rights and wrongs of it – was this a different Baby Vulture from the one initially the subject of an order, or did Williams take advantage of a clerical error to weasel out of his responsibilities? The case was not, however, quite what I had thought on seeing the headline. Given current controversies about the validity of biological sex and gender identity, I jumped to the conclusion that this was a case of ‘intersex’ or something similar. Wrong, I think. There is no suggestion of the possibility of doubt here.

And where did that lead me next? Well, I did wonder what contemporary ideas were about this now-contested borderline, so I had a little search for that odd old term ‘hermaphrodite’. That came up a fair bit in my medieval investigations, and I had already had glimpses of its later uses, so it was interesting to probe a bit more in easily-accessible online archives of newspapers from the 19th and early 20th Cs. This turned up two definite but unequally sized strands of material – a few cases of what do look like possible cases of ‘intersex’, but far more metaphorical uses of ‘hermaphrodite’.

On the ‘factual’ side, there are newspaper reports which seem remarkably like medieval/early modern ‘prodigy/monstrous birth’ stories. Note, for example, tales of ‘hermaphrodite’ babies in Llanfynydd in 1851 and  Cardiff in 1906. There are certainly things to consider here, in relation to tone of report, and the apparent response of parents and medics. It is the more metaphorical usage of ‘hermaphrodite’ which particularly interests me, however. This comes up in relation to transgression of gender norms – such as a female cyclist wearing some form of trousers, in a ‘funny’ article from 1896. It is also used in relation to linguistic gender, in relation to bardic expression, in articles from the Welsh-language press, e.g. in 1851. Interestingly, it also crops up in areas with little to do with gender, even in its linguistic form, simply denoting an idea of mixture, or odd/uncomfortable/inappropriate mixture. Thus we have ‘moral hemaphrodisim’, ‘political hermaphroditism’ and even nautical and military hermaphroditism (mixed types of rigging and mixed army-navy organisation respectively). In many ways, there is an overlap with the metaphorical use of ‘bastard’ for mixed concepts, which is coming up in the SLS paper I am writing (‘bastard feudalism’, ‘bastardy’ in relation to the Scots ‘not proven’ verdict, amongst other usages). I am yet to work out when it would have been appropriate to use ‘hermaphrodite’ and when ‘bastard’ – presumably the latter is a little more critical than the former, though both are somewhat critical. More work to do!

 

GS

13/7/2021

Image – a rather gratuitous bunny. Yes I did choose the title to enable me to use it …

Photo by Quinn Secker on Unsplash

 

Semen and semantics – considering legal metaphors[i]

A little reading this morning on law and metaphor, as I think about the paper I need to write for the SLS conference in September,[ii] which is going to look at bastardy, legitimacy and law/legal methods (a bit more on it here). Not surprisingly, others – lawyers and legal academics – have considered the issue of metaphorical talk in law, though, luckily, not the precise issue I mean to discuss.

Metaphor is an important theme for those of us interested in the history of women and law – especially in relation to coverture, so it is something which has been on my mind quite a bit in recent years. The bastardy angle is slightly different though – I want to think a little more expansively about the links between some of the problematic metaphors and expressions used in relation to bastardy and legitimacy (especially the ‘born within the four seas’ tag, in relation to adulterine bastardy,  but others too) and the process of ‘legitimate’ legal development, considering metaphors of (male POV) reproduction (and its impossibility), ‘father figures’ in law and legal history.[iii] In 20 minutes. Will it work, or will I end up getting too far into areas (language, jurisprudence) of which I know very little? We shall see.

My general reading so far has highlighted the sheer number of doctrinal tests which ‘get metaphorical’ – in all areas, but perhaps especially on the ‘civil’ side). Writings highlight their utility or problems, but there is probably quite a lot to say about their use as display within the legal profession and to/by its academic associates.

One thing I have noticed in my reading up to now is the difficulty people seem to find in writing about legal metaphor without using metaphors in that discussion itself. For example, this one at 257 states that  ‘[l]egal discourse is pregnant with metaphor., ’[iv]  this one (at p. 8) discusses metaphors ‘taking root’ in legal and other language, while this one, is generally wary of legal metaphors, but can’t resist (at 19) referring to a ‘seminal judgment’. That last one is a term I dislike – I know that semen-seminal could be interpreted generally, as ‘seed’/seedy (OK, I know, ‘seed-related’), but let’s be honest, sunflower seeds are not the first sort of seed that comes into anyone’s head in relation to those words. (And quite apart from the gendered sperminess of it, it has a rather uncritical aspect to it, justifying the process of legal development as somehow inevitable).[v] I certainly need to do some more thinking about how the apparently morally-neutral biological idea of the ‘seminal’ judgment relates to the morally-inflected legitimate procreation metaphors seen in some other places.

(And a final random thought – what would we call an ‘Ockham’s Razor’ for metaphors?).

GS

7/6/2021

[i] (I know – tabloidy title: never claimed to be classy …)

[ii] (seems a long way off but I already know I am going to have a large batch of marking in August, and, well, a break after the current lot might be quite nice/necessary if I am not going to collapse)

[iii] Thinking about this now, the main rivals to the fatherhood metaphor for legitimate legal development are probably that of botanical growth, that of rivers  and that of orthodoxy/heresy. Also n.b. the absolute ‘metaphor bingo line’ would be refs to fatherhood + ‘seminal’ + legitimacy.

[iv] Ah – takes me back to the ‘negative pregnant’ in medieval pleading …

[v] Maybe it’s compound metaphor as well, since presumably semen came to be used for … well … semen … before the motility of sperm was observed (otherwise, clearly, the people who choose words would have gone with something a bit more tadpoley). I can see I have work to do …

Photo by Erik van Anholt on Unsplash

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?).