Tag Archives: patriarchy

‘Accordyng to the lawes of god and womanhode’: scenes from a late-medieval birthing chamber

Note that a slightly revised version of this has now appeared on the Bristol Law School Blog 

In some work on qualification for tenancy by the curtesy a few years ago, I had occasion to look into cases relating to expectations as to who was present at a birth in medieval households (at least households of some wealth and land). The curtesy cases gave sometimes turned on matters occurring at or shortly after a birth, and thus included some interesting insights on what went on, or was thought to go on at this time. I hope that study added something to scholarship on medieval childbirth practices. Curtesy is not the only sort of legal proceeding in which we might see a description of childbirth or its aftermath however: there are some rather interesting comments on this in a case relating to trespass and ‘riott’, from the reign of Edward IV, which I will note here.[i]

The comments come in the petition presented in 1473 (and repeated in a King’s Bench plea roll of 1476) by a Yorkshire knight, Sir John de Assheton, in connection with his allegation of mistreatment at the hands of a group of ‘riottours’, at about 2 a.m. on 6th November 1470, with one John Myrfeld at the head of the list, who, he said, attacked his home at Howley (Morley, Yorks), took him off to Pontefract castle, and made him seal a bond in their favour. Partly as a strategy to show just how dastardly the ‘riottours’ were, but also partly to ward off any suggestion that he had given in and gone off with them rather too easily, Assheton made great play of the fact that, at the time they had attacked his place, his wife was in confinement (so, you see, his submission was really all noble and all about protecting his wife and others).

Anyway, whatever may be the reason for the mention of the childbirth scene, it does give a few interesting passages, which might be added to our knowledge of this part of medieval life.

So what do we get? Assheton does not bother to name his wife, which, of course, says much about her position in the grand patriarchal scheme of things (and I can’t help but think it’s rather weaselish when he is trying to use her to make himself look better …). He does tell us that she was ‘newely delyvered of child and liyng in childbed with other divers his susters, gentilwomen and frendes accompaigned’ at the time of the attack. Because of the attack, which was said to have involved pulling down walls, flashing of weapons (listed) and the application of ‘fyre’. Assheton did eventually say that he experienced ‘fere’, but only after he had attributed even stronger emotions to his ‘wif’,  described as fearful, ‘in right grete dispare of hir lif’. The ‘gentilwomen’ who were with his wife, were also said to share her feelings.

Here, we also get a nice, almost throw-away comment: they were there with his wife ‘accordyng to the lawes of god and womanhode’. The job these words are doing, in his narrative, is, I think, that of highlighting the goodness, the good order, of the Assheton household, in order to make a telling, condemnatory, contrast with the ‘riotous’ and, perhaps ungodly, behaviour of his adversaries.

As he gets towards his own submission to the attackers, there is some repetition of remarks on the state of his wife, with some additions: she is ‘new in child bed’ but now also ‘in the bandes of our lady’ and cannot be moved without ‘ieop[ar]dy of hir deth’. The ‘bandes of our lady’ are rather interesting: should we be thinking about metaphorical ‘bandes’, or should we be thinking about the use of some sort of birthing girdle, or, indeed, both of the above? This might be a conventional saying, unknown to a simple legal historian, but perhaps not: might it shed some light on perceived workings of medieval delivery-protection practice?

Assheton does list the saving of his own life as well as hers, and those of the others present, as motives for his surrender, but the point has been made – he was really thinking  of his wife (damn, what was her name again?).

Nothing much turns on these childbed allegations, and the case takes off in a different direction, but it is good to get these small clues and pieces of description. While Prof. Monica Green has made a strong case for the moves of male medieval medical professionals into the area,[ii] this case reinforces the idea of conventional childbirth being a women-only event (or at least being held up as women-only, possibly for rhetorical purposes). This women-only quality is given divine backing, as well as the sanction of ‘the lawe of womanhode’ (which I have not seen before). It raises all sorts of questions about ideas of both ‘lawe’ and ‘womanhode’, and about how this concept relates to the more familiar ‘secrets of women’. Much to ponder.

GS

4/2/2024

 

Update

Very satisfying – I have matched this case to the Year Book report, which is Seipp 1476.015. This, incidentally, puts the (still unnamed) wife in the forefront of the allegation in the case, making it one of Mirfield (or ‘J Marsel’) having ousted W and Ashton’s servants from P’s house. Interesting change of emphasis, effacing John Assheton’s capitulation and fears. What to conclude from this, other than a reinforcement of the need for caution in deducing attitudes to gender from just one medieval legal source?

8/2/2024

Image – yes, I know this is a later ruin, but still, vaguely appropriate.

[i] KB 27/858 m. 66 ff.  The petition comes from 1473.

[ii] See, in particular, M. Green, Making Women’s Medicine Masculine: The Rise of Male Authority in Pre-Modern Gynaecology (Oxford, 2008).

a shadow

Take cover[ture]

CW: Yes, I am going to talk about patriarchy again. Any delicate little flowers liable to stamp their feet/roots at that should look away now.

While my mind is on coverture, let me add this – a bit of thinking about the way in which patriarchal ideas continue to exert influence long after the point at which it is generally supposed that they were abandoned. Despite assumptions that the doctrine of coverture was killed off with the changes brought in by late 19th C women’s property legislation in particular, the idea of coverture continued to dribble its poison into the law and life of the twentieth century, and beyond.

With my modern law lecturer hat on, I want to confirm that today’s law students, if they follow their reading lists, will encounter the idea. There are statements about the doctrine being ‘defunct’,[i] but though much of its former substance is gone, coverture has never been abolished in explicit terms in England and Wales. And that matters.

There are some surviving statutory provisions which refer to it. The one I come across every year when I am preparing my easements teaching in Land Law is the Prescription Act 1832 s.7. It is true that this statute is rarely used, but it remains grating and insulting to see the continued promotion of this language in an official source. It would probably also surprise people to learn that it is still felt that there is a need to define ‘coverture’ in the glossary of very recent current government guidance on matters of tax. There is also one attempt to use a (thinly disguised) coverture argument which I come across every year in Land Law, in the leading case of Williams & Glyn’s Bank v Boland. There was an attempt to argue that a wife’s presence in a house was not to be taken as ‘actual occupation’, but as a ‘shadow’ of the occupation of her husband. So now he is some solid object interposed between her and the sun (the law?), rather than a smothering blanket (well, that is how I have always visualised coverture), but Lord Wilberforce made the connection between this argument and the coverture-as-unity idea.[ii] More modern legal arguments in England and Wales do not seem to approach coverture reasoning quite so closely, but it is interesting to see coverture being brought up in a slightly different way, as ‘historical background’ to modern decisions, and perhaps with an undertone of the present elite congratulating itself by reference to (a simplified view of) the past. Thus, in  A NHS Trust v X [2021] EWHC 65 (Fam), in the Family Division of the High Court, in a case which was not anything to do with marriage and its effects, but was about whether a Jehovah’s Witness child could refuse a blood transfusion, a judge, at 56 nevertheless shared with his audience the statement that ‘Once upon a time the [feme covert] …, by reason of her coverture, was treated as lacking the capacity she had had as a spinster and only recovered as a widow or on divorce (feme sole).’ This, it seems to me, shows a lasting fascination with the idea of coverture, and also suggests that modern lawyers are not so far away from medieval lawyers, who, if the reports which made it into the Year Books are concerned, certainly enjoyed talking about coverture, even in cases in which it was not strictly relevant.

And so to the usual question – so what? Well, in my view, the fact that there are these lingering shadows of the diminishing and discriminatory doctrine of coverture still to be seen should spur legal historians on to explore its history, to show its continuities and discontinuities, to resist easy narratives of progress: we are fooling ourselves if we think that there is such a thing as a ‘clean break’ from the patriarchal (yes, said it again!) institutions of the past.

 

GS

1/10/2023

[i] See, e.g., Armstrong v Onyearu and another [2017] EWCA Civ 268; [2018] Ch. 137, argument of  Simon Passfield.

[ii] [1981] A.C. 487.

 

Image – a shadow, probably not in actual occupation. Photo by Rene Böhmer on Unsplash

St Dwynwen's Church, ruined. If you know, you know.

The embraces of the past

(I am not sure that this one is ever going to see the light of day as a proper REF-able ‘output’, but I enjoyed writing something on aspects of the common law’s treatment of married women it for a conference on coverture in 2022, and I feel moved to put some of it ‘out there’, for anyone who feels inclined read it, so here we are: some marital musings)

‘Coverture’ is a word well known to legal historians: the explanation for many limitations placed upon married women, and sometimes something of an excuse to leave them out of consideration, and get on with telling the more agreeable story of rises, triumphs and men. Nevertheless, the last decade or so has seen some particularly keen excavation and questioning of the nature and place of ‘coverture’ in legal history. Building on that work, I have a few thoughts.

I am going to start in what might seem like fairly unpromising territory to anyone but the most obsessive medieval property law fan: pleading in relation to voucher to warranty. And if anyone needs a refresher on what voucher to warranty is, this is something which might happen in a land dispute: a defendant is calling on somebody to back him up, and say that he does actually have a claim to the land in question. Sometimes that backer-up, the ‘vouchee’, does not want to take on this potentially onerous responsibility, and might ‘counterplead’ (i.e. argue that he should not have to) and so there would be a trial within a trial, to sort out that matter.

We can see an example of this counterplea to voucher to warranty in a land case from Herefordshire from 1292 – a mort d’ancestor case, in which one party (Ralph de Toni) claims that he should have [seisin of] some land, currently held by Roger son of Richard de Hereford, because it was held by his (Ralph’s) aunt Margery at her death, and he is next in the conventional line of inheritance. Roger was not having it, and vouched to warranty Thomas, son and heir of William de St Omer. Why should Thomas have to warrant? Well, the story was that Roger’s father, Richard, had been granted the land by William de St Omer and Petronilla his wife, by a charter with a clause which said that William, Petronilla and their heirs would warrant Richard and his heirs – so they committed themselves and their heirs to supporting Richard and his heirs if the latter faced a legal challenge of this sort. Thomas did not want to warrant, though. He found fault with Roger’s pleading: pointing out that the charter was in the names of William and Petronilla, and though William was dead (and so was represented by Thomas), Petronilla was alive, and should also have been vouched, but had not been. Roger tried to say that it was fine to leave her out, and he had not made the sort of mistake which would mean his case could not succeed. His argument was that even though the charter was under names of both William and Petronilla, it only ‘had vigour’ under William’s name. Why? Because [and here comes the ‘coverture’ bit at last] Petronilla could not oblige herself by charter, as, at the relevant time, she fuit inter brachia Willelmi viri sui’ (was within the arms of William, her husband). It was found, however, that, in this case, the ‘‘in his arms so effaced and irrelevant’ argument did not win. At law this was a joint transfer, so both William’s representative and Petronilla should have been included. The immediate outcome was that this was a bad voucher and Thomas did not have to warrant Roger.[i]

There are other quite interesting aspects to this case, but let us focus on this idea, this formula, of a wife being ‘in her husband’s arms’, and unable to do things. It seems that this was not a complete ‘one-off’, nor a factual statement about Petronilla actually being within William’s arms at the key moment, but a juridical term: there was a similar usage in a French-language Year Book report, attributed to 1311, and to everyone’s favourite cantankerous early 14th C judge, Chief Justice Bereford. This was another voucher to warranty case, and, once again, a husband and wife had transferred some land to X, defendant in a land action, and X vouched only one party – here, the wife’s heir, the wife now being dead but the husband alive. It was argued – successfully – that both the husband and the wife’s heir should have been vouched, because the wife, who was, at the time, ‘enter ses bras’ could not make a transfer of land on her own.[ii] [Substantive point QI – both parties needed].

That is a lot of land law to get to [a fairly arcane legal point and] two little phrases. Why do I think these cases, and this ‘within his arms’ business, are interesting? Well, first of all, I think these examples show something of the contexts in which ‘coverture’ type questions could arise in medieval common law. These are hardly big, exciting cases dealing head-on with the patriarchy and the rights of women: the reports show us that these are instances of men arguing about land, looking for a technical mis-step in pleading or procedure. Nobody really cares about Petronilla in that 1292 case: she is a device. It seems important – telling – that ‘the coverture stuff’ quite often comes up on very small pleading points, not big ‘rightsy’ questions.

Secondly, there is the image itself: the wife in the husband’s arms. What does that specific image suggest, and how does it relate to existing scholarship on ‘coverture’? It seems to me to be very ambiguous: should we be seeing it as an embrace or a restraint? Should we be thinking vertically or horizontally? There are resonances with the formula in medieval ‘criminal’ law, in appeals (individual prosecutions) brought by a widow for the killing of her husband: until the later 14th century, she had to claim that he had died ‘in her arms’. The ‘in his arms’ formulation is a bit different to the better-known expressions relating to married people in medieval and later legal sources, with their ideas of unity or domination. ‘Within his arms’ seems to me to be more complex, and more obviously temporary. In my view, it reinforces the argument – made by others[iii] that the central idea of ‘coverture’, or the husband/wife relationship at common law was unsettled in the medieval period (though within male control, since the power in that embrace, to contain, or to release, was all with the man).

And does it matter, this argued-for unsettled nature of medieval ‘coverture’? Is this just some academic navel-gazing, disappearing up her own backside and furiously ‘nuancing’ things long gone? It does seem to me that it is important to keep making the point that some of the apparently monolithic, unchanging, institutions and ‘doctrines’ of the common law were not inevitable, nor did they descend, fully formed, without being adopted and adapted by individuals and groups with influence over the content of the law, who saw in them some advantage to themselves and their view of the way things should be. Throwing back the sometimes lazily-arranged covers, exposing the complexity the common law’s treatment of women, appears necessary, both to do what we can to understand the conditions (physical, legal, cultural) in which countless women lived their lives, and also to recognise the continuation into our own lives and times of some ways of talking about, thinking about, and behaving in, marriage and other domestic relationships.

And so, dearly beloved, will I continue on my obscure little way, going on about this women stuff, and possibly even using the word ‘patriarchy’ from time to time?

I will.

 

GS

30/9/2023

 

[i] JUST 1/303 m.21.

[ii]Seipp 1311.21

[iii] See, in particular, Married Women and the Law : Coverture in England and the Common Law World, edited by Tim Stretton and K. J Kesselring, McGill-Queen’s University Press, 2013 (editors’ very helpful introduction, and c. 2 (S.M. Butler).

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?).