LAW, SOCIO-LEGAL STUDIES AND MASCULINITIES

The discipline of law, I have argued in other work, has historically had a rather different relationship to the study of men and masculinities compared to many other fields within the social sciences and humanities (with contrast particularly marked with sociology and the legally related area of criminology). In both civil and common law jurisdictions, engagement with masculinities is certainly marginal to mainstream legal scholarship (prompting the question, indeed, what has all this possibly got to do with law?). Even in law, gender, and sexuality studies, curiously, it is rare, still, to find discussion focused specifically on men and masculinities. This absence can, in one sense, be seen as somewhat surprising given how an engagement with and attempt to challenge the practices of men has long been a central theme within the now rich literature on women in law and feminist legal scholarship. Engaging men in gender equality projects more generally, ‘to try and galvanize as many men and boys as possible to be advocates for gender equality’, is itself widely seen, across a wide range of political and policy contexts, as a key part of affecting change whereby, put simply, ‘Men ….Gender equality is your issue too’.Footnote ¹

This analysis of ‘what men do’ as men (that is, as gendered subjects) has, however, tended to be a topic that all too often fades away from view within debates around gender equity and law; and if law's ‘masculinity question’, as it has been termed, has been a central theme within feminist legal work over the past four decades concerned with the various links between ‘doing law’ and ‘doing masculinity,’Footnote ² the relationship between masculinities research and feminism has itself been complex and often difficult. During the late 1970s and 1980s, when the topic was first emerging in the academy, particular concern was expressed about the institutional politics of studying men (whether it might divert funding and political focus, for example, from women's studies). If the contours of contemporary debates are rather different, in the field of law, as other disciplines, the focus of feminist work has understandably tended to be women and women's lives. At the outset, therefore, in exploring issues of methodologies and sources, put simply, it is necessary to ask what we are doing when we ‘study men’? As Pini and Pease observe in their book Men, Masculinities, Methodologies, “there is nothing new or intrinsically ‘good’ or ‘bad’ about studying men and masculinities: ‘it ain't what you do, it's the way that you do it.’ Footnote ³

By the early to mid-1990s in law, drawing on the extensive body of interdisciplinary scholarship commonly referred to as the critical study of men and masculinities (or CSMM),Footnote ⁴ masculinity was already, to a degree, ‘on the agenda’ in legal scholarship in new kind of way; positioned, broadly, as part of attempt by feminist and pro-feminist legal scholars to question how, across areas of law, men continue to be positioned as the unspoken, taken-for-granted (‘benchmark’) norm in ways that drew, in particular, on certain assumptions about masculinity.Footnote ⁵ Tracking to debates within feminist legal work at the time, this refocusing on men was seen as part of a more general attempt to stop the depiction of women as ‘the problem’; to question the depiction of women in terms of ‘otherness’ by deflecting ‘the objectifying gaze from women and indigenous people to benchmark masculinity and heterosexuality, as well as ‘whiteness'’ …[ part of] an attempt to disrupt the conventional orderings of modernity within legal texts’.Footnote ⁶

In more recent years there appears to have been a significant step-change in these pro-feminist engagements with masculinity. In particular, legal studies internationally has seen the emergence of a now distinctive body of scholarship seeking to explore and conceptualize more precisely what it means to speak of ‘men’ as a gender category in relation to law.Footnote ⁷ This work is drawing, to varying degrees and in different ways across countries (see below), on the CSMM scholarship referred to above.Footnote ⁸ In the United States, in particular, this has taken the form recently of an engagement with ‘multidimensional masculinity theory’.Footnote ⁹ By exploring and developing well-established themes within feminist legal work, around, for example, the problematic, contingent nature of the ‘man’ of law, the interconnections between masculinity and legal cultures, institutions, practices and reasoning, this legal masculinities scholarship raises some intriguing questions about sources and methods within socio-legal research around gender, law and sexuality.

In short, two developments appear to be occurring. First, the discipline of law is becoming more concerned, building on an established body of feminist jurisprudence and gender-law scholarship, to explore the ‘man’ or, more accurately, the ‘men’ of legal discourse; what it means to speak of the gendered (masculine) nature of law's institutions, practices and reasoningFootnote ¹⁰. This work is challenging not just what it means to approach and conceptualise a particular form of masculinity as ‘hegemonic’,Footnote ¹¹ a concept that has been used extensively in law and gender work to date. It also questions what it means to speak of law itself as, in different respects, masculine. Second, at the same time, other disciplines (not just sociology) are themselves seeking to engage in a more theoretically and politically sophisticated way with the power of law in accounts of how ideas about masculinities might relate to understanding, and challenging, the power of men. That is, a critical analysis of law and legal regulation is beginning to inform wider interdisciplinary engagements with masculinity in the social sciences, with discussion of law now featuring regularly, for example, in handbooks, encyclopaedias and disciplinary overviews of the field of masculinity studies.Footnote ¹²

What is the background to this development therefore and how, in particular, does it connect to issues of sources and methods in socio-legal research?

HOW DID WE GET HERE? POLITICAL, INTELLECTUAL AND INSTITUTIONAL INFLUENCES

This legal masculinities literature, I have suggested elsewhere, has been shaped by two key influences.Footnote ¹³ The first is conceptual debates within the wider CSMM scholarship; a body of interdisciplinary theoretical and empirical research on men and masculinity that has sought, in different ways and from a variety of perspectives, to explore the gender of men in a pro-feminist manner. The work is marked by a diversity of approaches and it reflects different theoretical and political alignments, not least with regard to the debates engendered by postmodern-influenced critiques of hegemonic masculinity. With regard to questions of methods, meanwhile, it has been suggested CSMM presents both continuities and discontinuities with other research approaches, non-feminist and feminist, and that studying men ‘as men’ can raise some particular issues of methodology.Footnote ¹⁴

In the case of law, as in other disciplines, for example, this means considering what topics are to be studied and what the impact may be of who is doing this research. How do questions of prior knowledge and positionality then shape researching men in law (for example, in regard to interviewing or ethnographic work)? What, in short, is the relationship between those studying and the men studied? In noting the historical dominance of sociology in this field, these questions are seen by Pini and Pease as having significant implications for thinking about the position and historical dominance of men within academia more generally; how this, in turn, has structured what counts as knowledge (including of course in relation to the historically male dominated field of law). Looking to specific themes within feminist work and critical race theory, meanwhile, it is not difficult to see the relevance of this discussion for law in terms of approaching the ‘benchmarking’ of the masculine and the multidimensional nature of masculinity; how power relations in the research process, including questions of location, reflexivity and the relationship between researchers and researched, and encompassing complex issues of ethics and emotion, might apply to researching men and masculinities, both in a general sense and within specific contexts relating to the legal field.

The second key influence on legal masculinities work, and most significant in terms of political orientation, is feminism, feminist legal scholarship and themes within wider sociological work on gender, for example around anti-essentialism, intersectionality, sex/gender critiques and queer theory.Footnote ¹⁵ These feminist accounts of the interconnections between law and masculinity, on closer examination, cut across diverse standpoints and approaches. They have informed socio-legal analysis of the way masculinities interrelate to law in three distinctive fields in particular. First, the study of legal practices and institutions; the work, for example, of lawyers and the judiciary; the courts, the police and prison services; of legal education and administration of criminal and civil justice.Footnote ¹⁶ Secondly, legal methods and reasoning; how gender and ideas about masculinity can relate to particular ways of thinking about the law; how core legal concepts such as justice, individualism, reason, autonomy and freedom have themselves been associated at particular historical moments with men and some quintessentially ‘masculine’ values.Footnote ¹⁷

Third, and finally, feminist work has considered masculinity via a focus on legal discourse. In a strand of scholarship informed in particular by postmodern inflected accounts of law's power, Anglo-American jurisprudence during the 1990s sought to explore the different constructions of the ‘man’, ‘men’ or ‘masculinities’ of law across diverse areas of practice.Footnote ¹⁸ This ‘third stage’ work, in particular, opened up to the legal gaze the study of the ‘Man’ of law; for, I have argued elsewhere, if the Woman of law was displaced, revealed (her)self to be a sexed, classed and raced subject, a question fell to be asked - what did this mean for feminism's, or law's, ‘Man’? This may not have been a primary concern for legal feminism as we have seen – but it was now on the agenda in legal scholarship.

LEGAL MASCULINITIES SCHOLARSHIP: SOME EXAMPLES OF THE KINDS OF STUDY UNDERTAKEN AND TOPICS

Building on the above discussion, a rich picture has subsequently emerged in legal scholarship of the ‘man’ or rather, the ‘men’ of law. Across diverse areas of law and involving the analysis of legal cases, legal statutes, utterances and diverse representations of the legal field, socio-legal research has unpacked the ways ideas about men and masculinities have been variously regulated and understood, constructed or depicted in law. This work has addressed the legal regulation of emotion, love and personal commitments, of intimacy and sexual desires and activities, as well as more familiar questions about the world of ‘public man’ as a subject of political and legal theory. It has encompassed gendered ideas of legal responsibility and rights, community and citizenship, sociality, vulnerability and autonomy.

To give just a flavor of the scholarship, masculinity has been utilised in engagements with law and legal systems in relation to topics as diverse as; studies of male sexuality, marriage law, transgender and their relationship to law's epistemic frame of sex/gender; masculinities and criminal justice systems (of, for example, men in prison, of gendered police cultures); the multidimensional nature of masculinities, and in particular complex intersections with race, ethnicity, class, sexuality; legal responses to youth crime and urban disorder, a notable theme during the early 1990s; legal education, legal academics and the masculinities of university law schools; gendered assumptions underscoring employment law; law and censorship, sex offending and the relationship between men and legal feminism; in accounts of men, families and parenting, fatherhood and law, fathers' rights movements and the place of the father within legal policy debates;Footnote ¹⁹ in studies of international law, environmental crime, men's bodies and men's health, of health care law and laws around reproduction;Footnote ²⁰ and in relation to men's violence(s) against women, children, and other men, and the development of legal responses to such violence. Other areas, meanwhile, are just beginning to be addressed. There exists, for example, a growing literature on transnational men, managements and organisational cultures, the interconnections between men's work, their family practices and ‘personal lives’, the interplay of fatherhood, intimacy and emotion. Yet the latter work has rarely been applied to the field of law and studies of, for example, gender equity and inclusion in law firms, the legal profession and university law schools.

If it is of course not possible to summarise all the themes contained within such a varied literature here. Three recurring concerns, however, have been of particular importance in delineating the contours of this engagement with masculinity in law. First, legal work has been marked by an exploration of the gendered nature of autonomy and, more recently, vulnerability, and the way ideas about a masculine (legal) subject connect to liberal-legal conceptions of the self, to ideas of the ‘Man’ of law.Footnote ²¹ Second, particular ideas about the embodied nature of masculinity, about rationality, emotion and corporeality have tracked this work to wider engagements in legal scholarship with the problematic nature of the sex/gender binary. Finally, a concern with the interconnections between masculinities and social and legal policy debates has also informed discussion of the way ideas about masculinity can, if we look closer, shape legal policy in some distinctive ways whereby masculinity often assumes a powerful, symbolic significance within a wide range of debates around law reform.Footnote ²²

In summary, across each of these areas, studies have drawn on the analysis of legal texts, cases and practices, images of law and visual cultures and artefacts; diverse representations of popular and professional legal cultures; historical documents, online archives and records. If a primary source or focus of legal masculinities work has undoubtedly been, since the early 1990s, a concern to unpack, deconstruct or otherwise ‘reveal’ the gendered (masculine) legal subject, this scholarship has also engaged, I have suggested, with issues of social and legal policy. It has been shaped by conceptual and methodological developments in the CSMM literature, by feminist work and by shifts within the political and economic context of socio-legal research generally.Footnote ²³ Yet turning to a closer consideration of methods and sources involved in analysing masculinities and law, there is also reason to question aspects of the study of masculinity in relation to law.

In what way is this so? I will make four more specific points in this regard before concluding.

THE IMPORTANCE OF CONTEXT: METHODS, SOURCES AND THE PROBLEM WITH ‘MASCULINITY’

First, it is important to note the context. Socio-legal engagements in the Anglo-American jurisprudential tradition have tended, for example, to deploy or otherwise engage with the concept of hegemonic masculinity, in so doing seeking to integrate issues of race, class, gender and sexuality and to take structural patterns of inequality seriously (and certainly law can be seen to ‘fit’ such a structural and more recently, multidimensional analysis). In terms of methods, the arguably dominant approach has itself been to ‘unpack’ hegemonic masculinity via a discursive, deconstructive and/or visual analyses of an array of legal texts. It is noticeable however, that in the field of law, and in contrast to sociology, there has been rather less engagement with (a) the now extensive critiques of hegemonic masculinity that have developed in other disciplines, beyond the scope of this paper; and (b) the use of other methodologies and approaches, notably ethnographies, interviews, memory work, mixed methods, social surveys and statistical analyses. Instrumental questions around research audit and performativity, coupled with the distinctive textual based traditions of legal studies, have also shaped this approach in law.

Second, and building on the above, the study of law and masculinities to date also bears the imprint of debates that can themselves be viewed as internal to the field of law. For example, differences can be detected in the way legal studies has sought to ‘deal with’ masculinity in common law jurisdictions such as the US and the UK compared to civil law legal systems. Whereas the former is shaped by judge-made decisions with precedential authority, the latter is marked by a codified set of principles, often influenced by Roman law and with a written constitution. Both, certainly, are concerned with the way gendered assumptions can shape statutes and legislation, whether in terms of the processes of laws' enactment or how specific laws operate in practice in ways that have gendered effects. In common law jurisdictions, however, there has tended to be a focus on exploring ideas about men and masculinity implicit within a body of (judge-made) case law, as above, involving the deconstruction of judicial pronouncements and other texts.

The organizational structures of legal education and scholarship within particular countries, however, has itself evolved in ways that reflect different degrees of sympathy, or otherwise, with the kinds of socio-legal, contextual approaches to law discussed at this ALS/British Library/SLSA event (an analysis of law in its social, economic and political context that is more clearly aligned with sociological studies of gender). Further differences appear in the way questions of, for example, class, race and ethnicity, citizenship, community and nationhood frame how questions about masculinity and gender equality are addressed at public policy level. This reflects distinctive social, political, policy and welfare regimes, with the differences between, for example, US, UK and Scandinavian countries approaches to masculinities scholarship at times marked. Studies of masculinities and fathers' rights activism, to take one example, illustrate how there is a need to ground accounts of men's practices in the specificities of legal systems and processes of policy formulation and law reform; in particular cultural, legal and political contexts (for example, in the understanding of legal rights and responsibilities).Footnote ²⁴ Caution is needed, therefore, in speaking about an international (or indeed a European) legal masculinities scholarship. Different inflections within civil/common law jurisdictions around legal cultures, the relationship between law and state, the role of the judiciary, legal profession and so forth have shaped these engagements in particular ways.

Third, it is necessary to consider, linked to the above, the institutional grounding of law and masculinity studies. In Sweden for example, an engagement with masculinity is relatively more embedded within national legal policy debates surrounding gender equality, higher education and discussion of gender methods.Footnote ²⁵ Internationally, work on law-masculinities is also being undertaken outside law faculties, in ways that can draw on very different methods, sources, assumptions and traditions.Footnote ²⁶ A wide range of networks and alliances of non-governmental organisations, for example, work with men and boys in ways to reduce gender inequalities in ways that engage with law and legal bodies. This work encompasses question about advocacy and communication around gender issues, community based interventions, group education, research and evaluation or service provision – all areas of relevance to law.Footnote ²⁷

Finally, in this discussion of sources and methods it is necessary to ask whether there has been a Western-centric focus to work on law and masculinities to date. As Raewyn Connell has asked, what happens if we look beyond the North and beyond the ‘Anglosphere’?Footnote ²⁸ What new kinds of questions about men and masculinities, states and their legal systems, and methods, then arise? Reflecting the scale of social and political change over the past two decades, along with broader trends around neoliberalism, globalization and Europeanisation, it may also be that the debates about men and masculinity taking place in Western Europe, reflected in a growing body of gender law scholarship, do not track seamlessly to the concerns of legal policy makers in Eastern and Central Europe. At the same time, growing attention has been paid to the transnational dimensions of masculinity; how neoliberal economic, political and cultural imperatives are redrawing a global gender order.Footnote ²⁹ In short, adopting a comparative perspective on law, men and masculinities would suggest there is a texture and nuance to the analysis of men, law and gender that a broad brush approach to the power of law, masculinities and men's practices may miss out on.

CONCLUDING REMARKS

The discipline of law, I have suggested, has produced a certain kind of knowledge about masculinity, a knowledge inflected, in particular, by an Anglo-American common law jurisprudential tradition and concepts derived from the critical study of men and masculinity. This is a scholarship that has itself been shaped over the past three decades, to a significant degree, by American, British and Australian scholars writing from within these common law traditions. If we look to the wider contexts of research, however, it is necessary to question more closely some key concepts, frameworks and approaches that have shaped this engagement with law and masculinity. It is increasingly clear, for example, that a singular concept of masculinity (or, indeed, of the ‘masculinity of law’) cannot account for the complexity and multidimensional nature of men's lives over the life course; how, illustrated by the case of men's family practices and the gendered nature of professional identity formation in law, the subjective, fluid nature of investments in particular kinds of masculine identities – of the ‘good father’ or ‘good lawyer’ – are marked by contradictions and contestations; how a new terrain of gender politics is itself being framed by social reconstructions and divisions associated with neo-liberalism and neo-patriarchy.Footnote ³⁰

This reading suggests there is considerable variation in how legal scholarship has sought to approach the topic of masculinity. Studies have drawn variously on legal texts, images, visual cultures and artefacts; popular and professional legal cultures; historical documents; online data, archives and records. Socio-legal research on gender has much to gain from a closer and more nuanced engagement with this critical study of men and masculinities literature – but at same time the study of masculinities has much to gain from taking law more seriously.