26 March 2020 - 17 h 00 min - 19 h 00 min
Ben Griffin (Girton College, Cambridge), “The gender order and the judicial imagination: masculinity, liberalism and governmentality in modern Britain”
In this paper I will explore the strange absence of the judiciary from the literature on modern British politics, and ask how we ought to write the history of the law. I propose that a fruitful line of inquiry is to write not a history of legal doctrines, but a history of judicial mentalities. I will illustrate this by looking at the role of the judiciary in sustaining sexual inequality in modern Britain. The argument is that the nineteenth-century gender order was continually unsettled by changing ideas about the nature of law, the transformation of the juridical state, and shifting ideas about fatherhood, childhood and femininity. That meant that judges had to perform considerable intellectual work to reconstruct familiar inequalities on new foundations. Given the peculiarities of the common law system, sustaining inequalities required judges actively to manipulate a body of case law in order to produce a coherent doctrine. For this reason we should not see the law as a stable patriarchal monolith but as a gendered system that was continuously being reconstructed at the point of use by actors with considerable freedom of manoeuvre. Seen from this perspective, the inequalities confronting the Victorian women’s movement were not timeless prejudices or ancient laws, but modes of discrimination recently reconstructed by a male judicial elite on whom historical judgement has been suspended for too long.
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