Tài liệu Masculinity, Law and the Family pptx

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First published 1995
by Routledge
11 New Fetter Lane, London EC4P 4EE
This edition published in the Taylor & Francis e-Library, 2003.
Simultaneously published in the USA and Canada
by Routledge
29 West 35th Street, New York, NY 10001
© 1995 Richard Collier
All rights reserved. No part of this book may be reprinted or
reproduced or utilized in any form or by any electronic,
mechanical, or other means, now known or hereafter
invented, including photocopying and recording, or in any
information storage or retrieval system, without permission in
writing from the publishers.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloguing in Publication Data
A catalogue record for this book is available from the Library of Congress
ISBN 0-203-42154-X Master e-book ISBN
ISBN 0-203-72978-1 (Adobe eReader Format)
ISBN 0-415-09194-2 (hbk)
ISBN 0-415-09195-0 (pbk)
I would like to dedicate this book to the memory of my father,
Stanley George Collier, and to my mother, Nancy Collier. With
love and thanks.


vii
Contents
Preface and acknowledgements ix
1 Introduction: on law and masculinity 1
Introduction 1
The sociology of masculinity: a context 6
Theorising law and masculinity 29
Towards a study of law and masculinity: concluding remarks 43
2 Theorising masculinity and the family 47
‘Critical’ family law 48
Defining the ‘family’ 50
Functionalism 56
The public/private dichotomy 59
Familialism: rethinking law, power and the family 67
Conclusions: on method, masculinity and law 83
3 Law, sex and masculinity 87
Introduction 87
The legal construction of homosexuality 90
The homosexual personage and the emergence of (hetero)
masculinity in law 106
Scientific ‘fact’ and the legal problem of transsexualism 110
Sex, gender and marriage 118
Conclusions: the sexual basis of hegemonic masculinity and
marriage 129
4 ‘Love without fear’: representations of male
heterosexuality in law 138
Introduction 138
A context: sexuality and society 141
viii Contents
The legal construction of sexual intercourse 144
The social and legal construction of male sexuality 168
Concluding remarks 171
5 The ‘good father’ in law: authority, work and the
reconstruction of fatherhoood 175
Introduction 175
Men’s studies and ‘new fathers’: constructing a climate of
change and crisis 176
Establishing paternity 181
Constructing fatherhood in law: from father right to father
absence 185
‘Doing what comes naturally’: constructing breadwinner
masculinity 195
Constructing the family man: the modernising of paternal
masculinity 201
Concluding remarks 210
6 ‘Family men’ and ‘dangerous’ masculinities 215
Introduction 215
The ‘family’ man and ‘respectable’ masculinity 215
Dangerous men, dangerous masculinities: 220
‘Sacrificial men’ and ‘errant fathers’ 223
The family man as ‘other’: case studies 233
Concluding remarks 248
7 Changing masculinities, changing law: concluding
remarks 252
Beyond the family: masculine authority and legal discourse 252
(Re)constructing the family man 257
Marriage, law and male sexuality 264
Masculinity, feminism and ‘critical’ family law: some
concluding remarks 267
Notes 278
Bibliography 286
Index 325
ix
Preface and acknowledgements
This book is about how the law has constructed heterosexual
masculinity. It assumes no prior knowledge of either law or of the
debates which have emerged within feminist and men’s anti-sexist
critiques of masculinity. It is a book about what it means to be a man
in legal discourse and, therefore, what it is to be a man in our
society. Beginning by asking ‘how might we understand the relation
between law and masculinity?’, it proceeds to analyse how law has
gendered the male body in the family. It seeks to do this through
exploring a variety of areas in which, I argue, dominant ideas of
male heterosexuality have become increasingly problematic.
In one sense this book serves as a bridge between developments
which have taken place in recent years within legal theory and
within the range of critical studies of men and masculinity which
have sought to explore the sociality of masculinities. In a number of
recent feminist texts,
1
for example, we find critical accounts of the
power of law in which the legal construction of masculinity, of male
sexuality, fatherhood, paternity and male authority, has assumed a
central significance. However such work tends to be concerned
primarily with the ways in which law constructs women and women’s
experiences; ‘it is for other men to make us see masculinities, and to
bring these into question’ (O’Donovan 1993:88). This is what
Masculinity, Law and the Family seeks to do.
By way of contrast to such feminist legal scholarship, the object of
analysis in critical studies of masculinity
2
has been the social
construction of men and masculinities. At times the effects of law
and legal regulation have figured heavily in such accounts. (How has
law gendered men? How might we challenge such representations?)
What has not tended to be within the ambit of such work, however,
is a critical engagement with the power of law from a perspective
x Preface and acknowledgements
which has been informed by the recent developments in legal theory
and those feminist jurisprudential texts which have also begun to
question the power of masculinity.
3
In particular, the power of law
frequently tends to be ‘taken for granted’ in such studies of
masculinity (broadly involving a positivist conception of law which
is, perhaps ironically, compatible with the dominant methodology of
legal education and practice).
Masculinity, Law and the Family seeks to complement the existing
work on critical studies of law, the family and masculinity through
seeking to address the relationship between all three. I am concerned
to present a systematic and coherent analysis of male heterosexuality
in law and to introduce the reader to a number of debates currently
raging about law and the family. The book does so, importantly,
from a perspective informed by both critical legal theory and feminist
and men’s anti-sexist accounts of masculinity. As well as being a
synthesis of existing work and contemporary issues in this area it
also, I hope, raises important questions about how we understand
the power of both masculinity and of law.
Chapters 1 and 2 integrate current developments in legal theory
with a historical and sociological analysis of the family and seek to
establish a theoretical base from which to begin to analyse the social
construction of masculinity in law. These chapters, alongside
Chapter 3, present an overview and analysis of approaches to
theorising law, gender and the family, entailing a critique of
traditional legal method and a fundamental questioning of how ‘sex’
and ‘gender’ are understood in legal discourse. Chapter 4 builds on
the picture of male heterosexuality which has emerged at this stage
whilst keeping in the frame a focus on the politics and practice of
reproducing discourses of masculinity.
Moving from the more abstracted discussion of ‘what is sex’,
Chapter 4 considers sexuality in the institution of marriage via an
analysis of cases in which understandings of male sexuality have
been considered central in establishing whether or not a marriage
can be said to exist. In Chapters 5 and 6 I relate changes in legal
conceptions of fatherhood and paternity to wider shifts in the
historical construction of heterosexuality and to the emergence of a
distinct discourse which I identify as familial masculinity. Through
exploring the idea of paternal masculinity, these chapters challenge
the dominant (law-centred) focus on men’s (versus women’s) rights
and seek to explore how men’s subjectivities have been valorised in
law through reference to a naturalised heterosexual subject position.
Preface and acknowledgements xi
This is a discursive position which law continues to be concerned to
protect though, from the late nineteenth century to the present day,
the mechanisms by which it does so have changed.
It is an argument of this book that the dominant masculinity of
legal discourse has served to privilege certain men. Socio-economic
shifts over the past century have, I shall argue, reconstituted or
modernised heterosexual masculinity in law. This, in turn, has
important implications for how we understand the idea, common to
much of the emerging literature, that we are now undergoing a form
of contemporary crisis in masculinity. This misreading of the
masculinity/law relation has diverted attention from ‘dangerous’
masculinities in the family, even though it was feminist challenges to
these masculinities which had been influential in constructing the
masculinity-problematic in the first place.
The fragmentation of masculinity which takes place in Chapters
5 and 6 feeds into a historical analysis (illustrated by the case studies
of prostitution and child sexual abuse) of how familial masculinity
continues to be rendered safe at the same time as it is reconstituted in
law. The emergence of an idea of respectable familial masculinity in
contrast to other undomesticated masculinities must be related to
more general changes in discourses of masculinity in the late
nineteenth and twentieth centuries. It is the idea of the family man, I
argue, which has come to signify a range of ideas about heterosexual
masculinity in law. What follows is, I am aware, one particular
reading of the legal subject; other readings may focus on other
aspects of heterosexual masculinity, on race, class, religion and
ethnicity.
This book constitutes the beginnings of an unpacking of this
notion of ‘the family man’ in both law and popular culture
(understood here as a paradigm and not the apotheosis of
masculinity). What follows is, I hope, a contribution to the wider
debates taking place around the family, law and gender. It is not a
traditional ‘family law’ textbook, in that it does not seek to expound
a catalogue of rules relating to a specific area of the legal sub-
discipline ‘family law’; it is not the purpose to state, as Graycar and
Morgan (1990:13) put it, ‘all there is’ in a doctrinal sense on family
law. It is, rather, an analysis of how legal catagories and doctrines
are themselves constructed. This book exists more in opposition to
the black-letter tradition of legal scholarship. As Freeman has
pertinently warned, lawyers who remain technicians cannot
contribute to the current debate raging about the family (Freeman
xii Preface and acknowledgements
1985:154). However the conclusions of this interdisciplinary study
of masculinity and law raise important questions, and not just about
the legal regulation of families, about gender and the place of law in
the reproduction of relations of power between men, women and
children. They also, importantly, relate to the politics and very
concept of ‘family law’ itself.
In the writing of this book I have received encouragement,
support and criticism from many friends and colleagues. I would like
to thank them all. I would like, in particular, to acknowledge the
encouragement and help given by Les Moran, Tony Jefferson, Fiona
Cownie and Tony Bradney, Marie Fox, Katherine O’Donovan and
Carol Smart. My greatest thanks are to Fiona Coleman, who has
been a constant source of support during the writing of this book
and has helped in countless ways with her unceasing kindness.
1
Chapter 1
Introduction
On law and masculinity
INTRODUCTION
Why another book on masculinity? It is becoming difficult to keep
up with the books and articles exploring the social construction of
masculinity. Each week, it seems, sees the publication of another. Yet
amongst this now considerable literature addressing masculinity, it is
curious that there are few texts which take as the specific object of
study the relationship between masculinity and law. What follows
draws on this existing literature on masculinity—variously termed
‘the new sociology’ or ‘critical studies’ of masculinity
1
—but its object
is quite specific and novel. It is an attempt to theorise the relation
between masculinity and legal discourse and to explore the
construction of masculinity in areas of law pertaining to the family.
Specifically, it seeks to unpack representations in law of male
sexuality (Chapters 3 and 4) and paternity, fatherhood and men’s
violences (Chapters 5 and 6). It is a book which attempts to
‘defetishise’ the law—to engage in an analysis ‘whereby the given is
shown to be not a natural but a socially and historically constituted,
and thus changeable reality’ (Benhabib 1986:47).
Though the focus of this book is law and the family, and the ways
in which roles therein are differentiated according to gender, the
conclusions have implications for legal studies generally as well as
for gender studies and the sociology of masculinity. The book is, in
short, not just concerned with the relationship between masculinity
and law; it is about the very ideas and understandings we have of
masculinity, law and family life—and of what it is to be a man in our
society.
Given that the problematic, contested and political nature of
masculinity and male sexuality has long been identified by feminist