The Power of Law PDF

Chapter One T H E P OW E R O F L AW INTRODUCTION This book is an exploration of how law exercises power and the extent to which it resists and disqualifies alternative accounts of social reality. Initially it is important to clarify what is meant by the term...

Chapter One T H E P OW E R O F L AW INTRODUCTION This book is an exploration of how law exercises power and the extent to which it resists and disqualifies alternative accounts of social reality. Initially it is important to clarify what is meant by the term ‘law’, since using this concept in the singular tends to imply that law is a body of knowledge/rules which is unified in intent, theory, and practice. In fact I reject this notion of the unity of law because law operates with conflicting principles and contradictory effects at every level from High Court judgements to administrative law. As Hirst (1986) has pointed out, there is now considerable dispute over what law is. Notwithstanding this, the collectivity to which the label law is applied presents us with the appearance of unity and singularity. Hence law constitutes a plurality of principles, knowledges, and events, yet it claims a unity through the common usage of the term ‘law’. I shall argue that it is in fact empowered by its ‘singular’ image. It is important to acknowledge that the usage of the term ‘law’ operates as a claim to power in that it embodies a claim to a superior and unified field of knowledge which concedes little to other competing discourses which by comparison fail to promote such a unified appearance. I shall therefore retain the term ‘law’ because this power to define (itself and other discourses) is part of the power of law that I wish to explore. In addition it is law’s ability to impose its definition of events on everyday life that interests me. For example I shall examine how law’s definition of rape takes precedence over women’s definitions and how law manages to retain the ability to arrogate to itself the right to define the truth of things in spite of the growing challenge of other discourses like feminism. 4  THE POWER OF THE LAW In the following chapters I shall attempt to push forward feminist theorizing in relation to law and to establish a new basis for its challenge to legal discourse. At present it seems as if feminist ‘legal theory’ is immobilized in the face of the failure of feminism to affect law and the failure of law to transform the quality of women’s lives. Feminist scholarship has become trapped into debates about the ‘usefulness’ of law to the emancipation of women, or the relative merits of ‘equality’ versus ‘difference’ as strategies, or the extent to which law reflects the interest of patriarchy, or simply men. These are necessary debates but they have the overwhelming disadvantage of ceding to law the very power that law may then deploy against women’s claims. It is a dilemma that all radical political movements face, namely the problem of challenging a form of power without accepting its own terms of reference and hence losing the battle before it has begun. Put simply, in accepting law’s terms in order to challenge law, feminism always concedes too much. I shall therefore explore some ways of avoiding this process and shall indicate the importance of attempting to ‘de-centre’ law wherever this is feasible. By this I mean that it is important to think of non-legal strategies and to discourage a resort to law as if it holds the key to unlock women’s oppression. I include in this ‘resort to law’ not only matters of direct policy proposals but also matters of scholarship. For example I raise fundamental doubts about striving to achieve a feminist jurisprudence if such an enterprise merely challenges the form of law but leaves untouched the idea that law should occupy a special place in ordering everyday life. I am not suggesting we can simply abolish law, but we can resist the move towards more law and the creeping hegemony of the legal order. To some extent this requires a reconceptualization of familiar issues as well as an attempt to think in a different mode. So I make no apologies for going over familiar terrain such as rape—but I propose to do so in a new way. This also means that I do not make policy proposals on, for example, how the law of rape should be reformed. Rather I concentrate on how to sustain feminist discourse in the face of renewed challenges to its legitimacy and on the task of deconstructing the discursive power of law. It is not solely important to promote feminist policies—indeed we are increasingly aware of their limitations. Rather it is my argument that law must also be tackled at the conceptual level if feminist discourses are to take a firmer root. 5  FEMINISM AND THE POWER OF LAW THE INFLUENCE OF FOUCAULT Concepts like truth, power, and knowledge are central to this enterprise and it is therefore important to acknowledge their source in the work of Foucault. (For a full exposition of his work it is necessary to look to detailed works like Gordon 1980; Smart 1983, 1985; Cousins and Hussain 1984; Couzens Hoy 1986.) I shall therefore, in the following section, give some consideration to the value of these concepts in relation to a feminist analysis of law. In particular I shall challenge the theme which is fairly explicit in Foucault’s work, namely that it is more fruitful to study the processes of power outside legal institutions because the power of legal discourse is diminishing. I do not reject the idea that non-juridical modes of regulation are increasingly important, but I shall put forward the idea that juridical power remains a formidable obstacle to feminism and that whilst other mechanisms of discipline develop, law itself can deploy these mechanisms to enhance its own power. I therefore propose that the concentration on disciplinary mechanisms (for example of psychiatry and psychology) should not induce a belief that law is a less significant site of power relations. Finally I shall consider the problem of legal method (i.e. the process by which law arrives at its version of Truth) and how in the process it disqualifies other knowledges which may be rooted in feminism. POWER, TRUTH, KNOWLEDGE Power …in the case of the classic, juridical theory, power is taken to be a right, which one is able to possess like a commodity, and which one can in consequence transfer or alienate, either wholly or partially, through a legal act or through some act that establishes a right, such as takes place through cession or contract. Power is that concrete power which every individual holds, and whose partial or total cession enables political power or sovereignty to be established. (Gordon 1980:88) It is this formulation of the concept of power that Foucault rejects. He attempts to construct a non-economic analysis of power which better reflects the mechanisms of power in the twentieth century. The idea of 6  THE POWER OF THE LAW power as a commodity which some people, or a class of people, may ‘own’ (usually because they command wealth or economic resources) is inadequate to an understanding of contemporary society. His argument is that society has become transformed such that, whilst in the past the linkage of power and judicial rights may have been valid, this is no longer the case. The transformation that Foucault identifies is the development of the disciplinary society. By this he means the growth of new knowledges (e.g. medicine, criminology, pedagogics, epidemiology, etc.) which came to constitute the ‘modern episteme’. These knowledges create new fields of exploration and bring with them new modes of surveillance and regulation of the population. Hence the criminal is no longer someone who breaks the law and who must be punished. He is pathologized, he needs to be subjected to close surveillance and ultimately to cure or normalization. This process, which Foucault has explored in depth in Discipline and Punish (1979b), The Birth of the Clinic (1975), Madness and Civilisation (1971), The History of Sexuality (1979a), is one which applies to all areas of social life. Foucault has identified a new mode of regulation, the mechanism of discipline—‘a closely linked grid of disciplinary coercions whose purpose is in fact to assure the coercion of this same social body’ (Gordon 1980:106). Foucault’s concentration on the growth of the disciplinary society reflects his greater interest in the mechanisms of power than the ‘old’ questions of who has power. He also rejects the tendency which is apparent in the traditional formulation of power, of treating power as if it were negative, repressive and juridical. He maintains that power is creative and technical. By this it is meant that the mechanisms of power create resistances and local struggles which operate to bring about new forms of knowledge and resistance. Hence power is productive, not simply a negative sanction which stops or restricts oppositional developments. However, it is clear that although Foucault’s reconceptualization of power opens new ways of understanding, it is very hard to abandon the old concept of power. Hence we not only continue to talk about power as a commodity, we also act as if it were. As Taylor (1986) has argued, Foucault’s thesis is that, while we have not ceased talking and thinking in terms of this model (i.e. power as a system of commands and obedience), we actually live in relations of power which are quite different, and which cannot be properly described in its terms. 7  FEMINISM AND THE POWER OF LAW What is wielded through the modern technologies of control is something quite different, in that it is not concerned with law but with normalization. (Taylor 1986:75) The question that this raises is ‘why do we still look to the old forms of power if they are no longer appropriate?’ Interestingly, Foucault does not dismiss law and the old forms of power altogether as Taylor implies. It is, however, hard to be clear on what he has to say in this area since, by his own admission, Foucault was more interested in the mechanisms of power at its extremities (i.e. where it is least law-like) than at its core (i.e. law itself and legal institutions). He does not appear to be saying that law, and the old contrivances of power, are no longer relevant—although he seems to argue that they will become so. Hence, we should talk of two parallel mechanisms of power which operate symbiotically, but where the old mechanism will be eventually colonized by the new. And I believe that in our times power is exercised simultaneously through this right and these techniques and that these techniques and these discourses, to which the disciplines give rise, invade the area of right so that the procedures of normalisation come to be ever more constantly engaged in the colonisation of those of law. (Gordon 1980:107) So Foucault sees the old power (and hence the significance of law) diminishing. I am less certain that this is happening. Rather it is possible to posit a move in the opposite direction, for example the growing legalization of everyday life from the moment of conception (i.e. increasing foetal rights) through to the legal definition of death (i.e. brain death or ‘body’ death). It may be that law is being colonized in some instances, but in others law may be extending its influence as I shall argue below. We need therefore to think in terms of two parallel mechanisms of power, each with its own discourse, the discourse of rights and the discourse of normalization. Foucault tells us far more about the latter than the former, yet the former is by no means redundant (even if it is doomed to become so). This raises a number of issues. For example, what is the relationship between the two mechanisms in specific areas as opposed to broad generalities? Might we see an uneven 8  THE POWER OF THE LAW development of this colonization of law? What does this mean for political strategy, if anything? Foucault suggests, for example, that there is little point in turning to law (the discourse of rights) as a strategy to deal with the encroachment of surveillance, since they are now symbiotically linked. I shall not answer all these questions in this chapter, but I shall explore the interface between the two mechanisms to try to give some substance to this, so far, abstract discussion. Before this I must give brief consideration to the notions of truth and knowledge. Truth/knowlege In using the concept of truth Foucault does not mean ‘the ensemble of truths which are to be discovered and accepted’. On the contrary Foucault uses it to refer to ‘the ensemble of rules according to which the true and the false are separated and specific effects of power attached to the true’ (Gordon 1980:132). He is not concerned with what is considered to be the usual quest of science, namely to uncover the truth, rather he is interested in discovering how certain discourses claim to speak the truth and thus can exercise power in a society that values this notion of truth. He argues that making the claim to be a science is in fact an exercise of power because, in claiming scientificity, other knowledges are accorded less status, less value. Those knowledges which are called faith, experience, biography, and so on, are ranked as lesser knowledges. They can exercise less influence, they are disqualified. Defining a field of knowledge as science is to claim that it speaks a truth which can be favourably compared to partial truths and untruths which epitomize non-scientific discourse. Foucault does not compare the scientist’s claim to truth, and hence exercise of power, with the lawyer’s claim. Law does not fit into his discussion of science, knowledge, and truth because, as I have pointed out, he identifies it in relation to the regime of power that predates the growth of the modern episteme. Yet I wish to argue that there are very close parallels in terms of this ‘claim to truth’ and the effect of power that the claim concedes. I am not saying that law attempts to call itself a science, but then it does not have to. Law has its own method, its own testing ground, its own specialized language and system of results. It may be a field of knowledge that has a lower status than those regarded as ‘real’ sciences, none the less it sets itself apart from other discourses in the same way that science does. 9  FEMINISM AND THE POWER OF LAW It might be useful to provide an example here. In the area of family law there has been a steady encroachment of what has become known as the welfare principle. Hence decisions about children tend to be based on the concept of welfare rather than more traditional legal concepts like rights. As a consequence it has become necessary for law to differentiate itself from social work. Those with legal training distinguish their own knowledge base, and give higher value to their own skills than those of lay people who are inside the legal system (e.g. magistrates and social workers). The following statements from interviews carried out with solicitors in Sheffield in 1980 reveal clearly the hierarchy of knowledge that is presumed in law. (A full exposition of these interviews can be found in Smart 1984.) 1. At times I wish [the judge] would just take notice of the parties themselves and do a lawyer’s appraisal of individuals, rather than at times, [taking notice of] in my book, inexperienced, undertrained operatives…[i.e. social workers]. 2. [Referring to the influence of welfare reports] I think that it depends a lot on the judge in the County Court. I think the magistrates’ courts are more influenced. I think that judges are used to making up their minds on the basis of the evidence and what they think about the parties before them, whereas the magistrates tend to be less self-confident… 3. [Referring to magistrates in general] …you have to be a very expert practitioner before you can accurately predict which way [magistrates] are going to jump… they’re pretty fickle anyway, and they make decisions which don’t appear to be based on anything normal. So law sets itself above other knowledges like psychology, sociology, or common sense. It claims to have the method to establish the truth of events. The main vehicle for this claim is the legal method which is taught in law schools and which I shall discuss in more detail below. A more ‘public’ version of this claim, however, is the criminal trial which, through the adversarial system, is thought to be a secure basis for findings of guilt and innocence. Judges and juries can come to correct legal decisions; the fact that other judges in higher courts may overrule some decisions only goes to prove that the system ultimately divines the correct view. 10  THE POWER OF THE LAW Law’s claim to truth is not manifested so much in its practice, however, but rather in the ideal of law. In this sense it does not matter that practitioners may fall short of the ideal. If we take the analogy of science, the claim to scientificity is a claim to exercise power, it does not matter that experiments do not work or that medicine cannot find a cure for all ills. The point is that we accord so much status to scientific work that its truth outweighs other truths, indeed it denies the possibility of others. We do not give quite such a status to law, although we operate as if the legal system does dispense justice (i.e. correct decisions), and we certainly give greater weight to a judge’s pronouncement of guilt than a defendant’s proclamation of innocence. Indeed there are those who would say that ‘law is what the judges say it is’. The judge is held to be a man of wisdom, a man of knowledge, not a mere technician who can ply his trade. If we accept that law, like science, makes a claim to truth and that this is indivisible from the exercise of power, we can see that law exercises power not simply in its material effects (judgements) but also in its ability to disqualify other knowledges and experiences. Non-legal knowledge is therefore suspect and/or secondary. Everyday experiences are of little interest in terms of their meaning for individuals. Rather these experiences must be translated into another form in order to become ‘legal’ issues and before they can be processed through the legal system (Cain 1979). For the system to run smoothly, whether it is criminal or civil, the ideal is that all parties are legally represented and that the parties say as little as possible (i.e. they are mute). The problem for the lawyer is that the litigant may bring in issues which are not, in legal terms, pertinent to the case, or s/he might inadvertently say something that has a legal significance unknown to her/him. So the legal process translates everyday experience into legal relevances, it excludes a great deal that might be relevant to the parties, and it makes its judgement on the scripted or tailored account. Of course parties are not always silenced, but I hope to show in Chapter Two that how they are allowed to speak, and how their experience is turned into something that law can digest and process, is a demonstration of the power of law to disqualify alternative accounts. Law sets itself outside the social order, as if through the application of legal method and rigour, it becomes a thing apart which can in turn reflect upon the world from which it is divorced. Consider the following 11  FEMINISM AND THE POWER OF LAW quotation from Lord Denning, written when he was Master of the Rolls (i.e. head of the Court of Appeal). By a series of Acts of Parliament, however, starting in 1870, all the disabilities of wives in regard to property have been swept away. A married woman is now entitled to her own property and earnings, just as her husband is entitled to his. Her stocks and shares remain hers. Her wedding presents are hers. Her earnings are hers. She can deal with all property as fully as any man…. No longer is she dependent on her husband. She can, and does, go out to work and earn her own living. Her equality is complete. (Denning 1980:200) In this conceptualization it is law that has given women equality (accepting for the moment that they do have formal equality). In this way law is taken to be outside the social body, it transcends it and acts upon it. Indeed the more it is seen as a unified discipline that responds only to its own coherent, internal logic, the more powerful it becomes. It is not simply that in this passage Denning omits to point out how many women chained themselves to railings, demonstrated and lobbied in Parliament to change the law, nor that he ignores the dramatic changes to women’s economic position which occurred quite independently of law, it is rather that he constructs law as a kind of sovereign with the power to give or withhold rights. (Here we are back to Foucault’s notion of the ‘old’ power of law.) Linked to this idea, law is constructed as a force of linear progress, a beacon to lead us out of darkness. The significance of this is not that one judge, no matter how eminent, should state this, but that this has become a commonsense approach. The idea that law has the power to right wrongs is pervasive. Just as medicine is seen as curative rather than iatrogenic, so law is seen as extending rights rather than creating wrongs. It is perhaps useful to coin the termjuridogenic to apply to law as a way of conceptualizing the harm that law may generate as a consequence of its operations. (Examples of the juridogenic potential of law are explored in later chapters.) But there are two issues here. One is the idea of law as a force for good (or bad) the other is the idea of law as a force at all—both have to be subject to scrutiny. If we stop at the point of considering whether law is a force for good or bad we concede that law is a force—indeed it implies that we simply wish to redirect its purpose. If we go one step further we can begin to problematize, to 12  THE POWER OF THE LAW challenge, and even to redefine law’s supposedly legitimate place in the order of things. Ultimately this is the most necessary project. Lastly in this section on truth and knowledge, I want to consider how law extends itself beyond uttering the truth of law, to making such claims about other areas of social life. What is important about this tendency is that the framework for such utterances remains legal —and hence retains the mantle of legal power. To put it figuratively, the judge does not remove his wig when he passes comment on, for example, issues of sexual morality in rape cases. He retains the authority drawn from legal scholarship and the ‘truth’ of law, but he applies it to non- legal issues. This is a form of legal imperialism in which the legitimacy law claims in the field of law extends to every issue in social life. Hence Lord Denning states, No matter how you may dispute and argue, you cannot alter the fact that women are quite different from men. The principal task in the life of women is to bear and rear children: … He is physically the stronger and she the weaker. He is temperamentally the more aggressive and she the more submissive. It is he who takes the initiative and she who responds. These diversities of function and temperament lead to differences of outlook which cannot be ignored. But they are, none of them, any reason for putting women under the subjection of men. (Denning 1980:194) Here Denning is articulating a Truth about the natural differences between women and men. He combines the Truth claimed by sociobiology (i.e. a ‘scientific’ truth) with the Truth claimed by law. He makes it clear that there is no point in argument; anyone who disagrees is, by definition, a fool. Hence the feminist position is constructed as a form of ‘disqualified knowledge’, whilst the naturalistic stance on innate gender differences acquires the status of a legal Truth. In this passage both law and biological determinism are affirmed, whilst law accredits itself with doing good. It may be useful at this stage to summarize the main points of my argument so far. I have suggested that Foucault’s analysis of power locates law as part of the ancien régime, that the legal discourse of rights is still a significant mode of power, but that it is being colonized by the discourses of discipline. I have suggested that whilst this formulation is persuasive, we need to look further at specific 13  FEMINISM AND THE POWER OF LAW instances of the conflict between old and new contrivances of power. I have also started to consider ways in which law exercises a form of power which is parallel to the development of power associated with scientific knowledge. Although law is not a ‘science’ it is well able to make the same claims to truth as the sciences, and in so doing exercises a power which is not under threat. Indeed it may be argued that law is extending its dominion in this respect as western societies become increasingly litigious and channel more and more social and economic policy through the mechanism of legal statutes. I shall now turn to consider two competing examples of the conflict between the old and the new mechanisms of power, before returning to examine the question of legal method and the exclusion of feminism as a ‘disqualified knowledge’. THE NEW AND OLD CONTRIVANCES OF POWER As discussed above, Foucault makes frequent references to law, or at least the form of juridical power, but he does not turn his genealogical gaze on law in the same way as he does on medicine and the human sciences. In fact one is left with an uncertainty about law whose foundations were laid before the seventeenth and eighteenth centuries and which invoke different forms of power than the more recently emergent discourses like the science of medicine (as opposed to the arts of healing). Law also predates the development of the human sciences and what Foucault terms the ‘modern episteme’ in which man becomes the subject of knowledge and scientific endeavour. In fact much of Foucault’s genealogy de-centres law as the prime historical agent or mode of control. Rather he focuses on newly emergent forms of regulation and surveillance and constructs for us a vision of the disciplinary society in which law’s place diminishes with the growth of more diverse forms of discipline. But it seems to be ‘against’ law that new mechanisms of power develop. As I stated above, Foucault depicts a struggle between the ‘new’ and the ‘old’ contrivances of power. The status of law in modern societies is therefore somewhat uncertain in Foucault’s account. We might think it is diminishing in significance as other modes of deploying power (i.e. through normalization) come to dominate. However, I am doubtful that law is simply being superseded, nor can we assume that it remains unchanged—a relic from pre-modern times. I shall examine these ideas 14  THE POWER OF THE LAW in relation to law governing the personal spheres of the family and reproduction. These areas of law coincide with parts of the social body which have been central to the growth of the disciplinary society (Foucault 1979b; Donzelot 1980). Donzelot has discussed the growth of the alliance between the family and the medical and ‘psy’ professions (e.g. psychiatry, psychology, and psychoanalysis) to construct the household as an intimate site of discipline. Foucault has discussed sexuality in much greater detail than reproduction but he also acknowledged that this is a site where sexuality, the medical profession, and the disciplining of populations come together. Because the family can be seen to be subject to a very different modality of power it is likely to be in this area that law becomes less ‘law-like’ or, to put it another way, this is likely to be an area where law ‘loses’ the conflict between the mechanisms of discipline and the principle of right. Of course this is an oversimplification and it is doubtful that law will simply be found to be abandoning this area of legal work to the social workers and medics. But it is possible to examine the conflict and to raise questions as to whether family issues are moving outside the domain of law, whether law retains its sovereignty, or whether law is changing the way in which it exercises power in this field, becoming more like the human sciences in the technologies of power it deploys. I want to look at two recent instances which will illustrate these issues. The first involves a case of adoption following a surrogacy arrangement in the UK. The second, also in the UK, is a case of abortion where there was a disagreement between the pregnant woman and the putative father as to whether there should be a medical termination. It is necessary to provide a detailed description of both these cases to illustrate the point I hope to make. Example 1: Extending law’s power through the vehicle of the ‘psy’ professions In the first case (Re an adoption application surrogacy (AA212/ 86H/ C)) a couple (Mr and Mrs A) had made a private arrangement with a married woman (Mrs B) that she would be inseminated with Mr A’s sperm and would carry the resultant child to term and then surrender it to the commissioning couple. The surrogate mother was paid £5,000 to cover loss of earnings and other expenses. This arrangement went 15  FEMINISM AND THE POWER OF LAW according to plan, and some two years later Mr and Mrs A applied to adopt the child legally with Mrs B’s consent. In the UK commercial surrogacy arrangements are illegal (Surrogacy Arrangements Act 1985) and the Adoption Act of 1958 prohibits adoption where there has been any payment of money. In cases like this English law is not at all interested in the legal question of whether a contract of this sort should be binding; this formal legal approach has never been applied to enforce contracts which could be defined as contrary to public policy. So the legal issues involved were whether this was a commercial arrangement and whether the payment of money would prohibit the legal adoption of the child. The first matter was complicated by the fact that Mrs B had written a book about her experience as a surrogate mother and had earned royalties as a consequence. However, in the event, the arrangement was not deemed to be commercial because there was no third party or agency involved, and the money that was paid was regarded as ‘expenses’ rather than remuneration. The second issue was more difficult. Clearly the court had not given prior authorization for the payment to Mrs B which, under the Adoption Act, would have been the only way that such a financial exchange could have been condoned. So the judge argued that the courts had the power to give this authorization retrospectively. It was, however, only possible to construct this argument by reference to a criterion outside the coherence of the strict legal parameters of the case. This criterion was ‘the best interests of the child’. This criterion has been used in cases involving children, especially divorce cases where custody has been disputed, since the nineteenth century in the UK (see Brophy 1985). As Thery (1986) has argued, the judiciary’s use of this criterion has been criticized on the basis that it is an empty concept, that it merely disguises support for the patriarchal order, and that it is an irrelevance because the courts merely rubber stamp agreements made by parents. However, I am less concerned with these issues here than with the resort to an undeniably non-legal criterion in the construction of a legal judgement. The history of the idea of children as a specific category of persons with special needs has been traced (Ariès 1979) and it is clearly part of the growth of the human sciences—especially biology, medicine, and the ‘psy’ professions. As statute law extended itself more and more to cover family matters and children (e.g. legislation covering child labour, divorce, domestic violence, age of marriage and 16  THE POWER OF THE LAW consent) so it encroached upon those areas of special concern to the emergent ‘psy’ professions. It is not correct to depict this historical development in terms of law being ‘challenged’ by the new discourses; rather law attempts to extend its sovereignty over areas constructed by the discourses of the human sciences as significant to the disciplining of the social body. But law extended its legitimacy by embracing the objects of this discourse. For example, as the medical profession constructed homosexuality as a perversion ultimately in need of treatment, so the law extended its powers over homosexual activity. As children were identified as a special category of great importance to the regulation of populations (through ‘proper’ socialization, education, health matters, etc.) so the law extended its ‘protection’ of children by introducing legislation on the age of consent, procurement, incest, and so on. So we can see a form of cooperation rather than conflict and a process by which law extends its influence into more and more ‘personal’ or ‘private’ areas of life. In this respect law is most definitely exercising a mode of disciplinary regulation. With each of these moves law incorporated the terms of the discourses of the human sciences and, I would argue, extended its exercise of power to include the new technologies identified by Foucault. Hence law retains its ‘old’ power, namely the ability to extend rights, whilst exercising new contrivances of power in the form of surveillance and modes of discipline. Example 2: Law’s power overshadowed by medical discourse The second case to which I shall refer is C v S (The Times’ Law Report, 25 February 1987). This case shows the relationship between law and medicine in a rather different light, but it is also important for the way in which the adjudication concentrated on ‘medical’ issues rather than issues of competing rights. This case was one where two students had had a brief relationship resulting in the disputed pregnancy. The young woman at the time of the case coming to court was between 18 and 21 weeks pregnant. But she had taken the ‘morning after pill’ and, not believing herself to be pregnant she had undergone medical treatment in the form of examination by X-ray. She had also been taking anti-depressants. Her former lover was a member of an anti-abortion campaigning group and on discovering her intention to have a medical termination he attempted to use the law to prevent her. 17  FEMINISM AND THE POWER OF LAW In the UK, medical abortion is available under the 1967 Abortion Act in which the procedure is made available if two doctors have certified that the continuance of the pregnancy would involve greater risk to the life of the pregnant woman, or of injury to her physical or mental health, than if the pregnancy were terminated. However, this legislation is vulnerable to earlier legislation which Parliament has not revoked. In particular the Offences Against the Person Act 1861 (section 58) which makes it an offence to induce a miscarriage, and the Infant Life Preservation Act 1929 (section 1) which provides that ‘any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of a felony’ (see Kingdom 1985a, 1985b). This case was brought under the 1929 Act, it being argued that, with the advances made by medical science, the 18–20 week old foetus was capable of being born alive. So the case was not, in legal terms, about whether the putative father had a right of veto or a right to fatherhood, but about a medical matter of the viability of a foetus of 18–20 weeks. This strategy was partly based on the fact that there had already been a case in which a husband had tried to prevent his wife having an abortion on the grounds of his right to be consulted over a medical procedure affecting his wife. He had lost the case and C v S would not have proceeded very far on the same grounds given that the putative father was not married to the pregnant woman and was therefore without the common law rights of married men in general. The interesting difference between these two cases is that the first relied on the question of rights whilst the second relied on the scientific status of medical knowledge. So the putative father in the second case was not appealing to law’s traditional jurisdiction in terms of its power to allocate rights, but to law in the shadow of changing and increasingly powerful medical knowledge. I use the term ‘in the shadow’ because in this case the law has a different relationship to medicine than in the case of adoption cited above. In this case medical opinion agreed that, whilst the foetus showed real signs of life, it could not breathe independently nor with the help of a ventilator. The Court of Appeal therefore judged that the foetus was not capable of being born alive under the Act. But the Court went further and quoted the words of the President of the Family Division in a previous case to the effect that, 18  THE POWER OF THE LAW not only would it be a bold and brave judge…who would seek to interfere with the discretion of doctors acting under the Abortion Act 1967, but I think he would be a really foolish judge… (Paton v British Pregnancy Advisory Service Trustees (1979) QB 276:282) In this case we see law deferring to medical knowledge/power. In Foucault’s terms we can see the ‘principle of right’, giving way to the ‘mechanisms of discipline’. Unlike the adoption cases, questions of the viability of foetuses have remained within the medical sphere, subject to scientific criteria, whilst questions of the interests of children have been historically formulated in a much wider fashion. Had the putative father in this case been able to construct his arguments in terms of the best interests of children, or a father’s right to have a say in the best interests of his future biological offspring, the outcome of the case might have been very different. However, it is not my purpose here to speculate on this, rather it is my intention to show that we cannot easily read off from an individual case the nature of the law/medicine debate because the respective power of these different discourses varies. In some instances we may see a coalition, in others a conflict and we cannot assume a pattern or clear signposts which will point us to an inevitable future. Our vision of these issues will perhaps only become clear retrospectively, or after more detailed analysis of similar cases. However, it might be unwise to assume that law and the traditional ‘principle of right’ should cease to be a focus of concern. It would seem that the rights discourse still has political purchase and there is a growing tendency to resort to law for remedies which are couched in terms of rights. It should be borne in mind that it matters a great deal who is making an appeal to the ‘principle of right’ before we assume that all such appeals are fruitless. I shall argue in Chapter Seven that the traditional mode of power responds rapidly to such appeals by men who are attempting to re- establish patriarchal authority in the family (see also Smart 1989). We should also be alert to the way in which law can transform appeals couched in the discourse of welfare into issues of rights—hence reasserting law’s traditional dominion over the matter. One example of this is the question of access to children by fathers after divorce. In this case the idea of parental rights has diminished as a valid appeal to make to law, but the claim for access has been substantiated by the ‘psy’ discourses which maintain that it is in the child’s best interests to 19  FEMINISM AND THE POWER OF LAW see his/her father. The courts have accepted this, but have reconceptualized the issue into one of rights. Hence the law argues that access is the inalienable right of the child. Once defined as a right the law can deploy its traditional powers to defend this right (even to the extent of obliging a child to exercise his/her rights against his or her will). This transformation of power conflicts into the language of rights enables law to exercise power rather than abdicating control to the ‘psy’ professions and the mechanisms of discipline. The fact that law may fail to provide remedies (except in a very narrow sense) is immaterial. Law is now the accepted mechanism for resolving social and individual problems and conflicts from the theft of a bottle of milk to industrial conflict and genetic engineering. In this context law’s colonization by the mechanisms of discipline should be seen in a new light rather than in terms of a form of power which is withering away. There is indeed a struggle going on, but at the same time law is extending its terrain in every direction. Moreover, whilst we can see a symbiotic relationship developing between law and the ‘psy’ professions, law is hardly challenged by other discourses, e.g. feminism. As I have suggested above, where feminism has influenced law it has been through existing mechanisms, for example through the discourse of rights or of welfare. When feminism tries to construct its own terms it finds law to be more impervious (see Chapters Two and Four). I shall now turn briefly to a discussion of legal method to elaborate on how this form of ‘claim to truth’ disqualifies feminist discourse. THE PROBLEM OF LEGAL METHOD By drawing on other disciplines we are now asking if not only the practice of law silences women’s aspirations and needs, and conversely privileges those of men, but whether the very construction not only of the legal discourse, but representations of the discourse in the academy (the construction of our understanding and knowledge of law), is the product of patriarchal relations at the root of our society. (Bottomley 1987:12) Anne Bottomley is here raising the question of whether the very core of law—the means by which law is differentiated from other forms of 20  THE POWER OF THE LAW knowledge—is gendered. We are now familiar with other forms of feminist criticism—for example the criticism of law for excluding women (Sachs and Wilson 1978), or the criticism of the content of legislation (Atkins and Hoggett 1984), or the criticism of the specific practices of law (Adler 1987). It is a fairly recent innovation for feminists to start to criticize the very tools of legal method which have been presumed to be neutral. As Bottomley suggests, this form of critique is not new in other disciplines. Sociology, for example, has long been reflexive about its methodology and methods and there is a large feminist literature available in this field. As early as 1974 Dorothy Smith, in an article of major importance, argued that it was not sufficient to add women to the subject matter of the social sciences without radically altering the perspective and method of these disciplines. In law this critique has taken longer to materialize. This is undoubtedly linked to the status of law and its claims to Truth. Sociology’s claim to truth has always been shaky, not so law’s. But in all areas of the academe radical (i.e. at root) dissent from the dominant paradigm of knowledge production causes problems for the dissenter. As Lahey (1985) has argued, to follow radically different ways of thinking can amount to professional suicide.1 In the discipline of law there is almost a double suicide involved. Not only does the dissenter challenge academic standards, but also the standards of law as a profession. Inasmuch as law has a direct practical application, the dissenter in law is more subversive than in a discipline like sociology. The former challenges the standing of judges, barristers, and solicitors as well as academic lawyers. Little wonder then that feminism has such a hard time taking root in law. Mary Jane Mossman (1986) has suggested that law (at least legal method) is probably impervious to the feminist challenge. It is perhaps worth considering her view in some detail. In her article ‘Feminism and Legal Method: The Difference It Makes’ Mossman identifies three main elements to traditional legal method. These are boundary definition, defining ‘relevance’, and case analysis. The first element, boundary definition, is the process whereby certain matters are identified as outside the realm of law. Hence some issues may be identified as political or moral. It is of course important to recognize that these boundaries may move and that they are little more than a convenience. For example in the UK prostitution is defined as a moral issue, not a matter for law. However, soliciting for the 21  FEMINISM AND THE POWER OF LAW purposes of prostitution which, by definition, causes a nuisance, is a legal matter. The point that Mossman makes however, is that boundary definition is important not as a consequence of where the boundaries are drawn, but as a consequence of the neutrality that it confers on the law. So when lawyers and judges maintain that it is the job of the legally-trained mind to interpret the law, and not to pass judgement on issues outside the law, they gain credibility. They assert a terrain within which legal method is entirely appropriate, but they also appear to keep out of subjective areas like moral evaluations, or political bias. The second element of method is the defining of relevance. So, for example, the student of law learns that it is relevant in cases of rape to know the ‘victim’s’ sexual history. If she has had a sexual relationship with the accused this must be made known, and even where it is not with the accused it may be deemed relevant. The sexual history of the accused is, of course, never relevant. In learning this the student of law learns how to defend a rape case successfully and he or she also learns another technique of oppressing women. Yet law is impervious to this critique because the formulation of the rules guiding rape cases are shrouded in the mists of time—and by the myths of neutrality. The student who argues that this should not be relevant will never make a ‘good’ lawyer. The third element is case analysis. This is where the legally-trained mind searches out cases which may constitute the precedent of a judicial decision. Some cases become ‘good’ law, i.e. should be followed, others mysteriously become ‘bad’ law and are ignored. But even among cases that lawyers call ‘good’ law there is a vast choice. This raises the question of how they know which ones are relevant. Sumner (1979) has argued that judges merely make their decisions and select the cases accordingly. In other words the cases are decided in a post hoc fashion, logic does not inexorably lead the judge to the right decision. This, of course, is heresy to the legal positivists, yet the observation that cases heard on appeal can overturn previous decisions— several times—should be enough to produce scepticism about the infallibility of the case analysis method. In all of these areas, Mossman argues that it is possible for law to evade the feminist challenge, indeed to identify it as irrelevant nonsense. Women lawyers are faced with the choice of being good feminists and bad lawyers, or the converse. However, whilst accepting the strength of Mossman and Lahey’s argument, it may be 22  THE POWER OF THE LAW that they both take law too seriously. Legal method can be deconstructed, and it is well known that law in law schools is quite different to the practices of lawyers ‘outside’. It is important to recognize the power that accrues to law through its claim to truth, but law is both more and less than this in practice. It is more than this because the focus on legal method is narrowly ‘judge-oriented’ and a lot of law in practice never gets near a judge; it is less than this because although law makes a claim to truth, many lawyers do not, and they too deflate this view of law in their daily practice. The extension of law’s domain to which I referred above, is not necessarily regarded by everyone as legitimate. It is, for example, fairly common to hear the utterance that more law simply means more money lining the pockets of lawyers. Such utterances indicate that not everyone accepts law’s image of itself, nor welcomes the extension of legal terrain; they may even mark the beginnings of a resistance to the power of law. I would like to return to the point about the focus on legal method being narrowly judge-oriented. In her book Women’s Law (1987), Stang Dahl describes in detail how the new discipline of Women’s Law began in the Law School of the University of Oslo, and what its orientation is. I cannot do justice to her pioneering work here, but I wish to highlight some of the important points she makes about challenging traditional law and legal method (or doctrine as she calls it). Stang Dahl accepts the idea that law should retain its own method, she states, Legal doctrine, i.e. the interpretation of law according to prescribed methodology, should remain the core area of legal science because it is there that lawyers have their own tools and a distinct craft. (Stang Dahl 1987:32) This is surprising given the drift of most feminist work in North America and the UK. However, it becomes clear that Stang Dahl does not include in her idea of doctrine all the elements that Mossman includes. So, for example, she points out how Women’s Law challenges the usual direction of law by encouraging ‘the use of legal sources “from below”’. By this she means that greater reliance should be placed on custom and public opinion of what law ought to be. This, she argues, allows empirical evidence about women’s lives greater influence on the law. So law would become more responsive to the ‘real’ rather than its own internal imperatives. In this way she envisages law and the 23  FEMINISM AND THE POWER OF LAW social sciences coming closer together and a greater role for the women’s movement in influencing law. 2 Stang Dahl’s next challenge to traditional law is to emphasize government administration rather than formal law. She argues that legislation (and also the major legal cases of the day) rarely have anything to do with women. In fact she goes so far as to say that even sex discrimination legislation has little to do with women. She argues (rightly in my view), That a law is gender-specific in its formulation need not, however, mean that it is significant for women’s position in law or society. The same applies to the directives found in sex discrimination legislation. Even though its express objective gives it an automatic relevance to women’s law, and even though the act’s enforcement measures are many and comprehensive, this in itself is not tantamount to the law’s consequences having special significance for women’s lives and rights, either generally or in decisions in individual cases. (Stang Dahl 1987:29) In her view the ‘law’ that affects women’s lives is more likely to be the administration of welfare benefits, the operation of the private law of maintenance, and the formulation of guidelines and decision-making at the level of bureaucratic operation. 3 Hence she proposes simply to demote the importance of formal law in feminist work. But she does not suggest that this be done by fiat, she argues that it is a development which is already occurring within law. High status may still be in the realms of formal law, but the routine and necessary work is elsewhere. This point, in turn, is linked to the point about the narrowness of legal method—and therefore feminist concentration on this method. Stang Dahl argues that legal reasoning which applies abstract norms to the facts of an individual case is only relevant where a judge is the addressee. Hence this method is judge-dominated because, in order to persuade a judge of a particular point, it is necessary to reason in this rigidly legal way. However, such law has little relevance to the lives of women, so women’s law in Oslo addresses itself to a different audience. Stang Dahl does not promote this as a way of overcoming law’s hegemony, however, I think she says more than she realizes here. Whilst it is true that all law is in some way in the shadow of the judges, it is perhaps important to recognize how little law in practice is ever 24  THE POWER OF THE LAW subjected to legal method. The strategy that seems to come from Stang Dahl’s work is therefore not to challenge legal method so much as to ignore it and to focus on law in practice. If Mossman is correct that legal method is impervious to feminist critique then Stang Dahl’s option seems more sensible than continuing to push fruitlessly against such an immovable object. This strategy does not overcome all the problems identified in this chapter of course. Yet it does overcome the problem of colluding with law’s overinflated view of itself. Part of the power that law can exercise resides in the authority we accord it. By stressing how powerless feminism is in the face of law and legal method, we simply add to its power. The strategy available to Stang Dahl in Oslo is not, of course, universally available. There are no law schools in the UK that would contemplate such a radical move as to introduce Women’s Law as part of a compulsory syllabus. Yet at least this provides a useful model which indicates how the power of formal law can be decentred. But feminism itself as a source of power and resistance even where we do not have the means radically to change law schools and law itself. Weedon has argued that even where feminist discourses lack the social power to realize their versions of knowledge in institutional practices, they can offer discursive space from which the individual can resist dominant subject positions. (Weedon 1987:110–11) It is therefore important for feminism to sustain its challenge to the power of law to define women in law’s terms. Feminism has the power to challenge subjectivity and to alter women’s consciousness. It also has the means to expose how law operates in all its most detailed mechanisms. In doing this it can increase the resistance to law and may effect a shift in power. Whilst it is important that feminism should recognize the power that law can exercise, it is axiomatic that feminists do not regard themselves as powerless. 25