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Is the law becoming increasingly feminine and is this bad news for men?

January 30, 2015 by Inside MAN 10 Comments

There were two pieces of news yesterday that me made consider the gendered nature of our legal system.

The first was the news that Justice Minister, Simon Hughes, wants to halve the number of women in prison because they are a ‘special case’ who should be treated differently to men.

The second was the news that the Director of Public Prosecutions, Alison Saunders, has issued new guidance to police forces which place a greater burden on men accused of rape to prove they are not guilty (as distinct from being assumed innocent until such time as the prosecution proves them to be guilty).

Together, these two items of news are symptomatic of an ongoing trend that is seeing the increasing feminisation of our legal system in the UK. And by feminisation I mean it’s:

  • Increasingly dominated by women
  • Increasing dominated by women’s concerns
  • Increasing dominated by feminine values
  • Increasingly dominated by feminist thinking
  • Increasingly dominated post-modern (a worldview that tends to be more feminine and feminist)

This evolving, feminised approach, which puts “women and girls’ first, is being built on top of a paternalistic system that already treated women as a “weaker sex” and in need of men’s protection (and protection from men). Together these two worldviews are combining to create a legal system that increasingly seeks to favour women and discriminate against men.

 How girls and boys play

In thinking about this article, I was reminded of an observation about the way that children create rules when they play. I think it was the linguist Deborah Tannen who made this point. She said that girls will tend to break the rules to protect each other’s feelings; whereas boys are prepared to hurt each other’s feelings to protect the rules of whatever game they are playing.

When I first heard this idea, it instantly reminded me of a game of boys’ football I arranged with a friend who was a Guardian journalist. We both took a side and not long into the game his son (who was on my team) fell over as the result of a good, clean tackle. We all knew it wasn’t a foul but because his boy turned on the waterworks, dad gave him a penalty and we scored an undeserved goal.

This, to me, was a gross miscarriage of justice, particularly to the boys on the other team who had been disadvantaged to save anther child’s feelings. So I took the law into my own hands and the next time I had the ball, I kicked it into my own goal to even things own.

So who was right? Was it my masculine concern for the rules, or Guardian dad’s more feminine concern for his son’s feelings?

Making up the rules as we go along

The truth is, we hadn’t agreed what the rules of engagement were between us so we ended up just making it up as we went along and trying to enforce our own rules on each other. And that’s how our legal system evolves, we simply make it up as we go along, which each new generation inventing and enforcing new rules on everyone else.

So it’s not surprising that as more women enter the legal system, the more feminine the law becomes. The rise of the female lawyer in the past 40 years has been phenomenal. In the late 1960s, fewer than three per cent of lawyers were women. As of July 2013, 51.4% of qualified solicitors are women and 65% of students entering university to study law in 2014 are female.

This gradual feminisation of the legal system is manifesting itself in unusual ways. A recent US study by linguists and lawyers found that male lawyers who sound very masculine are less likely to win a US Supreme Court case than their more gentle-sounding peers. The more feminine the presentation, the more likely the lawyer is to win.

The rise of postmodern law

And it’s not just at the personal level than feminine qualities seem to be gaining precedence in legal proceedings, the rise of the post-modern worldview also contributes to the creeping feminisation of the law.

According to David Noebel, author of Understanding the Times: The Collision of Today’s Competing Worldviews:

“Postmodernists insist that Western law, which grew out of Christianity and the Enlightenment, reflects white male bias. They attack ‘the concepts of reason and objective truth, condemning them as components of white male domination. They prefer the more subjective ‘ways of knowing’ supposedly favored by women and minorities, such as storytelling. As to the rule of law, it is an article of [Postmodern] faith that legal rules are indeterminate and serve only to disguise the law’s white male bias’.”

In a sense, all legal systems are subjective. Concepts like “beyond reasonable doubt” and the “balance of probabilities” are ultimately subjective judgments based on objective facts.

The shift towards feminine laws

But the feminine shift towards greater subjectivity in the legal system much goes further. Concepts like “fear of crime”, “feeling harassed” and “emotional cruelty” are postmodern constructs that have risen to prominence in the past 20 years.

So the fact that more women on average say they are subjectively scared of crime becomes more important than the fact that more men are objectively victims of crime. Worse still, you can become legally responsible for someone else’s emotional response. So if someone subjectively feels distressed by your actions, even if it wasn’t your intention to distress them, you can be charged with harassment.

This shift towards feminine, subjective laws is particularly notable in family proceedings when parents split up. Having been to court with many fathers as a McKenzie Friend, I’ve seen how family law operates at first hand—and in my experience (and we’re all about feelings now) it’s cruel.

The cruelty of family law

Dads generally expect the law to be fair an equal and rational and objective. They expect court to be about their rights and they tend to believe that if they simply sit down with the judge and explain everything logically then justice will prevail.

Family law, however, operates on a subjective, feelings-based principle called “the best interests of the child”. It sounds wonderful, until you realise that there is no presumption that the interests of the child are best served by ensuring mums and dads have equal rights.

In fact, the “best interests of the child” is such a fluid construct that in a famous case a good father was denied contact with his child because it upset mum too much—and so the decision was taken that because mum being upset was felt to be bad for the child, it was deemed to be in the child’s best interest to be denied contact with her father.

Feelings-based justice

Masculine, rights-based justice would contend that every parent should be automatically allowed to be part of his or her child’s life unless there was tried and tested evidence that he or she was a risk to that child—innocent until proven guilty.

Feminine, feelings-based justice says that if mum doesn’t feel like letting dad be involved, then those feelings should be honoured—and any dad asserting his right to be involved in his child’s life is an example of a man seeking to dominate a woman and exercise his social privilege.

The same principle is applied by social workers who have unfettered freedom to gradually remove a child from a parent’s life because they “feel” the parent is a risk. I have watched in horror in the past 12 months as I have observed social workers supporting the removal of a dad I was working with from his child’s life, without any consideration for the child’s or the father’s rights and without any need to go to court.

Male and female logic

The way that feminine, postmodern, subjective law operates seems unnatural and illogical to many men. It’s an approach that says you don’t just award penalties to boys playing football because the rules are broken, you award a penalty to save the boy’s feelings from being hurt.

It’s an approach that says you don’t treat male and female prisoners equally, you treat women more favourably because you feel more empathy for them than male prisoner.

It’s an approach that says a female witness whose story is inconsistent and has a poor memory of events, is not an unreliable witness but a victim whose inconsistency and poor memory is evidence of trauma.

Of course, evolving and improving the way the law operates so more victims are protected and more perpetrators are brought to justice is a good intention that most right-thinking people would support. However, the way the feminised legal system is shaping up seems to be creating more injustice (particularly against men) in the process of trying to make the system fairer.

—Photo: Flickr/Tori Rector

Article by Glen Poole author of the book Equality For Men

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Filed Under: Men’s Insights Tagged With: David Noebel, Deborah Tannen, feminisation, feminised, Feminism, law, post-modern, postmodernism, Simon Hughes

  • Nicholas

    In answer to the article title: Yes and yes… and women.

    a) It is incredibly arrogant and pompous to suggest that female criminals should not be subject to the same legal implications as males because they are ‘special cases’ who are often victims themselves. Women are generally more fluent at expressing their emotional experience as well as less subject to the social expectations they ‘man up’ and not show any weakness. Any examination of male prisoners would show vastly disproportionate levels (to the general population) of mental health disorders, drug addiction, learning disabilities and economically disadvantaged backgrounds. Prisons are simply filled of people who should not be in prison. What exactly is Simon Hughes doing about that?

    b) It is slightly scary-puritanical to impose this alteration to already unworkable rape laws: How on earth do you prove consent in a sexual act after the event? Is there going to be any government advice regarding this? Should young men hold off until she has said ‘I do’ down the end of his video-recording smartphone? Baring in mind young people are exposed to increasingly hard-core porn, that women are quite capable of being sexually active and that to assume responsibility as being male is pretty outdated: I think we need to be worried about the thinking behind this.

    To gender legal outcomes and expectations is I am afraid an example of feminism’s ‘four legs good, too legs bad’ philosophical hypocrisy coupled with a rather bizarre moral conservatism which seems to of risen from the Victorian era. I hope these stories don’t just sink into the background because they are bad news for men who are increasingly sub-women(human); and women who are still the weaker more vulnerable sex, apparently.

  • Nigel

    http://www.prisonreformtrust.org.uk/ProjectsResearch/Mentalhealth/TroubledInside/Bradleyreviewgovernmentactionplan

    The Bradley Report in 2009 identified at least 25% of prisoners have learning disabilities(my field). and overall the majority have mental illnesses. I have to say that many people I work with in the Prison system male and female try really hard to help. What is galling is that this much greater problem , in terms of numbers, gets little no political backing to but into place what would be in effect the same things being done in women’s prisons. I don’t think your list of feminisation is all to blame but there certainly is an intensification of a paternalist attitude driven these days by the ease with which pressure group feminism is able to coopt old fashioned concern for “ladies”. So what we have is the deeply paradoxical situation of a “new puritanism” taking over the mantle of the Victorian reforms(driven by the huge Christian “revival” of the 19th Century) in effect doing the same thing; assuming women were “naturally” fragile and virtuous. The very laws repealed in the 1960s (preventing women from individual financial responsibility, dangerous work, moral danger etc. ) were from the mid to late 19th Century often agitated for by women’s societies and groups from the new middle classes. Prior to this the majority of the population were left to sort themselves out and any gender related law revolved around property and inheritance,clearly only of concern to the very few who actually had any property!
    Thus it is assumed to be the case that females need to be cared for and males can look after themselves. One can see this very starkly in the arrest and sentencing patterns which mean males are much more likely to face the full force of the criminal justice system and very unlikely to find any of the issues they often have included in consideration, in the way described by the minister. In a further paradox this differential in sentencing and treatment was uncovered by feminist academic researchers, as the first to take a look at such things on a gender split.
    Whatever the reasons we are seeing a revival of a pattern whereby males are assumed to be immensely resilient and autonomous agents capable of facing any adversity, or should be assumed to be capable. Women are actually increasingly in the position of incapable and in need of special helps and protections due to an inherent fragility. So whatever the expression of “feminist theory of gender equality” the practical effect of much feminist agitation is exactly the reverse of equality.

  • Dave D

    I agree with everything in this article except the last sentence, that the legal changes are being made, ” in the process of trying to make the system fairer.” It is nowhere near as benevolent as that. Some, I would accept not all, of the people who are pushing these changes are motivated by the belief that the male half of the human race is inherently faulty, dangerous, and the source of the alleged oppression of all women throughout history. There is no quest for fairness, only a never ending struggle to put the boot permanently on the other foot.

  • Michael

    Again, a well written and considered article – thank you Mr Poole.
    I’m immediately disturbed by the fact that the absolute ‘equality’ as previously demanded by the Feminist Movement, is developing provisos.
    Moving goalposts have a diabolical history and somehow, I don’t think this time will be different.
    That said, I am also enormously inspired by the future.
    One thing is certain, it’s not going to be ‘Same old – Same old’!

  • http://www.theskirtedman.eu Jeremy Hutchinson

    Campaigns like HeForShe and Government Equalities Office recent report “Men as Change of Agents for Gender Equality”, even Feminism all say it is gender equality but in reality it is only for women and only issues that affect women even though some of those issues affect men to. They say, except feminism, we need to embrace men to effect this goal of gender equality.

    Gender equality is just that. A balance between genders, full respect and recognition of each genders problems. To me, from my experience of these campaigns, it is not gender equality they seek and the two announcements that the above article is about are just too of the many, many examples.

  • Nigel

    Reflecting on this from my experience. I think one thing is that a mix of genders in such fields is helpful as in fact the most negative about males have often been male! The second is that how much is not ” the law” but the ideology of the professions the courts look to support them ( and indeed that of the judge, magistrates). So the guidance to the police is to help them build cases for the CPS for them to take to court for instance , yet reporting in the media often says ” new laws” and the like. I think it is an important point about the new formulations whereby one commits a crime without knowing, because it is offensive only by the definition of the “victim”. I’m not sure this is feminisation as such. Though often it appears to follow the old logic of men ” minding their language” in front of minors and women. 
    The development of sexual offences law and in particular rape ( practically unique now in that it is a crime only a male can commit by legal definition) is fascinating on one level. In effect we have moved the word rape from meaning a gross sexual assault against all decency to any incident of heterosexual penetrative sex where the female cannot be shown to have consented at the time of the act. In any discussion I’ve had people assume that we are talking about “old” RAPE rather than the new, rather procedural rape( indeed “consent” sounds more akin to medicine “consent to treatment” .  So I’m very glad about any public debate and information that makes clear what the modern offence actually is ,
    particularly in our casual drug and  drinking culture where one can imagine poor decision making and ambiguity all too likely. It would seem the law is there in  order to roll back sexual liberation in an age where morality is a dirty word so it’s dressed as ” equality”. 

  • Boris

    Some people are more equal than others.

  • Richard Collins

    This is astonishingly the most dreadful news for men. Go to jail – but women get treated! Imagine being in a 10′ by 6′ cell knowing women are a) free to come and go b) getting help c) being supported all the way. A terrible assault on equality.
    The ‘prove it wasn’t rape’ is a slippery slope to putting the burden of proof at interview stage on the defendant. It will virtually remove the right to silence in such cases.
    The question then: there are capable people reading this, including the editor and author. What are they (and we) going to do about this? Sit back and watch our fellow men unjustly locked up? Can Glen P. marshall some actions?

  • Richard Collins

    “It would seem the law is there in order to roll back sexual liberation in an age where morality is a dirty word so it’s dressed as ” equality”.”
    You are a genius with words Nigel.

  • Nigel

    In a disturbing development in the story previously covered in Inside Man the Welsh Government is pressing ahead with what will be the Uk’s first overtly sexist legislation ( rather than a strategy or policy). In the US their Violence Against Women Act had to be re drafted at renewal as it finally was recognised to be sexist and unconstitutional. Yet Wales is on track to break the convention of neutral wording in legislation and effectively contravene the EQualities Act. Of course unless the EHRC or indeed welsh assembly members challenge this Wales  will enact a sexist Act.

    https://j4mb.wordpress.com/2015/02/04/our-public-challenge-of-leighton-andrew-am-minister-for-public-services-national-assembly-for-wales/ https://j4mb.wordpress.com/2015/02/04/our-public-challenge-of-leighton-andrew-am-minister-for-public-services-national-assembly-for-wales/

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