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148 The reach of the law
that were a mark of progress in terms of this recognition. The achievement
in Britain of universal suffrage in stages by 1928, the gradual breakdown of
exclusion from holding public office, from entry into the universities and
professions (Sex (Removal of Disqualification) Act, 1919), were funda-
mental to the cause of basic equal rights. The Equal Pay Act (1970) and the
Sex Discrimination Act (1975) are the best known, but among equally far-
reaching specific reforms have been those on the rights of married women
to own property (The Married Women s Property Act, 1882), the equalisa-
tion of custody rights over children (Guardianship of Minors Act, 1971),
the right of any woman to take out a mortgage without a male guarantor
(1975), the gradual legal recognition of domestic violence and the
outlawing of marital rape (1994). These are only the most notable examples
of what has been achieved in recent times by relentless campaigning and it
is undeniable that they have all been established against deeply ingrained
hostility and resistance. These reforms have nevertheless been achieved and
have gradually changed the relative status in society of males and females
beyond recognition over the past century, a point frequently emphasised by
liberal feminists against those who disparage these legal changes as merely
formal .
The feminist critical engagement with liberalism
Contemporary feminist reactions to this long slow history of reform has
been mixed. Many legal scholars continue to regard it as the main focus for
feminist jurisprudence, concentrating their research on specific issues of
injustice and inequality. Others, however, have been more sceptical of the
value of establishing legal rights, arguing for a more fundamental and thor-
oughgoing critical analysis of legal theory and practice. In particular, some
have argued that the formalities of legal rights are insufficient in the face of
the realities of male domination and violence that lie beyond the reach of
the law, leaving deeply embedded discrimination and injustice untouched.
The universalism of natural rights is said to make no contact with the real
lives of individual women, because they are decontextualised and devoid of
real content. Beyond this, it has been argued that the achievement of such
rights can be not only inadequate but also counterproductive in as far as
they create the illusion of a substantive equality that has only been formally
recognized. From this point of view, legal rights are seen as a positive
obstruction to advancing the cause of equality and justice.
The main objection to feminist liberalism, with its focus on the struggle
for recognition of the subordinate position of women, for equal opportuni-
ties and full citizen s rights, is the argument that this strategy falls into the
trap of demanding parity on terms that have been defined by males,
demanding all the same rights, which are typically male rights. The rights
as formulated were, it is said, constructed specifically for males. On the face
of it, this is a puzzling objection to rights successfully secured, such as those
Modernity and the reach of the law 149
relating to political participation, the right to hold public office and so on.
The implication would seem to be that they allow the male domination in
these areas to continue unchallenged. The objection, however, runs deeper
than this. The claim on which it rests is that gender-bias is built into all the
political and legal institutions, and that it permeates the language of politics
and especially law so thoroughly that all its fundamental concepts, standards
and methods of reasoning are deeply biased against women. The masculine
presuppositions embedded in all the legal concepts are said to be so deep-
rooted that they are like the air we breathe. So the general idea here is that
gender-bias is concealed or subliminal, and it is at this deeper level that it
has to be confronted.
Compare this with the kind of masculine bias in law that is overt and
visible to everyone on a moment s reflection. The explicit exclusion in the
past of women from legal training or higher appointments on the grounds of
inherent unsuitability was at the time relatively uncontroversial.
Justifications included claims that women had the wrong kind of brains and
cognitive abilities, or the wrong pitch of voice to speak in the appropriate
tone. Explicit prejudices like these have been dying out, but the language of
the law is still regularly criticised for its overt gender bias. One of the
common law principles of natural justice states that no man is to be judge
in his own cause. The most common example is the standard of the
reasonable man as the measure of the kind of behaviour that can be
expected by the law. Such expressions, of course, have run right the way
through the English language, not just the law. These are relatively superfi-
cial grammatical biases, creating an atmosphere of masculinity in the law,
which has prompted their recent correction to gender-neutral terminology,
such as the reasonable person .
The point of the radical argument is to emphasise bias that is more
subliminal than this. The concealment is effected, it is said, by the male judi-
cial pretence of neutrality and objectivity in legal reasoning, in resolving
matters of law. The question of whether this pretence is conscious or uncon-
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