Criminal Law and the Man Problem by Ngaire Naffine(Oxford: Hart Publishing, 2019, 224 pp., £55.00)

Date01 June 2020
AuthorNicola Lacey
Published date01 June 2020
(Oxford: Hart Publishing, 2019, 224 pp., £55.00)
In this erudite and powerfully arguedbook, Ngaire Naff ine adds to her already
distinguished contributions to feminist legal scholarship with a trenchant
critique of the persistent patriarchy of criminal law, illuminating the sexed
ways in which it ‘brings its characters into being’ (p. 148). Focusing on
key cases, legislative arrangements, texts, and commentaries stretching from
Matthew Hale in the early eighteenth century right through to the present
day, Naffine interrogates criminal law’s construction of its subjects and
deconstructs the supposedly neutral ‘person’ of modern criminal law. While
‘[t]he criminal law scholar[’s] … people are persons and individuals; and
even the bodies of the persons they invoke are strangely abstracted – typically
lacking a sex and yet somehow imagined as enclosed forms but not thoroughly
visualised’ (p. 26), this, Naffine argues, is an illusion – a product of a
structural erasure of, in effect, the sex of criminal law:
[C]riminal law, as a discipline, does in fact engage mainly with men and their
antisocial behaviour, and the formulation of its offences has necessarily been in
response to male behaviour and male social norms. Men have made the criminal
legal world. They havedrawn it up, decided on its priorities and they are also its
central characters. … The problems of men have been the problems of criminal
law.(p. 23)
I will return below to Naffine’s claim about criminal law being concerned
primarily with male behaviour so as to concentrate in the first instance on
the key contribution of the book in illuminating the evolving doctrinal and
ideological mechanisms through which the sex of the legal subject has been
at first explicitly asserted and then gradually obfuscated. At the heart of her
analysis are criminal law’s arrangements for the liability of husbands, and
commentators’ rationalizations of those arrangements. This focus on legal
statements about men as husbands is necessary, she argues, because ‘men,
as men, only come clearly into view when they are defined in relation to
women. Logically, it is the other sex, that which men are not, which sets the
boundaries and the contours of men’s nature’ (p. 42). Of course, this focus puts
the history of the marital rape exemption – alongside the doctrine of coverture,
the defence of provocation, and the doctrine of the unity of husband and
wife – at the core of the interpretive project.
I confess that my first reaction to this was that it might be difficult to ground
a general critique of criminal law and criminal lawyers on such relatively
specific grounds. However, I in fact found Naffine’s analysis persuasive. In
This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution
and reproduction in any medium, providedthe original work is properly cited.
© 2020 The Authors. Journal of Law and Society published by John Wiley& Sons Ltd on behalf of Cardiff University(CU).

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