Date01 June 2014
AuthorL.J.B. HAYES
Publication Date01 June 2014
(Oxford: Oxford University Press, 2013, 272 pp., £60.00 (hbk) £24.99 (pbk))
Since gender is such a prominent aspect of social life, why is it barely visible
in the `conceptual armoury of law' (p. 5)? Conaghan investigates. Law and
Gender challenges the long-held, and normative, assumption of law as a
gender-free zone. This is an ambitious and well-constructed book that
confidently straddles feminist legal theory, socio-legal jurisprudence, and
legal positivism. It offers a fresh take on the relationship between gender and
law which chimes with convention, in order to challenge it. Conaghan tracks
how conventional jurisprudence conceives of law as a hermetically sealed
practice, and argues that a law and society focused account would be legally
and intellectually superior. The book is highly readable, thought-provoking,
and well executed. Nevertheless, aiming to appeal to a broad `we' of the
legal community comes at a price. Gender appears in the rather grey,
cardboard-cut-out guise of a `tool' of legal analysis, and the `doing' of law is
one in which the making of legislation, the influence of the executive, and
the operation of parliamentary democracy are hidden from view.
Conaghan is a highly respected contributor to the field of law and gender
who has previously argued in this journal for feminist legal scholars to
`revisit women's disadvantage, re-engage with feminism's normative aspira-
tions, and reinstate womencentred-ness as a feminist political strategy.'
It is
striking in Law and Gender that she expressly steps away from matters of
inequality and social consequence strategically to adopt a legal positivist
approach. Proceeding with skill and care, Conaghan demonstrates that on its
own terms, consideration of gender renders legal positivism wanting.
Chapter 1 addresses the apparent incongruity of law and gender by
questioning why justice is personified in female form (as Justicia, with her
trademark sword and scales), yet feminist scholarship conceives of law as
masculine terrain. Conaghan cites the central concerns of the book as
locating gender in law, exploring its apparent invisibility, and finding ways
to bring it into view. Her findings draw on constructions of legal personhood
and the study of law itself. Legal traditions which eschew external influence
on grounds of preserving the fundamental distinctiveness of law, render
arguments and approaches which proceed from outside of `law' (such as
those concerned with gender) as invalid. Hence legal traditions which offer
continuity, assure legal legitimacy, and underpin a legal education, are an
Achilles heel with which a gender-aware jurisprudence must contend. The
privileging of immanent legal `truth' locks patriarchal precedents and the
ideals of gender-neutrality into legal ordering and the study of law.
Conaghan focuses on the operation, rather than substance, of law, and her
1 J. Conaghan, `Reassessing the Feminist Theoretical Project in Law' (2000) 27 J. of
Law and Society 351, at 384.
ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School

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