The Judicial Gendering of Citizenship: A Look at Property Interests During Marriage
| Date | 01 December 1997 |
| DOI | http://doi.org/10.1111/1467-6478.00057 |
| Published date | 01 December 1997 |
INTRODUCTION: ACTIVE AND PASSIVE CITIZENS
Within the international community, the meaning of citizenship is
determined by difference. It is only through the notion of non-citizenship,
or ‘other’, that ‘the citizen’ acquires meaning. In this way, ‘we’ are
distinguished from ‘them’. The legal meaning is assumed to be of most
significance at the borders, that is, at the points of entry into and exit from
the state – where passports and visas are the relevant signifiers of status.
Within national communities, the concept of citizenship is invoked to draw
a mantle of sameness over those deemed to be members of the community.
Liberal theory expects the particularities of difference that characterize the
self to be sloughed off. In one sense, there is a positive communal dimension
associated with the suppression of the self and the erasure of particularity,
but this carapace of universalism also serves a convenient purpose within
liberalism because it denies difference. However, as Anne Phillips points out,
citizenship is fundamentally a political category that cannot address the
inequalities of the social and economic spheres.1Corporeal differences,
including sex, colour, sexual orientation, disability, and age are unseeable
within the universal public realm with which citizenship theory is concerned.
Status differences, such as marriage and parenthood, which disproportionately
affect women, are even more elusive. Despite the declining social significance
of marriage, the observation of Teresa Brennan and Carole Pateman two
decades ago that ‘[w]omen, more specifically married women, constitute a
permanent embarrassment and problem for liberal political theory’2is still
relevant, as I propose to demonstrate.
In Anglophone societies, it is tacitly assumed that the benchmark citizen
is a white, Anglo-Celtic, heterosexual, able-bodied, middle-class man, for it
© Blackwell Publishers Ltd 1997, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
* School of Law and Legal Studies, La Trobe University, Melbourne, Vic.
3083, Australia
Paper presented at Citizenship, Accountability and Law Conference, China University of
Political Science and Law, Beijing, December 1996. I would like to express my thanks to Paula
Baron for reading the manuscript and making helpful comments.
486
JOURNAL OF LAW AND SOCIETY
VOLUME 24, NUMBER 4, DECEMBER 1997
ISSN: 0263–323X, pp. 486–503
The Judicial Gendering of Citizenship: A Look at Property
Interests During Marriage
MARGARET THORNTON*
487
© Blackwell Publishers Ltd 1997
is he who has historically dominated political life. Traditionally, only he had
the right to vote and to represent others.3When the issue of women is raised,
particularly if Aboriginal, lesbian, disabled or working class, the notion of
citizenship is immediately challenged; there is a dissonance between ‘woman’
and ‘citizen’ that disturbs the would-be universal.4As the benchmark citizen
has constructed normativity in his own image, he has been able to claim a
monopoly over rationality, objectivity, and non-partisanship: characteristics
deemed appropriate for the management of property, and for decision
making in the public sphere. To enhance the norm, the ‘other’ is associated
with the antithesis of these positive characteristics. Women, regardless of
their personal attributes, have been constructed as non-rational, emotional
and partial: characteristics which are inappropriate for the management of
property, and corrosive of the claimed universality of citizenship.5
To illuminate the gendered distinction between the benchmark citizen and
the ‘other’ which has been camouflaged by the cloak of universalism, I turn
to the philosopher, Immanuel Kant, who drew a distinction between active
and passive citizenship.6He assigned to the active category all propertied
men of independent means. To the passive category, he assigned all women
and any men who depended on others for their support. Because their
dependency denied them legal personality, Kant described women and
dependent men as ‘mere subsidiaries of the commonwealth’. While there is
a class distinction fracturing the category ‘men’ so that some are assigned
to the active side and others to the passive, Kant assigned all women to the
passive side, regardless of class. This active/passive binarism has contributed
to a discourse of gendered specificity within citizenship, underpinned by the
fact that men’s active citizenship has been contingent on women’s
subordination.7Historically, the status of men as heads of households enabled
them to engage in public affairs because their wives engaged in the necessary
roles of production and reproduction. Thus, Fraser and Gordon suggest
that coverture (whereby a woman lost her legal personality on marriage at
common law) should be understood as ‘a modern phenomenon that helped
constitute civil citizenship’.8
With the disintegration of feudalism, marriage alone ‘retained some of
the peculiar attributes of feudal bondage’.9Marriage vitiated all civil rights
for women, including the denial of legal personality.10 The control exercised
by the husband over the body of his wife was designed to ensure sexual
fidelity and the legitimacy of children. The control, therefore, was linked
with the patrilineal transmission of property, which constituted the backbone
of civil society. Vogel points out that all the prominent thinkers of classical
liberalism connect the preservation of civil society with the harmonious
transmission of property along family lineages.11 An understanding of the
crucial social role of marriage, therefore, goes some way towards explaining
why modernization of the status of marriage has been retarded and why
civil citizenship for women, particularly married women, continues to be
problematic.
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