Feminist Perspectives on Equity and Trusts

Susan Scott-Hunt, Hilary Lim

• Publisher: Routledge-Cavendish
• Year: 2013
• eBook ISBN: 9781135340490
• Edition: 1
• Topic: Law
• Subtopic: Civil Law
• Index: Law

Previous collections of essays on equity and trusts law have focused on doctrinal issues, only occasionally giving a policy gloss or suggestion of social context and impact. Although a critical approach can be glimpsed in journal articles and student texts, this collection of essays draws together both feminist and critical material.

It is unique in being written by feminists, in dealing with equity and trusts as a whole and in being written in the critical tradition.

Chapter 1

The Fiction of Equity

Rosemary Auchmuty

Richard Posner’s Law and Literature, first published in 1988, is an important contribution to a burgeoning field of scholarship. Better known for his advocacy of an economic approach to law, Posner argues that ‘legal education is incomplete without the ethical insights afforded by an immersion in literature’,¹ thus calling into question the much-vaunted autonomy of the law and the objectivity of legal judgments. If feminists, for the most part, have been critical of the Law and Economics movement,² they have shown, for the most part, much sympathy for the Law and Literature movement.³ In particular, they have welcomed its attempt to seek out alternative analyses of law and justice to those found in strictly legal sources and the expression of alternative viewpoints, the voices of those silenced or unrepresented in the legal process. They have supported the move to include the study of legal ideas in literature in the education of lawyers and judges to help them to understand alternative or minority points of view, and to provide women and minority law students with the expression of views they can recognise and identify with, since the need to learn to ‘think like a lawyer’ is often experienced by these students as a profoundly alienating experience.⁴

By the time Posner came to revise and update his Law and Literature in 1998, there was a substantial body of feminist scholarship in the field. Obviously feeling that this needed to be addressed, Posner curiously inserted his critique of the feminist contribution to Law and Literature in the middle of an explication of the significance of equity. Here he takes to task those literary scholars who conceptualise law as excessively rigid and formalistic, in part because they do not understand the role of equity. In The Merchant of Venice, for example, Terry Eagleton sees Shylock as representing law and Portia, ‘not-law’, but, for Posner, Portia ‘personifies the spirit of equity’.⁵ Posner offers a ‘Table of Legal Antimonies’ to explain how common law systems have never ‘embraced the legalist position in undiluted form’, the formalistic descriptors in the left hand column (law, rule, objectivity, judge finds law and so on) balanced by the flexible terms on the right (equity, discretion, subjectivity, judge makes law). This leads him to ask: ‘Has law gender? Some feminists believe that the legalistic approach to law reflects a distinctively male way of thinking. It is remarkable how often, in literature, the view of law expressed by the terms on the right hand side of my table is personified by a woman and the opposing view by a man’⁶ This abrupt change of direction seems to be due to the fact that both groups categorise law as rigid, since plainly feminist legal scholars are not unaware of equity. Posner proceeds to examine the feminist proposition by analysing the ideas in Susan Glaspell’s short story ‘A jury of her peers’ (1917)⁷ and Carol Gilligan’s In a Different Voice (1982), concluding that ‘the “ethic of care” of which Gilligan speaks is no more a female preserve in law than it is in literature’.⁸ ‘The suggestion is excessively dichotomous both in its strict gendering of the polar conceptions of law and in its assumption that law does or can embrace one of the poles to the exclusion of the other.’⁹

Although Posner’s reasoning is not entirely clear, what I take him to be saying is that the ethic of care, as a basis for moral reasoning, is not confined to women; that it is already embodied in American law through the equitable jurisdiction and at the hands of particular judges (‘For every Langdell there has been a Cardozo, for every Frankfurter a Murphy, for every Rehnquist a Brennan, for every Scalia a Blackmun, and for every Easterbrook a Reinhardt’);¹⁰ and that there is no distinctively female approach to legal questions. In literature, too, Posner asserts, ‘the principal exemplars … of the alleged feminine outlook on law are the creation of men’ (Shakespeare, for example).¹¹ It follows that there is no need to seek out women’s voices either in law or in literature, because what women have to say is already encompassed by the law and literature produced by men.

Posner has described himself as a ‘conservative feminist’¹² but, although some scholars have acknowledged with gratitude his contribution to feminist perspectives on law (mainly through provoking them into argument),¹³ his is not a name usually associated with feminist legal thought. Indeed, there are many points a feminist might quarrel with in Posner’s succinct dismissal of the notion of gender in law (five pages in a book of more than 400) but, for the purposes of this chapter, I would like to focus on his identification of Gilligan’s ‘ethic of care’ with (among other devices) equity, and its corollary, that equity expresses ‘women’s voice’, at least when employed by certain ‘caring’ judges. My view is that women’s voices, that is, their ways of conceptualising moral dilemmas, have rarely found expression in law or equity, and that they are more likely to present themselves outside the legal discourse – in literature written by women, for example.

This chapter will explore the relationship between Gilligan’s ethic of care, women’s voices, and equity, according to the following plan. First, I will outline Gilligan’s arguments in In A Different Voice and the ways in which her insights have been critiqued or accepted within feminist legal scholarship. It is my view that Posner has seriously misunderstood Gilligan’s thesis, mainly through his reduction of her thesis to a simplistic notion that men reason one way and women another. This misses Gilligan’s more important methodological point, that mainstream scholarship privileges a particular model of moral development and diminishes, excludes, or disqualifies the approaches to moral dilemmas often articulated by women and girls.

Then, where Posner denies the possibility of women’s different voice, I will show that, in respect of moral dilemmas which end up in court, we can and do see distinctly ‘different’ ways of analysing legal problems, that these often fit Gilligan’s ‘ethic of care’, that they are often articulated by women, and that these ‘different’ ways of seeing legal issues are not, in fact, always satisfied by equity. I point out the value of looking to sources outside law – literary sources like fiction and autobiography – to find an expression of women’s voices on the subject of legal issues.

Posner dismisses the need to read literature actually produced by women to find ‘women’s voice’; indeed, he insists on only reading the best literature – which, for him, means the ‘classics’, works which have passed the ‘test of time’.¹⁴ This leaves out contemporary literature, and literature which has only recently resurfaced after decades of neglect – which means most published writing by women: ‘Feminist literary critics are trying to boost the reputation of a number of women writers, some hitherto unknown, but it is too early to say whether their efforts will succeed. That is always the case with literature and the arts; it takes many years to separate the wheat from the chaff.’¹⁵ I would argue, on the contrary, that it is often in popular fiction and the work of less ‘important’ figures that we are likely to find the different voices Gilligan describes.

The next section of this paper analyses in more depth Posner’s claim that the ethic of care has been embodied in the operation of equity across the centuries. I argue that, although equity has that potential, it has rarely been allowed to do so, or not for long. I move then to Posner’s argument that the ethic of care has been employed in the judgments of particular ‘caring’ judges. As an English equivalent of Cardozo or Brennan, I have selected Lord Denning, the great exponent of equity; but I conclude that, although Denning was often sympathetic to women, his legal analysis did not exemplify Gilligan’s ethic of care, being based upon a set of principles about deservingness which had more in common with an ethic of rights.

In conclusion, I argue, of course, for the inclusion of women’s voices within law, but with no clear strategy beyond the feminist knowledge that all systems offer spaces for resistance, and that two good starting points might well be the flexibility of equity and the educative models provided by literary sources which give voice to women’s ideas about law.

The Ethic of Care and Feminist Legal Research

There can be few non-legal sources as influential on legal theory as psychologist Carol Gilligan’s In a Different Voice (1982). Gilligan observed through a series of empirical studies that men make moral judgments according to an ethic of rights (or justice, or equality) and women according to an ethic of care, or desire to avoid pain. Men, Gilligan suggests, measure situations against abstract rules designed for the general good. If individuals occasionally suffer through being judged by those rules, they are perceived as unfortunate casualties of a fundamentally good system, but the rules are still applied, since they apply to everyone equally. Women, however, focus on relationships and outcomes – on what works for the individual in that context Faced with a moral problem, they try to find a way out of the difficulty which gives the best result and causes the least possible pain to all participants:

Care becomes the self-chosen principle of a judgment that remains psychological in its concern with relationships and response but becomes universal in its condemnation of exploitation and hurt. Thus a progressively more adequate understanding of the psychology of human relationships – an increasing differentiation of self and other and a growing comprehension of the dynamics of social interaction – informs the development of an ethic of care.¹⁶

Mainstream accounts of psychological development, however, categorise this ‘female’ method of moral reasoning as less advanced than the abstract reference to principle preferred by most men. Gilligan argues that, on the contrary, women’s moral reasoning is as highly developed as men’s and she points out that, because men tend to see their own behaviour as the norm, they fail to appreciate that the ‘female’ method is not inferior to the ‘male’, but simply different.

Gilligan was not the first, or the only, feminist to notice that women perceive and construe moral issues differently from men. But her work, more than that of many others (for example, Nel Noddings, whose Caring: A Feminist Approach to Ethics and Moral Education, makes a similar argument and has also been influential), transferred very readily to law, especially the paradigm case she borrowed from Kohlberg of the boy Jake and the girl Amy’s responses to the dilemma of Heinz (should he steal the drug for his dying wife?), which involved a whole range of issues of law and justice.

Since Gilligan, feminist legal scholars can hardly work in the area of difference without at least a reference to her work. ‘I thought to make scholarly history by being the first feminist writer in a decade to produce a whole article without citing Carol Gilligan’s book’, quipped Linda Hirschman in 1992, before finding herself obliged to cite it.¹⁷ Some, like Carrie Menkel-Meadow, embraced its in...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Dedication
• Contents
• Series Editors’ Preface
• Contributors
• Acknowledgments
• Table of Cases
• Table of Statutes
• Table of Abbreviations
• Introduction
• 1. The Fiction of Equity
• 2. Equity’s Darling?
• 3. The Waqf in Trust
• 4. Understanding Equity’s Secret Understandings
• 5. Weaving Along the Borders: Public and Private, Women and Banks
• 6. The Revival of Equitable Doctrine in Scots Law – A Space for Gender Concerns?
• 7. Property Rights for Home-Sharers: Equity versus A Legislative Framework?
• 8. Governing from a Distance: The Significance of the Capital Income Distinction in Trusts
• 9. Trusting in the Prudent Woman of Business: Risk, Reconciliation and the Trustees’ Standard of Care on Investment
• 10. Equitable Remedies: Cypher Wives, Weak Women and ‘Equity’s Special Tenderness’
• 11. Equitable Principles of Confidentiality and Whistleblowing
• 12. Our Property in Trust: Things to Make and do
• Bibliography
• Index