Chapter 1
The Limitations of Love and Altruism – Feminist Perspectives on Contract Law
Linda Mulcahy1
Introduction
The law of contract is an area which is ripe for feminist analysis. Of the ‘core’ common law subjects, it is the one most obviously imbued with values associated with the marginalisation of women and the feminine. The emphasis placed on selfregarding, autonomous and competitive contractors by classical and neo-classical scholars has led to calls that the law of contract is phallocentric and centrally located in a suppression of the feminist voice and feminist values (Pateman, 1988; Sullivan, 2000). Indeed, the identification of a correlation between the characteristics of masculinity and the ethos and philosophy of classical legal doctrine has been central to feminist engagements with the law. Nothing better embodies masculine abstracted relations with each other than the model of the discrete contractual transaction with which the majority of scholarship in the field remains concerned. Those writing in this volume argue that feminist analysis of contract law allows us to identify what dominant discourse has left unsaid about the nature of contractual relationships, and to question the credibility of dominant paradigms.
The task of introducing a feminist perspective on contract law is a difficult one. It has been argued that traditional legal doctrine has, for the last 200 years, systematically neglected alternative ways of thinking (Teubner, 2000). The law’s cognition of women has taken place through the eyes of male legislators and male judges. 2 The fact that the majority of writers in the field are male and that authorship of the mainstream texts has tended to pass through a male line is apparent from a review of current publishers’ catalogues. When we teach our students about the philosophical underpinnings of contract, we talk of such writers as Smith, Bentham, Atiyah, Fried and Gilmore, and Llewelyn. Later in this volume, Wheeler provides examples of the untold stories of women and contract in her analysis of shopping. She argues that the presence of women in the commercial sphere was significant during the era in which the classical canon was being formed; but the status of married women as agents of their husbands, which the law imposed on them, rendered their role invisible in the cases which came before the courts. Our students are challenged when asked to name leading cases involving women. Even when remembered, those that do exist, including the disappointed newlywed in Curtis v Chemical Cleaning and Dyeing Co Ltd,3 the bargaining sillies in undue influence cases like Barclays Bank v O’Brien, 4 the scheming wife in D and C Builders, 5 do much more to reinforce prevailing stereotypes of women in the contractual sphere than they do to challenge them.
Introducing an alternative vision of contractual relationships is made even more difficult by the common law’s predisposition to look to the past. Critical and sociolegal approaches to the study of law are more popular than ever before, but student textbooks and scholarship in the field continue to focus on analysing legal problems by reference to the test of tradition. The insistence on using precedent means that students are taught to commit to looking to what has gone before in order to determine how to proceed in the future, but this repeated ‘performance’ of rules lends them an authority and meaning that contributors to this volume contest. The very rules, which rely for their legitimacy on tradition, have helped to structure gendered relations in the law and recreated particular notions of voluntary relations. This can only be a barrier to feminist scholarship, which demands that the gendered structures underpinning modern doctrine are revisited and the notion of voluntary obligation reconfigured.
Feminists have engaged with contract scholarship at several levels. At a general level, feminist work on law has encouraged sensitivity towards the many ways in which legal language and concepts are gendered. It has been argued, for instance, that masculine ways of thinking about relationships determine judicial approaches to problem solving. In particular, it has been claimed that masculine subjects prefer to work with predetermined and logical rules which, although inflexible, produce certainty. This tendency is reflected in classical and formalistic approaches to contracts, which concentrate on certainty, specific events and particular moments in time. Moreover, the emphasis placed by the judiciary on abstract principles and linear reasoning reflects the tendency of the common law to seek universal and guiding principals to frame all decisions. Such generalisations assume universal truths and a neutral or objective way of seeing things, which tend to suppress alternative visions of relationships and the needs of contracting parties. The emphasis of the law of contract on the objectified subject, or reasonable man, is particularly worthy of note in this context. Feminist critiques of law have argued that such rational and objective ordering of apparently gender-neutral persons serves subconsciously to address the essential male only. For many feminists, the root problem with law lies in its pretended impartiality, objectivity and rationality. This has meant that if women are to be reasonable within the legal meaning of the term then they must adopt the male standard of reasonableness (Barnett, 1988).
At a more specific level, a considerable amount of work has focused on contract as an alternative to marriage and the use of contract in intimate relationships more generally. It has been argued, for instance, that contract has the potential to foster a non-exploitative conception of ‘private’ relationships, although feminists have also argued that using contracts in this sphere could merely entrench existing bargaining inequalities. Recently, there has been some limited discussion of the value of relational contract theory to debate amongst feminists and increasing sympathy towards the view that contractual relationships need to be reconceptualised. This does not so much reflect a movement away from recognition of the oppressive effects of contracts so much as a rediscovery of their potential to privilege notions of connection rather than competition. This has led writers, such as Wightman (2000), to claim that there has been a virtual rehabilitation of contract. This introductory chapter aims to suggest possible ways in which scholars engaged in debate about the future of contract scholarship can be encouraged to be more responsive to feminist perspectives.
The argument that contract law is experiencing a legitimacy crisis has been well plotted by critical legal and socio-legal scholars. The deficit in the explanatory power of neo-classical ideology and doctrine has created a conceptual lacuna, which feminist writers in the field are well placed to inhabit. Despite this, it remains the case that feminist engagement with modern theories of contract remains relatively unexplored.6 My task then is not merely to undermine the understanding of voluntary obligations, suggested by the classical model, that continue to cast a shadow over developments in the field. That task has been undertaken by many others and is well documented. Instead, I seek to use this critique as a stepping stone to consider how feminist ideas around the notion of an ethic of care can contribute to the ambitious task of persuading lawyers to think differently about why people voluntarily bind themselves to an enforceable agreement with another.
It is important to stress from the beginning that contributors to this volume have many views of feminist approaches to the law of contract.7 In this chapter, I take as a starting point the view that notions of femininity are best understood as culturally contingent.8 Viewed in this way, generalisations about ‘feminine values’, ways of thinking and arguing are seen as socially constructed and transient, rather then genetically anchored. Indeed, it is a sign of a patriarchal society that the values associated with masculine or feminine identities can change, whilst patriarchy does not. So, for instance, Schroeder (1990) has argued that certain ideals, recognised as uniquely feminine by contemporary writers, were seen by European men in the Middle Ages as uniquely masculine. By the same token, it has been argued that the feminist ideals being promoted in this volume were guiding principles in the preclassical period of contract law; however, whilst it is asserted that patriarchy does not depend for its existence on any one conception of masculinity or femininity, the argument that patriarchal societies, such as our own, privilege male values over female ones, whatever they happen to be, is the foundation upon which the arguments presented here build.
An ethic of care in contracts?
The gendered way in which contracts are understood has traditionally expressed itself in two main ways in the law of obligations. First, contractual relationships have been understood as being motivated and fuelled by separation, possessive individualism, certainty, security of transaction and standardisation. The classical and neo-classical models of contract, which continue to dominate the formulation of modern law, are associated with these masculine ideals of the discrete arms-length transaction between strangers. Indeed, it is arguable that there is no branch of the law in which the hostile egoism of possessive individualism is more clearly reflected than in the classical model, which takes people away from their preexisting web of communities and networks. According to this vision, doctrinal analysis of contractual exchange is viewed as a mere expression of economic relationships: a callous cash nexus divorced from intimacy, in which exchanges are the only way in which individuals come to recognise the needs of others.
Numerous examples of this understanding of relationships can be drawn from the field of contract. One of the most obvious is the decision in Walford v Miles,9 in which Lord Ackner famously argued that the concept of a duty to carry on negotiations in good faith is inherently repugnant to the adversarial position of the parties when involved in pre-contractual negotiations. In the alternative, he encouraged each party to pursue their own interests so long as they avoided making misrepresentations. The point is also well illustrated by the way in which doctrines such as intention to create legal relations,10 and debate around the enforceability of cohabitation contracts exclude certain agreements from the contractual sphere because of their supposed reliance on alternative values. As Fehlberg and Smyth demonstrate later in this volume, consideration of the status of prenuptial agreements has been largely relegated to the sphere of family law, despite the fact that the majority of such contracts involve those concerned to protect proprietorial interests in acquired capital, as well as non-commercial expectations. The issues raised in debate about such agreements suggest that contract lawyers continue to struggle to know how to regulate complex relationships based on a mixture of trust, intimacy and selfishness. Drawing on some of these themes, Auchmuty argues, somewhat ironically, that the law’s fear of managing intimacy and abuse of bargaining power in undue influence cases stems from the fact that a defining feature of heterosexuality is a gendered power dynamic which is in turn reinforced by the legal system (see, further, Chapter 3 in this volume).
One of the most important debates to emerge from modern feminism focuses on alternative understandings of what motivates people to form relationships and fulfil their promises to each other. Central to this debate is the idea that feminine subjects have a fundamentally different way of conceiving of, and understanding, relationships than the masculine architects of the classical and neo-classical canon. The argument that a discrete set of ideologies and values exist, which can be labelled feminine, has been the subject of much discussion and has resonance with contemporary discussions about the state of the law of contract.11 The distinction that Gilligan and others have made between an ethic of justice and an ethic of care accentuates the differences between moral philosophy concerned with the rights of the autonomous, separate, objective self with an orientation towards procedural justice and the responsibilities of the connected, interdependent self with an orientation towards substantive outcomes. Men and women have been shown to adopt both orientations in response to particular needs but it is the former – an ethic of justice – that has been associated with masculinity and the latter ‘ethics of care’ that has been shown to most dominate the moral reasoning of women.12 By way of illustration, Baier (1993) has argued that female philosophers have demonstrated a lack of interest in debates about game theory that adopt an individualist and selfinterested stance towards problem solving.
The ethic of care represents a distinctive approach to the understanding of relationships and has its own moral vocabulary, moral epistemology and explanatory force. It offers a direct contrast to the classical model in that it stresses the importance of intimacy, community and relational actors embedded in particular contexts. Feminist scholars have argued that the worlds of feminine subjects are worlds in which connection and network rather than bargain give rise to a recognition of responsibility for one another. Applying this reasoning to contracts, the late Mary Jo Frug (1992) characterised as feminine a position that was grounded in a pluralistic, context-sensitive model of contract relationships, which offered a multiplicity of objectives and perspectives. Her work gives us a taste of how feminine theories of contract might impact on contractual doctrines, such as frustration, and provide support for the development of a more sophisticated understanding of such concepts as good faith or unconscionability.
Similarly, in this volume Goodrich returns to his analysis of the marriage contract to remind us that the roots of the postal rule lie in a branch of ecclesiastical law, which recognised difference in the contractual sphere. His argument that it was the marriage contract that emerged as the first type of executory contract also encourages us to temper completely exclusionist readings of the history of gender and contracts. While ecclesiastical law undoubtedly treated women as being inferior to men, the rule in Adams v Lindsell recognised that the consent of women to contracts should at least be true. Through its support for the will theory of contract, it gave legitimacy to the contention that contract law concerned itself with separate individuals who were distinct and differentiated. Goodrich provides a deeper understanding of this well-known case, which brings with it the possibility of modern applications of the rule attending to the plurality of subjects in a way that would be more conducive to feminist readings of law. What his chapter in this volume offers is further hope that unexpected rewards may be reaped through attempts to unravel the complex cultural and philosophical history of a case.
Feminism and relational contract theory
Feminists are not alone in their call for the introduction of new ways of understanding contract. In his grand explanation of the history of contract, written almost three decades ago, Atiyah expressed concern about the lack of a firm ideological foundation for modern contract law and his call has been echoed by modern authors (see, for instance, Adams and Brownsword, 2000; Brownsword, 2000; Campbell, 2000a; Mulcahy and Tillotson, 2004; Wightman, 2000). Writing at the turn of the century, Sheinman (2000) suggested that: ‘[a]s the century is drawing to a close, it is fair to say that contract law has undergone a theoretical crisis deeper than any other branch of the law.’ 13 The quest for a new and more credible philosophical framework for the law of contract becomes even more compelling as contracts as a metaphor and device become the pre-eminent form of social regulation in an age in which many public functions are returning to the private sphere of contract.14
Changes to the marketpla...
