Great Debates in Gender and Law

Rosemary Auchmuty

• Publisher: Hart Publishing
• Year: 2018
• Print ISBN:
  9781137610997
• Edition: 1
• eBook ISBN:
  9781137611000
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The first textbook to consider gender perspectives in relation to the whole undergraduate law curriculum in England and Wales. Gender is of central importance in every area of law and every area of people's lives but is rarely mentioned in the formal LLB syllabus; this book is designed to fill some of those gaps. 18 chapters, written by experts in the field, cover all the core modules on the English LLB together with 11 of the most popular options.

Aimed at students and lecturers on undergraduate and postgraduate Gender and Law modules, the book will also be useful for all LLB and LLM students studying English law, who may use it to accompany their studies from their first to their final year, and also for prospective law students, legal scholars from outside England and Wales, and scholars in other disciplines.

© Rosemary Auchmuty. Individual chapters © respective authors 2018

Rosemary Auchmuty (ed.)Great Debates in Gender and LawPalgrave Great Debates in Lawhttps://doi.org/10.26777/978-1-137-61100-0_1

Begin Abstract

1. Contract Law

Prof.Rosemary Auchmuty¹ and Máiréad Enright

(1)

University of Reading, School of Law University of Reading, Reading, United Kingdom

Prof.Rosemary Auchmuty

Email: [email protected]

End Abstract

Contracts project our intentions outwards, prolonging our autonomy into an uncertain future.¹ They allow people to create new legal structures; to ‘make arrangements for themselves, and so to change their respective rights and duties’.² Law promises to support that creative agency; women often distrust that promise. The first debate here introduces critiques of freedom of contract which are concerned with gender and power. The second explores efforts to address those critiques through relational contract theory. For reasons of space, I focus here on the common law rather than statute, and on commercial contracting rather than consumer law.

Debate 1

Is ‘freedom of contract’ really freedom?

Berlant uses the phrase ‘cruel optimism’³ to describe things we desire and hope for even though they are obstacles to our flourishing. ‘Freedom of contract’ exemplifies cruel optimism. The cases you read during your studies involve people who bargain for things – dream homes,⁴ beautiful objects,⁵ financial security,⁶ or maybe even chances of fame⁷ – that speak to their identity and goals. Marx wrote of contractual exchange that ‘what seems to throb there is my own heartbeat’.⁸ However, contractual freedom is a thin equality of opportunity, in limited circumstances, to participate in certain capitalist projects. ‘Classical’⁹ contract law emerged alongside capitalism, as markets became objects of specialist knowledge and regulation. Contract law supposedly mirrors the market, responding to bargains rather than shaping them. ‘Freedom of contract’ promises that states make no detailed public plan for market transactions. Nineteenth-century laissez-faire economists maintained that, left to their own devices, individuals would voluntarily exchange scarce resources with one another, allowing them to gravitate to their most efficient uses.¹⁰ Law, accordingly, insists that, although the state stands ready to resolve disputes,¹¹ intervention is exceptional and only takes place at the end of the contract’s life. Then law defers to our intentions.¹² Thus, contract is ‘private’ rather than ‘public’ law, produced by autonomous individuals rather than by government fiat.

We should be suspicious of easy distinctions between (public) governmental regulation and (private) self-regulation. Law actively constructs opportunitiesfor judicial intervention in contractual disputes: those are neither obvious nor neutral.¹³ For example, the promise of judicial deference to parties’ intentions is misleading. One of the first lessons you learn is that subjective intentions do not matter to contract doctrine: only the outward ‘objective’ appearance of agreement counts.¹⁴ As Radin writes, law idealises the bargaining process as an occasion for detailed communication and clear expression of voluntary consent to each contractual term. But law does not actually require any such communication. It is enough for contract terms to bind us that we assent to them, for example by signature.¹⁵ The law on incorporation of terms means that we need not always have specific knowledge of each element of our obligations. Informed consent is not always required: it is enough that we have ‘reasonable notice’ of the contract’s terms (whether or not we fulfil the corresponding duty to read them).¹⁶ Thus, passivity, not shared creativity, is often contract’s hallmark.¹⁷

Nevertheless, courts treat contracts as if they embodied freely choosing subjects’ active intentions. This fiction¹⁸ has a pragmatic technical function: it allows courts, by formalistically reasoning through contractual disputes, to bypass the lived difficulties of contracting. Thus, it eliminates a source of market uncertainty: if we know that the vagaries of human intention have limited impact on judicial decision-making, we feel more confident about entering into complex contracts. This minimalist approach makes some transactions more secure and more readily calculable. It also performs a political function.¹⁹ It allows courts to bypass detailed engagement with the conditions in which contractual intention is formed, producing rules that are ‘singular, daunting, rigid and cocksure’.²⁰ Leaving messy reality behind, law can turn to idealised narratives of contractual freedom. The idea of ‘objectivity’, so often repeated in your contract course, suggests rigour and certainty, but also responsiveness to shared market rationality. That rationality, however, may not be shared by all market actors:²¹ the preferred practices of some are made the universal rule in order to discipline others. This is where gender inequality comes in.

Ideal contractual subjects are strong, independent, self-possessed and productive. They are autonomous beings who possess and trade in concrete legal rights.²² This ideal is rooted in a particular theory of equality. Classical contract theorists were influenced by liberal political thinkers who argued that men should be owners of their own labour and property, and trade them freely with others. Contract was often contrasted with status:²³ freedom to contract implies equal capacity to bargain in the market, unshackled from traditional authority. This vision of universal equality seems admirable, but some subjects will have to work harder than others to claim that equality.²⁴ Recall nineteenth-century feminist struggles for married women’s right to form property and employment contracts. As Pateman writes, the originary contract between men and women was the sexual contract, under which married women supposedly willingly subordinated themselves to their husbands.²⁵ Women were not fully in possession of themselves,²⁶ but were rather objects to be exchanged between men.²⁷

Contract law now formally includes a wider range of subjects, including women, but substantive inclusion is another matter. We have said that contract rarely enquires into the forces that produce our thoughts, plans or desires: it flattens and generalises experience. If contract law presumes some equality between market actors, it is ‘equal measure’²⁸ with idealised commercial men. Contract makes persons equivalent to one another in an abstract sense, apportioning and ratio...

Table of contents

• Cover
• Front Matter
• 1. Contract Law
• 2. Tort Law
• 3. Public Law
• 4. Criminal Law
• 5. Land Law
• 6. Equity and Trusts
• 7. EU Law
• 8. International Law and Human Rights
• 9. Family Law
• 10. Employment/Labour Law
• 11. Health Law, Medicine and Ethics
• 12. Company Law and Corporate Governance
• 13. Intellectual Property Law
• 14. Jurisprudence/Legal Theory
• 15. Legal History
• 16. Law and Literature/Literary Jurisprudence
• 17. Sexuality
• 18. Legal Professions
• Back Matter