Manning the Law

Why the Legal Person Remains a Man

Ngaire Naffine

• Publisher: Hart Publishing
• Year: 2025
• Edition: 1
• eBook ISBN:
  9781509983506
• Topic: Law
• Subtopic: Legal History
• Index: Law

This is a study of elite English men of English law and the methods they used to retain and justify their power and privilege, through controlling the story of the legal person.

It looks at how these men of legal authority thought of themselves and their institution; how they studied and explained law; and how they put themselves in the middle of it, as the standard human in need of legal regulation and protection and in charge of that regulation and protection, and assigned to women an inferior legal role and being.

The main strategy used to do all this was manipulation of the concept of 'the legal person'. From the 1860s to the 1920s the courts declared that women were not 'persons' who could exercise public power – to vote, to sit in Parliament, to gain degrees, to be lawyers. Up to the end of the 20th century, and into the 21st, women's personhood remained precarious in the private sphere, for rape was excused within a marriage and female reproduction remained under state control (as it still does).

The book examines the active exclusion of women from the means of making legal meaning, especially the ability to shape law's central concept and shows the epistemological effects of this sex differential of legal power which are still felt today. Leading legal thinkers who helped to masculinise the concept of the person, to the detriment of women, are still revered. Law's continuing male orientation is neither seen nor acknowledged and the legal person is treated (falsely) as if he had always been and remains anyone.

Table of contents

• Cover
• Dedication
• Title Page
• Acknowledgements
• Contents
• Table of Cases
• Table of Legislation
• 1. Introducing the Arguments: Male Control of the Symbol System Through Definition and Explanation
• 2. The Concepts of the Person and the Individual: The Power of Definition and Explanation
• 3. Definitional Power in the Victorian Period: John Stuart Mill, James Fitzjames Stephen and the Persons Cases
• 4. Definitional Power in the Early Twentieth Century: The Persons Cases and the Role of the Lord Chancellors
• 5. Case Study 1: AV Dicey’s Argument for Male Rule
• 6. The Reform Stories: The Last Persons Case and the Abolition of the Husband’s Rape Immunity
• 7. Case Study 2: HLA Hart and The Concept of Law – Proceeding with a Clean Slate
• 8. Case Study 3: Women as Intermittent Persons (and Men as Continuous Persons) in the Work of John Finnis
• 9. Where We are Now and What’s Still Wrong
• 10. Populating Law Fairly and Accurately
• Bibliography
• Index
• Copyright Page