comment

Gender and the Analytical Jurisprudential Mind: A Response to Leslie Green

The July 2020 issue of the MLR includes a review article of my book, Law and Gender (2013) by Professor Leslie Green. This response offers a robust corrective to Green’s misreading of the book and misrepresentation of its core arguments, highlighting the techniques Green deploys to advance claims about my book which are inaccurate and unsound.

Joanne Conaghan

In a recent Review Article of my book, Law and Gender,[1] Professor Leslie Green[2] laments what he perceives to be my wholesale condemnation of the analytical jurisprudential mind. To describe his piece as a ‘review article’ is somewhat misleading: it is more a protracted engagement with a small section of Chapter 5 in which I discuss and make use of an argument propounded by Green in 2011.[3] Unfortunately, therefore, anyone reading Green’s review is unlikely to learn very much about my book. He does not accurately identify my core research questions or give a proper account of how I answer them. Nor does he make reference to the range of contexts in which I pursue my enquiries: from the case law analysis in Chapter 2, to the evaluation of feminist theories in Chapter 3, to the legal historical exploration in Chapter 4, and eventually, in Chapters 5 and 6, to an engagement with jurisprudential concerns. In the main, Green confines his comments to the handful of pages in Chapter 5 where I consider his argument from 2011. This he uses to make sweeping claims about my views on analytical jurisprudence. Unfortunately, he ignores Chapter 6 entirely where I dwell at length, and broadly approvingly, on the work of the late Neil MacCormick on legal reasoning. Most troublingly perhaps, Green does not refer at all to Chapter 7 where I present my ‘Concluding Thoughts’. This is a pity because, had he taken the time to engage with this chapter, he would have realised that I come to rather different conclusions than those he attributes to me.

For this reason alone, Green’s review does not present a fair assessment of the book. Unfortunately too, his analysis is replete with imprecisions and is quite misleading. He turns the book’s questions into assertions, quotes text out of context and/or omits vital words, and even, in one instance, amends the wording to give a very different meaning to a quotation upon which he relies to further his argument. Genuine intellectual differences do distinguish my work from his and I welcome any engagement of the jurisprudential community with my work. However, to the charge levelled by Green that I eschew analytical jurisprudence more or less in its entirety, including the project of general jurisprudence, I can confidently plead not guilty.

I   Green’s Critique of My Central Thesis

According to Green, there are (at least) two fundamental flaws in what he claims to be ‘my’ general argument. First, he contests what he (mis)conceives as my stance on the place of gender in law; second, he objects to my critique of the methodological limitations associated with some kinds of analytical legal philosophy, which, he concludes, amounts to the wholesale dismissal of the ‘analytical jurisprudential mind’. Both criticisms are misplaced.

Let’s begin with how I articulate the core enquiry at the heart of Law and Gender: ‘What is the place of gender in law and why does it appear to have little or no place at all?’ (LG 25). Green does not present this formulation of my book’s central thesis—notwithstanding that it appears directly under a sub-heading in Chapter 1 entitled ‘Structure, Organisation and Central Thesis’—but offers his own account of what I set out to do: ‘Conaghan labours to show that gender has pervasive relevance not only to law but also to jurisprudence’ (at 896) and Conaghan ‘avers that “gender is implicated in the very forms of law” that it has a role “in the construction and formal ordering of law” and that it is expressed in the “basic forms and underpinnings of law”’ (at 897).

In fact, I neither ‘labour’ nor ‘aver’;[4] I evaluate the place of gender in law, by posing, in my opening chapter, a series of questions:

Is [the place of gender] merely a matter of legal content or does it play a role—explicit or implicit, conscious or unconscious—in the construction and formal ordering of law? Does gender contribute significantly to the constitution of legal concepts and structures of liability and/or to the rules which come into play in the context of such constitutive operations? If so, how should we understand and theorize this constitutive process and relation? To what extent is law as a discipline premised upon unarticulated but nevertheless deeply operative gendered assumptions and viewpoints and what are the consequences for legal theory of acknowledging this? (LG 7)

Here I ask whether gender plays a role ‘in the construction and formal ordering in law’; I do not positively assert that it does. This is one of a number of instances in which Green reformulates my questions as assertions. On occasion, he also fails to distinguish between arguments I make myself and those advanced by other people. For example, far from averring that ‘gender is implicated in the very forms of law’, I highlight this theme as a feature of feminist jurisprudential literature:

An extensive body of scholarship has now accumulated asserting not only that the content of law often reflects and reinforces gendered social and cultural norms but also that gender is implicated in the very forms of law, in the logic and structure of legal concepts and classification schemes and in the practices and assumptions which underpin legal reasoning. (LG 5, emphasis added)

A certain amount of licence is acceptable when directly quoting other people’s work as long as quotations are presented in a way that conveys the original author’s meaning and intent. However, this is not what Green does when he converts my questions into assertions and reframes my account of the state of the field as a series of positive propositions. Green’s imprecise reading leads him to assume that I aver, propound, or assert certain views about the relation between law and gender which are not only unsupported, but run counter to the whole, quite explicit, thrust of the book.

In the final chapter of Law and Gender, I do attempt to draw some conclusions about how my two key concepts relate:

What can be said about the place of gender in law? … first, gender is not inherent in law in any absolute sense. I say this because I share Brian Tamanaha’s view that nothing inheres in law as such. While empirically speaking, there may be a wide range of identifiable factors which converge in what we choose to label as ‘law’, and, moreover, there may well be value in gathering these factors together to get a better of sense of how law is apprehended in practice, essentially speaking, law is whatever we conventionally recognize as such. Therefore, the nature of the relationship between law and gender is contingent rather than necessary or absolute. (LG 245)

On the question of whether gender is ‘built into the very forms of law’, I also respond:

That the law–gender relationship is contingent rather than necessary does not preclude a determination that gender is indeed built into the very forms of law—as we currently know and understand it. Close scrutiny suggests that the extent of gender’s involvement in legal terrain goes well beyond the bricks and mortar to encompass significant aspects of legal architectural design. In particular, many of the conceptual and categorical structures of law have been revealed to have gender dimensions or implications: the distinction between public and private, the paradigmatic model of the legal subject, and tortious conceptualizations of harm, to name but a few. That gender is to some degree implicated in these contexts is not to adduce clear evidence of the precise nature of involvement. Indeed, in general terms the nature of the relationship between law and gender is best understood to operate interactively, at multiple levels simultaneously, and rarely in terms of any simple alignment of cause and effect. (LG 245–246)

I reproduce these conclusions at length because they present an account of the law-gender relation which is far more nuanced and complex, and far better grounded and substantiated, than Green’s analysis suggests. My reflective, evidence-led academic journey did not produce any absolute or universal conclusions but merely ‘provisional, incomplete, and … tentative hypotheses’ for which I make no excuse (LG 242). Sound analysis does not always produce conclusive results, and, in any event, those results should never be presupposed. Regrettably, the care which I took expressing my concluding reflections entirely bypasses Green.

II    Green’s Critique of My Engagement with the Methodological Limitations of Analytical Jurisprudence

When it comes to intellectual enquiry, method matters, and few methodological approaches are without their limitations. On this, I hope, Green and I agree. In Chapters 5 and 6 of Law and Gender, I engage with jurisprudence, an exercise which comprises a good third of the book. It should be evident from the space the book devotes to jurisprudential enquiry that I take the subject rather seriously. Moreover, my interest extends beyond what the textbooks tend to present as ‘alternative’ jurisprudences—critical legal studies, sociology of law, Marxism, feminism, critical race theory, and so on—to encompass what in most law school curricula continues to pass as the jurisprudential ‘core’, the project of general jurisprudence and the questions and enquiries it provokes. Thus, in Chapter 5, I engage with the ‘what is law?’ question and, more broadly, with analytical jurisprudential techniques, while in Chapter 6, I address that old jurisprudential favourite—‘is there a right answer to legal disputes?’—by taking a close look at jurisprudential accounts of legal reasoning.[5]

Green focuses on Chapter 5, in part of which I challenge the proposition he made in an article entitled ‘Sex-Neutral Marriage’, that sex (understood as the sexual act) carries little significance with regard to the legal concept of marriage.[6] I maintain that he reaches this misplaced conclusion ‘by paring [the concept of sex] down to its bare bones and extracting it from the broader social, legal, and historical framework in which it is situated’ (LG 172). Green takes issue with this criticism and, more importantly, with my contention that his analysis illustrates ‘the methodological limitations which characterize some kinds of jurisprudential analysis’ (LG 176, emphasis added). According to Green, ‘Conaghan strenuously objects to [Green’s] thesis, which she treats as symptomatic of the whole analytical approach …’ (at 899). Quoting directly from my text, he reproduces the limitations I identify in his analysis:

the abstraction of legal concepts from the framework in which they operate and the tendency to treat them as having a fairly fixed content over time and space; the unarticulated normative prioritization of some features … over others … evidencing the presence of evaluative choices which problematize any claim to be rendering a descriptive or value-neutral account; the overlooking, or at least unexplained disregard, of contra-indicative evidence … (at 899, quoting LG 169)

Note the ellipses signalling the omission of words from my text. These crucial words spell out where, in my critique, Green’s analysis of the specific issue he is addressing goes wrong. The full quotation thus reads:

the abstraction of legal concepts from the framework in which they operate and the tendency to treat them as having a fairly fixed content over time and space; the unarticulated normative prioritization of some features (here the formative aspects of the marriage contract) over others (the conditions of continuance), evidencing the presence of evaluative choices which problematize any claim to be rendering a descriptive or value-neutral account; the overlooking, or at least unexplained disregard, of contra-indicative evidence (as, for example, a more thorough exploration of the legal significance of consummation might have yielded). (LG 169, emphasis added).[7]

Green’s omissions lend weight to his argument that I am criticising analytical jurisprudence in general. To further underscore his point, Green goes so far as to replace some of my words with those of his own. My critique of ‘the methodological limitations which characterize some kinds of jurisprudential analysis’ becomes ‘the methodological limitations which characterize [all such] jurisprudential analysis’ (at 899, emphasis added). One does not have to be an analytical philosopher to understand the effect of Green’s verbal substitutions. In a (clumsy) sleight of hand, Green transforms my ecumenical analysis of his (mis)application of analytical philosophical techniques to a particular legal concept with a complex, highly gendered social history, into an apparently unqualified condemnation of ‘the whole “analytical jurisprudential mind”’ (at 899, emphasis added).

Later in Chapter 5, I reflect on the possible significance of my critique of Green for the general jurisprudential project:

Although my critique is directed at the particular jurisprudential project Green is pursuing, arguably, it might also be applied to general jurisprudence. Indeed, it might be said that the whole idea of a general jurisprudence calls for a level of abstraction from context that is likely to render the analytical end result hardly worth the effort. This may be so. At the same time, I am not unsympathetic to the view … that there is something to be gained from aspiring to as comprehensive an understanding of law as possible. To express reservations about seemingly arbitrary and selective processes of theoretical abstraction is not necessarily to advocate the reduction all theoretical activity to the level of localized, contingent encounters. Moreover, the aspiration to relate and connect seemingly disparate phenomena within a broader, more encompassing conceptual framework that renders those phenomena more intelligible is not necessarily to be discouraged. There is merit then in pursuing some kind of general jurisprudential project. (LG 184)

I do not, in other words, reject the place and value of theoretical abstraction in analytical processes. Indeed, pursuant to the thought that general jurisprudential enquiry ‘has merit’, I proceed to engage closely with the work of Brian Tamanaha, in particular A General Jurisprudence of Law and Society,[8] from which I derived real insight. Like Tamanaha, I conclude that it is not general jurisprudence per se that is the problem but the way in which it has been conceived, particularly within the legal positivist tradition (LG 187–188). Space precludes a full account of my analysis here and in any event Green spares no time to address it, but suffice to say that herein lies a genuine intellectual difference between my approach and his, between an approach which foregrounds the development and operation of concepts in time and place and one which does not.[9] Both arguably have their merits if applied with care and caution but—and this is where I concur with Green—the way in which the general jurisprudential project currently conceives law, that is, as a category which can be examined in isolation from its broader social context, does indeed encourage the ‘screening out’ of gender as a category of relevance (at 896). Whether this is right and/or desirable remains a matter of debate. Green himself is in no doubt that:

Gender is of no relevance to general jurisprudence, for, as far as anyone has shown, there is nothing about ‘the very forms of law’ that warrants calling them ‘gendered’ and no answer to leading problems in general jurisprudence depends on any thesis about gender. (at 896)

I disagree not least because Green’s dismissal of the idea that the forms of law may be gendered is based on a very thin evidence base which does not engage with the work of many of the feminist scholars who have considered precisely this question.[10] I would also question his assertion that ‘general jurisprudence’, which Green acknowledges to be ‘a department of political theory’ (at 894), is ‘normatively inert’ (at 895). At the heart of much of this disagreement is the Humean distinction between ‘ought’ and ‘is’, which Green presupposes and I call into question. But that is a bigger argument for another day.

III   Distinguishing Sex and Gender

Another distinction which separates Green’s approach from mine pertains to sex and gender. In his review article, Green takes particular issue with my decision, for purposes of the analysis in Law and Gender, to use ‘the terms “sex” and “gender” loosely and interchangeably’ (at LG 22). He devotes a considerable amount of time and space to discrediting this approach although it is unclear why because, as Green himself observes, the sex/gender distinction is not central to the analysis I critique in Chapter 5 (at 902). Nevertheless, in the course of this analysis, Green distinguishes the concepts of sex and gender, drawing on biology on the one hand and social construction on the other. Sex, according to Green, ‘classifies people as male or female. It does not do so along a bright line. The distinction rests on a cluster of biological indicia.’[11] Gender, on the other hand encompasses ‘the behaviours, attitudes and social roles that, in a particular society, are conventionally considered appropriate to a given sex. Gender is as socially constructed as it gets, and in this way it differs from sex.’[12]

Placing biology and social construction at a distance from one another allows the presentation of sex and gender as distinct, distinguishable concepts. Moreover, the prevailing usage of the terms in common language broadly corresponds with Green’s approach.[13] However, there are difficulties with a presentation of sex and gender at odds with one another as recent debate on gender recognition reform too aptly illustrates.[14] By pitting biology against social construction one is at risk of overlooking the possibility that biology too may be the subject of social constructionist processes, that what we perceive to be biologically (and thereby conceptually) significant may in fact be coloured by social and cultural perceptions about the purpose, weight, and consequence of aspects of corporeality. Green assures us that he is not denying that ‘notions of sex difference do not reflect social mores’ (at 902), a helpful clarification but not one which explains his rather less helpful assertion that ‘Conaghan believes sex is gender on the ground that English Law sometimes treats sex as gender’ (at 901). I neither believe nor assert any such thing. In examining how judges have interpreted ‘sex’ for purposes of the Sex Discrimination Act 1975, my intent is to illustrate how, in some contexts, including law, sex is deployed to encompass gender while in others it has not. In other words, law serves to exemplify the existence of confusion as to the meaning, scope and significance of the concepts, ‘sex’ and ‘gender’, respectively:

What this analysis of anti-discrimination case law demonstrates is that law operates as a site of contestation over what sex means, with, at different times and in different contexts, biology triumphing over social construction and vice versa. (LG 183, and see generally 178–183)

It is the discursive instability of a sex/gender distinction premised on biology versus social construction, which is my focus, not law per se; law simply instantiates my broader point.

IV   Concluding Thoughts

In his final words, Green issues a ‘Conclusion, Warning and Invitation’. First, he concludes that my arguments are unsound, that my ‘jibes about “the analytical jurisprudential mind”—express little more than prejudice.’ (at 912). It is this rather petulant dismissal of my work which has particularly prompted my response. Second, he warns against the losses to education and knowledge which my ‘caricature’ of analytical legal philosophy will occasion should ‘law students, especially young feminists’ take my arguments seriously (at 912). I hope I have shown that my engagement with analytical jurisprudence is anything but a caricature, that I value the analytical philosophical tradition and frequently draw upon its resources.[15] Third, Green issues an invitation to feminist legal scholars (which I assume includes myself) to read some analytical legal philosophy so that we may learn we ‘have nothing to fear from the best analytic philosophers working on problems that feminists care about’ (at 912). I have to say, if Green’s intervention is anything to go by, I haven’t met with the warmest of the welcomes so far. Hopefully, this will change as clearly disciplinary engagement and conversation is something for which we should all strive. In this spirit, I would like to issue an invitation of my own, an invitation to the analytical jurisprudential community to engage more visibly and vigorously with questions of power, domination and inequality and to take more seriously the social and historical contexts within which jurisprudential questions take form, meaning, and significance. Students today quite properly have an appetite for knowledge which speaks directly and explicitly to pressing issues of concern in a deeply troubled, patently unjust, and dangerously unstable politico-legal environment. There are many examples of jurisprudential engagement—including some of Green’s own work—which seek to respond to this need. However, there are also versions of analytical jurisprudence—or presentations thereof—which many contemporary law students find arid and irrelevant. This is surely something we can address collectively, approaching the intersection of legal theoretical traditions in a spirit of generosity, ‘open to the possibility’, as Green comments (at 912), that we can indeed learn from one another.

References

[1] J. Conaghan, Law and Gender (Oxford: Clarendon Press, 2013). (further references in-text using LG).
[2] L. Green, ‘Gender and the Analytical Jurisprudential Mind’ (2020) 83(4) Modern Law Review 893. (further references in-text using ‘at’).
[3] L. Green, ‘Sex-Neutral Marriage’ (2011) 64 Current Legal Problems 1.
[4] ‘Aver’: (1) to declare to be true; (2) to affirm or declare positively’ (Chambers Dictionary).
[5] I have returned to and developed my responses to these questions in a more recent publication (J. Conaghan, ‘Jurisprudence / Legal Theory’ in R. Auchmuty (ed.) Great Debates in Gender and Law (London: Palgrave Macmillan, 2018) 161). Interestingly, a version of this chapter posted on Researchgate is among my most downloaded publications, suggesting there is a real appetite for scholarship which brings together analytical jurisprudence and feminist legal theory.
[6] Green makes his argument with good intentions in that he seeks to undermine the legal privileging of a heteronormative understanding of marriage.
[7] Essentially what I question is why, in his analysis of marriage as a legal concept, Green gives so much weight to the fact that consummation is not a requirement of contract formation and so little to the fact that non-consummation is often grounds for voidance or annulment (the ‘contra-indicative evidence’).
[8] BZ Tamanaha, A General Jurisprudence of Law and Society (Oxford: Oxford University Press, 2001).
[9] Although Green characterises my approach as ‘postmodern’ (at 901), it is actually grounded in historical materialism, an intellectual tradition in which ‘the aspiration to totality’ or, as Weeks describes it, ‘the methodological mandate to relate and connect’ has long been central: K. Weeks, Constituting Feminist Subjects (Ithaca, NY: Cornell, University Press) 71.
[10] The reader is encouraged to consult my book directly for a flavour of the rich writing on this topic, encompassing, inter alia, the work of Ngaire Naffine, Martha Chamallas and Jennifer Wriggins, and Nicola Lacey (some of whose work Green cites but not that directly focused on feminism and legal theory. See eg N. Lacey, Unspeakable Subjects: Feminist Essays on Legal and Social Theory (Oxford: Hart Publishing, 1998)).
[11] Green, ‘Sex-Neutral Marriage’, 3.
[12] Ibid, 4.
[13] See Conaghan, Law and Gender, 17–25 for an account of the etymological and historical origins of the term ‘gender’ and its evolution in opposition to ‘sex’ particularly in twentieth century theories of social psychology.
[14] On the current gender recognition debate, see further A. Sharpe, ‘Will Gender Self-Declaration Undermine Women’s Rights and Lead to an Increase in Harms?’ (2020) 83(3) MLR 539.
[15] For a recent example of my work which draws significantly from the analytical philosophical tradition while at the same time, highlighting the limitations of analytical methodological approaches which fail to take account of social and historical context, see J. Conaghan, ‘The Essence of Rape’ (2019) 39(1) Oxford J of Legal Studies, 151.
Published 20.08.20
Response by Joanne Conaghan
DOWNLOAD PDF