Deflection of the objectifying gaze from women and Indigenous people to benchmark masculinity and heterosexuality, as well as ‘whiteness’, represents an attempt to disrupt the conventional orderings of modernity within legal texts.[1029]
It was in an attempt to explore the above concerns that a range of studies developed in family law during the 1990s concerned explicitly with addressing issues around men and masculinities. In turning attention to men, and ‘in a discursive attempt to stop the depiction of women as “the problem” ’,[1030] this work sought to engage, in particular, with the ‘social construction’ of the ‘man’, ‘men’ or ‘masculinities’ within, or of, legal discourse. My own book, Masculinity, Law and the Family,[1031] published in 1995, illustrates aspects of this approach in its attempt to unearth or reveal the ‘hidden’ masculinities of law, the assumptions about men contained within a range of family law texts and practices. At the same time, and across diverse areas of legal study,[1032] a growing feminist and pro-feminist literature has sought to unpack the diverse ways in which ideas about men as gendered subjects have been constructed or depicted at particular historical moments in laws relating to the family.[1033] This work has involved the analysis of cases, statutes, legal utterances and cultural representations of law; what has emerged is what has since become a complex, rich picture of what might be termed ‘the (family) man of law’.
This masculine subject in family law has been seen, in a number of respects, as a distinctively ‘embodied’ being.[1034] Thus, in relation to laws around marriage and divorce, for example, it has been argued that whilst the penis frequently appears within law as somehow subject to a man’s rational thought and control, the vagina, in contrast, has been presented as a space, as an always-searchable absence.[1035] Related assumptions have been noted around the idea of there being a natural (hetero)sexual ‘fit’ between the bodies of women and men, with notions of male (hetero)sexual activity and female passivity informing the legal determination, historically, of what does, and does not, constitute a valid marriage[1036] (as well as, indeed, a legally valid exit from any such marriage). In accounts of how paid employment can inform ideas of men as ‘respectable’ (and socially safe) familial subjects, meanwhile, an ideal of the liberal rational individual had been deployed in such a way as to depict a sexed, autonomous masculine subject as, in marked contrast to women, a peculiarly disembodied being; a figure bounded, constituted as male, in ways ever dependent on a separation from other men and, crucially, on a hierarchical difference from women.[1037] Such dissociation appears particularly marked, it is argued, in relation to ideas of care, caring and vulnerability commonly associated with the private sphere and ‘family life’.
In keeping with the broader corporeal turn in legal scholarship during the 1990s, later work on masculinities has noted the way in which, whilst women’s bodies in law often appeared as incomprehensible, fluid, unbounded, defined by ‘openings and absences’, the bodies of men, Sheldon suggests, all too often appear to be marked by ideas of bodily absence and physical disengagement rather than any sense of presence.[1038] For Sheldon, men’s ‘safe’, stable and bounded bodies signify a somewhat tangential and contingent relation to gestation, fertility and reproduction in families; one which, certainly, stands in marked contrast to women. In the work of Bibbings, similarly, although working more in the field of criminal law, the bodies of men are positioned in particular ways in relation to ideas about masculinity, not least a cultural condoning of intra-male violence.[1039] In my own work,[1040] men’s subjectivity has appeared, across a number of contexts, as related to historically specific ideas about heterosexuality, parenthood and ‘family practices’;[1041] and, once again, on some (in fact questionable) assumptions about the nature of men’s physical and emotional relationship to children, child care and ideas of dependency.
The engagement with masculinity in feminist and pro-feminist scholarship in family law cannot be confined to such analyses of legal texts. There has also occurred a broader political and cultural debate focused around the notion of ‘masculine crisis’ or ‘crisis of masculinity’,[1042] which has itself informed a range of issues concerning policy and practice relating to law and the family. Across diverse cultural artefacts, recurring concerns and anxieties around the meaning of social, economic, cultural and political change have served to redraw the parameters of what is deemed to constitute a normal/normative (hetero)sexual family; in so doing, struggles around what has (or has not) been happening to men and ‘their’ masculinity/ies is an issue which has assumed an emblematic status, a powerful, symbolic significance — a cipher for broader transitions and tensions around shifting relations between men and women (as well as, importantly,
children).[1043]
This latter development has a number of dimensions. In some contexts, for example at the interface of family and employment law, there has emerged an agenda concerned with promoting (gender) equity by, explicitly, challenging ideas of masculinity which, it is argued, have become increasingly anachronistic. The aim here has been to engage with law reform in such a way as to encourage and/or reinforce certain kinds of behaviour on the part of men.[1044] Thus, whether it be in relation to securing a satisfactory balance between the commitments of ‘work and home’, in the promotion of ‘good enough’ post-divorce/separation parenting on the part of men[1045] or in securing the provision of child support,[1046] we find a concern with changing men’s practices and attitudes bound up within this debate about what is happening to contemporary masculinity. In other contexts, however, such questions of gender equity, law and law reform have been placed centre stage in some rather different — and far more contentious — ways. Nowhere, perhaps, have these issues and concerns been clearer — or more publicly and politically visible — than in relation to what has become, internationally, an increasingly high-profile debate about the gender politics of family law reform; a debate in which, it has been suggested — significantly for feminist legal studies — it is, in relation to the area of contract law in particular, men, and not women, who have now become the ‘new victims’ of family law.[1047]
Where does my argument thus far leave us? Masculinity, I have suggested, has been deployed in a number of different ways within feminist legal scholarship at different historical moments. If there has been no one model of masculinity in this work, however, it is possible to identify the contours of a distinctive masculine subject of family law which has emerged within feminist and pro-feminist legal studies: a man or male figure who has embodied a certain kind of masculinity. At the same time, we have seen, masculinity has been politicised more generally, an issue which has had far-reaching implications for questions of policy and reform across diverse areas of law relating to the family.
In the remainder of this chapter, I do not wish, in any way, to downplay the insights and value of the work undertaken to date in family law on the subject of men and masculinity. In suggesting that this work can itself be seen as the product of a particular cultural and political moment — a distinctive ‘episteme’ of feminist legal theory — I do, however, wish to unpack a number of unanswered questions in this area; questions which, in a context of formal equality and the rise of the ‘male victimhood’ referred to above, lead one to believe that masculinity may well have become an increasingly double-edged concept for feminist legal studies developing a critique of the gendered politics of family law. Why is this so?