The above concerns point to the conceptual limits of masculinity in relation to family law. I wish to draw this discussion to a close by considering an issue central to feminist legal scholarship — the way in which such analytical imprecision[1074] renders the concept potentially fraught with political dangers for feminism at the present moment.
The project of ‘revealing’ the presence of the hegemonic masculine in law — the common tactic, I have suggested, within much critical work in the field of family law to date — rests on a number of assumptions. There is a tendency here for social theory and the practices, texts and institutions of law to appear linked in what is, in effect, a systematic unity of shared assumptions, each embodiments of ‘the masculinity of law’. Depicting law as contingently, essentially or otherwise irredeemably masculine in nature, however, fails to address ‘the theories or institutions [of law] as such. .. the significance of… statements within their specific discursive contexts’.[1075] The depiction of law as masculine or masculinist can conflate, by reference to preconstituted definitions of ideological or cultural meanings of masculinity, certain culturally specific beliefs about practices, identities, value systems and so forth.[1076] And such a model of analysis — ironically, given its progressive political intent — can also be seen to result in a systematic depoliticisation of issues of power and material interest.
Why is this so? We return to a familiar question — what is left after the ‘deconstructive moment’?[1077] There is a level of abstraction involved in the above kind of engagements with masculinity which can easily slide into something else — an effacing of broader questions about the development of a political, economic and materialist analysis of gendered labour.[1078] Far from focusing attention on men’s practices — what men do — the focus of analysis has all too often been the gender category masculinity. What is left open to question in such a line of thinking is the extent to which men’s gender then itself appears as ‘a reification. . . of men’s practices (and, of course, the practices of women that support them) … [a] reification [which] is then employed to explain these same practices’.[1079] What fades from view, that is, are questions about social power — the very issues raised by the feminist scholarship during the 1970s and 1980s in the first place. It is this issue which, at the present moment, would then appear to have far-reaching implications for feminist legal scholarship in the context of a politico-economic episteme framed, not just by neo-liberalism and post-modernism, as Margaret Thornton has recently indicated,[1080] but also by a general acceptance and embrace of formal gender neutrality across many areas of law. It is this latter point which, I would suggest, further calls into question the use of masculinity within feminist legal studies in family law at the present moment.
The political limitations of masculinity for feminism are not simply a matter of the way in which the open-ended nature of the term means it can be (and has been) deployed as much by explicitly anti-feminist social movements[1081] (notably when allied to the idea of masculine crisis, as above) as it has by feminists and pro-feminist men. It relates, rather, to the way in which a public debate on masculinities has, across a diverse range of cultural artefacts, rested upon what is in effect an individualising of a politics of gender. Instead of questioning whether men should change their behaviour, or else looking to broader questions about materialist analyses of labour and political economy, a debate has effectively been constructed around ideas of men ‘wrestling with the meaning of masculinity’. Such a political and cultural project itself in many respects appears disconnected from any appreciation of the many insights of feminist scholarship around the gendered nature and material realities of issues around care and caring.