By the mid/late 1980s, in work which, by 1990, Naffine felt able to describe as itself constituting a ‘third phase’ of feminist scholarship,[1022] a far-reaching critique had taken place of the limits of each of the above two approaches. Yet, once again, a conceptualisation of masculinity appeared central to how the relationship between law, the family and the power of men was understood within feminist legal scholarship. A key criticism of the second phase work, as above, had been that it ascribed to the category ‘woman’ an essentialist ontological status; in so doing, it negated the discursive construction of the (feminist) subject ‘Woman’, the diverse positionality within/between women’s lives. It was also recognised, however, that much of the earlier feminist work had itself often tended to conceive of men as, in some way, a homogenous group, and law then as the (unproblematic) embodiment of the social power of men. Seen by those writers increasingly informed by post-modernism and post-structuralism as an approach which was, ultimately, as androcentric as the theories it purportedly sought to supersede, singled out for particular criticism was an underlying essentialism (something which resulted in ‘a paradoxical mix of debilitating pessimism and unfathomable optimism’);[1023] and, related to this, an embrace of an apparently all-encompassing notion of the ‘masculinity of law’ (and, with it, of male (hetero)sexuality),[1024] which served, it was suggested, to efface the complexity and diversity in the lives both of men and women.
It is not difficult to see, in retrospect, why a transition should have taken place within feminist work at this time, and, in turn, why feminists and pro-feminist scholars should have sought to turn ‘their attention to men and masculinity in a discursive attempt to stop the depiction of women as “the problem”, as well as to resist the on-going objectification of women’.27 The shift is perhaps encapsulated in the work of the British scholar Carol Smart, whose 1989 book Feminism and the Power of Law28 illustrates themes subsequently taken up in the study of masculinity and family law during the 1990s. Within her earlier work in family law, such as The Ties that Bind: Law, Marriage and the Reproduction of Patriarchal Relations (1984),29 Smart had sought to question whether there might be a distinction between what she termed ‘legal regulation’ and ‘male control’; whether the fact particular legal agents may be understood as ‘subscribing to sexist attitudes to protect their material interests’ necessarily rendered law itself, as a whole, ‘sexist or somehow masculine in nature’.30 Such questions had similarly informed the 1985 text Women in Law: Explorations in Law, Family and Sexuality, co-edited by Julia Brophy and Carol Smart,31 in which it was argued that law
is not in fact a unity, organised with the specific purpose of oppressing women, although clearly this is how it may be experienced. . . the law [is not] … a homogenous unit with a unitary purpose. It is possible to find contractions both in law and legal practice, and between legal agents, which cast doubt upon the existence of a male, legal conspiracy.[1025]
Building on a growing concern in feminist work to address the nature of the gendered subject in family law, and drawing on the broadly Foucauldian understanding of the relation between law and power which was developing within (as well as, of course, beyond) feminist scholarship at the time, Smart’s analysis in 1989 begins, in contrast, with a belief that although law may be ‘constituted as masculine on both empirical and cultural grounds’ (that, at the very least, ‘doing law’ and being identified as ‘masculine’ can be congruous), this is not because of any straightforward biological imperative. Rather, what is at issue are the ‘significant overlaps’ or ‘mutual resonances’ between how ‘both law and masculinity are constituted in discourse’.33 Thus:
Law is not rational because men are rational. . . law is constituted as rational as are men, and men as the subjects of a discourse of masculinity come to experience themselves as rational — hence suited to a career in law. In attempting to transform law, feminists are not simply challenging legal discourse but also naturalistic assumptions about masculinity.[1026]
This argument continues to fuse a challenge to dominant notions of masculinity with a feminist critique of law. It is, after all, ‘assumptions’ about masculinity which are to be challenged and questioned as part of developing a feminist politics of law.[1027] Yet what is significant here is the notion of men ‘as the subjects of a discourse of masculinity’: a theme which opens out to analysis of the plurality and contingency of those discourses which speak not only of ‘Woman’/‘women’, but also of ‘men and masculinity’ across diverse institutional and cultural contexts. There is (albeit implicitly) an acceptance that all men do not have equal access to cultural, symbolic or economic capital; that there might, at the very least, be a need to engage with the plural (discursively encoded as) ‘familial’ masculinities. In turning critical attention to the construction of the Woman of legal (and, indeed, of feminist) discourse,[1028] what was (inescapably) brought into the critical frame is the nature of the ‘Man’ of law — and, one might add, the ‘man’ of legal feminism itself.