Downloaded from the Humanities Digital Library http://www.humanities-digital-library.org Open Access books made available by the School of Advanced Study, University of London ***** Publication details: Women and the Law Susan Atkins and Brenda Hoggett http://humanities-digital-library.org/index.php/hdl/catalog/book/ atkins_hoggett DOI: 10.14296/918.9781911507123***** This edition published 2018 by UNIVERSITY OF LONDON SCHOOL OF ADVANCED STUDY INSTITUTE OF ADVANCED LEGAL STUDIES Senate House, Malet Street, London WC1E 7HU, United Kingdom ISBN (PDF edition) 978-1-911507-12-3 This work is published under a Creative Commons Attribution- NonCommercial-NoDerivatives 4.0 International License. More information regarding CC licenses is available at https://creativecommons.org/licenses/ Women and the Law Susan Atkins and Brenda Hoggett Women and the Law Women and the Law Susan Atkins and Brenda Hoggett INSTITUTE OF ADVANCED LEGAL STUDIES UNIVERSITY OF LONDON First published by Basil Blackwell Ltd, 1984 Open access edition published by the Institute of Advanced Legal Studies for the SAS Humanities Digital Library, School of Advanced Study, University of London, 2018 © Susan Atkins and Brenda Hoggett, 1984 The authors have asserted their rights under the Copyright, Designs and Patents Act 1988 to be identified as the authors of this work. This book is published under a Creative Commons Attribution- NonCommercial-NoDerivatives 4.0 International (CC BY-NC-ND 4.0) license. More information regarding CC licenses is available at https:// creativecommons.org/licenses/ This book is also available online at http://humanities-digital-library.org. ISBN 978-1-911507-10-9 (paperback edition) ISBN 978-1-911507-12-3 (PDF edition) ISBN 978-1-911507-11-6 (ePub edition) ISBN 978-1-911507-13-0 (.mobi edition) Institute of Advanced Legal Studies University of London Charles Clore House 17 Russell Square London WC1B 5DR http://ials.sas.ac.uk Cover images: Ms Jane Campbell / Shutterstock.com John Gomez / Shutterstock.com DrimaFilm / Shutterstock.com Whyframe / Shutterstock.com with ISBN 978-0-85520-181-4. This book was first published by Basil Blackwell Ltd in 1984 Contents A note on the open access edition ix 2018 foreword xi Preface xxv Introduction 1 Women in society 7 1 The historical legacy 9 2 Equality at work 29 3 Beyond equality of opportunity 57 The private domain 77 4 Sexuality 79 5 Motherhood 101 6 Breadwinners and homemakers: partners or dependants? 125 7 Power and violence in the home 155 8 The case against marriage? 185 The state and women’s rights 199 9 The welfare state: social security and taxation 201 10 Women as citizens 225 Index 251 A note on the open access edition Women and the Law by Susan Atkins and Brenda Hoggett was published providing pioneering legal scholarship on women’s treatment under law. It originally in 1984. It was one of the very first modern books of its kind – andis a keythe and law influential in the early text. 1970s, by William Twining, in his capacity as a GeneralBrenda Editor Hoggett of the was ‘Law first in asked Context’ to write series. a bookHe was on looking the subject for somethingof Women along the same lines as Lester and Bindman’s important work on Race and law (Longman, 1972). Ultimately by the end of the 1970s the opportunity came for a collaboration between Susan Atkins and Brenda Hoggett, combining expertise on families and children and on employment and public life with an awareness of feminist scholarship to produce an innovative critical text that could trace and question the dominant masculine cultures of law. Following publication by Basil Blackwell Ltd in 1984 Women and the Law was shortlisted for the Fawcett Prize. It is described by Hilaire Barnett’s ‘Sourcebook of feminist jurisprudence’ as: “One of the first legal texts on 1995,women 2001, and 2007,the law 2008, in Britain”.2010, 2013. A quick Google search today will find it referenced by scholarly articles in every decade since publication – 1986, Women and the Law was published in time to make thisA wider-ranging, book review in thefactual journal examination ‘Law & Justice’ of the by position Kathleen of Baker women mentioned in this countryhow “It is available fortunate to that participants in the World Conference on the United Nations Decade of Women, 1985”. It is equally appropriate, after several years out of print, for Women and the Law the centenary of the beginning of women’s suffrage in the United Kingdom, to appear again in 2018 – celebrating 1919 which enabled women to enter the legal profession. andSince looking 1984 ahead the toauthors the centenary have achieved of the Sex distinguished Disqualification careers (Removal) in law and Act public service. This 2018 Open Access edition provides a timely opportunity changed, and how much has stayed the same. to revisitDr Susan their Atkins ground CB graduated breaking fromanalysis Birmingham and reflect University on how with much an LLBhas in 1973, a Master’s degree in Criminology from the University of California, Berkeley in 1974 and trained as a solicitor in local government. She was a law academic for 12 years, specialising in anti-discrimination law. She of the Equal Opportunities Commission, Departmental Equal Opportunities joined the civil service in 1989. Her posts included Deputy Chief Executive Officer for the Home Office and Director of the Women and Equality Unit in x Women and the law the Cabinet Office. She has also been a Visiting Professor at Southampton ServiceUniversity. Complaints In 2003 CommissionerSusan was appointed for the Armedthe first Forces Chief fromExecutive 2007-2015. of the SusanIndependent is an experiencedPolice Complaints non-executive Commission. director She was and the holds first aindependent number of advisory positions, including membership of Independent Advisory Boards for the Royal Military Academy Sandhurst and the Centre for Women, Peace and Security at the London School of Economics. Susan Atkins became a Companion of the Order of the Bath (CB) in the 2014 Birthday Honours for services to Armed Service Personnel. Brenda Hoggett, now Rt Hon the Baroness Hale of Richmond DBE and President of the Supreme Court of the United Kingdom, became a High Court Judge in 1994, having taught law at the University of Manchester for 18 years and promoted reform of the law at the Law Commission for over nine. In 1999 she was appointed to the Court of Appeal and in 2004 to the appellate committee of the House of Lords, then highest court for the United Kingdom. This became the Supreme Court of the United Kingdom in 2009. in 2017. Lady Hale is also President of the United Kingdom Association ofShe Women was appointed Judges and Deputy a past President President in 2013of the and International its first female Association President of Women Judges. She was Treasurer of Gray’s Inn in 2017 and is Master of the Company of Fellmongers of Richmond, North Yorkshire. The Institute of Advanced Legal Studies is delighted to be able to publish an Open Access edition of this landmark work in the IALS Open Book Service for Law. We are very grateful to the authors for their generosity in providing the opportunity to include their book in our OBserving Law series. Contemporary readers of the book can appreciate how inspirational it was in 1984 and how relevant it still is today: it leaves the reader with a greater understanding of how the law developed, an appreciation of progress which has been made since 1984 and of the continuing failings (for instance, whilst marital rape is now a crime, high rates of acquittal and hostile treatment of complainants in rape cases continue). Reading the book today also highlights the extent to which improvement has come via legal reform and political activism internal to the state, and social changes such as greater recognition of sexual identity, as well as the positive impact of initiatives from European and international law. This in turn inspires overreflection the gender on likely pay future gap, endemic developments: sexual harassment,to what extent the the potential law is likelyto move to beyondrecognise formal and towardsrespond substantiveto persisting or inequalitieseven transformative and current equality. concerns – Professor Diamond Ashiagbor and Steven Whittle (Joint General Editors – IALS Open Book Service for Law) May 2018 2018 foreword The early 1980s, when Women and the Law was written, may be seen in retrospect as a period of transition. During the mid 1960s and early 1970s, when Brenda Hale and I were law students, a number of legal changes were made by the courts and Parliament to recognize women’s formal equality with men. By the early 1980s, when we wrote the book, that formal analysis showed that this was to look at the matter from a male point of view,equality from appeared which the to law be hadmore traditionally firmly entrenched been developed. in legislation. Looked But at from our the experience of women’s lives and concerns, there were huge gaps and Women and the Law exposed. equaldeficiencies, status withwhich men under the law. A husband could not be guilty of raping his Inwife 1965, unless in practice, they were women, formally especially separated. married This meant women, that did he not could enjoy force an pregnancy on her if he wished. There was a strong presumption that any children born to a married woman were her husband’s children. She had no rights or authority over them unless and until he died or a court gave her some. Recognition of and remedies for domestic violence and abuse were in their infancy and there was a strong feeling amongst the police and other authorities that it was wrong to intervene between husband and wife.