Book Review: Criminal Law and the Man Problem

Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (CLLR). CLLR is the official journal of the Canadian Association of Law Libraries (CALL/ACBD), and its reviews cover both practice-oriented and academic publications related to the law.

Criminal Law and the Man Problem. By Ngaire Naffine. Oxford: Hart, 2019. xiii, 205 p. Includes bibliographic references and index. ISBN 978-1-50991-801-0 (hardcover) £38.50; ISBN 978-1-50991-802-7 (ePub) £41.58; ISBN 978-1-50991-803-4 (ePDF) £41.58.

Reviewed by Ken Fox
Reference Librarian
Law Society of Saskatchewan Library
In CLLR 45:3

What is the “man” problem? Doesn’t the criminal law regulate human behaviour, regardless of gender? These questions keep the reader willing to engage Naffine’s text hanging in suspense. If you are like me (and likely you are), then you might be several chapters deep before the topic of this treatise comes into focus.

The topic is, of course, criminal law and its relation to gender. But beyond that, it is difficult to summarize the arguments.

The book opens with an account of a 1975 British case in which a man was found not guilty of raping his wife. In a similar situation today, there would be no question of the man’s guilt. So has the “man problem” been solved?

No, it has not.

Criminal law was made by men to regulate the behaviour of men. It also provided exceptions for men, granted them privileges, and allowed them access to women’s bodies. A crucial point to Naffine’s argument is that criminal law did not recognize men as men, but as autonomous “bounded” human beings, a category which, until very recently, excluded women.

The entrance of women into criminal law, both as legal professionals and more broadly as autonomous individuals capable of rational thought and criminal behaviour, has been characterized as a product of the changing status of women. What happened to the status of men? Nothing, because there are no “men” in criminal law.

Over the last several decades, men have indeed lost some privilege in cases of rape and murder, notably the defense of a right of unlimited access to one woman and the defense of an expectation of a faithful wife. So, two criminal defenses have been struck from the books, and women have entered the legal profession en masse—we are getting somewhere, right?

Yes, but also no.

Naffine’s topic, remember, is the criminal law, and the basic framework as such is still in place. Naffine argues, citing the historically great men of criminal law, that the aforementioned two defenses are not exceptional to the law, but are essentially central to it. Their elimination seals a dangerous fissure but ignores the seismic shift that initially exposed the fissure.

Who is the subject of criminal law? A bounded, rational individual person. For many centuries, this person was assumed to be a man (although never said to be a man). Who is it now? An abstracted human being. Criminal law has lost its subject, and in its place has an air-thin spectre, called “person.” Who is person? What are person’s qualities?

For the most part, “person” is still a man. Even after being stripped of his privilege, and after women have entered the category of the rational, bounded individual, the character of the abstract subject of criminal law is still, if you close your eyes and picture him, a man. This fact, as well as the seismic historical shift in the law, has been (for Naffine) glaringly undiscussed and unacknowledged. The criminal law has survived an earthquake—much has been destroyed—and the legal community refuses to look at it, pick through the wreckage, and assess the damage. What remains is a deeply flawed substructure having undergone superficial repairs.

The above is by no means an adequate summary of Naffine’s complex and compelling argument. It is my own best effort to grapple with a set of ideas that are for the most part new to me (even though I have absorbed a fair amount of feminist theory and a modest amount of criminal law over the years).

There is little to criticize in this excellent book, but I will say that it is quite repetitive. It might have been half its length and covered the same ground. But I can’t actually fault Naffine for repeating certain key ideas in new contexts. She expects to encounter cognitive dissonance in her exposure of the flaws in the historical institution of criminal law with its enormous modern-day influences. Thus, she is earnest in wishing to take her readers along with her and not leave us overwhelmed with dense legal-philosophical rhetoric.

And I would be remiss if I didn’t note an absence in this book, as it deals with gender issues on a philosophical level. The book is written in an age where gender is increasingly seen as a spectrum, with significant and increasing numbers of people declaring themselves gender non-binary or transgender. But Naffine never strays from the standpoint of binary gender. As this is a mostly historical study, perhaps excluding contemporary views of gender can be justified as out of scope. But to the extent that it challenges the legal establishment to rethink the (genderless) subject of criminal law, and bring “men” back into focus, she might have found occasion to include gender fluidity (even briefly) in the picture.

This ground-breaking and readable treatise belongs in every predominantly English law library in the world.

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