There were two pieces of news yesterday that me made consider the gendered nature of our legal system.

The first was the news that Justice Minister, Simon Hughes, wants to halve the number of women in prison because they are a ‘special case’ who should be treated differently to men.

The second was the news that the Director of Public Prosecutions, Alison Saunders, has issued new guidance to police forces which place a greater burden on men accused of rape to prove they are not guilty (as distinct from being assumed innocent until such time as the prosecution proves them to be guilty).

Together, these two items of news are symptomatic of an ongoing trend that is seeing the increasing feminisation of our legal system in the UK. And by feminisation I mean it's:

Increasingly dominated by women

Increasing dominated by women’s concerns

Increasing dominated by feminine values

Increasingly dominated by feminist thinking

Increasingly dominated post-modern (a worldview that tends to be more feminine and feminist)

This evolving, feminised approach, which puts “women and girls’ first, is being built on top of a paternalistic system that already treated women as a “weaker sex” and in need of men’s protection (and protection from men). Together these two worldviews are combining to create a legal system that increasingly seeks to favour women and discriminate against men.

How girls and boys play

In thinking about this article, I was reminded of an observation about the way that children create rules when they play. I think it was the linguist Deborah Tannen who made this point. She said that girls will tend to break the rules to protect each other’s feelings; whereas boys are prepared to hurt each other’s feelings to protect the rules of whatever game they are playing.

When I first heard this idea, it instantly reminded me of a game of boys’ football I arranged with a friend who was a Guardian journalist. We both took a side and not long into the game his son (who was on my team) fell over as the result of a good, clean tackle. We all knew it wasn’t a foul but because his boy turned on the waterworks, dad gave him a penalty and we scored an undeserved goal.

This, to me, was a gross miscarriage of justice, particularly to the boys on the other team who had been disadvantaged to save anther child's feelings. So I took the law into my own hands and the next time I had the ball, I kicked it into my own goal to even things own.

So who was right? Was it my masculine concern for the rules, or Guardian dad’s more feminine concern for his son’s feelings?

Making up the rules as we go along

The truth is, we hadn’t agreed what the rules of engagement were between us so we ended up just making it up as we went along and trying to enforce our own rules on each other. And that’s how our legal system evolves, we simply make it up as we go along, which each new generation inventing and enforcing new rules on everyone else.

So it’s not surprising that as more women enter the legal system, the more feminine the law becomes. The rise of the female lawyer in the past 40 years has been phenomenal. In the late 1960s, fewer than three per cent of lawyers were women. As of July 2013, 51.4% of qualified solicitors are women and 65% of students entering university to study law in 2014 are female.

This gradual feminisation of the legal system is manifesting itself in unusual ways. A recent US study by linguists and lawyers found that male lawyers who sound very masculine are less likely to win a US Supreme Court case than their more gentle-sounding peers. The more feminine the presentation, the more likely the lawyer is to win.

The rise of postmodern law

And it’s not just at the personal level than feminine qualities seem to be gaining precedence in legal proceedings, the rise of the post-modern worldview also contributes to the creeping feminisation of the law.

According to David Noebel, author of Understanding the Times: The Collision of Today’s Competing Worldviews:

“Postmodernists insist that Western law, which grew out of Christianity and the Enlightenment, reflects white male bias. They attack ‘the concepts of reason and objective truth, condemning them as components of white male domination. They prefer the more subjective ‘ways of knowing’ supposedly favored by women and minorities, such as storytelling. As to the rule of law, it is an article of [Postmodern] faith that legal rules are indeterminate and serve only to disguise the law’s white male bias’.”

In a sense, all legal systems are subjective. Concepts like “beyond reasonable doubt” and the “balance of probabilities” are ultimately subjective judgments based on objective facts.

The shift towards feminine laws

But the feminine shift towards greater subjectivity in the legal system much goes further. Concepts like “fear of crime”, “feeling harassed” and "emotional cruelty" are postmodern constructs that have risen to prominence in the past 20 years.

So the fact that more women on average say they are subjectively scared of crime becomes more important than the fact that more men are objectively victims of crime. Worse still, you can become legally responsible for someone else’s emotional response. So if someone subjectively feels distressed by your actions, even if it wasn’t your intention to distress them, you can be charged with harassment.

This shift towards feminine, subjective laws is particularly notable in family proceedings when parents split up. Having been to court with many fathers as a McKenzie Friend, I’ve seen how family law operates at first hand---and in my experience (and we're all about feelings now) it's cruel.

The cruelty of family law

Dads generally expect the law to be fair an equal and rational and objective. They expect court to be about their rights and they tend to believe that if they simply sit down with the judge and explain everything logically then justice will prevail.

Family law, however, operates on a subjective, feelings-based principle called “the best interests of the child”. It sounds wonderful, until you realise that there is no presumption that the interests of the child are best served by ensuring mums and dads have equal rights.

In fact, the “best interests of the child” is such a fluid construct that in a famous case a good father was denied contact with his child because it upset mum too much---and so the decision was taken that because mum being upset was felt to be bad for the child, it was deemed to be in the child’s best interest to be denied contact with her father.

Feelings-based justice

Masculine, rights-based justice would contend that every parent should be automatically allowed to be part of his or her child’s life unless there was tried and tested evidence that he or she was a risk to that child---innocent until proven guilty.

Feminine, feelings-based justice says that if mum doesn’t feel like letting dad be involved, then those feelings should be honoured---and any dad asserting his right to be involved in his child’s life is an example of a man seeking to dominate a woman and exercise his social privilege.

The same principle is applied by social workers who have unfettered freedom to gradually remove a child from a parent's life because they "feel" the parent is a risk. I have watched in horror in the past 12 months as I have observed social workers supporting the removal of a dad I was working with from his child's life, without any consideration for the child's or the father's rights and without any need to go to court.

Male and female logic

The way that feminine, postmodern, subjective law operates seems unnatural and illogical to many men. It’s an approach that says you don’t just award penalties to boys playing football because the rules are broken, you award a penalty to save the boy’s feelings from being hurt.

It’s an approach that says you don’t treat male and female prisoners equally, you treat women more favourably because you feel more empathy for them than male prisoner.

It's an approach that says a female witness whose story is inconsistent and has a poor memory of events, is not an unreliable witness but a victim whose inconsistency and poor memory is evidence of trauma.

Of course, evolving and improving the way the law operates so more victims are protected and more perpetrators are brought to justice is a good intention that most right-thinking people would support. However, the way the feminised legal system is shaping up seems to be creating more injustice (particularly against men) in the process of trying to make the system fairer.

---Photo: Flickr/Tori Rector

Article by Glen Poole author of the book Equality For Men

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