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FEMINIST PERSPECTIVES ON THE FOUNDATIONAL SUBJECTS OF LAW CP Cavendish Publishing Limited FEMINIST PERSPECTIVES ON THE FOUNDATIONAL SUBJECTS OF LAW EDITOR Anne Bottomley Kent Law School University of Kent at Canterbury CP Cavendish Publishing Limited First published in Great Britain 1996 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX. Telephone: 0171-278 8000 Facsimile: 0171-278 8080 © Cavendish Publishing Limited, 1996 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher. Any person who infringes the above in relation to this publication may be liable to criminal prosecution and civil claims for damages. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library ISBN 1 85941 194 0 Printed and bound in Great Britain PREFACE This collection is composed of a series of papers inspired by a commitment to feminist scholarship, written and presented within a framework of the ‘foundational’ courses found in every English (and Welsh) law degree. In taking this approach it is the first collection, to the best of our knowledge, of its kind. Until now published work has tended to focus on those aspects of law, and legal education, where feminist approaches have most obviously had an impact. In this set of papers the starting-point is quite different: it is to explore issues of gender in relation to the focus given to us (in legal education) by the demands of the professional bodies in their requirement that certain areas of substantive law are taught as part of a law degree. We have therefore necessarily taken as axiomatic an approach to law which focuses on the languages, ideas and concepts of the so-called ‘foundation’. Of course such a presentation of the cultural complex called ‘law’ is highly contentious; even the professional bodies in holding to the idea of ‘foundational’ courses are constantly renegotiating what should fall under this definition. Are we talking about a simple set of classifications organised around key conceptual ideas or, rather, a looser set of organising principles around which we can situate clusters of ideas and practices? These questions are crucial; they are fundamental to our understanding of law and therefore of the possibilities of our use of law. Although our framework means that they are not directly addressed, these issues permeate many of the papers. Even in choosing how to name the sections under which the papers are organised certain choices have had to be made which reflect some of the uncertainties behind the seeming intransigence of the ‘fundamentals’ approach and the different patterns of reception of them into the academic agenda. ‘Contracts’ and ‘torts’ remain as two separate areas, despite the propensity on many degrees to fuse them into ‘obligations’; equally ‘land’ and ‘equity and trusts’ remain as two separate identities rather than appearing as ‘property’. Conversely ‘constitutional’ and ‘administrative’ law appear here as ‘public law’. Law of the European Union, or European Community law, is given a separate heading rather than being subsumed into a ‘public law’ section, reflecting not only its growth in importance but its newly acquired status in relation to the ‘foundational’ subjects. Because of the organising focus it might be thought that the collection will only be of interest to students of English law; and indeed in terms of reading the collection from beginning to end this might be true. However, the issues explored, the themes and materials used, make the study much broader. Indeed two papers come from overseas (and two