Masculinity, Law and Family

344 Pages·1995·2.52 MB·English

by  Richard Collier

Masculinity, Law and the Family
Among the now considerable literature addressing masculinity there
are few texts which take as the specific object of study the
relationship between masculinity and the law. This book explores
the diversity of the masculinities of law and bridges the critique of
masculinity and the critical study of law through analysing the
relation between masculinity, legal discourse and the family. It seeks
to unpack representations in law of male sexuality, authority,
paternity, fatherhood and male violence in the family. All of these
are areas of law in which understandings of masculinity, law and
power have assumed a central importance just as dominant ideas of
male heterosexuality have become increasingly problematic.
Richard Collier begins his analysis by asking how we might
understand the relation between law and masculinity. He proceeds
to explore how the law has gendered the male body in the family.
The author argues that men’s subjectivities have been valorised in
law through reference to a naturalised heterosexual subject position
and that, though socio-economic shifts over the past century have
reconstituted or ‘modernised’ heterosexual masculinity, the law
continues to be concerned to protect a dominant ideal of
masculinity. In particular, through exploring the relation between
changes in legal conceptions of fatherhood and paternity and wider
shifts in the historical construction of heterosexuality, Richard
Collier argues that it is the idea of the family man which has come to
signify a range of ideas about heterosexual masculinity in law. This
book is about our understanding of masculinity, law and family life—
about what it is to be a man in law and society.
Richard Collier lectures in law at the Newcastle Law School,
University of Newcastle-Upon-Tyne.

Masculinity, Law and the Family
Richard Collier
London and New York
First published 1995
by Routledge
11 New Fetter Lane, London EC4P 4EE
This edition published in the Taylor & Francis e-Library, 2003.
Simultaneously published in the USA and Canada
by Routledge
29 West 35th Street, New York, NY 10001
© 1995 Richard Collier
All rights reserved. No part of this book may be reprinted or
reproduced or utilized in any form or by any electronic,
mechanical, or other means, now known or hereafter
invented, including photocopying and recording, or in any
information storage or retrieval system, without permission in
writing from the publishers.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloguing in Publication Data
A catalogue record for this book is available from the Library of Congress
ISBN 0-203-42154-X Master e-book ISBN
ISBN 0-203-72978-1 (Adobe eReader Format)
ISBN 0-415-09194-2 (hbk)
ISBN 0-415-09195-0 (pbk)
I would like to dedicate this book to the memory of my father,
Stanley George Collier, and to my mother, Nancy Collier. With
love and thanks.

Contents
Preface and acknowledgements ix
1 Introduction: on law and masculinity 1
Introduction 1
The sociology of masculinity: a context 6
Theorising law and masculinity 29
Towards a study of law and masculinity: concluding remarks 43
2 Theorising masculinity and the family 47
‘Critical’ family law 48
Defining the ‘family’ 50
Functionalism 56
The public/private dichotomy 59
Familialism: rethinking law, power and the family 67
Conclusions: on method, masculinity and law 83
3 Law, sex and masculinity 87
Introduction 87
The legal construction of homosexuality 90
The homosexual personage and the emergence of (hetero)
masculinity in law 106
Scientific ‘fact’ and the legal problem of transsexualism 110
Sex, gender and marriage 118
Conclusions: the sexual basis of hegemonic masculinity and
marriage 129
4 ‘Love without fear’: representations of male
heterosexuality in law 138
Introduction 138
A context: sexuality and society 141
vii
viii Contents
The legal construction of sexual intercourse 144
The social and legal construction of male sexuality 168
Concluding remarks 171
5 The ‘good father’ in law: authority, work and the
reconstruction of fatherhoood 175
Introduction 175
Men’s studies and ‘new fathers’: constructing a climate of
change and crisis 176
Establishing paternity 181
Constructing fatherhood in law: from father right to father
absence 185
‘Doing what comes naturally’: constructing breadwinner
masculinity 195
Constructing the family man: the modernising of paternal
masculinity 201
Concluding remarks 210
6 ‘Family men’ and ‘dangerous’ masculinities 215
Introduction 215
The ‘family’ man and ‘respectable’ masculinity 215
Dangerous men, dangerous masculinities: 220
‘Sacrificial men’ and ‘errant fathers’ 223
The family man as ‘other’: case studies 233
Concluding remarks 248
7 Changing masculinities, changing law: concluding
remarks 252
Beyond the family: masculine authority and legal discourse 252
(Re)constructing the family man 257
Marriage, law and male sexuality 264
Masculinity, feminism and ‘critical’ family law: some
concluding remarks 267
Notes 278
Bibliography 286
Index 325
Preface and acknowledgements
This book is about how the law has constructed heterosexual
masculinity. It assumes no prior knowledge of either law or of the
debates which have emerged within feminist and men’s anti-sexist
critiques of masculinity. It is a book about what it means to be a man
in legal discourse and, therefore, what it is to be a man in our
society. Beginning by asking ‘how might we understand the relation
between law and masculinity?’, it proceeds to analyse how law has
gendered the male body in the family. It seeks to do this through
exploring a variety of areas in which, I argue, dominant ideas of
male heterosexuality have become increasingly problematic.
In one sense this book serves as a bridge between developments
which have taken place in recent years within legal theory and
within the range of critical studies of men and masculinity which
have sought to explore the sociality of masculinities. In a number of
recent feminist texts,1 for example, we find critical accounts of the
power of law in which the legal construction of masculinity, of male
sexuality, fatherhood, paternity and male authority, has assumed a
central significance. However such work tends to be concerned
primarily with the ways in which law constructs women and women’s
experiences; ‘it is for other men to make us see masculinities, and to
bring these into question’ (O’Donovan 1993:88). This is what
Masculinity, Law and the Family seeks to do.
By way of contrast to such feminist legal scholarship, the object of
analysis in critical studies of masculinity2 has been the social
construction of men and masculinities. At times the effects of law
and legal regulation have figured heavily in such accounts. (How has
law gendered men? How might we challenge such representations?)
What has not tended to be within the ambit of such work, however,
is a critical engagement with the power of law from a perspective
ix