The Doctrine of Coverture and the Legal Profession's Contempt for Femininity
Feminist legal theory reflection essay from my law school days.
From its roots in medieval England, through its American descendants, “coverture” is a doctrinal representation of the legally sanctioned refusal to define a woman as a human being, but rather as the property of her father or her husband. Though the doctrine itself eventually “died”, its spirit is maintained within legal rulings that continued the ideology of male supremacy (ex: women banned from sitting on juries until 1960, marital rape being excused until the 1980s, etc.).
Analysis of assigned readings
The writings of Patricia Williams reads like a form of analytical poetry.1 Her legal writing style makes the emotion of the content broadly digestible. My favorite part of her writing was how by her word choice alone she elicited sweeping visuals and at the same time, crashing blows when she contrasts that with the reality of her experience as a black woman in America. Her sharing of her great-great-grandmother's story was so powerful in a few respects.
She entered into the legal field with a reluctant reverence for her great-great-grandfather who was a lawyer but, who was also in his mid-thirties when he raped and impregnated her 11-year-old great-great-grandmother, his “property.” She explains the impact of the idea of ownership over another human being by attempting to create a defense for her great-great-grandmother after finding what she believes is a document of sale for her. She realizes that she can’t create a defense, because a defense does not exist in law for a person who is legally determined to be an object.
The readings provide substantial evidence for the historical dehumanization of women, especially women of color. The readings also provide how the consistent dehumanization of women by men, remains present and alive in the modern-day legal system. Furthermore, the readings prove that the legal system’s foundations create present-day barriers for women that seemingly exist outside of the legal system’s direct effects but are very much impacted by the inequalities women face within the law and outside of the legal system.
As supported by our reading on feminist judgments, the initial attitude of law students in approaching issues in law is one that holds judicial decision-making as being the result of the successful separation of the judge from their human qualities and perspectives. When law students approach an upsetting case we feel a duty to digest the material in a colder and emotionally closed-off way, reminding ourselves that we are just “thinking like lawyers”. If a feminist perspective of a legal issue is mentioned in class, peers may discredit the idea altogether, exchanging glances or tuning it out as it does not traditionally have a place, let alone respect, in legal theory. Historically, women also did not traditionally have a place, or respect, within the field of law or government.
This begs the question; if this calloused approach is the “right” way, and how it has always been done, then why is the legal system failing at achieving justice?
I assert that all discourse within law is emotionally based, but the emotions that are sanctioned within the profession are masculine in nature. It is more widely accepted for a judge to lose all sense of decency and self-control and yell at a prosecutor, carrying on a courtroom tactic of belittling, than it would be for someone to challenge chaotic law school pedagogy that requires students to create a community while also forcing them to compete against one another.
Here, the “masculine” show of anger is sanctioned whereas the “feminine” preference for community support versus competition, is not. Even still, research shows that individuals process information more readily when in a relaxed and supportive environment.[2] Contrastingly, individuals cannot reach their fullest potential for new information acquisition or information recall when they are in a state of stress, fear, anger, or humiliation.[3] The root of the real issue becomes clearer; it’s not that the field of law values reasonableness over emotions, but rather that the field of law simply devalues emotions seen as “feminine”.
When the application of this idea is supported by the historical notion that women are merely property or in learning that medieval governments’ rare granting of women’s ability to enter into contracts as their own human being had been a doctrine still abused by men for their own ends, the devaluation of feminine emotions in law becomes more obviously rooted in the western cultural regard for women.
Regardless of the root, its impact is felt by the whole of society. Lawyers are depressed alcoholics, Judges routinely convict innocent individuals, family court simply is allowed to still exist in its current dysfunctional form, and law students force themselves to learn to be able to read a set of gruesome facts with emotional indifference. Feminism is not relegated to the elevation of women’s experiences over men’s but reaches into the core of the social structure that teaches boys they can’t cry or be soft, that keeps male victims of sexual assault silenced and keeps men from seeking mental health counseling and experiencing horrific rates of suicide.
Where the root may begin with the deep need to be relevant in society by methods of dominating women and establishing a legal structure to maintain that dominance because its basis is too weak to maintain itself, it ends with the complete severance of a man’s very nature. Masculinity and femininity are inextricable in their presentation in human beings and denying one or the other is to stifle the individual’s personal development. What results is a fragile shell of an individual who was never taught that they are ok exactly as they are and therefore displays a “mask” of masculinity to the world that requires the external validation of a woman’s submission or fraudulent belief by way of training, that the sexes are somehow unequal.
The idea that one cannot approach legal theory through the lens of feminism neglects to incorporate the fact that judges often maintain bench cards from judicial research guides that allow them to make more succinct and case-applicable rulings according to research that emphasizes the first-person impact of those rulings. Since judges are shown to achieve better case outcomes through rulings made from a logical, informed, and empathetic perspective, then it is very possible that the typical law school standard of devaluing an empathetic or emotional approach to cases is maintained purely to pretend that lawyers are inherently better than the “other” because we shed our “feminine feelings” about the gruesome cases we read.
In other words, not caring or acting indifferent about the social or emotional impact felt by parties in a case does not make you a better lawyer, a more manly-man, a better person, nor does it contribute to the culture of law that consistently fails to meet its one and only goal of justice and then can’t figure out what it did wrong.
In reference to an assigned excerpt from Prof. Patricia Williams’ “The Alchemy of Race and Rights“: Citation - THE ALCHEMY OF RACE AND RIGHTS by Patricia J. Williams, Cambridge, Massachusetts & London, Harvard University Press, 1991,263ppJISBN 0674014751