Contemporary critical legal scholarship has unearthed a fundamental problem which affects the criminal law. By drawing on feminist jurisprudence, legal history, and masculinity studies, critics show that common law's criminal law suffers from a ‘man problem’. This problem has been readily identified in English and Welsh criminal law and it is therefore highly likely that it also affects all the global common law criminal systems which find their prototypes in English criminal law, and indeed in European ‘coded’ legal systems beyond the common law. Ngaire Naffine situates the foundation of this problem in the fact that criminal law, for centuries, has been the near exclusive domain of men: criminal law has been conceived of, voted upon, and legislated by men, and it has been briefed, practiced, and judged by men, and finally, criminal law has been taught, researched, and written about by men. This domination by men has then resulted in the construction of a social phenomenon which is far from equal towards all. It is evidently clear that criminal law operates to the detriment of all those who are not men – i.e., women – or indeed men whom the criminal law does not recognise as ‘men qua men’ (homosexuals, the working class, ethnic minorities, etc). Moreover, criminal law is – unlike some other disciplines of law – evidently obsessed with the sex of its subjects and then extracts artificially gendered principles from its subjects. For example, certain crimes in England and Wales are only be chargeable to a defendant of a particular sex, such as the crime of rape, and for centuries certain criminal defences were predominantly only applicable to one sex, for example provocation. This insight into criminal law’s ‘man problem’ sits within a wider, contemporary, critical examination of the historical and socio-economic (Bourke, Norrie), normative (Lacey, Weait), institutional (Farmer), colonial (Aliverti), and cognitive (Coppola) factors which have created – and which continue to create – this unjust, value-laden, social phenomenon.
In response to these critical insights into criminal law, and in order to seek a redress to the patriarchal ills which have been wrought in this legal discipline’s name, scholars have issued numerous ‘calls for justice’ aimed at practitioners, policy makers, law students, legal scholars, and other relevant stakeholders, to produce a different, just, criminal law. The motivation behind such a call for justice is the seemingly integral concern which criminal law purports to hold for individual responsibility and accountability: for if it is indeed the case that this social phenomenon is driven by such a concern, then its own embedded machismo, sexual aggression, and other masculine principles cannot but be subject to critique. The tools for such a project of ethical inheritance and critical redress have multiplied and amplified since the turn of the 21st century and have been offered by way of the imaginary and aesthetic (Cornell), the practical and judicial (Hunter, McGlynn, and Rackley), and via feminist normativity (Naffine, Conaghan and Russell). The challenge for the critical legal scholar is both to engage in this call for justice and redress the wrongs of criminal law’s ‘maleness,’ however that may be achieved in any given instance.
Further readings:
Aliverti, Ana, et al. 2023. Decolonizing the Criminal Question: Colonial Legacies, Contemporary Problems. Oxford University Press.
Bourke, Joanna. 2007. Rape: A History from 1860 to the Present. Virago.
Conaghan, Joanne and Yvette Russell. 2023. Sexual History Evidence and the Rape Trial. Bristol University Press.
Coppola, Federica. 2021. The Emotional Brain and the Guilty Mind: Novel Paradigms of Culpability and Punishment. Hart Publishing.
Naffine, Ngaire. 2019. Criminal Law and the Man Problem. Hart Publishing.
Norrie, Alan. 2014. Crime, Reason, and History: A Critical Introduction to Criminal Law. 3rd ed. Cambridge University Press.
Weait, Matthew. 2007. Intimacy and Responsibility: The Criminalisation of HIV Transmission. Routledge.
Suggested readings:
Aliverti, Ana, et al. 2023. Decolonizing the Criminal Question: Colonial Legacies, Contemporary Problems. Oxford University Press.
Farmer, Lindsay. 2016. Making the Modern Criminal Law: Criminalization and Civil Order. Oxford University Press.
Lacey, Nicola. 2016. Criminal Responsibility: Ideas, Interests, and Institutions. Oxford University Press.
Naffine, Ngaire. 2019. Criminal Law and the Man Problem. Hart Publishing.
Norrie, Alan. 2014. Crime, Reason, and History: A Critical Introduction to Criminal Law. 3rd ed. Cambridge University Press.
Tyson, Danielle. 2013. Sex, Culpability and the Defence of Provocation. Routledge.
Weait, Matthew. 2007. Intimacy and Responsibility: The Criminalisation of HIV Transmission. Routledge.
Additional materials:
Bourke, Joanna. 2007. Rape: A History from 1860 to the Present. Virago.
Conaghan, Joanne and Yvette Russell. 2023. Sexual History Evidence and the Rape Trial. Bristol University Press.
Cornell, Drucilla. 1995. The Imaginary Domain: Abortion, Pornography, & Sexual Harassment. Routledge.
Coppola, Federica. 2021. The Emotional Brain and the Guilty Mind: Novel Paradigms of Culpability and Punishment. Hart Publishing.
Hunter, Rosemary, Clare McGlynn, and Erika Rackley, eds. 2010. Feminist Judgments: From Theory to Practice.
Naffine, Ngaire. 2025. Manning the Law: Why the Legal Person Remains a Man. Hart Publishing.
Naffine, Ngaire. 2012. “The Legal Person after the Sexual Revolution.” Osgood Colloquium for Law, Religion, and Social Thought, at Osgoode Hall Law School, 24th September 2012. https://youtu.be/VfBocdlYi80
Naffine, Ngaire. 2012. “The Gorilla in our Midst: Inattentional Blindness to Sanctioned Brutality in Criminal Law.” Pierre Genest Memorial Lecture, at Osgoode Hall Law School, 1st October 2012. https://youtu.be/ODcoZ4fuLBw