Challenging The Dominant Male Knowledge Structures In Equity and Trusts: Why Has Feminism Not Succeeded?[1]


This article contains a snapshot vision of the issues which I am concerned with in Equity and Trusts generally.  There are, therefore references to equitable doctrines such as undue influence, breach of trustees’ duties of investment and equitable remedies such as specific performance and injunctions.  Within all of these contexts, and one other specific context, women generally appear in equity and Trusts cases as “victims” rather than as “protagonists”.   I note in footnote 13 only three relatively recent cases in which women played a role in what one could loosely call commercial cases.  The specific context in Equity and Trusts that has prompted this article is that there has been no reform of the law relating to property disputes between cohabitants in English law.  Probably the earliest cry for statutory intervention came in 1984 in the Court of Appeal decision in Burns v. Burns[2].  English law, to date, has failed to recognise the fundamental policy position which, in the Canadian case, Peter v. Beblow[3] McLachlin C.J. identified as the economic value of household and child care services.  Gross points to Canadian studies, which have demonstrated that, if a spouse's efforts were measured in purely economic terms alone, according to what it would cost to buy the services, they would have a value of thousands of dollars annually.[4] As long ago as 1994 the Law Commission launched the Homesharers Project and the law then, particularly in relation to cohabitants, was described as “unfair, uncertain and illogical”.   This led Waite L.J. in Midland Bank v. Cooke to comment that:

The economic and social significance of home-ownership in modern society, and the frequency with which cases involving disputes as to the property rights of home-sharers (married or unmarried) are coming before the courts, suggest that the Law Commission's intervention is well-timed and has the potential to save a lot of human heartache as well as public expense.[5]  


The latest Law Commission response[6] to this problem constitutes an abdication of responsibility.  In considering why feminist jurisprudence has had so little impact on this important property issue it is necessary to undertake an examination of the effectiveness of feminism in re-shaping the law generally.  I am not joining the debate as to the theoretical meaning of "feminism" or "feminist". Nor am I alluding to the impact of feminism generally, but to feminist lawyers and, in particular, academic feminist lawyers.  My research has drawn on a broad church of feminist jurisprudence. On the specific subject of Equity and Trusts, it is claimed to be attractive from a feminist perspective.[7]  This position is extremely hard to justify.  Equity and Trusts in English law is almost entirely male-dominated. de Than has argued that:

The concentration of women in certain defined fields of equity limits innovation in legal thinking, structures future cases and legal syllabi, creates legal textbooks which may be read as gendered for either a lack of women, or reference to them only in standardised contexts such as injunctions in family law, and stultifies developments in equitable doctrine.[8]



The problem with this statement is that it is a reflection of reality; a truism.  I am aware that I may be accused here of what Frug[9] would perceive to be an argument as an ironic diversion. In many, many Equity and Trusts cases women do feature in standardised contexts and in stereotypical roles.  I do not believe this to be an "ironic diversion".  I think that it needs to be explicitly identified and that only pragmatic changes in the law will re-define the existence of women in our Equity and Trusts textbooks and casebooks. On a rough calculation at least fifteen male academics produce student textbooks or casebooks on Equity and Trusts whilst only two female academics do so.[10]  The Chancery judges in the Court of Appeal and the House of Lords who hear Equity and Trust cases are almost exclusively male[11], what Menkel-Meadow describes as the "lawmakers"; middle to upper class white males.[12]  The women in Equity and Trust cases are usually "victims" of some sort, "victims" of undue influence or even "victims" of English property law principles.  As noted already, I can think of only three relatively recent cases where the female participant was involved in a commercial dispute rather than in one centred on a domestic situation[13] and, even in one of those, the female was involved on account of her husband's activity in laundering money.[14]  When women have taken on public roles in Equity and Trusts they appear to have done so in the Gilligan sense of a different voice[15], that different voice being an ethic of care, for example Jill Martin as Deputy Public Trustee  and Jean Warburton as Charity Commissioner.  The issue is as to how, if at all, a feminist perspective can change this male domination of a core curriculum subject?  The obvious place to start is to see what methodologies and strategies have been or are being used and to what extent they have been successful.  An examination of this has led me to the conclusion that some feminist legal scholarship has been too ideological and too theoretical in its impetus and that English feminist legal scholarship, in particular, indulges too much in generalized critiques of male domination of the law. 


To start on a note of optimism, the legal world has changed beyond recognition from the day when Justice Bradley explained the reasons for denying Myra Bradwell admission to the Illinois Bar:

[T]he civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman.  Man is, or should be, woman's protector and defender.  The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.  The constitution of the family organization, which is founded in the divine ordinance, as well as the nature of things, indicates the domestic sphere as that which properly belongs to the domain and function of womanhood.  The harmony, not to say identity, of interests and views which belong, or should belong to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. [16]



Myra Bradwell was eventually admitted to the Bar, as a result of legislation in 1890.  Menkel- Meadow uses this example, other historical examples from The Invisible Bar[17] and other contemporary examples, to demonstrate convincingly that women began and continue to influence the law in two sociological ways: women failed/fail to conform to the traditional notions about the appropriate role and passivity of women or they challenged/challenge the conventions of what it meant/means to be a lawyer.[18]  As was and is the case, English law has always lagged behind the North American pursuit of sexual equality.  Ivy Williams, the daughter of a solicitor, became the first English woman to be called to the Bar on 10 May 1922.  This too was in the aftermath of legislation, namely the Sex Disqualification (Removal) Act 1919. 


It is necessary to be selective in terminology to describe a particular perception of events and I wish to address what I have chosen to term pragmatic feminism, theoretical feminism and gendered interpretation.  In regard to the latter, I particularly want to address what I perceive to be inaccurate and unhelpful gendered pursuit of interpretation of the factual matrices of Equity and Trusts cases simply to advance a feminist polemic.  I hope that it is not too controversial to say that most feminist legal writing is based on re-vision.  Re-vision is defined in Feminist Perspectives: Philosophical Essays On Method and Morals as:

…a painstaking scrutiny and explication of the reasons for the hegemony of certain theoretical principles, and an exploration of how structures of thought and action might be transformed if they were considered from a radically different perspective[19]



Pragmatic Feminism

I am wholly in favour of a feminist re-vision of the law in order to achieve pragmatic reform.  Colleagues, both past and present, see a different dimension of feminist re-vision.  They see a significant purpose of re-vision as being a deconstruction of the law and its maleness and a highlighting of the flaws in the perception that law is gender neutral.[20]   I doubt the utility of some of this work.  At best, it should be subordinated to the primary purpose of achieving pragmatic reform.  My perception is that, with one or two exceptions, legal feminist writings in England are largely confined to deconstruction, with the emphasis on overly theoretical and generalized critiques.


Two noteworthy exceptions are Wong's essay, ‘Property Rights For Home-Sharers: Equity Versus A Legislative Framework’ in Feminist Perspectives on Equity and Trusts[21] and Fehlberg's study of Sexually Transmitted Debt[22].  In the former, which is written with an avowedly feminist perspective, Wong examines the possibility of introducing legislation in English law along the lines of New South Wales legislation, the De Facto Relationships Act 1984 and the Property (Relationships) Act 1984, in order to adjust the property rights of cohabitants on the breakdown of a relationship.  Fehlberg's work on the surety experience is not presented from any feminist perspective.  Her conclusions as to how better protection can be given to sureties offers some pragmatic suggestions, some of which, albeit incidentally, have been adopted by the House of Lords in the latest decision on women acting as sureties (although not confined to women), Royal Bank of Scotland v. Etridge (No 2)[23].  Fehlberg's empirical study and pragmatic suggestions provide an excellent contribution to the literature of the English law of Equity and Trusts.  Fehlberg is Australian and this brings me to instances of pragmatic feminism in other jurisdictions.


Amongst articles that I could find which suggest some impacting of feminist legal writers on substantive law reform, I have found difficulty with Charlesworth, Chinkin and Wright[24] on International Law and Kornhauser[25] on Taxation. I know too little of either substantive legal subject to make constructive comment.  That has led my research to rape, sexual discrimination, pornography, tort, women in the legal process, debt, contract and, finally, equity.


Scheppele[26], when reviewing a book by Estrich, Real Rape: How the Legal System Victimizes Women who Say No[27], explains how the rape law movement of the 1970s and 1980s led to state after state in America enacting new rape statutes in order to end the second class treatment of rape victims.  According to Scheppele's view, Estrich's book points to further reform by changes in definitions of the words used in statutes.  She cites Estrich's book at pp 102-103:

"Consent" should be identified so that no means no.  The "force" or "coercion" that negates consent ought to be defined to include extortionate threats and misrepresentations of material fact.  As for intent, unreasonableness as to consent, understood to mean ignoring a woman's words, should be sufficient for liability.  Reasonable men should be held to know that no means no; and unreasonable mistakes, no matter how honestly claimed, should not exculpate.  Thus, the threshold of liability - - whether phrased in terms of "consent," "force," and "coercion" or some combination of the three should be understood to include at least those nontraditional rapes where the woman says no or submits only in response to lies which would be prohibited were money sought instead.


Estrich's reform proposal stemmed from a distinction between "real rape" and "simple rape”.  An example of the former being where serious physical force is used and an example of the latter might be a date rape.  Estrich concluded from her study that, wrongly, conviction rates for the former type of rapes are very high, whilst convictions for the latter are very low.   There are other very concrete examples of pragmatic feminism in America.  Mackinnon's work and influence is well documented[28]:

…Mackinnon's influence was evident in efforts to exploit the Supreme Court's decision in 1986 that declared that sexual harassment was a form of sex discrimination.  Mackinnon did not argue the case of Meritor Savings Bank, FSB v. Vinson.  However as co-counsel her influence was clear, particularly in the claim that sexual harassment should be defined not only as physical abuse but as verbal overture that might be construed as contributing to a "hostile" environment.[29]


Her views on pornography did not prevail in the American courts but were extremely influential in Canada, especially when the group which she co-founded, Women's Legal Education and Action Fund and G.A.P. (Group Against Pornography) Inc., was intervening in Supreme Court cases.  Other women’s groups were also effective interveners.  The Women's Legal Education and Action Fund (LEAF) intervened in the Supreme Court case of Norberg v. Wynrib[30].  That case concerned a female drug addict who sold sex to her doctor in exchange for drugs.  She subsequently sued him in tort but, prior to the Supreme Court decision in her favour; her claim had been defeated in the lower courts by ex turpi causa.  The Supreme Court, in reaching a decision in her favour on a number of different grounds, took into account the views of the Task Force on Sexual Abuse of Patients, College of Physicians and Surgeons of Ontario, which had been chaired by a feminist lawyer.[31]  McLachlin C.J. was willing to classify the doctor/patient relationship as a fiduciary relationship. Whilst agreeing with Menkel-Meadow that one should not make too much of the influence of particular female judges[32], it may well be considered that the influence of female judges does have a considerable impact on feminist issues.  One can immediately point to the 2003 Nobel Prize given to Ms Ebadi, who was Iran’s first female judge (a post which she lost after the 1979 revolution), for her work in Iran.  The influence of McLachlin C.J. in the Supreme Court of Canada similarly cannot be ignored, particularly in the context of this article.


In the case which firmly embodied the principle of unjust enrichment as the vehicle for adjusting property rights between cohabitants in Canadian law, Peter v. Beblow[33], McLachlin C.J. held that one unmarried partner owes no duty at common law, in equity or by statute to perform work or services for the other, that there is no presumption that such services are rendered as a gift and that there is a presumption that the other party will be aware of this. On policy grounds she said: "The notion that household and child care services are not worthy of recognition by the court fails to recognize the fact that these services are of great value not only to the family, but to the other spouse."[34]  I shall return to this decision later but it is worth pointing out that similar advances in relation to cohabitants have been made by male judges in Australia and New Zealand.  I have written extensively elsewhere about the failure of English judges to adopt an unconscionability approach generally[35], and that issue is not, therefore the point of this article.  Leaving individual judges aside, there is some evidence that having more female practising lawyers, female judges and more female commentators might have an effect on the specific reform of Equity and Trusts to which this article is alluding.  One can certainly point to prominent practitioners such as Helena Kennedy Q.C. whose voice has had an eminent hearing and to the increasingly extended media coverage of women’s plight in legal cases.  Moreover, Harriet Harman Q.C., in her capacity as Solicitor-General, has recently won an appeal to change a rapist’s sentence from five to ten years even though it was in Estrich’s terms a “simple rape” because the rapist was known by his victim.  One can also compare the male and female judicial voices in two cases involving unwanted pregnancy and childbirth after failed sterilisation operations.  In Ugdale v. Bloomsbury Health Authority[36], when awarding minimal damages, Jupp J. considered that the inconvenience and financial disadvantage of the unwanted pregnancy would be outweighed by the love and care that the mother would feel for the child after the birth.  In Parkinson v. St James' and Seacroft University NHS Trust[37] Hale L.J. considered the unwanted pregnancy to be an "invasion of bodily integrity", a "severe curtailment of personal autonomy" and considered that "it's called labour for a reason".  Compare the male and female voices of academics commenting on the leading House of Lords decision on adjusting property rights between cohabitants (although a decision concerning a husband and wife),  Lloyd's Bank v. Rosset[38].  In that case the law was summarised by Lord Bridge by way of two rules[39], the effect of which is that female, and it is almost invariably female, cohabitants, who make an economic contribution to the home by, for example, raising children, but do not contribute to the capital value of the house, which is their home and, who know no law, will have no property adjustment in their favour on the breakdown of their relationship unless their male partners happen, in the event of a fortuitous discussion, to have told a lie.  This is the ridiculous position of English law.


The first rule was explicitly based on two cases, Eves v. Eves[40] and Grant v. Edwards[41].  In both of those cases female cohabitants acquired an interest under constructive trusts because, in seemingly fortuitous circumstances, the male cohabitants made excuses for not having the legal title to property in joint names.  Of Lloyd's Bank v. Rosset[42], one male commentator, Oakley, has said that is:" … an admirably succinct statement of the present law".[43]  I have said: "There is also no doubt that the rules incorporated in the Rosset decision could lead to serious injustice … it is hardly surprising that judges have struggled in subsequent decisions based on it to achieve a morally acceptable result within the two 'rules' described". [44]    


Pragmatic feminism, thus so far described, has resulted in a direct impact on the law of rape, sexual harassment, pornography and tort and, also, demonstrates the impact of women in the legal process.  In fact developments have been so rapid abroad that the National President of the REAL Women of Canada called for the removal of L'Heureux-Dubé J. from the position of Justice  of the Supreme Court of Canada on the following grounds:

for her failure to impartially apply the law and decide cases in accordance with their legal merit.  She has consistently used her appointment to the Supreme Court of Canada to promote her own bias-- in particular, her personal belief in and support of feminist ideology[45]


It is always difficult when choosing terminology of expression to equate it with other terminology of expression but I dare to venture that what I mean by pragmatic feminism equates with what Fraser would describe as social politics.[46]  I am conscious, therefore, that I might fall within the following description of criticisms described by Conaghan:

The gist of such criticisms is that feminism no longer concerns itself with the reality of women's daily lives or the material inequality which accompanies it; preoccupied by 'personal' issues surrounding identity and subjectivity, feminism appears increasingly irrelevant to those struggling to advance women's interests and counteract their disadvantage.[47]  


 Theoretical Feminism

It must be clear by now that I equate theoretical feminism with what I have earlier described as an alternative dimension.[48]  Having accused English legal feminist writers of being confined to this, in my opinion, subordinate dimension, I will address two feminist articles in the American jurisdiction in the substantive context of debt and contract. 


Gross' re-vision of bankruptcy law[49] draws on a survey of bankruptcy in As We Forgive Our Debtors: Bankruptcy And Consumer Credit In America[50].  To be absolutely fair to Gross, her article does challenge the stereotyping of debtors.  She relies heavily on Chapter Eight of the book, which is devoted to women debtors, to argue that the silence that has "for so long disempowered women"[51] is now broken in respect of female debtors.  The stated aim of the essay is to discover:

…how the bankruptcy system treats women generally.  At present, we lack the empirical data to answer that inquiry.  This is where the theorizing and hypothesizing come in.  What I suggest in this essay are various avenues of inquiry in respect to women debtors and a framework within which to consider these issues on a go-forward basis.  I also seek to concretize my theoretical suggestions, applying theory to practice.[52]


The problem that I have is that Gross does not “go-forward” nor does she concretize her theory to practice in any pragmatic way.  In Part Two of the essay, which she describes as "distinctly feminist", she asks:

What options are there, then for such debtors?  My more pragmatic colleagues present the question this way: What are the consequences of my suggestion that some people perceive the debtor/creditor relationship differently from others?  Am I suggesting an overhaul of the entire bankruptcy system?  Am I suggesting that we need a separate bankruptcy system for Women?[53]


Unfortunately, Gross answers none of these questions. 


I have a similar problem with Frug's feminist analysis of a contracts casebook[54].  Frug used a casebook on her course, Dawson, Harvey & Henderson, Cases and Comments On Contracts[55].  I fully accept that one of the objects of Frug's feminist analysis, successfully achieved, was to raise consciousness in order to break the hold of gender restraints.  What I do not understand, given that Frug determined that the casebook: "…favors masculine interests and masculine characteristics.  This stance not only divides and limits readers' views about people, but it also divides and limits readers' views about the law"[56], is why she continued to use it.  Why did she not, as a feminist, write a contract casebook?   


I have every confidence that feminism, in its most general form, has engendered social and cultural shifts, which have inspired major developments in English law. I have no doubt that feminism has brought about major legal developments in rape law and other areas in what might be described as "the spirit of the times". I cannot digress into the innominate effects of feminism.  The subject is too large.  I merely give a topical example:

Baroness Amos, the new International Development Secretary, began her career as a radical researcher into cultural studies at Birmingham University.  She brought her cerebral approach to the Equal Opportunities Commission, where her analysis of discrimination made lasting changes to millions of people's working lives.[57]


I cannot, also, criticise feminist legal scholarship for aiming to achieve certain goals.  I have already mentioned the benefits of raising consciousness, demonstrating that the law is not gender neutral and insisting that female voices be heard. What I object to is the claim that feminist legal writings have brought about major developments.  To use one example in Conaghan's Reassessment:

In the context of law, in particular, shifting the spotlight onto women has resulted in significant political gains … Recognition of the vulnerable position of wives and homemakers has produced a series of adjustments to property and equity principles in the context of the 'marital' home, encroaching even on the boundaries of surety and banking law.[58]



It is now common practice for judges to cite academic works.  I do not think that it is simplistic to measure impact by looking for direct indications of influence or source.  Examples of judicial citation of academic works now abound and the old taboo of citing only dead authors has gone.  Recent Equity and Trusts cases demonstrate this overwhelmingly.[59]  It may be that, by some process of osmosis, English feminist writings have impacted on the consciousness of the judiciary when creating major developments, but my research, which may be corrected, has found no direct evidence. No direct evidence in the criminalisation of statutory rape in R v. R[60], in the recognition of battered wives syndrome in R v. Thornton [61] and R v. Ahluwlia[62] and in the developments as to division of assets on divorce in White v. White[63] and Lambert v. Lambert[64].  As to surety and banking law, I have written extensively on undue influence[65] and have closely followed developments from Barclays Bank v. O'Brien[66] to Royal Bank of Scotland v. Etridge (No. 2)[67].  There is not one shred of evidence that any female writings of any kind, including Fehlberg's impressive empirical study[68], influenced the extended protection given to women who stand as surety for male indebtedness.  For those unfamiliar with Royal Bank of Scotland v. Etridge (No.2), the changes it made to our law, should, hopefully, re-define the existence of women in our Equity and Trusts textbooks and casebooks.


Conaghan's suggestion that the recognition of the vulnerable position of wives and homemakers has produced a series of adjustment to property and equity principles is not borne out in the context of cohabitation.  A major re-definition of the law would occur if the law relating to property rights between cohabitants was to be reformed.  The effect of academic writings on the law cannot nowadays be underestimated.[69]  In the adjustment of property rights between cohabitants one feminist response to this issue is given in explaining a choice to write about Nestlé v. National Westminster Bank plc (then unreported).   Lim writes:

It was chosen for three reasons…


…Second, it is not about the imposition of constructive trusts in cases of cohabitation.  Not surprisingly it appears to have become the practice for writers, specifically from feminist standpoints, to analyse the role of equity within the fields of de facto families.  It may be worth breaking the mould.[70]


The most potent question here is why break the mould when such little pragmatic reform has been achieved?  The mould of writing on this subject must not be broken.  It needs to be strengthened, mainstreamed and not marginalised, pragmatic and not theoretical and, above all, concerned "with the reality of women's lives"[71] and with counteracting women's disadvantage.  Having earlier accused Gross of not “going forward”, this is the thrust of my solution to “going forward” the problem in English Law.   I do not, however, believe that any objective will be achieved if female academic lawyers seek to stereotype males or male judicial decisions in a way that they have perceived themselves to be stereotyped and I am afraid that this has happened.


Gendered Interpretation and Equity and Trusts


The power, and the exposition of American law is powerful, of VanderVelde's article[72] on the implication of the importation of the decision in Lumley v. Wagner[73] into American law is fundamentally undermined by the bald assertion that the origins of the decision were gendered.  An exhaustive, detailed, historical, contextual and principled approach to this adjudication by Waddams[74] would, in my opinion, convince most readers otherwise.  It is important to tell the whole story, to be accurate and not to be selective in order to serve a polemic.  I would query the interpretation by de Than[75] of two cases, Wroth v. Tyler[76] and Warner Brothers v. Nelson[77].  Of the former, de Than argues that the image of the wife which emerges is that of a stubborn and duplicitous woman who would do anything not to move home.  Well she was.  She allowed prospective purchasers to view her house and stood by whilst her husband entered into a contract of sale with them.  But she did not want to move so she secretly consulted solicitors and notice of her right to occupation was duly entered under the Land Registration Act 1925.  She deceived her husband, even going so far as to write to his solicitors behind his back.  She deceived the young couple, who wanted to buy the bungalow and caused them immense stress and suffering.  Even when Megarry J. adjourned the case, on the basis that she might bankrupt her husband if she refused to remove the charge and vacate the bungalow, she would not budge.  As Megarry J.    made blatantly plain, it was the plaintiffs who were wholly blameless.  Under the unusual circumstances, Megarry J. would not decree specific performance in favour of the purchaser but awarded damages in lieu. In the latter case, Warner Brothers v. Nelson[78] de Than suggests that the actress, Bette Davis's 'wilfulness' and obvious capability worked against her in the eyes of the court.  Branson J. granted an injunction in favour of Warner Brothers to prevent the actress from working for any other producer for three years.  Branson J., however, gave a perfectly valid number of reasons for his decision, including this:

I think it is not inappropriate to refer to the fact that, in the contract between the parties, in clause 22, there is a formal admission by the defendant that her services, being "of a special, unique, extraordinary and intellectual character" gives them a particular value the loss of which cannot be reasonably or adequately compensated in damages: and that a breach may "cost the producer great and irreparable injury and damage," and the artiste expressly agrees that the producer shall be entitled to the remedy of injunction.[79]



There is of course, always room for different interpretations. The analysis by Lim[80] of Lord Hoffmann in Nestlé v. National Westminster Bank (then unreported) does, however, cause me grave concern.  The facts of the case are extremely complicated and it is sufficient to say that a claim of breach of trust in respect of investment duty against the bank failed.  Aside from accusing Lord Hoffmann of "bordering on misogyny", a view which is not wholly consistent with other evidence[81], Lim positively seems to misrepresent and distort in an attempt to convince the reader that "Through the tales of Hoffmann, woman is firmly located as an outsider and a hysteric excluded from the realm of male rationality."[82]  Lim says that:  "Judge Hoffmann…describes Georgina Nestlé using the bank, as a 'surrogate victim on which to be revenged for the pain caused by parental rejection'".[83]  Let us look at what Lord Hoffmann did actually say:" The Bank says, that Miss Nestlé, like her father before her, was using the Bank as a surrogate victim on which to be revenged for the pain caused by parental rejection."[84] (emphasis added).  Lim conveniently omits to discuss Lord Hoffmann's account of Georgina's father, John Nestlé, which runs over several paragraphs of his judgment, presumably because that would not support her cause.  I am not at all convinced that, in any of the three cases discussed here, different decisions would have been made had the factual matrices involved men instead of women.  A strategy of moving away from gendered interpretation in this sense is one mechanism of “going forward”.


I have concentrated in this section on Equity and Trusts cases and I wish to express some tentative conclusions as to why feminist writers have failed to challenge the dominant male knowledge structures in Equity and Trusts.   First, as above, there seems little point in interpreting cases in a gendered way simply to stereotype our male lawmakers.  Second, as I have argued above, it is not an ironic diversion to recognise that, in many of our Equity and Trusts cases, women do fit stereotypical roles.  The way to re-define the existence of women is by pragmatic development and reform.  As I have already stated, Royal Bank of Scotland v. Etridge (N. 2)[85] has restated the law so that women should, as a result, only stand as sureties for male indebtedness with full knowledge of the consequences.  That should redefine women in our textbooks and casebooks.  That brings me to back to the thrust of my argument.  I would like to see more female academics writing textbooks and casebooks and engaging more rather than less in mainstream issues.  My research for this article has radically changed my perception of textbooks and casebooks.  Frug's account[86], in particular, has caused me to re-think my putative intention of not producing a fifth edition of my own Equity and Trusts textbook.  But my research in general has persuaded me that textbooks and casebooks are an important forum for women's voices, as are journal articles.  This brings me to a final point.  I suspect that English feminist jurisprudence is too theoretized and introspective.  I give an example of what I mean by this above, in the context of Gross's Canadian article[87].   One is tempted to argue that English feminist jurisprudence has become centred in and focused on the academia.  The ideological impetus to denounce the male dominance of the law has led to the misdescription of the legal success of feminism and to a failure to address viable reforms of doctrine.  English feminist jurisprudence needs to be more pragmatic and looking outward towards the daily reality of women's lives.  It needs to embrace more actively the concept of social politics.  There are some notable exceptions, Jennifer Temkin's book, Rape And The Legal Process[88] and Helena Kennedy's book, Eve Was Framed[89].  It remains to be seen what continued impact there will be now that Lady Hale has become somewhat ironically our first female “Law Lord”. 

There needs to be more focus on pragmatic development.  I have used the word pragmatic throughout this article in the ordinary meaning of the word and not as in the legal connotation enunciated by Atiyah.[90] A graphic summary of the gist of this article is articulated by the following statement:

Other feminists have forsaken demanding and fighting for political change and instead have become academics who fail to connect with the gross inequalities which working class women suffer.  Diana Coole reviewing ten contemporary books by feminist writers found that they were either ‘social constructionist, essentialist, psychoanalytical (Lacanian or object relations) and so on.  It seems pretty obvious that demands for more childcare, better pay, better jobs for women, etc will not be met by these feminists. [91]


Ultimately, I hope that the purpose of writing this article, which I fully accept is provocative, will, at the very least, encourage debate amongst feminine scholars as to the accuracy of this quotation.

[1].         Margaret Halliwell, Reader in Law, City University. I would like to thank many colleagues for their suggestions re this article.  Special thanks go to Tony Oakley, for his critical reading and pedantic proof reading of my drafts, to Emily Allbon, the Law Librarian at City University, who has given me endless help and advice on electronic research and to Peter Goodrich for providing me with thorough and incisive comments.  Some of the expressions used in this article derive directly from Peter's comments because they are more erudite and more accurate than some of my original expressions.

[2].         [1984] Ch. 317.

[3].         (1993) 101 D.L.R. (4th) 621, 647.

[4].         K. Gross, ‘1990 Survey of Books Relating to the Law; III. Tort and Commercial Law: Re-vision Of The Bankruptcy System: New Images Of Individual Debtors’, 88 Mich. L. Rev. 1506, 1552.

[5].         [1995] 4 All E.R. 562, 566.

[6].         Sharing Homes, A Discussion Paper, 18 July 2002. The Discussion Paper has, as suggested in an article in The Times on 30 July 2002 ‘Why living together is so risky’, caused great disappointment.  Stuart Bridge, Law Commissioner for England and Wales, defended the Discussion Paper in a linked article ‘Myth of the common law marriage’ and in an article entitled ‘Fair shares for home sharers’ in the New Law Journal on August 2 2002. [(2002) 152 N.L.J 1192.] It has to be said that this appears to constitute a lost opportunity to reform an area of the law, which is overwhelmingly in need of reform.  One can only speculate as to how much this seemingly irrelevant exercise has cost the public purse.  It may seem severe to describe it, as I have in the text, as an abdication of responsibility given that the political agenda surrounding the Law Commission’s report cannot be ascertained.  For the faint hearted, however, the description of ‘disappointing’ cannot be denied.  The main conclusion of the Law Commission’s summary findings is that: “In this Discussion Paper, which concludes the present project, we are not making specific proposals for legislation. It is therefore not a Consultation Paper in the usual format, nor are we seeking responses.”


[7].         See A. Bottomley and S. Sheldon, Preface to S. Scott-Hunt and H. Lim (eds) Feminist Perspectives on Equity and Trusts (Cavendish, London, 2001) at viii: "There is a real sense in which feminist engagement with Equity and Trusts does derive from, and speak to, this sense of otherness in equity."

[8].         C. de Than, ‘Equitable Remedies: Cypher Wives, Weak Women and Equity's Special Tenderness’, in S. Scott-Hunt and H. Lim (eds) Feminist Perspectives on Equity and Trusts (Cavendish, London, 2001), 198.

[9].         M.J. Frug, ‘A Symposium Of Critical Legal Study: Re-Reading Contracts: A Feminist Analysis Of A Contracts Casebook’, 34 Am U.L. Review 1065, 1080.

[10].       Male writers: Clayton, Gardner, Hackney, Hayton, Hudson, Moffatt, Oakley, Pearce, Penner, Pettit, Ramjohn, Riddell, Stevens, Todd, and Virgo.

            Female writers: Halliwell, Martin.  

[11].       One exception is Arden L.J. when delivering judgments in Equity and Trust cases in the Court of Appeal.

[12].       C. Menkel-Meadow, ‘Symposium: Excluded Voices: Reality in Law and Law Reform: Excluded Voices: New Voices in the Legal Profession Making New Voices in the Law’, 42 U. Miami L. Rev. 29, 29.

[13].       In chronological order, Brinks Ltd v. Abu-Saleh (No.3) [1996] C.L.C. 133 - accessory liability for breach of trust, Bank of America v. Arnell [1999] Lloyd's Rep. Bank. 399 - recipient liability for breach of trust and Pennington v. Waine [2002] 4 All E.R. 214 - perfecting an imperfect gift of shares.

[14].       Brinks Ltd v. Abu-Saleh (No.3) [1996] C.L.C. 133.

[15].       C. Gilligan, In a Different Voice (1993, Cambridge, Mass: Harvard U.P.).

[16].       Bradwell v. The State 83 US (16 Wall) 130 (1873), 141, extracted from M. Menkel-Meadow, above note 12 at 36-37.

[17].       K. Morello, The Invisible Bar 1986.

[18].       Above note 12 at 40.

[19].       L. Code, S. Mullet & C. Overall, (eds) Feminist Perspectives: Philosophical Essays On Methods and Morals (1988) cited by K. Gross, ‘1990 Survey of Books Relating to the Law; III. Tort and Commercial Law: Re-vision Of The Bankruptcy System: New Images Of Individual Debtors’, 88 Mich. L. Rev. 1506, 1506. 

[20] .      See, for example, A. Scully, ‘Expert Distractions: Women Who Kill, Their Syndromes And Disorders’, in M. Childs and L. Ellison (eds) Feminist Perspectives on Evidence (Cavendish, London, 2000).

[21].       S. Wong, ‘Property Rights For Home-Sharers: Equity Versus A Legislative Framework’, in S. Scott-Hunt and H. Lim (eds) Feminist Perspectives on Equity and Trusts (Cavendish, London, 2001).

[22].       B. Fehlberg, Sexually Transmitted Debt: Surety Experience And English Law (Oxford University Press, New York, 1997).  

[23].       [2002] 2 A.C. 73. 

[24].       H. Charlesworth, C. Chinkin and S. Wright, ‘Feminist Approaches To International Law’, (1991) 85 A.J.I.L. 613 See also, H. Charlesworth, C. Chinkin, The boundaries of international law: A feminist analysis (Juris Publishing, Manchester University Press, 2000). 

22.       M.E. Kornhauser, ‘The Rhetoric Of The Anti-Progressive Income Tax Movement’, (1987) 86 Mich. L. Rev. 465.

[26].       K.L. Scheppele, ‘Review: The Re-Vision of Rape Law’, (1987) 54 U. Chi. L. Rev. 1095.

[27].       S. Estrich, Real Rape: How the Legal System Victimizes Women Who Say No (Harvard University Press, Cambridge, Mass., 1987).

[28].       See for example, C.M. Finan, 'Catherine A. MacKinnon:  The Rise of a Feminist Censor, 1983-1993; 

[29].       Ibid. 

[30].       [1992] 2 S.C.R. 226.

[31].       For a full account see P. Peppin, ‘A Feminist challenge to Tort Law’, in A. Bottomley (ed) Feminist Perspectives on The Foundational Subjects of Law (Cavendish, London, 1996), 69-85.

[32].       Above note 12 at 48.

[33].       (1993) 101 D.L.R. (4th) 621.

[34].       Ibid. at 647.

[35].       See Chapter Four, ‘Unconscionability as a doctrinal vehicle in adjusting property rights’ in M. Halliwell, Equity & Good Conscience In A Contemporary Context (Old Bailey Press, London, 1997) pp 73-103.  I repeat my conclusion in that chapter here because it is a suggestion of pragmatic reform:          

In order to achieve some legitimacy in England in this area of the law the courts must depart from the technique of using property law principles.  A more acceptable juridical basis must be found.  Although the models in Canada, Australia and New Zealand all provide better doctrinal vehicles, there are inferences that, if the House of Lords were to initiate reform in this area, the principle of unconscionability may be adopted as the most appropriate basis of jurisdiction.  Whether the principle will be adopted in its general form or in the specific guise of proprietary estoppel will depend on the prevailing judicial view of the capacity of judges, in the absence of legislative reform, to develop the law to meet new social conditions.  Lord Goff at least appears to now take the view that: " ... judges of equity have always been ready to address new problems, and to create new doctrines, where justice so requires..."  (citing Lord Goff in WestdeutscheLandesbank Girozentrale v. Council of the London Borough of Islington [1996] A.C.669.


[36].       [1983] 1 W.L.R. 1098.

[37].       [2001] 3 W.L.R. 376.

[38].       [1991] 1 A.C. 107.

39.       Ibid. at 132-133. 

            ... whether, ... there has ... been any agreement arrangement, or understanding reached between them that the property is to be shared beneficially.  The finding of an agreement or arrangement to share in this sense can only, I think be based on evidence of express discussions between the parties, ...  Once a finding to this effect is made it will only be necessary for a partner asserting a claim to a beneficial interest against the partner entitled to a legal estate to show that he or she has acted to his or her detriment or significantly allowed his or her position in reliance on the agreement in order to give rise to a constructive trust or proprietary estoppel.


... In sharp contrast with this situation is the very different one where there is no evidence to support a finding of an agreement ... and where the court must rely entirely on the conduct of the parties both as the basis from which to infer a common intention to share the property beneficially and as the conduct relied on to give rise to a constructive trust.  In this situation direct contributions to the purchase price by the partner who is not the legal owner, whether initially or by payment of mortgage instalments, will readily justify the inference necessary to the creation of a constructive trust.  But, as I read the authorities, it is at least extremely doubtful whether anything less will do."


[40].       [1975] 3 All E.R. 768.

[41].       [1986] Ch. 638.

[42].       [1990] 1 All E.R. 1111.

[43].       A.J. Oakley (ed) Parker and Mellows: The Modern Law of Trusts, (8th edn, Sweet & Maxwell, London, 2003), 425.

[44].       M. Halliwell, Equity & Good Conscience In A Contemporary Context (Old Bailey Press, London, 1997), 83 and 86.

[45].       Letter to Mr Justice Antonio Lamer, Chairman, Canadian Judicial Council, 3 March 1999. 

[46].       N. Fraser, Justice Interruptus: Critical Reflections on the 'Postsocialist' Condition (1992)  

[47].       J. Conaghan, ‘Reassessing the Feminist Theoretical Project in Law’,  (2000) 27 J.L.S. 351, 355-356, Project being defined note 1 at 351 as: ‘ A project is a continuous, goal-orientated practical activity based on an analysis of some kind…but the goals and the analysis are not necessarily internally coherent or consistent over time’, D. Kennedy, Critique of Adjudication (1997) 6.  

[48].       Above page 7.

[49].       Above note 4 at 1506.

[50].       A. Sullivan, E. Warren and J.L. Westbrook, As We Forgive Our Debtors: Bankruptcy And Consumer Credit In America (Oxford University Press, New York, 1989).

[51].       Above note 4 at 1526-1527.

[52].       Ibid. at 1533.

[53].       Ibid. at 1542-1543.

[54].       Above note 9 at 1065.

[55].       J. Dawson, W, Harvey & S. Henderson, Cases and Comment on Contracts (4th ed.1982).

[56].       Above note 9 at 1140.

[57].       D. Kennedy, ‘Ex-militant finally breaks through the glass ceiling’, article in The Times, 14 May 2003. 

[58].       Above note 47 at 365-366.

[59].       A very good example is the House of Lords decision in Westdeutsche Landesbank Girozentrale v. Islington London Borough Council [1996] A.C. 669.

[60].       [1992] 1 A.C. 599.

[61].       [1996] 2 All E.R. 1023.

[62].       [1992] 4 All E.R. 889.

[63].       [2001] 1 A.C. 596.

[64].       [2003] 1 F.L.R. 139.

[65].       M. Halliwell, Chapter Three, 'Relief Against Unconscionable Dealings', Equity And Good Conscience In A Contemporary Context (Old Bailey Press, London, 1997); M. Halliwell, Chapter Ten, ‘ Unconscionability - Abuse of Confidence, Undue Influence and Duress' in S.Hedley and M. Halliwell (eds), The Law of Restitution  (Butterworths, London, 2002); M. Halliwell, Chapter Twenty-two, Equity and Trusts Textbook (Old Bailey Press, London, 2003).

[66].       [1994] 1 A.C. 180.

[67].       [2002] 2 A.C. 73.

[68].       Above note 22.

[69] .      See, for example, N. Duxbury, ‘When We Were Young: Notes in the Law Quarterly Review 1885-1925’, (2000) 116 L.Q.R. 474 and M. Halliwell, ‘Academics, Equity and Unjust Enrichment’, (2001) 34 Canadian Business Law Journal: Revue Canadienne du droit de commerce 1.

[70].       H. Lim, ‘Mapping Equity's Place: Here be Dragons’ in A. Bottomley (ed) Feminist Perspectives on The Foundational Subjects of Law (Cavendish, London, 1996), 138.

[71].       Above page 15 and note 47.    

[72].       L.S. VanderVelde, 'The Gendered Origins of the Lumley Doctrine: Binding Men's Consciences and Women's Fidelity', (1992) 101 Yale L.J. 775.       

[73].       Lumley v. Wagner (1852) 5 De G. & Sm. 485 and Lumley v. Gye (1853) 2 El. & Bl.216. 

[74].       S. Waddams, ‘Johanna Wagner and the Rival Opera Houses’, (2001) 117 L.Q.R. 431. M. Dockray has undertaken a similarly exhaustive exercise in the context of the decision in Cutter v. Power, M.Dockray, ‘Cutter v. Power: A Trip Outside The Text’, (2001) 117 L.Q.R. 664.   Is this an exercise in construction rather than deconstruction?

[75].       Above note 8 at 213- 217.      

[76].       [1974] Ch.30.

[77].       [1936] 3 All E.R. 160.

[78].       Ibid.

[79].       Ibid. at 167.

[80].       Above note 70 at138-148.      

[81].       For a very sympathetic respect for women see Lord Hoffmann in R v. British Broadcasting Corporation ex parte Pro Life Alliance [2002] UK HL, para. 30.

[82].       Above note 70 at 142.

[83].       Ibid. at 140.

[84].       Now reported at [2000] W.T.L.R. 795, 801.

[85].       [1994] 1.A.C. 180.

[86].       Above note 9 at 1065. 

[87].       Above note 4 at1506.  

[88].       J. Temkin, Rape And The Legal Process (2nd edn, Oxford University Press, Oxford, 2002).

[89].       H. Kennedy, Eve Was Framed: Women and British Justice (Vintage, London, 1993).

[90].       P. Atiyah, Pragmatism and Theory in English Law, The Hamlyn Lectures (London, 1987).

[91].       ‘Why Has Feminism Failed Women? A Review of M. Schneir (ed), The Vintage Book of Feminism (London, 1994)’, Issue 71 of INTERNATIONAL SOCIALISM, the quarterly journal of the Socialist Workers Party (Britain) published June 1996;