Reporting trips, for me, are always an exercise in finding similarities among differences: the ribbons of shared dilemmas, conflicts and social changes that link people together, no matter their nation.I spent most of the past two weeks in India, where that effort turned out to be more straightforward than expected. I was there working on a long-term project about young women struggling to strike a balance between their ambitions for new opportunities in a modernizing economy, and the constraints of a patriarchal system that expects them to remain at home, confined to the private sphere and governed first by their families, and then by their husbands and in-laws.Many of their struggles seemed like more extreme versions of the dilemmas facing women around the world, including in the United States, where I grew up, and the United Kingdom, where I live now.But somewhat unexpectedly there was also a far more direct link, which became clear when opinions by prominent judges in both countries became public within days of each other, both drawing on reasoning from the same man: Lord Matthew Hale, a 17th-century English jurist.Hundreds of years ago, his decisions about women’s rights within marriage and over their own bodies — or, more precisely, his decisions that those rights ought to be constrained so that they wouldn’t encroach on men’s rights too much — became part of British common law, and so by extension the common law of the United States, India and other British colonies.In the United States, Justice Alito’s leaked draft opinion to overturn Roe v. Wade cited Hale eight times. In India, an opinion from the Delhi High Court refused to criminalize spousal rape, upholding a legal exception that Hale had codified in a treatise in the 1600s. (The Indian court split, with another judge voting to end the exception. The petitioners plan to appeal the decision.)“It’s so startling that within 10 days of each other, we have the leaked Alito decision and the decision on marital rape,” said Karuna Nundy, a lawyer who represented the petitioners in the Indian case. “Both traced back to a colonial-era misogyny that the constitutions of India and the United States — that guarantee individual rights, the individual rights to privacy of the body, to bodily integrity, to free sexual expression — have overridden.”Or at least seemed, on paper and in other decisions, to have overridden. But both cases have shown how that kind of reasoning, once embedded not just within court judgments but also in social norms and practices that have their own collective momentum and power, can persist, even in the face of apparent progress.ImageWomen demonstrating to demand more rights on International Women's Day in March in Amritsar, India.Credit...Narinder Nanu/Agence France-Presse — Getty ImagesThe past is not dead: legal edition
A central tenet of Hale’s legal philosophy was that giving women legally enforceable rights over their own bodies was a threat to men’s freedom.That comes through clearly in his famous description of rape as “an accusation easily to be made and hard to be proved and harder to be defended by the party accused, tho never so innocent.” That became the basis for centuries of jurisprudence and jury instructions that treated the moral character of rape victims as the paramount concern in rape cases, and often presumed that they were lying if they could not produce corroborating witnesses or other outside evidence for their claims.Hale also wrote in his influential common-law treatise that marital rape could not be a crime because marriage itself constituted irrevocable consent to sex — but only for the wife. “For by their mutual matrimonial consent and contract,” he wrote, “the wife hath given herself up in this kind unto the husband which she cannot retract.” That belief was an outgrowth of the doctrine of coverture, which treated a married woman’s rights as “covered” by her husband’s. Her property became his, and she could not bring legal actions in her own right. The family, in this view, was a private sphere in which the husband was essentially the sovereign, and the wife could not appeal to the state for protection.So far, so 17th century. Except that in common law systems, judicial opinions become binding the same way written laws do, so many of Hale’s beliefs didn’t stay in the past. Some are thankfully now defunct: We no longer hold witch trials, for instance. But his views on rape, marriage and abortion, enshrined in legal opinions, became part of Britain’s legal system, and then those of its colonies. And to say they have had global staying power there would be an understatement.In the United Kingdom, marital rape was not criminalized until 1991. In the United States, it took until 1993 for it to be a crime inBy: Amanda Taub
Title: The 17th-Century Judge at the Heart of Today’s Women’s Rights Rulings
Sourced From: www.nytimes.com/2022/05/19/world/asia/abortion-lord-matthew-hale.html
Published Date: Thu, 19 May 2022 09:00:13 +0000
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