Criminal Law and the Moral Education of Men

Abstract

For much of its history, the criminal law of England, and hence of its colonies, counselled husbands to control and correct their wives. The ability to exercise effective domestic authority was an important index of manliness. So too was the willingness to use measured force in order to secure sexual relations with an unwilling wife. Criminal law thus immunised husbands from the crime of rape. The great political theorist John Stuart Mill condemned these extensive powers of the husband and called the patriarchal family a ‘nursery of the vices’. The leading Victorian criminal law jurist James Fitzjames Stephen took the opposite view. The manly man should take control of his little kingdom of the family and criminal law should cede him his sex rights, as it did. Modern criminal law has modernised men and curtailed these rights to women. The husband’s immunity from rape prosecution has been abolished. What was once endorsed in a manly man is now officially condemned. And yet the discipline of criminal law, as a whole, has not been reconsidered or reconceived. There has been remarkably little reflection about its gendered history and what is has meant for the past and present moral education of men.