Naffine's Criminal Law and the Man Problem can be situated within a tradition of academic legal texts that use gender ‘as an analytical tool to push at the boundaries of orthodox thinking’.Footnote ¹ The power and originality of Naffine's analysis, however, is found in her examination of ‘Men qua men, as the subjects and objects of criminal law… as a subset of the entire population… with a set of historical and modern sectional interests’.Footnote ² This approach adds an important dimension to feminist legal work that has used gender in all its different iterations to interrogate law,Footnote ³ exposed the hidden histories of women in the law,Footnote ⁴ or applied a feminist lens to legal judgments.Footnote ⁵ Naffine examines the construction of the male legal subject within criminal legal history.Footnote ⁶ The subject that she traces is bounded and sovereign: he is a rational, civilised member of a civil polity,Footnote ⁷ exercising control over his use of force and respectful of other (male) subjects’ boundaries and sovereignty.Footnote ⁸

Naffine shows how this sovereign, bounded subject can only be fully iterated through his relation with a non-bounded subject – woman. She explores how the female subject of criminal law did (and arguably does) not enjoy the same sovereignty as her male counterpart: ‘the personal borders of men – the very bodies of men as understood by criminal law – were extended outwards annexing and colonising the body of the wife’.Footnote ⁹ Iterated in legal history most clearly in coverture and repeated in multiple forms in the legal system, the female legal person is absorbed into that of the male.Footnote ¹⁰ In exposing this interdependency and relationality, Naffine shows how different forms of subjectivity bring each other into view – women, and particularly wives, must assume complementary and dependent roles in order to maintain the coherence of the stable male subject. This coexisting legal visibility and invisibility is apparent throughout the book as Naffine explores different legal horizons in order to show the fundamental instability of man's subjectivity in criminal law.Footnote ¹¹

The ‘acid test’Footnote ¹² that brings all these elements into combination is rape law and specifically, the marital rape exemption, which persisted until 1992 in England and Wales and Australia – key jurisdictions examined in the book. Naffine introduces the exemption in the first chapter through a detailed recounting of DPP v Morgan.Footnote ¹³ Particularly clear in Naffine's analysis is how little attention was paid by the court to the marital rape exemption – ‘an ancient common law doctrine’Footnote ¹⁴ – despite its central role in ensuring that Morgan was only charged and convicted for abetting his wife's rape, not the rape itself, thus allowing Morgan ‘to disappear from legal view, into the bedroom’.Footnote ¹⁵ This apparent blindness to the injustice of Morgan's shielding from prosecution was further perpetuated by scholarly works discussing the case as it became a landmark not for the exemption – which was largely ignoredFootnote ¹⁶ – but for the principle that serious wrongs require a subjective mens rea.Footnote ¹⁷

Having discussed Morgan and its legal and academic aftermath, Naffine then historicises the case's contradictions by exploring the work and writings of ‘influential legal men’Footnote ¹⁸ from Hale (1609) to the twentieth century, most of whom – with notable exceptions – supported and justified the marital rape exemption and the unequal position of men and women in criminal law. In a close reading of the works of these men of law, Naffine points out the paradox of their position: crimes such as rape are endowed in these writings with a ‘pre-legal wrongfulness’,Footnote ¹⁹ that is, a crime from which we should refrain because it is wrong, not because it is illegal. Yet one person – the husband – is exempt from this requirement. By letting the ‘leading men of criminal law’Footnote ²⁰ speak for themselves across the centuries on this topic, Naffine exposes their hypocrisy. She shows how the exemption is justified by reference to (usually stereotypical or under researched) appeals to women's and men's ‘natures’ (which are taken to be complementary and diametrically opposed). In many of these works, a women ‘needs’ to be dominated and cared for: the ‘gentle violence’ required to ensure her sexual submission is viewed by thinkers and legislators as a marital good rather than a criminal offence.Footnote ²¹

Neither the legal limits of permissible violence, nor the legal and academic justifications for the marital rape exemption, have remained static over time, but have shifted with prevailing social norms, while continuously preserving the central doctrine of a husband's unrestricted access to his wife's body. Within these shifting and contradictory arguments, a clear view of the gendered relations of legal power emerges – one that, as Naffine notes, was apparent to thinkers such as JS Mill and Edward Christian, who wrote critically on the rape exemption and other unequal aspects of marriage in the eighteenth and nineteenth centuries. In making men specifically visible within these gendered relations, Nafffine shows how specific masculine subjectivities and figurations are constructed within authoritative legal writings. These subjects, like the arguments that sustain them, also shift over time while appearing to remain constant – and, as Naffine notes, these shifts and contradictions are the cause of considerable cognitive dissonance.Footnote ²²

In the final section of the book, Naffine shows how historical contradictions have been carried through into the present. The marital rape exemption may have been removed, the subject of criminal law may be ostensibly gender free, but the history of men and women's differential construction and treatment in criminal law has not been fully faced. The gender-free criminal legal subject is more often than not read as male – and once again, the woman disappears, or is unserved by criminal legal norms and practices.Footnote ²³ It is from this basis that Naffine issues an important challenge: to face this criminal legal history and make visible both the historic injustices faced by women and the sectional interests that have created the male criminal legal subject in their own image. This must be done not by fudging or denying the past,Footnote ²⁴ or in a piecemeal fashion, but through a recognition of the extent of an innate and sustained system of violence and violation. This story, she notes, ‘continues to unfold’.Footnote ²⁵

Naffine's challenge is far reaching, but it is sustained by the book's tightly focused argument. This focus is both a source of strength and a potential weakness, or at least a point of departure for further consideration of the ramifications of Naffine's analysis of ‘the man problem’. In particular, the tight focus on the marital rape exemption, as theorised by influential legal thinkers, leaves open the question of how the law constructed and regulated men outside of criminal law. It would be useful, for example, to consider how these gendered subjectivities existed or were activated in other legal fields – such as property or family law.Footnote ²⁶

Equally, it would be useful to consider how criminal law regulated those men who did not align with the bounded, civilised subject that emerged in these legal thinkers’ own image. For example, the male subject that Naffine identifies might usefully be contrasted with criminal legal approaches to and figurations of men who upset law's gendered relations and men who were, at various points in criminal legal history, configured as ‘uncivilised’.Footnote ²⁷ Gay, bisexual and queer men as well as gender non-conforming men and women have experienced a very different relationship with criminal law – and indeed, Naffine briefly mentions the way in which criminal law has undermined the personal sovereignty of millions of homosexual men, in a similar fashion to its undermining of the personal sovereignty of women.Footnote ²⁸ This brief comment exposes the multiple ways in which law's gendered subjects and ‘criminal legal principles imbued with misogyny and homophobia’Footnote ²⁹ expand far beyond just the question of historical marital rape immunity. Indeed, as Naffine notes, strict public/private divisions did much to hide the violence of husbands from criminal legal scrutiny, but those men who strayed from the gendered figurations of masculinity contained within criminal law could not expect the same protections – and had to litigate over an extended period in various jurisdictions to acquire them.Footnote ³⁰ Part of meeting Naffine's challenge to recognise the violence of the criminal legal past should be to bring these stories into view.Footnote ³¹

Implicit in Naffine's analysis throughout the book is the relationship between male personal sovereignty and concepts of statehood, civilisation and national identity. A kind of ‘statecraft as mancraft’Footnote ³² underpins the writings of the men of law – whether it be through a consideration of the concept of civilisation by Norbert EliasFootnote ³³ or through the Australian High Court's reworking of legal history to portray South Australia as a ‘progressive state in a progressive nation’, despite evidence to the contrary in a case of historical marital rape.Footnote ³⁴ For all the emphasis placed by men of law on bounded sovereign subjectivity, as Naffine notes, no subjects are isolated, and all are integrated into wider systems of gendered, state, and institutional power. In this respect, it is notable that many of the texts Naffine considers were written during the colonial era or its immediate aftermath.Footnote ³⁵ An interesting consideration here would therefore be the influence of Britain's imperial ‘rage for order’Footnote ³⁶ on the development of criminal legal thinking. Not only were British colonies zones of experimentation for the development of penal codes,Footnote ³⁷ but more generally and significantly for the arguments developed in the book, the colonial era was marked by a civilised/uncivilised binary in which the supposedly uncivilised or brutal behaviour of colonised men became the motivation for the ‘civilising mission’ of imperial control.Footnote ³⁸ From a perspective of the ‘civilised’ subject, therefore, women were not the only ‘other’ against which the male subject of law was constructed.

Moreover, the ideas of civilisation that underpinned male-bounded subjectivity and sovereignty have not remained static.Footnote ³⁹ Naffine highlights this contradiction throughout: the male subject of law is assumed to be timeless and fixed, even when shifting norms and conceptions of acceptable violence are in flux, creating concurrent shifts in legal subjectivities and criminal legal figurations. An important part of responding to Naffine's call to face criminal legal history's violence might thus be facing the ongoing impact of empire, and the way in which imperially created subjectivities continue to animate binaries of self and other, in a way that still disproportionately criminalises and polices those who do not resemble the white, elite, educated men of law.Footnote ⁴⁰

Naffine's focus on the ‘demographically restricted community’Footnote ⁴¹ of male thinkers and jurists historically and into the twentieth century offers powerful support for arguments in favour of widening participation in the judiciary, the academy and the criminal legal system. It also raises a question: Naffine is right to note that these men were extremely influential, but – as the book shows – no subject or thinker operates in isolation. There is space here to further consider how patriarchal thought was maintained by an entire architecture – that extended from social norms, to policing and forms of regulation, to the judiciary and the legal system in its entirety. Part of meeting Naffine's challenge to fully face the violence of legal history faced by women, might be to explore its expansion beyond the elites and their legal texts, and to explore how law's failure to acknowledge its own violence contributes to the persistence of gendered stereotypes and subjectivities more generally.

Criminal Law and the Man Problem is a powerful and provocative addition to literatures of criminal legal history, gender and the law and critical approaches to criminal law. It can function as a valuable teaching tool, with accessibly written chapters that might be used to encourage students to think critically about the histories and practices of ostensibly neutral criminal legal systems. Equally important, however, is the book's call to action: it reminds us that ‘the man problem’ is unresolved and that our task must be to continue the unfolding story by which the deficiencies of the ‘default man’Footnote ⁴² that animates the criminal legal subject are exposed, challenged and remedied.