Compulsory Care-Giving: Some Thoughts on Relational Feminism, the Ethics of Care and Omissions Liability
![handle is hein.journals/camblr39 and id is 11 raw text is: COMPULSORY CARE-GIVING: SOME
THOUGHTS ON RELATIONAL FEMINISM, THE
ETHICS OF CARE AND OMISSIONS LIABILITY
Neil Cobb
INTRODUCTION
In the course of their university education every law student can expect to grapple
with the rules governing criminal liability for omissions.' The assertion that,
presumptively, a criminal offence must be committed by an act, and the associated
reluctance to prohibit failures to act in all but exceptional circumstances, is a
jurisprudential principle crafted and clarified by a line of eminent, and male, jurists
in the United Kingdom (from Lord Macaulay2 and Sir James Stephens3 in the
nineteenth century to Glanville Williams4 and Lord Diplock5 in the late twentieth)
in vivid and often colourful prose.6 On the other hand, there has been a noticeable
dearth of literature considering the gendered implications of this conventional
account of omissions liability.7 It might seem quite understandable to some that
this particular aspect of criminal theory has previously failed to attract feminist
critique; the concept has little apparent significance in the criminal law's well-
documented contribution to women's historic and contemporary disadvantage.
However, I want to suggest, alternatively, that it can be seen to go to the heart of
recent theorising about gender, particularly the work of relational or 'difference'
feminists, if one considers its role in law's discursive construction, and material
regulation, of care-giving.8 In this article I shall draw briefly upon the insights of
relational feminist jurisprudence in order to provide a preliminary re-reading of the
theory and practice of omissions liability. While accepting postmodem feminist
concerns with the apparently essential feminine voice often claimed to underpin
relational theory, I would still assert the value of interrogating the approach to
criminal omissions (partly inspired, some might argue, by masculine anxieties)
from the perspective of the ethics of care.
The article has three parts. The first part reconsiders feminist legal theory
and its critique of law and, in doing so, sets out a series of concerns with the
criminal process: its role in the continued material violence against women; the
Although, of course, the issue of omissions liability also arises in tort law and theory: see B.
Markensinis and S. Deakin, Tort Law (Oxford: OUP, 1999), pp. 137-142.
2 T. Macaulay, Notes on the Indian Penal Code in Lady Trevelyan (ed) Miscellaneous Works of Lord
Macaulay (New York: Harper, 1880).
3 j. Stephens, Digest of the Criminal Law (London: Macmillan, 1877).
4 G. Williams, 'Criminal Omissions - the Conventional View' (1991) Law Quarterly Review 86.
5 Miller [1983] 2 AC 161.
6 See below, nn. 25 and 31.
7 An exception is Herring's recent article on the particular gendered impact of section 5 of the Domestic
Violence, Victims and Crime Act 2004 which, he notes, tends to criminalise women whose failure to
take steps to protect their children from harm by a partner is often the result of domestic violence: see J.
Herring, 'Familial Homicide, Failure to Protect and Domestic Violence: Who's the Victim?' [2007] Crim
LR 923.
8 C. Gilligan, In a Different Voice (Cambridge, Mass.: Harvard University Press, 1982).](ViewImageLocal?handle=hein.journals/camblr39&div=8&collection=&method=preview&ext=.png&size=3)
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Compulsory Care-Giving: Some Thoughts on Relational Feminism, the Ethics of Care and Omissions Liability
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