The general legal environment

So far, we have considered the main sources of what might loosely be called ‘compensation’ for personal injury, and physical and mental disability – that is, monetary payments designed to give financial support to the ill and injured on account of their disabilities. There are some other forms of assistance, not in the form of monetary payments, which also deserve to be considered briefly. But first, it may be helpful to paint a broader picture of social policy in relation to disability.

Since the first edition of this book was published in 1970, the general legal environment of provision for the disabled has been transformed by the development of the ideas that the disabled have a right – negatively – not to be discriminated against because of their disability and that they should – positively – have opportunities to flourish equal to those of the non-disabled. The first of these ideas found legal expression in the 1970s in legislation against sex and race discrimination. Similar legislation to protect the disabled was first enacted in 1995, and the early years of the twenty-first century saw the recognition of other ‘protected characteristics’.

The fault principle has traditionally been understood as a principle of morality, which can justify not only the imposition of liability for death and personal injury but also the assessment of compensation according to the fullcompensation and 100-per-cent principles. Grosser fault may even be seen as justifying the award of exemplary or punitive damages. But, in moral terms, the fault principle might be thought to suffer from serious defects. It can also be attacked on social and practical grounds. In this chapter, we consider various arguments that might be made against the fault principle as a basis for the payment of compensation to victims of personal injuries by those who inflict them.

The compensation payable bears no relation to the degree of fault

Under the fault principle, being required to pay compensation is a sort of penalty for bad conduct. In the criminal law, it is seen as a basic requirement of justice that ‘the punishment fit the crime’ in terms of the seriousness of both the offender's conduct and the consequences of that conduct. In tort law, on the other hand, there is no such idea that the compensation payable should be proportional to the tortfeasor's fault.

The conceptual basis of tort law

The aim of this Part is to explain the main features of tort law as a system for compensating for personal injuries and death, and to examine its main theoretical defects as a compensation mechanism. We will focus on tort law because most claims for damages for personal injuries and death are ‘made in’ tort, although occasionally such a claim may be ‘made in’ contract or based on some statutory cause of action. The boundaries of a legal subject are not set by divine prescript but by the custom of lawyers. Tort law as a separate legal subject is largely a product of the systematizing activities of academic lawyers in the nineteenth century. This body of law deals with a variety of social and economic problems that may be classified in a number of different ways, for instance by looking at the interest of the claimant. Are they complaining about: deprivation of liberty; injury to their person or feelings; damage to property, or the invasion of land; damage to reputation or invasion of privacy; injury to relations between members of a family; or damage to trade or business? Alternatively, problems may be looked at in terms of the cause of the injury: who caused it; was it caused intentionally, maliciously, negligently or without ‘fault’ on the part of anyone; did the injured person play a part in causing the injuries?

The importance of settlements

The vast majority of tort claims are settled by negotiation and agreement between the claimant and the defendant's liability insurer, or, occasionally, the defendant personally, usually through the agency of solicitors on both sides. This process has been memorably called ‘litigotiation’. The Pearson Commission estimated from its various surveys that 86 per cent of cases are settled without the commencement of legal proceedings (i.e. without issuing a claim form); 11 per cent are settled after the commencement of proceedings but before the case is set down for trial; 2 per cent are settled after setting down; and 1 per cent are settled at the door of the court or during the trial, or are actually disposed of by trial.4 Over the years, other surveys and studies have confirmed the general pattern of these figures.

Compensation for accidents

This book is about how the law compensates for certain kinds of misfortune, particularly physical and mental impairment and death resulting from accidents. Although the term ‘accident’ is a convenient one, its meaning is not straightforward, and some further explanation of the way it is used in this book is necessary. First, the word ‘accident’ will be used to include intentionally inflicted impairment and death (as when, for example, one person deliberately assaults another), even though neither the inflicter nor the victim may consider the outcome to be ‘accidental’. Secondly, the term will not be confined to its technical legal sense – in this sense, an event would be accidental only if it was either unforeseeable or foreseeable but unpreventable.

Thirdly, we are sometimes reluctant to refer to impairment or death resulting from natural causes as ‘accidental’. For instance, we might hesitate to say of a person who died of leukaemia that they died accidentally; although, if a person, while on holiday, contracts a rare viral disease and dies soon after, we might call the death an accident.

Fault liability and strict liability

The fault principle, as embodied in the concept of negligence, is not the only basis of legal liability for personal injuries and death, although it is, in practice at least, by far the most important. In this chapter, we will consider modifications to and departures from the fault principle. Such modifications and departures are often said to impose ‘strict liability’ as opposed to fault liability.Whereas fault liability is based on a judgment that a person should have behaved differently (for instance, by taking certain precautions), strict liability does not involve any judgment that the person should have behaved differently. Putting the same point another way, fault liability is liability for the way a person behaved, whereas strict liability is liability for consequences of a person's conduct. Strict liability has often been thought to be morally unjustifiable, even if it has its uses as a legal device – how can it be fair to hold someone liable for the consequences of behaving in a perfectly acceptable way? How can we justify liability in the absence of culpability? The best answer to this question appears to be that even in morality (as opposed to law) we sometimes accept responsibility and hold others responsible for things that were not our, or their, fault.

Tort claims

Victims of criminal offences causing personal injury can claim in tort against the criminal, but in the great majority of cases the criminal would not be worth suing. In its Third Report, the Criminal Injuries Compensation Board (CICB) (now the Criminal Injuries Compensation Authority (CICA)) reported that it had found the number of cases in which offenders would be worth suing to be seventeen, i.e. 0.7 per cent of the cases which had by then come before the Board. By the time of the Seventh Report, the number had dropped to six out of nearly 6,000 cases, i.e. about 0.1 per cent. Just occasionally, tort liability may be established against someone other than the offender personally. For instance, the offender's employer may be vicariously liable in cases of fraud. In cases of personal injury, such liability will not often be established because criminal assaults and similarly violent conduct will not often be regarded as within the course of the offender's employment so as to render the employer vicariously liable. Personal tort liability may occasionally be imposed on the victim's employer where, for example, it is alleged that the employer had exposed the victim to unnecessary risk of criminal attack by sending a young woman to the bank to collect wages for a company's employees.

In Chapter 2, we set our task as understanding how a single individual's verbal move could get picked up by others and eventually make it into public discourse: how we connect what happens at the Jones's breakfast table on Saturday to the gender order. The first step of this voyage is in the actual structure of verbal activity – how what happens at the Jones's breakfast table is structured so that things actually get said and heard. Verbal activity, from presidential addresses to shouted epithets, is a vast and highly structured system of human engagement. Conventions for carrying on verbal activity differ from culture to culture, and learning how to engage in this activity is a central part of growing up. Whether we are part of a culture that considers children to be human only once they begin to engage appropriately in the give-and-take of interaction, or part of a culture in which adults hold babies up and wave their hands for them – “say bye-bye” – growing up involves learning a great deal about when and where and how to talk. Thus an investigation of the gendering of talk begins with careful attention to the many ways in which talk is constrained.

Human discourse is an ongoing project of meaning-making, and the extent to which an individual or a group or category of individuals actually contributes to meaning depends on their ability to get their contributions heard and attended to. This means being in the situations and conversations in which different kinds of verbal activity take place, being able to get one's ideas into those conversations, and having those ideas heard and taken up by others. And within those conversations, what kind of room is there for people to develop styles or strategies, and for these styles and strategies to contribute to social differentiation? From debate to gossip, from flirting to heart-to-hearts to sermons, gender unfolds in what activities we engage in, and how we actually perform and view those activities.

We map our world by categorizing its contents and its happenings – putting together diverse particulars into a single category – and relating the categories they create. One of the basic things language does is allow us to label categories, making it easier for them to figure in our shared social life, to help guide us as we make our way in the world. Gender categories like those labeled by man and woman, girl and boy play a prominent role in the social practices that sustain a gender order in which male/female is seen as a sharp dichotomy separating two fundamentally different kinds of human beings and in which gender categorization is viewed as always relevant.

Gender categories do not simply posit difference: they support hierarchy and inequality. We have practices, both linguistic and non-linguistic, that tend to conflate the gender-specific category labeled man with the generic category of human being, for which English also sometimes uses the same label, as in book titles like Man and his place in nature. We also have labeling and other categorizing practices that tend to derogate women as women and to either overlook or disparage gender and sexual minorities. And both men and women are mapped onto a variety of other socially important categories, many of which interact significantly with gender. Gender also interacts with just which parts of the terrain get mapped, which categories get noticed, elaborated, and labeled. This chapter explores some of the complex ways in which categorizing and labeling – along with controversy over categories and their labels – enter into gender practice.

The development of the study of language and gender

The beginning

In 1973, Robin Lakoff published an article entitled “Language and woman's place,” which created a huge fuss. Two years later, she published a book with the same title, which included the original article and another piece entitled “Talking like a lady.” There were those who found the entire topic trivial – yet another ridiculous manifestation of feminist paranoia. And there were those – mostly women – who jumped in to engage with the arguments and issues that Lakoff had put forth. Thus was launched the study of language and gender in the US.

It is important to see Lakoff's article in its historical context, as it was part of the second wave feminist movement. 1972 was the year that Title IX was passed, guaranteeing women equal access to educational benefits. Even by 1970, 39 percent of graduate students were women yet only 18 percent of faculty at research universities were women. As female graduate students became increasingly engaged with feminism, they became impatient with aspects of scholarship that seemed to suffer from a narrow white male perspective. What did it mean that social theory had been written primarily by people who had lived their lives in one restricted and privileged corner of society? The sheer fact that there had been no serious study of gender before women began to do it is evidence enough that a homogeneous research population can have serious intellectual consequences. Since the serious study of gender itself was only just beginning at the same time as the study of language and gender, the field has undergone rapid changes and many of the theoretical struggles in gender theory have been played out on the language front. In what follows, we provide an overview of the major developments from the publication of Language and Woman's Place to the present, locating them in the broader context of gender theory and social theory more generally.

A lot has happened in the study of language and gender in the decade since we published our first edition – there have been big changes both in the gender and sexual order, and in the study of language and society. We tried in the first edition to do justice to all kinds of diversity as well as diversity's companion, change. With this edition, we have gone further beyond English-speaking white middle-class people and gender-conforming heterosexuals, and beyond those who happened to populate studies of earlier decades, most of whom are now at least middle-aged. In a field that draws on so many disciplines and approaches, there is no possibility of comprehensive coverage. We have tried instead to articulate a framework growing from our own research programs and then to find relevant work from other scholars to help us develop a fuller picture. Because gender is above all an ideological construct, we encourage our readers to question the foundations of their beliefs about gender and about how it emerges in language use. We hope that readers will take away a robust ability to appraise claims they hear about language, gender, and sexuality, and be better equipped to articulate and explore questions in this area, recognizing that definitive answers are probably not in the cards. This book is very much a collaborative effort. As in all our joint work, our names are listed alphabetically.

Like the first edition, this one is structured around the use of language in gender practice rather than around the linguistic resources themselves. Chapter 1 offers an introduction to gender and pays more attention than in the earlier edition to some of the complex connections of gender to sexuality. Its basic message – that gender is socially constructed – is unchanged, but new research and continued thinking have helped us develop our picture of how that happens. Chapter 2 sets the stage for the rest of the book by offering a quick overview of research on language and gender, with attention to some of the pitfalls. In Chapter 3, we present the linguistic resources on which people draw in constructing gender and sexual identities, and we conclude the chapter by considering gender in grammar, i.e., places where a language's grammar constrains how a speaker (or writer) invokes gender.

Assertiveness remains a hot topic for self-help books and websites. On amazon.com in late February 2012, a search for “assertiveness” in the self-help category brought up 6,055 titles, “assertiveness in women” yielded 1,170, and “assertiveness in men” had 424 offerings. In Figure 6.1, the online advice on assertiveness is aimed at women and in particular at women who are ambitious in their careers, although the author says that both sexes should find her advice useful. In Figure 6.2 the focus is on how to reduce interpersonal conflict, maintaining good interpersonal relations while not being a “doormat.” Both these sites give advice on how one can pursue one's agendas without jeopardizing the perception that one is “nice” and concerned about others. In Figure 6.3, the site offers tips clearly aimed only at men, where the goal is heterosexual dating success.

A quick look at book titles and the like suggests that the samples shown in Figures 6.1–6.3 are not atypical, with assertiveness for women often stressed in contexts of succeeding at work and for men in contexts of “making it” with women. Both sexes are sometimes targeted on general interpersonal relations issues, though women seem to get more of this. Women do indeed get counseled on assertiveness in heterosexual relations, but the emphasis there is on “just say no” and similar campaigns for stopping sexual harassment and date rape rather than on impressing potential male romantic partners. The message seems to be that women are deficient in their assertiveness in work and family contexts, and there is also apparently worry that some men need to unleash the assertiveness (domineeringness?) women are said to find sexually appealing in men.

In the early 1970s some feminists told a story that went something like this:

Lots of those who heard this were perplexed. The story didn't seem to make sense. The boy's father had been killed, after all. The point, as many readers undoubtedly already realize, was to highlight the assumption that the surgeon was a man and thus the failure to realize that a mother might be a surgeon.

The word surgeon does not require maleness to correctly apply to someone. Because there is no contradiction in saying “she is a surgeon,” maleness would not be considered part of the meaning of surgeon on most linguistic theories of semantics. Nonetheless the word does, even four decades later, evoke a male stereotype. Such “meaningful” but non-semantic associations with a word are called “conceptual baggage” in McConnell-Ginet (2008). Covert gender and sexual ideologies of various kinds are loaded into conceptual baggage. They lurk in the back rooms of language use and shape how we make sense of the world, often without our explicitly examining them.