Renata Grossi

Understanding Law and Emotion

Understanding the contributions and the implications of law and emotion scholarship requires an acknowledgement of the different approaches within it. A significant part of law and emotion scholarship is focused on arguing for the relevance of emotion and on identifying emotion in legal processes and actors. Other parts of it venture further to ask how law can affect the expression and content of emotions themselves. This scholarship challenges legal positivist foundations (law as rational and objective), as well as some other established divisions in thinking, both in law, and more generally in the history of ideas (reason vs. emotion, the private vs. the public). The other important factor, which this article explores, is the methodology employed by law and emotion scholarship.

The Wife as Legal Subject in Equity and Commercial Law

This article is about the way wives are depicted by commercial law. Women, single and married, have always had a role in economic activities, but in the case of married women this role has always been obscured by the other roles of home maker and mother. Married women have had a sad legal history, essentially unrecognised as autonomous individuals. The extent to which this historical position is still evident in today’s representation of a wife is the central question for this article. In order to answer this, the discussion begins with a summary of the ‘past life’ of the legal subject of wife in the common law and equity. It then shifts to the way in which the wife is represented in modern law — the focus being the area of surety contracts. In at least this area it will be clear that the equity courts retain their traditional posture, not merely because of the often quoted role of equity as the protector of the vulnerable, but also because (as feminists have argued for a long time) the law is about men and the public rather than about women and the private. It will also be argued that the retention of equity’s view of the wife as one of society’s vulnerable, in need of special protection, is grounded in the fact that a wife is defined according to the law’s conscious and unconscious notion of ‘home’. This notion of the home is loaded with many emotional meanings and, while the wife is seen as the sacred icon of the home, her definition in law remains linked to these emotional and essentially traditional meanings. Because of this, it will be argued that the representation of a wife in law in the 21st century is more closely linked to the representation of the wife which existed in the middle of the 19th century than the radical changes in the content of the our laws would suggest.