Michael.1
Insolvency and related law and policy, and more

Michael Murray is an Australian author and commentator on corporate and personal insolvency law and related issues, in Australia and internationally. He has a strong law and policy background, is independent of any connections, and his views are his own. He gives no legal advice. 

Feminist input to the theories of insolvency?

For those who would like to see how it is said that ‘feminist ideals’ are met in one or other of the various theories of insolvency, see Legal Feminism and Insolvency Theory: A Woman’s Touch? by Dr Lézelle Jacobs.[1]

The argument is that feminist ideals are ones of ‘inclusion, connectedness, social justice and the flattening of hierarchies’, ‘levelling the playing field’, displaying elements of ‘compassion and social justice’, and these qualities are ‘to a greater or lesser extent visible in all the insolvency theories that tend to focus on more than just the interests of creditors’.

On the other hand, those theories that see insolvency’s purposes as confined to the interests of creditors only, are said to be consistent with masculist[2] approaches, in that they seek to divide, exclude and create hierarchies amongst stakeholders, leading to ‘oppression’ of certain of those stakeholders who are thereby ‘left without much power’ in the insolvency.

Dr Jacobs concludes that a

‘gendered perspective of all stadia* of the insolvency process and its consequences could possibly reveal further evidence of a patriarchal legal framework and identify areas for transformation’.[3]

Comment

Disciplines beyond law and the writings of legal academics might wisely be examined to test the claimed separation of positive and negative qualities between women and men, upon which this article seems to be founded – sociology and anthropology, psychology, and philosophy, among others – to which readers may wish to refer. Dr Jacobs does note that ‘not all the branches of feminism associate compassion with women’, this being ‘in line with the anti-essentialist[4] approach of feminism’.

This website has also looked at gender issues – gender essentialism in insolvency practice,[6] and female focused issues such as women on boards as predictors of insolvency, defences to liability, risk aversion and concentration of health and services focus of board positions.[5]

[1] Lézelle Jacobs, Legal Feminism and Insolvency Theory: A Woman’s Touch? (November 27, 2019). Wolverhampton Law Journal, Vol. 3, 2019. Available at SSRN: https://ssrn.com/abstract=3494577

[2] ‘… “masculist” can more easily be seen to refer to anyone who resist[s] feminist analysis and remains committed to “malestream” ideas, including women. …. the use of “masculinist” could too readily be seen as referring only to men’.

[3] Emphasis added.

[4] ‘Essentialism denotes that “woman” has a particular essence which defines woman as woman’.

[5] The proportion of insolvency practitioners who are women       MurraysLegal

[6] Gender essentialism and occupational segregation in insolvency practice, Yvonne Joyce, Stephen P. Walker, Accounting Organizations and Society Vol 40, January 2015, pp 41-60.

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