Feminist perspectives on the law of tort and the technology of risk

O'Malley (2000) uses contract law to illustrate the governance of uncertainty. In this paper, the focus is on the other area of legal obligations: tort law. The first section draws upon the work of François Ewald - who analyses risk and uncertainty within the French codified tradition - to show the extent to which the English common law fits within his Foucauldian approach. The second section demonstrates how the work of both O'Malley and Ewald is complicated by the way in which women have been positioned with regard to risk and uncertainty in the common law. This is examined by considering the way in which the courts have failed to follow legal precedent in the 'wrongful birth' cases.