‘Before rules, were facts: in the beginning was not a Word, but a Doing. Behind decisions stand judges; judges are men; as men they have human backgrounds.’ (Llewellyn 1931, p. 1222) Gender-neutralised, the sentiments contained in Llewellyn’s famous words and the article which they introduce still hold – the human background of judges is important, and ‘doings’ or ‘tangible realities’ rather than words and abstractions, are what makes law dynamic, purposeful, and responsive (if slowly) to an even more dynamic social context.
How, then, might law be different if judicial decisions were routinely made by feminists? What would a ‘female-gendered mark on the law’ actually look like? (p. 8). Feminist Judgments: From Theory to Practice begins to answer these (and other) questions. It presents twenty-three alternative feminist judgments for actual cases, and commentaries to accompany the cases, written by feminist academics and activists. All of the cases were decided in England and Wales, and most (though not all) were decided relatively recently and reflect current law. The idea of re-writing judgments from a feminist perspective has a Canadian precedent in the Women’s Court of Canada (see Majury 2006) while the idea of rewriting judgments (not necessarily feminist) has a US precedent in two books edited by Jack Balkin (2002; 2005, but see Majury 2006, n14). Whereas the Canadian cases focus on equality jurisprudence under the Canadian Charter of Rights, the cases in Feminist Judgments deal with a very broad range of legal matters: consent to medical treatment, same-sex marriage, capacity to marry, the defence of provocation, refugee law, manslaughter by neglect, trespass to property, custody to children under family law, pregnancy discrimination, consent to bodily harm, evidence and many more. Some of these areas are framed by British and European equality and human rights law, but many rely on development of the common law or interpretations of statutory provisions. Some of the judgments affirm the decision made in the existing case but do so using a different reasoning process, while others reject the original decision.
There is a great deal that could be said about this project, and the three excellent introductory chapters to the book canvass a large number of questions associated with the idea of writing feminist judgments – what is the nature of judicial constraint and discretion in politically-charged contexts? Do women judge differently? What characterises a feminist judgment? Is gender (and racial and religious) diversity on the bench important and why? What doctrinal controversies are especially resistant to feminist judgment and what theoretical frameworks can be mobilised to deal with particular issues?
I just want to highlight three significant contributions to feminist and critical scholarship made by this book. First, as the editors note, the book ‘represents a form of academic activism’ (p. 8). The feminist ‘judges’ do not speak here primarily as scholars or critics (though a high level of scholarship and critique is evident) but as decision makers in difficult cases who are trying to make a difference to legal doctrine and policy. The project is one of ‘law reform’ in that the idea is to change law’s accepted stories and assumptions and to promote a shift in legal consciousness. This is only possible by engaging with law, and operating with a critical consciousness of its constraints – certainly operating at the margins at times but also frequently offering a solid and persuasive alternative to ingrained legal narratives. Although some may express scepticism that such a project will actually make a visible difference to law, it is nonetheless one of several feminist strategies and one which, in my view has the power to show how law might actually be different in practice.
Second, the book is tangible evidence of the strength in feminist diversity. It will come as no surprise to anyone that there is no feminist blueprint or general theory which can be applied in these practical contexts. Feminist jurisprudence is clearly guided by general principles and attitudes designed to empower women, protect our autonomy, and prevent discrimination but there can be significant disagreements about policy and practical implementation. In many of the cases considered, there are no easy decisions and potential controversy about the answer that is reached, but the book illustrates that there is strength rather than weakness in such contestations.
Finally, the book reminds us of the importance of a process of fact finding and legal interpretation which is nuanced, open-minded and critical, sensitive to power, and attentive to the relations between people rather than reliant on stereotypes and two-dimensional characterisations. Common law legal method is based on the idea that legal principles are derived in part from the material realities of life – lived experiences and real relationships. Certainly there is a hierarchy, structure and history, a mass of legal baggage, which also precedes and constrains any decision but, nonetheless, common law requires a renewal and re-enactment of principle in response to each unique set of facts. In promoting ‘critically aware’ decision-making (p. 43), Feminist Judgments affirms the ability law has to reinvent itself, to shift its discourse in response to changing values, and to become something other than simply alienating and exclusive. Such a change might take time, but it nonetheless is a possibility, as this book shows.
The book has already had an impact in a practical setting. In early November 2011 Baroness Hale, the only woman and feminist on the UK Supreme Court, gave evidence to a House of Lords Select Committee on the Judicial Appointments Process. She was asked what sort of difference a more diverse judiciary might make to the actual outcomes of cases. The ‘best answer I can give’ she said, describing the Feminist Judgments Project, is ‘go read that book.’ I would add – don’t just read the introductions and a few cases of interest. Read it all, because it is not in the individual contributions that it makes its most compelling argument, but in the collective enterprise of forming new stories and approaches to gendered questions.
Balkin, Jack ed. (2002) What Brown v Board of Education Should Have Said (NYU Press, New York)
Balkin, Jack ed. (2005) What Roe v Wade Should Have Said (NYU Press, New York)
Llewellyn, Karl (1931) ‘Some Realism About Realism – Responding to Dean Pound’ Harvard Law Review 4: 1222
Majury, Diana (2006) ‘Introducing the Women’s Court of Canada’ Canadian Journal of Women and the Law 18: 1-25
Cite as: Margaret Davies, Feminist Judgments
(February 20, 2012) (reviewing Rosemary Hunter, Claire McGlynn and Erica Rackley eds. (2010) Feminist Judgments: From Theory to Practice
(Hart Publishing, Oxford)), https://equality.jotwell.com/feminist-judgments/
Feminist judgments projects originate in Canada. The initial Canadian project saw six equality decisions rewritten by ten women. The aim: to see if equality under the Canadian Charter of Rights and Freedoms would be interpreted and applied differently if feminists were authoring the decisions. Since that time, projects have proliferated, with volumes produced in England and Wales (Margaret Davies reviewed that volume in Jotwell in 2012), Australia, the United States, Ireland and Northern Ireland, and Aotearoa New Zealand. The Canadians enjoy the exercise of rewriting equality judgments enough to have offered a second cluster of decisions last year. And new volumes are expected from jurists in Africa, India, and on International Law.
The first volume of American re-writes focused on decisions of the US Supreme Court. Surprising only to people who do not teach tax, the next volume of American re-writes takes up tax opinions. Released on December 28, 2017, as an invitation to continue holiday festivities, a volume edited by Bridget Crawford and Anthony Infanti serves up a veritable buffet of delights. Eleven rewritten American tax opinions comprise the volume. Six are rewritten Supreme Court decisions, one if a rewritten federal circuit court opinion, and four are rewritten Tax Court opinions.
The end result is spectacular. I want to draw attention to two features in this short review. These features are not tied, given this more general audience, to the tax context of the decisions. That’s worth underlining: this is a volume that is worth reading for scholars in any area of law with an interest in feminist legal theory and practice and how feminists approach legal and factual questions.
First, and worth emulating, each judgment is preceded by a commentary. The commentaries are designed to set context for the judgment. The authors of the commentaries were charged with explaining the original court decision, identifying how the rewritten judgement varies from it, and articulating how the feminist approach may have led to a different result. This context allows a non-American, or non-tax reader to make sense of the decision that following, enhancing the potential audience for the decisions. It also liberates the authors of the judgments to focus on what a re-written judgment would look like, without also trying to signal how their decision is at variance with the original. The commentaries in this volume don’t serve as introductions or cheerleaders for the main event: they work collaborative with the re-written judgment in a duet.
Second, the decisions themselves serve as terrific source material. I could imagine a volume on this volume. The decisions allow us to ask questions like: What makes the decision feminist? If a judge adopts a feminist approach, what changes? Do they interpreting statutes differently? Weight facts in unexpected ways? Use different kinds of reference materials to support their reasoning? Situate the decision in different contexts? Do feminists bring different higher-order values to the exercise of making decisions in tax cases? Is their approach to judicial authorship different?
The judgments in this volume, set within the specificity of tax law, suggest the answer to these questions is “yes.”
It will not surprise readers alive to anti-discrimination law’s limited capacity to transform systems that Ireland’s reform to protect workers in certain care relationships from discrimination based on their family status has reinforced gendered assumptions about care and workforce participation. However much its findings line up with our pessimistic hunches, Olivia Smith’s study is worth reading because it exemplifies an admirable kind of feminist scholarship: quantitatively and qualitatively empirical; theoretically grounded; alert to the intersection of gender with other grounds of disadvantage, such as class; and self-conscious of its limits.
Smith offers a “contextualized assessment” of a dozen years’ tribunal litigation under the “family status” discrimination ground. Prior to this ground’s adoption in the Employment Equality Acts 1998-2011, women had challenged discrimination associated with their care obligations under the ground of gender. As Smith notes, that tack had confirmed the gendered view of care as women’s work. Yet while the gender-neutral ground of “family status” might signal that care obligations bear on men as well as on women, the litigation record shows it to have reinforced the gendered dynamics of Irish work and family life.
Early in the paper, Smith sketches a sobering portrait of Irish family and workplace policy. She traces how it channels men away from care work at home or makes it much harder to do such work. Then she dives into the tribunal cases, the vast majority of them launched by women, to see how “family status” is playing out.
The study elaborates the distance between what “family status” and the related idea that employers must not discriminate against employees for their care responsibilities might have meant, and what they have come to mean. The decisions reveal that formal equality is the prevailing approach. In effect, employers cannot treat employees with care responsibilities worse than they treat employees without such responsibilities. In other words, the law sanctions treatment that singles out for special disadvantage employees who do care work. It does nothing, however, to challenge or modify evenly applied workplace expectations or requirements (schedules, travel obligations) that are incompatible with family life. Smith argues persuasively that this approach affirms the baseline of the ideal employee who, unencumbered by caring duties (someone at home may be shouldering them for him), responsibly prioritizes his investment in the labour market.
Smith roots her study in work such as Joan Williams’s treatment of the ideal worker, Colleen Sheppard’s attention to inequality’s embeddedness in broader institutional contexts, and Judy Fudge’s attention to the gender contract. She is appropriately sensitive to the difficulty in conceptualizing family status. On her analysis, Irish law’s definition is “at once both an advance and a regression”: it shifts away from law’s privileging of the sexual family, but still fails to capture the full extent of family care. For instance, the focus on parent–child relationships and on carers for persons with disabilities offers no protection from discrimination for those who provide care for other family members, for kin, or for friends.
While drawing out the lessons discernible in the record of tribunal decisions, Smith notes the constraints that shaped her data set. In particular, although a tribunal process is supposed to be inexpensive and relatively easy, the lack of legal aid and other factors undoubtedly limit its accessibility.
This paper leaves me thinking about other areas of law where our usual focus on the judgments of a jurisdiction’s apex court overshadows attention to the nitty-gritty of first-instance decisions – as well as about other cases where using a logic of equality and comparison to recognize difference ends up further entrenching the privileged ideal.