Feminist Judgments: Comparative Socio-Legal Perspectives on Judicial Decision Making and Gender Justice
Coordinators: Bridget J. Crawford (Pace University School of Law), Kathryn M. Stanchi (Temple University Beasley School of Law), Linda L. Berger (UNLV William S. Boyd School of Law)
Description of the meeting
For many years, feminist scholars from a variety of disciplines have theorized how to achieve gender justice. Relatively recently, a group of international legal scholars in several democracies have engaged the question of gender justice in a more practical context: would judicial decision making on gender issues change if judges were informed by feminist theories and methods and would the result be a path to gender justice?
Working independently, eight different Feminist Judgments groups in the United States, Canada, the United Kingdom, Ireland, Australia, New Zealand, India and across Europe have so far addressed or are addressing those questions. As valuable as these independent endeavors are, this workshop at the Oñati International Institute for the Sociology of Law opens a dialogue between and among the scholars leading these efforts. The opportunity to consider these projects comparatively has the potential to reap exceptional benefits.
The workshop provides the setting and the essential participants for a structured conversation that begins to explore and assess how different socio-legal contexts affect the various Feminist Judgments projects. In doing so, the participants will chart a new path for future projects that integrate judging and feminism. The workshop will start the process of identifying common core principles, encouraging cross-cultural perspectives, and proposing directions for future scholarship. For example, the contexts for the various Feminist Judgments initiatives are affected by distinct historical, social, cultural, and political forces; these contexts are defined by similar, but not identical, legal and judicial systems; and they likely are influenced by disparately constructed understandings of how the law, language, and legal reasoning relate to one another. A conversation about these differences and their impact promises to shed new light on the quest for gender justice.
The IISL workshop, Feminist Judgments: Comparative Socio-Legal Perspectives on Judicial Decision Making and Gender Justice, brings together the scholars who have organized wide-ranging collaborative projects to produce alternative feminist judgments in international law and within the United States, Canada, the United Kingdom, Ireland, Australia, New Zealand, India and across Europe. Each of these independent projects is at a different point in its initial exploration of the ways in which feminist perspectives play out within decision-making processes of the relevant courts. The workshop participants will first compare the feminist themes and jurisprudential findings that have emerged from the work of re-imagining opinion writing in the United States Supreme Court, the Canadian Supreme Court, the UK Court of Appeal and the House of Lords, the Supreme Court of Ireland, the Australia High Court, the New Zealand Supreme Court, the Supreme Court of India, or the European Court of Human Rights.
We expect that this comparison will identify common themes and principles. Several projects have already reported similarities in (1) the role played by implicit or unacknowledged gender bias in jurisprudential results and reasoning and (2) the distinctive approaches taken by decision makers relying on feminist methods and theories. This is consistent with the view that the Feminist Judgments projects are a kind of “academic activism.” They critique current judicial decision making, and they explore the theoretical and practical promise of feminist alternatives. Thus, one central mission of rewriting court opinions from a feminist perspective is to demonstrate that judges may decide issues in ways that are consistent with their judicial roles while still applying feminist theory and methods to advance the goals of equal justice. Initial results from the Feminist Judgments initiatives confirm that many of the rewritten feminist opinions demonstrate the unacknowledged role of embedded assumptions and stereotypes in judging. Similarly, the reports to date suggest that the authors of feminist judgments more often adopt contextual and relational approaches to legal reasoning, a contrast with the more adversarial and abstract reasoning on display in many judicial opinions.
We expect that the workshop will uncover differences among the various projects as well. For example, although many of the gender justice issues addressed in the rewritten opinions likely will be similar from country to country (reproductive rights, employment-related discrimination, domestic violence), others will be related to particular cultural or social forces (immigration, religious freedom, prostitution, political representation). Similarly, we expect to find both major and minor differences among the projects along such lines as the expected role of the judiciary in society and government, the ways that courts of different nations (as well as courts at different levels) envision the fact-finding and judgment-reaching processes, the weight those courts give to political factors, their acceptance of social science research or critical theory and scholarship, their expectations about the proper occasions for the use of particular judicial formalities, and the unexpected influence of various aspects of national or group identity that previously were not apparent.
The leaders of the Feminist Judgments projects share a motivating research question and a vision. The workshop is designed to serve as a natural turning point for the seven current projects, a time for reflection on the work that has been done and for thinking through the direction for future projects. Although this workshop is only the beginning of the conversation, it will make possible future cross-cultural efforts. Those efforts will produce greater knowledge about both judging and feminism and especially about the interaction between the two. As a result of their workshop conversations, the participants will be better able to embark on the longterm effort to envision and enact the feminist vision of equal justice across the boundaries of culture, race, and gender.
Our experience in Oñati
From 11 May to 12 May, 2017, sixteen scholars from eight different countries (Australia, Canada, England, Ireland, India, Scotland, New Zealand and the United States) came together for a workshop on “Feminist Judgments: Comparative Socio-Legal Perspectives on Judicial Decision Making and Gender Justice.” Working independently in a variety of jurisdictions, separate Feminist Judgments projects have engaged with the question of whether judicial decision making on gender issues would change if judges were informed by feminist theories and methods. The primary tool for exploring this question has been the writing of “shadow judgments,” in which academics and practicing lawyers rewrite judicial opinions from a feminist perspective using the facts and precedent in effect at the time of the original decision. The Oñati workshop allowed the participants to identify common core principles across the various projects, encouraged cross-cultural perspectives, and proposed directions for future socio-legal scholarship. The participants considered the contexts for the various Feminist Judgments initiatives and the ways that they are affected by distinct historical, social, cultural, and political forces. The workshop served as a natural turning point for several of the Feminist Judgments projects that are already complete and marked the beginning of two additional projects that are at the beginning stages. Although the principal investigators of each Feminist Judgments project had been generally aware of each other's work, this productive workshop in Oñati was the first time that they met together as a group. This workshop generated several ideas for future cross-national collaboration. As a result of the workshop conversations, the participants will be better able to embark on long-term, global efforts to envision and enact a feminist vision of equal justice across the boundaries of culture, race, and gender.