5.2 Feminist Legal Judgments Project
In England and Wales, in common with most other jurisdictions, the overwhelming majority of judges have historically been, and continue to be male (Ministry of Justice, 2020). To highlight the effect this has had on the law, scholars have rewritten many key common law judgments from a feminist perspective (e.g. Hunter, McGlynn and Rackley (2010)). These scholars seek to demonstrate that judges that believe in equality between women and men would have decided the cases differently, and would have given different reasons for their decisions.
In the following activity, you will have an opportunity to reflect on what you think about these issues.
Activity 4 Judicial bias
Timing: Allow about 30 minutes
1. Watch the following video of an interview with Professor Rosemary Hunter.
Download this video clip.Video player: Video 4 Interview with Professor Rosemary Hunter of the Feminist Legal Judgments Project
Transcript: Video 4 Interview with Professor Rosemary Hunter of the Feminist Legal Judgments Project
PAUL TROOP
Hello. My name is Paul Troop from the Open University Law School. I’m here with Rosemary Hunter, who is from the University of Kent Law School. She’s a professor of law and social legal studies and also one of the co-organisers of the Feminist legal Judgments Project. Rosemary, welcome.
ROSEMARY HUNTER
Thanks, Paul. Nice to be here.
PAUL TROOP
Can I ask you to explain what feminism is?
ROSEMARY HUNTER
OK, so feminism is an approach to thinking about the world, thinking about society, which pays attention to gender and gender difference. So it looks at the way in which social arrangements operate differently for men and women, treat men and women differently, and very often subordinate women to men.
PAUL TROOP
Can a male judge be a feminist?
ROSEMARY HUNTER
Absolutely, yes. So being a feminist means having a commitment to or having an interest in or concern about the groups who have been traditionally excluded from law and legal reasoning and the development of legal doctrine. And anybody can do that. Anybody can be concerned to produce equality and a more inclusive legal body, legal structure.
PAUL TROOP
What’s the Feminist Judgments Project? And how did it come about?
ROSEMARY HUNTER
So the project came about from a realisation that feminist theory and feminist legal theory has been very influential in academia in law schools and universities. And feminism more generally has been very influential in the development of scholarship and legal scholarship. But it hasn’t had very much impact in the outside world in the practise of law. And so we were interested in, I suppose, pushing it further and showing ways in which it could be relevant to and used in legal practise and legal judgments in particular.
The idea originally came from a group of legal scholars and legal activists, feminist legal scholars and activists, in Canada who had been involved in a project which – called the Women’s Legal Education and Action Fund. And that had been set up when the Canadian Charter of Rights and Freedoms was originally enacted.
And their particular interest was in persuading the Supreme Court or advising the Supreme Court in how the equality guarantees in the Canadian Charter – so the Canadian Charter guarantees rights to equality before and under the law. And LEAF was concerned with the interpretation of that section and Section 15 of the charter and particularly trying to advance a substantive conception of equality, a conception of equality which took into account differences and disadvantages and sought to overcome them. They used to write briefs to intervene in Supreme Court cases that involved the concept of equality.
And they had some initial successes where the court picked up on their arguments. But after a while, they felt that the court had stopped listening to them, perhaps had taken the view that equality or that gender issues were now done. And there wasn’t any relevance to what they were speaking about anymore although they obviously disagreed with that position. And so they hit on the idea of rather – in trying to get the court to pay attention to their arguments, rather than simply writing briefs to intervene in cases, they would show the court how they thought the court should have decided particular cases.
So that’s where the idea of rewriting judgments from a feminist perspective came from. And the Canadian project was focused solely on cases under Section 15 of the charter. But we in the project in England and Wales took the idea of rewriting judgments from a feminist perspective. Imagining that there was a feminist judge on the bench deciding the case, how would they have decided it?
And we applied that to the whole of English law. So we were interested in dealing with cases from any area of law rather than confining ourselves to a particular line of jurisprudence. But that’s where the idea originally came from.
PAUL TROOP
Some theorists, particularly formalists and formalist judges, might say, well, we’re not biased. There’s no scope for bias because the facts are the facts. The law is the law. And we simply apply the law to the facts to find out what the conclusion is. So there’s no scope for bias. And therefore, there’s no reason for having a Feminist Judgments Project to try and address or counter that bias. What might you say to that?
ROSEMARY HUNTER
What I would say to that is that I don’t accept the story of legal objectivity. So law presents itself as strictly objective, as strictly neutral, as unbiased. And it has a method. It has a procedure for doing that, which is to find the facts. Find the law. Apply the law to the facts.
But when you look at it more closely, what you can see is that all of those processes, the finding of the facts, the finding of the law, the application of the law to the facts, rest on a set of background assumptions, choices, distinctions, categorisations that proceed from the world view of a very narrow range of people, the people who have traditionally made the law and the people who have traditionally been the judges. And it appears to be objective because that’s all that they know.
But if you’re an outsider, if you’re someone who’s been traditionally excluded from legal knowledge or legal subjectivity, you can look at the way that the law has been developed and think that doesn’t seem right. That doesn’t include my experience. That’s not objective. That’s the subjective view of a particular group of society.
And so what Feminist Judgments is trying to do is to correct that bias, if you like. So it’s an argument that the way that the law currently operates is not objective but comes from a particular perspective and is trying to broaden out that perspective and include the perspectives of others who have traditionally been excluded from the processes of legal decision making and the processes of developing the law and to make it more inclusive and really applying to all of humanity rather than only a particular section of it.
PAUL TROOP
The American realists were quite notorious for being very sceptical of the things that the judges said and did as being the whole picture. Now, it strikes me that some of the motivations for the Feminist Judgments Project are sympathetic to those ideas to some extent. So would you say that the Feminist Judgment Project is in some ways a type of realism?
ROSEMARY HUNTER
Yes, definitely. Yeah, in fact, I’ve actually written about that in a book chapter on sociolegal methodology when I was asked to write about the Feminist Judgments Project as a form of sociolegal method. And one of the things that I did in that chapter was to show the ways in which the Feminist Judgments Project can be seen to draw on ideas that coming out of American legal realism.
And so certainly, some of the sort of legal scepticism of the realists is something that the Feminist Judgments Projects enact. And as I said earlier, if it’s possible for somebody to produce an equally plausible legal judgment that is written with the same law with the same facts as at the same time as the original judgment, then that demonstrates very powerfully that the original judgment, the original decision, was not inevitable. And so what we learned through the process was that there are a number of ways in which a judge can make their decision appear inevitable and appear to be dictated by the law.
But there are a number of, as I’ve said, a number of choices underlining that, including the way that the facts are described, the way that the level of abstraction or contextualisation that is used, the understanding of how the law should be applied to the particular facts. And they’re all products of choice, yes. So the realist argument that the judicial – the legal reasoning or the judgment that you read conceals as much as it reveals I think is something that Feminist Judgments Projects really demonstrate and follow through on.
PAUL TROOP
Can I ask what you think the key things that a new law student, or student very new to studying law, what’s the most important things they can take from the Feminist Judgments Project?
ROSEMARY HUNTER
Right. Well, I think that I suppose there’s two things. So one is about legal reasoning, about judicial reasoning so, as we’ve mentioned, understanding that the way that judgments are constructed is a construction. And so judges make choices about how they tell the story, how they present the facts, how they describe the law, and how they then apply the law to the facts.
And so what might seem unquestionable and inevitable is not in fact inevitable and often could be done differently. So it’s being aware that the authority and the authoritative voice that is found in judgments can be questioned and can be looked at critically and could possibly have been done differently by someone who was thinking about the issues differently. I suppose I’d want to empower students to be able to have that critical and questioning approach to judgments rather than feeling that they have to accept them as the inevitable conclusion in a particular case.
And then the other thing, I think, is to be aware because people, as, again, as I’ve said earlier, that people have an idea about feminist theory. We can understand feminism. But it’s often hard to see how that might apply to law. And so what the Feminist judgment Project does quite well is to illustrate exactly how feminist thinking can be applied to law and to legal reasoning.
PAUL TROOP
Professor Rosemary Hunter, thank you very much for your time.
ROSEMARY HUNTER
Thanks for the conversation, Paul. I really enjoyed it.
Video 4 Interview with Professor Rosemary Hunter of the Feminist Legal Judgments Project
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2. Read the following questions and summarise your response in the text box below. Explain your thinking as clearly as you can, and, if possible, draw on examples and experiences from your own knowledge.
- To what extent do you think bias is a problem in legal reasoning?
- What, if anything, do you think could be done about it?
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