About the Feminist Judgments Project
What if a group of feminist scholars were to write the 'missing' feminist judgment in key cases? Could they put theory into practice, in judgment form? What would these judgments look like? What impact would they have?
In recent years in the UK there has been considerable debate and policy development on the issue of judicial diversity. Questions have been asked about the possible impact of more women judges and, in particular, how the introduction of women's lived experience and feminist theoretical perspectives might affect the development of the common law and the interpretation of key statutes.
The Feminist Judgments Project represents a timely, dynamic and innovative next step in this debate. The Project is a unique, imaginative collaboration in which a group of feminist socio-legal scholars have written alternative feminist judgments in significant English legal cases. Rather than simply critiquing existing judgments, the participants have engaged in a practical, 'real world' exercise of judgment-writing, subject to the various constraints that bind appellate judges, including consideration of the extent to which, and the form in which, a judge's political commitments and social experience may or may not be introduced into her decision-making. The project aimed to inaugurate a new form of critical socio-legal scholarship, one which seeks to demonstrate in a sustained and disciplined way how judgments could have been written and cases could have been decided differently.
Who are we?
The Feminist Judgments Project involves over 50 academics, activists, and members of the legal profession. The judgment writers, commentators and discussants represent a broad cross-section of UK feminist socio-legal scholars, ranging from leading experts in their fields to postgraduate and early career researchers, as well as practising lawyers, members of women's NGOs and feminist advocacy/campaign groups. Follow the links on the left to find out more about the people involved in the project.
Where did we get the idea from?
The idea for the project was sparked by a similar venture in Canada - the Women's Court of Canada (WCC) . A number of feminist scholars have been engaged in writing 'shadow' judgments of Canadian Supreme Court decisions on section 15 of the Canadian Charter of Rights and Freedoms (the equality clause), with the aim of showing how the concept of substantive equality can be given practical, judicial expression. The first six judgments were published in volume 18 of the Canadian Journal of Women and Law, some of which are also available from the TheCourt.ca website.. There have also been two US publications in which leading scholars have been invited to write their own judgments in the landmark constitutional cases of Brown v Board of Education and Roe v Wade.
Why feminist judgments?
By writing feminist judgments we are seeking to highlight and challenge the often unarticulated biases of the actual judgments in the chosen cases and the values underpinning the common law more generally. As such, the Project provides a novel approach to questions of the social, political and economic influences on law. It also contributes to thinking about the social impact of law. If legal decisions are more reflective of women's (diverse) lives and experiences, what might be the implications for public sector resourcing, private and commercial relationships, feminist law reform efforts, or other social justice claimants?
The purposes of the Feminist Judgments Project are:
- To demonstrate that the judgments in key legal cases could have been written differently, and that the cases could have been decided differently; the decisions were not inevitable
- To demonstrate how feminist theoretical concerns can be successfully incorporated into legal judgments; that feminism and judging are not incompatible
- To demonstrate what the results of appointing a more diverse judiciary might be on the outcomes of cases and/or on the way judgments are written
- To provide a resource of ideas and approaches to legal questions that may be drawn upon by lawyers, women's advocates, judges, legal educators, students, Law Commissioners, legal policy makers, feminist and other critical scholars in their work
The Feminist Judgments Project includes 23 cases. These involve a diverse range of issues and topics including:
- Paradigmatically 'feminist' cases dealing with subject-matter of immediate concern to many women's lives, such as reproduction, residence and contact with children, workplace discrimination and domestic violence;
- Some causes célèbres for feminist activism in law, such as R v A involving sexual history evidence in rape trials;
- Cases of historical significance, in which a feminist judgment might have dramatically changed the nature of law in key fields;
- Cases that do not deal specifically with 'women's issues', but which address significant financial concerns and are thus central to how resources are allocated in society;
- Cases reflecting intersectional issues of gender, ethnicity, sexuality and religion.
For more information about the cases chosen follow the link on the left hand side of this page.
We decided to confine the Feminist Judgments Project to cases decided by courts in England and Wales in order to focus on a single body of statute and common law (where Scots and Northern Irish law may differ), and a specific method of decision-making (from which the practices of the European Court of Justice and European Court of Human Rights would diverge). However, we hope that these courts will receive similar attention (by us or others) in the future.
What is the outcome?
The feminist judgments have been published in an edited collection, Feminist Judgments: From Theory to Practice. Each judgment is preceded by a commentary written by a different author. The commentaries introduce the case for the non-specialist reader, explaining its significance and placing it in its legal and policy context. The collection also includes a comprehensive introduction drawing out the common themes from the judgments and policy implications of the project, and two methodological papers concerning the writing of feminist judgments. The book was published by Hart Publishing in September 2010.
We also plan to hold an end-of-project conference in May 2011 where the judgments and their implications will be discussed.