What difference would it make if a judge’s feminist values and perspectives were included in their decision-making?
Can judges be feminists? Should judges be feminists? On one view the answer is easy: no. We don’t want our judges to be activists. We don’t want them to promote their own political agendas. We want them to do their job. We want them to apply the law.
So, given that judges will, sometimes, have no choice but to fall back on their own values and perspectives, why shouldn’t feminist values and perspectives be included? And if they were, what difference might this make to the law and the way cases are decided?
The Feminist Judgments Project offers a vision as to what the law might look like if there were (more) feminist judges, and in doing so, challenges our thinking about law and judging. More than 50 academics, practitioners and activists have come together to produce 23 alternative feminist judgments in a series of key cases in English law.
In R v A (No 2)  UKHL 25, for example, instead of rules restricting the use of sexual history evidence in rape trials being overturned by an all-male House of Lords (itself the subject of a legal challenge by the Fawcett Society), the feminist judgment by Clare McGlynn upholds the restrictions, challenging the assumption at the heart of the case: that a woman who has agreed to have sex with a particular man is – simply by virtue of that fact – more likely to do so again at another time.
Other cases include Attorney-General for Jersey v Holley  UKPC 23 in which Susan Edwards dissents from the majority of the Privy Council. She argues that the defence of provocation should be sensitive to the specific circumstances and capacities of the defendant, which would go some way to redressing the law’s inadequate treatment of women who kill their abusive partners. In Evans v Amicus Healthcare Ltd  3 All ER 1025 Sonia Harris-Short holds that, contrary to the court of appeal judgment, Natalie Evans should have been allowed to use frozen embryos stored prior to her treatment for ovarian cancer – her only chance to have a genetically related child – despite her former partner’s objections.
While many of the feminist judgments argue for different results, others reach the same conclusions but for different reasons, highlighting details of women’s lives and raising argument that the courts overlooked. In some cases, they reveal different feminist views on a particular issue. Alison Diduck’s judgment in Re G (Children) (Residence: Same Sex Partner)  UKHL 43 is a case in point. Although she finds much to agree with in Baroness Hale’s leading opinion – itself perhaps an example of a feminist judgment – Diduck rejects Hale’s attempt to treat the former lesbian partners in the same way as a heterosexual couple. She argues that it obscures specific difficulties faced by same-sex parents.
The feminist judgments reveal the extent to which cases could – and should – have been decided differently, while remaining within the same legal and constitutional constraints that bind appellate judges. These are all decisions the courts could legitimately have reached. The important point is that cases such as these can only be decided by the application of a set of values – whether feminist or other.
As Baroness Hale writes in her foreword to the collection, reading the judgments ‘ought to be a chastening experience for any judge who believes himself or herself to be both true to their judicial oath and a neutral observer of the world’.
Moreover, the judgments help us see how the incorporation of viewpoints and perspectives from sections of society which remain under-represented on the bench might improve the quality of judicial decision-making.
The book Feminist Judgments: From Theory to Practice (edited by Rosemary Hunter, Clare McGlynn and Erika Rackley) is published by Hart Publishing. The Feminist Judgments Project was funded by the ESRC.
This article was originally published on the Guardian Law pages 11 November 2010 and is reproduced with permission and thanks.
An abridged version of Clare McGlynn’s feminist judgment in the rape case R v A can be found here.