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The Power of Feminist Judgments?

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Abstract

Recent years have seen the advent of two feminist judgment-writing projects, the Women’s Court of Canada, and the Feminist Judgments Project in England. This article analyses these projects in light of Carol Smart’s feminist critique of law and legal reform and her proposed feminist strategies in Feminism and the Power of Law (1989). At the same time, it reflects on Smart’s arguments 20 years after their first publication and considers the extent to which feminist judgment-writing projects may reinforce or trouble her conclusions. It argues that both of these results are discernible—that while some of Smart’s contentions have proved to be unsustainable, others remain salient and have both inspired and hold important cautions for feminist judgment-writing projects.

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Notes

  1. See the LEAF website: http://www.leaf.ca (accessed 25 November 2010).

  2. http://www.leaf.ca/about/index.html#target (accessed 25 November 2010).

  3. See WCC website: http://womenscourt.ca/ (accessed 25 November 2010).

  4. See also the FJP website: http://www.feministjudgments.org.uk (accessed 25 November 2010).

  5. Five of the six cases reconsidered by the WCC were decided by benches of judges including Justice Claire L’Heureux-Dubé—not a self-declared feminist, but one often claimed as a feminist judge. One of the cases also included another reputed feminist judge, Justice Louise Arbour. In three of the cases the WCC judgment disagreed with the conclusion of Justice L’Heureux-Dubé, while in two cases the WCC judgment agreed with the dissenting opinions of Justices L’Heureux-Dubé and Arbour but did so for different reasons.

  6. Note, however, that Smart takes issue with what she perceives to be the defeatism of Mossman’s argument, contending that it is important to stress not feminism’s powerlessness in the face of legal method, but feminism’s power to challenge and resist law in other ways, as discussed below.

  7. For example, one of the feminist judges in the FJP ultimately concluded that it was impossible to interpret the Sex Discrimination Act 1975 in the way that she had initially envisaged to incorporate a more substantive understanding of discrimination: see McColgan (2010).

  8. Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266. For an Australian feminist decision on this point, see McMurdo P in Melchior v Cattanach [2001] QCA 246.

  9. Yemshaw v London Borough of Hounslow [2011] UKSC 3.

  10. Moge v Moge [1992] 3 SCR 813.

  11. R v Ewanchuk [1999] 1 SCR 330.

  12. Van Gervan v Fenton (1992) 125 CLR 327.

  13. Giller v Procopets [2008] VSCA 236.

  14. Well-known dissents include Justice L’Heureux-Dubé in R v Seaboyer [1991] 2 SCR 577 concerning the admissibility of sexual history evidence; Justice Ginsburg in Gonzales v Carhart [2007] 127 SCt 1610 on the Constitutional validity of a legislative ban on ‘partial birth’ abortions, and in Ledbetter v Goodyear Tire & Rubber Co [2007] 127 SCt 2162 concerning the applicant’s ability to bring her equal pay claim; and very recently, Lady Hale in Radmacher v Granatino [2010] UKSC 42 concerning the status of pre-nuptial agreements in post-divorce property division in English law.

  15. Evans v Amicus Healthcare Ltd: see Hunter et al. (2010a, 59–82).

  16. Attorney-General for Jersey v Holley: see Hunter et al. (2010a, 292–307).

  17. Re L (A Child) (Contact: Domestic Violence): see Hunter et al. (2010a, 114–133).

  18. Sheffield City Council v E: see Hunter et al. (2010a, 346–362).

  19. R v Brown: see Hunter et al. (2010a, 241–254).

  20. R (Begum) v Governors of Denbigh High School: see Hunter et al. (2010a, 329–345).

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  1. Kent Law School, University of Kent, Canterbury, CT2 7NS, UK

    Rosemary Hunter

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Correspondence to Rosemary Hunter.

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Hunter, R. The Power of Feminist Judgments?. Fem Leg Stud 20, 135–148 (2012). https://doi.org/10.1007/s10691-012-9202-0

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