The Power of Feminist Judgments?

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.     

Law and the Power of Feminism: How Marriage Lost its Power to Oppress Women

In Feminism and the Power of Law Carol Smart argued that feminists should use non-legal strategies rather than looking to law to bring about women??s liberation. This article seeks to demonstrate that, as far as marriage is concerned, she was right. Statistics and contemporary commentary show how marriage, once the ultimate and only acceptable status for women, has declined in social significance to such an extent that today it is a mere lifestyle choice. This is due to many factors, including the ??sexual revolution?? of the 1960s, improved education and job opportunities for women, and divorce law reform, but the catalyst for change was the feminist critique that called for the abandonment (rather than the reform) of the institution and made the unmarried state possible for women. I conclude that this loss of significance has been more beneficial to British women in terms of the possibility of ??liberation?? than appeals for legal change and recognition, and that we should continue to be wary of looking to law to solve women??s problems.     

A Defining Moment: A Feminist Perspective On The Law of Sexual Harassment in the Workplace in the Light of the Equal Treatment Amendment Directive

This article considers, from a feminist perspective, the introduction of the European Equal Treatment Amendment Directive (E.T.A.D.) and its impact on the law of sexual harassment in the United Kingdom. Since feminists identified sexual harassment as a problem for women in the 1970s, feminist legal scholars have focused their attention on the law as a means of redressing it. Bringing claims in the U.K. has been difficult because of the absence of a definition of sexual harassment and reliance in the Sex Discrimination Act 1975 on a comparator approach. These problems are illustrated by the recent House of Lords decision in Pearce v. Governing Body of Mayfield Secondary School(2003). The failure of the House of Lords in Pearce to understand sexual harassment as an issue of substantive equality for women makes the introduction of the European law all the more the pressing. The author discusses the implications of the changes embodied in the E.T.A.D. in the light of feminist theory. She argues that the changes envisaged constitute welcome developments which will make it easier to remedy workplace sexual harassment. However, it is also likely that problems will remain for women in establishing sexual harassment claims, particularly if concepts of reasonableness and unwelcome behaviour continue to form part of the legal definition. This revised version was published online in July 2006 with corrections to the Cover Date.     

Battered Women’s Experiences of the Criminal Justice System: Decentring the Law

This article takes up Smart??s suggestion to examine the way the law works in practice. It explores the context of current criminal prosecutions of domestic violence offences in Queensland, Australia. This article argues that legal method is applied outside the higher courts or ??judge-oriented?? practice and that the obstacles inherent to legal method can be identified in the practices of police, lower court staff, magistrates and lawyers. This article suggests that it may be difficult to deconstruct legal method, even by focussing on law in practice, and as a result it may be difficult to successfully challenge law??s truth claims in this way. The analysis of criminal prosecutions of domestic violence offences reported here supports Smart??s earlier findings that women and children who seek redress through the criminal justice process find the process at best ambivalent and at worst, destructive. However, the article also shows how, in the Queensland context, women sometimes find their way to feminism and personal empowerment by going to law.     

Promotion of Gender Equality at the Workplace: Gender Mainstreaming and Collective Bargaining in Italy

The article examines gender equality in collective bargaining and looks at the extent to which gender and equal opportunities issues have been mainstreamed in industrial relations systems in Italy where, despite the existence of old and new legislation on gender equality, there are persistently low levels of female employment and the precarious workforce is made up predominantly of women. The central question addressed in the article is whether the injection of a gender mainstreaming approach in the Italian collective bargaining system, combined with legislative measures, may improve the situation of women in the context of both public and private spheres. In particular, the article looks at whether gender mainstreaming has the potential to pave the way towards an ethos of substantive equality at the workplace, whereby women enter the workforce on equal terms and men are in a position to share the dual responsibilities of paid and unpaid work. The article maintains that gender mainstreaming may fulfil its transformative potential as a catalyst for changing both the conceptual and analytical tools which the law deploys, provided it is envisaged as a three-fold strategy involving simultaneous processes of deconstruction, replacement and inclusive measures, together with deliberative forms of democracy and the imposition of a statutory positive duty on public authorities to mainstream equality.

Nurture,Pleasure and Read and Resist!: Abolition Feminist Methodology for a Collective Recovery?

COVID-19 has magnified intersecting inequalities that are central to the functioning of capitalism. At the height of the crisis, the value of an economy based on the exchange of goods and services faded away to expose the importance of care across the public and private spheres. Undervalued and underpaid labour suddenly became critical to the survival of many. Drawing on Abolition Feminism, we argue for the need to seize this revaluation of labour to centre nurture and pleasure within our post-pandemic recovery. We apply an Abolition Feminist framework that conceptualises the prison as part of a network of violence that deflects attention from the root causes of harm. We reflect on the development of our Abolition Feminist web platform, Read and Resist!, a space where theory meets reflection on praxis. We consider how activist strategies within Abolition Feminism may support us in reimagining our relationships with law and justice post-COVID-19.

     

Neighbourly Injuries: Proximity in Tort Law and Virginia Woolf’s Theory of Suffering

2012 marks the 80th anniversary of Donoghue v Stevenson, a case that is frequently cited as the starting-point for a genealogy of negligence. This genealogy starts with the figure of the neighbour, from which, as Jane Stapleton eloquently describes, a ??golden thread?? of vulnerability runs into the present (Stapleton 2004, 135). This essay examines the harms made visible and invisible through the neighbour figure, and compares the law??s framework to Virginia Woolf??s subtle re-imagining and theorisation of responsibility in her novel Mrs. Dalloway (1925). I argue that Woolf critiques and supplements the law??s representations of suffering. Woolf was interested in interpreting harms using a framework of neighbourly responsibility, but was also critical of the kinds of proximities recognised by society. Woolf made new harms visible within a framework of proximity: in this way, we might think of Woolf??s work as theorizing a feminist aesthetic of justice, and as providing an alternate genealogy of responsibility to Donoghue v Stevenson.     

“Comparable Workers” and the Part-Time Workers Regulations

The House of Lords majority decision in Matthews v. Kent and Medway Towns Fire Authority overturns the narrow interpretation given to key aspects of the Part-Time Workers (Protection of Less Favourable Treatment) Regulations’ core comparator mechanism in the lower tribunals and the Court of Appeal. It is a contextually astute judgment, which recognises the reductionist implications of an overly narrow approach to establishing comparability for the purposes of a less favourable treatment claim on the grounds of part-time work. The positive aspect of this decision remains overshadowed, however, by the fact that this interpretation provides little consolation to the large majority of part-time women workers whose disadvantage and inequality remains outside the scope of the Regulations’ protection.     

Sentencing Domestic Homicide Upon Provocation: Still `Getting Away with Murder

Sentencing practices in cases of domestic homicide have been the object of critical scrutiny on previous occasions across a number of jurisdictions. It has been suggested by some that these practices reveal judges to be taking a more lenient approach to women who kill their violent male partners than to men who kill allegedly unfaithful female partners. This note evaluates claims of gender bias in sentencing practices in UK cases of domestic homicide following the Court of Appeal sentencing decision in R. v. Suratan, R. v.Humes and R.v. Wilkinson (Attorney General's Reference No.74, No. 95 and No. 118 of 2002) [2002]E.W.C.A. 2982 concerning three men who killed their female partners. It will argue that in the wake of this decision current proposals to review both the substantive law of provocation and sentencing practices are to be welcomed. This revised version was published online in July 2006 with corrections to the Cover Date.     

Contextualism, Feminism, and a Canadian Woman Judge

Feminist legal scholars have never cut the first woman appointed to the Supreme Court of Canada as much slack as the second. Yet the first, Justice Bertha Wilson, introduced the contextual method into the Court’s jurisprudence. Her approach to contextualism is consistent with one of three feminist legal methods that Katharine T. Bartlett identifies. More specifically, it is consistent with Bartlett’s feminist practical reasoning. However, Justice Wilson’s contextualism is not without its critics. The most challenging, Ruth Colker, contends it must work in conjunction with a distinctive substantive principle. Justice Wilson took a different approach, aligning the contextual method with the constitutional principle of proportionality. Thus construed, this paper argues, contextualism represents a new approach to feminist judging.

Feminism and the Technological Age

Abstract

Feminism advocates for the inclusion of women within the modern economy, but this has implicated feminism in a hyper-capitalist and instrumental mode of organising social life. Feminism has helped to legitimise the ubiquitous reach of this regime into all areas of social life, even parenting. Feminism can learn from Heidegger's proposition that in questioning modern technology we may open up a way of coming into a free relationship with it—to be open to the divinity of living beings and things. Jessica Benjamin's account of the relationship between the mother and her infant in terms of intersubjectivity seems to fit Heidegger's proposition for it highlights a dynamic and receptive exchange between two unique living beings. The question for feminism at this time is: how can it own its complicity with modern technology while opening up its distinctive contribution to finding a way of coming into a free relationship with it?     

Australian Women's History

Living Feminism: the impact of the Women's Liberation Movement on three generations of Australian women CHILLA BULBECK, 1997 Melbourne: Cambridge University Press. xxii + 279 pp., A$29.95, ISBN 9 780521 465960     

Gender and colonialism: Women's organisation under the Raj

The popular media have recently born witness to a renewed interest in India under British rule. This article examines the portrayal of Indian liberation struggles in two of the more serious expositions, The Jewel in the Crown and Gandhi, questioning the political implications of this portrayal. It shows that they both neglect the crucial role played by women in the maintenance and demise of the Raj. We argue that women's contribution was so significant that its omission constitutes a misrepresentation of history that can fairly be termed revisionist. We suggest that the reason for this process of mystification lies in the relevance of India's fight for national liberation and sexual equality in the early twentieth century, to present day struggles against imperialism and male domination, which are two of the most explosive issues affecting the modern Western world.     

Feminists and femininity: A case-study of WSPU propaganda and local response at a Scottish by-election

This article examines the attitudes towards femininity expressed by the WSPU speakers at the 1907 Aberdeen by-election and the response these attitudes elicited from Aberdonians. Although the evidence suggests that a majority of the local population accepted the WSPU's demand for votes (for tax-paying women only) on the grounds of equality, the WSPU felt a need to emphasize the expediency of its proposal. In order to argue that such an extension of the franchise would benefit all women WSPU speakers emphasized the priority of sex over all other social divisions but deliberately accepted the specific differences assumed in popular concepts of ‘femininity’ rather than drawing attention to the male ideology and social institutions in which such definitions originated. Some of the imputed feminine attributes which led Aberdeen men and women of all classes to accept the popular stereotype of domestic woman are examined, as are the difficulties the WSPU encountered because its campaigning activities clashed with its own concept of woman, a difficulty shared by other women's association in Aberdeen.     

Notes on the Perfect

This article argues that at a point in time when feminism (in a variety of its forms) has re-entered political culture and civil society, there is, as though to hold this threat of new feminism at bay, an amplification of control of women, mostly by corporeal means, so as to ensure the maintenance of existing power relations. However the importance of ensuring male dominance is carefully disguised through the dispositif which takes the form of feminine self-regulation. The ‘perfect’ emerges as a horizon of expectation, through which young women are persuaded to seek self-definition. Feminism, at the same time, is made compatible with an individualising project and is also made to fit with the idea of competition. With competition as a key component of contemporary neoliberalism, (pace Foucault) the article construes the violent underpinnings of the perfect, arguing that it acts to stifle the possibility of an expansive feminist movement. It recaptures dissenting voices by legitimating and giving space in popular culture to a relatively manicured and celebrity-driven idea of imperfection or ‘failure’.     

Domestic Violence and the Gendered Law of Self-Defence in France: The Case of Jacqueline Sauvage

Legal responses to battered women who kill have long animated scholarly debate and law reform activity. In September 2012 after 47 years of alleged abuse, Frenchwoman Jacqueline Sauvage fatally shot her abusive husband three times in the back. The subsequent contested trial, conviction for murder, unsuccessful appeal and later presidential pardon of Sauvage thrust the French law of self-defence into the spotlight. The Sauvage case raises important questions surrounding the adequacy of the French criminal law in this area, the ongoing proliferation of gendered stereotypes in law and the need for reform. In the wake of the Sauvage case, this article provides a timely analysis of the gendered law of self-defence in France. Drawing from an in-depth analysis of the judgments imposed in the Sauvage case, this article examines the adequacy of French legal responses to battered women who kill and ignites an argument for further law reform.     

Supporting the underdog: feminism,animal rights and citizenship in the work of Alice Morgan Wright and Edith Goode

Abstract

In this article, the author examines the overlap between feminism and animal causes, particularly through the lives of two women, the sculptor, Alice Morgan Wright (1881-1975), and her friend, Edith Goode (1882-1970). Feminism and animal causes had connections in the late nineteenth century, particularly in campaigns to abolish vivisection. Wright and Goode held to these politics throughout their lives, and were ‘precursors of a generation yet to come’ who would argue the connections – as many ecofeminists do today. Both women were involved in suffrage campaigns, and continued to be involved in women's organisations such as the National Woman's Party. They were, however, opposed to all injustice, including human mistreatment of animals. Feminism was, to Wright and Goode, part of a wider set of problems; animal cruelty reflected a greater barbarism leading to mistreatment of humans. Accordingly, they actively campaigned for legislation to protect animals and the environment, and lobbied the fledgling United Nations to include such measures. That challenge to the United Nations represented a unique attempt to bring animals into citizenship' a move being made again today, through initiatives such as the Great Ape Project.     

Transsexuality in Contemporary Iran: Legal and Social Misrecognition

Sex change surgery has been practised in Iran under Ayatollah Khomeini’s fatwa in 1982. Therefore, a medical and judicial process of transition has been regulated accordingly. However, this has not resulted in either the legalization of sex change surgery, nor in the recognition of transsexual identity within Iranian substantive law. Sex change surgery is allowed through Islamic law, rather than substantive law, in response to the existing social facts and norms, on the one hand, and structural cooperation with medical system, on the other. In this article, I argue that the Iranian heteronormative law’s understanding of transsexuality has amounted to the misrecognition of trans persons’ status within law and society. Using semi structured interviews, intersectional content analysis, and feminist methodologies, the findings indicate that transsexual bodies have gained meaning through religious and medical discourses within a framework of power relations, and that Iranian transsexual persons have reconstructed and redefined gender and gender relations in a way that informs their understanding of gender and sexuality beyond the existing Islamic legal and social norms. Moreover, intersectional analysis of the interviews demonstrates how the legal misrecognition of transsexuality creates space for a discourse which in itself leads to the misrecognition of other gendered identities, such as homosexuals and transwomen.