What difference gender makes to a judge’s decision-making?

Author : Chong Wei Li

Lady Hale said that the values of justice, fairness and equality should be “embedded in our laws” and that should be in relation to “men and women, black and white, gay and straight, the poor and rich”. Everyone, she added, “should feel confident that the law is there for them if they need it”. [1]

Introduction

One of the most memorable contemporary speeches on gender equality is Emma Watson’s address to the United Nations (UN) that discusses the effects of gender stereotypes on men and women and invites men to join the movement toward gender equality. Emma Watson’s use of metaphors for feminism and gender stereotypes supports her advocacy for gender equality but suggests that she is uncomfortable with using “feminism” to describe gender equality because the current idea of the term is dividing and negative.[2] Earlier in her speech, Watson says that ‘fighting for women’s rights has too often become synonymous with man-hating’ and so she critiques that “feminism has become an unpopular word”. However, she concludes that it is not the word that is important, but rather ‘the idea and the ambition behind it’.

This article presents feminism as the foundation for a developing form of a rich, complex, and practical socio-legal scholarship—the lens and the means through which we can approach “Gender, judges and judging”. Therefore, this article would argue that feminism helps us to understand why women in the judiciary really matter. This article will focus on women’s representation in the judiciary and examine what difference gender makes to a judge’s decision-making.

What is Feminism?

Feminism is not a singular body of thought. The word “feminism” means different things to its many supporters (and undoubtedly, to its detractors). For some, it refers to the historic struggle: first to realise the right of women to vote and then to eliminate explicit discrimination against women from the nation’s laws.[3] For others, it is a political movement, the purpose of which is to raise awareness about and overcome past and present oppression faced by women.[4]

Feminist movements could be broken down into 3 waves. The first wave is called liberal feminism which focuses on agency, autonomy and choice. The second moves towards radical feminism and difference feminism. Third wave is represented by intersectional feminism and poststructuralist feminism. For still others, feminism is a philosophy—a system of thought—and a community of belief [5] focusing on attaining social, political, and economic equality for women, men, and people of any gender. A more contemporary understanding of feminism also accounts for multiple genders and gender fluidity. [6]

Thus, “feminism” is both a movement and a mode of inquiry. In its best and most capacious form, feminism embraces justice for all and seeks to ally itself with rights-based movements for people of colour, religious minorities, the poor, immigrants, disabled individuals, refugees, LGBTQ+ people, and other historically marginalized groups.

Radical feminism

In the UK Supreme Court, only 25% of judges are women. Overall, 29% of court judges are women and 71% men in England and Wales.[7] It is worth pointing out that 100% of Court of Appeal judges are male in Northern Ireland. [8] The low representation of women in the judiciary can be linked back to patriarchal structuring of society which has meant women have traditionally been restricted to the private sphere and masculine ideas of justice and reasoning have prevailed in the public sphere. Radical feminism explains women’s inequality as the product of patriarchy, structural domination of women by men, and argues that inequality is political and sexual in nature.[9]

Lady Hale stresses that women judges have been reluctant to ‘claim that they look at things differently from men, partly because it would make them less well qualified to be judges’.[10] Radical feminists would critique that our default image of who the judge is and what he does leads us to treat women judges with suspicion, as a threat to the homogeneous neutrality of the (male) Bench. Catharine Mackinnon argues the law sees and treats women the way men see and treat women.[11] In Anglo-American jurisprudence, morals (value judgments) are deemed separable and separated from politics (power contests), and both from adjudication (interpretation).[12]

Neutrality, including judicial decision making that is dispassionate, impersonal, disinterested, and precedential, is considered desirable and descriptive.[13] Catharine Mackinnon critiques that “the state is male jurisprudentially”, meaning that it adopts the standpoint of male power on the relation between law and society.[14] This image of the judge as objective, neutral, and detached from any particular moral or political leaning reflects a popular understanding of the judicial role. It is submitted that a true “neutrality” in law should not be limited to mere objectivity because morality is relevant to adjudication.[15] As a high-stakes domain, law involves matters of moral substance.

It is mistaken to view women judges as a threat to the neutrality of the Bench. To understand why this is mistaken, we need to be clear about what our judges really do and how they do it. Whether the law is presented as made up of a fixed set of rules which in novel cases run out, at which point the judge must exercise a discretion in setting down a new rule,[16] or as a ‘seamless web’[17] with its content determined only by reference to political morality, on which the views of individual judges will inevitably differ, in neither case is the judge’s role limited to a neutral application of a predetermined set of rules. Lord Hoffmann claims that ‘since all judges are also people, this means that some degree of diversity in their applications of values is inevitable’. [18]

Hence, once one acknowledges that the law does not exist as a preformed set of rules which judges simply discover and apply to the facts at hand, and that on occasions the judge must form her or his own view as to what should happen, it follows that who the judge is matters. Significantly, radical feminism helps to challenge the patriarchal norms of judicial neutrality and asserts that women’s representation is not an obstacle to a judge’s decision-making.

Difference feminism

While radical feminism denounces biological roots of gender difference, difference feminism emphasises the significance to recognise and embrace the differences between men and women. Hence, difference feminism believes that we should do beyond the ideal of gender-neutrality. The suggestion that women judge ‘differently’ to their male colleagues is typically tied to the work of Carol Gilligan[19]. She identified two distinct ‘voices’ or reasoning processes corresponding with men and women. Gilligan suggested that while men tended to reason from an ‘ethic of justice’, prioritising rights, separation, abstraction, hierarchy, autonomy and impartiality, women typically reasoned from an ‘ethic of care’, which prioritised relationships, connection, responsibility, partiality and focused on concrete circumstances. From here Gilligan claims that the ‘women’s voice’ was not deficient (as was assumed by dominant psychological theories) but rather was different to the traditional (masculine) voice.[20] Her purpose was to establish a more complete understanding of moral reasoning which was no longer ‘simply about justice or simply about caring , but about bringing them together to transform the domain’.

Women, Lady Justice Arden notes, ‘bring new perspectives to bear as well as their intellectual skills and knowledge of the law. They have different life experiences. They have in some respects different approaches’.[21] To prove that women judges do and could make a difference on adjudication, we shall examine feminist judgments. Professor Erika Rackley highlighted that the judges in Radmacher (formerly Granatino) v Granatino[22] were divided along gender lines.[23] The majority of the Supreme Court (8–1) was of the view that where the parties have freely entered into a pre-nuptial agreement , it should be given weight because ‘there should be respect for individual autonomy’. [24] Both and only the women judges (i.e. Lady Hale) who heard the case took the view that marriage is not a commercial contract, that the obligations it lays down are not only decided by the parties but also by the state, and that people should only be held to their pre-nuptial agreements where it is fair that they should do so.

Lady Hale’s minority judgement makes explicit the consequences of the majority’s focus on autonomy and the importance of certainty, and the extent to which it allows a couple to ‘bypass . . . the clear stance against discrimination and inequality which the previous case law has established’ so that one person may ‘engage in gender discrimination’ simply on the basis that ‘the other person has consented to the treatment’.[25] Her ‘recontextualization’ of the effects and impact of pre-nuptial agreements on the weaker party, (usually) the (often younger) wife, exposes the assumptions underlying the majority’s approach and the interests this privilege.[26] It is submitted that women and men take different approaches to morality and moral reasoning. Men would emphasise on separation, certainty and autonomy. In contrast, women would focus on connections and relationships.

Intersectional feminism

Significantly, the primacy accorded to efforts to identify the effects of gender on judging not only privileges gender over other identity characteristics which may also influence the judge’s decision-making, but also reduces the woman judge to a single aspect of identity.[27] Thus, intersectional feminism helps us to understand that gender must be thought intersectionality with other identities. Crenshaw is known for the introduction and development of intersectional feminism, the study of how overlapping or intersecting social identities, particularly minority identities, relate to systems and structures of discrimination, domination, or oppression. [28]

Intersectional feminism is different from radical and difference feminisms because it does not reduce women to a single aspect of identity. By adopting intersectionality, anti-essentialist scholars argue that efforts to ‘distil’ a unitary women’s experience risk replacing one unsatisfactory norm (men’s experiences) with another (those of middle-class, white, heterosexual women). Joanne Conaghan argues that women-centredness is potentially as oppressive as the male-dominated discourse it seeks to displace in presupposing a female experience which is unitary rather than variegated.[29] As Sally Kenney asserts, by stripping away race, class, sexual orientation, to drill down to the core of what constitutes sex differences, one inevitably approaches sex as a biological category (one that feminists reject) instead of gender as a social process, a process that is intersectional, not just something that happens to women who are otherwise privileged. [30]

Hence, insofar as gender is one of the factors, we should expect that at least sometimes the different lives and experiences of women and men, attributable to their differences in gender, would lead to differences in their perspectives, values and attitudes.

Women’s Representation in Malaysian Judiciary

In Malaysia, Chief Justice Tan Sri Tengku Maimun Tuan Mat became the first woman to hold the highest position in the judiciary with her promotion on 2 May 2019. On 5 December 2019, Federal Court judge Datuk Rohana Yusuf, 63, became the first woman to be appointed as president of the Court of Appeal, the second highest position in the judiciary. In lauding the new Malaysian judiciary appointments, Women’s Aid Organisation advocacy and communications officer Tan Heang-Lee said the move was a step forward in implementing the United Nations Convention of the Elimination of All Forms of Discrimination Against Women (Cedaw). [31]

Conclusion

It is concluded that feminism as a whole helps us to understand why women in the judiciary really matter. Radical feminism advocates that the default image of who the judge is and what he does (patriarchal norms) should be abolished to attain the true neutrality in law. Thus, women’s representation could reflect a more balanced judiciary with lesser male domination. Difference feminism emphasises the importance to embrace the differences between men and women. Hence, justice could only be achieved when both men and women’s different views on moral reasoning are brought together to transform the domain. Intersectional feminism recognises that women judges’ values and perspectives would also be influenced by other social identities. Hence, gender should be viewed as a social process that is intersectional. The author concludes that more women in the judiciary is desirable as it would ensure a greater gender sensitivity and equality in the adjudication of court cases.

[1] https://www.theguardian.com/law/2019/nov/23/supreme-court-presidents-predicts-gender-parity-in-judiciary-by-2033

[2] https://www.youtube.com/watch?v=c9SUAcNlVQ4

[3] Nancy F. Cott, The Grounding of Modern Feminism (Yale University Press 1987) 19.

[4] Lisa Young, Feminists and Party Politics (UBC Press 2000) 4-5.

[5] Rosemary Hunter, ‘Can Feminist Judges Make a Difference?’ (2008) 15 INT’L J. LEGAL PROF. 7.

[6] D. Richardson, ‘Conceptualising Gender’ in Robinson, V. and Richardson, D. (eds), Introducing Gender and Women's Studies (Palgrave Macmillan 2015) 3-22.

[7] https://www.judiciary.uk/wp-content/uploads/2018/07/judicial-diversity-statistics-2018-1.pdf

[8] https://judiciaryni.uk/about-judiciary/judicial-members

[9] Catharine Mackinnon, ‘Reflections on Sex Equality under Law’ Yale Law Journal (1991) 100(5) 1281-1328.

[10] Brenda Hale, ‘Equality and the Judiciary: Why Should We Want More Women Judges?’ (2001)Public Law, 489-499.

[11] Catharine MacKinnon, Toward a Feminist Theory of the State (Harvard University Press 1989) 308.

[12] ibid.

[13] ibid.

[14] ibid.

[15] Ronald Dworkin, Law’s Empire (Harvard U. Press 1986) 225.

[16] HLA Hart, The Concept of Law (OUP 1961)

[17] Ronald Dworkin, Law’s Empire (Hart Publishing 1986)

[18] Piglowska v Piglowski [1999] 3 All ER 632, p. 644.

[19] Carol Gilligan, In a Different Voice: Psychological Theory and Women's Development (Harvard University Press 1982)

[20] Vanessa Munro, Law and Politics at the Perimeter: Re-Evaluating Key Debates in Feminist Theory (Hart Publishing 2007) 23.

[21] Lady Justice Arden, ‘Diversity in the appointment of Queen’s Counsel and judges: what does the future hold?’ Address to the Chancery Bar Association, London, 12 January 2007.

[22] [2010] UKSC 42

[23] Erika Rackley, Women, judging and the judiciary: From difference to diversity (Routledge 2012) 151-157.

[24] [2010] UKSC 42 [135]

[25] Herring et al, ‘Ante-nuptial agreements: Fairness, Equality and Presumptions’ (2011) Law Quarterly Review pp. 338–339

[26] Nicola Lacey, Unspeakable Subjects: Feminist Essays in Legal and Social Theory (Hart Publishing 1998) 6–7.

[27] Kimberlé Crenshaw, ‘Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color’ (1991) Stanford Law Review , 43, 1241.

[28] Ibid.

[29] Joanne Conaghan, ‘Reassessing the Feminist Theoretical Project in Law’, Journal of Law and Society,

27(3), 2000, 351.

[30] Sally J. Kenny, Gender and Justice: Why Women in the Judiciary Really Matter (Routledge 2013) 1-20.

[31]https://www.nst.com.my/news/nation/2019/12/545619/womens-groups-laud-governments-move-appoint-more-women-judges