Women in the Judiciary

Ulrike Schultz, Gisela Shaw

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781135707477
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Does gender matter in judging? And if so, in what way? Why were there so few women judges only two or three decades ago, and why are there so many now in most countries of the Western world? How do women judges experience their work in a previously male-dominated environment? What are their professional careers? How do they organise and live their lives? And, finally and most notably: do women judge differently from men (or even better)? These are the questions dealt with in this collection of contributions by seven authors from six countries (UK, Australia, USA, Canada, Syria and Argentina), contrasting views from common law and civil law countries. In spite of differences in the two legal systems, as well as greater gender diversity on the bench and the overall higher income and prestige enjoyed by judges in common law countries, women judges in all these countries – Syria included – share many problems. Diverse and intriguing facets are added to a debate that started thirty years ago but continues to leave ample space for further discussion.

This book was originally published as a special issue of International Journal of the Legal Profession

INTRODUCTION

Gender and Judging

Does gender matter in judging? And if so, in what way? Who are the women judges? How did they get into office? How do they organise and live their lives? What are their professional careers? What constitutes a good judge? And finally: do women judge differently from men (or even better)?¹ These are the questions which a Collaborative Research Network (CRN) of the Law and Society Association (LSA) on ‘Gender and Judging’ has put on its agenda.

Work started in 2006 at the LSA Conference in Baltimore, and has since been continued vigorously at a number of major subsequent events: a conference for women lawyers in Latin America organised by Beatriz Kohen in Buenos Aires in April 2007; the international socio-legal conference in Berlin in July in 2008 organised jointly by the LSA, the Research Committee on Sociology of Law (RCSL) and national sociolegal organisations (where five panels presented a total of 18 papers); the LSA conference in Montreal in May 2008; the meeting of the Working Group for the Comparative Study of Legal Professions in Berder, France, in June 2008; the RCSL Conference in Milano in July 2008, a special workshop on gender and judging at the International Institute for the Sociology of Law in Oñati, Spain, in June 2009², the meeting of the Legal Profession Group in Paris in 2010 and several panels at the LSA conferences in Denver 2009, Chicago 2010 and San Francisco 2011. In short, ‘Gender and Judging’ has emerged as an issue of considerable and lasting interest to socio-legal scholars.

The ‘Gender and Judging’ project, a truly international venture with contributors from around the world, builds on work of the Women and Gender in the Legal Profession Group (a sub-group of the RCSL Working Group on Legal Professions). This Group was established in 1994 and can, by now, point to a range of publications, most prominently the collection Women in the World Legal Professions³ and a special issue of this journal⁴. In addition, many articles in books and journals have been inspired by the work of the group.

The CRN on ‘Gender and Judging’ focuses on the following areas:

•  gender aspects of judicial education and training

•  gender aspects of selection and careers

•  women judges at work (job satisfaction, stress, coping strategies)

•  gendered construction of judges in the media

•  gendered judging

•  judging in family courts

•  gendered communication in the courtroom

•  female judicial leaders (eminent women judges, first women judges, the pioneers)

In keeping with its international character, the project adopts a comparative perspective (including a historical dimension) with the aim of identifying any differences between the way in which women and men approach and conduct their judicial work, as well as between the impact of their gender and work on the judicial system. In this book, which is the first collection of articles on ‘Gender and Judging’, all the issues listed above are addressed in some form, be it merely in passing or in greater depth. Common to all contributions is the central question: do women judges judge differently from men judges? Do women judges add a different voice? This was a question first raised in the 1990s under the influence of ‘difference feminism’⁵ and today remaining as topical as ever.

Four contributions deal with women judges in common law countries (UK, Australia, USA), two with women judges in a civil law system (Argentina and Syria), and another with women judges and dissenting opinions in a mixed jurisdiction (Canada), although dissenting opinions are rather more a feature of common law than civil law systems.

In comparing developments regarding women judges in different countries, it is important to keep in mind a number of relevant fundamental differences between civil law and common law systems. In civil law countries, a judicial career is one of a number of separate career paths open to law graduates, which means that judges start their careers at the age of between twenty-five and thirty-five. As they are public servants, entry later in life is, as a rule, not possible, and formal qualifications are crucial to access to the judiciary. By contrast, in common law countries, judges are chosen from among experienced legal practitioners, the key criterion being professional achievement.

In the two legal systems, the very process of judicial decision-making is governed by contrasting ideologies. In civil law countries, judges pass judgments in the name of the state or the people as anonymous interpreters of the law and representatives of state power. Judges in common law countries have more discretion in the process of finding the law by ‘distinguishing’ the case from precedents. They ‘make the law’. The judgment is therefore more closely connected to their personality, and the reasoning in the decision will be more often scrutinized and criticized with a view to their personal character and background, i.e. financial status, political affiliation, life experience as a man or woman, religious belief, sexual orientation, ethnicity and personal qualities.

In common law countries, the judiciary commands a higher social status as well as higher incomes, than in the civil law world. Both factors may work as hidden mechanisms to keep women out or hinder them from getting in. In civil law countries it is easier for women to enter the judiciary, as key access criteria for judicial office, such as formal qualification and examination results, are more rational and transparent and therefore more easily met by women than those in the common law world, where professional visibility, favourable evaluations of professional achievement, and access to – traditionally male – networks are of crucial weight. The increase in the number of women in the judiciary in civil law countries therefore happened about two decades earlier than in common law countries, and more of them have by now reached career positions. On the other hand, the question remains whether an increase in the proportion of women in the judiciary may not actually contribute to a lowering of judicial prestige and income, as women traditionally have not been associated with perceptions of personal importance and the role of breadwinner of the family. Possible developments will have to be watched closely.

All of these differences explain why problems of women’s access to judicial careers have been more frequently analyzed and discussed in the common law than in the civil law world. One important further reason is that the civil law ideology of judicial objectivity, of the neutral judge applying the law in strict compliance with formalised rules, makes it almost a taboo to discuss influences of gender on judging in civil law countries. Yet, the subject is equally important, and there are, of course, shared problems.

Common law countries represented in this collection are more familiar with issues of diversity. The colonial past, multi-cultural societies and migration have created diversity on the bench earlier and more visibly than in most civil law countries. This adds to the differences in perception of the issue at stake. The intersection of gender with another of the above mentioned qualities or with biographical features (religion, sexual orientation, age, ethnicity) may have led to a more intense experience of discrimination on the part of judges in the common law world as well as of their clients. So-called intersectional discrimination in the European Union is an important issue for anti-discrimination policies.

What makes a judge a feminist judge? Do feminist judges make a difference? What can women expect from feminist judges? These are the fundamental questions addressed by Rosemary Hunter. Do feminist judges (which may well include men) by definition practise feminist judging, i.e. introduce women’s perspectives and experiences, a conscious pro-care agenda; or are they more likely to adapt to the system or to be transformed by it? Rosemary Hunter identifies four major aspects of judging where feminist judges may differ from others:

•  court process

•  case outcome

•  reasons given for a decision

•  ‘extra-curricular’ activities.

She concludes ‘that while it is unrealistic to make generalisations or to impose demands upon women judges as a whole, feminist judges both can and ought to make a difference’.

Baroness Hale, the first female Law Lord in the UK, describing herself as ‘just a bit different’, is convinced that difference on the bench ‘subtly changes and ultimately improves the judicial product’. Erika Rackley uses the House of Lords’ decision in Secretary of State for the Home Department v K(FC); Fornah (FC) v Secretary of State for the Home Department [2006] as ‘a lens through which to explore the “difference” of the woman judge and, in particular, the developing jurisprudence of Baroness Hale’. The case, involving a claim for asylum based on danger of female mutilation in the home country, demonstrates that Baroness Hale brings to bear a better understanding of life realities and legal problems encountered by women on account of their sexuality than her male colleagues. Erika Rackley concludes however that the mere suggestion of difference in the context of adjudication remains contentious, and she rejects the ‘different voice’ as a dangerous myth. Acknowledging that women on the bench are an irritant disrupting established patterns of masculinity, she considers diversity on the bench as important because it attracts the best, facilitates a better chance of understanding problems facing people, and thereby creates greater public confidence in the judiciary.

Reg Graycar, drawing on her experience as a barrister, takes a deep and critical look at the consequences of diversity on the bench and at how otherness may colour a judgment. She warns that we need to pay careful attention to what judges know about the world, how the things they know translate into activities as judges. Giving examples of cases from various common law countries, she analyses how the concepts of bias, partiality and perspective are connected via notions of ‘otherness’ to outsider judges and ‘other’ legal decision makers.

An important source of differing opinions between women and men are dissenting and concurring votes in judicial judgments. This provides the focus for the contribution of Marie-Claire Belleau and Rebecca Johnson, with special reference to the Supreme Court of Canada. Belleau and Johnson have kept careful track of female dissenters over the years, concluding that dissenting and even concurring votes (i. e. dissenting opinions but final consent) were much more frequent among women than among men. However, in recent years the number of such votes has declined, giving rise to speculation and discussion as to whether key issues in the context of women’s rights have now been settled. Is there less need now to break with traditions? Have women adapted more to a general norm? Do they, in times of unrest, feel more strongly in need of unanimity among judges of both sexes?

Interesting insights on this question may derive from research by Bryna Bogoch from Israel⁶ who has analysed judgments published in legal databases. She not only found that decisions by women are underrepresented in the databases but also that women’s decisions are significantly longer. Is it because they differ in their arguments? Or do they want to explain their reasoning in more detail to the parties?

Sally Kenney analyses the literature on women judges by political scientists over the past decades in the US, arguing that ‘carefully examining the body of work of three pioneering scholars, Beverly Blair Cook, Elaine Martin, and Sue Davis, yields insights beyond the particular subject matter and helps us to understand sex and gender more generally’. One suggestion is that we should understand gender as producing tendencies among generational cohorts rather than trying to identify essential sex differences. Differences in entry and career can be related to sex, but sex differences will not necessarily lead to different judgments giving gendered views, and judges in general influence others but not in a gendered and predictable way.

Finally, Monique Cardinal and Beatriz Kohen deal with questions of gender in the judiciary of civil law countries. Both show that, although in these countries there is awareness that they cannot waste the competence of their well-educated women; the problems faced by women keen on a judicial career are comparable to those of their sisters in the Western world.

Monique Cardinal, on the basis of comprehensive empirical research on women and the judiciary in Syria (where the first female judge was appointed in 1975), describes the appointment process, training and judicial career path, making a valuable contribution to our limited knowledge of the role and place of women lawyers in a Muslim Arab country.

Beatriz Kohen sets out to find answers to the question whether the participation of women changes the judiciary. She does so by empirical research on gender differences in the values and attitudes of family judges in the City of Buenos Aires using Gilligan’s ethic of care approach. She explores how men and women judges perceive their office, how they imagine the ‘ideal’ judge, what their motivation is to become a judge, and how they assess the special contribution of women judges to the judiciary. Judges of both sexes do identify differences. She herself finds that women tend to apply a more inter disciplinary approach to reaching a decision, not only relying on their professional techniques but integrating to a greater extent social workers and other family experts in their work. However, she, too, concludes (concurring with her fellow authors) that, overall, there is no evidence of clear-cut gender-based differences.

These articles add diverse and fascinating contributions to a debate that started thirty years ago but leaves ample space for further discussion.

Ulrike Schultz & Gisela Shaw

September 2008                      

Notes

1  Cf. Ulrike Schultz, Richten Richterinnen richtiger? In Frauenbilder. Ed. by Ulrike Schultz for the Northrhine-Westfalian Ministery of Health, Social Matters, Women and Family, Düsseldorf, 2005, 117 – 126

2  Organisers: Sally Kenney (USA), Ulrike Schultz (Germany), Gisela Shaw (UK) ed. by Ulrike Schultz and Gisela Shaw, Oxford: Hart, 2003

3  Women in the Legal Profession, in IJLP vol. 10, no. 2, July 2003

4  About the notion of different voice: Gilligan, Carol, 1982. In a Different Voice. Cambridge, Mass: Harvard University Press

5  Still unpublished work, presented at the LSA Conference in Montreal in May 2008

Can feminist judges make a difference?

ROSEMARY HUNTER

Kent Law School, University of Kent, Canterbury, UK

ABSTRACT Many of the expectations and aspirations about the ‘difference’ that women judges would make have proved unrealistic, given the inevitable diversity and often conservatism of women appointed as judges. On the other hand, we might reasonably expect feminist judges to ‘make a difference’. This essay focuses on feminist judges, and seeks to identify what it is that we might reasonably expect of them. This in turn requires consideration of who counts as a feminist judge, what might be included in a feminist approach to judging, and what institutional norms inherent within the judicial role might constrain the adoption of a feminist approach. The essay concludes that feminist judges both can and ought to...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• 1. Introduction
• 2. Can feminist judges make a difference?
• 3. What a difference difference makes: gendered harms and judicial diversity
• 4. Judging gender: difference and dissent at the Supreme Court of Canada
• 5. Gender, race, bias and perspective: OR how otherness colours your judgment
• 6. Thinking about gender and judging
• 7. Family judges in the city of Buenos Aires: a view from within
• 8. Women and the judiciary in Syria: appointments process, training and career paths
• Index