Reviewed by: Joshua Rozenberg
Author: Rosemary Hunter, Clare McGlynn and Erika Rackley
Publisher: Hart Publishing
Is it possible to be both a judge and a feminist? That’s the intriguing question posed by Baroness Hale in her foreword to a fascinating new book, Feminist Judgments from Theory to Practice.
Hale is, of course, the UK’s most senior woman judge. She also believes herself to be a feminist. But she found it a ‘chastening experience’ to read the book, edited by three feminist legal academics. As she notes ruefully: ‘"Could do better" is the mark which some of the authors have given to my own best efforts.’
What’s unique about Feminist Judgments is that it does not merely criticise self-proclaimed feminist judges for not being feminist enough. It actually provides the missing judgments that the authors think a feminist judge might have written in more than 20 leading cases from England and Wales.
Crucially, the authors have attempted to write rulings based on the law at the time each case was heard. The publishers have even printed the fictitious judgments using contemporary typography.
Three things stand out, says Hale: ‘First, it is remarkable how plausible they mostly are, not only as judicial writing but also as examples of how a different judgment might properly have been written in that case and at that time.
‘Second, it makes such a difference how the story is told. Feminist judges will take different facts from the mass of detail to tell the story in a different way.
‘The third is context. Feminist judges will set the story in a different context, a context which they understand but others may not.’
Perhaps that explains why Hale was the sole dissenter in Radmacher v Granatino last week, a case in which the majority of the Supreme Court judges overturned Hale’s ruling in an earlier case involving pre-nups.
Why, though, were some of Hale’s other judgments marked down by members of the feminist judgments project? In a revealing answer, she admits that there were cases where she would have loved to have gone the extra mile: ‘Sometimes I did not because it was more important to reach the same result by a route with which the whole court could agree. Sometimes I did not because of the huge practical implications, which might actually imperil the decision if they were exposed.’
At a recent seminar marking the first anniversary of the Supreme Court, Hale delivered a paper in which she explained that one justification for drafting a judgment of her own – rather than simply concurring – was that she could add a ‘distinctive personality’. She gave the example of EM (Lebanon) v Home Secretary, decided two years ago. The law lords held that the removal of a Lebanese asylum seeker and her 12-year-old son to Lebanon would breach article 8 of the Human Rights convention – respect for family life – because the mother would then have had to transfer custody of her son to his violent, absent father. Hale had chosen to view the case from the child’s point of view rather than that of the mother.
This is also one of the cases considered in Feminist Judgments. Imagining herself to have been the sixth member of the law lords’ panel, Karon Monaghan QC says she would have concurred with their decision in favour of the mother and her son. No surprise there. But Monaghan says that to have decided the case on the basis of respect for family life would be to ignore what she regards as the central feature of the case – that to send the mother back to Lebanon would be to deny her equality as a woman under article 14, which limits discrimination.
Gender equality, says Monaghan, has now achieved the status of a peremptory norm – a fundamental right – that must be protected by all courts in all jurisdictions. The English courts should uphold that right, she argues, even though inequality in Lebanese family law derives from sharia principles.
But this would mean that no female asylum-seeker would ever be returned to a Muslim country. Each judgment in the book is assessed by another feminist scholar and Judy Walsh is right to question the implications of Monaghan’s law.
In some cases, a feminist judge would have reached a different result. Ten years ago, the Court of Appeal decided that it would be lawful for surgeons to separate the two conjoined twins known at the time as Jodie and Mary. As a result, Mary died and Jodie survived. Without separation, both girls would have died within months.
But that would have been in their best interests, according to Geraldine Hastings, a lecturer in physiotherapy. There was ‘legitimacy in conjoinity’.
Room for one more case; and it’s gay marriage. In 2003, Susan Wilkinson and Celia Kitzinger were legally married in Canada. In 2006, the president of the High Court family division refused to recognise their marriage as valid under English law. Sir Mark Potter decided instead that the Civil Partnership Act 2004 was sufficient to avoid any breach of the human rights convention.
But Rosie Harding, a law lecturer, would have ruled that English law was incompatible with the convention. That view is supported by Monaghan, who argued for it in the High Court. Indeed, she would go further and argue that civil partnerships should be open to couples of different sexes. She tells us that there are ‘many straight, feminist women who eschew marriage because of its patriarchal and misogynist… connotations but want, equally, the benefits that come with a state-recognised union’.
I wonder if Hale would agree.