: Australian Feminist Judgments: Righting And Rewriting Law

Australian Feminist Judgments: Righting And Rewriting Law

Kcasey McLoughlin

Australian-Feminist-Judgments150Heather Douglas, Francesca Bartlett, Trish Luker and Rosemary Hunter (eds); Hart Publishing, 2014; 462pp; $75 (paperback)

By re-imagining and rewriting well-known cases through a feminist lens Australian Feminist Judgments: Righting and Rewriting Law enlivens the reader’s imagination about the real transformative potential of feminist legal reasoning. The book’s premise is to explore the possibilities and limitations of feminist jurisprudence by rewriting cases from a feminist perspective while maintaining that the decisions must be legally plausible. The re-crafted decisions span across different times, jurisdictions and subject matter but each prompts us to think about what we take for granted and what can be done differently when it comes to judicial method.

What exactly makes a judgment feminist and what counts as feminist judging? This is one of the questions the book explores both in theory and — perhaps most effectively and interestingly — in practice, as each judgment unfolds. The theoretical ‘feminist judging checklist’ devised by Hunter is nonetheless useful in framing the project and emphasising that there is no one correct and linear way of doing feminist judging. Among some of the suggested approaches are ‘asking the woman question’, ‘including women’, and ‘challenging gender bias in legal doctrine and judicial reasoning.’

The judgment component of the book includes 25 re-imagined decisions and is broken into four parts, themed loosely by legal subject matter. Part 1 concerns ‘Public Law’, which comprises Constitutional Law, Tax Law, Immigration Law and Environment Law. Part 2 deals with ‘Private Law’ which includes Torts, Consumer Protection and Equity. Part 3 comprises Criminal Law, Evidence and Sentencing. Part 4, titled ‘Interpreting Equality’, concerns Family Law, Discrimination Law and Treaty Law. In delving beyond those areas of law traditionally of interest to feminist legal theorists, the authors reveal the wide reach of gender in affecting the human condition and therefore reaffirm the capacity for feminist reasoning to recast areas of law which have been allegedly gender neutral.

The High Court decisions re-written by feminist academics and lawyers are likely to be more widely recognised by readers but the decisions from elsewhere in the judicial hierarchy make equally important contributions. Some feminist decisions arrive at different results, whereas others achieve the same result but for different reasons. Importantly, the requirement that decisions are legally plausible gives further weight to the project by demonstrating how cases could and should have been decided. Each feminist judgment is joined by a commentary which gives sufficient historical, political and legal context so that the judgments are accessible even for those not familiar with the original decision.

This book is not the first of its kind. The idea began with Women’s Court of Canada where feminist scholars and litigators wrote shadow judgments for major judgments of the Canadian Supreme Court. The Feminist Judgments Project: From Theory to Practice rewrote English decisions from a feminist perspective and work is currently underway on International Law and Irish iterations of the project. What then makes this project distinctly Australian? Although the decisions emanate from Australian courts, and will no doubt be familiar to Australian practitioners, the characterisation of this work as uniquely Australian is derived from its treatment of Australia’s colonial past and its vision for the nation’s future.

Fittingly, the bookbegins and ends with contributions from Indigenous authors who each challenge the methodology of the book. Irene Watson’s response to Kartinyeri (Kartinyeri v Commonwealth of Australia (1998) 195 CLR 337)is not written as a judgment as she contends that white man’s law would not be adequate. Nicole Watson’s response to Tuckiar (Tuckiar v R (1934) 52 CLR 335)imagines a vision for the future where, in 2035, the First Nations Court of Australia is called upon to consider the Treaty between the Republic of Australia and the Confederation of Aboriginal and Torres Strait Islander Nations Act 2028. These contributions provide an important counter to the notion that adopting feminist judging techniques will be sufficient to effect widespread transformation in judicial reasoning and method. Although the book is explicit about its own methodological limitations, it nonetheless makes the case that much can be done within the constraints of legal formalism. The book’s argument is therefore strengthened, rather than weakened, by the inclusion of contributions which demonstrate that the pursuit of equality will sometimes need to emerge from a different space and from different approaches.

Australian Feminist Judgments is powerful feminist critique of existing judicial practices. It challenges the orthodoxy about what was once conceived as an antithetical interrelationship between feminism and judging and contributes to the expanding literature about women judges, judicial diversity and difference. It also reveals what is theoretically possible within the current legal framework and serves as an important reminder about the power of the law, both as agent in perpetuating inequality and as an agent for promoting equality.

KCASEY McLOUGHLIN is an Associate Lecturer in Law at the University of Newcastle.

(2015) 40(2) AltLJ 144
You are here: Home News & Views Law & Culture L&C - Vol 40(2) Australian Feminist Judgments: Righting And Rewriting Law

Keep in Touch

Twitter Icon
Follow Alt Law Journal on Facebook

Sponsors

Monash University Logo