Feminist viewpoint can alter judicial outcomes n Balance is key to mobility in older people n Training makes the face fit n
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Feminist viewpoint can alter judicial outcomes
DESPITE CHANGES OVER the past 20 years in the profile of the legal profession in England and Wales, the appellate judiciary remains overwhelmingly white, male and middle/upper class. Although women now constitute 45 per cent of solicitors and 31 per cent of barristers in England and Wales, and around 11 per cent of solicitors and barristers are from Black and Minority Ethnic (BME) communities, only six (white, middle/ upper class) women in total, and no- one from a BME background, have ever sat in the Court of Appeal, the House of Lords or now the UK Supreme Court. Not only is this imbalance failing to improve but, according to a new study, taking a feminist perspective would in some legal cases have resulted in entirely different judicial outcomes. “Recently, there has been
considerable debate about the issue of judicial diversity,” explains Professor Rosemary Hunter. “Questions have been asked about the possible impact of more women judges and, in particular, how the introduction of women’s lived experience and feminist theoretical perspectives might affect the development of the common law and the interpretation of key statutes.” In the Feminist Judgments Project, a group of feminist socio-legal scholars engaged in a practical, ‘real world’ exercise of judgment-making, in which
they provided alternative feminist judgments to more than 20 significant legal cases. Feminist judgments, like all others, must be based on the application of legal reasoning to the facts of the case, but the way the facts are understood and the choices made about legal relevance, categorisation and interpretation may be different. “We found that applying feminist
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cases, the kinds of biases embedded within common law, and the extent to which women’s experiences and concerns are poorly reflected in law.” In the course of developing the judgments, it also became clear that there was no single feminist perspective on a number of the issues, but that different judges might reach different conclusions.
The introduction of women’s lived
experience and feminist theoretical perspectives might affect the development of the common law and the interpretation of key statutes
judgments to the cases we analysed would in some instances have changed the legal outcome,” Professor Hunter points out. For example, in one case, the decision to remove an elderly woman with Alzheimer’s disease from a care home would have been reversed. “In some other cases the feminist judgment agreed with the original outcome, but it reached that result by a different route. Ultimately, if the imagined feminist judgments had really been made, they would have had wide-ranging material and policy implications. The judgments show the contingency and lack of inevitability of the decisions actually made in these
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Professor Hunter believes that these findings highlight the pressing need for a more diverse judiciary in the UK. Feminist justice is, she argues, “both theoretically legitimate and practically possible. But at present, it seems there is little effort being made to do anything other than tweak the existing system.” The book Feminist Judgments: From Theory to Practice was published in September 2010. n
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Contact Professor Rosemary Hunter, University of Kent Email
R.C.Hunter@kent.ac.uk Telephone 01227 827636 ESRC Grant Number RES-000-22-3039
AUTUMN 2010 SOCIETY NOW 3
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