The word “feminist” evokes different feelings in different people. For some, these may tend towards antipathy; for most, there is probably some element of controversy, of pushing the boat out a bit.
When I first learned of the Scottish Feminist Judgments Project, through a breakout session at the Society’s annual conference in October, my curiosity was aroused. In what sort of cases might a feminist approach bring about a different outcome? Could it be done by keeping to the constraints within which the courts have to operate? Would it have the capability to reshape the actual law?
In fact, as I hope this month’s thought-provoking lead feature makes clear, the project set itself quite strict rules within which to operate: placing its “judges” within the historical context and state of knowledge, rather than applying hindsight; and working with the same rules and authorities as did the actual courts. What they did, rather, was see the situation through a different set of eyes compared with the invariably masculine outlook of yesteryear.
To an extent, I wonder whether it is necessary to be “feminist” to agree with their approach. Having worked on law reports for many years, I remember the Ruxton v Lang drink-driving defence of necessity case, reworked in our article, and thinking at the time that the result was somewhat hard on the accused. But there can be little room for doubt that consciously approaching the case from a feminist standpoint will test, and perhaps help shape, more traditional judicial reasoning, and that is in itself a strong argument for actively promoting greater diversity on the bench.
Practitioners too could benefit from being open to such influences. The art of persuading a judge to take a different perspective will rest in the first place with those presenting submissions in court. It is hard to tell now to what extent that may have been attempted in the cases considered, never mind whether it would have affected the result. However, if “feminist” can mean simply being open to an appreciation that particular matters will, consciously or subconsciously, influence a woman’s thoughts and behaviours differently from how they would a man’s, then, dare I say, maybe men too would benefit from being a bit more feminist. Recalling the Society’s motto, in this matter too let us hold nothing human as alien.
'Tis the season
I write before the election result is known, but in the expectation that some familiar issues will rapidly rear their heads again come the aftermath, with Christmas our best hope of any respite, however temporary. However things stand by then, I wish you all a happy time and a well earned break.