From tempting idea to weighty tome
Feminist Judgments of Aotearoa New Zealand – Te Rino: A Two-Stranded Rope (Hart Publishing, Oxford and Portland, 2017) $173.
Edited by Elisabeth McDonald, Rhonda Powell, Māmari Stephens and Rosemary Hunter.
Reviewed by Caroline Hickman
Feminist Judgments Aotearoa is a collection of key New Zealand judgments that have been re-written in a way that a feminist judge might write them. It is a weighty tome that has something of value to offer any reader curious about how a set of ostensibly neutral legal principles can be applied in a way which better responds to the experiences of women, and Māori women. It challenges the concept of judicial neutrality and begins with the premise that no matter how hard judges try to be fair and impartial, unconscious bias plays an inevitable part in judicial decision making. In other words, “[i]t matters who the judge is” (Baroness Hale). A reviewer of the Australian counterpart of this book points out that the value of this kind of project is not just to feminists or women, but to “readers to whom the ‘F word’ in the book’s title might not ordinarily appeal” (Heather Roberts and Laura Sweeney).
The book comprises 25 judgments, 19 re-written from a feminist perspective and six re-written from a ‘mana wahine’ perspective. The 57 contributors include leading academics as well as other legally-trained authors who provide diversity of gender, sexuality, religion, politics, race and cultural identity and includes a retired judge who has bravely re-written one of his own decisions. The impressive line-up of influential legal contributors adds to the gravitas and mana of the project.
The resulting book takes a proud and unique place in the emerging movement of feminist judgment writing projects as critical legal theory. It follows other books of re-written feminist judgments which first came out in England and Wales (Rosemary Hunter, Clare McGlynn, and Erika Rackley), then Australia (Heather Douglas, Francesca Bartlett, Trish Luker and Rosemary Hunter), the United States (Kathryn M Stanchi, Linda L Berger and Bridget J Crawford), and finally Northern Ireland and Ireland (M Enright, J McCandless and A O’Donoghue).
The goal of the book is to provide readers with new perspectives in the reading of New Zealand law by creating judgments that could legitimately sit alongside the original judgments as realistic and possible alternatives. It aims to transform theory into practice and has a didactic but also a practical purpose. As with judicial law-making, process can be as important as outcome and “the way in which a judge tells a story of the case also plays a potentially therapeutic role for the parties even if the outcome is disappointing...” (page 35). Judgments which attempt to understand and re-situate a point of view are not just potentially therapeutic but can be transformative to an aggrieved and disempowered party.
All the judgments are reimagined from the original judgments selected as significant within their own area of law. The 12 subject areas span traditional areas of feminist critique such as criminal, family and employment law, but also include environmental law and commercial relationships, areas which might not normally be regarded as amenable to feminist critique.
These re-imagined judgments are not fantasies written within the context of a female utopia. The judgments are grounded in existing legal doctrine. The author’s brief was to re-write an actual judgment constrained by the statutory basis, common law precedents and social and political conventions that existed at the time the judgment was originally written. Each judgment is prefaced with a separate commentary from another author which situates the judgment within its legal and social framework and discusses the original judgment.
While Feminist Judgments Aotearoa is about gender and the difference gender makes, its message is demonstrably wider. The additional and unexpected value is understanding how applying feminist legal reasoning and conceptualising experiences of ‘otherness’ provides a template for inclusiveness of other diverse groups within our existing legal framework.
This is probably not the book to browse at the beach while keeping half an eye on the kids in the water. It is a dense and concentrated read spanning 576 pages. However, for practitioners, the exercise in reading feminist judgments is an important opportunity to learn about how alternative experiences can be used to challenge existing legal doctrines in a legitimate way. The book does not need to be read in order. Helpfully, the preface describes how to read the book, suggesting that the three introductory chapters provide useful context, illustration and illumination (page ix).
In Chapter 1 the editors recreate the dialogue telling the story of the project’s creation from inception to birth. Chapter 2 discusses law in Aotearoa New Zealand, describing the “veneer” of monolegalism of the law imported from England; the constitutional framework including the Treaty of Waitangi; the New Zealand courts systems as well as some of the Māori values underpinning legal thinking and practice. Chapter 3 provides a critical introduction to the feminist and ‘mana wahine’ judgments as well as a description and chronology of the global feminist judgment movement. After the introductory chapters, each re-written judgment with commentary presents a stand-alone critical reflection.
One particular challenge was “how to give voice to Māori women in a manner consistent with Te Tiriti o Waitangi (the Treaty of Waitangi)” (page 28). Intersectionality is an attempt to develop a specifically ‘mana wahine’ framework which can be applied to judgment writing. The mana wahine framework springs from kaupapa Māori and has five strands: claiming visible space for Māori women, and Māori generally; identifying rights and obligations that uphold the mana of Māori women and their families; placing Māori concerns and Māori people at the centre (not the margins) of the factual and legal analysis; applying legal tests so as to include Māori everyday reality (rather than an idealised or abstract notion of Māori life); paying respect to Māori values and principles.
By contrast, feminist legal theory uses techniques such as asking ‘the woman question’, contextualising and particularising reasoning, and recognising and using women’s narratives to create a legal truth so that the judicial reasoning is at least as important as the outcome. The tension between the way judges are taught to write judgments with an emphasis on clear issue-identification, minimal factual description and limited reasoning does not sit well with feminist methodology (page 14). This methodology often begins with women’s experiences and stories and may involve providing factual details that may have been marginalised or overlooked to provide contextualising information and these facts are regarded as being as important as the law. Unsurprisingly, there are recurrent threads throughout the judgments such as recognising and recounting women’s narratives, challenging gender bias and applying feminist theory, the private versus public spheres, the anti-subordination of women and the ethic of care.
Feminist Judgments Aotearoa followed a collaborative methodology. Rather than each writer being given a task of writing a commentary or judgment in isolation and then forwarding it to the editors for comment, the authors came together for six workshops. These involved bringing in experts on judgment writing and collaboratively ‘workshopping’ draft judgments. Rosemary Hunter, now considered a worldwide expert on feminist judging (having edited two of the previous volumes of feminist judgments and involved in some capacity in all of them), attended two of the workshops as co-editor and was considered an invaluable asset to the Law Foundation-funded project.
The concept of feminist judgments need not be regarded by the hegemony as threatening, in fact these judgments are deeply liberating for all. Like other feminist judgment projects worldwide, and as noted in the preface to the US Feminist Judgments, this offering demonstrates “that feminist reasoning increases judicial capacity for justice, not only for women but for many other oppressed groups.” (Preface, xxix)
Legal judgments are inevitably influenced by personal perspective, no matter how hard judges strive for impartiality (page vii). While judges in New Zealand now periodically receive training about unconscious bias, this professional development is not compulsory. Feminist Judgments Aotearoa is a fascinating, sometimes confronting, but ultimately extremely rewarding read which challenges us to see other legitimate possibilities in the law.
Caroline Hickman email@example.com is a Napier-based barrister and mediator. She specialises in family, relationship property and youth law.
Last updated on the 12th December 2017