AGENDA

Certainly, varying contexts do make a difference, in that questions of gender may seem more or less relevant to people in different situations of life (compare a single mother to an affluent businessman) and in different economic and political contexts (compare a country in transition from authoritarian to democratic rule, or backwards, to an “old” democracy, or an autocratic state, and compare the gender regimes in varieties of capitalism). But feminist and gender studies of law have exposed some features that inform a gender competent analysis, to ask the right question that then results in nuanced answers.

Against this background, the session presents basic elements of a gender competent understanding of law. One such element is the development from notions of “the” woman, to a recognition of women, to gender, from hegemonic to more differentiated and even fluid notions of sex. Another element is the law´s problematic distinction between public and private, which informs understandings of politics (and the rules that govern democracy), categorical distinctions between civil and public law, and many notions in law from liberty to family, from self-determination and contracts, etc, Also, a gender competent analysis of law is based on a thorough understanding of  (controversial) notions of equality and discrimination, informed by an understanding of inequality as hierarchy, dominance, exclusion or harm. In addition, a focus on gender means, today, to also always confront the challenge of understanding equality as multidimensional (or “intersectional”), thus take “sex +” into account.

The presentation will address the gendered notions in criminal law, over the course of modern legal history up to the present day. How have cultural representations of women as offenders and victims changed over time, and what does this tell us about criminal law as a form of state power?  Are guilt and responsibility neutral concepts?  Or is the subject of criminal law gendered? Why and where is gender relevant in our understandings of criminal law?

In this presentation I will focus on four areas of family law that have implications for gender equality or inequality: division of marital property on divorce, post-separation parenting arrangements, surrogacy, and family dispute resolution.

The particular legal rules relating to each of these areas vary between jurisdictions. But whatever the rules may be, similar questions arise. How do the legal rules interact with the gender division of labour within families and gendered social structures? Does the law produce different material effects for women and men? What gendered subjects does the law construct and what value does it attach to them?

Common themes also appear across these four areas. One of those themes is the public-private divide. This is a pervasive issue for family law. To what extent are events occurring and arrangements made within the ‘private’ sphere of the family seen as matters that are not the concern of the state? To what extent does family law rely on, encourage or fail to question ‘private’ arrangements? What are the gendered effects of the promotion and protection of privacy?

Secondly, there are questions about the nature of gender equality itself. Legal rules often provide for formal equality, treating husbands and wives, mothers and fathers as if they were exactly the same. But this can fail to reflect gender differences and end up producing gendered disadvantage. In order to avoid systematic disadvantages, a more substantive approach to equality is needed. What, then, are the requirements for substantive equality in family law?

Feminist Judgments projects have aimed to correct this by creatively and critically rewriting judgments from a feminist perspective. They have highlighted the shortcomings of much of judging as we know it, and have provided a model for more gender-sensitive judging. The first iteration tackled English judgments, with subsequent feminist judgments projects in the area of Australian law, Northern/Irish law, US tax law, international law, and Scots law. These projects have revealed the need to incorporate women’s experience into decision-making and the formulation of legal rules, as well as to rethink more broadly what gender justice demands. While academic exercises, such projects nevertheless strive to be realistic and have exposed that judicial outcomes are not inevitable. They have also moved the debate from focusing solely on judicial diversity to investigating the substantive difference that a feminist approach to judging might make in real cases.

However, these examples have so far been limited to Western legal systems and also mostly to those in the common law world. As part of a new research project, I am interested in exploring the question of what feminist judging might look like beyond these contexts. My focus is on Central and Eastern European countries and the specific challenges and opportunities for feminist judging in the region. Not only are these countries part of the civil law tradition, and thereby their courts less likely to issue the type of discursive judgments familiar to the common lawyer, but they also operate under different constraints, including a propensity for formalism inherited from the communist legal method. The role of the judge in the legal process is different, as are the traditions, legacies, and unspoken norms. Legal education and the overall legal culture in these countries will present obstacles and openings unlike those of their common law counterparts. Last but not least, there has been strong backlash against gender equality in the region, as exemplified by the Bulgarian Constitutional Court’s 2018 ruling that the Istanbul Convention on violence against women contravenes the country’s constitution. The current climate therefore makes it that much more important to study, model, and push for feminist judging.

This contribution will present the key contours of this research project and highlight the relevance of a Feminist Judgments project for Central and Eastern Europe. It will also explain the link between such a project and gender-sensitive legal education, with potential applications in a variety of taught legal subjects.

Gender equality is clearly one of the pillar principles of the European Convention on Human Rights. Protection of women’s rights can be treated through an individual right, dealing with its substantial and procedural limb (ex. sex discrimination cases), or as an (aggravated) aspect or an attribute of a violation of a right enshrined by the Convention (ex. gender equality in connection with rights to freedom of expression or religion). Despite its principled position, and having in mind the present state of jurisprudence of the Strasbourg Court, it could be concluded that feminist justice is still underdeveloped in comparison with the growing need for the protection of women’s rights, insisting on personal integrity.

Observing from a broader perspective, the ECtHR’s case law regarding feminist justice can be categorized into three clusters: (1) cases relating to achieving formal equality between men and women and prohibiting direct gender discrimination, focusing on the idea of achieving “sameness with men” (jurisprudence under article 14); (2) cases relating to issues that may, in theory, affect both men and women, but in reality, disproportionately affect women and require special (additional) protection, such as domestic violence and trafficking; and (3) cases relating to issues that are specific to women’s rights, such as violence against women,  reproductive rights and motherhood/maternity.

The Court has gradually widened its approach concerning the protection of women’s rights, giving rise to a ‘living instrument doctrine’ by interpreting the Convention “in the light of present day conditions”. This approach of evaluative interpretation of the Convention is necessary in order to address actual challenges of violation of human rights of women and girls, which were not envisaged in the text of the Convention 70 years ago.

For the purposes of the conference, the speaker will make a short introduction of how contemporary international law deals with feminist justice, with an emphasis on the list of important ECtHR cases. Then, the cases would be analyzed under each of the mentioned three categories, with an emphasis on the recent case-law. Conclusion will encompass speaker’s observations about the ECtHR’s jurisprudence and comparison with certain case-law of the UN treaty bodies or other international courts.