The FemJustice Legal Centre seeks to increase the use of feminist lawyering techniques in the legal sector, with a particular focus on increasing feminist leadership among legal practitioners, law students and other individuals working with survivors of gender based violence. We believe that the legal field has massive potential to advance the feminist and gender-rights movement. In order for this to be successful, legal approaches with a gender-sensitive lens need to be employed.
Rather than just filling the legal aid gap in India, we work to provide a space where the process of seeking justice can be a transformative tool to combat gender-based crimes, while simultaneously recognising the survivor-client’s agency, lived reality and desires for justice. This project hopes to change the narrative around gender-based violence by distilling theory into practice.
This interview series take the conversation to professionals who have created a tangible feminist justice responses in their field of work. The objective is to open up space to explore various different forms of feminist justice, across personal and professional spheres, looking as interpersonal and systemic challenges.
Priyanshi Vakharia of One Future Collective spoke to Rosemary Hunter, Professor of Law and Socio-Legal Studies, and Co-Director of Post-Graduate Research at Kent Law School. Together with Professor Clare McGlynn and Dr Erika Rackley at Durham University, she was one of the co-organisers of the Feminist Judgments Project. This extremely innovative work consists of a group of academics and practitioners who wrote alternative judgments in a series of key cases in English law, imagining how a feminist judge sitting on the court might have decided the case. She was a founding editor in 2011 of feminists@law, an online open access journal of feminist legal scholarship, and continues to edit the journal with a group of KLS colleagues. She is also a general editor of two book series: the Onati International Series in Law and Society (with David Nelken), published by Hart/Bloomsbury, and the Edward Elgar Research Handbooks in Law in Society (with Austin Sarat).
OFC: As a co-organiser of the Feminist Judgments Project, what does feminist justice mean to you?
RH: I think more narrowly feminist justice is about making sure women have access to justice and that they get justice in the way men take for granted and in the way women have not always been included in. More generally feminist justice is about being inclusive. It is about ensuring that the legal system is responsive to everybody who comes before it and not just a narrow, privileged group of people who have created the system in their own image. It is about creating inclusive justice—justice for everyone.
OFC: Could you identify for us what you think are certain integral elements of feminist judging across jurisdictions and legal traditions?
RH: I’ve written several articles about this and although I don’t want to be prescriptive, I suppose I can broadly classify what such an approach might espouse into three categories—feminist epistemologies, feminist values and feminist practices.
Feminist epistemologies are about having a feminist perspective or a feminist consciousness such as asking questions like how the law impacts on women, understanding women lived experiences, listening to their stories, not making adverse judgments if women behave differently that what one might expect, and being aware of differences and marginalization. I think it is important to accept what we call ‘complex personhood’—the understanding that persons who are victims could also be agents. It involves not stereotyping women, like expecting victims to look or behave a certain way, and understanding gendered social contexts and general social contexts of behaviour.
Feminist values include substantive equality, inclusivity, ethics of care, relationality (understanding that people don’t operate in isolation), empathy and justice.
Feminist practices are about empathy and compassion; engaging with the person before you rather than seeing them in a stereotypical way and actively seeking information in relation to your work. Another important practice is affirming and validating women’s lived experiences in terms of violence and abuse, acknowledging that people have been harmed, believing women’s stories and holding perpetrators to account so they don’t get away with unacceptable behaviour. This also includes criticizing and attempting to change gender biased laws and attempting to implement progressive reforms as fully as possible rather than limiting their operation.
OFC: Apart from this project, what role has feminist justice played in your work and why is it important to you?
RH: All my work is about feminist justice because I am a feminist. It’s important to me because it is what I believe in. I’m always trying to promote feminist justice in one form or another and I can’t imagine not doing that. I find it quite difficult when some colleagues say they are feminists but can’t practice feminist justice in their work. I always wonder why not. Often judges might also be feminists, but they claim to not be feminist judges. I’ve done a wide body of work, but I’m always thinking of and using feminist justice in my work.
OFC: We’d love to hear about your time with the Justice Research Centre, Sydney. How have your experiences there shaped your idea of feminist justice?
RH: A couple of projects that I worked on at the Justice Research Centre were centered on access to justice, legal aid and legal services. The experience of working there really reinforced for me the importance of procedures and processes as well as law. We’re not just talking about law when we speak of access to justice, we’re also talking about all the practical ways in which people can have access to good laws and how they might be vindicated in exercising the rights that they have. The Centre had a very multidisciplinary team of people—it included historians, sociologists, psychologists and lawyers so I learnt a lot on empirical research methodology, about how the law actually impacts on women’s lives, how it is actually put into operation, and the importance of the players in the system. I had a new emphasis on these two aspects in particular after working there.
OFC: Gendered injustice and discrimination at the bar are common across jurisdictions. Yet what are some of the peculiarities you have encountered in your research in different countries? How, does feminist justice differ regionally?
RH: There are always different configurations of oppression. There are different hierarchies that women are at the bottom of. So, women are generally at the bottom of something, but the particular configuration of patriarchy and injustice is going to be different in different contexts. Also, there are different intersections of gender and other forms of oppression. In the Australian Feminist Judgments Project and the New Zealand Feminist Judgments Project for example, we had the experiences of poor women and indigenous women in particular, especially the whole indigenous experience which is different even between those two countries but is not so much of an issue in the European context. And so I think, it is important for feminists to be responsive to local contexts and local knowledge. It’s people at the ground level who know what the local issues are and who need to be heard. So rather than coming in with ready made answers from somewhere else, it’s important to see what local feminists are saying about the issues they are facing and about what needs to be done to address them. Even within our context, feminist within immigrant communities need to be heard over relevant issues.
OFC: What is the international value of the Feminist Judgments Project?
RH: The reason it has been taken up internationally is because it is such a good idea! It’s replicable in different countries. Every country has gender injustice of some description and so the need for feminist justice is readily apparent in lots of different contexts. However the nature of issues faced in that particular region is going to be specific.
The Feminist Judgments Project methodology is not only a tool to think about gender justice generally, but is also flexible enough to be applicable in different contexts.
Each of the different Feminist Judgment Projects which have occurred so far have changed the model or introduced new aspects. In the New Zealand Project, there was a call to represent the particular position of Maori women and so they created a whole new category of Maori women’s jurisprudence in a way, and created a different epistemology in thinking of the position of indigenous women in that country and applied it in practice in writing alternative judgments.
In the Indian context, there is a range of issues in India that don’t come up in other places, which the Indian version of the project is responding to, for example issues of caste and religion, and social attitudes and expectations concerning women’s roles and women’s sexuality in particular.
In the Irish context, some of the issues revolve around misogyny, hatred of women’s bodies, demonization of single mothers, or women who have children out of wedlock. One of the cases concerned a commission of inquiry into the death of a baby and the pursuit of the young, unmarried woman who was alleged to have given birth to the baby. So part of the Irish Project deals with a report of a commission of inquiry rather than focussing only on court judgments.
And so the Project addresses universal issues but in the specific way in which courts have traditionally operated to exclude women in each particular context.
OFC: For nascent justice systems, what is the biggest challenge in ensuring access to justice and legal aid? What role does feminist justice play in confronting these challenges?
I found this a very hard question because I don’t think this is a problem only for nascent justice systems. Ensuring access to justice and legal aid is a problem everywhere. There might be different reasons for the inadequate resources which cloud such access, but in general, this area isn’t seen as a priority.
Feminist organisations have been endlessly creative in finding ways to support people in the context of scarce resources which is really encouraging even though sometimes, as feminist organisations we might want to be putting our efforts into other things. This is a very fundamental area where there is a massive gap. Feminist justice plays an absolutely key role in confronting these challenges because its an area where there is a kind of failure of justice to women and that’s what feminist organisations are trying to remedy.
OFC: Tell us about the collaborative study you undertook with Legal Aid Queensland to identify why some of the most disadvantaged women were denied legal aid for family law, domestic violence and discrimination matters. How this result in changes to policy and practice? How does a feminist justice perspective change the lens for such matters?
It’s important to think about this at two levels. I always try to think about this at the big theoretical level by asking why a particular change is happening or why a particular configuration is in place, and then thinking at a deeper level about the effects of such a change or configuration.
There have been changes in the idea of the role of the State. In neo-liberalism there is a notion that limited state resources should be targeted to the most disadvantaged. Legal Aid Queensland claimed to be targeting legal aid in this way, so in our research we sought to identify who the most disadvantaged were and whether they were actually getting the benefits that were claimed to be given to them. And in the course of our research, we found that these women were not in fact getting these benefits. Broadly this is because the systems and processes which were in place, were practically inaccessible for a whole number of reasons. So there wasn’t enough information about the systems reaching the relevant communities, it was hard to fill the forms, there was no support for non-English speaking people leading to a practical inaccessibility.
Further their eligibility rules and guidelines just didn’t match the problems that these women were facing. For example, in order to qualify for legal aid, the value of a woman’s home was often taken into account in order to decide if she had enough money to be able to afford legal representation. However, a woman in an abusive relationship, who has left the home, has no practical access to those assets. Then, although she might theoretically own the house, she doesn’t have any money to afford the legal representation necessary for her to get access to those assets in the first place. So the way in which the law was operating disadvantaged women.
In addition to this, people who were processing applications had performance measures where they had to deal with an application within a certain number of days. However if an incomplete application was filed which required some follow-up for further information which would take people over their target time, many of these bureaucrats would just refuse legal aid and then expect the person to re-apply. But of course, there would never be any re-applications as the review and appeal processes were just as inaccessible and discouraging.
The one benefit is though that if you have processes which are inaccessible, it doesn’t cost very much to adjust those processes to be more accessible. That is the sort of reform we were advocating to create an awareness of what the exclusionary impact of such processes really is.
OFC: How has your work with the Feminist Judgments Project changed the conversation around feminist judging today than when you first began?
RH: That’s a difficult question too! I think there are a number of different conversations around feminist judging, of which some have changed and some haven’t.
The academic conversation, for instance has absolutely transformed. Its become much more sophisticated, its created a better understanding of feminist judging while the project itself is being used widely for teaching in universities and is changing the way students might think about the law. It’s also quite an accessible way of looking at how feminist justice can be put into practice in reality.
The second type of conversation is the activist/feminist conversation outside the university within organizations like One Future Collective. I think the existence of the Feminist Judgments Project has inspired such organisations and supported them in various ways in their feminist advocacy work. Its been helpful in terms of the arguments that could be made, in terms of what could be put to the court, in terms of what they might expect from judges deciding such cases and in seeing the ways in which feminist justice principles can be applied broadly to ensure access to justice and legal aid.
But then there is also the general mainstream legal conversation which I think remains very weary of, possibly suspicious of and certainly dismissive of the idea of feminist judging. One of the main concerns is that such judging is biased so I often have to explain that it isn’t about introducing bias but instead about correcting the current bias in the system which excludes the experiences of so many people. This is in fact a way to increase impartiality, objectivity and ensuring justice is done to everybody. I don’t think that idea has sunk in quite yet and I think there’s a long way to go before people are convinced of that.
OFC: What is the logical next-step to the Feminist Judgments Project? Rewriting judgments is a powerful tool–where and how do you see its impact headed in the future?
RH: There’s a number of different ways in which it can go. In terms of my own research, I’m identifying and documenting feminist judging in the real world by trying to find feminist judges or judges who are doing things which we think of as feminist and writing about the ways in which they operate to show that this is possible. The downside of the Feminist Judgments Project is that it is all hypothetical and what I’m busy doing is trying to show that it can and does happen in reality. That’s one direction.
Other people have taken the idea of the Feminist Judgments Project and applied the principles of feminist justice to things like feminist legislation to see what laws written from a feminist perspective would look like.
Other groups have picked this up to test exclusion and marginalization of other kinds, such as environmental law projects, a children’s right’s judgments project and an indigenous judgments project in Australia. So there are different ways in which we could take the method of applying a particular perspective to some or different aspects of law.
The fourth area which hasn’t really developed much yet, and which I am keen to see develop, is to see the project picked up in civil law countries. All the Feminist Judgment Projects so far have only been in common law countries where there is a tradition of judicial development of the law. Judges here, can speak with their own voice even if they do have differing opinions. I’d like to see how this translates into civil law countries where the role of the judge and the court is conceived of quite differently, and is conceived of as a single authority, of collective pronouncements, which is just elaborating on the law as opposed to making the law. I don’t think we’ve quite cracked that sort of judging and projects in civil law countries haven’t really come to fruition.
OFC: Your book, Indirect Discrimination in the Workplace (Federation Press, 1992) remains the only book-length treatment of indirect discrimination internationally. What is required for national jurisdictions to take cognizance of indirect discrimination as a legitimate legal issue requiring legislative/judicial attention?
RH: I think we need both lawyers and judges who understand the concept of indirect discrimination and what it’s trying to get at. To me, it means you have to understand the social context and history of discrimination and the way the existing system has been designed with a particular set of people in mind and how it might systematically disadvantage those who don’t conform to those ways of working. You need lawyers who understand this and who can make good arguments on indirect indiscrimination and then judges who can understand such an argument when it is put to them and proceed to develop the law accordingly.
The law on indirect discrimination is quite good in the UK and in the European Union where judges have understood and developed the concept of indirect discrimination, even in the absence of proper legislation. However in other places, like the USA and Australia, many of the judges just haven’t got the concept of indirect discrimination, and the interpretation of the courts in this regard has been quite disappointing despite there being good laws in place. So I think it is really necessary to have both.
OFC: One of your projects included a team project on litigants in person in private family law proceedings for the United Kingdom Ministry of Justice. How does a feminist justice perspective play out in private proceedings? Is it more or less effective than in a traditional court proceeding?
So I should clarify what private family law means in the English context. In England, it is actually a traditional court proceeding because it means disputes between individual parties like ex-spouses or ex-partners about their finances or their children. Public family law includes things like child protection cases where the State is involved in the actual court process.
This particular project was about how people without lawyers were coping within the traditional court process. The reason it was raised was because there were huge cuts made to legal aid, which had been a central feature of family law proceedings. When legal aid was taken out of the picture, we ended up with loads of people in court trying to represent themselves because they couldn’t afford legal representation. There’s a feminist aspect to this too, particularly in terms of women who were victims of domestic violence who were expected to confront their abuser directly, rather than having legal representation. A particular issue in that context, is that if the abusive ex-husband doesn’t have legal aid, there arises the possibility of him cross-examining the victim directly, rather than through a barrister, which is just a great vehicle for continuing abuse. It’s a really horrendous situation.
This is in comparison to out of court dispute resolution like mediations, or out of court negotiations which I have looked at in another project. There are feminist issues there too, not only in terms of domestic violence and abuse in a grossly imbalanced power situation, but also more generally in terms of gendered expectations of women where they are always expected to compromise. For instance, women might be expected to give up on property or money to keep custody of the children, or to maintain a good relationship, or to get out of the relationship immediately, leaving them with no money and added responsibility for children, paving the way for the feminization of poverty. Although it is said that out of court negotiations are better, safer and much more tailored to the realities of the needs of individual families, what is never mentioned is the downside that it almost never works out to the advantage of women.
OFC: What is the direction feminist justice ought to take today?
RH: I think there’s so much to be done on all fronts and at all levels that I’m just supportive of anything anybody is doing really. I suppose we also have to be aware of the fact that the world is changing around us. As we solve problems in some areas, new ones will crop up elsewhere which we must be aware of. For example, we’ve recently seen the rise of populist nationalism, social media, new forms of political organization. I think there’s always going to be a need for the feminist analysis of the gendered implications of all these changes and of all these emerging forms of oppression.
When I was much younger, I thought that if we tackle the problems, things will be better. However, now I’ve realized with the benefit of many more years of experience, that something new will crop up somewhere else. For that reason we must never think that feminism is dead or that it has become irrelevant—it’s always going to be relevant because it’s always going to be dealing with the new social configurations which are going to have a gendered impact. Anyone who tells us that we are now in an era of post-feminism is lying. I think feminism has a long future ahead of it and it is going to be needed for any future that anybody can foresee.