Scottish Feminist Judgments: (Re)Creating Law from the Outside In

483 Pages·2019·8.527 MB·English

by  Sharon Cowan, Chloe Kennedy, Vanessa E Munro

SCOTTISH FEMINIST JUDGMENTS
An innovative collaboration between academics, practitioners, activists and
artists, this timely and provocative book rewrites 16 significant Scots law cases,
spanning a range of substantive topics, from a feminist perspective. Exposing
power, politics and partiality, feminist judges provide alternative accounts that
bring gender equity concerns to the fore, whilst remaining bound by the facts and
legal authorities encountered by the original court.
Paying particular attention to Scotland’s distinctive national identity, fluctuat-
ing experiences of political sovereignty, and unique legal traditions and institutions,
this book contributes in a distinctive register to the emerging dialogue amongst
feminist judgment projects across the globe. Its judgments address concerns not
only about gender equality, but also about the interplay between gender, class,
national identity and citizenship in contemporary Scotland.
The book also showcases unique contributions from leading artists which,
provoked by the enterprise of feminist judging, or by individual cases, offer a
visceral and affective engagement with the legal. The book will be of interest to
academics, practitioners and students of Scots law, policy-makers, as well as to
scholars of feminist and critical theory, and law and gender, internationally.
ii
Scottish Feminist Judgments
(Re)Creating Law from the Outside In
Edited by
Sharon Cowan
Chloë Kennedy
and
Vanessa E Munro
HART PUBLISHING
Bloomsbury Publishing Plc
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Library of Congress Cataloging-in-Publication data
Names: Cowan, Sharon, editor. | Kennedy, Chloë, editor. | Munro, Vanessa, editor.
Title: Scottish feminist judgments : (re)creating law from the outside in /
edited by Sharon Cowan, Chloë Kennedy and Vanessa E Munro.
Description: Oxford ; New York : Hart, 2019. | Includes bibliographical references and index.
Identifiers: LCCN 2019034052 (print) | LCCN 2019034053 (ebook) |
ISBN 9781509923267 (hardback) | ISBN 9781509923274 (EPub)
Subjects: LCSH: Law—Social aspects—Scotland—Cases. | Women—Legal status,
laws, etc.—Scotland—Cases. | Feminist jurisprudence.
Classification: LCC KDC318 .S36 2019 (print) | LCC KDC318 (ebook) | DDC 349.411—dc23
LC record available at https://lccn.loc.gov/2019034052
LC ebook record available at https://lccn.loc.gov/2019034053
ISBN: HB: 978-1-50992-326-7
ePDF: 978-1-50992-328-1
ePub: 978-1-50992-327-4
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FOREWORD
Written judgments serve a variety of purposes. They are an aspect of fair procedure –
they let the losing parties know why they have lost. They communicate with the
public what decisions are being made, and for what reasons. They provide a record
of the law and the way in which it is applied. The judgments produced in the
Scottish Feminist Judgments Project communicate the ideas of the writers about
law and policy in a particularly engaging way. The feminist judges have themselves
revisited judgments in decided cases, in a variety of ways – as a substitute member
of an appellate bench, as a dissenting judge, in the role of an appellate court in
cases in which no appeal was heard, and sometimes re-imagining the case as the
first instance judge.
This undertaking, which involves using established conventions of domestic
judicial writing, invites consideration of the title of Audre Lorde’s speech: ‘The
Master’s Tools Will Never Dismantle the Master’s House’.1 One might in the field
of legal writing and reasoning, dispute the premise that the master (however he
might be defined) has an exclusive right either to the tools or the house. If the
house in this case is a legal system formed historically exclusively by white men,
does it really need to be dismantled entirely? Are the foundations necessarily
unsound, or can the house be altered, extended and owned and/or inhabited equi-
tably? One might also posit the availability of a range of different, new tools. When
viewed and tested by a new group of workers, the existing tools may be found to
need adjustment: to be capable of improvement. One might then seek to examine
whether the new tools, or the adjusted tools, or both, are as effective as, or superior
to, the master’s.
And what, in the context of legal practice and judgment writing, are the tools
we are talking about? They surely include the various means by which lawyers
and judges translate the real life stories – and there always is a story – that form
the basis for legal proceedings of all sorts, into legal narratives. Does the fact that
judgments have, until recently, all been written by men mean that a male voice has
been woven through into the fabric of the law? If that is so, what does it mean
when women judges and/or feminist judges adopt the accepted usages of judg-
ment writing? Sandra Berns identified a dilemma for a judge who is an ‘outsider’:
Either she violates expectations, or she confirms them … It goes both ways. If her deci-
sions are seen as ordinary, conventional, mainstream, owing nothing to the presence
1 A Lorde, ‘The Master’s Tools Will Never Dismantle the Master’s House’ in A Lorde, Sister Outsider:
Essays and Speeches (Trumansburg, NY, The Crossing Press, 1984).
vi Foreword
of otherness, she can, all too easily, come to be seen as rejecting her status as other, as
assimilating, trying simply to be one of the boys. If her decisions reveal the mark of the
other … she will at once confirm her position as other, as grammatically marked and
critically destabilise the legitimacy of her role in decision making.2
This is a dilemma that the feminist judges have faced and negotiated in this project.
There is a diversity of approach as to the extent to which they have brought the
personal (and emotional) stories of the litigants to the foreground in ways that
might not always occur in professional judicial writing. Although the approach of
some of the feminist judges is perhaps more polemical than that of a professional
judge would ever be likely to be, it is striking just how well most of the judgments
work as judgments.
As both legal practice and legal academia have become more specialised there
has been, at least in this jurisdiction, a diminution in the contact between the
practitioners of each. I personally think this is a shame. The potential for each
to enrich the other should be obvious. This project engages academic writers in
a task usually undertaken only by practising professional judges. Not only legal
academics, but others, including ethicists, have written judgments. The audience
for a judgment, while it will overlap with the audience for an academic paper or
article, is not the same. A judgment carries with it the potential for enforcement –
ultimately an exercise of power. The feminist judges have reflected explicitly on
the process of judging, the competing voices informing their reasoning, and the
processes of speaking, writing and acting as a judge. The nature and extent of their
consideration of these is humbling and thought-provoking to me as a professional
judge. It invites me to think in different ways not just about what I do, but how I do it.
I am as stimulated by the judgments and commentaries with which I disagree as by
those by which I am persuaded.
Some of the issues the feminist judges have tackled are ones with which first
instance courts are engaged daily, such as the sources of corroboration in cases
where sexual crime is alleged. At the present time, the law as to corroboration in
cases of sexual offending and domestic abuse is regularly the subject of significant
judgments of the High Court of Justiciary Appeal Court. That there is need for
reform in relation to similar fact evidence and the Moorov doctrine – which arise
frequently in the context of sexual crime – has again been emphasised recently by
Lord Pentland, the retiring chair of the Scottish Law Commission. Drury is on the
agenda in the current programme of the Commission, in the context of poten-
tial reform of the law of homicide. Cases revisited in other areas of law present
less obvious potential for feminist analysis, but nonetheless make for rewarding
reading.
In an adversarial system, arguments, authorities and other materials are only
likely to feature in a judge’s reasoning if brought to her attention by the advocates
in the case. The feminist judges have acted both as advocate and judge. They have
2 S Berns, To Speak as a Judge: Difference, Voice, and Power (Brookfield, VT, Ashgate, 1999) 33, 36.
Foreword vii
formulated the lines that they wish to take in revisiting these judgments, and then
written them accordingly. Critiquing and commentary by others will no doubt
have performed part of the function of advocacy. Working judges on the other
hand have at least two competing voices not their own formulating and promot-
ing arguments in each case. The writers in this project have had the challenge not
only of being judge, but also sometimes producing and presenting the competing
arguments that inform the judgments. In some cases they have introduced mate-
rials and arguments not presented to the original court. Where they have done
so, however, they have used only materials available at the time of the hearing,
and arguments that formed part of contemporary philosophical or legal discourse.
A particularly valuable aspect of the writing produced by the judges and commen-
tators is their potential to inspire advocates to analyse legal problems in innovative
ways, and to present new and different arguments to the courts for determination.
Lawyers, judges and academics and readers outside the legal community,
whether or not identifying as feminists, will find much in the judgments, commen-
taries and personal statements to occasion reflection. The fruits of the project are
all the more stimulating where the commentator offers a perspective different
from that of the judge, and provides a competing analysis. The celebrated feminist
scholar Professor Cynthia Enloe is on record as having said, ‘Never be the most
feminist person you know. That’s not going to get you far. You need to have people
around you who are differently feminist or more feminist than you are’.3 By that
measure, the editors, judges and commentators who have created this work are
welcome companions.
Ailsa Carmichael
April 2019
3 The Guardian (6 November 2017).
viii
ACKNOWLEDGEMENTS
We are profoundly grateful to all of those who have made the Scottish Feminist
Judgments Project (FJP) possible. In that list we include, of course, those who have
been involved in sister FJPs in other jurisdictions. These projects inspired us to
pursue this Scottish incarnation, and provided valuable methodological frame-
works on which we could draw.
We are also hugely indebted to all of the judgment writers and commentators,
who embraced the project with immense enthusiasm and brought an incredible
pool of knowledge and insights with them. We were exceptionally fortunate to
benefit from the input of a number of third-sector organisations, as well as legal
practitioners, and are much indebted to the experiences and perspectives that they
shared with us. Particular thanks are due to the campaigners who took part in our
focus group (Rape Crisis Scotland, Scottish Women’s Aid, Shakti Women’s Aid and
Scottish Trans Alliance) and to Lady Carmichael who, in addition to providing a
Preface to this collection, was kind enough to speak with us about her approach to
judging. We are also indebted to Natassa Philomonos for her help in navigating the
archives of the Glasgow Women’s Library.
We would like to express deep gratitude to Jill Kennedy-McNeill for the
patience, determination and energy that she brought to all that she did to coor-
dinate the creative contributions, curate exhibitions and drive forward the artistic
aspirations of the project. We are also, of course, honoured to have been able to
work with our talented artists (Jill Kennedy-McNeill, Jay Whittaker, Jo Spiller,
Sofia Nakou with Becky O’Brien, Rachel Donaldson, Jess Orr and Alison Burns)
and to have the opportunity to see law through their eyes as a result of those
engagements. Heartfelt thanks are due to Gavin Crichton and Liz Strange of Active
Inquiry, for their incredible talents in facilitating our Theatre of the Oppressed
workshop with such sensitivity and vision. We are grateful also to Gail Ross, MSP,
for sponsoring the Private Members’ exhibition at the Scottish Parliament, and
to South Block and Mount Florida Galleries, the Glasgow Women’s Library and
Lighthouse (Edinburgh’s radical bookshop) for hosting events and exhibitions.
We are also thankful for the support shown by our respective universi-
ties (Edinburgh and Warwick), as well as by the Scottish law schools who have
agreed to facilitate our running feminist-judging teaching events with their
students. Throughout the project, we and our fellow judgment writers have
benefited substantially from feedback in diverse forums, including: seminars at
the Universities of Aberdeen, Dundee, Edinburgh and Stirling; a roundtable at
the 2019 Annual Meeting of the Association for the Study of Law, Culture and