Rosemary Hunter

Can feminist judges make a difference

Many of the expectations and aspirations about the ‘difference’ that women judges would make have proved unrealistic, given the inevitable diversity and often conservatism of women appointed as judges. On the other hand, we might reasonably expect feminist judges to ‘make a difference’. This essay focuses on feminist judges, and seeks to identify what it is that we might reasonably expect of them. This in turn requires consideration of who counts as a feminist judge, what might be included in a feminist approach to judging, and what institutional norms inherent within the judicial role might constrain the adoption of a feminist approach. The essay concludes that feminist judges both can and ought to make a difference across a wide range of judicial activities.

Thinking About Law: Perspectives on the History, Philosophy and Sociology of Law

A comprehensive introduction to the study of law. It uses historical, sociological, economic and philosophical perspectives to explore the major legal debates in Australia today. The contributors examine: the position of Aborigines in the Australian legal system and the impact of the Mabo case; divisions of power in Australian society and law; the question of objectivity in law; the relationship and social change; judicial decision-making; and other issues.

Doing Violence to Family Law

This article discusses the nature and implications of the proposed Legal Aid cuts in family law cases raising issues of domestic abuse. It outlines the proposed inclusions within and removals from the scope of Legal Aid for private family law proceedings set out in the Green Paper, Proposals for the Reform of Legal Aid in England and Wales, charts the progress of the proposals from the Green Paper to the Legal Aid, Sentencing and Punishment of Offenders Bill 2011, and considers their likely impacts on women and children affected by domestic abuse. It also considers the potential interaction between the Legal Aid reforms and the Family Justice Review, and suggests desirable amendments to both.

Judging in lower courts: Conventional, procedural, therapeutic and feminist approaches

Recent theorising about feminist judging has concentrated on appellate courts and their judgments. This paper develops a conceptualisation of feminist judging in lower, first instance courts, which are dominated by high case volume and limited time for each matter, with decisions given orally and ex tempore rather than in elaborated written judgments. Through careful accounts of the philosophy, goals and practices of conventional as well as newer, more engaged approaches to judging, the paper compares and contrasts feminist judging with other approaches to judging in the lower courts. This entails considering dimensions such as the judicial officers orientation to substantive law and practice in court, concepts of fairness, ethical commitments, the view of the defendant, and judicial qualities and capacities.

The ‘child’s best interests’ as an argumentative resource in family mediation sessions

We used Discursive Psychology to study the claims and arguments which occur when ‘the child’s best interests’ is produced as a resource in family mediation settings. Analysis draws on data from three pairs of separated or separating parents attempting to resolve child contact or residency disputes through mediation. Our analysis focuses on the tendency of claims to the abstract notion of the child’s best interests to exacerbate conflict, especially as parents drew on conflicting research in this area. Changing expectations of fathering could be observed in the men’s argumentative positioning, and this was taken up in different ways by ex-partners and by mediators. Participants aligned themselves with mediators’ statements by picking up details of mediators’ language, hampering mediators’ attempted neutrality. The problematic nature of acknowledging the intensity of emotions in this process was also highlighted.

Introduction: feminist judgments as teaching resources

While academic scholarship generally offers various forms of commentary on decided cases, feminist judgment-writing projects have recently embarked on a new form of critical scholarship. Rather than critiquing judgments from a feminist perspective in academic essays, the participants in these projects have set out instead to write alternative judgments, as if they had been one of the judges sitting in court at the time. After introducing the UK Feminist Judgments Project and describing what is “different” about the judgments it has produced, the paper explains some of the ways in which these judgments have been used as teaching resources in UK law schools. The paper goes on to introduce the following four articles in this issue of the Law Teacher, which illustrate in greater detail particular pedagogical uses of the Feminist Judgments Project.

The implementation of feminist law reforms: The case of post-provocation sentencing

In 2005, the Australian State of Victoria abolished the controversial partial defence of provocation. Part of the impetus for the reforms was to challenge provocation’s victim-blaming narratives and the defence’s tendency to excuse men’s violence against intimate partners. However, concerns were also expressed that these narratives and excuses would simply reappear at the sentencing stage when men who had killed intimate partners were convicted of murder or manslaughter. This article analyses post-provocation sentencing judgments, reviewing cases over the 10-year period since the reforms in order to determine whether these concerns have been borne out. The analysis suggests that at the level of sentencing outcomes they have not been borne out, although at the level of discourse the picture is more mixed. While sentencing narratives continue to reproduce the language of provocation, at the same time, post-provocation sentencing appears to provide opportunities for feminist judging – picking up on the spirit of the reforms – which have been taken up by some judges more than others.

Inducing demand for family mediation – before and after LASPO

Abstract This article discusses the ‘unintended’, but by no means unpredicted, consequences of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) in terms of the drop in family mediation, the various efforts which have been made subsequently to promote it and what we know about how they are working. It places these developments within the context of earlier efforts to promote mediation, and argues that ongoing attempts to induce demand for mediation among divorcing and separating couples face continuing intransigence in the ‘market’ for post-separation services, such that a different approach may be called for.

The Feminist Judgments Project: Legal Fiction as Critique and Praxis

This note introduces the United Kingdoms Feminist Judgments Project and explains its method of (re)writing imagined legal judgments from a feminist perspective. It identifies the ways in which project participants put feminist concerns, feminist theory and feminist methods into legal practice, and considers the value as well as the limitations of this new form of feminist critique and praxis. It concludes by outlining some of the wider impacts and implications of the project.

Causes of inaction: barriers to accessing legal aid services

This article explores the ways that social welfare organisations can unconsciously exclude their clients. It draws from research undertaken by the authors on the barriers to accessing legal aid services by women and looks particularly at the application process, the client’s dealings with the agency, the refusal process and the consequences of not having legal aid.