Abstract
The potential for some to suggest feminist judgment fatigue emerged almost immediately upon the completion of the first project in Canada (Rewriting Equality, 2006), certainly after the publication of the English book in 2010 (Hunter et al 2010). Projects, however, continue to flourish in Australia (Douglas et al 2015), Northern/Ireland (Enright et al, 2017), the United States (Stanchi et al, 2016), Scotland, 1 India, 2 within international law (Hodson and Levers, 2019) and further still into different kinds of judgments projects including children (Stalford et al 2017) and wild law (Rogers et al 2017). Why is the method replicated? This anthology from Aotearoa New Zealand demonstrates why this methodology is so essential to understanding feminist legal critique, judgments and the nature of legal orders.
Why another feminist judgments project? First, because in most jurisdictions unfeminist and even misogynist judgments remain prevalent, even in places where projects are published and widely publicized. Second, because of some legal scholars’ assuredness that the phenomena of feminist judgments can be isolated to so-called ‘women’s issues’ and that therefore these projects have little or nothing to contribute to other areas of law. As such, the reaffirmation of feminist judging is essential to demonstrate that scholarship looking at judgments without considering the full extent of these projects lacks rigour. Third, these methodologies inspire new forms of thinking about feminist legal activism and education. And fourth, as demonstrated by the Aotearoa New Zealand project, even though a common (if evolving) methodology has been established, each jurisdiction has a different, and valuable, story to tell us about the lived experiences of women and law.
The Aotearoa New Zealand book instantly brings a diversity of voices to the methodology. Nineteen judgments are defined as feminist judgments, while six are mana wahine judgments identified not solely by their commentaries but also in the book’s presentation. Along the side of the volume, six sections of darkly marked page leaves lead a reader directly to these mana wahine judgments. This not only makes these judgments stand apart but also visually represents that this project has deeply embedded a realization of the differing lived experiences of the lives led, described and judged in this anthology.
In the introduction to the book, the four editors tell the story of their project in an interweaving narrative that does more than simply outline the venture. This chapter tells the story of feminist judgments projects through Rosemary Hunter’s account of her history in these projects. It also establishes how and why Rhonda Powell, Elizabeth McDonald and Māmari Stephens came across the methodology, met each other, considered the needs of an Aotearoa New Zealand project, sought funding, ran their workshops and put the anthology together. Within that narrative is also the story of friendships, motherhood, academic life and how colleagues at different points in their careers can support each other. My own experiences of feminist judgments projects have been overwhelmingly positive and clearly mirror those of the Aotearoa New Zealand project. Feminist practice is not only part of presenting and writing these projects but extends into how we support, critique and engage with one another. The concept of Te Rino – the two stranded rope – is used in the book to confirm that partnership is at the core of these projects.
In critiquing Aotearoa New Zealand’s own history of justice and law the book takes the reader through te reo Māori, introducing words and concepts of justice that are essential to understanding the role of feminist judgments in Aotearoa New Zealand. In particular, the book describes the concept of mana wahine or the prestige and authority of women. This concept adds to previous discussions of the roles of women as judges and the strictures of being ‘in drag’ or replicating patriarchal structures (Hunter, 2015; Rackley, 2013). Mana wahine introduces a different way of conceiving of women as authoritative figures freed from inherited common law tradition of judges. The Australian project began this dialogue with Irene Watson’s commentary on Kartinyeri v The Commonwealth [1998] HCA 22. She described in ‘First Nations Stories, Grandmother’s Law: Too Many Stories to Tell’ how the rewriting of the judgment of Kartinyeri in accordance with the methodology of this project would not prize open places for Nunga women because the rewriting needs to be done from “another space”, outside the jurisdiction of the Australian common law and the sovereignty of the Australian state (p. 53). (Douglas et al, 2015)
It also draws out a further question; is it enough to simply use the female pronoun? This anthology clearly shows that the answer to this is no; being a woman – and in the case of the New Zealand’s female judiciary this is most often a cis-White woman – is insufficient to establish a feminist methodology. Too many voices can continue to be absent if the bar is set so low, too many questions are not vocalized, never mind answered, in that scenario. Each jurisdiction needs to reflect on what this means for its own practice, but this book sets a path that others can follow to reflect upon how such an inclusive feminism can be achieved.
The cases in the book are divided between three categories: rights, equality and relationality, land and natural resources and crime. Within these, there are 12 subcategories: civil rights, social welfare, medical decisions, family relationships, relationship property, employment, commercial relationships, customary rights, environment, sexual offending, defences and sentencing. As with other projects the 25 cases are accompanied by commentaries which set the scene, offer critique and explain the feminist choices made by the judgment writer, and which also address the specific context of the law and the individuals in the cases. A critical element of feminist judgments’ methodologies has been to foreground the reality of the people featured in the judgments which they re-evaluate. The commentaries remind us that while judges might ‘live’ a case for as long as it runs, those subject to the law will have experienced legalized structures in a particular and often long-lasting way. After all, judgments mean little if they do not consider who is affected. The range of cases is impressive and should enable the book to become part of the Aotearoa New Zealand – and other – teaching curriculums across a broad spectrum of courses.
The cases around social welfare, Ruka v Department of Social Welfare [1997] 1 NZLR 154 rewritten by Māmari Stephens with commentary by Catriona MacLennan, and Lawson v Housing New Zealand [1997] 2 NZLR 474 rewritten by Natalie Baird with commentary by Dean R Knight, were particularly illuminating in setting out the context in which a state with a praizeworthy history of social welfare provision can, through a process of legal change and case law, entirely miss opportunities to validate the purpose of state support. They illustrate how the administration of welfare can become punitive instead of supportive.
The Aotearoa New Zealand project is a worthy addition to this expanding resource of feminist judgments. This anthology pushes the methodology to better incorporate the voices of those silenced by traditional judgments. It also adds to an expanding corpus of feminist cases that are slowly demonstrating that not only is it possible to maintain an alternative narrative within a jurisdiction but that this can be achieved at a much broader comparative and global level.