The Rise Up series is a column that explores how the process of seeking justice can be a transformative tool to combat gender based crimes, while also recognising the survivor client’s agency, lived reality and desire for justice. The column explores the ways in which practitioners working or hoping to work in the field can adopt a gender sensitive lens in their work. This article is an overview of feminist legal method and how it affects legal practise.
A brief history of feminism
Feminism is understood as the advocacy which is concerned with past and present social constructions of “women” and, more specifically, which exhibits a commitment to the principle that these social constructions should not lead to inequality or oppression.
This broad definition encompasses the different branches of feminism (such as liberal feminism, radical feminism, cultural feminism, amazon feminism and ecofeminism for example) which all converge towards the same goals: the belief in equal moral worth of all human beings and the identification of patriarchy as the obstacle to women and non-cisgender persons’ liberation.
Four waves of feminism have been identified throughout history. The first wave took place from the XIXth until early XXth century with the identification of external forms of oppression and lack of participation of women in the political sphere leading the first women’s human rights advocates to fight for political rights. The “personal became political” in the sixties with the second wave of feminism when women realised that institutionalised patriarchy and sexist power structures do have an impact on their personal lives. In reaction to this period, the third wave feminism, in the nineties moved away from an essentialist vision of the white middle-class women to adopt an intersectional perspective. The current movement emerged from social media with the “#MeToo” to denounce mostly sexual violence and sexual harassment as part of a “call-out” culture within the fourth wave feminism.
When the law met feminism
It is within the context of the second wave feminism that the concept of feminist lawyering emerged. Scholars started to question the efficiency of the first wave movement which, despite having initiated women’s liberation, did not succeed in achieving substantive equality. The analysis of the laws and policies regulating reproductive rights was the trigger point for the development of a new legal method when Ann Scales was the first scholar to formulate the expression of “feminist Jurisprudence” in the late seventies.
Feminist lawyering is the interpretation of the law and adjudication according to a feminist perspective. It is important to highlight the difference between a feminist and a feminine perception of the law. The idea is not to say that there is a female and a male style of lawyering. Some scholars have developed theories affirming that women would use moral reasoning responding to a duty of care focusing on relationships whereas men would use individuals and rights oriented techniques of lawyering. We do not believe in such a categorisation as it completely denies the plurality of experiences and is depicts an essentialist vision of men and women.
Rather, feminist lawyering is about challenging existing legal methods by questioning the gendered bias in enacting, interpreting and applying the law. It concerns the realisation of the reproduction of sexist power dynamics within the legal system reflecting the patriarchal nature of society and the long-standing oppression of women.
Time to challenge the gendered nature of the judicial process
The first step advocated by feminist lawyering is the realisation that the supposedly-neutral-laws are, in fact, intrinsically gendered. This is due to persisting stereotypes concerning both men’s and women’s roles perpetrating by the patriarchy that is reflected in the substance, structure and procedure of the law. A concrete example of that would be the male oriented vocabulary. For example, the 1820 Indian penal code expressly states that “The pronoun “he” and its derivatives are used of any person, whether male or female”. Feminist jurisprudence would question this masculine pronoun and advocate for the use of “they” to make it more neutral and inclusive for women and non cisgender persons.
Challenging this gendered aspect of the law is to be combined with the way lawyers see their role as part of a feminist legal practise. A feminist approach of lawyering would focus on “believing women’s accounts”. This is particularly true for cases of sexual and gender based violence where a lack of gender-sensitivity from legal practitioners can be deeply harmful for survivors. What is more, it is the whole relationship between lawyers and clients that must be re-thought. Indeed a vertical relationship reproduces the patriarchal hierarchy of society. In feminist lawyering, a lawyer would collaborate with the client more closely, forego hierarchy and be guided primarily by what outcomes the client would like to see.
Finally, feminist lawyering also encompasses how judges apply this gendered-law and how they issue their judgments. The worldwide phenomenon of rewriting judgments through a feminist lens by scholars has been an interesting tool to show how judges can pay closer attention to the power they have to make the application of the law more gender equitable. As a consequence of this work, we are witnessing the emergence of feminist judgments in real life too. A good case study is Justice Ginsburg’s Majority Opinion in the 2017 case Sessions v. Morales Santana. The US Supreme Court invalidated some parts of the 1952 Immigration and Nationality Act that favorised mothers over fathers. To justify her opinion, Justice Ginsburg engaged in a deep analysis of the context of the enactment of the norm which “date[s] from an era when the law books of our Nation were rife with overbroad generalizations about the way men and women are” perpetrating “[s]tereotypes about women’s domestic roles…[and] creat[ing] a self-fulfilling cycle of discrimination that force[s] women to continue to assume the role of the primary family caregiver”.
Feminist lawyering as a concrete and efficient strategy to achieve substantial equality
These examples demonstrate that feminist lawyering is not a matter of theoretical and academic consideration but must be concretely applied by legal practitioners on a daily basis. Feminist jurisprudence makes the members of the judiciary and legal system in general the architects of social change. Not only do they have the power to address their own biases but also to transform the gendered application of norms and to produce long-lasting change.
One Future Collective, through the FemJustice Legal Centre believes that substantive equality can be achieved if biases within the legal system are addressed. Our work aims at translating feminist theory into practise by training lawyers, law students and social workers about how to treat gender-based violence cases in a gender-sensitive way. To find our more or get involved visit http://onefuturecollective.org/femjustice-legal-centre/.
Maelle Noir is a Research Assistant with the Feminist Justice vertical at One Future Collective.
I want to be free, but patriarchy and capitalism tether me!
Pride with OFC, 2022
Who decides what queerness looks like?