Law from the outside in: creative rethinking

This year, we have had a number of opportunities to celebrate 100 years of women in the legal profession across the UK.

In those moments, we’ve been reminded of the importance of cultivating what Cynthia Enloe called a feminist curiosity – that is, a commitment to paying critical attention to “where women are and where men are… who put women there and men here… who benefits from women being there and not someplace else” (The Curious Feminist: Searching for Women in a New Age of Empire (University of California Press, 2004)).

This requires, amongst other things, “taking women’s lives seriously” and “listening carefully, digging deep, and developing a long attention span”, Enloe states. In the Scottish Feminist Judgments Project (SFJP) we have done this both retrospectively and prospectively. SFJP is a collaborative project involving over 40 academics, practitioners, activists and artists, which rewrites key legal judgments to illustrate the differences – whether in tone, reasoning, or outcome – that a feminist perspective could have made.

There are 16 rewritten judgments in the resulting book, with commentaries to situate the original case in the context of its time and consider the effects of the feminist judge’s reimagining. Our legal judgments were complemented by a creative strand in which artists produced, in different media, works that responded to individual cases or the enterprise as a whole. These works have been exhibited in venues across Scotland, including galleries, universities and the Parliament.

While our SFJP judges were constrained by the authorities, resources and knowledge available at the time of their original case, we hope that the critical methods of feminist curiosity, and the reverberations over time of a past imagined differently, can be carried forward to inspire practitioners in future to chart new, more progressive paths.

Feminist judgments as a global conversation

SFJP proudly takes its place within a global conversation with sister projects, that started with the Women’s Court of Canada in 2006, and was joined by FJP collaborations in England & Wales (2010), Ireland (2017), Australia (2014), New Zealand (2017) and the US (2017 and ongoing). Further projects are in progress in India and Africa: see further the 2018 blog by the authors and others, Feminist Judging: From Margin to Centre (Social and Legal Studies blog). Together they provide a powerful discourse that challenges traditional legal reasoning, but also more conventional approaches to legal critique.

In particular, each FJP sets out to reveal how judges are influenced by the perspectives, including gender perspectives, that they bring to the task of decision-making. These in turn influence the frames of reference and kaleidoscopic lenses through which the context of a case is understood, the legal issues are presented, credibility and relevance is assessed, interests are weighed, and authorities evaluated, interpreted and applied. Each project seeks to lay bare the inner workings of these processes by creating close parallel judgments that show what might have been, had the judge, even temporarily, been able to inhabit the perspective of another/others.

This is an imaginative process, but it has bounds. Our judges have to work with the resources that would have been available when the case was originally heard, and cannot invest the court with knowledge, or attitudes toward gender norms, that would not realistically have been held at that time. But even within those constraints, the objective is to show how there is space for creative alternatives. Not every feminist judge is able, or wants, to reach an outcome different to that of the original; in some cases, and for some judges, what matters just as much if not more is drawing out experiences and narratives that were previously sidelined; teasing out and testing the biases or gendered assumptions in purportedly neutral legal tests; or crafting a judgment that is accessible to a wider audience.

Bringing feminist judgments “home”

Our Scottish incarnation is marked distinctively, of course, by two key milestones of Scottish legal and national identity – the Union of 1707 and establishment of the devolved Parliament in 1999. Between these dates, it has been argued, Scots law and legal institutions represented a bastion of Scottish national identity; as such, some felt that judges were appropriately placed to develop the law for Scottish needs in the face of relative neglect by Westminster.

With Scotland’s new Parliament, and its now semi-autonomous political scene, we might ask whether it is still necessary or appropriate for judges to act as guardians of a peculiarly Scottish legal identity. What remains, though, is a legacy of a distinctive approach – not only in many substantive legal provisions but also in a juridical culture with a greater reliance on principle over precedent and a recognised role for judges and juristic writers in enunciating these principles. All of this suggests there is still enough flexibility in Scots law to imagine judges finding alternative ways of deciding cases, as we have done in our Scottish feminist judgments.

Debates about culture aside, the contemporary significance of projects designed to interrogate and embed gendered perspectives in Scottish legal practice is clear. While we should not assume that women judges will be feminist or that men judges will not, diversity on the bench is crucial for many reasons, including visibility and representativeness. Yet, in Scotland, while women make up the great majority of law students and more than half of solicitors, the bench and bar remain starkly male-dominated (73% and 77% respectively). There remains much room for improvement.

Moreover, while litigation may not be the only means to pursue reform, there is no question that it remains an important strategy for feminist intervention and activism, both in principle and in practice. As part of our project, we spoke with several representatives from the third sector in Scotland about what they perceive to be the potential prospects and pitfalls of engaging with law. They told how the relatively compact political geography of Scotland together with increased access to the devolved Government had created opportunities for legislative reform. Yet activists also recognised the ongoing importance of strategic litigation, which enabled them “not only to help make the law but to challenge it”, and ensure that “nicely crafted and embroidered pieces of legislation” are effectively enforced.

A glimpse into feminist judgments: two examples

Our 16 rewritten feminist judgments span a wide range, from sexual offences, domestic abuse and equal pay to communal land use, directors’ duties and ancillary relief. And while many of them are relatively recent, our oldest case – that of the now famous “Edinburgh Seven” women who were prevented from graduating with medical degrees – dates back to 1873. Our judges’ responses also, importantly, reflect a diversity of feminist approaches.

To try to give a flavour of the content of some of those judgments, we will focus on two cases, Drury v HM Advocate 2001 SLT 1013 and Ruxton v Lang 1998 SCCR 1.

Infidelity as provocation: a 21st century concept?

The former will be familiar as one of the best known Scots homicide cases. In her feminist judgment, Claire McDiarmid focused particularly on the availability of the defence of provocation by sexual infidelity to the accused after he had brutally killed his ex-partner, Marilyn McKenna. The core of “Lady McDiarmid’s” judgment questions the legitimacy of this defence, conceived as a concession to human frailty, in modern society. Referencing Hume specifically, she notes that “it might be said that Scots law relies too much, in 2001, on such institutional sources, originally written… for the 18th century context” (p 112).

Moreover, to the extent that the defence may still be appropriate, she charts how its boundaries were originally far narrower than they are now. Specifically, she questions the persuasive and authoritative power of a line of decisions, typically of a single judge and without a clear or detailed rationale, that expanded its scope to include the killing of not only one’s partner’s paramour, but also one’s partner; and to cover suspicion, as well as direct discovery, of infidelity.

Having inserted herself into the original High Court bench in Drury, “Lady McDiarmid” – unlike her counterparts – refuses the appeal. While she accepts that, unlike in provocation by violence, the measures of proportionality cannot pertain in sexual infidelity, she states that this does not preclude the need for a test grounded in a sense of reasonable reaction; and in the 21st century, she struggles to imagine the circumstances under which killing a “cheating” partner could be said to be a reasonable reaction.

She further highlights the difficulties in presuming that Drury might have been owed any duty of fidelity. His relationship with McKenna had ended two years earlier and, while this did not form part of the factual narrative in the original judgment, during that time Drury had amassed five breach of the peace convictions for stalking and harassment towards her, and she had reported being in fear for her life.

Much of “Lady McDiarmid’s” approach is encapsulated in this short extract: “there is an outstanding question as to whether the law ought, in 2001, to continue to place such a high mitigatory value on the jealous rage generated by the discovery of sexual infidelity. Indeed, my interpretation of the facts of the present case suggests that it is possible that each party to the same relationship may hold a different view of its nature as ‘faithful’ or otherwise” (p 119).

This feminist reimagining of Drury relies on a broader evaluative canvas than the original judgment: one in which the nature of the abusive relationship between aggressor and victim is more fully acknowledged, the neutrality of the trajectory of case law is subjected to scrutiny, and the legitimacy of institutional authorities laid out in a very different past era is confronted and questioned. Upon this canvas a new, and more progressive outcome is painted.

Necessity: a woman’s perspective

A similar process was at play in the rewriting of Ruxton v Lang. In this case, the feminist judges, Sharon Cowan and Vanessa Munro, imagined an appeal based on certified questions provided by the sheriff. The accused, Fiona Lang, was convicted of driving with excess alcohol, having used the car to escape an abusive ex-partner, Callum Scott, who had threatened her and a male companion with a knife. Scott having reported her to the police, Lang was intercepted on her way to her brother’s home, a journey of less than two miles. At trial, Lang was not allowed to rely on a defence of necessity, the sheriff concluding that she had not been in immediate danger of great bodily harm, and that, in any event, she could have taken prudent alternative action to stop driving earlier.

In “her” judgment, “Lady Cowan-Munro” set out to bring the history of domestic abuse suffered by Lang from Scott more clearly into view, and to highlight the importance of that violence in framing both real and perceived assessments of risk and dangerousness. Though jurisprudence on necessity is limited, they drew on the dicta in Moss v Howdle 1997 SCCR 215 that immediacy of danger is not simply an assessment of temporality, and the court’s acceptance in Tudhope v Grubb 1983 SCCR 350 that a threat can persist even where an aggressor is no longer physically proximate.

Further, they challenged the conclusion that Lang had a “prudent alternative”. There were no phone boxes en route, the local police station was closed, and simply pulling the car over would not have prevented Lang from committing a crime. The sheriff’s position was that Lang could – indeed should – have left the car and continued the journey by foot.

While, for him, it was sufficient that he had “heard no evidence about the locality” to enable him to conclude that this would not have been a safe option, for “Lady Cowan-Munro”, “it is incumbent upon this court to consider more closely the sheriff’s position and the vantage point from which it is made”, which “takes for granted the erroneous assumption that public spaces are by default safe spaces for women”, particularly when they are alone, intoxicated, vulnerable and distressed, late at night, in the wake of a violent attack (p 96).

Like “Lady McDiarmid” in Drury, “Lady Cowan-Munro” also struggled with the legacy of Hume’s writings and their relevance to modern social norms. They chose to subvert rather than retire that authority, however, taking Hume’s acknowledgment that necessity may apply not only to acts of self-preservation in times of war or rebellion, but to contexts of “private violence”, to bolster the applicability of the defence to a domestic abuse context, which is, as they point out, the archetypical private form of violence. Thus, “the broad approach to necessity that Hume allowed for in his Commentaries can provide a kernel from which a progressive interpretation of the common law can now flourish” (p 90).

Conclusion

These examples give only a flavour of the feminist judging across the project. As an enterprise of critical intervention, the technique of reimagining judgments using the constraints and knowledge available at the time is extremely powerful, though it also cedes power at times to legal procedures, conventions and authorities that, in an ideal world, many feminists would prefer to abandon. Thus, our judges engaged in a process of using the master’s tools to dismantle the master’s house, a process which has inevitable and important pitfalls.

At the same time, feminist judgments also uncover the creative and progressive potential that remains within those traditional tools when placed in different hands, as well as the scope for crafting new tools. And it is this that we hope – across our academic and creative strands – to inspire practitioners and judges of the future to consider.

Scottish Feminist Judgments: (Re)Creating Law from the Outside In is published by the Hart Publishing imprint of Bloomsbury Professional