Gendered Capital and Litigants in EU Equality Case‐Law
| Published date | 01 November 2022 |
| Author | Konstantinos Alexandris Polomarkakis |
| Date | 01 November 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12745 |
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Modern Law Review
DOI:10.1111/1468-2230.12745
Gendered Capital and Litigants in EU Equality
Case-Law
Konstantinos Alexandris Polomarkakis∗
This article problematises the gendered dimension of litigation in EU equality case-law.Relying
on feminist readings of Bourdieu’s concept of capital, it introducesthe notion of gendered capital
as an explanatory framework to illustrate and evaluate the distinct experiences between women
and men litigants in the legal eld. The article puts this framework to the test by undertaking
a macro-level mixed-methods study of 352 preliminary references on EU non-discrimination
law, drawing on the Equality Law in Europe: A New Generation database. The ndings conrm
the plausibility of this framework,with gendered capital varying depending on the period when
and the Member State where the case was lodged, as well as on the ground of discrimination
raised. As a result,by looking at the role of litigants’gender in EU equality case-law, this article
joins the emerging eld of mixed-methods studies oering novel insights into the eectiveness
of judicial decision-making.
INTRODUCTION
In the ‘Force of Law’French sociologist Pierre Bourdieu extrapolated some of
his theories, concepts and frameworks to the legal eld.1Therein,he distanced
his writings from both formalist and instrumentalist jur isprudence by advancing
a sociology of law that considers the latter ‘an entire social universe, which is
in practice relatively independent of external determinations and pressures’.2
That universe constitutes the legal eld, a social space with its own distinct
modus operandi and power relations, where ‘actors and institutions [are] in
competition with each other for control of the right to determine the law’.3
The eld is a useful concept, reecting the social practices underpinning the
perennial struggles to control the law.
The social universe of the legal eld requires specicity in order to reveal
the power struggles taking place within its bounds, reected in the use of the
∗Lecturer in Law, University of Exeter. I would like to thank the participants at the Equality Law
in Europe: A New Generation Conference in Florence and the EU Court of Justice as a Relational
Actor Conference in Gothenburg for comments on earlier versions of this article.I am also g rateful
to Professors Richard Moorhead and Anna Wallerman Ghavanini, as well as to the two anonymous
reviewers for their invaluable feedback. All errors remain my own. All URLs were last visited 15
March 2022.
1 P.Bourdieu, ‘The Force of Law:Toward a Sociology of the Juridical Field’ (1987) 38 Hastings
Law Journal 805. Note that although the ocial translation uses the term juridical eld in its
broadest sense, more recent works drawing on the piece prefer to use the term legal eld to
avoid any confusion with narrower denitions of the term juridical.
2ibid, 816.
3ibid.
© 2022 The Authors. The Moder n Law Reviewpublished by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(6) MLR 1387–1418
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which permits
use and distribution in any medium, provided the original work is properly cited,the use is non-commercial and no modications or
adaptations are made.
Gendered Capital and Litigants in EU Equality Case-Law
concept to observe ‘specialised areas of practice’.4European integration has fea-
tured among those areas,albeit mostly in relation to its institutional and consti-
tutional elements.5This article focuses instead on a specialised area of European
integration, examining European Union (EU) equality and non-discrimination
law as a distinct legal eld.More specically, the enquiry is centred around EU
equality case-law, facilitated by the Equality Law in Europe: A New Generation
project’s database,which comprises all pertinent cases involving grounds of dis-
crimination and registered between 1970 and 2018.6
The Court of Justice of the European Union (CJEU/the Court) has
been portrayed as a catalyst in the delivery and promotion of equality and
non-discrimination in the EU. Although power struggles have taken place
between the institutions and stakeholders involved in formal law-making at
EU level, the emphasis on judicial decision-making stems from the use of –
often strategic – litigation before the CJEU as a means of precipitating change,
and the associated need to better understand the power relations among the
actors involved in this specic and distinct legal eld,in their quest to inuence
the determination of the law.
The article sheds light on an underexplored area, by choosing to focus on
the characteristics of litigants and their impact within the eld of EU equality
case-law. Studies on other legal elds tend to focus on lawyers,7whereas
interdisciplinary analyses examining how judges’ characteristics inuence
judicial decision-making have investigated the relationship between gender
and judging at EU level.8In contrast, the inuence of litigants’ characteristics
on the adjudicative processes of the CJEU has for the most part been over-
looked.9This could be attributed to the Court’s structure. It seems that the
4 Y.Dezalay and M.R.Madsen,‘The Force of Law and Lawyers:Pier re Bourdieuand the Reexive
Sociology of Law’(2012) 8 Annual Review of Law and Social Science 433, 441.
5 A. Cohen,‘Bourdieu Hits Brussels: The Genesis and Structure of the European Field of Power’
(2011) 5 International Political Sociology 335; N. Kauppi, ‘Bourdieu’s Political Sociology and the
Politics of European Integration’(2003) 32 Theory and Society 775. Although note the following
analysis for a more comprehensive delineation of the European legal eld: A. Vauchez, ‘The
Force of a Weak Field: Law and Lawyers in the Government of the European Union (For a
Renewed Research Agenda)’ (2008) 2 International Political Sociology 128
6 C. Kilpatrick and J.Miller, ‘EU Equality Law Court of Justice Database’ Academy of European
Law, EUI at https://equalitylaw.eui.eu/database/ (last visited 15 March 2022).
7 Y. Dezalay and B. Garth ‘Law, Lawyers and Social Capital: “Rule of Law” Versus Relational
Capitalism’ (1997) 6 Social and Legal Studies 109;Y.Dezalay and B.Garth ‘“Lords of the Dance”
as Double Agents: Elite Actors in and Around the Legal Field’(2016) 3 Journal of Professions and
Organization 188.
8 S.J. Kenney, Gender and Justice: Why Women in the Judiciary Really Matter (London: Routledge,
2012).
9 With some exceptions, albeit of a more general nature,such as:C. Harding,‘Who Goes to Court
in Europe? An Analysis of Litigation Against the European Community’ (1992) 17 European
Law Review 105; A. Stone Sweet and T.L.Brunell, ‘Constructing a Supranational Constitution:
Dispute Resolution and Governance in the European Community’ (1998) 92 The American
Political Science Review 63. Also note that the litigation process as one of the drivers of positive
change in the area of gender equality was en voguein the 1990s. See S. Prechaland N. Burrows,
Gender Discrimination Law of the European Community (London: Dartmouth, 1990); S.J. Kenney,
For Whose Protection? Reproductive Hazards and Exclusionary Policies in the United States and Britain
(Ann Arbor, MI: University of Michigan Press, 1992); C. Hoskyns, Integrating Gender: Women,
Law and Politics in the European Union (London: Verso, 1996).
1388 © 2022 The Authors. The Moder n Law Reviewpublished by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(6) MLR 1387–1418
Konstantinos Alexandris Polomarkakis
predominantly indirect way individuals can access the CJEU leaves little room
for a detailed examination of the litigants’ role, in contrast to courts based on
more participatory models.
Nonetheless, the f act that certain character istics of the litigants, such as their
gender, are made known still allows for meaningful observations to take place
from an empirical and/or quantitative point of view.Accounts, for example,may
elucidate patter ns that emerge, depending on the litigants’ gender, in relation
to their success in launching disputes and in pushing their claims through a
multi-tiered court system. To do so, locating these actors within the context of
a specied legal eld is not enough. To properly appreciate the complex area
of EU equality (case-)law and the impact litigants can have therein, another
Bourdieusian concept comes into play, that of capital, which is interdependent
with the notion of eld (and that of habitus) as constituent components of the
same system.10
Capital denes the power dynamics between the actors within the delin-
eated eld. The various forms of capital (economic, cultural and social) are
tantamount to species of power within that eld, with capital denoting their
distribution among the eld’s actors. The possession of capital in its various
forms ‘commands access to the specic prots that are at stake in the eld’.11
In the eld of EU equality case-law, the prots revolve around control over
the deter mination of the law,but also, especially for litigants, the power to gain
access to this arena, by bringing a case before the CJEU. Capital might be a
prima facie gender-neutral concept, yet,when focusing on litigants in equality
case-law, a feminist reading that locates the role of gender within the formula-
tion and operation of capital is essential to better reect and understand how
this characteristic inuences their power in the eld.12
This article aims to take a step towards lling the afore-mentioned gap in the
literature by engaging in a mixed-methods analysis of the Equality Law in Eu-
rope: A New Generation project’s database. It focuses on the litigants’ gender and
its corresponding capital in the legal eld of EU equality case-law, with partic-
ular emphasis on the preliminary reference procedure. Cases where individuals
can bring their claims directly before the CJEU are the minority. Therefore,
it is important to examine how gender is implicated in the most common
enforcement route,that of a case indirectly reaching the CJEU as a preliminary
reference. Why are there discrepancies on the gender breakdown of litigants
in EU equality case-law across the Member States? Are there certain grounds
of discrimination associated predominantly with men or women litigants?
How has the situation developed over time? The article undertakes a mixed-
methods macro-level study, which uses quantitative analysis to shed light on
such questions. At the same time, it introduces the concept of gendered capital,
inextricably linked to a litigant’sgender, as an important explanatory framework
to spell out the divergent trajectories between women and men litigants.
10 P.Bourdieu and L.J.D. Wacquant,An Invitation to Reexive Sociology (Chicago, IL: University of
Chicago Press, 1992) 97.
11 ibid, 97.
12 L. McCall, ‘Does Gender Fit? Bourdieu, Feminism,and Conceptions of Social Order’(1992) 21
Theory and Society 837.
© 2022 The Authors. The Moder n Law Reviewpublished by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(6) MLR 1387–1418 1389
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