Women Judges: Gendering Judging, Justifying Diversity
| Author | Dermot Feenan |
| DOI | http://doi.org/10.1111/j.1467-6478.2008.00448.x |
| Date | 01 December 2008 |
| Published date | 01 December 2008 |
JOURNAL OF LAW AND SOCIETY
VOLUME 35, NUMBER 4, DECEMBER 2008
ISSN: 0263-323X, pp. 490±519
Women Judges: Gendering Judging, Justifying Diversity
Dermot Feenan*
The under-representation of women in judicial office has led to calls
for greater female representation based on an argument that women
offer a different voice from that of men. This argument has largely
foundered, and a more recent rationale rests on the need for diversity
in the judiciary. However, the disadvantage experienced by women
applicants to judicial office is rooted in deeply entrenched structural
discrimination and exclusion, imbricated in the constitution of the
judge, judging, and judicial authority as male, masculine, white,
heterosexual, able-bodied, and class-privileged. Arguments for wider
representation in judicial office need to address more effectively how
the judge, judging, and judicial authority are constituted. A survey of
women holders of judicial office in Northern Ireland confirms this
exclusion. While few respondents in the survey support the concept of a
different voice, many identify distinctive approaches which ca n
potentially enrich notions of judging and judicial authority.
490
ß2008 The Author. Journal Compilation ß2008 Cardiff University Law School. Published by Blackwell Publishing Ltd,
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*School of Law, University of Ulster, Newtownabbey BT37 0QB, Northern
Ireland
d.feenan@ulster.ac.uk
Earlier versions of this paper were delivered at the Law & Society Association Annual
Meeting, Baltimore (2006), Association for the Study of Law, Culture and the Humanities
Annual Meeting, Berkeley (2008), Socio-Legal Studies Association Annual Meeting,
Manchester (2008), and at Birkbeck College, Uni versity of London, and Keele
University. The article was completed for publication thanks to a number of sources: a
Gender, Sexuality and Law Visiting Fellowship, Keele University, April 2007; a Visiting
Scholarship, Centre for Socio-Legal Studies, University of Oxford, Summer 2007; a
Visiting Scholarship, Feminism and Legal Theory Project, Emory University, April 2008;
research funding from the University of Ulster School of Law; and comments from
Professor Margaret Thornton, ProfessorHilary Sommerlad, Professor Constanc e
Backhouse, and Dr. Erika Rackley. All errors remain the author's.
INTRODUCTION
The under-representation of women in judicial office in many countries
1
has
led to a range of rationales for their increased representation. These
rationales include equality of opportunity, representativeness, and, most
recently, the need for diversity. Some of these rationales are based on
broader arguments f avouring, for instan ce, democratic legi timacy or
enhancement of public trust and confidence in the judiciary. It has also
been argued that women will improve justice by judging differently from
men, by bringing a different voice, perhaps even changing the position of
women in law more generally. There has been little attempt, however, to
work through the relationship between these arguments, some of which bear
different theoretical underpinnings.
2
Similarly, there has been little academic
attempt systematically to survey the views of women judges about rationales
for reform of the system of appointments. Nonetheless, significant reforms
of the processes, procedures, and criteria for appointment have been
implemented in the United Kingdom and elsewhere. Most of these reforms
are based on equal opportunities measures. Few have engaged with the
structural or symbolic discriminations facing women. As the momentum
develops for diversity in judicial office nationally and at the international
level,
3
it will become increasingly important to clarify the relationship
between these rationales, with particular reference to the experience of those
under-represented groups. This article notes, however, that these rationales
do not address the symbolic exclusion of women from traditional notions of
judging and judicial authority. These notions are based primarily on male-
centred perspectives, norms, and images, which are linked to historic broader
structural exclusion of women from judicial office. The article argues, with
reference both to the existing literature and data from a small survey of
women judges in Northern Ireland, that this traditionally under-represented
group appears to offer additional understandings of the role of judging which
challenge traditional notions of judging and judicial authority. It is suggested
that such understandings, which emphasize the distinctiveness of
background and experience (contrapuntal to the assumed neutrality of
judging), can enhance the diversity rationale for more women (and indeed
other under-represented groups) being appointed to judicial office.
The article first outlines the rationales for more women judges, then
proceeds to identify how notions of judging and judicial authority exclude
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1U.Schultz and G. Shaw (eds.), Women in the World's Legal Professions (2003).
2However, see K. Malleson, `Justifying Gender Equality on the Bench: Why
Difference Won't Do' (2003) 11 Feminist Legal Studies 1±24; K.R. Johnson and L.
Fuentes-Rohner, `A Principled Approach to the Quest for Racial Diversity in the
Judiciary' (2004±05) 10 Michigan J. of Race & Law 5±53.
3K.Malleson and P.H. Russell (eds.), Appointing Judges in an Age of Judicial Power
(2006).
ß2008 The Author. Journal Compilation ß2008 Cardiff University Law School
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