Novelist and barrister Elizabeth Woodcraft talks to Rosemary Hunter and Rosemary Auchmuty about writing feminist legal judgments and Baroness Brenda Hale, the only woman on the UK Supreme Court, suggests that the under-representation of women in the judiciary has an impact on how the law develops.
This podcast draws on the recent book, Feminist Judgments, from theory to practice.
In the English legal system, judges both interpret and make law, so their pronouncements can have a major impact on our lives. Most judges would consider themselves to be rigorous and neutral in their legal reasoning, but most judges, and at every level, are men. The Feminist Legal Judgments project set out to explore the extent to which this judge-made law may not be neutral at all but instead be underpinned by values that reflect a male view of the world.
Elizabeth Woodcraft The project focuses on a number of significant decisions and in each case presents an alternative judgment written from a feminist perspective, which still follows the rules that bind any judge in court today.
I asked Rosemary Hunter, Professor of Law at Kent University, and one of the project’s organisers where the idea came from.
Rosemary Hunter: As feminist researchers we are generally taking a critical stance to law and pointing out the taken-for-granted assumptions which shouldn’t be taken for granted, the various ways in which women’s experiences are excluded, the ways women are not taken seriously or given credence in law and how the law tends to operate to the disadvantage of women in many respects. We’ve been thinking about that all our academic lives. The particular idea of doing the judgments project came from Canada, from the Women’s Court of Canada.
It is a completely new form of research. It’s not what we normally do. We normally write critical essays, or we think of ways the law could be improved and make reform proposals and so on but the idea of writing judgments was a completely new thing. Indeed that’s one of the ways we ‘sold’ it – we said, look we’re inventing a new form of socio-legal research, and if this takes off it will be very interesting. You learn new skills, and you’re learning to think what it’s like from the inside. It is different from writing a critical essay. It’s quite easy to say the court should have done this, that and the other but to actually constrain yourself in the same way the court was constrained and still find you can reach different result is much more powerful.
EW It was important that the feminist judgments were legally sound, that the critique of legal doctrine they contained was well founded. Rosemary Hunter explains how they went about the task.
RH We set a word limit which, ordinarily, if you were really being true to type you wouldn’t, but we knew they were going to go into a book and we knew the book couldn’t be endless. Also we made sure that the language was appropriately judicial, that it actually had legal arguments and that the arguments developed. That it referred to law.
We had quite a bit of debate about whether we should contest the whole notion of what a judgment is, how it looks, how it feels and how it’s written, whether it uses emotion or not and so on. The organisers ,and this was not a unanimously held position – but the three of us who were organising -just took a very firm line and said, ‘one step at a time, let’s first contest the content, and then we can contest the whole conception of judgment writing! ‘ We are never going to have credibility if we take two steps at one time, we’d just never get the point across.
EW The book has been a very popular teaching tool in universities. As Rosemary Hunter explains, there are a number of ways it can be used.
RH: One is just to reflect on the process of judgment writing and the way the judges construct their arguments. You can contrast the feminist judgment with the original judgment and ask what are the rhetorical strategies they are using and how do they appeal to the law, and what are they doing differently?
The second is to demonstrate feminism in practice. People who are teaching gender and law, or feminist jurisprudence courses have found it really useful to show how it might work in practice. So in family law and in contracts you can show the ways doctrine has developed has not been inevitable and could have been done differently.
EW One of the cases in the book is Royal Bank of Scotland plc v. Etridge No.2. Rosemary Auchmuty, Professor of Law at Reading University, wrote the feminist judgment and I asked her to explain the case to me.
Rosemary Auchmuty: It’s a case about mortgages, and in particular about undue influence in mortgages. It’s a House of Lords case, which makes it very important. It’s about the use of the family home as security for a loan for business purposes (which has become much more common, obviously, in the last couple of decades). The problem has arisen because in the past the home was usually owned just by the man of the household, and it was in his name, so if he wanted to remortgage the property for business purposes he could do that without having to get anyone’s permission. But after a famous case called Boland in 1981 the banks got very suspicious of other co-owners who might be in the home and it was much more common for wives to contribute to buying the property. So after that they insisted that they should own the property jointly. So if the husband wanted to raise money on the property, he had to get his wife’s permission. That’s where the undue influence starts and we see a lot of cases in the 1990s where husbands appear to have, and in some cases were shown to have, exerted undue influence on their wives, to pressure them to let them mortgage the property for the business, and then the business has gone bust and the mortgagee, the bank, has tried to repossess the property. At that point the wife has said, because there is a common law doctrine, this isn’t a valid contract with the bank because I was pressured, I was under undue influence when I agreed
EW Why did you choose this particular case?
RA: I chose it because I teach property law and this had interested me for a while. There was a House of Lords case in the early 90s called Barclays Bank plc v O’Brien, where Mrs O’Brien won. It wasn’t undue influence, it was misrepresentation, but under the same rules Mrs O’Brien won, and the bank wasn’t able to repossess the property. But after that, even though the House of Lords had set down some fairly clear rules for lenders – banks and building societies – to follow, so they wouldn’t be caught by this undue influence and be unable to repossess, somehow in all the case law that followed the women started losing and the courts became more and more sympathetic to the banks and building societies, and even to me seemed not to be following the rules set down by the House of Lords.
EW What was their reasoning?
RA Well, the rule is that the lender will be fixed with constructive notice of undue influence if they haven’t taken particular steps to make sure that the person for whom the loan isn’t primarily intended – that is, the wife in all these cases – to make sure she knows what she’s doing, to make sure she understands what she’s signing: that she knows the amount, that she understands if they fall behind on their payments they’ll lose the property.
But in fact we find case after case where the banks haven’t followed these rules. They haven’t ensured that the wife got independent advice. They have offered the money before they have received assurances from the solicitor. Or the solicitor has given no independent advice. And yet, somehow, the courts were finding all this excusable because although they were quite prepared to see there was undue influence, they were not prepared to to stop the lender from acting on the contract. It seemed to me they were defending the mortgage industry more than they were defending wives.
EW So they were defending the banks, they weren’t defending the husbands – or were they?
RA: No, they were not at all defending the husbands, indeed the property would be repossessed and the husbands would lose their homes too. What struck me was that it purported to be a protective set of rules for women (sometimes it was elderly parents, but it was nearly always wives). They were being pressured into making decisions they didn’t want to make. The courts were saying equity is coming to the protection of the vulnerable, but in fact what actually happened was that the banks were being protected, they were able to repossess the property. The wives were being left with no home.
EW What did you want to achieve in your feminist judgment.
RA Unlike others who wrote judgments, I was not going to say the law in Barclays Bank plc v. O’Brien or the new rules in Etridge were wrong. Rather, I wanted to show the law wasn’t being applied properly – that if you actually did what the rules said then you could establish not only that there was presumed undue influence, but that the banks should actually be caught by this, and therefore that they should not be able to repossess.
EW So would you say this is a feminist judgment?
RA Oh yes, I have no doubt this is a feminist judgment because it talks about power. The courts talk about balance, ‘we have always got to balance the rights of the poor vulnerable mortgagor’ and of course, they say, ‘we have to balance the rights of the mortgagee, because if we don’t the mortgagees will withhold their money and then there will be no money to buy anything, no money to buy houses’. There is this idea of balance.
So the first thing I said was that there is no balance. First of all, the banks always win (so there is no balance). And secondly here are the banks who can take this kind of loss. It is one or two or three cases, but even if it is a hundred cases (and it probably is) for them it is a minor loss compared to the loss for the woman.
But also, part of the test was that the wife must establish that she has trust and confidence in her husband and leaves all the financial decisions to him and that the mortgage would be disadvantageous to her. The courts would often accept that she had trust and confidence in her husband, but they wouldn’t accept that the transaction was disadvantageous because, they said, she’s a dependent wife, that’s why she has trust and confidence, that’s why she leaves the financial decisions to him – so she would naturally go along with anything that he wants, and if they live off the business that he is borrowing the money for, then it must to her advantage.
So I tried to show, and this was the feminist bit, that for a wife and mother to lose her home is disadvantageous not simply because it would be for anyone – it’s horrible to find yourself homeless – but particularly for housewives because they are homemakers, it’s their domain, it is their only sphere of power.
EW: Another case in the project where the feminist legal judgment has been widely used by academics in teaching is Baird Textile Holdings v Marks & Spencer Plc.. Rosemary Hunter outlines the case.
RH It’s a case about a long term contract. M&S had a long term contract with Baird who was a supplier of garments to sell in M&S and they terminated the contract quite rapidly which left Baird with equipment and stock. Baird argued that there was an implied contract for a longer period of time and they needed more notice. Marks and Spencer, who had had this practice of just having six month agreements said, no , the six month agreement is ended and that’s all there is to it.
The conventional position, and the position reached by the Court of Appeal was that the common intention of the parties was to have a six month agreement, because that was what was written down. The alternative judgment talks about the relationship, and that from the relationship you could imply an intention to have longer term arrangements and to care more about each other’s position. So in this feminist judgment what they were doing was marrying some of the feminist work on ethic of care, with empirical work around contracts, long term contracts and business relationships and the way these are built on trust and confidence. And how these things build up over time, rather than being arms-length and standoffish.
EW: You could see this as, well if not about class, at least about economic power. It’s not necessarily feminist, is it?
RH The way they would explain why it is a feminist approach is because it draws on work around the ethic of care, how people exist in webs of relationships rather than hierarchical, one off, decontextualised legal relations with each other.
EW A staunch supporter of the project is one of the country’s most senior judges, Baroness Brenda Hale, the only woman judge on the Supreme Court. Here she outlines how a judgment should be made.
Baroness Hale: If we are interpreting a statute, we ought to start with the words of the statute, we then apply a variety of interpretive techniques to decide what it means and how it applies to the facts of the case. If we are considering the common law, we should start with the decided cases, divine their rationes decidendi if we can, separate these from the obiter dicta along the way, see how they can be fitted together into a coherent whole, attempt to deduce some underlying principles from them and then apply that principle to the facts of the case. You know that. You know that’s what we do.
EW: the irony in Brenda Hale’s tone is unmistakable. She’s deeply aware that this level of neutrality is difficult to achieve. Indeed she is concerned that judges bring a set of values to the judgment process, can decide what they want to achieve and then develop respectable legal arguments to support it. She developed the theme at a recent seminar on the Feminist Legal Judgments project organised by the group InterLaw at the offices of Norton Rose, Solicitors.
BH: The best safeguard against judges reasoning from a given conclusion, apart from the fact that we do have to explain ourselves – and that is a pretty important safeguard – is the collegiate character of an appellate court. Famous judge, Benjamin Cardozo said many years ago,’The eccentricities of judges balance one another. Out of the attrition of diverse minds is beaten something that has a constancy, a uniformity, an average value greater than its component elements.’
Now, that is true but unfortunately it is just the eccentricities of men that are rubbing up against one another. We need the eccentricities of rather more women as well, and then I wouldn’t be the sore thumb that sticks out. There would be other women who think differently from me, and have different views from me and that would be good. That is why it really matters that we should have a true diversity of minds at the highest level.
The United Kingdom is now shockingly unusual in this. The United States has 3 out of its 9 Supreme Court judges women, Canada has 4 out of its 9 Supreme Court judges, Australia has three out of its seven, and Israel is half and half. So my second message to all of you is that you mustn’t just assume that it will all come out right one day now that we have had half and half in the law schools for well over 20 years, half and half entering the professions for that sort of length of time. But it is not getting through to the top. Trickle up is not going to work, there are still far too many systemic barriers to recognising the merit that so many women have. It’s something to do with the strange ways that people define merit; something to do with the way the work is organised; something to do with the way in which commitment is defined. And something to do with the culture that depends on personal relationships and informal networks – I regard it as shocking, for example, that so many of my colleagues belong to the Garrick Club, but they can’t see what all the fuss is about.
RH The point that I would make is that men can give feminist judgments, and I would encourage men to give feminist judgments – we want more men to give feminist judgments. You can think of a few instances where judgments have been given - I think Lord Nicholls judgment in White v White is a feminist judgment. It’s all about substantive equality for women and not discriminating between homemaker and breadwinner contributions. I’d call that a feminist judgment, but there aren’t nearly enough feminist judgments by men.
So we are giving them a bit of a nudge, I guess, by showing them how it can be done.