Deakin criminologist Dr Kate Fitz-Gibbon and Monash University Associate Professor JaneMaree Maher have co-authored an article on the feminist judging process. The article, ‘Feminist Challenges to the Constraints of Law: Donning Uncomfortable Robes?‘, has been published in Feminist Legal Studies.
Drawing on their own experience as authors involved in the Australian Feminist Judgments Project, the article examines the approach taken to rewriting the Middendorp sentencing judgment and argues that feminist judgments necessarily require some uncomfortable compromises with unjust gendered institutions.
Legal judgment writing mobilises a process of story-telling, drawing on existing judicial discourses, precedents and practices to create a narrative relevant to the specific case that is articulated by the presiding judge. In the Feminist Judgments projects feminist scholars and activists have sought to challenge and reinterpret legal judgments that have disadvantaged, discriminated against or denied women’s experiences. This paper reflects on the process of writing as a feminist judge in the Australian Project, in an intimate homicide case, R v Middendorp. Drawing on the work of Judith Butler on intelligibility, iterability and the communality of violence and vulnerability, this article argues that feminist judgments necessarily require some uncomfortable compromises with unjust gendered institutions. While ‘donning the robes’ may be an uncomfortable process, a feminist re-articulation of the law’s carceral power serves to unsettle and challenge some aspects of gendered oppression, even though it cannot unsettle the operation of the institution. The article concludes that effective feminist interventions by members of the judiciary may require donning robes that are not entirely comfortable in order to persuade and advocate for change.
Click here to access the article on the Feminist Legal Studies site.