Introduction

A few years ago, following a presentation we (the editorial team) were delivering about applying the feminist judgment methodology to the International Criminal Court (ICC), an evidently exasperated audience member interjected and said something to the effect of ‘But why do another feminist judgment project?’ Although initially a little taken aback by the question, it nonetheless raises an important point – why indeed?

This is a question we have taken seriously in curating this project – it is perhaps a bigger question than it might appear at first glance. I do not know the thinking underpinning the questioner’s tone and query at our presentation, although I might speculate. With time and popularity, perhaps some of the novelty or shine of this methodology has worn off. The framing of the question at the time felt as though it was suggesting, at best, a certain kind of naiveté on our part (a misplaced faith in law and its institutions) or, at worst, a complicity with law’s violence, its subjugation of marginalised people. It thus might also be speculated that the question is at once an old and a new question about feminist method: to what extent should feminists engage with law? On what (or whose) terms, and to what ends? Is our faith in law misplaced? Are our attempts to mimic the judicial role just the stuff of wishful fairy tales?

In this chapter, I therefore want to address two, albeit interconnected, questions: why another feminist judgment project? and why the International Criminal Court? In so doing I aim to situate this book within the tradition of existing feminist projects and to reflect on judgment writing as feminist method. Asking ‘Do Feminists Believe in Fairy Tales?’ unites these questions.

The fairy tale (or mythological) motif is, perhaps surprisingly, prominent in accounts of judging, from masculinist explanations of the nature of adjudication through Dworkin’s superhuman HerculesFootnote ¹ to the image of the (fairy-tale) woman judge cast so evocatively by Erika Rackley’s analogy of the mermaid whose voice is dulled or diminished to fit in.Footnote ² There is also the somewhat incongruous image of Lady Justice, as described by Clare McGlynn:Footnote ³ ‘the mythical symbol of justice, the blind-folded figure holding the scales of justice, which appears above our courts, is female, yet women as judges, the dispensers of justice, are few and far between’.Footnote ⁴ Finally, the notion of fairy tales has also been invoked to rebut traditional, declaratory theories of judging, by suggesting that to believe that judges don’t make law is akin to believing in fairy tales.Footnote ⁵ As Judge Lord Reid of the United Kingdom noted almost fifty years ago:

It might be countered that feminist legal theorists never believed in that particular cave and were always critical of law’s supposed objectivity. The ‘fairy tales’ or fictions embedded in traditional theories came under heavy scrutiny in the second half of the twentieth century, when feminist theorists uncovered the deeply masculinist assumptions embedded in the law and called into question assumptions about law’s (assumed) impartiality. In fact, a major contribution of feminist thought (extending the earlier work of the realists)Footnote ⁷ has been in exposing the true nature of traditional jurisprudential theories as ‘male theories about law’,Footnote ⁸ in challenging the stories lawmakers have traditionally told about themselves. One of the most problematic of these stories is the way in which most prominent legal scholars, who have historically been men, have imagined the law (and their role in it) as an objective and apolitical enterprise.Footnote ⁹ Implicit in this story is the idea of ‘the distinction between on the one hand regarding law as created by human beings, and on the other, as existing separately from deliberate human intervention’.Footnote ¹⁰ Feminist accounts of law have presented a rejoinder to ‘the way in which a distinctly male view of the world has been masquerading as detached objectivity’.Footnote ¹¹

Of course, feminists have adopted a range of methods for demonstrating the law’s partiality – the feminist judgment method is but one (relatively) recent innovation. Feminist judgment projects have emerged, at least in part, due to an exasperation with the legal system’s failure to account for gender – they are one of many tools for demonstrating how a distinctly male view of the world has been masquerading as detached objectivity. Importantly, such projects have also taken place against the backdrop of significant shiftsFootnote ¹² in conceptualising the relationship between gender and judging. This conceptualisation has in many instances moved beyond earlier understandings of difference,Footnote ¹³ arguing that rather than expecting women judges to make a difference, it is more plausible to expect that feministsFootnote ¹⁴ might make a difference insofar as their approach to legal reasoning is concerned. Although different feminist judgment projects have dealt differently with questions of temporality, place, history, and culture, they are united by the alluringly simple notion that legal judgments could have been decided differently. As a body of work, these projects powerfully make the case that it matters who judges are. More specifically, they demonstrate that there were always possibilities to bring a more gender-sensitive or feminist perspective to bear in the art and craft of judgment writing while staying within the guardrails of the law.

Although the notion of fairy tales serves as the central provocation for this chapter, I want to make clear that fairy tales operate on more than one level. First, I am interested in rebutting the notion that the feminist judgment methodology might simply be dismissed as mere ‘fairy tale’ or wishful thinking. Such an argument is premised on the notion that there is unmet promise and potential in adopting feminist or gender-sensitive approaches at the ICC. Second, while the notion of the judge as described by Lord Reid might have been roundly dismissed, it seems there is still a comfort, or at least resilience, in the fairy tale of ‘the objective judge’. We see this in the extent to which real-life judges seek to eschew feminist identities. Of course, what Reid was saying was not especially controversial or radical for his time. Feminist jurisprudence extended the critique even further than the realists. As Scales observed, ‘the realists did not press their critique deeply enough. They did not bring home its implications in the face of their failure. The system has clung even more desperately to objectivity and neutrality’.Footnote ¹⁵ On such a view, feminist judgments are not merely the stuff of fairy tales – in fact, they are part of the business of disrupting the orthodoxy. However, this is not to discount the value of fairy tales insofar as they might serve to imagine different ways of doing things. Indeed, historically the first fairy tales involved women critiquing the patriarchy.Footnote ¹⁶

Thus, in posing the question ‘Do Feminists Believe in Fairy Tales?’, this chapter interrogates how the feminist judgment method contributes to this tradition of feminist legal theory in dispelling myths about the neutrality of law and challenging conceptions of the objective masculinised judge. I do so in considering the challenges and tensions which arise through feminist engagement with law and its institutions, especially when those very institutions have shown how resistant they are to feminist interventions. I further consider the tangible impact feminist judgingFootnote ¹⁷ might have in the real world, dismissing the notion that such interventions are merely a fairy-tale exercise in reimagining. I make the case for another feminist judgment project, canvassing the ICC’s record to date and the unmet promise of the Rome Statute, and arguing that judges have an important role to play in enhancing gender justice.Footnote ¹⁸ Throughout the discussion, I demonstrate that this notion of justice is about far more than questions of the sex composition of the bench.

Why (Another) Feminist Judgment Project? Or Do We Still Believe in (Feminist) Fairy Tales?

Who is the judge of our collective imagination? Thinking deeply about that question, Rackley pondered the extent to which we are still captivated by the particularly alluring fairy tale of neutrality as described by Lord Reid. Rather than taking it as a given, Rackley questioned whether we have indeed abandoned our commitment to the fairy-tale image of the judge as ‘a person stripped of self and re-clothed with the magical attributes of “fairness”, “impartiality”, “disengagement” and “independence”’.Footnote ¹⁹ Cataloguing accounts of judging (albeit reflecting scholarship on the common law method in English-speaking countries), she argued:

By interrogating this fairy tale, Rackley presents a decidedly different kind of story – one which analyses the implications of women’s exclusion and the way in which it continues to shape and constrain understandings of judges. Her argument is that, despite protestations to the contrary, for better or worse we remain trapped in a kind of fairy-tale conceptualisation of judging, even if it has been exposed as a myth. This framing is not only about how those external to the judicial role understand it but also about the judges themselves. As Rackley argued, it is the insulation ‘by his judicial or superhero identity from his own tainted sense of self’ that enables the judge to ‘execute the law’s violence that might otherwise be too painful for him to perform’. Or, to put it another way, ‘It is a belief in the possibility of his own superheroism that enables the judge to judge’.Footnote ²¹

Such thinking suggests that the myth of Dworkin’s Herculean judge, who has ‘superhuman skill, learning, patience and acumen’,Footnote ²² brings a level of comfort, trust, and reliance to those for whom the sphere of law has been determined to be a place of restricted entry. Perhaps this gives us some insight about why this image prevails, even if it has been exposed as a myth. What Rackley demonstrates so powerfully is the complex tension which has been born out of the feminist preoccupation with difference, including the important shift from expecting women judges to make a difference to the expectation that feminist judges will make a difference.Footnote ²³

In justifying another feminist judgment project, I necessarily seek to emphasise the success of the methodology. But what does success mean? Of course, in part this involves a re-examination of the goals of feminist judgment writing projects. These projects have variously been described as law reform projects, social projects, and educative projects. Certainly, such projects are a critique of the status quo – a practical demonstration of the contingency of legal judgment and a comment on law and the feminist method, and the judicial enterprise more broadly. These projects are also political – by demonstrating the contingency of legal reasoning, they are a clarion call to appoint judges with gender expertise. In both these ways, feminist judgment projects serve an educative purpose.

Does success therefore mean real-life judges taking up the feminist mantle? Is it something less ambitious? Is it as simple as the project leading some to question who has been (or still may be) the gatekeeper of knowledge in an area of society that governs and regulates their behaviour? Certainly, one might argue that the adoption of the methodology in various jurisdictions speaks to a certain measure of success.Footnote ²⁴ As the editors of the US Supreme Court project, Crawford, Berger, and Stanchi, have argued:

Many of the arguments for feminist judgment writing as feminist method have been rehearsed elsewhere but they merit briefly revisiting here. For Rackley, one of the co-editors of the England and Wales Feminist Judgment Project, the academic value of judgment writing lies in the discipline of putting one’s theoretical insights into judgment form, of ‘really testing abstract theories and political commitments against the realities of actual cases’.Footnote ²⁶ Indeed, feminist judgment projects are explicit about their own methodological limitations in terms of what can be done within the bounds of legal formalism and also in the tacit acknowledgement that feminists dressing up in judicial robes are not subject to the same institutional pressures as real judges. As Hunter and colleagues acknowledge, ‘judgments are themselves a constrained and bound genre, and writing a judgment imposes certain expectations and constraints on the writer that inevitably affect – even infect – her theoretical purpose’.Footnote ²⁷ Importantly, the value (which is in many instances framed as legal plausibility) of reimagined judgment also underscores potential limitations. Unlike ordinary academic critique, the genre of judgment writing makes demands of its authors to suspend disbelief: a judicial voice must be adopted, a decision must be reached and academic judgment writers ‘cannot reinvent or radically reshape the law (although they may push at its boundaries)’.Footnote ²⁸

It is therefore probably unsurprising that there has also been considerable reflection from feminist scholars about their engagement with this methodology. Certainly, some contributors to this project noted their own discomfort in engaging with the method – reflecting on the awkwardness of inhabiting the role of judge and the constraints inherent in upholding such a system. The performative aspect of judging (understood as a role inhabited by mere humans) is exposed in powerful ways by feminist judgment writing as a form of feminist critique. Responding to the method, Davies argues that ‘drag is the judicial norm’ rather than the exception, because all ‘judges are performing a role’.Footnote ²⁹ Because it is a performance contingent on plausibility, ‘[f]eminist judges are not at liberty to ignore legal conventions in favour of simply applying a feminist approach but rather must, like all drag artists, be faithful to pre-existing normative ideas’.Footnote ³⁰

But the fairy tale also provokes other questions: Methodologically, what does it mean to engage with law? Are we, as feminists, engaging in wishful (fairy-tale) thinking to engage with law? Should we, as feminist academics, work complicitly within a system that has excluded us. Returning to that provocative question: In pursuing another feminist judgment project (and reflecting on critiques of centring law), is the feminist judgment methodology itself a naïve belief in fairy tales? Is dressing up in judicial robes an example of the tale of the emperor’s new clothes? Is it simply the stuff of fairy tales to imagine that law really can be done differently, and that real-life judges might be influenced by these feminist judgments.

Some insights are provided by real-life feminist judges who have engaged with the methodology in earlier projects – writing forewords, offering guidance about the art and craft of judgment writing, and the judicial role more broadly. For example, Sally Brown,Footnote ³¹ in the foreword to the Australian project, suggested: ‘If more people who become judges are aware of the gendered nature of law and the overriding importance of equality, and more reflective about the fluidity of the judicial role and the effect of power on the operation of law, there will be judgments which grapple with the concerns of these authors.’Footnote ³² Similarly, Brenda Hale,Footnote ³³ in the foreword to the UK project, pondered:

Hale went on to describe reading the UK feminist project as a ‘chastening experience for any judge who believes himself or herself to be both true to their judicial oath and a neutral observer of the world’.Footnote ³⁵ Or, put another way, what might judges make of the disruption of the ‘myth of a purely logical judicial decision-making process and to demonstrate that judicial decision-making is rarely detached from personal background and experience’?Footnote ³⁶ On one view, such an argument should not arouse too much controversy. And yet the notion that that feminism might be inimical to the judicial role has been hard to dislodge.

This is because this idea of the judge, as the ‘objective’ superhero continues to have enormous gravitational pull. Real-life judges have, in many instances, eschewed feminist identities. In those rare instances in which international criminal law (ICL) judges and actors have demonstrated a commitment to women’s rights, it has come at a high personal cost, with accusations of ‘bias and lack of impartiality’ and ‘judicial activism’,Footnote ³⁷ arguably making other judges reluctant to push at the gendered boundaries of ICL.Footnote ³⁸ For instance, in the International Criminal Tribunal for the former Yugoslavia’s (ICTY) Furundžija case, Judge Florence Mumba was accused by the defence of apprehended bias due to her former role on the UN Commission on the Status of Women (a claim that was ultimately dismissed by the Appeals Chamber).Footnote ³⁹ This environment of suspicion or even outright hostility to gender sensitivity at the ICTY was captured by Patricia Viseur Sellers, former Legal Advisor for Gender in the ICTY Prosecutor’s Office, who reflected that ‘thoroughly normalizing the investigation and prosecution of sexual violence created a perceptible backlash [at the ICTY]’.Footnote ⁴⁰ Judge Elizabeth Odio Benito has also faced accusations of bias and politicisation following her gender-sensitive dissent in the Lubanga case.Footnote ⁴¹

As such, we think that the bridging of theory and practice is important in opening dialogues between the academy and the profession. This is evident in former ICC Judge Navi Pillay’s Foreword to this book in which she admits to having disavowed the label ‘feminist’ whilst at the same time acknowledging that ‘it is possible to be both a judge and a feminist, once one understands that feminism underscores equality of women and men’. In a similar vein, at the launch of the Australian feminist judgment book, Justice Margaret McMurdoFootnote ⁴² stressed that being a feminist was entirely in keeping with the judicial role: ‘How could the contextually appropriate advocating of women’s rights on the ground of equality of the sexes result in a reasonable apprehension of bias? There is complete synergy between feminism and the judicial oath.’Footnote ⁴³

In this volume (as with other feminist judgment projects), we have the participation of real-life judges, such as the Honourable Naigaga Winifred Kyobiika from Uganda, in legitimising feminist approaches to judging. Through such projects, we demonstrate that ‘judges can challenge the lingering suspicion that feminist judging comes at the cost of impartiality’.Footnote ⁴⁴

Since the central premise of the feminist judgment methodology is that the rewritten judgment must be possible within the time and space of the original decision, these reimaginations serve to reveal the masculine (and other) biases of law, as well as the potential to disrupt them. The insistence on operating within the bounds of the law in making decisions which would have been possible at the time (which is especially significant in some of the more historic rewrites) has enhanced the credibility of these projects. Evidently, credibility and being ‘taken seriously’ by legal practitioners is a trade-off for causing greater disruption to the legal processes which are often ‘sites of oppression in themselves’.Footnote ⁴⁵ Many authors in other volumes, as well as this one, have expressed difficulty in ‘treading the line’ wherein they may engage in the judgment-writing process, highlighting new opportunities for feminist interpretations, in a way that still permits a critique of the process itself.Footnote ⁴⁶ Of course, many of these tensions are even more apparent and complex against the backdrop of coloniality. As Dawuni notes in Chapter 6 in this volume, although colonisation may have ended, its effects are ongoing ‘as an idea of subjugation continues to be a principal means of control over the political, economic, linguistic, and legal systems of former colonies’.

Some authors in our project have offered contributions which are more ‘disruptive’; less willing to be bound by the genre of judgment writing.Footnote ⁴⁷ While I agree that one of the most compelling features of feminist judgment writing has been its insistence on plausibility, it is also true that there are innumerable ways to engage with the law and legal system while maintaining scepticism about the law, its language and authority. One compelling example was the approach taken by the Indigenous authors in the Australian project whose contributions were not written as judgments because white man’s law would not be adequate.Footnote ⁴⁸ Taking these critiques further, the Indigenous Judgment Project was even more radical in its departure from the method – utilising poetry, narrative, and essay to challenge the hegemony of judgment.Footnote ⁴⁹ These contributions provide an important counter to the notion that adopting feminist/critical judging techniques alone would be sufficient to effect widespread transformation in judicial reasoning and method.

Even through our project’s engagement with the feminist judgment method I nonetheless acknowledge the dangers of engaging with law. As Otto argued in her review of the International Law Project, ‘feminist encounters with law are therefore always fraught with danger for feminist ideas which are vulnerable to co-option into the service of imperial and masculinist agendas’.Footnote ⁵⁰ She offers the following examples, all of which are salutary given our book’s focus: ‘when the US-led invasion of Afghanistan was defended as a measure to support women’s rights, and the World Bank’s promotion of women’s equality and LGBTIQ inclusion because of their instrumental value in boosting free market economic productivity’.Footnote ⁵¹

These examples underscore doubts some feminists have expressed about the capacity for women to transform legal practices and processes by working within the limits of the law.Footnote ⁵² Indeed, the disinclination of some feminist legal theorists to engage with the law stems from the view that legal processes are so inherently masculine that they are beyond transformation. While much is made of the arguments about decentring law, this was ‘never meant to mean that feminists should ignore law nor indeed that they should never engage with its various guises’.Footnote ⁵³ As Smart herself reflected, responding to the early formulation of feminist judgment projects:

Far from ‘remaining mute’ we have co-opted the fairy-tale motif, utilising its power of imagination, possibilities, and retelling to generate a new reality, one which is possible within the bounds that already exist. Using such techniques, it becomes more difficult for critics to dismiss the feminist project as creating something which is created as ‘fake’, ‘forged’, or ‘false’. Rather, it is a demonstration of that which the judge could have decided but did not – either by explicit choice or by unconscious blindness. Feminist judgment projects are not (merely) wishful thinking, ‘rather in showing how cases could have been decided differently within the constraints imposed on judicial decision making … feminist judgments are a manifestation of political truth’.Footnote ⁵⁵ The judgments provide a tangible and vivid demonstration ‘not only of the importance of having a judiciary that reflects the communities it serves, but also the extent to which a diverse judiciary can bring different perspectives to bear’.Footnote ⁵⁶

In curating another feminist judgment project, we defend the feminist judgment methodology, acknowledging its limitations, and the limitations of law more broadly. To borrow Matsuda’s powerful imagery, in this volume we have one foot in the courtroom and one foot outside – cognisant of law’s power and possibilities, and its limitations.Footnote ⁵⁷ Of course, who gets to stand inside the courtroom (imbued with any authority and voice) is itself contested, the product of all kinds of political machinations and hierarchies. This is the matter to which I now wish to turn: explaining why the ICC makes a compelling case study for extending the feminist judgment method to a new site.

Why Extend Feminist Judgment Methodology to the International Criminal Court?

What features of the ICC make it the suitable subject of another feminist judgment project? Here there are two matters which bear emphasis. The ICC’s record means that it is rightly a site of feminist concern, one that has not lived up to its promise of gender justice – a promise that is significant (notwithstanding the many and valid critiques of the Rome Statute).Footnote ⁵⁸ Although the ICC does not make any reference to feminist judging, the importance of gender sensitivity is ‘baked into’ the ICC’s design, so to speak.Footnote ⁵⁹ The feminist judgment methodology thus provides an important outlet to illustrate this promise, which can be more fully realised by thinking about the transformative role of judges.