By Diana Mabasa
The recent furore in the media caused by the Facebook posts of High Court Judge Mabel Jansen has highlighted the important role of women judges when confronted with issues that affect women. Several organisations such as the Black Lawyers Association, Advocates for Transformation and the South African Women Lawyers Association issued press releases condemning the judge for her perceived racism and bias. Judge Jansen was placed on special leave and a complaint against her was lodged with the Judicial Services Commission (JSC) (see news ‘High Court judge granted special leave for Facebook comments’ 2016 (June) DR 16).
The perception of bias in adjudication is a cardinal sin. Judges are expected to be impartial. It is one of the essential qualities of a judge. A problem arises when judges are perceived to be biased, as the public outcry in this instance vividly illustrates. The objective of this article is not to discuss whether Judge Jansen is biased or racist. Instead it seeks to shine the spotlight on women judges and their approach to adjudication when deciding issues that particularly affect women such as gender-based violence, femicide and rape.
Are women judges different?
This question is important considering the endless call for more women on the Bench. So why do we need more women judges? Do they really make any difference? If so, what difference? Are they different from male judges?
Gender is the central theme in all these questions. It rests on the assumption that men and women approach adjudication differently. These gender based claims are contested and steeped in controversy. They are based mostly on the views expressed by American psychologist Carol Gilligan in her book, In a Different Voice: Psychological Theory and Women’s Development (Harvard University Press 1982). These arguments assume that women follow a different reasoning process and that women approach adjudication in a different manner.
This notion that men and women approach adjudication in a different manner has been discredited by recent studies. Sally Kenney, a prominent feminist political scientist in the field of comparative law makes a compelling case for more female representation on the Bench in her book Gender & Justice: Why Women in the Judiciary Really Matter (UK: Routledge 2013).
She argues that the impact of gender on judging does not have to be based on the elusive ‘difference.’ It can be approached from another angle, which does not simply ask the question whether women judges decide cases differently from men. This approach is too narrow and simplistic because of its focus on essential sex differences. Instead, she constructs a powerful argument that sex as a variable (sex as a biological category), can be instructive only if it is coupled with gender as a social process. She emphasises the fact that gender is not a category but a social process that actively differentiates by sex and devalues women and the feminine.
In her research she found that the individual experiences of judges, which include the experience of gender-based exclusions, may cause them to interpret facts differently from judges without those experiences. This implies that when it comes to adjudication, a myriad of other identity characteristics and factors such as class, religion, ethnicity, life experience and affinities (such as one’s political party or judicial philosophy) and approach to constitutional interpretation may have a greater influence on adjudication than sex. Her forceful argument is that the gender of the judge is important – not because men and women are inherently different as people but at least sufficiently differently positioned, and as a result there are cases where their perspectives and interests might diverge. This positioning should make a difference when considering gender-based issues.
Gender and adjudication
This positioning can be instructive when considering disadvantage based on gender as suggested by legal academic, Professor Katharine Bartlett in ‘Feminist Legal Methods’ (1990) 103 (4) Harvard Law Review 829. Prof Bartlett proposes a strategy for feminists to move beyond traditional judicial methods in the process of legal reasoning. Her justification for this approach is that traditional legal methods and existing legal rules often do not take into account the perspectives of women and other excluded groups. She developed a methodology of legal analysis that highlights the critical importance of an awareness of bias for feminists in the methods they apply when ‘doing law.’
Asking the ‘woman question’
Prof Bartlett argues that when feminists ‘do law’ – they do what other lawyers do: They use the full range of methods of legal reasoning to arrive at a conclusion. In addition to these, they use other methods in an attempt to reveal features of legal issues, which more traditional methods tend to overlook or suppress. One of the methods, which she describes as asking the ‘woman question’ is designed to expose how the substance of law, silently and without justification, submerge the perspectives of women and other excluded groups. The ‘woman question’, or rather set of questions, is designed to identify the gender implications of rules and practices, which may otherwise appear to be neutral or objective. These are loaded questions which insist that rules must be applied in a way that does not continue to disadvantage women. The justification for asking the ‘woman question’ is to expose features in law that are not only non-neutral but distinctly male. Asking the ‘woman question’ means examining how the law fails to take into account the experiences and values that seem more typical of women, than of men, and how existing legal standards and concepts may disadvantage women. It exposes the hidden discrimination and bias in substantive rules. Without asking the ‘woman question’, differences associated with women are taken for granted, and unexamined, they may serve as justification for laws that disadvantage women. It reveals how the position of women reflects the organisation of society rather than the inherent characteristics of women. Difference can be located in relationships, social institutions and child rearing patterns, not in women themselves. Social structures may embody norms that implicitly render women different and thereby subordinate.
When an adjudicator takes this approach, it requires an active search for gender bias, reaching a decision that is defensible in the light of that bias. It demands special attention to interests and concerns that may, and historically have been overlooked. The substance of asking the ‘woman question’ lies in what it seeks to uncover; disadvantage based on gender. Beyond gender it is also useful as a model of inquiry into the consequences of overlapping forms of oppression for other excluded groups.
Prof Bartlett also developed Feminist Practical Reasoning. The idea behind this approach is to expand the traditional notions of legal relevance, and to make legal decision making more sensitive to the features of a case not already reflected in legal doctrine. It demands more than some reasonable basis for a decision. The decision maker must give actual reasons for a decision. Where there are choices to be made the agent who makes them must admit to those choices and defend them.
More importantly, this approach supports the idea advanced in this article that one cannot, and should not, eliminate political and moral factors from legal decision-making. To the contrary, these factors should be brought to the surface and acknowledged. In this process of engagement with those factors, decision makers are forced to think self-consciously about them, and to justify their decisions in the light of facts of the case.
It is critical to expose and open up the debate concerning underlying political and moral considerations. So-called neutral forms of decision-making mask, and do not eliminate political and moral considerations from decision-making. They tend to drive the bias of the decision-maker underground and these biases do not serve women’s interests well. Contextualised methods of reasoning allows for greater understanding and exposition of injustice because it considers not only the legally relevant but also the actual experiences of women and other marginalised groups.
According to Karl E Klare in ‘Legal Culture and Transformative Constitutionalism’ (1998) 146 SAJHR at 163, is now uncontroversial that the political and moral values of judges play a routine, normal, stubbornly persistent, yet unacknowledged role in adjudication. In the evaluation of a legal decision it is perfectly acceptable, perhaps even compelling, to examine the underlying moral and political convictions of the judge.
Conclusion
The critical insight drawn is that a judge’s personal or political values and sensibilities cannot be excluded from the interpretive process or adjudication. Judges should acknowledge the importance of values and experiences on judicial interpretation. This approach is congruent with transformative adjudication without necessarily negating the supreme judicial virtues of neutrality and impartiality. Justice Pius Langa in ‘Transformative Constitutionalism’ (www.msu.ac.za, accessed 29-6-2016) confirms this view:
‘At the same time, transformative adjudication requires judges to acknowledge the effect of what has been referred to elsewhere as the “personal, intellectual, moral or intellectual preconceptions” on their decision-making. We all enter any decision with our own baggage, both on technical legal issues and on broader social issues. While the policy under Apartheid legal culture was to deny these influences on decision-making, our constitutional legal culture requires that we expressly accept and embrace the role that our own beliefs, opinions and ideas play in our decisions. This is vital if respect for court decisions is to flow from the honesty and cogency of the reasons given for them rather than the authority with which they are given.’
In a country such as ours – where violence against women and children has reached pandemic proportions – women judges can and must make a difference. Women judges must acknowledge their unique position and powerful role in exposing injustice and disadvantage based on gender. Women judges must be the progressive voices, who in embracing a transformative approach to interpretation and adjudication can make the world a safer place for all.
Diana Mabasa LLM (Wits) is an attorney at Diana Mabasa Inc in Johannesburg.
This article was first published in De Rebus in 2016 (Aug) DR 20.
