A Feminist Adjudication Process: Is There Such a Thing?

Abstract

This paper brings together two separate but related areas of my research: first, my work on gender and judging (or adjudication) – and secondly work I have done with Jane Wangmann on legal responses to systemic injuries or historical harms.

One of the focuses of our research on historical harms was an agreement made in the mid 1990s between a group of women survivors of childhood abuse and the government of Ontario (the “Grandview Agreement”) that established what has often been described as a “feminist” process for addressing the injuries that these women sustained.

This paper interrogates the suggestion that creative redress packages could enhance gender equality. Specifically, I ask whether a model such as what the Grandview Agreement put in place can appropriately bear the ascription of a ‘feminist’ adjudication process. More broadly, the chapter considers whether there is such a thing as a ‘feminist’ adjudication process.

The paper asks the following questions: • Has the feminist inquiry – often presented as “will women judges/decision-makers make a difference” - been misplaced? Are we failing to ask whether adding women, or more specifically feminists, or indeed, any jurisprudential outsiders to the existing legal structures can itself bring about any effective change? • Should we instead focus on whether there is space for feminist insights to be introduced into the legal decision-making process, and if there is, at what stage? Can feminist insights assist in designing adjudication processes, rather than being introduced only at the decision-making stage? • What if anything distinguishes a ‘feminist’ process from a ‘good’ process?

Keywords: gender, adjudication, non-adversarial justice, feminist legal theory, reparation

JEL Classification: K10, K30