INTRODUCTION
Why Study “Women and the Law”?
In
earlier introduction to this book, I have told the story of having afternoon
tea with the mother of a good friend who politely asked what I was working on
during my sabbatical. When I told her that I was working on the second edition
of book concerned with women and the law, she paused and then said, “Oh, is law
different for women? I thought it was all the same.” “Well”, I said,
“historically some laws were very different for women and men -- laws prevented
women from voting, going to university, practicing the professions or being in
government; laws prevented married women from owning property or obtaining
credit in their own names; laws prevented women from obtaining custody of their
children upon marriage breakdown; immigration laws imposed extra requirements
for women in certain occupations and limited funding for second language
training to the male heads of households; laws also presumed to define which
Aboriginal persons were or were or were not status ‘Indians’, fragmenting
cultures and explicitly displacing aboriginal women who married men without
Indian status.” “And”, I said “it is
certainly true that some criminal law offences such as sexual assault of young
girls, applied only to men, and that men were not entitled to some social
assistance benefits targeted for mothers.” I continued, brushing off shortbread
crumbs, “It's true that alot of the laws which differentiated openly, have been
changed. There has been a big push toward
‘gender neutral’ laws particularly since the equality guarantees of the
Canadian Charter of Rights and Freedoms came into effect in 1985.
“But
the issue of whether law is different for women involves far more than whether
there are different laws for men and women. Gender-neutral laws may themselves
be a problem, may deliver ‘equality with a vengeance’ if the underlying issue
is gender specific. And there are the problems of gendered enforcement (or
non-enforcement) of laws -- police
officers, for example, who decide whether a complaint of sexual assault is
‘founded’ or not (or even a public mischief), or whether to warn women of
imminent danger or to enforce an peace bond or no-contact order obtained by a
woman against her violent partner – all have a profound impact on how law and
the laws are experienced by women in Canada. There have been problems with
gender bias on the part of judges too. It was Judge Denys Dionne who commented
during an assault and weapons trial in Longueuil, Quebec in 1989 that ‘Rules
are like women, they are made to be violated.’
And there was Judge Bourassa, a territorial court judge in the Northwest
Territories, who was quoted by the Edmonton Journal in December 1989 as saying,
‘the majority of rapes in the Northwest Territories occur when the woman is
drunk and passed out. A man comes along and sees a pair of hips and helps
himself. That contrasts sharply to the
cases I dealt with before (as a judge in southern Canada) of the dainty co-ed
who gets jumped from behind.’
I
mentioned the views of our first women judge of the Supreme Court of Canada,
the Honourable Bertha Wilson, who in 1989 had pointed out that that ‘many
studies have found overwhelming evidence that gender-based myths, biases and
stereotypes are deeply imbedded in the attitudes of many male judges, as well
as in the law itself.’ And, she continued, ‘in some areas of law... a
distinctly male perspective is clearly discernible and has resulted in legal
principles that are not fundamentally sound, and should be revisited as and
when the opportunity presents itself.’ “[Not
only are some legal principles unsound,” I pressed on, “but there are some
areas where the law simply doesn't have adequate principles at all, or example,
reproduction.
This
point has been made for example, by the Women's Legal Education and Action Fund
(LEAF), an organization that litigates for women's equality in the courts. In
the 1991 case of Sullivan and Lemay, two midwives who had been charged with
criminal negligence, LEAF was permitted by the Supreme Court of Canada to
intervene and make arguments to assist the Court. At paragraph 29 of their
written argument LEAF stated:
Traditionally legal method proceeds by analogy and
distinction, making it tempting to compare the relationship between a pregnant
women and her fetus to relations already mapped by law. However, there are no adequate analogies to
pregnancy and childbirth and attempts to find them distort reality. Had women not been excluded from
participation in the legal system, the unique relationship between the women
and her fetus and the experience of pregnancy in the life of women -- hardly
new facts -- might have engendered their own fundamental legal concepts and
doctrines, as elaborate as [doctrines dealing with commercial partnerships for
example.]...
“As
you can see,” I concluded, “there are lots of ways in which law has a gender
dimension -- if you like, ways in which law is different for women. And, of
course, it is both different and experienced differently for different groups
of women, depending on their class, race/ethnicity and so forth. Indeed, law
itself is different depending on who you are in relation to it, and there are a
host of local variations. And, of course, questions about perspective and
‘views of the world’ are implicated. I may even have even used a favourite
quotation around then from Simone deBeauvoir who commented, “Representation of
the world, like the world itself is the work of men; they describe it from
their own point of view, which they confuse with the absolute truth.” (See The Second Sex, 1949). Likely I
would have continued by arguing that the traditional paradigm of the law has
been focused on the individual in the public sphere – and it might be radically
transformed in its concepts, methods and remedies if the organizing principle
for seeing the world which law is to order were to shift to complex and ongoing
relationships in the private and public spheres?”
Well,
of course, as I admitted in the last edition, I was embroidering the story a
little. My tea would have become cold and my hostess would have shifted
uncomfortably in her seat at such a monologue.
But her question was, in many senses, a basic one with which many
readers may themselves be coming to this book. And, in many ways, answering it
is what this book is about.
A Voice in ‘Drawing the Lines’
In
her now classic collection, On Lies Secrets and Silences (1980),
Adrienne Rich urged that
“if we conceive of feminism as more than a
frivolous label, if we conceive of it as an ethics, a methodology, a more
complex way of thinking about and thus more responsibly acting upon, the
conditions of human life, we need a self-knowledge which can only develop
through a steady, passionate attention to all female experience.”
The
steady development of feminist legal scholarship and legal advocacy in Canada
continues to help us ‘think about and act responsibly upon’ the conditions in
law that engage gender-related issues. We know that women’s lives as gendered
are also intersected by gender, race, ability, sexual orientation, age, and
social condition. There is no
‘universal’ or common experience of all
‘women in Canada’. The preoccupations of different groups of women can be quite
separate from one another and reflect different life experiences. For example,
the concern of white, middle class women for reproductive freedom (the right to
have children by choice) belies the concern of racialized women for freedom
from reproductive coercion.
However, there are cross-cutting threads of concern
– concern about control of our bodies and our autonomy and dignity as human
beings, concern about our relationships and our embeddedness in families of
origin, of law and of choice; concern about where we work, how much we are
paid, our conditions of work; concerns about our relationship with the state:
as a benevolent provider of social benefits and support and as an agent of
control and survelliance; concern about our land, our health, and our
non-negotiable demand that law reflect a broadly inclusive and progressive
sense of social justice, of Canada as a “free and democratic country” under the
rule of law.
In
this process, a non-negotiable demand framed so clearly by Catherine MacKinnon
continues to have resonance:
The
book is designed to introduce and then ‘layer’ consideration of a range of
themes and issues. It is by design not a ‘women and … ’ examination of areas of
law but rather advances an integrated approach to looking at areas of law with
a ‘gender-based lens’. Many areas of
law are addressed but generally as examples of a broader theme of interest.
Readers will find then, material on e.g., child custody, sexual assault,
violence against women, legal status of married aboriginal women, mediation,
child support guidelines and women in the legal profession. This material is
used to develop themes and explore concerns about the operation of legal norms
and methods, to how we can think about (theorize) the underlying issues; and
develop strategies for legal change. The “Virtual Casebook” provides
introductory links to the broader array of subject areas relevant to the gender
based issues in law.
The
general movement of the book is to start with stories and silences to call
readers to come to the subject with their own experiences and opinions. I seek
to locate ‘women’ as the active agents of the project of engaging with law who
have made clear demands of the legal system over time. The materials explore
the structure of legal concepts, norms and methods. They then address ways of
thinking about issues and the ‘legal tools available in this process.
Strategies and forums for seeking legal change are then engaged before the
materials conclude by briefly opening up ‘imagination’: how we might imagine
our world, our laws and our own places therein.
The
book has five parts. Part 1 asks the ‘woman question’ in law – and examines the
idea that there is a legitimate area of inquiry about the relationship between
women and ‘legal process’ derived from women’s historical exclusion from the
process of making and interpreting law; and that there are problems that need
to be addressed on an ongoing basis for women and which will involve using and
seeking to transform law.
Part 2 asks the ‘law question’: what does law ‘look
like’ using a ‘gender-lens’; what are some normative issues about core ideas in
law – of reasonableness, of ‘truth’, of decisionmaking? What have been women’s
struggles for inclusion: in language, in the legal profession? This part also
asks whether the norms of law can evolve to include women.
Part 3 turns to the frameworks for analysis and
legal action available. Approaches and debates in feminist legal theory are
introduced along with constitutional, human rights and international law
provisions relevant to women’s equality. The development of equality
jurisprudence and the analytical steps in the inquiry are outlined. This part aims to answer the question of ‘ what
can we do about issues of concern to us
about gender justice: what are the legislative and constitutional provisions
that we can use? How can we think about the issues and how we might construct
‘good’ arguments?
Part
4 examines selected processes and strategies for change: litigation in civil
cases; dialogue and engagement in criminal law reform; the interaction of
constitutional challenges and policy change.
Finally, part 5 asks us to consider ‘what we hope
for in law’, what can we imagine law can look like? It asks us to think about our
roles as law students, lawyers, professors etc and how we might participate in
building an improved system.
I
hope that in reading the histories, issues and debates presented in the
sections of this book, readers will develop a nuance understandings of how law
interacts with gender, itself always intersected by race, (dis)ability, sexual
orientation, and class. Identifying the
structure and operation of law as it affects women (and men) in their
diversities, and the ways in which feminist analyses of law have developed,
helps us to think about legal and social transformation guided by the goals of
achieving equality and justice.
In
selecting the readings, I have drawn across disciplinary boundaries and I have
had a preference for Canadian materials and materials relevant to the Canadian
context. I have tried to include the voices of many women and to achieve a
multi-textured understanding of their experience, “realities” and priorities.
However, I have not tried to cover every issue. I have sought to build a core
reader -- in which basic concepts and debates are introduced. I conceive of the
book as laying a foundation for applied analysis of more specialized issues
such as feminist legal theories, feminist legal methods, women and work,
violence against women, women's activism/litigation strategies, to name a few.
To
assist with more in-depth study, I have included selected further references in
each section of the book and I recommend that reference be made to 1. Josée
Bouchard, Susan B. Boyd and Elizabeth A. Sheehy, Canadian Feminist
Literature on Law: An Annotated Bibliography (Toronto: 11 Canadian Journal
of Women and the Law; and University of Toronto Press, 1998). For research purposes, it will be an
indispensable companion to this book and indeed, to any women’s legal studies
course.
As
will be apparent, this book, and many of the materials included in it, are
informed by feminist scholarship and perspectives. That said, an extract from another course syllabus is apposite:
We will look at issues from as many sides as I can think
of; but I am inescapably a feminist... You must question my assumptions, my
sources, my information; that is part of learning to learn. You should also question your own assumptions. Skepticism about oneself is essential to
continued growth and a balanced perspective. (Cited in “The Education of Women
in Historical Perspective”, D. Rosenfelt ed. Female Studies, 7(1973)
The
most basic ‘working premise’ of the book is that what we know and how we learn
is affected by our own perspectives, and those of the person who is creating
knowledge. Hence, ‘unpacking’ our
perspectives makes it possible to assess ‘truths’ and to examine the
assumptions on which they are based. I invite readers to enter debate with the
materials and the authors gathered here.
Experience
teaching feminist law courses has suggested that some common concerns exist at
the beginning of such courses. These include:
1. Because (my course and) the materials are
organized around a feminist framework, some students react in the following
ways: “Do I have to be a feminist too?”
“'What is feminism anyway?” “If I am not a feminist or disagree with the
professor, will I get a good mark?” or, “I’ll just humour the professor and
pretend to agree, so that I get a good mark.” “Why do we have to use a feminist
framework anyway...” “Why have a separate course on women and the law, instead
of just integrating women’s studies into the curriculum of all courses?”
2. It still
seems to be the case, despite women being at least half the population, having
specific legal issues of concern to their lifecycles and being forseeable
clients for lawyers, that students in courses in “women and the law” tend to be
female. This has often given rise to concerns such as,
“Why aren't there more men?” (good question), “How
can we make the men here feel more comfortable?” on the one hand, and “How can
we deal with our experiences as women when there are men present?” or even “Why
not have a woman-only section” on the other.
3. Another classroom dynamic can be created from
another observable phenomena: the mixing of younger students with older
students. Some of the reactions
associated with this mix include:
“These young ones know so much and have so much time to work on this
material...” “These older students really intimidate me. They know so much and they have lots of time
to work on this course.”
These
are complex questions, and the classroom dynamics, in a subject that touches so
directly on lives, experiences and ideals while developing academic frameworks,
are often complex. This is part of a learning process, which at its best
involves a ‘breaking open’ to new ideas, perspectives and approaches, and a
commitment to rigorous critical thinking rather than reliance on preformed
opinions. Given that, I do have some responses to the kinds of concerns
identified above:
1. Some of the worst work has been done by 'pretend
feminists' -- largely because they don't take seriously or understand what they
are writing about. Conversely, excellent work has been produced by students who
explicitly do not use a feminist framework.
The key to a good mark in this or any course, is to produce good work --
work that is serious, well-argued, thoroughly researched, thoughtful and
inquiring;
2. Ideally, these materials can be discussed in an
environment in which students and teacher alike can learn from each other
together -- we each bring much of value.
It should also be added that often you, the reader, will already know
about what is covered in material in the book -- the role of an editor and
teacher is often to reinforce (even validate) what you already know and to
introduce new ways to think about it or take action in relation to your
knowledge and experience.
3. A course considering gender issues in law provides a
creative space for learning new things in new ways. It may engage a student or it may disturb or even outrage as
various ideas are examined. Periods of time in the course may be informative,
painful, empowering, or creative. This is all part of the learning
process. What is important is to create
an appropriate space for learning to occur. It is important that students
listen and show respect to one another.
4. In a course considering gender and law, it seems
particularly appropriate to accept as a principle that it is a priority to
learn from the point of view of women, a process in which men may also share
but in which they must also often listen.
5. As pointed out by Adrienne Rich in On Lies, Secrets
and Silences (1980), “I cannot imagine a feminist evolution leading to
radical change in the public/private realm of gender that is not rooted in the
conviction that all women’s lives are important; that the lives of men cannot
be understood by burying the lives of women; and that to make visible the full
meaning of women’s experience , to reinterpret knowledge in terms of that
experience, is now the most important task of thinking.” It remains, in my view, a vital part of the
task of thinking in 2002, although must progress has been made and there is
much greater recognition of the importance of normalcy of integrating women’s
experience into the core curriculum. It can be hoped that the transformation of
the core law curriculum from being in disguise, “men and the law” to “everyone
and the law”, will continue apace.
With
all that said, and some sense of the project being undertaken, I welcome you to
the journey through these materials.