BY GABRIELLE APPLEBY AND ROSALIND DIXON

Last week, the Gilbert + Tobin Centre of Public Law was delighted that the Hon. Margaret McMurdo AC launched the Feminist Judgments and Critical Judgments Projects website (www.criticaljudgments.com). Margaret was the first female president of an appellate court in Australia when she was appointed as the President of the Queensland Court of Appeal in 1998, and she has most recently been appointed to lead the Women’s Safety and Justice Taskforce in Queensland, where she will examine the experience of domestic and sexual violence victim’s experiences of the criminal justice system. As a long-serving, and pioneering, female jurist, Margaret has been a long supporter of the Feminist Judgments, and more recently, Critical Judgments Projects.

The website brings Feminist Judgments and Critical Judgments Projects from across the world (and their associated resources) together in one online repository for the first time. In these projects, leading feminist and critical academics, lawyers and activists imagine alternative, feminist and critical judgments to existing legal cases. They are now a significant global critical endeavour to reposition feminist and other critique from an external to an internal critique. As Professor Rosalind Dixon explained at the launch:

The Feminist Judgments Project was always about critique. It was about challenging the way judgments were framed, the way they were written and whose interests and needs they reflected. It was about revealing the degree to which the law was written by men for men, and showing the degree to which the assumptions embedded in existing judgments were gendered, both in their perspectives and in their impact. And by reimagining and rewriting judgments in a feminist voice those who contributed to these projects were able to show in a form that was accessible, lively, interesting and immediately relatable, critique of the kind that feminist legal scholarship had long aimed to imbue the law with.

There was also a reform agenda in many of the feminist judgments projects. Reimagining the law through a feminist lens in a way that combined critique with the possibility of a more positive, optimistic account of how law could be transformed to make it more gender inclusive and more gender equal.

The Breadth and Objectives of the Feminist and Critical Judgments Projects:

The Feminist Judgments and Critical Judgments Projects website demonstrates just how far the critical re-reading projects have extended.

In her remarks last week, Margaret McMurdo reflected on the history of the feminist judgments project. With its origins in the Canadian Women’s Court website, it was picked up by Rosemary Hunter, Clare McGlynn and Erika Rackley in England, leading to the publication of the first volume for the Projects: Feminist Judgments: From Theory to Practice (Hart Publishing, 2010). Margaret reflected on her early involvement with the projects through Professor Rosemary Hunter, including being invited to speak to the authors and commentators about the task of judgment writing for the Australian project (Heather Douglas, Francesca Bartlett, Trish Luker and Rosemary Hunter, Australian Feminist Judgments: Righting and Rewriting the Law (Hart Publishing, 2014)).

Today, Feminist Judgments Projects have been created in Canada, England, Australia, New Zealand, Ireland, Scotland, the United States, for International Law and the International Criminal Court, and are under development across the world. Critical Judgments Projects are available for the European Court of Human Rights, Integrated Human Rights, Wild Law, Children’s Rights, Medical Law, and most recently Indigenous Legal Judgments. There is also a UK Earth Law project under development.

These works bring feminist and other critiques of legal doctrine from an external, commentary-based perspective, to breathing reality into the possibility of feminist and critical judgment writing. A critical rewriting project aims to demonstrate the falsity of claims to neutrality and objectivity in the judicial legal method, and how these claims continue to privilege and protect traditional power hierarchies in society. It does so, however, not just through external critique, but through the act of re-writing, demonstrating that the possibility of broadening and diversifying the perspectives of judicial decision-makers has the capacity to change these dynamics. The re-written feminist and critical judgments in the projects provide an exploratory account of how a more diverse judiciary might approach decision making: how it might change not only reasoning, narrative and style, but also substantive outcomes.

No one project has approached this task in the same way: from the selection of critical perspectives, to the approaches each author has taken to the constraints of the judicial method, to the resources that have been created to complement the projects (from journal articles and teaching tools, to podcasts and artworks!)

The projects are directed at a diverse range of audiences: the judiciary; those responsible for appointing the judiciary; the legal profession; law students; and the public more broadly.

The educative potential of the Feminist and Critical Judgments Projects

Indeed, the importance of the Feminist and Critical Judgments Projects’ educative function has led us to include an entire section on the website for Teaching Resources.

All of the projects have the potential to be important educative resources: they can help students to learn about the different feminist and other critical approaches. They can also help students to understand how legal decision-making works and that the identity, background and perspective of the judges matter to how cases are decided, whose voices are heard, and how that impacts on the substantive outcomes of judicial systems.

Our own project, The Critical Judgments Project: Re-reading Monis v The Queen (Federation Press, 2016), was designed specifically as a teaching tool – to teach students critical theory, critical legal thinking and the assumptions inherent in legal method. It did this by introducing critical perspectives to students through rewritten judgments from the 2013 Australian High Court decision in Monis v The Queen. It takes a pluralised approach to critical approaches: including feminist but also a wider range of critical perspectives: feminism and the public-private divide, anti-subordination feminism, critical race theory, intersectional theory, queer theory/post-structural feminism, the capabilities approach, international human rights theory, law and literature, political liberalism, law and economics, restorative justice, preventative justice, and deliberative democratic theory. It presents these perspectives through a small number of extracts from canonical texts on which the relevant approach is based, supplemented, if necessary, by a short commentary explaining the approach, and a re-reading of a single case (Monis) to encourage students to engage more directly and immediately with the theory presented.

Margaret McMurdo reflected last week on the important educative function of the critical rewriting projects:

I wish those innovative projects and a website like this were on offer when I was a law student at UQ in the 1970s. We were taught bone dry black letter law. And given no understanding of how law acted in society or how critical legal thinking might develop the law for the public good. … This project dares law students, even if frustrated with the legal status quo, to dream about how a capable lawyer can use critical legal thinking to effect positive change to the law for the betterment of the community. The website, it seems to me, might well save talented but otherwise disillusioned students, academics and even practitioners from leaving the law, by expanding their horizons of future possibilities and help give them the skills and potential to realise that vision.

In the Critical Judgments book itself we provide teachers and students with a series of questions to assist them in navigating the critical perspectives, in reading the judgments, and also in understanding the purpose of the rereading project, which captures the objectives to which all of the critical judgments projects are directed. In addition, on the Teaching Resources page of the new website, we have shared a short teachers guide that we developed when we incorporated the Critical Judgments Project exercise into our compulsory Federal Constitutional Law course at UNSW.

We have included elsewhere a more detailed explanation of student responses to our project. The response has been overwhelmingly positive, and engaging with the project has been treated by students as a serious and important exercise. That’s not to say some students didn’t approach it with a dose of initial scepticism, but many saw critical judgment writing as a ‘useful tool’ after they had engaged with it. Other students have felt liberated even by the inclusion of the exercise in a compulsory constitutional law course. One of our Indigenous students, Noah Bedford, expressed his genuine excitement about the exercise:

I believe this excitement was in response to a harsh reality that I had never been afforded opportunities to develop my legal education through understandings of myself as an Indigenous person. That is, understandings of my identity were to date seemingly irrelevant to the overwhelming focus of my degree– the application of ‘objective’ legal doctrine. [Kath Gelber’s] judgment [written from a critical race theory perspective] encouraged me to contemplate how I could use my knowledge and experience as an Indigenous legal scholar to tear away this veneer of legal objectivity, one that has so often served to sanitise the laws [sic] violent operation on my people. From here, I could reimagine a new world of Indigenous law reform.

The most recent critical project: Indigenous Legal Judgments

At the launch of the Feminist Judgments and Critical Judgments Project website, we were extremely pleased to be joined by Associate Professor Nicole Watson, a Murri academic from south-east Queensland whose family hail from the Munanjali and Birri Gubba peoples of that area, and the Director of Nura Gili Academic Programs at UNSW. She is the co-editor with Professor Heather Douglas of Indigenous Legal Judgments: Bringing Indigenous Voices into Judicial Decision Making (Routledge, 2021).

Nicole had been involved in the original Australian Feminist Judgments Project, together with two other female Indigenous scholars. It was this experience, and the plurality of approaches that the Indigenous feminist scholars took in that earlier work, that led her and Heather to embark on a dedicated Indigenous Judgments Project. The project brings Indigenous peoples’ stories, historical experience, perspectives and worldviews into the realm of judicial decision-making in the Australian courtroom. Sixteen Australian cases are rewritten, challenging, for instance, current judicial approaches to understanding native title and justice for the Stolen Generations. Within the collection, Nicole explained that different authors have approached the exercise of rewriting decisions in different ways. Some have rewritten the judgments themselves: showing that within the parameters of legal doctrine Indigenous voices, history and perspectives can change the direction of the law. Others have rejected the structures of existing judicial decision-making institutions, imagining other forums through which justice might be delivered for Indigenous peoples. Others still have entirely rejected the possibility that the Australian legal system, integral as it has been to settler-colonialism, can ever be the site of delivering justice for Indigenous peoples in Australia.

Professor Megan Davis, a Cobble Cobble woman from the Barrungam nation in south-west Queensland, the Pro Vice-Chancellor Indigenous at UNSW and the Balnaves Chair of Constitutional Law, wrote in the foreword to this collection that, had such a collection been available when she was a student , it ‘would have done much to make me feel more welcome and less excluded from the “law”’, that it would be an antidote to the ‘intellectual loneliness’ that she experienced. Of course, it would be much more than that:

[T]hrough this exercise, and through these chapters, we empower our people. It is an expression of self-determination.

Nicole reflected last week on the project as one that she hoped would begin ‘a conversation about a more optimistic future. One in which the stories of Indigenous People whose names appear in judgments are heard, and, hopefully, honoured.’

An evolving repository

The intention of the new website is to bring together these resources so as to make the individual projects and resources more discoverable, and thus more frequently visited. It will hopefully play a small part in spreading the projects even further, and facilitating the further development and extension of this significant critical legal intervention. We invite any additions and suggestions for the website, please email us at gtcentre@unsw.edu.au.

Professor Rosalind Dixon is the Director of the Gilbert + Tobin Centre of Public Law at UNSW Law & Justice and Professor Gabrielle Appleby is the Director of the Judiciary Project at the Centre. They are Co-Directors of the Centre’s newly launched Gender and the Law Project.

Suggested citation: Gabrielle Appleby and Rosalind Dixon, ‘Launch of the Feminist Judgments and Critical Judgments Projects website!’ on AUSPUBLAW (15 September 2021) <https://auspublaw.org/2021/09/launch-of-the-feminist-judgments-and-critical-judgments-projects-website/>.