Feminist Constitutional Theory
This Workshop will take place on Wednesday 28th May 2014 from 14.00 – 17.00pm in the Raeburn Room (Old College).
14:10-14:40 Prof Rosemary Hunter (University of Kent):, “The Promises and Limits of Feminist Judgment Projects for Constitutional Theory”
14:40-15:10 Prof Jena McGill (University of Ottawa): “Feminist Challenges in Canadian Constitutional Equality Law ”
15:10-15:30 Tea/coffee break
15:30-16:00 Dr Maria Drakopoulou (University of Kent): “Of Feminism, Liberalism and Law’s Foundational Texts”
16:00-16:20 Prof Christine Bell (University of Edinburgh), discussant
Unlike with other academic fields, feminist engagements with constitutional theory remain surprisingly scarce. Ambitious recent projects have proposed a ‘feminist constitutionalism’ approach “to explore the relationship between constitutional law and feminism by examining, challenging, and redefining the very idea of constitutionalism from a feminist perspective.” (Beverley Baines, Daphne Barak-Erez and Tsvi Kahana, Feminist Constitutionalism, CUP, 2012) Other projects have engaged in a ‘gender audit’ of constitution-making, looking at the framing questions, the range of options available and the participation mechanisms in place within a polity, with an express goal of moving beyond rights-centrism and looking at broader constitutional structures. (Helen Irving, Gender and the Constitution, CUP, 2008) These projects echo and attempt to move beyond earlier calls for a ‘feminist constitutional agenda’. (Beverly Baines and Ruth Rubio-Marin, The Gender of Constitutional Jurisprudence, CUP, 2005)
Another high-profile project in this area, and the one at the heart of the proposed workshop, is the Feminist Judgments project, in which academics drafted alternative feminist judgments in a series of significant English cases. Its stated aim was to “test and apply feminist knowledge in practice”. (Rosemary Hunter, Clare McGlynn and Erika Rackley, Feminist Judgments: From Theory to Practice, Hart Publishing, 2010) Inspired by a similar Canadian venture, the Women’s Court of Canada, the project has since spawned offshoots in international criminal law, American and Australian constitutional law and continues to grow.
The proposed workshop builds upon the theoretical insights of the project and asks questions such as:
- What lessons can we learn from the project about how individual jurists can influence the development of constitutional law along feminist lines?
- How might institutional or practical constraints on judging operate to preclude the adoption of feminist perspectives in constitutional matters?
- How should judges reconcile the need to take full account of context with concerns about consistency and predictability?
- Is there a distinctly feminist approach to theorising the legitimacy of judicial review?
- Are there particular aspects of the constitutional inquiry, e.g. proportionality review, which are especially likely to elicit problems from a feminist perspective?
- What role does social context play in feminist judging on constitutional matters? How should judges reconcile the pursuit of gender justice with concerns about consistency and predictability?
- How can the feminist judgments project be harnessed to increase the representation of feminist voices in constitutional theory more generally?
The workshop thus aims to take the feminist judgments project as the starting point for a more far-reaching interrogation of the avenues for engagement between feminist theory and constitutional law.