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Published online by Cambridge University Press: 15 June 2020
In her early work, the feminist legal scholar Erika Rackley uses the image of Ronald Dworkin's superjudge Hercules to shed light on the experience of the woman judge and on law and adjudication in the liberal legal order. She sees Hercules as representing the judge ‘who inhabits our legal imagination’, and as conjuring up problematic notions of unimpeachable wisdom, detached neutrality and super-humanism. This paper assesses Rackley's argument in light of the feminist judgments scholarship that has emerged in the meantime. It contests Rackley's claim that Hercules, or what he represents, is a patriarchal influence in the real world of law, and argues that he might instead be understood to accommodate, or even to encourage, principled evolutions in law along the lines of those suggested by the feminist judgments literature. This assessment is done mainly through the lens of Stokes v CBS Clonmel, a judgment of the Irish Supreme Court concerning indirect discrimination that was later the subject of a feminist judgment in the Northern/Irish Feminst Judgments volume. The broader aim of this assessment is to interrogate the insights and implications of feminist judgments scholarship.
The paper is in four parts. Part 1 places feminist approaches to adjudication in broader theoretical context. Part 2 considers Dworkin's theory of adjudication and Rackley's critique. Part 3 sets out the approach taken by both the real-world and feminist judges in the Stokes case. Part 4 critiques Rackley's take on Hercules in light of the approach adopted in those judgments and draws on preceding analysis to interrogate the insights and implications of feminist judgments scholarship.
The author wishes to thank Professor Stephen Guest for his interest and his comments. Thank you also to Bruce Wardhaugh, Olivia Smith and the anonymous reviewers.
1 See for example Hunter, R et al. Feminist Judgments: From Theory to Practice (Oxford: Hart Publishing, 2010)Google Scholar; Douglas, H et al. Australian Feminist Judgments: Righting and Rewriting Law (Oxford: Hart Publishing, 2015)Google Scholar; Enright, M et al. Northern/Irish Feminist Judgments Project: Judges’ Troubles: The Gendered Politics of Identity in Irish and Northern Irish Courts (Oxford: Hart Publishing, 2017)Google Scholar.
2 See Freeman, MLloyd's Introduction to Jurisprudence (London: Sweet & Maxwell, 8th edn, 2008) pp 985–1034, 1209–1284Google Scholar. ‘Crits’ is the phrase often used, including occasionally by Ronald Dworkin, as shorthand for scholars in the Critical Legal Studies school.
3 For a critique of the reductive use of the notion of ‘liberal legalism’ in critical legal and feminist legal scholarship see Coleman, J and Leiter, B ‘Determinacy, objectivity and authority’ (1993) 142(2) University of Pennsylvania Law Review 549 at 551–553CrossRefGoogle Scholar.
4 Freeman, above n 2, p 985.
5 See Kennedy, DA Critique of Adjudication (Harvard University Press, 1997) chs 9–11Google Scholar.
6 See Bennion, FUnderstanding Common Law Legislation (Oxford: Oxford University Press, 2001) p 2Google Scholar.
7 On the general theme see Veitch, S et al. Jurisprudence: Themes and Concepts (Routledge, 2007) pp 92–95Google Scholar.
8 Gilligan, CIn a Different Voice – Psychological Theory and Women's Development (Cambridge: Harvard University Press, 1982, reprint 1993)Google Scholar.
9 Gilligan has defended her thesis from these criticisms around essentialism; see C Gilligan ‘Letter to Readers, 1993’ in the 1993 reprint of the book. For an interesting critique see Hunter, R ‘Deconstructing the subjects of feminism: the essentialism debate in feminist theory and practice’ (1996) 6 Australian Feminist Law Journal 135CrossRefGoogle Scholar. See also Rackley, E ‘From Arachne to Charlotte: an imaginative revisiting of Gilligan's “In a Different Voice”’ (2007) 13 William & Mary Journal of Women & Law 751Google Scholar.
10 See Rackley, E ‘Representations of the (woman) judge: Hercules, the little mermaid, and the vain and naked Emperor’ (2002) 22(4) Legal Studies 602 at 602CrossRefGoogle Scholar.
11 R Hunter ‘An account of feminist judging’ in Hunter et al, above n 1, pp 32–36.
12 Ibid, p 35.
13 M Enright et al ‘Introduction: troubling judgment’ in Enright et al, above n 1, p 8.
14 Smart, CFeminism and the Power of Law (London: Routledge, 1989) p 160Google Scholar.
15 Dworkin, RTaking Rights Seriously (Cambridge: Harvard University Press, 1978)Google Scholar; Dworkin, RLaw's Empire (Oxford: Hart Publishing, 1986)Google Scholar.
16 Riggs v Palmer 115 NY 506 (1989). See Dworkin Taking Rights Seriously, above n 15, pp 23–45; Dworkin Law's Empire, above n 15, pp 15–20.
17 As the judges put it in their majority judgment, the relevant statutes, ‘if literally construed…give this property to the murderer’. See Dworkin Taking Rights Seriously, above n 15, p 23.
18 Dworkin Law's Empire, above n 15, pp 15–20.
19 Dworkin Law's Empire, above n 15, p 255.
20 I take this to be an uncontroversial claim. It is sometimes suggested that Dworkin de-emphasised Hercules in later work as he came to see it as tending to lead critics astray. If so, he did so only by mentioning him less in books and articles published in the 2000s. He refers extensively to Hercules, and approvingly, in Law's Empire (1986). He refers to him less extensively, although again approvingly, in Justice in Robes (2006). In all instances, as I understand it, he treats Hercules as part of his theory of adjudication more generally. See in particular his discussion under the heading ‘Hercules and Minerva’ in Dworkin, RJustice in Robes (Cambridge: Harvard University Press, 2006) pp 53–57Google Scholar. For analysis of the shifts in Dworkin's thinking between Taking Rights Seriously and Law's Empire, see Coleman and Leiter, above n 3, at 633–634.
21 Dworkin Taking Rights Seriously, above n 15, p 105.
22 Dworkin Law's Empire, above n 15, pp 264–265.
23 Dworkin, RJustice in Robes (Cambridge: Harvard University Press, 2006) p 54Google Scholar.
24 Ibid.
25 Guest, SRonald Dworkin (Stanford University Press, 3rd edn, 2012) pp 84–85CrossRefGoogle Scholar.
26 Dworkin Law's Empire, above n 15, pp 266–275.
27 Ibid, pp 228–238.
28 See Rackley, above n 10; E Rackley ‘When Hercules met the happy prince: re-imagining the judge’ (2005) 12 Texas Wesleyan Law Review 213; Rackley, E ‘Judicial diversity, the woman judge and fairy tale endings’ (2007) 27(1) Legal Studies 74CrossRefGoogle Scholar.
29 Rackley, above n 10, at 615–616.
30 Rackley (2005), above n 28, at 231.
31 Rackley, above n 10, at 618; Rackley (2005), above n 28, at 220.
32 For empirical studies that broadly support Rackley's thesis, see for example Sommerlad, H ‘Let history judge? Gender, race, class and performative identity: a study of woman judges in England and Wales’ in Schultz, U and Shaw, GGender and Judging (Oxford: Hart Publishing, 2015)Google Scholar. See also B Bogoch ‘Lawyers in the courtroom: gender, trials and professional performance in Israel’ in the same volume.
33 West, RCaring for Justice (New York: NYU Press, 1997)Google Scholar as elaborated in Rackley (2005), above n 28, at 224–227.
34 Rackley, above n 10, at 618.
35 Rackley (2005), above n 28, at 218.
36 Rackley, above n 10, at 616.
37 Stokes v Christian Brothers High School Clonmel [2015] IR 509. For analysis of the Equal Status Acts see Walsh, JEqual Status Acts 2000–2011: Discrimination in the Provision of Goods and Services (Dublin: Blackhall, 2012)Google Scholar.
38 Equal Status Acts 2000–2008, s 3(1)(c).
39 See O Smith ‘Christian Bros High School v Mary Stokes – judgment’ in Enright et al, above n 1, p 356.
40 Stokes v Christian Brothers High School Clonmel [2015] IR 509 at 539.
41 [2015] IR 509 at 532 (emphasis added).
42 [2015] IR 509 at 541.
43 [2015] IR 509 at 542.
44 [2015] IR 509 at 545.
45 [2015] IR 509 at 548.
46 [2015] IR 509 at 551–552.
47 [2015] IR 509 at 552.
48 See for example R MacCormaic ‘Frank Clarke – leading judge with influential history’ Irish Times 26 July 2017. See also ‘“Moral argument” for civil legal aid boost – Clarke’ in Law Society Gazette, 2019.
49 Including the Burden of Proof Directive, the Recast Equal Treatment Directive, the Framework Employment Equality Directive and the Race Directive. See Smith, above n 39, pp 359–360.
50 Ibid, p 360.
51 She points to Recital 15 of the Race Directive, which states that national rules ‘may provide in particular for indirect discrimination to be established by any means including on the basis of statistical evidence’: ibid, p 360.
52 Ibid, pp 360–361.
53 Ibid, p 362.
54 Ibid.
55 [2015] IR 509 at 545–546.
56 Bruton endorses Smith J's approach on this point. See C Bruton ‘Commentary on Christian Brothers High School Clonmel v Mary Stokes and the Equality Authority’ in Enright et al, above n 1, pp 350–351.
57 Art 2(2)(b). Smith, above n 39, p 358.
58 The case is R v Secretary of State for Employment, ex p Seymour Smith [2000] 1 WLR 435, mentioned in [2015] IESC 13 at para 9.1
59 In her accompanying commentary in the Feminist Judgments volume, Claire Bruton describes these omissions on the part of Clarke J as ‘striking’: see Bruton, above n 56, p 350.
60 MacCormaic, above n 48.
61 Dworkin Law's Empire, above n 15, pp 46–53.
62 Ibid, p 47.
63 Ibid, p 48.
64 Ibid.
65 Ibid, pp 52–53.
66 Lord Reid ‘The judge as law-maker’ (1972) The Journal of Public Teachers of Law 12 at 22.
67 Claire Bruton would seem to support such an argument vis-à-vis the respective judgments – albeit that she does not put it in such terms: see Bruton, above n 56, pp 345–352.
68 Ibid, p 347.
69 Hunter, above n 11, pp 35, 37–40.
70 Smith, above n 39, p 354.
71 The argument is ‘important’ insofar as it underlines the importance of appointing more women judges, and indeed of judicial diversity in general. It suggests that we should want a more diverse judiciary not just for symbolic reasons or reasons relating to democratic legitimacy, but for substantive reasons relating to interpretation and outcomes in law as well. For a complementary argument see Hunter, R ‘More than just a different face? Judicial diversity and decision-making’ (2015) 68 Current Legal Problems 119 at 122–125CrossRefGoogle Scholar.
72 Rackley does say at one point that her understanding of Hercules and Dworkin's understanding ‘are [not] necessarily correspondent’ on all points. See Rackley, above n 10, at 604 fn 5. While she is quite entitled to use creative licence to present her argument, this seems to go some way further.
73 See Dworkin, RJustice for Hedgehogs (Cambridge: Harvard University Press, 2011) p 143CrossRefGoogle Scholar.
74 Ibid, p 144.
75 Enright et al, above n 13, p 7.