“Could it be that we still have a vision of the judge and the judgment that is intrinsically masculine, so much so that the notion of a woman judge can appear as a contradiction in terms? Lady Justice Hale posed this question to the audience at Fiona Woolf’s annual ‘Women in the Justice System’ lecture in London in 2014. This was before she became the first woman to serve as Chief Justice of the UK. Hopefully in a few years, Justice Ayesha Malik, newly appointed to the Supreme Court of Pakistan, will find herself in a similar role, when she dons the robes of Pakistan’s highest judicial office. Her elevation to the supreme court and the circumstances surrounding her, including the debate over the “principle of seniority”, raise similar questions about the notion of a female judge in Pakistan.
The most important question that we Pakistanis should ask ourselves is whether, and if so, how, the jurisprudential outlook of the Supreme Court will change in the coming years. Since time immemorial, it has been a burning question among legal scholars: why is the law a reflection of male power and authority? To answer this question, “feminist jurisprudence” has developed as a distinct field of legal theory. Professor Ann Scales first coined the term in her attempt to “to make a feminist evaluation of jurisprudence and a jurisprudential vision of feminism”. Since then, this field and its proponents have endeavored to theorize law from the point of view of that constituency of law, which has traditionally been excluded in its dialectic, namely the woman.
Recalling her first case as a lawyer, Judge Majida Razvi said she was shocked when a client told her senior, in her presence, ‘I gave fees for you and not for her’ . What can this girl do?’.
Conventions of traditional jurisprudence portray the law as rational, gender-neutral regulation of human conduct, which is far from the truth. Critics argue that such theorizing of law actually envelops the gendered reality of its subjects. This gendered reality of the law sees men as valiant, rational and objective while it sees women as fragile, emotional and subjective. For example, the common law’s favorite legal fiction is “the reasonable man” or “the man on the Clapham omnibus”. It’s a classic example of how law and society are judged by male standards. It also means that women are expected to adopt the male standard of decision-making and “reasonableness”. U.S. Supreme Court Justice Ruth Bader Ginsburg argued that there were no distinctive masculine or feminine styles of thinking or writing, endorsing Justice Marie Jeanne Coyne’s views that “A wise old man and a wise old woman come to the same conclusion”– an appropriate response to the deep manly expectations of law, the legal system and legal theory.
The misogynistic genesis of Western legal philosophy goes back to Aristotle, who asserted that “The male is more fit to rule than the female, unless conditions are quite contrary to nature.” This not only reveals hidden gender biases in the philosophy of law, or the patriarchal order of law, but also challenges the claim of objectivity and rationality of law. When viewed through an objective lens, Aristotle’s fundamental views underlie the workings of legal systems that operate exclusively. Objective analysis is precisely what lies at the heart of feminist jurisprudence – an attempt to develop a legal philosophy that highlights inequalities and discriminations in law.
Among its many facets, feminist jurisprudence encompasses an analysis of the socio-legal discrimination that has customarily denied women access to high public office. One of the central principles of feminist jurisprudence includes the “woman question”. By way of illustration, the question of women becomes paramount when, even after having formally entered categories of employment hitherto excluded, women find themselves subject to inequalities. In a recent interview, Justice Majida Razvi, Pakistan’s first female judge to be elevated to a superior court, noted that a very experienced lawyer once told her that there was no place for women in the superior judiciary. Recalling her first case as a lawyer, she said she was shocked when a client said to her senior, in her presence: “I paid fees for you and not for her. What can this girl do?’. This draws attention to another dimension of feminist jurisprudence, which is ‘gender sensitivity’. A few years ago, Judge Ayesha Malik highlighted this aspect when speaking to the High Court Bar Association of Lahore (HCBA): “Gender awareness is about realizing that everyone is of equal value.”
Feminist legal perspectives help remedy the discriminatory and patriarchal doctrines of a bygone era. The presence of a female judge in the Supreme Court of Pakistan serves an uplifting purpose in raising gender-inclusive consciousness. It is a ray of hope that the highest court in the country is now more receptive to questions of inequality and discrimination. More importantly, it will offer new jurisprudential perspectives. Empirical studies carried out by American academics have shown that the presence of women judges in senior judicial positions bears witness to the improvement in methods of legal analysis. A female lawyer informed by feminist jurisprudence is more likely to ask questions and provide analysis, hitherto overlooked by mainstream legal thinking.
Studies further indicate that feminist case law applied by a female judge can address substantive and procedural legal issues that have had discriminatory implications in the past, particularly in cases related to equal protection of the law; procedural fairness; employment discrimination; fundamental rights and minority rights. Additionally, female judges have the potential to provide a more pronounced and non-traditional judicial voice. This becomes even more likely because supreme court judges are typically involved in the development of case law through contextual analysis, rather than a simplified application of customary legal principles.
Judges represent the law, and where inequality is reflected in law-making, female jurists guided by feminist jurisprudence are needed to ensure the representation of women as equal subjects of law. These are indeed new beginnings in the judicial history of Pakistan.
The author is a law student at the University of Sindh.