Do Female Judges Judge Differently? Empirical Realities of a Theoretical Debate

CHAPTER � Do Female Judges Judge Differently? Empirical Realities of a Theoretical Debate Ulrike Schultz 1 The Influx of Women into the Judiciary In the Western world, the increase in highly-qualified working women over the course of the last two or three decades has raised the question of whether this would change the nature of traditionally male-dominated professions. Consequently, this leads to the question of whether women as judges and prosecutors would change the judiciary and its decision making.1 From a male point of view, this question was legitimate, as access to certain professions was denied to women until the start of the twentieth century in most of the Western world.2 In Western Europe, this situation even lasted until the later decades of the twentieth century. It was only after women gained the right to vote that they were admitted to the judiciary in countries like France (1946), Italy (1963) and Portugal (1974).3 Although continental European countries had passed constitutions containing equality principles in the course of the nineteenth century, women were not involved. Equality was for men only, according to the frater nité (brotherhood) principle in the French Revolution of 1789, which abolished the class structure, but did not introduce gender equality. It was not until after the emergence of socialist movements after the First and Second World Wars 1 In Germany judges and prosecutors both form part of the Justiz (judiciary), which is headed by the State Ministries of Justice, although the prosecution service is a government agency and judges are by definition independent. 2 In some states of the U.S. women were admitted in the later part of the nineteenth century. For details cf. New York Women’s Bar Association, Major Milestones in the History of Women Attorneys and Judges in the United States. http://www.nywba.org/history2.shtml, accessed June 3, 2015. 3 In the Netherlands women had earned the right to vote in 1919, but they were denied access to the judiciary until 1947 because that would have required them to be appointed for life, a situation that many deemed undesirable for married women. Until 1956, it was standard practice for working women to be dismissed upon marriage, as by law they gained a bread- winner (see Sonneveld, this volume). © Ulrike Schultz, ��7 | doi ��.��63/978900434��00_003 This is an open access chapter distributed under the terms of the CC BY-NC 4.0 license. Ulrike Schultz - 9789004342200 Downloaded from Brill.com09/27/2021 11:23:55PM via free access �4 Schultz that the new constitutions of the twentieth century finally introduced equality for men and women. In the same period, women had been denied the legal entitlement of a person in most parts of the Anglo-American world, and it took the Persons’ Acts4 to give them the right of access to higher professions and the judiciary. Today, in Europe, anti-discrimination legislation has abolished any kind of legal disadvantage, and provisions for affirmative action and quota regulations help women advance professionally, although they still face draw- backs in the labor market and career obstacles in the judiciary (Schultz 2012, 2013a). In many Central and Southern African countries, judges of both sexes encountered particularly serious obstacles, given that during the colonial period judicial matters were in the hands of colonizers trained in their respec- tive homelands, while natives were only permitted to deal with informal matters in tribal courts. The first law faculties were set up in these regions in the early 1960s, which laid the foundation for institutionalized academic legal training (Kamau 2013, 169). However, only the modern constitutions of recent decades have guaranteed legal equality for women and thus their right to be admitted to the judiciary. In South Africa, it was not until the regime change at the end of the apartheid era that the first black women could gain admission to the bench as judges. In many Muslim countries too, women had to wait decades for this to happen, although in Morocco, Tunisia, Indonesia, and Malaysia, for example, women were appointed as judges in the 1950s and 1960s, after independence from the colonial power. There are now female judges even in countries under strict Islamic rule, such as Kuwait (2010) and the United Arab Emirates (2008). Ever since the First International Conference on Women’s Rights in Mexico in 1975, NGOs working towards equal rights for women had vociferously demanded the admission of female judges, thereby exerting political pressure on governments to do so. This was reinforced by donor countries making development aid dependent on the actual implemen- tation of legal equality for women. Development politics were also significant in East Asian states such as the Philippines (Miwa 2013) and Cambodia (Sawa 2013). Nevertheless, there are still countries with no female judges. In Saudi Arabia, shariʿa law bans women from participation in public life, including any legal profession. The same applies in Iran.5 4 E.g. the British North America Act of 1867 needed an extension in its interpretation by the Privy Council in Edwards v. A.G. of Canada (1930) [1930] [A.C. 124]. 5 In Iran, Shereen Ebadi became the first female judge in 1970, but female judges were pro- hibited from judicial practice following the Iranian revolution in 1979. See http://news.bbc .co.uk/2/hi/middle_east/3181992.stm, accessed November 12, 2016. It is interesting to note that the Islamic Republic of Pakistan has a considerable number of female judges. Ulrike Schultz - 9789004342200 Downloaded from Brill.com09/27/2021 11:23:55PM via free access Do Female Judges Judge Differently? �5 As women began to gain ground in the judiciary, questions regarding their qualifications and abilities gained a new flavor. In the Western world, for example, the debate about gender disparities was picked up once again by the new, second-wave of feminism in the 1980s. While the first Women’s Movement in the nineteenth and early twentieth centuries had taken differences for granted and fought for access to education, equal rights, and participation on the basis of equal qualification, this time, the discussion was different. As a reaction to the male atrocities in the two World Wars, adherents of the second wave of feminism focused on two questions. First, were women ‘better’ individu- als than men, and, second, would women’s inclusion in powerful positions in society positively influence the world order? With regard to the judiciary, questions arose as to whether women were better, more humane judges, and whether the growing number of female judges would therefore positively influence the practice of law and the public percep- tion of the judiciary. In this chapter, an attempt is made to answer these questions, mainly using the example of Germany, as the bulk of my work in this field concentrates on women in the German judiciary, supported by results from international comparative research on gender and judging, which I have initi- ated and headed for more than 20 years.6 In the following segment, a historical overview of women’s participation in German legal professions is presented. This is followed by a section in which the context of the research question is explained. Section four discusses whether professional work as jurists changes or has changed practicing women, leading them to adopt a male model of justice, followed by an examination of the differences between male and female judges in terms of their professional behavior, attitude, and decision making. 2 Gender Issues in the German Judiciary Women had the opportunity to enroll in German law faculties for the first time in 1908. By 1912, they were allowed to take part in the first state examination, which follows legal education at university, and only in 1919 were they admitted to practical legal training that leads to the second state examination,7 which 6 For details, http://rcsl.iscte.pt/rcsl_wg_professions_subgr_women.htm, accessed November 2, 2016. 7 This is the German model of Einheitsjurist. Academic lawyers in Germany, i.e. judges, public prosecutors, notaries, practising lawyers (Rechtsanwälte), lawyers in the higher civil service and a good part of company lawyers go through the same dual phase legal training, studying law at university first, followed by a practical training organized by the appeal courts, each phase ending in a state examination set up by the state ministries of justice. After the second Ulrike Schultz - 9789004342200 Downloaded from Brill.com09/27/2021 11:23:55PM via free access �6 Schultz qualifies them to hold judicial office and enables jurists in Germany to practice as lawyers and notaries and—if their grades are good enough—to be admitted as judges or prosecutors, or to be employed in higher positions in the civil service. This process was followed by an intense debate in leading legal journals like the Juristische Wochenschrift (JW) about whether women could or should practice law. The arguments presented were that women would not be able to judge objectively due to their emotionality and their biologically-based mood swings. Therefore, it would be unthinkable to let them pronounce justice in court. It was also argued that women would be too delicate for the tough legal world and would need to be protected from it (Schultz 1990, 324 f.). This was in line with the bourgeois middle-class ideology that women’s, especially married women’s, rightful place was in the home as mothers and housewives. Furthermore, in respect to complaints of an overcrowded legal profession, the hidden fear was that the economic situation of lawyers would further deteriorate with an influx of women. Despite their access to legal education, female law graduates were still unable to practice.

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