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High, Dr Anna --- "Book review - Feminist judgments of Aotearoa New Zealand. Te rino : a two-stranded rope edited by Elisabeth McDonald, Rhonda Powell, M⭡ri Stephens and Rosemary Hunter" [2018] OtaLawRw 8; (2018) 15 Otago LR 317

Last Updated: 23 May 2021

BOOK REVIEW

Feminist Judgments of Aotearoa New Zealand Te Rino: A Two-Stranded Rope

(Edited by Elisabeth McDonald, Rhonda Powell, Māmari Stephens

and Rosemary Hunter, Hart Publishing, 2017)

Former South African Constitutional Court judge and feminist Justice Albie Sachs has described his judgments as lies.¹ Despite what (some) students hear in law school, and despite appearances, legal judgments are not the result of “the dispassionate placing of logical propositions in rationally ordained sequence”. Rather, Justice Sachs explains, in addition to logic, judges inevitably bring intuition – or the “logic of discovery” – to the task of legal reasoning, intuition that is informed and shaped by life experiences, assumptions and beliefs. For Justice Sachs, this is not cause for alarm, or a reason for cynicism, because in judicial reasoning, discovery intersects with justification – “a discovery that cannot be justified simply cannot stand”.²
The distinction between the logic of discovery and the logic of justification is a useful starting point for considering the various feminist judgment projects that have been carried out or are underway in jurisdictions around the world. As presented in Feminist Judgments of Aotearoa New Zealand Te Rino: A Two-Stranded Rope³ (hereafter Te Rino), and like its sister projects abroad, New Zealand’s feminist judgment project reimagines the processes and outcomes of judicial reasoning in twenty- five significant New Zealand cases in a way that accommodates feminist and mana wahine perspectives. Through these judgments, and the accompanying commentaries, the contributors to Te Rino acknowledge and harness the “logic of discovery” that underpins judicial reasoning. By doing so, the project points to the “lie” of judicial neutrality. For each judgment, a commentator discusses the mono-cultural and patriarchal norms and assumptions that may have been perpetuated by the original decision, and how those norms and assumptions could be called into question by bringing the “intuition” (to use Justice Sachs’ terminology) of feminist and mana wahine thought to the process. In some cases, this new perspective results in different outcomes or remedies; in all cases, whether or not the reader agrees with the revised reasoning, they are challenged to consider the role of norms and assumptions in both the original and rewritten judgments.

1. Albie Sachs The Strange Alchemy of Life and Law (Oxford University Press, Oxford, 2009) at 47.

2 At 53.

3. Elisabeth McDonald and others Feminist Judgments of Aotearoa New Zealand, Te Rino: A Two-Stranded Rope (Hart Publishing, Oxford, 2017).

By way of background, the feminist judgment-writing movement began in Canada with the Women’s Court of Canada (WCC) in 2007, the brainchild of a group of lawyers and academics associated with Canada’s Women’s Legal Education and Action Fund (LEAF). Rosemary Hunter reports that in the early 2000s, LEAF was facing an apparent decrease in Supreme Court receptivity to its substantive equality arguments, particularly in cases involving section 15 (the equality clause) of the Canadian Charter of Rights and Freedoms.⁴ The WCC was a strategic response to this – a project to rewrite Supreme Court decisions as a way of showing how a substantive equality analysis could transform Charter equality jurisprudence.⁵ The WCC inspired a sister Feminist Judgments Project in England, one with a wider remit but the same commitment to drawing attention to the missing feminist perspectives in key English judgments.⁶ Australia,⁷ the United States⁸ and Ireland⁹ soon followed suit, and equivalent projects are underway in Africa, Scotland and India.¹⁰ In each jurisdiction, the rewriting project is distinctively local
– for example, the WCC focused on jurisprudence under the Canadian Charter’s equality clause; the Australian project made space for the voices of indigenous women; and the theme of the Northern/Irish project was “judges’ troubles” and identity politics.
Like these examples, Te Rino is uniquely New Zealand in character, due to the inclusion of both feminist and mana wahine perspectives (although only six of the twenty-five judgments adopt the latter framework – the mana wahine contributions collectively make a strong case for a follow- on indigenous rewriting project). Mana wahine is defined by Te Rino as a Māori understanding of “the prestige and authority of women”.¹¹ As applied in Te Rino, mana wahine can be understood as an intersectional

4. Rosemary Hunter “The Power of Feminist Judgments?” (2012) 20(2) Fem Leg Stud 135 at 136.
5. Decisions of the Women’s Court of Canada were published in the Canadian Journal of Women and the Law volume 18, 2006. See Diana Majury “Introducing the Women’s Court of Canada” (2006) 18(1) Can J Women & L 1.
6. Rosemary Hunter, Clare McGlynn and Erika Rackley Feminist Judgments: From Theory to Practice (Hart Publishing, Oxford, 2010).
7. Heather Douglas and others Australian Feminist Judgments: Righting and Rewriting the Law (Hart Publishing, Oxford, 2015).
8. Kathryn M Stanchi and others Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Cambridge University Press, Cambridge, 2016).
9. Máiréad Enright, Julie McCandless and Aoife O’Donoghue Northern/Irish Feminist Judgments: Judges’ Troubles and the Gendered Politics of Identity (Hart Publishing, Oxford, 2017).
10. See calls and updates for feminist judgment projects in Africa (www. lawandglobaljustice.com/the-african-feminist-judgments-project/); Scotland (www.sfjp.law.ed.ac.uk); and India (https://fjpindia.wixsite. com/fjpi/).
11. McDonald and others above n 3, at xxii.

feminist approach deriving from kaupapa Māori, a method that “genuinely places Māori people, and Māori practices at the centre of a given initiative or project”.¹² Mana wahine, the daughter of kaupapa Māori, places Māori women and their primary concerns at its centre, and is described by the Te Rino editors as comprising at least five aspects:

(1) claiming visible space for Māori women; (2) identifying rights and obligations, sourced in Māori law, that would uphold the mana of Māori women and their families; (3) placing Māori people and concerns at the centre of the analysis; (4) accounting for Māori reality in the application of legal tests; and (5) respecting Māori values.¹³ The convenors of the project also sought to ensure that mana wahine informed the processes of Te Rino – for example, all contributors participated in workshops as an opportunity for forming a sense of kötahitanga (unity in purpose) through face-to-face collaboration.

Apart from its incorporation of mana wahine, Te Rino builds upon a number of themes evidenced in previous feminist rewriting projects. As explained in Rosemary Hunter’s introduction to the judgments, these themes include applying feminist theoretical approaches; recognising women’s stories; and challenging gender bias.¹⁴ As in its predecessors, each judgment is prefaced with a commentary introducing the reader to the original decision, including its legal, social and political context, fact pattern, reasoning and result. In terms of the substantive judgments selected for rewrite, the breadth of legal topics covered is striking. In particular, the inclusion of commercial law and environmental law cases demonstrates the very broad applicability and impact of a feminist rewriting methodology. In Victoria Stace’s reimagining of Stephens v Barron,¹⁵ dealing with the insulation of commercial actors from liability for damage caused to the plaintiff’s home and family, a feminist lens functions as a safeguard against the typical social/legal devaluing of interests relating to the private sphere. Similarly, Nicola Wheen brings an ecofeminist approach to Squid Fishery Management Co Ltd v Ministry of Fisheries,¹⁶ a framework that challenges the dominant hierarchical relationship between man and nature just as feminism generally challenges structures of male domination/female subordination.¹⁷ The breadth of legal issues presented in Te Rino makes this a useful generalist law text for students and scholars seeking to understand the history, institutions and conventions of the New Zealand legal system, even as the book demonstrates how feminist and indigenous perspectives can

12 At 41.

13 At 44.

14 At 31– 41.

15. Stephens v Barron [2014] NZCA 82, (2014) PRNZ 734.
16. Squid Fishery Management Co Ltd v Ministry of Fisheries [2004] NZCA 24; (2004) 17 PRNZ 104 (CA).
17. Elaine L Hughes “Fishwives and Other Tails: Ecofeminism and Environmental Law” (1995) 8 Can J Women & L 502.

be applied to challenge both individual outcomes and underpinning structures across all genres of the law.
Another important inclusion in Te Rino is a feminist rewrite authored by the same judge who authored the original case. Poet and retired family court judge John Adams bravely took on the task of rewriting his own decision in V v V.¹⁸ His rewritten V v V feminist judgment exposes the subtle gender bias that can be inherent in the exercise of judicial discretion as judges “cling to the safety” of tests and formula that purport to be neutral.¹⁹ As feminist legal theorists point out, these purportedly objective tests may in fact perpetuate gender injustice by failing to take into account the differential experiences and realities of men and women. In Ms V’s case, this injustice played out in her original application to the Family Court, in which she sought compensation for post-separation economic disparity caused by the division of functions during her marriage – she had spent her 21-year marriage to Mr V running the household, supporting her husband and being the primary caregiver of the couple’s four children, to the detriment of her future earning potential. At the time, s 15 of the Property (Relationships) Act 1976 was a new provision allowing for deviation from a 50/50 division of relationship property in such cases. However, the section was silent on how to calculate a just deviation. In his original decision, Judge Adams adopted a formula that was subsequently criticised by commentators as too rigid to achieve individualised substantive equality for homemakers like Ms V, as was the clear policy objective of section 15. In his Te Rino rewrite, Adams’ starting point is the gendered nature of Ms V’s socio- political circumstances. The subsequent contextualised analysis leads Adams to give fuller effect to the underlying purpose of s 15, with a more robust, less formulaic approach to the question of fairness (and awarding Ms V significantly more compensation as a result – $120,000 rather than $38,660).
A notable point of congruence between the feminist and mana wahine judgments of Te Rino is the emphasis on placing women at the centre of legal analysis through the prioritisation of narrative. In her introduction to the feminist judging method, Rhonda Powell points out the enormous power that is exercised by a judge when she constructs and relays the facts of a case.²⁰ A key feature of feminist judicial writing is to begin with female stories and experiences rather than legal categories. This contextualisation may in some cases influence reasoning, as in Adams’ rewrite of V v V. But in all cases, the emphasis on storytelling creates space to acknowledge the lived experiences of women, which are frequently marginalised in traditional legal reasoning. In this way, Powell argues that judicial storytelling can play a “potentially therapeutic

18 V v V [2002] NZFLR 1105 (FC).

19. Vivienne Crawshaw and Khyati Shah “Commentary on V v V: A Fair Share of the Pavlova?” in McDonald and others, above n 3, at 235.
20. McDonald and others, above n 3, at 35.

role” for parties, regardless of outcome.²¹ This shift to humanising fact- framing acknowledges that parties to legal disputes should be treated in accordance with their mana and dignity, and not merely as means to a legal end.
In some cases, this feminist concern for mana/dignity resulted in a judgment that deliberately refrained from storytelling. For example, Ruka v Department of Social Welfare²² involved a Māori appellant, Isabella Ruka, who had been convicted of various charges relating to her receipt of a domestic purposes benefit during the course of a 17 year relationship with “T”, on the grounds that persons living in a “relationship in the nature of marriage” are not eligible for that benefit.²³ On appeal against conviction, the Court of Appeal considered whether a relationship utterly lacking in financial and emotional commitment – such as T’s abusive relationship with Ms Ruka – comprised such a relationship. As the commentary explains, in Māmari Stephens’ rewriting, the feminist judge consciously chose not to recount in detail Ms Ruka’s extensive suffering as a domestic violence victim, in order to better preserve her mana and uphold her personhood.²⁴
This theme of acknowledgement is extended not only to the “micro socio-political realities” of women as parties to legal disputes,²⁵ but also in the mana wahine judgments to specifically Māori values and struggles. In the same Ruka case, Stephens’ concurring opinion takes care to ensure that Ms Ruka’s identity as a Māori woman is acknowledged. This subtle reframing does not lead to a different substantive outcome (Stephens agreed with the original Court of Appeal’s decision that Ms Ruka’s abusive relationship with T was not a “relationship in the nature of marriage”) but does create space for legal analysis of relevant customary Māori concepts of marriage. Similarly, in their dissenting Court of Appeal judgment in Bruce v Edwards,²⁶ Kerensa Johnston and Mariah Hori Te Pa choose to retell the facts of the dispute using Māori language and concepts. The case concerned application of Te Ture Whenua Maori (Maori Land Act) 1993, but as Jacinta Ruru’s commentary points out, the original decision was nonetheless notably “devoid of Māori law and history”.²⁷ Johnston and Hori Te Pa’s judgment intentionally highlights a marginalised Māori perspective of land disputes, nodding to the broader context of colonial dispossession of Māori whānau land.

21 At 35.

22. Ruka v Department of Social Welfare [1996] NZCA 487; [1997] 1 NZLR 154 (CA).
23. Social Security Act 1964, s 63(b).
24. Catriona MacLennan “Commentary on Ruka v Department of Social Welfare: Defining a Relationship for the Purposes of State Support” in McDonald and others, above n 3, at 92.
25. Crawshaw and Shah, above n 19, at 231.
26. Bruce v Edwards [2002] NZCA 294; [2003] 1 NZLR 515 (CA).
27. Jacinta Ruru “Commentary on Bruce v Edwards Taonga Tuku Iho: The Generational Treasure of Land” in McDonald and others, above n 3, at 335.

Te Rino’s emphasis on restructuring narrative to acknowledge and foreground women and Māori perspectives raises the question of who judges are speaking to when they write their decisions. The obvious response is: law students, lawyers, other judges. These readers will certainly benefit from Te Rino as an illustration of feminist critical legal theory as one possible iteration of the judicial “logic of discovery”. There is also an aspirational message to Te Rino: that judges are uniquely positioned to speak to parties with different agendas and perspectives and interests in a mana and dignity enhancing way. Here I again return to Justice Sachs’ description of the heart of the judicial process: ²⁸

To discover the humanity, the integrity, the honesty in everybody, and to present your response in a way that everybody can say ‘I understand what is being said; I have grave doubts about the result; but the judgment acknowledges what I’m thinking, knows where I am, and takes account of my convictions and respects my conscience and dignity; I’m not being defined out of the answer by what purports to be a completely neutral way of framing issues and arriving at conclusions; my convictions, values and perspectives are being taken seriously and treated thoughtfully and with respect.’

Women generally and Māori women especially have for a long time been “defined out of the answer” by a legal system that tends to both embody and deny underlying gendered and monocultural biases. Te Rino and its sister projects around the world are an important corrective to those biases.

Dr Anna High, Faculty of Law, University of Otago.

28. Sachs, above n 1, at 239.