Northern/Irish Feminist Judgments: Judges’ Troubles and the Gendered Politics of Identity

Description

The Northern/Irish Feminist Judgments Project inaugurates a fresh dialogue on gender, legal judgment, judicial power and national identity in Ireland and Northern Ireland. Through a process of judicial re-imagining, the project takes account of the peculiarly Northern/Irish concerns in shaping gender through judicial practice. This collection, following on from feminist judgments projects in Canada, England and Australia takes the feminist judging methodology in challenging new directions. This book collects 26 rewritten judgments, covering a range of substantive areas. As well as opinions from appellate courts, the book includes first instance decisions and a fictional review of a Tribunal of Inquiry. Each feminist judgment is accompanied by a commentary putting the case in its social context and explaining the original decision. The book also includes introductory chapters examining the project methodology, constructions of national identity, theoretical and conceptual issues pertaining to feminist judging, and the legal context of both jurisdictions. The book, shines a light on past and future possibilities — and limitations — for judgment on the island of Ireland. A prayer to St Bridget in her most pagan incarnation Foreword Acknowledgements Contents The Contributors Abbreviations Table of Cases Table of Statutes and Legislation Part I:
Introduction 1 Introduction: Troubling Judgment The Northern/Irish Feminist Judgments Project Feminist Judgments Projects and Feminist Judging Methodology Possible New Directions Troubling Judgment The Organisation of the Book Potential Applications and Implications Cases by Subject Area88 2 "Involuntary Patriotism": Judgment, Women and National Identity on the Island of Ireland Projecting Identity: Judges, Ethnos and Law Judgment, Women and National Identity: Mothers for the Nation Mothering in the Rewritten Judgments: Exposing and Undoing Judicial Identity Commitments Conclusion: Hesitant Fathers, Rebellious Daughters 3 Doing Feminist Judgments Introduction Feminist Judgments Projects Identity and Feminisms Technical Knowledge and Feminist Judging Feminist Knowledge: Practical Wisdom Conclusion 4 Judging and the Judgment Writing Process: A Northern/Irish Perspective Introduction Judgment Writing Within the Project Northern Ireland Republic of Ireland Voice of Women in Northern/Irish Legal Orders Part II: Mothering Subjects 5 Commentary on McGee v Attorney General Hearing Mrs McGee The Marital Family in McGee McGee and Conscience Beyond the Judgment: Transformative Illegality Conclusion 6 Commentary on Flynn v Power Introduction The Facts of Flynn v Power Social Context The High Court Judgment Crafting a Feminist Judgment The Feminist Judgment Conclusion 7 Commentary on MhicMath\xfana v Attorney General Introduction Background and Context The High and Supreme Court Judgments The Feminist Judgment 8 Commentary on theMatrimonial Homes Bill Introduction Marriage as Partnership The Authority of the Family Role of the Woman in the Home 9 Commentary on National and Provincial Building Society v Lynd Introduction Case Context The Feminist Judgment Conclusion 10 Commentary on The Report of the Tribunal of Inquiry into the "Kerry Babies Case" Introduction Social Context The Facts The Feminist "Judgment" The Tribunal of Inquiry Female Credibility in Courtroom Proceedings Community Support Conclusion INDEX Part III: Othered Subjects 11 Commentary on McGimpsey v Ireland Introduction Understanding McGimpsey v Ireland Political Context Questions of Citizenship and Standing From One or Other Community Concluding Remarks Locus Standi The Merits 12 Commentary on In Re White Introduction Women in Politics during the "Troubles" The Northern Ireland Multi-Party Peace Negotiations Women in Politics after the Good Friday Agreement The Interface Between Law and Politics in Northern Ireland Conclusion Proceedings to Date Does "representative of the community" in the context of parading refer only to the two sectarian blocks? What is the scope of the Secretary of State"s discretion to appoint? Did the Secretary of State act "as far as practicable" to ensure representativeness? The Intervention of the Northern Ireland Human Rights Commission 13 Commentary on Lobe v Minister for Justice, Equality and Law Reform Social, Policy and Legal Context Lobe and Osayande-the Supreme Court Decision The Aftermath The Feminist Judgment The Future Situation of Irish Citizen Children and Their Non-Irish National Family Members in Ireland 14 Commentary on Zappone and Gilligan v The Revenue Commissioners, Ireland and the Attorney General Introduction Dynamic Constitutional Interpretation Discrimination and the Role of Parliament Child-rearing as a Locus of Prejudice 15 Commentary on In Re E (a child) (the "Holy Cross" case) Introduction Taking the Case: The Importance of Strategic Litigation to Women Taking the Case Transcendental Legal Nonsense? 16 Commentary on O"Keeffe v Hickey Introduction The Action The Decision of the European Court of Human Rights in O"Keeffe v Ireland The Feminist Judgment 17 Commentary on Christian Brothers High School Clonmel v Mary Stokes and the Equality Authority Introduction Particular Disadvantage The Feminist Judgment Part IV:
Choosing Subjects 18 Commentary on Attorney General v X Introduction The Emergence of Article 40.3.3 The Harm of Article 40.3.3 Attorney General v X Re-imagined "One Step Forward "35 Concluding Remarks 19 Commentary on North Western Health Board v HW and CW (the PKU case) The Power Structures of the Irish Constitutional Family Mandatory Medical Services? The Judgment Implications 20 Commentary on PM v The Board of Management of St Vincent"s Hospital and Justin Geoghegan and the Attorney General Introduction Placing PM at the Centre of the Judgment Agency The Importance of a Relational Approach to Autonomy Conclusion The Facts Conduct of the Hearing Fair Procedures The Requirement for Consent to Medical Treatment Status of Advance Refusals in Irish Law Other Relevant Constitutional Rights Presumptions The Evidence Provided Decision 21 Commentary on Re Family Planning Association of Northern Ireland v The Minister for Health, Social Services and Public Safety Background to Judgment Further Legal Developments Further Social/Cultural Developments Limitations of Legal Judgment Feminist Judgment-What Difference It Might Have Made? 22 Commentary on Society for the Protection of Unborn Children"s Application for Judicial Review The Facts Injecting a Feminist Approach and Reconsidering Medicalisation The Northern Ireland Context Deciding on SPUC"s Challenge Envoi Part V:
Embodied Subjects 23 Commentary on DPP v Tiernan The Decision Application of Tiernan The Feminist Judgment 24 Commentary on McKinley v Minister for Defence Introduction The Original Supreme Court Judgments in McKinley A Dilemma for the Feminist Judge The Feminist Judgment A Broader Vista? An Alternative Approach 25 Commentary on BJM v CM Introduction The High Court Decision Irish Law on Marital Breakdown The Feminist Judgment The Embodied Subject Marriage Conclusion 26 Commentary on DPP v C Introduction DPP v C The Right to Sexual Agency Victimisation Conclusion 27 Commentary on CC v Ireland Introduction This Commentary Context and the Age of Consent Responsibility for Wrongs and Culpability Responses to Sexual Violence: The Efficacy and Legitimacy of the Punitive State Conclusion 28 Commentary on Foy v An t-Ard Chl\xe1raitheoir Background to the Case1 The 2002 Foy Judgment The 2007 Foy Judgment Political and Legislative Developments Post-2007 The Gender Recognition Bill 2014 Feminist Judgment of Ms Justice Ní Mhuirthile Analysis of the Feminist Judgment 29 Commentary on Barnes v Belfast City Council The Facts Interpreting the Law Evaluating the Expert Evidence Presentation of Evidence How the Judgments Construct Lennox Conclusion 30 Commentary on A and B (by C) v A (Health and Social Services Trust) Introduction Unpacking Racism in Northern Ireland The Impact of Northern Ireland"s Cultural Dynamics Situating the Feminist Perspective Glossary of Terms Index