莎朗·考恩、Chloë肯尼迪和凡妮莎·门罗合著了《苏格兰女权主义者的判断:(重新)由外而内创造法律》。牛津:布鲁姆斯伯里出版社,2019。440页。

IF 0.5 Q3 LAW Canadian Journal of Law and Society Pub Date : 2021-12-01 DOI:10.1017/cls.2021.34
Debra M Haak
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引用次数: 0

摘要

女权主义判决项目是由加拿大妇女法院(WCC)构思的,该法院成立于2004年,是一个影子法院,旨在从女权主义的角度改写加拿大最高法院的裁决。WCC复制司法形式和声音,并遵循适用的证据和先例规则,旨在表明最高法院的裁决可以合法地进行推理或以不同的方式作出决定。1自2008年WCC公布前六份判决以来,改写后的女权主义判决现在已在其他司法管辖区公布,包括英格兰、威尔士、北爱尔兰,爱尔兰、澳大利亚、新西兰和美国。每一个女权主义判决项目都是独一无二的,每个项目都旨在影响自己的国家法律领域。最近出版的《苏格兰女权主义判决:(重新)从外到内创造法律》介绍了16篇改写的苏格兰判决,每一篇都附有专家的评论和判决作者的反思性陈述。19名评判作家和16名评论者中包括5人。法官们选择了自己的案件,涉及各种各样的主题,采用了实质性和方法性的女权主义干预措施。判决分为四个标题:犯罪、受害和暴力;家庭、家和归属;关系义务、平等和歧视;以及公民身份、文化和保护。这一对FJP的贡献还增加了七件苏格兰艺术家的作品,其中包括超越律师和法律学者熟悉的文本格式,使该项目在法律界之外更容易获得。这些艺术作品可以通过苏格兰女权主义判决项目网站上举办的虚拟展览访问。2本书的一个核心焦点是女权主义问题,就像20年前WCC成立时一样紧迫:如何在标准的法律方法中充分代表女性的经历。没有比Drury诉HM Advocate一案更清楚地表明,普通法规则和推理的应用掩盖了女性的生活经历,该案涉及性不忠例外,对挑衅进行部分辩护。在本案中,一名被指控的男性在发现其前女性伴侣与另一名男性在一起后暴力袭击并杀害了她。克莱尔·麦克迪亚米德在改写的判决中指出,《苏格兰法》无原则地扩大了对挑衅的辩护,在性不忠的情况下,该法只要求被告知道不忠并在冲动或激情下杀害。这位女权主义法官在她改写的判决中提出的政策问题是,法律是否应该继续将“如此高的
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Sharon Cowan, Chloë Kennedy, and Vanessa Munro, edsScottish Feminist Judgments: (Re)Creating Law from the Outside In. Oxford: Bloomsbury, 2019. 440 pp.
The Feminist Judgments Project (FJP) was conceived by the Women’s Court of Canada (WCC), formed in 2004 as a shadow court to rewrite Supreme Court of Canada decisions from feminist perspectives. Replicating judicial form and voice, and following applicable rules of evidence and precedent, the WCC aimed to show that Supreme Court decisions could legitimately have been reasoned or decided differently.1 Since the first six judgments were published by the WCC in 2008, rewritten feminist judgments have now been published in other jurisdictions, including England, Wales, Northern Ireland, Ireland, Australia, New Zealand, and the United States. Every feminist judgments project is unique, each aiming to impact its own national legal terrain. Recently published Scottish Feminist Judgments: (Re)Creating Law from the Outside In presents sixteen rewritten Scottish judgments, each accompanied by commentary from an expert and a reflective statement from the judgment writer. Five men are included among the nineteen judgment writers and sixteen commentators. Judges selected their own cases, spanning a diverse range of topics, applying substantive and methodological feminist interventions. The judgments are grouped under four headings: crime, victimisation, and violence; family, home, and belonging; relational duties, equality, and discrimination; and citizenship, culture, and protection. This contribution to the FJP also adds seven works from Scottish artists, included to transcend the textual format familiar to lawyers and legal academics and make the project more accessible outside the legal community. The artistic works can be accessed via a virtual exhibition hosted on the Scottish Feminist Judgments Project website.2 A central focus of this book is a feminist concern as pressing now as it was when the WCC was formed almost two decades ago: how to fully represent women’s experiences within standard legal methods. No rewritten judgement more clearly demonstrates how the application of common law rules and reasoning obscure women’s lived experiences than Drury v HM Advocate, a case dealing with the sexual infidelity exception to the partial defence of provocation. In this case, an accused male violently assaulted and killed his former female partner after finding her with another man. In her rewritten judgment, Claire McDiarmid points to the unprincipled expansion of the defence of provocation in Scots Law, which, in the case of sexual infidelity, required only that an accused had learned of infidelity and killed under impulse or passion. The policy question this feminist judge raises in her rewritten judgment is whether the law should continue to place “such a high
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来源期刊
CiteScore
1.40
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发文量
28
期刊介绍: The Canadian Journal of Law and Society is pleased to announce that it has a new home and editorial board. As of January 2008, the Journal is housed in the Law Department at Carleton University. Michel Coutu and Mariana Valverde are the Journal’s new co-editors (in French and English respectively) and Dawn Moore is now serving as the Journal’s Managing Editor. As always, the journal is committed to publishing high caliber, original academic work in the field of law and society scholarship. CJLS/RCDS has wide circulation and an international reputation for showcasing quality scholarship that speaks to both theoretical and empirical issues in sociolegal studies.
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