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Hercules as a feminist judge? Revisiting Rackley's ‘Little Mermaid’ in the wake of the feminist judgments projects

Hickey, Tom orcid logoORCID: 0000-0001-7618-6786 (2020) Hercules as a feminist judge? Revisiting Rackley's ‘Little Mermaid’ in the wake of the feminist judgments projects. Legal Studies, 40 (3). pp. 494-506. ISSN 0261-3875

Abstract
In her early work, the feminist legal scholar Erika Rackley uses the image of Ronald Dworkin’s superjudge Hercules to shed light on the experience of the woman judge and on law and adjudication in the liberal legal order. She sees Hercules as representing the judge ‘who inhabits our legal imagination’, and as conjuring up problematic notions of unimpeachable wisdom, detached neutrality and super-humanism. This paper assesses Rackley’s argument in light of the feminist judgments scholarship that has emerged in the meantime. It contests Rackley’s claim that Hercules, or what he represents, is a patriarchal influence in the real world of law, and argues that he might instead be understood to accommodate, or even to encourage, principled evolutions in law along the lines of those suggested by the feminist judgments literature. This assessment is done mainly through the lens of Stokes v CBS Clonmel, a judgment of the Irish Supreme Court concerning indirect discrimination that was later the subject of a feminist judgment in the Northern/Irish Feminst Judgments volume. The broader aim of this assessment is to interrogate the insights and implications of feminist judgments scholarship. The paper is in four parts. Part 1 places feminist approaches to adjudication in broader theoretical context. Part 2 considers Dworkin’s theory of adjudication and Rackley’s critique. Part 3 sets out the approach taken by both the real-world and feminist judges in the Stokes case. Part 4 critiques Rackley’s take on Hercules in light of the approach adopted in those judgments and draws on preceding analysis to interrogate the insights and implications of feminist judgments scholarship.
Metadata
Item Type:Article (Published)
Refereed:Yes
Uncontrolled Keywords:feminist judgments projects; adjudication; Erika Rackley; Ronald Dworkin; judge Hercules; constructive interpretation; indirect discrimination; legal theory; Olivia Smith
Subjects:Social Sciences > Law
DCU Faculties and Centres:DCU Faculties and Schools > Faculty of Humanities and Social Science > School of Law and Government
Publisher:Cambridge University Press
Official URL:https://dx.doi.org/10.1017/lst.2020.18
Copyright Information:© 2020 The Author (CC BY-NC-ND)
Use License:This item is licensed under a Creative Commons Attribution-NonCommercial-Share Alike 3.0 License. View License
ID Code:25692
Deposited On:29 Apr 2021 11:08 by Thomas Murtagh . Last Modified 29 Apr 2021 11:08
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