Feminist legal scholars have never cut the first woman appointed to the Supreme Court of Canada as much slack as the second. Yet the first, Justice Bertha Wilson, introduced the contextual method into the Court’s jurisprudence. Her approach to contextualism is consistent with one of three feminist legal methods that Katharine T. Bartlett identifies. More specifically, it is consistent with Bartlett’s feminist practical reasoning. However, Justice Wilson’s contextualism is not without its critics. The most challenging, Ruth Colker, contends it must (...) work in conjunction with a distinctive substantive principle. Justice Wilson took a different approach, aligning the contextual method with the constitutional principle of proportionality. Thus construed, this paper argues, contextualism represents a new approach to feminist judging. (shrink)

In Feminism and the Power of Law Carol Smart argued “law must also be tackled at the conceptual level if feminist discourses are to take a firmer root” (Smart in Feminism and the power of law, Routledge, London, 1989, 5). In Canada, the Women’s Legal Education and Action Fund (LEAF) ’tackled‘ the concept of comparison in the age equality case of Withler v Canada, 2008 BCCA 539. Rejecting ’similarly situated ‘(or ’groups‘) comparison as inconsistent with substantive equality, LEAF advocated a (...) “contextual” approach to import gender into the Withler frame. However, LEAF did not identify a male comparator even though all of the plaintiffs were women. Accordingly, it is unclear whether LEAF’s contextual approach obviates comparison, permits comparing some women to other women, or is synonymous with ‘grounds’ comparison. I argue LEAF could have named the patriarchal state as the male comparator in Withler, thereby aligning their contextual approach with ‘grounds’ comparison and offering substantive equality a ’firmer root’. (shrink)

To explain how constitutions shape and are shaped by women's lives, the contributors to this volume examine constitutional cases pertaining to women in twelve countries. Analyzing jurisprudence about reproductive, sexual, familial, socio-economic, and democratic rights, they focus constructively on women's claims to equality, asking who makes these claims, what constitutional rights inform them, how they have evolved, what arguments work in defending them, and how they relate to other national issues. Their findings reveal significant similarities in outcomes and in reasoning (...) about women's constitutional rights in these twelve countries, challenging the tradition of distinguishing constitutional jurisprudence depending on whether the country has a written or unwritten constitution, subscribes to civil or common law, is a federal or unitary state, limits constitutional adjudication to the public domain, accords international norms binding or subject to incorporation force, or relies on a specialized or general court to adjudicate constitutional matters. (shrink)