Gender and Judging in the Middle East and Africa: Emerging Scholarship and Debates

The social and political influence of courts has increased in recent decades. The expansion of judicial power worldwide raises important questions about who the judges are and what their role is. The workshop brings together scholars from different countries in order to address women's participation in judicial decision making processes in the Middle East and Africa. During the past decades, the appointment of women judges has increased in the Middle East and Africa. This increase, however, is only beginning to be reflected in socio-legal judicial studies where the perspective of women judges has been almost completely lacking with the exception of the pioneering socio-legal study by Bauer and Dawuni (2016) and Sonneveld and Lindbekk (2017). The proposed workshop aims to contribute to this burgeoning literature by undertaking a comparative study of women in the judiciary in the context of the Middle East and Africa and to complement, enrich and add new aspects to the comparative work on Gender and Judging, Women in the Judiciary and Gender and Judicial Education which Ulrike Schultz and Gisela Shaw have edited in the past ten years. The proposed workshop approaches the subject matter from two angles: First, judicial selection processes and subsequent legal careers; secondly, the workshop addresses gender aspects of judging.

With regard to the first issue, a major argument used to promote gender balance in the judiciary is grounded in the question of democratic legitimacy. Further, both proponents and opponents of women working as judges argue that women are more empathetic and sensitive than men. While these presumed qualities could be regarded as a strength, they are also used to generate doubt about the suitability of women as judicial authorities and their ability to judge objectively. In Muslim-majority countries of the Middle East, opposition has been reinforced by arguments that the inclusion of women in the judiciary violates Islamic shari‘a. A majority of the classical scholars held that women’s deficient intellectual and religious capacities made them unfit for a position that involved imposing their decisions on others. Despite domestic opposition, the appointment of women judges in countries with a Muslim majority has been growing over the previous decade and a half. Similarly, several African countries have also witnessed significant strides in terms of women’s representation on the bench over the past twenty years. In the 1990s and 2000s, women in countries as geographically, legally, and politically diverse as Benin, Ghana, Lesotho, Nigeria, and Rwanda have taken on leadership roles as chief justice or president of the constitutional court.

In order to arrive at a nuanced understanding of the subject matter, comparative analysis is used to shed light on the mechanisms which hinder and facilitate women’s judicial careers. Workshop participants are asked to pay attention to the following questions:

1. on what grounds is the inclusion of women in the judiciary justified or considered necessary;
2. what is the role played by international pressure (UN Women, The African Union) combined with financial aid and assistance from (inter)national donor organizations in the appointment of female judges?
3. What is the impact of different legal systems (often a mix of common law, civil law, local customary law and shari’a law) and government policies such as gender quotas on the subject matter?
4. Are there differences in the said countries in terms of the number of female judges appointed as well as the type (civil vs. shari’a) and level (lower vs. appellate) of courts to which women are nominated?

Turning to court practice, the focus of the workshop is on marriage, divorce, child custody, inheritance, domestic violence, employment, and property rights because these are matters crucial to debates about gender and citizenship. In many of the analyzed countries, the domain of family law is also the field of law most influenced by religious precepts. The following themes will be addressed:

1. Do male and female judges (re)produce or challenge gender hierarchy in their dispensation of justice;
2. which sources of law are used to underpin gender norms (legislation, precedent, custom, religious norms, principles of justice etc.)
3. to what extent do gender and other factors influence judging;
4. how do women perceive working in a previously male-dominated environment. Early scholarship on women judges was colored by essentialist assumptions about the difference women in positions of power should make. Rather than asking whether women judges offer a different voice, more recent scholarship on law and society theorizes the related notions of diversity on the bench, democratic legitimacy, difference, and representativeness through a gender lens. With the aim of generating systematic, comparative empirical research, the workshop provides an international platform for discussion between socio-legal scholars who have extensive knowledge on the subject matter in the Western world (Schultz) and outstanding academics on courts in the Middle East (Abou-Ramadan, Cardinal, Carlisle, Dahlgren, Lindbekk, Engelcke, Hellestveit, Maktabi, Moghadam, Shahada, Sonneveld, Voorhoeve, Welchman, Yassari) and Africa (Dawuni, Achnakech. Tønnesen; Ellett, Kang, Ibrahim, Masengu, Oxtoby). The major output from this workshop is the publication of a comparative book on gender and judging in the Middle East and Africa.