Introduction

Abstract

The introduction provides an overview of the background of the textbook and explains its purpose as well as its expectations. The larger context for the need for gender-competent legal education is presented. In addition, the structure of the textbook and the chapters covered are briefly introduced.

One of the key findings of the July 2022 Global Gender Gap Report of the World Economic Forum is this: “At the current rate of progress, it will take 132 years to reach full parity.”¹

This textbook Gender Competent Legal Knowledge explains the legal mechanisms available for accelerating that process and is the result of joint work of authors from five European universities—Lumsa University (Italy), Cadiz University (Spain), Orebro University (Sweden), Saarland University (Germany), and Belgrade University (Serbia) which also acted as coordinator. These institutions have been working together since 2019 on the Erasmus+ project entitled New Quality in Education for Gender Equality – Strategic Partnership for the Development of Master’s Study program “Law and Gender”—LAWGEM. One of the main intellectual outputs of the LAWGEM project is the publication of this textbook, which reflects all relevant fields of legal education of the curriculum for the master’s study program “Law and Gender”. This book will not only be used in this master program, but will also equally be highly relevant for any effort to study law in a systemic and gender-competent way.

Male dominated law and legal knowledge has almost completely characterized the whole of pre-modern history inasmuch as the patriarchy represented the axis of social relations in both the private and public spheres. Indeed, modern and even contemporary law still have embedded elements of patriarchal heritage, even in the secular modern legal systems of Western developed countries, either within the content of legislation or in its implementation and interpretation. This is true across different legal systems to a greater or lesser extent, although the secular modern legal systems of the Western developed countries have made great advances in terms of gender equality in law. The traditional understanding of law has always been self-evidently dominated by men, but modern law and its understanding has itself also been more or less male-streamed. It has become necessary to overcome the given maskulinity of the legal thought. This necessity emerges as a logical consequence, as well as practical demand based on civilizational shifts brought about through modern political revolutions and the gradual development of consciousness of the centrality of dignity of each person, universal equality of all individuals. Along with gender-based equality, this has also meant the necessity of recognition of differences among individuals belonging to sexual minority groups.

Gender inequality and heteronomous social relations within the patriarchal matrix still represent something uncontestable for many men and even women, including many legal scholars and practitioners of law of all genders. The mainstream of the legal theory, knowledge, and practice has been male-streamed even in contemporary times. However, the shift in historical consciousness (in Hegel’s words) towards building an emancipatory, gender-equal matrix has been an unstoppable process; although this does not mean that the mentioned process cannot be halted or slowed down here and there. Generally speaking, if this emancipatory matrix had been allowed to evolve only spontaneously, it would have been a rather slow process, while the patriarchal heritage has remained stubbornly present, changing its modalities in order not only to survive but also to attempt to maintain or even increase its domination. Boosting emancipatory processes through various institutional, collective, and personal mechanisms is necessary, and it is especially productive and useful if done within legal and higher education. Male-dominant or male-streamed legal knowledge, education, and practice should be transformed into gender-mainstreamed and gender competent knowledge, education, and practice.

In contemporary legal and political orders, gender mainstreaming of law has been of the utmost importance for overcoming a deep and persistent embeddedness of power relations and gender-based heteronomous social relations. Consequently, complementary and, equally important, the gender mainstreaming of legal education—to which this book aims to contribute—serves for a gradual elimination of the mentioned male dominance and power relations from legal education and higher education as a whole.

The textbook Gender Competent Legal Knowledge represent a pioneering and unique intellectual attempt towards a systemic gender mainstreaming of legal education and higher education in general. The title of the textbook implies that the chapters and the textbook as a whole intend to reconsider from gender equality perspective all relevant fields of law and other fields of multidisciplinary knowledge closely related to law. The term “gender-competent” is used to accentuate the reconsideration of different fields of legal knowledge from the point of gender equality approach and with offering relevant and convincing arguments in that regard. It is addressed to all students and learners worldwide, with an attempt to raise their gender awareness in mainstream legal knowledge. The intention is to invite scholars to broaden their views and to open their minds for theoretical, methodological and pedagogical approaches which prioritize gender equality over allegedly neutral concepts, which however contain heteronormative power relations, male domination and female subordination.

Regarding the legal background, public international law and supranational EU law are playing ever more important roles in a globalized world. This has also raised the importance of introducing gender competency in making, interpreting, applying and adjudicating international and supranational law as well as teaching and learning it. While we have come a long way regarding de jure and de facto equality of women in international and supranational law, a huge gap between promise or theory and reality or practice remains there, too. Narrowing that gap is not easy because the backlash against (international) human rights in the name of “national autonomy” and “traditional values” which we are currently witnessing is often specifically directed against the rights of women and non-binary persons. We need more gender sensitivity in the making and enforcement of inter-/supranational as well as national law, and for that, gender-sensitive legal education needs to be intensified. On the other hand, we must spread the word that the gender-equality standards of international and supranational law are often more advanced than those in national legal systems and that they can and should be used as benchmarks for further progress on the ground.

The famous documents initiating the human rights revolution in the late eighteenth century were formulated by men and proclaimed the human rights of men²—to such an extent that Olympe de Gouges felt compelled to add her own declaration of the rights of women in 1791.³ The situation is different with the United Nations Charter of 1945 that brought about the human rights revolution at the international level by transforming the human rights protection from the domaine réservé of individual sovereign States to a matter of concern for the international community as a whole. The Charter immediately adopted the notion of equal rights of women. Underlining the “dignity and worth of the human person” and the “equal rights of men and women” in its Preamble, the Charter went on by declaring in Art. 1 (3) that “[t]o achieve international co-operation … in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to … sex“ was one of the purposes of the United Nations. The Charter obliges the United Nations to promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to … sex” in Art. 55 lit. c and in Art. 56, “[a]ll Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55.” In 1948, the UN General Assembly proclaimed the Universal Declaration of Human Rights in gender-neutral terms, underlining the equal rights of men and women and the prohibition of discrimination based on sex.⁴ The Declaration had been drafted by the UN Human Rights Commission chaired by Eleanor Roosevelt.⁵

This was a good start in theory and it was somewhat belatedly followed by the two International Covenants of 1966, general human rights treaties prohibiting discrimination on ground of sex and obliging States Parties to ensure equal rights of men and women.⁶ But in practice UN Member States had to admit the obvious in 1979—that “extensive discrimination against women continues to exist”, so that a gender-specific Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was needed.⁷ As a matter of fact, stereotyped roles for “superior” men and “inferior” women have long been deeply entrenched in the cultural and religious traditions of many societies. Thus, while CEDAW is one of the most widely accepted of the nine core human rights treaties at UN level, it is also the one riddled with the greatest number of far-reaching and impermissible reservations by States. These States obviously fear the effective realisation of women’s rights and the creation of substantive equality with men because that inevitably requires “a change in the traditional role of men as well as the role of women in society and in the family”, as the preamble of CEDAW expressly and rightly states. Moreover, CEDAW’s implementation mechanism (a mere State reporting system) is weaker than the implementation mechanisms of other core human rights treaties, not least because the treaty body (Committee on the Elimination of Discrimination against Women) is limited to one annual meeting period of normally not more than two weeks to consider the reports submitted by the States.⁸ The 1999 Optional Protocol to CEDAW that introduced an individual complaint mechanism has so far been ratified by only sixty percent of the States Parties of CEDAW.⁹

The unpleasant truth is that despite all these efforts, “extensive discrimination against women continues to exist” even more than forty years after the entry into force of CEDAW in 1981. In these forty years we have even witnessed barbarous acts against Bosnian, Yezidi, Rohingya and many other women which have outraged the conscience of humankind and led to the inclusion of gender-specific offences in the code of crimes under international law, specifically as variants of crimes against humanity and war crimes.¹⁰ Obviously, one cannot in a few decades change attitudes that have hardened for centuries if not millennia. But at least we have widespread agreement today that the gender gap in the effective realisation of global human rights constitutes a serious problem which needs to be solved in order to consummate the human rights revolution and ensure freedom, justice and peace in the world. In other words, there already is a high degree of gender-sensitive problem awareness and it is growing. Thus, international public opinion is closely watching the fate of women’s rights in Afghanistan after the takeover by the Taliban. But we definitely need to accelerate the frustratingly slow pace of closing that gender gap—and for that purpose also make determined use of the instruments of international and supranational law at our disposal. That presupposes not only gender-competent legal education in general, but gender-competent education in international and supranational law in particular.

On the regional levels, only Africa has an equivalent to CEDAW—the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa of 2003.¹¹ In the Americas and in Europe, we only find special treaties on the prevention and elimination of violence against women: The Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belém do Pará) of 1994¹² and the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) of 2011. In Asia, there is no gender-specific human rights treaty.¹³ The Arab region, which straddles Africa and Asia, has not brought forth any gender-specific treaty, but the Arab Charter on Human Rights of 2008 addresses the obligation to eliminate discrimination on grounds of sex and guarantee “effective equality” between men and women as well as the need to protect women from all forms of violence or abuse in family relations.¹⁴ But on the regional level, all is not well either: Turkey that had been proud to be among the first States to sign the Istanbul Convention in 2011 denounced it in March 2021, although the number of women killed there, mostly by (former) male partners or family members continues to rise. The good news is that this move provoked heavy criticism both inside and outside Turkey and that deliberations in Poland to leave the Convention as well have not been pursued any further. This is an encouraging sign of gender-sensitivity in transnational public opinion.

In supranational law, the equality between women and men does not only feature prominently among the values of the European Union set forth in Art. 2 TEU as well as the Charter of Fundamental Rights,¹⁵ but the EU is outright charged with combatting discrimination and promoting equality between women and men.¹⁶ The EU has fulfilled this obligation to a considerable extent by enacting various Directives.¹⁷ More specifically, Member States are obliged under Art. 157 (1) TFEU to “ensure that the principle of equal pay for male and female workers for equal work is applied”. That obligation was already included in Art. 119 of the original Treaty establishing the European Economic Community of 1957 and the European Court of Justice determined forty-five years ago that the supranational principle of equal pay was directly applicable, giving underpaid women an actionable entitlement also vis-à-vis private employers.¹⁸ It also partakes in the primacy of supranational law over the law of the Member States.¹⁹ Yet, there still is a significant gender pay gap in many Member States and thus a gap between promise and reality regarding equal rights of women in the EU, too.

Another EU-specific example for the gap between promise and reality regarding equal rights for women is the delay in the ratification of the Istanbul Convention which the EU signed already in 2017. Only 21 Member States have become parties to the Convention so far, the other six have only signed it because in the national ratification processes objections based on traditional conceptions of the family were raised. Apart from the question on what TFEU-articles the Council decision to authorise the conclusion of the Istanbul Convention on behalf of the Union should be based, the problem is whether the Council can adopt that decision before all the Member States have ratified the Convention. The European Parliament requested an opinion from the Court of Justice of the European Union pursuant to Art. 218 (11) TFEU on these questions which was given on 6 October 2021.²⁰ The Court decided that it was within the discretion of the Council whether or not to wait until all the Member States had ratified. In any event, the ratification of the Istanbul Convention by the EU (and the closing of the gap between promise and reality) has not yet been accomplished.

A third such gap is currently about to open up: Commission President von der Leyen announced in her State of the Union Address on 15 September 2021 that by the end of the year, the Commission would propose a law to combat violence against women.²¹ On 8 March 2022, the Commission published its Proposal for a Directive of the European Parliament and of the Council on combating violence against women and domestic violence.²² The Commission proposes the EU legislature use powers pursuant to Art. 82 (2) and Art. 83 (1) TFEU which would permit the Council to decide by qualified majority within the ordinary legislative procedure.²³ But Art. 82 (3) and Art. 83 (3) TFEU both give every Member States veto power to shield “fundamental aspects of its criminal justice system”. It is quite likely that at least one of the six Member States that have so far refused to ratify the Istanbul Convention will use its veto to derail the proposal. On the other hand, the fact that the Commission President has made such an announcement on this important occasion, investing political capital on a gender issue, shows that she expects a political profit. She obviously believes that the amount of gender awareness and sensitivity has grown considerably throughout the EU.

This overview of international and supranational developments demonstrates that the gap between promise and reality regarding equal rights for women is still significant also at those levels. But at the same time it reveals that international and supranational law have the potential to improve the situation of women by helping to overcome national obstacles and resistance. International and supranational law can lead the way by performing a role-model function, because these areas of the law are further detached from the cultural and religious traditions of individual societies that often prevent progress. On the other hand, that detachment inevitably lowers the legitimacy of international and supranational solutions. In order to prevent a backlash, one must avoid the impression that solutions are imposed from above. Rather, it is a matter of persuasion by opening up new and broader perspectives to as many people as possible. It should be made clear that by discriminating women societies waste talents and suffer a competitive disadvantage.

This textbook is intended to make a contribution to these efforts. Without gender-competent legal knowledge there will be no gender equality—neither in law nor in real life. Since lawyers are also multipliers for raising gender awareness and sensitivity in the society at large, teaching them gender competency will have a real impact.

The chapters of this book articulate scientific analyses of all legal fields of knowledge related to the positive civil, public, international, criminal law, European Union Law, as well as to the legal-economic, legal-historical, theoretical-legal fields of legal education. Metaphorically speaking, the mainstream interpretation of the mentioned fields of legal education and knowledge production will be “deconstructed” and “reconstructed” from a gender-sensitive point of view. Visibility of the female half of the population will have to be accomplished by first demonstrating how pre-modern law defined women in a discriminatory manner, and how modern law also made women invisible in the concepts of universal rights of men and citizens, i.e., identified the notion of legal universality and equality with the male population. It will show how women had to fight from the eighteenth century onwards to become visible in the law and get equal voting and education rights. And finally, in general, how gender equality has been framed in different dimensions and fields of law and legal education, including both women’s rights as well as rights of non-binary persons (who, although they have received some justifiable visibility and importance in the public realm also must be promoted in the frame of human rights protections).

This textbook will certainly stimulate its users, but also the broader legal public to continue reconsidering the law and specific fields of interest within it from a gender perspective. The educators have passed through an innovative learning process: they have been educating themselves about gender-competent approaches, in order to be capable to impart new quality knowledge to their students and colleagues. That is how the spiral of progressive gender mainstreaming of legal education will be conducted and promoted. Structural conservatism linked to legal education will be questioned and the overcoming of the male stream status quo will be taken up by a growing number of law professors and professionals. Gender-mainstreaming of the legal education implies and demands building and enhancing this chain of mutually interconnected processes of learning/teaching/studying in favor of gender equality.

This textbook is intended to make a contribution to these efforts. Without gender-competent legal knowledge there will be no gender equality—neither in law nor in real life. Since lawyers are also multipliers for raising gender awareness and sensitivity in the society at large, teaching them gender competency will have a real impact.

In aiming to achieve the gender-competent reconstruction of legal knowledge in particular fields and do so in a systematic, consistent way with regard to all relevant fields of law, this project set itself a pioneering task. It could be characterized as an innovation: (1) in a factual sense, as it is the first attempt at a systemic reconstruction of legal knowledge from a gender equality perspective; and (2) in an essential sense, due to its intent to reconstruct legal education from within. Trying to reconsider law across all its disciplines in a way that goes beyond the mainstream/male stream matrix, indeed to reform legal knowledge systematically from within, that same matrix has been itself revolutionized. Doing that by studying the extra-curricular feminist legal literature has meant letting feminist critical legal thought enter mainstream knowledge and change it. This endeavor has been complementary and complying with critical legal studies. However, instead of standing apart and trying to impact mainstream legal knowledge from the outside, the authors sought to equip themselves with insights from critical legal studies in order to reconsider and transform from within their fields of research and teaching. To reiterate, this revolutionary attempt contributes in a final instance to the systematic gender-mainstreaming of legal knowledge.

Academic scholars from universities across five different countries were involved in writing this book. Such successful teamwork gives the text a specific quality and is an unprecedented academic phenomenon. Working at different universities (primarily at faculties of law), researchers accepted to investigate and study feminist critical legal and political literature, reconsidering from a gender perspective their various fields of academic research and teaching.

The research and teaching project that produced this book represents an extremely exciting, innovative, and challenging academic undertaking. Individual academics of different educational backgrounds, very different religious, political, cultural, social, historical heritage, and independently of possible binary or non-binary gender orientation, who had not known each other before—readily took up a huge effort, with a common and unique aim to reconsider and deconstruct legal knowledge (as well as that of the disciplines close to it) in order to articulate a gender-competent understanding of the law and related disciplines and reconstruct them accordingly. These intellectuals managed, in spite of all their differences, limitations, and obstacles, to establish a culture of dialogue, readiness to share research and writing duties, to open their minds to new insights and the potential to overcome their own gender-based biases. Accordingly, the chapters have been built as the real team work results.

All chapters are an in-depth attempt to deconstruct and reconstruct specific relevant fields of legal education from a gender perspective. Sometimes the notion of “woman” still features as the paradigmatic subject, rather than the notion of “gender;” other times, the notion of “gender” is considered mostly in a binary way and primarily in a heteronormative sense. This is problematic when faced with the diversity of lives women lead and considering the changing notions of “man” and masculinity, as well as that of “gender,” and indeed, when witnessing the impact changes to family law, inheritance law, criminal law, tax law etc., have had on the heteronormative order.

Some authors and chapters have kept the binary gender construction, others have moved towards conceiving issues surrounding the identities of a third gender and transgender persons. These differences in levels of understandings are not a failure or drawback of the book, but rather reflect the different stages and states of affairs in knowledge and mindsets of the authors involved, thus also generally reflecting existing differences in that regard among the contemporary intellectual, political, and legal public.

It could be said that the scope of these texts surpasses their inner quality; indeed, they do because they seek to stimulate and provoke further academic attempts at ever better and richer results of systemic gender-competent legal knowledge.

In essence the textbook is structured in three major parts which deal with the gender perspective in different contexts. The first part “Gender in a general context” focusses mainly on explanatory contributions which help to understand the following chapters in a better way. The second part organises all chapters in the context of the public sphere—differentiating the European and international level from the national one. It analysis the gender perspective in the field of administration, planning and politics. It also includes criminal law issues as part of the public life. In contrast to this, the last part deals with the private dimension of the gender perspective, especially in private life, economy and business as well as in the world of labour.

In detail, the first chapters want to set the ground for a gender-competent legal knowledge. Therefore the chapter on “Gender Issues in Comparative Legal History” gives a historical overview of gender issues and the domination of the patriarchal system in the Western legal systems from the antiquity to modern times. The different feminist political and legal theories have been introduced and critically analysed in the chapter “Feminist political and legal theories”, which also considers the necessity of reconsidering “old” political and legal concepts from the feminist perspective and introducing the “new” ones, which better inform the political and legal knowledge about gender equality importance and content. The chapter “Gender and structural inequalities from a socio-legal perspective” focus on structural gender inequalities in private and public social spheres, especially education production, labour market and media, by deconstructing the gender binary system. The important role of gender in the judicial decision-making in the context of the composition of the bench has been analysed in the chapter “Feminist Judgements” which also highlights a few projects to overcome the effects. The general part of the textbook has been rounded up by the chapter “Gender Research and Feminist Methodologies” which deals with ontological and epistemological approaches of methodology and explains how to conduct research with a gender equality perspective.

The chapters on “Human Rights Law through the lens of the Gender Perspective” and “The Evolving Recognition of Gender in International and European Law” explain the international and European framework for gender protection and mainstreaming. The first addresses the different aspects in Human Rights Law and discusses among others the prohibition of gender-based violence, slavery and human trafficking, the freedom of religion as well as women’s access to justice and education. The second one explains the different legal sources for fighting gender-based discrimination and gender mainstreaming and put special emphasis on the UN Charter, the Convention on the Elimination of All Forms of Discrimination Against Women as well as the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights.

The national public perspective, promoted also by international instruments, will be examined in the chapter on “Gender Equality Aspects of Public Law”. The chapter deals prominently with the underrepresentation of women in governmental and state institutions and introduces a multi-layered approach of gender empowerment to raise the impact on public policies. The role of governments to secure the social welfare of citizens and gender equality has been addressed in the chapter “Gender Perspective of Social Security Law”. This chapter introduces especially cases where discrimination due to the different nature and roles of women and men takes place. Gender equality in the public expenditure management as well as the national taxation laws have been analysed in the chapter “Gender Equitable Taxation”. It tries to point various ways of gender discrimination in taxing affairs within a household, at the workplace and within the broader economy denying the principle of fairness. The role of public engagement is reflected in the chapter “Public Policies on Gender Equality” which introduces different ways to support gender mainstreaming and impact assessment of public policies. In the aftermath, key gender sensitive policies in different sectors are elaborated.

The general and special part of criminal law, which deals with gender discrimination and gender-based crimes, is explained in the chapter “Gender Competent Criminal Law”. It focusses mainly on the Istanbul Convention but also examines the general theories of criminal law in the light of gender equality. The chapter “Gender Perspective of Victimization, Crime and Penal Policy” shows the criminological perspective regarding the relationship of crime and gender. Data is evaluated to explain the ethological background, the awareness for gender victimization and the penal policy of courts facing different genders.

In the last part of the textbook the chapters deal with gender issues in the private law context. The main overview of gender discrimination in private law is found in the chapter “Gender Equalities in the different fields of Private Law”. The focus is on property regulations, freedom of contracts and tort liability. The context of family law is analysed in the chapter “Gender Competent Family Law”, and there is firstly explained the genesys of the family throughout the history and up to multiple forms of family and social relations within families of today. It then examines the interplay of rights and responsibilities of partners, parents and children and its impact on gender equality, including also marital contracts. Finally, it also addresses the important topic of domestic violence. Gender discrimination as being widely spread in labour relationships has been elaborated in the chapter “Labour Law and Gender”. The chapter covers different relevant dimensions, like as protection against gender-based discrimination by the employer, women empowerment and gender-based discrimination during the hiring process. The economical aspects of gender issues are dealt with in the chapter “Integrating Gender Equality in Economics and Management”. The theory of feminist economics is explained, taking into account gender indicators, gender parity, gender equality and gender mainstreaming. The managerial and innovative side of economics are also examined in the light of gender. The last chapter “Gender, Business and the Law” deals with gender aspects in the business and economic world. It explains not only the impact of gender diversity in company boards or in dispute resolution boards, but also how women’s economic empowerment is supported by various initiatives. One main actor is the European Union, although the EU internal market has not had much impact on gender equality, but recent trade agreements follow a gender-mainstreaming approach which opens new possibilities for women.

All chapters end with some questions which allow the reader to control if they understood how the traditional parts of laws have an impact on gender equality. The questions also ensure that the reader can evaluate themselves if they can apply the knowledge to different new situations. This methodological-pedagogical approach attempts to enable the reader to get a comprehensive overview which combines theoretical and practical knowledge.

This would not have been possible without the authors of the chapters. We would like to express our gratitude to them for their excellent contributions and wonderful collaboration. In addition, we would like to thank Judge Ivana of the ECtHR for her introductory words and support in the LAWGEM project and beyond. Moreover, we would like to express our sincere thanks to our Assistant Editor Julia Jungfleisch. Her support was essential for the realization of this book. We would also like to thank the research and student assistants at Thomas Giegerich’s chair Anna Kothe, Nana Pazmann, Annika Blaschke, Merle Arndt for their impressive reviewing and editing work as well as Catriona Laidlaw, Joshua Eve and Archina Sivarajpillai for the proof-reading.

We hope that this textbook will contribute to highlighting gender perspectives in all fields of law and also to taking them into account in legal assessments. We hope that all readers will enjoy and gain insight from studying the individual contributions.