I. Summary paper on Judicial Education & Gender

Introduction

Judges occupy key roles in the law and culture of both Canada and Morocco.  While law is developed from historical sources and legislative action, many systems are involved in the ways that laws actually affect the lives of citizens.  Judges, as they interpret the law, exercise their legitimate discretion, and render judgment, whether in local courts or the highest appellate courts, act in ways which promote change or maintain the status quo.

As many legal scholars have noted, this power of judges is one of the reasons that legislative change, changes to legal codes and rules promulgated by democratic institutions, do not always translate into social change.   They are also a mechanism by which changes in social understandings can enter the law – or be blocked. Especially in a world in which we are increasingly oriented towards a discourse of rights, it is important to avoid simplification of the complex relationship between social activism by civil society actors, legal change directed by legislators, and meaningful changes in the lives of individuals living under law.  Without dismissing the significance of other parts of this web of interaction (in particular, the civil society activity which generates and supports social change), this project focuses on the question of how judges learn about and implement changed norms and rules.[1]

In our discussions, which focused on the major changes implemented in Moroccan family law in 2004 (the “moudawana”), the Research Team considered the similarity of issues which have arisen in Canada and Morocco, issues which centre on indications that judges often resist changes, either not implementing them, or implementing them in ways which are half hearted or otherwise not likely to produce the change they were designed to support.   We were interested in two aspects of this issue:

1. Can we quantify the extent to which judges serve to block socially important legal change and otherwise support social norms that legislatures have indicated should shift?
2. Can judges be educated to diminish the kind of behaviour (which might or might not amount to legal error) described above?

This paper deals mainly with the second question above, while a study conducted in the Moroccan Courts as part of this project dealt mainly with the first.

Judicial education is a fraught topic since it must be placed beside the emphasis rightly placed on judicial independence.  While this project does not aim to generate a defence of legal education against charges (especially in common law jurisdictions) that attempting to provide training to judges, simpliciter, is an inappropriate interference with the judicial function.  Various iterations of this complaint and defence have already been written. [2]  Rather, in this paper, we provide an introduction to the scholarly and professional literature about judicial education across the globe, with a particular focus on what is called “social context education” around gender inequalities.  This information and the associated list of references will be of use to civil society organizations, judicial organizations, law reform efforts, and others.

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[1] See, for instance: Ann M Eisenberg, “Law on the Books vs. Law in Action: Under-Enforcement of Morocco’s Reformed 2004 Family Law, the Moudawana” (2011) 44 Cornell Int Law J 693 (proposing the use, not of judicial education, but of “legal empowerment systems” involving the use of paralegals and local advice centres to diminish the gap between the “law on the books” and the “law in action” in Moroccan family law).

[2] T Brettel Dawson, “Judicial education on social context and gender in Canada: principles, process and lessons learned” (2014) 21:3 Int J Leg Prof 259 at 269, 270; Katherine Swinton, “Judicial Impartiality and Social Context Education” in Thomas A Cromwell et al, eds, Hum Rights 21st Century Prospects Inst Process (Montreal: Editions Themis, 1997) at 262; Livingston Armytage, “Judicial Education on Equality” (1995) 58:2 Mod Law Rev 160 at 163.