"When a man and a woman are facing the Law, it is not the Law that fails to apply objective criteria to the female subject, but rather it applies objective criteria and these are masculine. Therefore, insisting on equality, neutrality and objectivity results, ironically, in insisting on being judged under masculine values." Carol Smart.
The statistics disaggregated by sex of the prison population of any prison in the world are disproportionate. In Europe, the average female prison population is 5%. In Spain, the 2018 statistics show a slight increase of 7%. But are there biological reasons that predispose women to be more peaceful?
Caring as an antidote to violence and promoter of emotional intelligence
War violence and sexist violence have much in common, they are an automatism in the face of fear of diversity. Our world revolves under the mandates of a global economy dictated by economic powers for which only what can be translated into capital fits. This capitalist thinking has forged a concept of useful use of time, where the practice of caring for family members is technically classified as unproductive and in the same way the people who care are unproductive. This has an unquestionable gender impact because caring has a female face.
A recent report by Oxfam Intermon quantifies the unpaid care work at 12.5 billion hours per day. Women perform more than three quarters of this invisible work and it is concluded that there is no place in the world where men care more than women.
In the same line, in reference to care, the Resolution of the European Parliament of January 30, 2020 is expressed. On the same day, the CGPJ announced the approval of the II Equality Plan of the judicial career, recalling that also in the Judiciary it is women who mostly sustain care. During the period 2013-2019, 97.3% of the leaves of absence for the care of children and family members were requested by female judges and only 2.7% by male judges.
This unfair gap is underpinned by a Labor Law that has historically despised the time dedicated to care, discriminating against people, mostly women, who dare to challenge productivist mandates. If you care, you don't produce. It is punished with labor exile and social devaluation that is transmuted into the wage and pension gap.
But the practice of caring is not only essential for the sustenance of daily life, but also for the skills it fosters in those who develop it and the development of values such as respect, understanding, tolerance, empathy, patience or responsibility, which are a very useful contribution to human development and the peaceful management of conflicts. Therefore, the fear of values associated with femininity has been essential in military culture, based on the principle of authoritarianism and obedience, which collides with all those human emotions that pose a threat to the ferocity required in the armed professions.
Women were not considered suitable for wars or military professions, for biological reasons that have been wielded even in constitutional times by the leadership of the Spanish Justice. The Military Chamber of the Supreme Court, in its judgment of October 7, 1988, legally justified the exclusion of women from the access routes to the Army:
"The delay of women's access to the Air Force does not harm the 'essential core' of the right to equality, occurring in harmony with a social reality that cannot be ignored, with the existing differences of a physiological nature and permanent availability for the service of women, with the special characteristics of the Air Force in its operational and combat activities and, in any case, with the current infrastructure of the Armies".
For the philosopher Sara Ruddick, conflict is part of the routine life of a mother. It is not surprising then, that maternal thinking has articulated a theory of conflict consistent with the objectives of maternal practice, which are congruent with pacifism. But the psychologist Carol Gilligan reminds us that care is a female monopoly for social, not biological, reasons, derived from the sexual division of labor and the separation between the public and the private. Women and men are equally capable of caring.
The emotional curriculum in the access and promotion of the judicial career
The skills acquired through care are also deployable in the workplace, through skills in decision-making or in the solution of labor differences, versatility, proactivity or adaptation to change, empathy. Understanding others allows that, in situations of conflict, the background of the irritation is better understood, to address it from its root. Understanding one's own and others' emotions means understanding people's needs, humanizing them and puts you in an advantageous position.
It is called emotional intelligence and has become a curricular claim that is increasingly valued in the labor world. Companies look beyond the academic record, because talent transcends universities. The World Economic Forum already advanced in its 2016 Report The future of jobs, placing this intelligence among the 10 most demanded skills in the labor market of 2020.
The debate on the ways of access to the Spanish judiciary should be addressed by focusing on how we want our judges to be, and not so much on their origin. They must not only have technical knowledge scrutinized from memorization, but also emotional intelligence. At present there is no specific test that measures the emotional skills linked to care and new ways of assessing the capacities, merits and excellences of judges should be opened through the judicial emotional curriculum.
The words, actions and behaviors of the courts affect the people who appear before justice. The mandates contained in international conventions have generated in those who operate in the judicial field the need to integrate a therapeutic perspective in the judicial function, which should be approached as a process and not as the punctual solution of a legal conflict.
For centuries, a distinction has been made between thought and feelings, but neither cognition is as logical as was initially believed nor are emotions as illogical. The social and professional benefits linked to care should be sufficient to place them at the center of all social policies and be the object of professional curricular assessment, also in the Justice sector. Women, and the values associated with femininity, democratize and legitimize the judicial system.
The gender of law
Our legal system has been built, predominantly, taking as a reference of "social values" those associated with the masculine devaluing the feminine. The laws of this century do not discriminate against women for being women, they discriminate against the values associated with femininity, through the trivialization of their experiences, concerns and aspirations. Hence the importance of the gender perspective as a corrective hermeneutics to trace legal strategies that allow to detect, correct and compensate unequal gender situations. The objective is equality of result.
Those of us who judge are not immune to stereotypes. Overcoming prejudices from justice requires training and qualification in anti-discrimination law. This is not an option but an obligation, which justified the recent reform of the Organic Law of the Judiciary of December 2018, integrating this specialized training, both in access to the judicial career and in continuous training, including the judicial school.
However, the path towards real equality from Justice could have been expedited if, as has been done in other countries, it had been decided to implement such training from the top, that is, both in the Supreme Court and in the Constitutional Court, because the Jurisprudence is binding and much more didactic and expressive than the letter of the law, because it is built in movement on real cases facilitating the understanding of the functioning of the judicial gender approach.
In short, it is necessary to integrate the gender perspective in justice and to value curricularly the time dedicated to care, because this promotes a more egalitarian, co-responsible, representative, human and therapeutic justice. Judges can and should be dynamizers of social changes to advance in (real) Equality through our actions and resolutions.
Article published in Público
