Mary Keyes (Griffith University) has posted Women in Private International Law on SSRN.
The abstract reads:
There has been almost no consideration of the position of women in private international law. There is very little published research applying a feminist analysis to, or even considering the position of women in, private international law. This field gives almost no attention to the particular interests, positions and experiences of women as subjects of the law, or the contribution of women as makers of the law. In the common law, private international law was largely developed in the 19th century, by male judges who were strongly influenced by commentary written exclusively by men. This chapter establishes that the apparently gender-neutral nature of private international law conceals profoundly ingrained assumptions about gender, in which the masculine is represented as a rational and sophisticated businessman, and the feminine is represented as a legally incapable wife. It then considers the gendered dimension of private international law in international family law, referring in particular to the regulation of international child abduction, international family property agreements, and international commercial surrogacy. Each of these examples demonstrates the differential impact of the law on women, indicating the need for greater awareness of and attention to gender. It concludes that while there have been some advances recently, particularly in terms of increased representation of women in making and commenting on private international law, there remains a great need for further research into the position of women as legal subjects and law-makers in this field.
Reading the Abstract, I recognize and accept the concern. However, reference is made to the 19th Century, nothing about the contributions of women in the 20th Century and in particular the principle of equal treatment of men and women. The Article thus seems exagerating in large parts. In addition, nothing is said about intersex- and transgender problems. Switzerland has recently adopted legislation on the matter (including PIL). In other countries, the problem has also been delat with. You can find academic Articles about the subject (including in English).
Andreas Bucher, Geneva
Dear Professor Bucher, thank you for your thoughtful comment. I apologise that the abstract is misleading; the article itself notes the involvement of women from the 20th century. You are quite right that it does not address intersex and transgender issues. My aim was more modest, but those issues are extremely important, and I appreciate your raising the point. Thank you also for noting the recently enacted Swiss legislation; it is interesting that it addresses PIL.
Best wishes, Mary
I would agree with Professor Bucher. Time and place play a role. The gender approach has been present in Spanish PIL – like in other fields of law- for years now. Maybe the usual language problem prevented the publications from being read.
In terms of numbers, women outweight men in number in Spanish academia; the same happens in the bench. Whether this has an impact on the outcome of research or of the judgments, or on the way research, teaching, or proceedings are conducted, is a different matter. I would be curious to learn about it, and about the tools used for the assessment.
Thank you for your interesting comment. The abstract might be a little misleading (for which, apologies). In the article I make a similar observation to yours, about the greater involvement of women in private international law including in the academy and courts from the 20th century. I also ask a similar question to yours, as to whether this has had an impact (spoiler alert: apparently not so far).
Spain seems especially advanced in addressing this issue, and in terms of the extent of women’s representation. This article is focused on the common law.