Interroger le droit et son historiographie au prisme du genre (Prune Decoux & Hélène Duffuler-Vialle)
DOI 10.4000/14075
Abstract:
Apart from a few rare initiatives, the encounter between legal history and gender studies has remained marginal. The ANR-HLJPGenre project has been designed to fill this historiographical gap and bring researchers together: it aims to analyse law through a gender lens, focusing on the study of formal law and legal discourse. Epistemological issues play an important role here, allowing us to challenge the myth of 'axiological neutrality' that still prevails in our discipline. At the same time, the study of different methodological approaches opens up perspectives for the renewal of legal history. It was in this context that the international conference Legal Discourse, Gender and History was held in Douai in 2023. Thanks to the interdisciplinarity and decompartmentalisation of disciplines inherent to gender studies, contributions from law, history, sociology, political science, linguistics and philosophy enriched the discussions. Some of their contributions, reworked and expanded, appear in this issue alongside independent articles on the same theme.
Déconstruire la neutralité axiologique et l’androcentrisme
Le congé menstruel : entre avancée sociale et biais discriminatoire (Maéva Caron-Thérage)
DOI 10.4000/14076
Abstract:
Menstrual leave is a divisive issue. Whether it's a stigmatising measure, a discriminatory bias, a social advance or a measure to restore professional equality, opinions on this measure oscillate between vice and virtue. It is all the more divisive because it covers different realities. Linguistic precision is essential if this measure is to be a real social advance in the interests of professional equality. The term “menstrual leave” should therefore be replaced by the term “adaptation of the presence, working hours or working conditions of menstruating women due to the constraints associated with menstruation”. There is a risk of discrimination, but this should not obscure the need to address the issue of menstruation-related constraints in the workplace. Raising awareness of this issue and breaking the taboo surrounding menstruation, and women's bodies in general, would make it possible to go beyond the issue of gender equality and work towards a right for human beings by human beings.
Avocates et accusées dans l’ombre virile du prétoire. Biais de genre, agentivité et colonialité sous le protectorat tunisien (Hend Guirat et Florence Renucci)
DOI 10.4000/14077
Abstract:
This article aims to analyse the gender prejudices and biases encountered by women in the justice system – lawyers and defendants – in the virile space of the courtroom, where legal, linguistic, and social "codes" are masculine and those who judge ought to be men. Based on the empirical case of the Tunis criminal court from the turn of the 1910s-20s to the 1940s, we explore the prejudices and biases encountered by female lawyers and defendants either in entering the courtroom or within it during debates and convictions. Our approach treats these prejudices and biases relationally, in articulation with the agency of these women and the context of coloniality.
L’accession des femmes à la magistrature non-professionnelle : Un parcours de combattante entre arguments naturalistes et réalité du terrain. Mise en parallèle des cas belge et français (Mathilde van Ackere)
DOI 10.4000/14079
Abstract:
In Belgium, women acquired the right to be lay judges through the Law of May 15, 1910, regarding labor courts, and the Law of June 13, 1924, concerning commercial courts. In France, they acquired this right respectively through the Law of November 15, 1908, and the Law of December 9, 1931. An analysis of the preparatory works for these laws allows for the construction of a typology of the various arguments raised by the proponents of these legislative projects as well as their opponents. The latter notably put forward naturalistic arguments, relying on a supposed feminine nature and inherently feminine professions. Our study highlights the fact that these arguments come into conflict with on-the-ground realities, as emphasized by proponents of the reforms: the significant number of female workers, employees, and business owners; the presence of women leading major businesses; and the increasing access of women to a growing range of professions and positions.
Parler pour ne rien dire ? Retour sur la controverse ancienne du sexe de l’arbitre (XVIe-XVIIIe siècle) (Claire Bouglé-Le Roux)
DOI 10.4000/14078
Abstract:
Based on the fictional figure of Austreberte, the casuist Jean Pontas, in his Dictionnaire de cas de conscience of 1724, envisages the hypothesis of a woman arbitrating a dispute between two men in conflict. A potentially powerful woman, whose voice would take precedence over male divisions. On this hapax, Pontas examines the arguments in a dispute that has been raging in French legal doctrine since medieval times over the competence of women in arbitration, and the contradictory legal grounds for excluding them as unfit, or, on the contrary, recognising their excellence. This controversy, which the jurist Antoine Loisel echoed in his Institutes coutumières (1607) with the adage: ‘Women have voice and responsibility in court and so receive bets and arbitration’, continued unabated until the dawn of the 20th century. The question of the introduction of women to the bar and the judiciary overshadowed this initial dispute, which prefigured it on a strictly discursive level, but which we propose to examine here from the definitive condemnation of women's arbitration at the dawn of the 17th century to the eve of the French Revolution. At a time when the practice of female arbitration was declining and disappearing under the blows of the jurisprudence of the Parlement de Paris in 1602 and 1603, the motif of ‘the woman arbitrator’ was being used in legal doctrine, as a pretext for describing her qualities and faults. Transposing the women's quarrel from the literary register to legal works, this debate helped to identify a representation of female heroism in the modern era, paving the way for the crystallisation of a claim that would lead to the emergence of women's rights from the French Revolution onwards. The controversy thus fostered the expression of an alternative discourse to those relating to the (in)legal capacity of married women or the exclusion of women from public magistracies, testifying to the heterogeneous positions of French jurists on this sensitive issue.
Histoire du droit et « théorie du gender ». Les approches critiques du genre (Pierre-Anne Forcadet)
DOI 10.4000/1407a
Abstract:
The article aims to confront gender studies with their critics that come from legal historians based upon a so-called “gender theory”. The scientific legitimacy itself is often questioned with accusation of lack of objectivity, but the debate lies essentially around the neo-jusnaturalism of most of the authors defending a symbolical order, that enters in contradiction with modern society and the recent turn in favour of gender studies in french legal history.
Renouveler les méthodes de recherche grâce aux concepts issus des études de genre
Décrypter l’expression linguistique et la représentation textuelle dans les sources du droit (Caroline Laske)
DOI 10.4000/1407b
Abstract:
This paper proposes textual representation as a conceptual tool for researching women’s legal capacity by placing language (both the explicit discourse and the encoded meanings) at the centre of the study. The hypothesis is that a major element of the reality of women’s legal capacity lies in the experience of the attitudes/biases women face, which impose constraints on their capacity to act with legal authority. To achieve an all-round understanding of that reality, there is a need to go beyond the normative framework that can be found in the legal/administrative sources and examine these for the linguistic expression used to regulate women’s legal status and their legal capacity to act.
Le rôle du langage ordinaire dans la subversion du droit, un défi pour l’épistémologie juridique : analyse de processus de renversement et de resignification du droit du mariage (1960-2013) (Elena Mascarenhas)
DOI 10.4000/1407c
Abstract:
This article explains the mechanisms by which ordinary language subverts positive law in a case study devoted to marriage law between the 1960s and 2013. By comparing the evolution of norms with that of the the vocabulary of unions, it identifies two subversive processes: renversement and resignification. This juridical study feeds its approach with analytical philosophy (Austin) and social philosophy (Wittig, Butler, Haslanger), which enables it to refine the theoretical understanding of the discursive subversion of law and tends to challenge the boundaries of juridicity. At a time when legal language is defined as a specialised language in the image of the law, the legal sciences are invited to think of ordinary language as a source of knowledge about the law, and to draw the consequences for legal epistemology.
Une approche juridique et féministe de la maternité : étude au prisme du genre de De la condition légale de la mère (1890) par Sarmiza Bilcescu (Ophélie Colomb)
DOI 10.4000/1407d
Abstract:
In 1890, Sarmiza Bilcescu (1867-1935) was the first woman in France to be awarded a doctorate in law. A pioneering figure in her field, she remains invisible in legal history research, and more specifically in the history of legal thought. This article aims to bring her writings out of oblivion through an analysis of her thesis De la condition légale de la mère, taking into account gender as a structuring element of her legal discourse. To this end, Sarmiza Bilcescu’s thesis must be seen in the light of the context in which it was written and published. Her subject – maternity in civil law – places her at the crossroads of law and feminism at the end of the nineteenth century. For her, it was also a question of entering the world of law, then closed to women. In this way, her arguments in favor of a moderate reform of the mother’s legal status – against a backdrop of morality, the essentialization of maternity and, of course, civil law, the technique of which she mastered perfectly – become clearer. Her approach to motherhood can thus be understood in the light of a historically situated and embodied discourse: that of a bourgeois woman, pioneer in her field and forced to come to terms with the institution she aspired to conquer.
Genre et discours pénal : la bigamie dans la doctrine juridique européenne de l’époque moderne (XVI-XVIIIe siècle) (Tanguy Le Marc'hadour)
DOI 10.4000/1407e
Abstract:
This study attempts to trace the evolution of European criminal doctrine (Italy, Spain, Germany, the Netherlands, France) from the sixteenth to the eighteenth centuries in relation to the crime of bigamy, which seemed relevant for a study of legal discourse from a gender perspective. The legal existence of the crime of bigamy, hitherto little studied, depends mainly on doctrinal writings, and the study seeks to identify the differences in the discourse concerning men and women. It shows that the two different criminal qualifications for women and men found in the Roman texts were transformed by doctrine into a single, sexually undifferentiated offence in the modern period, while paradoxically maintaining a gendered apprehension in the degree of repression, in accordance with the expected social roles of women and men.
De maîtresse à domestique. La circonstance aggravante de « vol dans une auberge » au prisme du genre (1799-1815) (Prune Decoux)
DOI 10.4000/1407g
Abstract:
This article examines the concept of theft and, more specifically, one of its aggravating circumstances, theft from an inn. While the law of 16 December 1799 provided for an aggravation of the punishment if the theft was committed by the 'master or mistress of the inn', the penal code of 1810 took up this circumstance, masculinising it by removing the term 'mistress'. A study of the text and the debates reveals the performativity of the language of the law and its role in the gender order: the doctrine points to a ruling that chooses the qualification of 'domestic theft' and makes the wife of an innkeeper a 'servant' rather than a 'mistress' - although there was nothing to prevent this. Under the umbrella of the supposedly universal masculine, women are made invisible and denied the status to which they are not explicitly entitled.
Le divorce de Napoléon par sénatus-consulte, les droits d’une épouse sacrifiés sur l’autel de la nécessité (Ambre Jarassier)
DOI 10.4000/1407f
Abstract:
Inspired by ancient Rome, the Napoleonic senatus-consulte is a legal norm drafted by the conservative Senate under the aegis of Napoleon. This text embodies a norm that is both contra legem and contra constitutionem. The dissolution of the marriage between Napoleon and Josephine was contrary to the articles of the Civil Code concerning divorce by mutual consent. Joséphine's rights were violated. Moreover, the senatus-consulte violated article 14 of the Imperial Constitution of Floréal 28, Year XII, which provided for the establishment of a statute relating to the imperial family. The latter, dated March 30, 1806, prohibits divorce for all members of the imperial family, including the Emperor. Such violations were justified by necessity: the continuity of the Empire depended on the birth of an imperial prince. Joséphine would thus be responsible for the absence of a male heir, according to the Emperor and the Senate. The senatus-consulte, the Emperor's political weapon, crossed a new threshold with Napoleon's divorce. Whereas this senatorial norm had hitherto been used in the context of public law to further the Emperor's designs, it now came to regulate private law and provoke Empress Josephine's vulnerability.
Surveiller les femmes incarcérées en maison centrale. La construction d’une différenciation de la surveillance pénitentiaire au XIXe siècle (Amélie Imbert et Anne Jennequin)
DOI 10.4000/1407h
Abstract:
This article challenges the androcentric perspective that has historically and currently dominated representations of prisons, focusing on the issue of the surveillance of female prisoners in the 19th century. In France, during the July Monarchy, a prison policy aimed at segregating inmates by sex established the principle that female convicts in central detention and correctional facilities should be supervised by individuals of the same sex. The Sisters’ Service Regulations of 22 May 1841 helped to achieve this, by establishing the involvement of specific staff, namely nuns. These regulations contributed to the creation of a specific organisation for women's prisons, reconfiguring the function of surveillance by distinguishing it from that performed by guards in men’s prisons. This article sheds light on the specific nature of the role assigned to these nuns, highlighting that the conditions for a special 'prison education' for female prisoners were established on religious grounds. The introduction of differentiated prison supervision for men and women had a lasting impact on the organisation of penal institutions and their staffing.
Surveiller les femmes incarcérées en maison centrale. La construction d’une différenciation de la surveillance pénitentiaire au XIXe siècle (Amélie Imbert & Anne Jennequin)
DOI 10.4000/1407h
Abstract:
This article challenges the androcentric perspective that has historically and currently dominated representations of prisons, focusing on the issue of the surveillance of female prisoners in the 19th century. In France, during the July Monarchy, a prison policy aimed at segregating inmates by sex established the principle that female convicts in central detention and correctional facilities should be supervised by individuals of the same sex. The Sisters’ Service Regulations of 22 May 1841 helped to achieve this, by establishing the involvement of specific staff, namely nuns. These regulations contributed to the creation of a specific organisation for women's prisons, reconfiguring the function of surveillance by distinguishing it from that performed by guards in men’s prisons. This article sheds light on the specific nature of the role assigned to these nuns, highlighting that the conditions for a special 'prison education' for female prisoners were established on religious grounds. The introduction of differentiated prison supervision for men and women had a lasting impact on the organisation of penal institutions and their staffing.
Éradiquer l’homosexualité en prison. Le fondement hétéronormatif de l’encellulement individuel (Quentin Markarian)
DOI 10.4000/1407j
Abstract:
The principle of cell imprisonment was introduced into French law on the 5th of June 1875. Inextricably linked to the nineteenth century reform of the penitentiary system, this model of imprisonment aimed to replace collective dormitories with individual cells. From the Restoration to the Third Republic, this shift in regime was supported for its ability to eradicate homosexuality in prison. The sexual obsession and panic provoked by the “capital vice of communal dormitories” are especially evident in the writings of penal science, government inquiries, as well as parliamentary works and debates that gave rise to the law of June 5, 1875. Historically built on a heteronormative discourse, the cell remains a legal and architectural pillar of contemporary penal prisons.
Esquisse d’une approche intersectionnelle de la loi du 15 mars 2004 sur le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics (Marc Thérage)
DOI 10.4000/1407i
Abstract:
The law of 15 March 2004 on the wearing of signs or outfits demonstrating a religious affiliation in public primary and secondary schools is presented by the legislator as a simple application of the principle of secularism. The title of the law only mentions the principle of secularism while parliamentarians insist during debates on gender equality, affirming that this text has the main target – if not the only one – of prohibiting wearing a headscarf in public primary and secondary schools. Since 2004, gender and the supposed religion of racialised women thus appear curiously linked. Drawing on the intersectional approach of Kimberley Crenshaw, enlarged by postcolonial studies, this critique of the 2004 law – presented as « against Muslim headscarves » – and of the discourses surrounding it, makes it possible to underline the existence of a legal discrimination against women of color who live a specific discriminatory experience based on gender, skin colour and/or real or supposed religion, an imaginary split within nationals by distinguishing those who have parents or grandparents who immigrated to France from former colonised territories, age, social condition and/or place of residence as evidence of original social background … The apparent neutrality of the text of the 2004 law conceals a combination of discriminatory factors. This text, both racist and antifeminist, consecrates a white and male subjectivity, yet presented as non-racial, non-gendered and objective.
Discours écoféministes et droit de l'environnement : chassez le naturel ? (Romain Gosse)
DOI 10.4000/1407k
Abstract:
Ecofeminist thoughts have emerged during the seventies, aiming at highlighting the joint domination on feminine gender and nature. Yet, developping at the same time, modern environmental law does not seem to have been influenced by these ideas. Also, contrary to the anglophone legal academic field, the french doctrine has not adressed this crossing – though ecofeminism has been generating a renewed interest over the last few years. Thus, this contribution would propose a few trails of possible convergence between some ecofeminist discourses and some distinctive features or trends of environmental law, which also show potential criticisms against this area of law.
L’influence éparse de l’approche féministe sur la réforme du droit international des investissements (Sanae Boyayachen)
DOI 10.4000/1407l
Abstract:
Faced with feminist demands which are developing a new approach to law, a restructuring taking into account feminism takes on particular meaning in the reforms of various sectors and in particular the overhaul of international investment law. Our article will attempt to analyze the emerging foundations of a feminist perspective on international investment law aimed at reforming the framework of the legal system of international investments. In this regard, our contribution will analyze the reform of international investment law through the prism of the feminist approach and will explain its issues and its orientations in all the strata of a reforming turn via a legal culture propagated by a heterogeneity of apprehension of the gender approach.
Read the whole journal in open access here: DOI 10.4000/1407m.
