Adopting a feminist legal perspective in adjudication: a comparative analysis of the judgments of the Constitutional Court of Turkey and European Court of Human Rights

Abstract

Laws of a legal system, as artificial creations, reflect the dominant ideologies present in the society. Therefore the inherent perspective of the legal system in any given society is male-oriented. This notion, consequently, results in the legal system perpetuating patriarchal values and gendered power hierarchies. This thesis will then argue that the judiciary, and especially the judges, both due to their significant social role as State agents and subsequently their responsibilities regarding the protection of human rights, are in a position to ameliorate this situation. Judicial ethics in this respect will present to be the philosophical basis for judges’ ethical duties in realizing human rights, while the national and international legal framework will set out the positive law basis. Practical challenges will then be addressed to demonstrate the other side of the coin, specifically how the politization of the judiciary and judicial conduct may present to become barriers for access to justice for women. The focus will be on judicial stereotyping and the inherent bias of the judiciary, and how this phenomenon affects the adjudication processes. Feminist legal methodology is thus proposed to advocate for an intersectional gender perspective in judicial decision-making, in which this thesis will apply the theoretical framework presented to practical case law, by conducting a comparative analysis of the Constitutional Court of Turkey’s and the European Court of Human Rights’s judgments on various issues on gender. The ultimate aim of this thesis is to suggest that a gender-conscious approach to judicial decision-making will improve the legal system, help it function free from bias.