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courts on the grounds that they did not have the authority to dis- social security law in force in Poland and throughout Europe, and
solve the marriage because the Afghan woman was not legally which is also based on a critical analysis of the law, doctrine and
resident in Sweden. The applicant’s husband informed the court jurisprudence, from the point of view of compliance with the con-
that he opposed the divorce. In the meantime, the Afghan woman stitutional principle of equality between women and men and
unsuccessfully asked the Migration Board to reassess her case non-discrimination for any reason, is of significant importance in
and to suspend her deportation, claiming that she was at risk of the process of shaping attitudes towards the law.
the death penalty in Afghanistan because she had committed adul- The theoretical and practical knowledge of feminist critiques of law
tery by starting a relationship with a Swedish man and her family also provides an opportunity for law students to acquire the abil-
had rejected her. The court, when considering the above case, ruled ity to think critically about the law and to critically analyse legal
that „Women were at particular risk of ill-treatment in Afghanistan systems, the policies of legislators and those applying the law in
if perceived as not conforming to the gender roles ascribed to them terms of its impact, separately, on the situation of women and
by society, tradition and even the legal system.” Furthermore, men (the so-called gender meanstreaming idea). It seems that edu-
the Court stated that „according to various human-rights reports cation in this area is important, especially at a time when human
on Afghanistan, up to 80% of Afghan women were affected by do- rights are continually being violated, including by public authori-
mestic violence, the authorities did not prosecute in such cases ties and the courts, whose independence is sometimes questioned,
and the vast majority of women would not even seek help. To ap- do not provide a guarantee of effective protection for the rights of
proach the police or a court, a woman had to overcome the pub- certain social groups, including women.
lic opprobrium affecting women who left their houses without
a male guardian. The Court could not ignore the general risk indi- Conclusions
cated by statistics and international reports”. The above position The situation in Poland, Europe and the world, which has affected
led the Court to recognize that „in the special circumstances of women for many years, shows that awareness of their systemic and
the present case, there were substantial grounds for believing that institutional discrimination and the need to protect their rights is
if deported to Afghanistan, the applicant would face various cu- growing, especially in the younger generations. Thus, a gender-sen-
mulative risks of reprisals from her husband, his family, her own sitive legal education can contribute to making the fight for equal
family and from the Afghan society which fell under Article 3 and opportunities and against exclusion more effective. With this de-
lead to conclusion that deportation would constitute a violation.” 61 mand in mind, an increasing number of classes are being taught at
In contrast, the most recent example of a ruling that reveals gender the Faculty of Law at the University of Warsaw that consider a crit-
inclusivity in giving meaning to law, respecting the female perspec- ical, feminist perspective on the law. The Law Clinic at the Univer-
tive, is the ruling in H.W. v. France of 23 January 2025 (Applica- sity of Warsaw, for example, has two seminar groups dedicated
tion No. 13805/21). In this judgment, the Court, ruling on a vi- to dealing with the issues mentioned above. One is the gender dis-
olation of Article 8 of the Convention, pointed out that the very crimination group and the other is the international justice group.
existence of an obligation to have sexual intercourse in marriage Classes in both of these groups, in which students are introduced
– the absence of which led the French court to pronounce a divorce to all the issues and theories outlined in this paper, enable future
through the sole fault of the woman – is contrary to both sexual lawyers not only to acquire theoretical knowledge about the law,
autonomy and the right to control one’s own body, and to the pos- but also – and more importantly – to analyse it critically and how
itive obligation of every state to prevent and combat domestic and they can utilise this critical analysis of the law when dealing with
sexual violence. The Court made it clear that it could not agree specific cases and clients.
with the French government’s position that a person’s consent
to marriage is tantamount to consent to future sexual relations.
In the Court’s view, such a position could deprive rape in marriage Summary
of its reprehensible character, the idea that a husband cannot be In recent years, there has been a significant rise in gender stud-
prosecuted for raping his wife is unacceptable and contradicts not ies programmes across Europe and Poland, reflecting the ongoing
only the civilised and up-to-date concept of marriage, but above need to address gender inequality. Despite legal reforms, women
all the fundamental objectives of the Convention, the essence of continue to face discrimination in areas like politics, employment,
which is to facilitate respect for human dignity and freedom. reproductive rights, and protection from violence, mainly due
The examples presented for analysing the law, employing to persistent gender stereotypes and unequal social roles. Gender
the achievements of feminist jurisprudence, illustrate the impor- studies aim to expose the patriarchal nature of societal structures
tance of gender studies. Systemic discrimination in the field of law and promote systemic change toward genuine gender equality.
manifests itself on multiple levels. Unequal treatment of women is The article emphasizes the importance of integrating feminist legal
still a fact of life in many areas of the state and its institutions, but theory into academic education, especially in law schools. It argues
also in the activities of private actors for whose behaviour the state that gender-focused legal education should become a compulsory
may be held responsible part of legal training to equip future professionals better to recog-
This leads to the conclusion that law faculties should include in nize and combat gender-based discrimination. The text also high-
their curricula issues related to de jure and de facto discrimina- lights recent legal progress in redefining the crime of rape in Po-
tion against women. The inclusion in instruction and teaching of land as an example of the influence of feminist jurisprudence on
the achievements of feminist jurisprudence, which has had and legislative change.
continues to have an impact on the evolution and changes of Using theoretical and legal analysis, the article aims to show
the criminal law, civil law, electoral law, family law, labour law and the relevance and necessity of feminist perspectives in both the in-
terpretation and application of law, urging legal educators to incor-
61 See also judgment of ECJ (Third Chamber), 4 October 2024, joined Cases
C-608/22 and C-609/22, see: Beyond Individual Persecution: European Court’s porate these approaches into their teaching.
Constitutionalism in Afghan Women’s Asylum Case – EJIL: Talk!

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