Women's Lives, Men's Laws

Off Our Backs, May/Jun 2005 by Douglas, Carol Anne

Women's Lives, Men's Laws

Catharine A. MacKinnon, Harvard University Press, 2005

For me, reading feminist theory by Catharine A. MacKinnon is like listening to music by Beethoven. I am staggered by how many ideas she has on every page and how clearly and incisively she expresses them. I haven't read an exciting new feminist theory book in a long time, so this book was a real page-turner for me.

Actually, many of the essays in the book are talks MacKinnon had given or articles she had published in journals, but they are new to me. It's sad that it's hard for those of us who aren't full-time academics to find new feminist articles, which are now dispersed in so many journals, until the articles come out in book form. But that's the only problem I have with the book.

MacKinnon takes on the legal system of the United States and most other western nations. Cases are decided-that is, judges are making important decisions that affect the lives of all women-on the supposed grounds of abstract doctrines such as federalism and freedom of speech. But the funny thing is that most decisions turn out to support the existing power structure. "The same people who have power in life have power in law," she writes.

Judges really decide cases on the basis of their viewpoints on the substantive issues, even though many of them don't realize they are doing that, MacKinnon says. The substantive issues-the issues concerning power, who is going to be hurt or helped by a decision-should be brought out in the open, she says. Focusing on abstractions is just gaslighting or smoke and mirrors, she says. For example, the overriding issue in pornography is that it harms women, not that it's an exercise of men's speech. And the real issue in the U.S. Supreme Court's decision striking down the part of the Violence Against Women Act (VAWA) that allowed women to sue perpetrators across state lines was male power, not federalism, as the justices claimed.

What she's saying is heresy to almost everyone in the legal profession, including academics. And that's why she's been vilified by so many.

Even more heretical, MacKinnon says the basis on which U.S. and European concepts of equality law are grounded guarantees inequality.

That is, the western legal tradition is based on Aristotle's idea that equal treatment means treating people who are similar in the same way. Men of property should be treated in the same way as other men of property, women should be treated in the way as other women, and slaves should be treated in the same way as other slaves. (The western world took a wrong turn when it embraced Aristotle's philosophy rather than the philosophy of Socrates. According to Plato, Socrates said that men and women were similar in nature and that justice for men and women should be the same. Note that the Athenians put Socrates to death for corrupting the youth by teaching them to ask questions and Aristotle became a tutor to world conqueror Alexander of Macedon; perhaps these destinies foreshadowed the course of western civilization.)

Although the United States and Europe have stopped using Aristotle's theory to justify slavery, their laws are still based on the concept that people should be treated the same only when they are similarly situated. As MacKinnon observes, that means that women and men (and other disadvantaged and advantaged classes) should be treated equally only to the extent that they already are equal. She quotes Anatole France's comment that the rich and poor are equally forbidden to sleep under bridges. The same logic is used when judges pretend to be gender-neutral and fail to recognize that only women can get pregnant and that laws that interfere with women's reproductive freedom constitute sex discrimination.

The laws on race discrimination also have been based on an inadequate definition of equality because people of color had no part in deciding on the foundations of our legal system, MacKinnon says.

Canada's Charter of Rights and Freedoms was drafted in the 1970s; white men weren't the only ones who had an opportunity to shape it. It includes a clause saying that the Charter's rights are guaranteed "equally to male and female persons." In 1989, Canada's Supreme Court ruled that equality under that the Charter requires the laws "promote equality," a much more active standard than the U.S. Constitution's wording, which says that everyone should receive equal treatment under the law.

As an attorney operating in the United States, MacKinnon has to consider what approach to take to the U.S. Constitution. She says that legal scholars and judges use "fidelity to" the Constitution as a smokescreen. We should also ask about the Constitution's fidelity to the people, MacKinnon says. White women and women and men of color had no say in shaping the Constitution. Fidelity to the Constitution should depend on the extent to which it protects all the people. If it doesn't, then she says she's "an adulterer" regarding the Constitution, not faithful to it. She accepts it to the extent that the Equal Protection Clause of the 14th Amendment really does protect everyone. That clause made the Constitution more legitimate, she says. The Constitution will be more legitimate if it includes the Equal Rights Amendment, she adds.