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Catherine MacKinnon, Women’s Lives, Men’s Laws (Cambridge: Belknap Press of Harvard University Press, 2005, $39.95, 558 pages, ISBN 0-674-01540-1)—Kristen Chamberland, California State University, Long Beach

 

Catherine MacKinnon has had a long career as a feminist lawyer, theorist, teacher, and activist. Most noted for her pioneering work in developing the legal definitions of sexual harassment and pornography, MacKinnon is also known for her brilliant, yet uncompromising stance on issues of sexual inequality. In her latest book, Women’s Lives, Men’s Laws, MacKinnon offers a collection of previously uncollected essays, dating from 1980 through the present. While the essays address a myriad of different social and political topics, they are connected by a common focus on the sexual inequality and inconsistency inherent in U.S. law, and the conflicts this creates in the lives of women.

Dividing the book into two parts, MacKinnon first scrutinizes equality as it currently exists in U.S. law, and offers suggestions as to how it might be reframed, re-envisioned, and rehabilitated to not only consider women, but to give them the solid tools they need to improve their experiences. In the second section of Part I, she employs these ideas while focusing more specifically on sexual abuse, under which she lumps everything from sexual harassment to prostitution and sexual assault—all of which, for MacKinnon, are similar sex-based crimes committed against women. In Part II, MacKinnon delves into the role of speech in the law and in society and discusses how even much of the speech that aims to (or claims to) liberate women actually reinforces their inequality and subjugation. Not surprisingly, the second section of this part focuses entirely on pornography, one of MacKinnon’s favorite evils. But in the first section, she likewise attacks psychotherapy, history, liberalism, and the media, claiming that these institutions, while seeking to liberate women, have only masked the worst abuses and perpetuated male dominance.

Beginning her book with a chapter about the failed Equal Rights Amendment, from a book review written in 1987, MacKinnon frames the equality debate, but she also sets out a very aggressive stance that will track through the rest of her essays, which were written over the next twenty years. MacKinnon argues that not enough people have considered the potential of the ERA in its earliest conception. She believes that it might have been a “new departure.” She suggests that we imagine an ERA that not only condemns the types of inequalities that men visit upon other men, but the inequalities specifically affecting women. She asks that we talk of an ERA that “criticize(s) the legal standards under Title VII that essentially assume that the status quo is nondiscriminatory” and removes the requirement that intention must be proved in discrimination cases. Furthermore, she calls for an ERA that recognizes “abuses of women that have never been recognized,” such as pornography [20]. Berating the ERA for not forging enough change is MacKinnon’s way of setting up the legal arguments that follow.

In Chapter 4, MacKinnon exposes the deepest roots of inequality in western law. Because current theories of “formal equality” stemmed from Aristotle’s notions of sameness and difference, equality is guaranteed only to those who are “similarly situated,” meaning “alike.” She points out that even the Fourteenth Amendment is based upon the idea that “one must be the same as a relevant competitor to be entitled to equality of treatment” [45]. Thus, because Aristotle also deemed men and women to be essentially different, they can be systematically excluded from laws guaranteeing equal treatment. She argues that if equality is sameness and gender is difference, then even the notion of sexual equality is an oxymoron. But more importantly, she delves further into Aristotle’s idea of gender difference. She references an example he gives about sex difference—that men show courage through commanding and women show it by obeying. Thus, to Aristotle, not only are men and women different, but there exists a hierarchy based upon power through giving and obeying of orders. She argues that “once the reality of gender is faced, it becomes clear the extent to which the laws, the legal system, the state as such, and relations between states have built in the experiences of the dominant and have been built from the perspective of those who created them” [54]. It is not a conspiracy theory, according to MacKinnon, but merely a “political system of institutionalized interest supported by social facts of patterned behaviors and its embodiment in legal doctrine and philosophy” [54].

In order to effectively correct this deep-seated inequality in our legal system, MacKinnon reminds us that we must address all inequality, especially that based explicitly on sex difference. She advocates institutionalizing social equality though legal initiatives. First, she states, we must carefully articulate the absence of equality in society, and then “put legal power to redress it into the hands of affected groups through law” [57]. She believes that a legal system that can treat women like equals might also finally relinquish lingering inequalities among men.

Since the basis of legal inequality in the US lies in its own Constitution, the articulation of sexual inequality that MacKinnon advocates begins with questioning our loyalties to this document. In Chapter 6, “Freedom From Unreal Loyalties,” she asks why women should be loyal to a constitution that, from its conception, never considered their interests. She stresses that she is not considering the moral value of the Constitution, but its legitimacy. To the degree that the Constitution is unequal, it is illegitimate, and MacKinnon argues that it will only be legitimate once it lives up to its own promises. Because only equality can make the Constitution legitimate, “its treatment is central to answering the question of why we should be loyal to the Constitution” [69]. She argues that because the constitution is not always faithfully interpreted, further statutes and litigations are necessary, so that the document might encompass all those who are supposed to be loyal to it.

MacKinnon concludes the first section of Part I with an essay written in 2003, “The Power to Change,” which further elaborates on the progress of women using the legal system to “challenge the hierarchy of men over women that has been built into law.” While she is still claiming that “most women think of law as alien, subject to influence that they do not have, ignorant of the realities they live,” she concedes that there has been some positive change. In her notes, she even admits that a majority of law school applicants in 2000 were women. Her theme here is exposure. While her rhetoric tends to remain a little sensational, (for instance, she claims that “in working with law, women have learned that the system of male supremacy is like a vampire: it thrives on women’s blood but shrivels in the light of day” [106]), she shows how women have worked within the system to combat the inequalities they experience. By publicizing formerly private crimes such as harassment, sexual abuse, torture, and prostitution trafficking, women have exposed the systematic and institutional nature of their inequality.

Section B of the first part of Women’s Lives, Men’s Laws deals exclusively with sexual abuse. The focus, not surprisingly, remains on sexual harassment and prostitution, the causes to which MacKinnon remains most devoted. In Chapter 12, an article originally published in the Yale Law Journal in 2001, she frames the debate concerning the crime of sexual harassment as crime based on sexual (in)equality. Though this chapter is somewhat repetitive, it makes clear the legal debates over sexual (in)equality. The difficulty with sexual (in)equality law, she points out, lies in the ideals of sameness and difference which she highlighted earlier in the book. In order to receive equal treatment, women need to prove a “sameness” with men; but in order to prosecute crimes that are committed almost exclusively against women (sexual harassment, for instance), they must admit sexual difference.

This pragmatic need to claim sexual difference in order to determine that certain crimes are sex-based necessarily creates problems for equity feminists and anti-essentialists. It is understandable that anti-essentialists rail against the existence of the notion of an essential, universal Woman, especially because this notion of Woman has been responsible for the worst inequalities in the treatment of women, notably in law, education, and medicine. In her notes, MacKinnon firmly disagrees with those scholars who have labeled her an essentialist, and provides numerous accounts of scholars who refute such claims. In her writing, both in this book and in previous pieces, MacKinnon consistently asserts the particularities in women’s experiences, primarily based on race and class. However, while she effectively argues against the notion of inherent qualities that make one female, she never explicitly denies that there are such things.

In typical MacKinnon style, Chapter 10’s essay, “Prostitution and Civil Rights” from a 1992 symposium talk, methodically insists that prostitution is unquestionably a violation of just about every civil right imaginable. Exercising her passionate rhetorical skill, MacKinnon writes that "in prostitution, women are tortured through repeated rape [and] are prostituted precisely in order to be degraded and subjected to cruel and brutal treatment without human limits” [151]. She also argues that prostitution is akin to rape because “in rape, the security of women’s person is stolen; it prostitution it is stolen and sold” [152]. From this, she presents arguments that prostitution violates women’s right to security, personhood, liberty, privacy, property ownership, speech, freedom from involuntary arrest, equality, and even life. For MacKinnon, pimps are always men; they are always in complete control; and all prostitution is a form of slavery begun my men as pimps and perpetuated by men as tricks. There are no degrees of severity in the violence, in the risks, or in the rewards. Obviously, this impassioned, unyielding argument is highly effective if the reader already agrees with the most basic premises.

For this situation, MacKinnon advocates changes in the law to support women in prostitution, beyond the simple elimination of discriminatory criminal laws, such as those who punish prostitutes but not their customers. She suggests that the Thirteenth Amendment should be applied to prostitution as well as other forms of slavery, because it requires “a showing of legal or physical force, used or threatened, to secure service which must be ‘distinctly personal service in which one person possesses virtually unlimited authority over another” [156]. Arguing that prostitutes would leave the life if they could, she claims that legal action should be taken against those enforcing the involuntary servitude. She advocates this action being developed through both criminal and civil law.

Part Two of Women’s Lives, Men’s Laws begins with a collection of chapters concerning "institutions" such as psychotherapy, liberalism, and history. In these essays, MacKinnon analyzes the way in which words and speech have affected the practice of inequality. It is in these chapters, particularly those on psychotherapy and history, that MacKinnon most ardently argues that men’s sexuality dominates our institutions. For instance, in her assay “Does Sexuality Have a History” (Chapter 21), MacKinnon criticizes the framework historians use for evaluating desire in historical context, claiming that they can’t effectively evaluate experience because they are operating from an assumption that “sex is good and more sex is better” and “sex is pleasure.” Thus, writes MacKinnon, “it follows from the history of sexuality as a history of pleasure that it cannot be the history of oppression…” [270]. She suggests that these assumptions ignore the realities of abuse, and that in order to factor those realities into the larger narrative, historians must write on what evidence exists, and “forget about what is not there” [271]. She is urging historians to track such changes as rape statistics, reports of abuse, and the explosion of the pornography industry not as anomalies, but as the foundations of a male-dominated system of sexuality that is not necessarily a positive one.

The last section of MacKinnon’s book contains the brunt of her arguments against pornography. She argues that the primary reason for the increase in pornography has been that its “real harm—the violation of women and children that is essential to its making and inevitable through its use—has been legally and socially obscured.” This harm could be overlooked because, she argues,

The pornographers, who are pimps, take people who are already socially powerless—the poor, the young, the innocent, the used and used up, the desperate, the female—and deepen their invisibility and their silence. Through pornography, their subjection is made sexually enjoyable, sexually enjoyed, sex itself. Women and children who are made to perform for pornography are also made to act as if they are enjoying themselves [300].

Like her stance on prostitution, MacKinnon’s condemnation of pornography is unwavering and without exception. According to MacKinnon (and her collaborator, the late Andrea Dworkin), pornography harms all women, not just the women who participate in its creation, because it sexualizes women’s inequality and thus makes that inequality sexy. Furthermore, she claims that

Every act that is exacted from the women in the pornography, who are typically made to act as they are enjoying themselves, is acted out on yet more women integral to the pornography’s consumption. Women and children on whom it is acted out are given no choice about seeing the pornography or performing the sex. They are held down while the pornography is held up […] [302]”

For MacKinnon, only harm can come from pornography, both its creation and consumption. It is not a healthy outlet for desire or fantasy, but a tool for the sexual degradation of every woman, by inciting as much violence as it depicts. Sex cannot be separated from violence in pornography, and there can be no porn without violence, because all porn depicts the rape of a woman in bondage.

She offers no conclusion in this collection of essays. Her tale of pornography legislation ends in defeat. She concludes her last essay by reporting that the pornography industry continues to grow and be more and more pervasive. She states that “the age of first pornography’s consumption is probably dropping, and the age of the average rapist is ever younger” [372], thereby further pushing her link between the consumption of porn and actions of violence by the consumers. All in all, a bleak picture.

Overall, it is a far-reaching book, with wide-ranging topics and prescriptions. Her framing of legal issues is obviously well-informed, practical, and logical. As always, her arguments are tight and her writing is forceful, confident, and imperturbable. She does not waver; she does not back off of contentious issues. She claims victories where they can be claimed and gives solutions to forge the way ahead. So why are some readers left so cold?

The answer is simple. Third-wave feminists simply don’t accept a wholesale victimization theory. MacKinnon’s charge that all women are victims oppressed by men is an assumption that is not comfortably accepted by young feminists, who tend to characterize themselves in many ways that have nothing to do with gender. For MacKinnon, the basis of difference is gender, further complicated by class and race. But women are all disadvantaged and subject to the same harms, according to MacKinnon, and most young, educated feminists would argue that class plays a larger role in equality than gender.

Also, while most third-wave feminists don’t deny the scale of sexual violence, abuse, and harassment committed against women, they are less likely to characterize all women as victims, and are more likely to take women’s choices and considerations into action. For MacKinnon, women have no choice and little agency, because of the political equality they are subjected to, and the social climate in which they live. But young feminists are more willing to take responsibility for their choices, and take advantage of what agency they have. They are proud of this, and are resistant to the idea of being lumped under old theories of across-the-board victimhood. In the eyes of many a a third-waver, MacKinnon is out of touch with recent ideas, developments, and advantages for women.

For instance, in Chapter 3, “Law in the Everyday Life of Women,” when claiming that “most women will tell you that law has little to do with their everyday lives,” MacKinnon is referring to “most women” for whom she characterizes life as a “constant cycle of minutiae with few landmarks or dramatic demarcations of time, a litany of needs met but never satisfied.” Generalizations like this are risky in today’s feminism. The “facts” that MacKinnon states as if they are obvious are debatable for many women, and certainly don’t apply across class and race lines, much less over national boundaries. Instead of being galvanizing, these blunt, bald statements tend to be a distraction to a critical third-wave reader, pulling attention away from her more reasonable arguments. In this same chapter, MacKinnon argues that women feel out of touch with the law because it doesn’t address the “deepest, simplest, and most widespread atrocities of women’s everyday lives” [34]. Of course, she is referring to issues of sexual assault, sexual relations, domestic violence. Yet her insistence that women are totally powerless is unconvincing to many third-wavers, who cannot identify with statements like, “Women’s exclusion from law and marginality within it does not make the law inactive in women’s subordination day to day. The fact that women have nothing to say about a sphere of life does not mean it does not affect us.” MacKinnon’s characterization of women seems foreign to an educated third-waver. By saying that “women seldom have much to say in these matters yet live their consequences every day in factories, behind counters, in beds, on streets, in their heads, and in the eyes and at the hands of men, where the everyday lives of most women are largely lived out” [35] MacKinnon is painting a picture of women that seems archaic to many. Even if the life she describes is still the reality for many women, it certainly doesn’t apply to all, and by insisting that it does, MacKinnon distances herself unnecessarily from her audience.

Part of this distance is due to MacKinnon’s considerable attention to underprivileged classes and races, which does ensure that her feminism is not exclusive to the ideals of educated, economically advantaged white women (something for which many early feminists received criticism). However, while reminding white women that their experiences aren’t universal, she seems to ignore many of the achievements and positive advancements of these women, proclaiming such bold statements as “People dominate animals, men dominate women” [92]. Statements like this seem contrary to the experiences of women (such as MacKinnon herself) who are employed as attorneys, lawmakers, lobbyists, and heads of corporations. By not often acknowledging these important advancements, MacKinnon leaves her readers with a sense that important changes have been meaningless, and many women feel that this is not the case.

If she seems out of touch to the average third-wave feminist, she seems completely archaic and unreasonable to a sex-positive third-waver. Dismissing any ideas of positive sexual subjectivity, MacKinnon only characterizes women as objects, slaves, and targets in the face of pornography, medicine, even their own marriages. Claiming that women in pornography and even in relationships only fake their enjoyment in order to survive, she completely disregards the possibilities of women’s desire. Her refusal to admit that there exists any non-violent, non-subjugating pornography negates the opinions of women who find some porn stimulating and erotic. Many sex-positive third-wavers are able to play with notions of domination and submission, without assuming that what is depicted in pornography or fantasized about necessarily has a correlation with real experience. Furthermore, most sex-positive third-wavers question MacKinnon’s assumptions of women’s victimhood and are able to find degrees of liberation and agency in most aspects of the sex industry. Thus, it is the very uncompromising spirit that gained MacKinnon so much attention and respect in the 1980s that is beginning to detract from her arguments today. Modern feminists tend to demand the type of leniency, nuance, and further interpretation that MacKinnon is simply not willing to give.

Furthermore, because MacKinnon’s analysis and prescriptions are limited to legal theory and possible changes to the law, one wonders if these will be effective against the social forces that drive many of the issues she describes. Antiporn legislation might change the industry, but it does little to understand or conceptualize the demand that causes its creation in the first place. Sexual harassment laws give women the tools to fight workplace behavior and practice, but they do little to focus on the intent or assumptions behind it. In Chapter 9, MacKinnon questions whether women really have the ability to give legitimate consent to sexual activity, based upon their negative social conditioning. Here, she compares the consent of women to the implied consent of animals, saying that we cannot know whether either is meaningful. If this is true, it hints at a deeply rooted problem, one that cannot be solved by litigation, because it means that the current laws and social mores were shaped by a mentality so severe that it strips women of the ability to make choices, even when they believe they are. Obviously, the scope of her work could not encompass all aspects of inequality or prescribe one perfect method for solving the problems it creates. But one tends to wonder while reading this book, whether MacKinnon is clearly aware of the depth of the social unbalance to which she refers.

Despite its limitations, this book is a considerable contribution to the debates about feminism and legal theory. Its wide range of topics and tight, concise analysis make it a good read for scholars of feminism as well as of legal theory. Yet its passionate rhetoric, frank discussion of contentious issues, and extensive explanatory notes makes it accessible to more than just the academic audience; it’s a book for anyone who desires a crash course in the discourse of women and the law.

Cercles2006
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