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[Women’s Lives, Men’s Laws, Catharine A. Mackinnon, Harvard
University Press, 558 pages]
The baleful influence of feminist Catharine
Mackinnon on American and Canadian jurisprudence cannot be
underestimated. With relatively few obstacles from the dreaded
patriarchy, Mackinnon, Professor of Law at the University of Michigan,
“teacher, writer, and activist,” has been transforming law since the
1980s. Her legal conquests, especially in developing sexual-harassment
law, are the subject of this meaty volume, which comprises speeches and
screeds Mackinnon has disgorged over 25 years.
If “the pale, patriarchal, penis people” have failed to hinder
Mackinnon’s successes, neither has her cold, inflexible, and
fundamentally unscholarly mind—the mind of a propagandist and a casuist,
in Camille Paglia’s estimation—or her inability to write. The blurbs
bedecking Women’s Lives, Men’s Laws promise “the deepest and best
feminist writing around” and writing that is “fresh, concise and
incisive.” Mackinnon, however, is a poor writer and an obscurantist,
capable of turning phrases like, “Who that needs this equality can get
it?” and, “The rules of everyday life, in this sense, are that law which
is not one, the law for women where there is no law.” In addition to her
stylistic and syntactic tics, there’s a plain crazy component to
Mackinnon’s writing—a preoccupation with snuff films, for instance. That
urban myths and other ineptitudes have escaped editorial vigilance is
unsurprising in feminized, affirmative-action driven America.
Plucked from a law-review journal, Chapter 12, “Reflections on Sex
Equality Under Law,” offers a relatively clear exposition of Mackinnon’s
position. First-wave feminists strove for equality under the law,
demanding only that existing law be applied to women. Due to their
“assimilationist” approach, Mackinnon dubs them “domesticated
feminists.” Because “[n]o woman had a voice in the design of the legal
institutions that rule the social order,” Mackinnon, in opposition to
these Aunt Toms, concludes that the law itself is invariably flawed. If
to be a woman is to be part of a group that has been and still is
institutionally abused, remedies must transform the law, not merely
apply it equally.
Women Mackinnon views as a besieged class of helots, men as members of a
ruling elite that refuses to let go of patriarchal privilege and power.
The former must fight to unseat the latter. And fight Mackinnon does;
she hasn’t stopped fighting since her first major victory in 1986.
Unfortunately, she fights just like a woman: underhandedly, her weapon
of choice being the civil law with its lower burden of proof.
In the landmark Meritor Savings Bank v. Vinson decision, the
United States Supreme Court applied Mackinnon’s theory of sexual
harassment as sex discrimination. The plaintiff, Mechelle Vinson,
alleged her supervisor at the bank, Sidney Taylor, sexually harassed
her, thus violating Title VII of the Civil Rights Act of 1964, which
prohibits employment discrimination based on sex. To read Mackinnon’s
febrile descriptions, Taylor’s “repeated rapes” consisted in standing
over the plaintiff in the vault, waving his membrum virile at her
and laughing. Court briefs aren’t as comical; they acknowledge the
he-said-she-said quality of the case, and concede the parties presented
conflicting testimony about the existence of a consensual sexual
relationship between the respondent and the complainant. Still, the
paradigm that prevailed—Mackinnon’s—required that these incidents be
treated not as if they were “outrages particular to an individual
woman,” but as “outrages” that were integral to “her social status as a
woman worker.” Thomas Nagel of the Times Literary Supplement
explains this unintuitive approach: “These are not just injuries to an
individual who happened to be a woman: she is subjected to them because
she is a woman.”
It was bad enough when under antidiscrimination law employers lost
control over their businesses. Worse was in store: the “radical paradigm
of sexual harassment as sex discrimination” allowed the prohibition of
naturally licit, previously protected speech, based upon no more than a
complainant’s vague, subjective feelings of unease. Sexual harassment
had been redefined so that women could sue an employer for creating a
“hostile work environment,” rather than because they had been pressured
for sexual favors or experienced physical aggression.
With this twist, the Mackinnonites had sundered the already excessively
broad tort standard, which applied to an intentional infliction of
emotional distress. The presumption of innocence, or traditional
defenses such as a lack of intent to harm, or absence of harm, or even
the presence of consent, were no longer impediments to initiating
charges in civil suits—and increasingly in criminal cases. Mackinnon’s
legal conquests thus spelt the defeat of “neutral principles of
constitutional law.” Sexual-harassment kangaroo courts are her unique
contribution to obliterating the Rights of Englishmen in companies and
across campuses. But then, in Mackinnon’s world—now ours—accused men are
symbols of a larger sickness, for which they must pay by forfeiting
their rights. Indeed, individual liberties have no
place in her polemic. She has no use for such anachronisms, especially
not for carriers of the Y chromosome. To the illiberal Mackinnon,
individual rights are but an excrescence of the patriarchy: witness how
the First Amendment has been interpreted to allow men their pornography.
Privacy is of the same provenance; it only cloaks misogynist
machinations. Tellingly, Mackinnon defends abortion not on the basis of
privacy or dominion over one’s person but on the basis of inequality:
The
effects of women’s inequality in procreation can range from situations
in which the woman is prevented from conceiving, chooses to conceive and
deeply desires to deliver but the baby dies, or does not choose to
conceive but is forced to deliver. ... However difficult an abortion
decision may be for an individual woman, it provides a moment of power
in a life otherwise led under unequal conditions that preclude choice in
ways she cannot control.
To say the puritanical Mackinnon has sex on her mind is an
understatement. When it comes to prostitution and pornography, she is a
woman possessed, offering up as proof lengthy and lurid descriptions.
Again, she demands these activities be evaluated in the context of the
sexual subordination of women by men. Prior-restraint justifications,
which rely on foreseeable not actual harm, or on assumptions often not
in evidence, undergird her rush to proscribe the making and marketing of
this stuff. Dare to suggest that the (patriarchal) institution of
private property allows men and women alike to determine their exposure
to pornography, and you risk this schoolmarm’s wrath. A classical
liberal like Judge Richard Posner, whose monograph Sex and Reason
Mackinnon critiques, might argue that third parties have no place in
voluntary sexual transactions between consenting adults. But choice and
agency are missing from Mackinnon’s understanding of women. In effect,
Mother Mackinnon is saying that women don’t know their minds. At her
mercy, they would be infantilized, becoming wards of the state,
incapable of rendering consent. The paternalism Mackinnon proposes is
predicated on the sort of state intervention incommensurate with a free
society—for which she is unapologetic.
If Mackinnon is not about a free society, neither is she about first
principles. Consider her “legal realism.” She believes “[l]egal theory
should analyze the legal issues in terms of the real issues, and strive
to move law so that the real issues are the legal issues.” What
might be viewed as an ostensibly laudable quest for context proves
problematic because Mackinnon’s highly idiosyncratic version of reality
is the only admissible context. It’s her version or no version.
While Mackinnon rightly disdains the postmodern take on truth, she also
loathes “neutral principalism”—neutrality, objectivity, and equality
before the law. Ultimately, Mackinnon’s theory of justice is not
metaphysical but mercenarily political.
It’s also self-contradictory. Implied in her deployment of the law to
transform women’s daily lives is a belief in change—reality isn’t
immutable. Yet she treats the patriarchy as though it were cast in
concrete. How is it possible to change women’s lives unilaterally
without altering men’s lives as well? I don’t expect men’s circumstances
to move Mackinnon. But is there no significance to the fact that
women continue to live longer than men, that many more men commit
suicide, that men are more likely to be unemployed and less likely to
get another job, and that they are more likely to suffer lethal
industrial accidents? Is it of no experiential importance that of the
2094 soldiers who’ve died so far in Iraq and the 15704 who’ve been
wounded, most are men? Not in Mackinnon’s static and stony universe.
Here she is up to her clavicles in self-contradiction, a condition the
Greek philosophers deemed “less than human, less than coherent, less
than sane.” But then, they were of the patriarchy.
More pointedly, Mackinnon’s theoretical castles-in-the-sky have mocked
out of meaning genuine human suffering. As a one-time AIDS counselor in
South Africa, the reviewer might be in a position to offer a measure of
just what a “Mad Hatter” Mackinnon is. Does she know that in one of the
more peaceful and prosperous places in Africa a woman—toddlers and
babies included—is raped every few minutes? Such trammels of despair are
rare in distaff America. Yet there is nothing in Mackinnon’s
disquisition to demonstrate even remotely she understands the difference
between the liberated, sexually overbearing, self-adoring “Girls Gone
Wild” of North America and the victims of, say, the sex-slave trade in
Thailand, Mauritania, and India. Or victims of tribal justice in
Pakistan, where village councilors mete out rape to women on the losing
side of a dispute.
The strength of ideas rests on their relationship to reality.
Mackinnon’s unrealistic fulminations against a phantom patriarchy exist
in the arid arena of pure thought. There are places where Catharine
Mackinnon might pursue her métier more productively. Decamping to Darfur
is one option—her work will have relevance there.
©2006 By Ilana Mercer
Reviewed in
The American Conservative
January 16
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