Anna Coote (review date 14 December 1979)

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SOURCE: Coote, Anna. “Would You Mind?” New Statesman 98, no. 2543 (14 December 1979): 946-47.

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[In the following excerpt, Coote asserts that in Sexual Harassment of Working Women, “MacKinnon's legal analysis gives us some unexpected insights into the complexities of sex discrimination; and her study of sexual harassment provides a useful discipline for examining the law.”]

It isn't easy to get people to take sexual harassment seriously as a problem that besets women at work. (‘Do you get harassed?’ ‘I should be so lucky!’) After all, what is wrong with a bit of horseplay in the office? A girl looks attractive, her boss makes a pass. He's only doing what comes naturally and it must be more fun than typing invoices …

A few years ago, feminists began to explode popular myths about rape. Two of the most persistent were that ‘women ask for it’ and ‘men can't help themselves’. Perhaps these have now been discredited in the context of rape, but they have survived as powerful ammunition against women who ‘lose their sense of humour’ and complain about sexual harassment at work. Another well-worn myth is that women must want to be sexually coerced because they fantasise about it. But as feminist writer Martha Weinman Lear has explained, that kind of wishful thinking reflects no more than a woman's desire ‘to feel free of guilt in a sexual encounter of her own choosing’.

I used to have this fantasy: Two gangsters grab me off the street, throw me into a car, blindfold me and head for the gang's headquarters … and there is the Boss, and he looks just like Marlon Brando … he takes me into the bedroom … I try to resist, Lord knows how I try, but he overwhelms me … (Note how selective our fantasies are: it was no pimpled street-corner drooler who raped me, it was Marlon Brando.)

So it is with sexual harassment. When it comes to the actual experience, it's never the Paul Newman figure from Personnel, but the fellow with the bad breath or the bald head or the 17 grandchildren: an uninvited and often fairly gruesome intrusion—as Catharine MacKinnon demonstrates [in Sexual Harassment of Working Women]. Nancy Filhouer, for example, left her job because she could no longer tolerate her employer's behaviour. He was constantly propositioning her, although she had made it clear she wasn't interested; he would pat her behind and ‘make comments to his friends about her figure or legs whenever she wore a dress, implying that she was a loose woman who would do anything with anyone’. Carmita Wood was forced to leave by a male superior who had a habit of leaning against her when he spoke to her, ‘immobilising her between his own body, the chair and the desk’. A female worker in a camera store was harassed beyond endurance by male colleagues peering down her blouse ‘from the upper level and stairways above the main sales area, assisted by binoculars or telephoto lenses’.

According to MacKinnon, women are prey to this kind of behaviour in most work places—all that varies is the degree of subtlety, which can range from innuendo to outright grabbing. In many cases, it is a condition of employment: if a woman complains or resists, she will lose her job. Like wife battering (until recently), sexual harassment has remained an ‘invisible’ problem—and for similar reasons. It is trivialised, or dismissed as a ‘personal’ matter between the man and the woman which is nobody else's business. The victims often feel implicated, and therefore too guilty or ashamed to make a complaint.

The author is a lawyer and her chief object is to show that sexual harassment at work can amount to unlawful sex discrimination. In doing so she has produced a fascinating and (so far) unique feminist analysis of sex discrimination law. The fact that she is writing about the United States hardly matters. The law is similar in Britain, and so are the conventions of male-female interaction.

MacKinnon's legal analysis gives us some unexpected insights into the complexities of sex discrimination; and her study of sexual harassment provides a useful discipline for examining the law. If a woman complained of sex discrimination because her employer demanded sexual favours, would her case be weakened if she had already complied because she was afraid of losing her job? Does sexual harassment amount to discrimination on grounds of sex if it is directed only at some (e.g. younger, more attractive) women?

We are presented with two contrasting legal approaches to sex discrimination: the ‘differences’ approach, which accepts that there are all sorts of ways in which men and women are different, and deals with specific areas where women have established the right to equal treatment; and the ‘inequality’ approach, by which ‘real differences [are] not allowed to burden women's social status’, and the purpose of the law is to ‘eliminate the legal supports for male supremacy’. Her arguments put us to shame. Neither feminist campaigners nor parliamentary protagonists in this country have bothered to develop a coherent theory about our new anti-discrimination laws.

Susan A. MacManus (review date winter 1980)

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SOURCE: MacManus, Susan A. Review of Sexual Harassment of Working Women, by Catharine A. MacKinnon. Political Science Quarterly 94 (winter 1980): 696-98.

[In the following review, MacManus praises Sexual Harassment of Working Women for MacKinnon's ability to present complex legal arguments in a clear and simple manner.]

In this study [Sexual Harassment of Working Women], MacKinnon answers the central legal question, “Is sexual harassment sex discrimination?” in the affirmative, basing her conclusion upon language of Title VII of the Civil Rights Act of 1964, as amended, and the Equal Protection Clause of the Fourteenth Amendment.

MacKinnon, a practicing attorney and a professor of women's studies at Yale University, superbly presents complex legal arguments in a manner that a nonspecialist can comprehend. Using economic, social, psychological, and legal data, she shows that “sexual harassment of women at work is sex discrimination in employment which operates to reinforce women's traditional and inferior role in the labor force” (p. 4).

The book begins with the premise that the “structure of the work world women occupy makes them systematically vulnerable to this form of abuse” (p. 4). MacKinnon cites labor force statistics as proof of women's economic and social inequality in the work world, specifically their horizontal segregation, vertical stratification, and income inequality. She argues that sexual harassment of women occurs because women hold these inferior jobs. More critically, she argues that sexual harassment has the effect of continuing to keep women in these unequal positions.

MacKinnon then describes the extent of sexual harassment on the job and the various forms that it can take. The data come from lengthy oral and written interviews (ranging from five to twenty hours each) with fifteen women and a series of surveys conducted by Working Women United Institute, Redbook magazine, New York State Division of Human Rights, and the United Nations, as well as her own personal involvement in an extensive investigation at Yale (1976-78) in connection with Alexander v. Yale (a case involving a male professor and a female student).

Survey results indicate that sexual harassment on the job is widespread (five or seven out of every ten women report experiencing sexual harassment in some form at some time in their work life). Victimization is found to cut across lines of age, marital status, physical appearance, race, class, occupation, and pay range. But almost always, “the perpetrators tend to be men, the victims women” (p. 28). Sexual harassment can be verbal or physical, the former being the more pervasive. MacKinnon finds that it can be “quid pro quo” whereby “sexual compliance is exchanged, or proposed to be exchanged, for an employment opportunity” (p. 32), or a persistent “condition of work” effectively making the work environment unbearable. The latter, the more common, is, of course, the more difficult to prove in court.

The main thrust of the book is an analysis of the two theoretical approaches to the establishment of women as a discriminated-against group under the language of Title VII of the Civil Rights Act, 1964, and the Equal Protection Clause of the Fourteenth Amendment. The author laboriously contrasts what she calls a “differences” approach with an “inequality” approach. Citing numerous cases, she establishes the fact that “differences” arguments define the sexes as biologically and socially different from one another. She then proceeds to identify the artificial nature of certain differences between the sexes that have been established by the courts in the past. “Inequality” arguments, on the other hand, define the sexes as socially differential and, more basically, socially unequal. Inequality arguments have been used less by the courts than differences arguments. The author argues in favor of inequality arguments that, she maintains, can better account for social factors.

MacKinnon concludes that “sexual harassment of working women is treatment impermissibly based on sex under both approaches” (p. 6). Under the inequality approach, “sexual harassment is seen to disadvantage women as a gender, within the social context in which women's sexuality and material survival have been constructed and joined, to women's detriment” (ibid.). Under the differences approach, “sexual harassment is sex discrimination per se because the practice differentially injures one gender-defined group in a sphere—sexuality in employment—in which the treatment of women and men can be compared” (ibid.).

In general, the most forceful arguments presented through an analysis of sex discrimination cases regarding employee benefits (pregnancy disability, pensions), job requirements (height and weight standards), and working conditions (sexual harassment) are those citing parallel race discrimination case law. It is in this context that the author presents the clearest and most convincing examples of the contradictions and inconsistencies that, to date, have characterized the application of discrimination law to sex (gender). The blatant failure of the courts to draw parallels between race and sex is highlighted through numerous clear examples, although racial inequality, notes the author, is treated as a more serious problem than sex inequality throughout discrimination jurisprudence.

Overall, this book is highly recommended to persons interested in constitutional law, civil rights policy, affirmative action, and female socialization.

Diana E. H. Russell (review date March 1981)

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SOURCE: Russell, Diana E. H. Review of Sexual Harassment of Working Women, by Catharine A. MacKinnon. Contemporary Sociology 10, no. 2 (March 1981): 321-22.

[In the following review, Russell contends that Sexual Harassment of Working Women provides valuable insight into the problem of sexual harassment in the workplace.]

Sexual Harassment of Working Women is the first scholarly analysis of a pervasive and pernicious problem that has existed ever since women entered the paid workforce, but that has only recently begun to be named, talked about, and challenged in the courts.

MacKinnon began her work on this issue in 1974. At that time “no court had held that sexual harassment was sex discrimination; several had held that it was not” (p. xi). MacKinnon, a practicing attorney and a political scientist, developed the argument published here: sexual harassment in the workplace does in fact constitute unlawful sex discrimination within the meaning of the Equal Protection Clause of the Fourteenth Amendment. In the past few years, some courts have concurred with her analysis.

MacKinnon argues that there are two distinct concepts of discrimination, which she calls the “difference” approach and the “inequality” approach. The former focuses on whether different treatment of the sexes is “arbitrary” and thus illegal, or “rational” and therefore not unlawful. It is this latter approach, MacKinnon points out, that has been favored in scholarly thinking and has dominated legal doctrine. The “inequality” approach, in contrast, recognizes that the sexes are socially unequal, and would prohibit all practices that subordinate women to men. Since “sexual harassment is seen to disadvantage women as a gender” (p. 6), it is against the law. MacKinnon argues that sexual harassment constitutes sex discrimination according to both these approaches; nevertheless, she strongly favors the “inequality” approach, and offers many criticisms of the “differences” approach. Such discussion is intended, along with a brief appendix, “to help readers professionally involved in this area of the law use the now favorable precedents” (p. xi).

MacKinnon had hoped to address this book to anyone interested in the subject matter, whether or not legally trained. Unfortunately she is only partially successful in achieving this goal. However, in addition to her discussion of the legal issues, which seemed unnecessarily repetitious to this nonlegally trained reviewer, several chapters include material of considerable interest to students of sexual assault. MacKinnon argues convincingly that sexual harassment has kept women subordinated to men, “by using her sexual position to coerce her economically” (p. 7). Because of the economic power wielded by employers, direct physical force is often not necessary, the woman's consent being what is coerced, rather than a specific sexual act (p. 164). MacKinnon concludes from this that “economic power is to sexual harassment as physical force is to rape” (pp. 217-18).

The law has long recognized that force need not be used in order to consider children to have been sexually violated, e.g., laws relating to child molestation, statutory rape, and incest. However, neither sexual abuse law nor traditional thought recognizes that adults, too, can be particularly vulnerable to sexual violation, specifically by people who have power and authority over them, such as employers, doctors, therapists, ministers, teachers. The concept of sexual harassment in the workplace directly confronts the sexual abuse commonly inflicted by “authority figures”—in this case, employers.

The chapter on “Women's Work” offers a useful, well-documented summary of the current situation, discussing income inequalities, “horizontal segregation” (the fact that “most women perform the jobs they do because of their gender” [p. 9]), and “vertical stratification” (the fact that women predominate in the low-ranking positions).

MacKinnon's book should contribute greatly to women's struggle against sexual harassment in the workplace, as well as contributing to sociologists' understanding of this urgent but long-neglected problem.

Maureen Mullarkey (review date 30 May 1987)

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SOURCE: Mullarkey, Maureen. “Hard Cop, Soft Cop.” Nation 244, no. 21 (30 May 1987): 722-26.

[In the following review, Mullarkey derides both Andrea Dworkin's Intercourse and MacKinnon's Feminism Unmodified as sensationalistic, irrational, and polarizing attacks on the First Amendment of the U.S. Constitution.]

Is pornography a sex aid, like a dildo, hence undeserving of protection as speech? Is it a potent political message that should be denied protection before it leads to a Haymarket riot of rapists and pedophiles? By what criteria is an image determined “degrading”? Is the pet of the month a nastier purveyor of “bad attitudes” than Calvin Klein advertisements, rock videos, Harlequin romances or the New York Post? Is Screw an unusually dangerous product, like gunpowder, which places special liabilities on its maker? What effect will more laws have on the reasons isolated men masturbate in stalls at Mr. Peepers? Will they try it with chickens after they see Leda and the Swan? If Nazis can speak in Skokie and man-haters can speak anywhere, why can misogynists not speak in Indianapolis?

Andrea Dworkin and Catharine A. MacKinnon are not interested in clarifying issues. Co-authors of the 1984 Indianapolis civic ordinance that declared pornography a form of legally actionable sex discrimination, they prefer obfuscation and shock tactics. Intercourse and Feminism Unmodified should be read solely for clues to the crudity of the authors' assault on the First Amendment. This is lock-step, völkisch theorizing spun from the tribal myth of male depravity. With the dictatorial arrogance of traditional censors, the High Command disdains information and truthful discussion. (At an April 4 conference at New York University, titled Sexual Liberals and the Assault on Feminism, Dworkin trashed “the free market of ideas” because it does not guarantee that “good” ideas will win.) They rely on demagogic pronouncements and sensationalism, calculated to induce reflexive responses and hysterical acquiescence. Both books are ritual performances, hokey rallying points for the real agenda: the polarization of women along lines of sexual preference. Pure feminists (lesbians and nice asexuals) on one side of the sex code, collaborators on the other. The pornography issue is a stalking horse for power—within the feminist bureaucracy and its twin in academia.

Both books travesty debate with a pornography of their own: the reduction of men to their erections and the depiction of heterosexuality as vicious and degrading. Their styles are different—Dworkin is Dzerzhinsky to MacKinnon's Lenin—but their substance is identical. Dworkin's lunatic pensées offer a glimpse at the hindside of MacKinnon's scholarly facade. These are the minds paving the way for censorship. The two take turns playing Hitler, The new “Jewish illness” is male sexuality. The world Jewish conspiracy is heterosexual intercourse (MacKinnon: “The institution of intercourse is a strategy for subordination”). The despised Jew-lover is any woman who prefers sex with a man. Implicit in their rhetoric is a condemnation of maleness itself, sub species aeternitatis.

Dworkin's strong-arm specialty is cunt-speak. Intercourse is a hate-mongering tantrum dolled up as a prolegomenon to the work of Tolstoy, Tennessee Williams, James Baldwin, Kobo Abe and Isaac Bashevis Singer. Nose-dive under the skunk spray, and forget the thirty-four-page bibliography. Dworkin's monomania has nothing to do with literature. Art and life are a ghastly jumble, the artist mistaken for the art and vice versa. Fantasy is equated with reality, metaphor taken for fact, in a global attempt to discredit all of Western culture as pornographic. The muddle fulfills MacKinnon's belief that “existing standards of literature, art, science and politics, examined in a feminist light, are remarkably consonant with pornography's mode, meaning and message.” Tolstoy's “goose-stepping hatred of cunt” is a synecdoche for men's universal “genocidal loathing” of women. In the Dworkin-MacKinnon pornotopia, there are only the fuckers and the fuckees. The sooner the fuckers' books are burned the better. Dworkin's readings are shackled like an S/M bondage slave to a primitive abhorrence of men, so blatant and compulsive that it obviates her pretense to critical analysis:

But in the world of real life—and in the subtextual worlds of Brown [Norman O.] and Freud and nearly everyone else—men use the penis to deliver death to women who are, literally, in their genitals, dirt to men. The women are raped as adults or as children; prostituted; fucked, then murdered; murdered, then fucked.

Beware the party hacks who chirp encomiums to her “elegant” and “lyrical” prose. Dworkin lives in “Amerika,” where “violation is a synonym for intercourse,” and “incestuous rape is becoming a central paradigm for intercourse in our time.” Her own description of intromission is as brutal and lewd as anything on Forty-second Street:

The vagina itself is muscled and the muscles have to be pushed apart. The thrusting is persistent invasion. She is opened up, split down the center. She is occupied. … This hole, her hole, is synonymous with entry.

Heterosexuality is on trial in a kangaroo court, and the judge talks dirty. Sex is a “humiliation ritual,” and “penetration was never meant to be kind.” (MacKinnon: “There is much violence in intercourse as a usual matter.”) The “norms of disparagement and cruelty that constitute fucking male-to-female” are so horrific that even Nazi death camps do not compare:

There is no analogue anywhere among subordinated groups of people to this experience of being made for intercourse; for penetration, entry, occupation. There is no analogue in occupied countries or in dominated races or in imprisoned dissidents or in colonized cultures or in the submission of children to adults or in the atrocities that have marked the twentieth century ranging from Auschwitz to the Gulag.

How did the submission of children slip in? What kind of submission? The rant is as slovenly as its innuendoes: “In the United States, incest is increasingly the sadism of choice.” Dworkin suggests that incest is a male policy, not an aberrancy that occurs—initiated by both sexes against children of both sexes—in troubled emotional situations for a tangle of tragic reasons. She ignores the shared involvement, conscious or unconscious, of other family members. She does not distinguish between increased incidence of incest and increased reporting of it. (Patricia Foscato, a psychotherapist and coordinator of a sexual-abuse prevention program, testified before the Meese commission that she did not believe there was more incest now than thirty years ago, only “more exposure.”)

Dworkin's regard for accuracy, like MacKinnon's, is matched only by her estimate of the reasoning abilities of her audience. Both women swing between biological determinism (the male is destined to exploit by his demonic arousal mechanism) and the wholesale denial of biology. Both grant canonical authority to the fashionable theory that gender is exclusively “a social construct,” like the bourgeois-democratic state machine and credit buying. According to the new Ladies' Anthropology, sexual differences are not the sum of biologically determined morphological and physiological characteristics. “Opposites were created,” says Dworkin, by such cunning conventions as “vagina-specific fucking,” sodomy laws and the “martial aims of gender”:

The creation of gender (so-called nature) by law was systematic, sophisticated, supremely intelligent. … Fuck the woman in the vagina, not in the ass, because only she can be fucked in the vagina.

MacKinnon states the insight this way:

Gender is … a social status based on who is permitted to do what to whom. … gender is an ideology. … Gender has no basis in anything other than the social reality its hegemony constructs. Gender is what gender means.

Neither scholar is concerned with the implications of this hash of sex and sex roles. With its tacit insistence on the absolute rule of social conditioning, for instance, it provides the heterosexual majority with a new rationale for imposing the tyranny of behavior modification on the homosexual minority. If all behavior is stored in culture, including our intuitions of what it means to be human, the problem of incest, for example, can be solved merely by lifting the taboo. If everything is learned, any social system will do, because we can be trained to live in any kind of society. The word “inhuman” loses all meaning without a guide-pin to human needs by which to judge the world.

The distinctive contribution of Feminism Unmodified is its show of reasonableness. It offers itself as precise discourse advancing revolution by systematic means. In reality, it can be called rational only insofar as its staggering obtuseness is the logical consequence of certain fixed ideas. There is an apparent economy to MacKinnon's virulence. She has the intellectual's instinctive gift for using blunter minds for the less amiable aspects of persuasion. The difference is merely one of manners. Dworkin maumaus the audience with fascist rowdyism, MacKinnon does it with analytic mumbo jumbo (“the marxism-feminism problematic”) that cloaks the same dreary aversions and tactics. MacKinnon depends as much as Dworkin on slogans, false premises, half-information, sinister innuendo and ad hoc reasoning.

Feminism Unmodified approaches pornography, among other issues, with a cavalier disregard for due process and a call for mob rule: “So, first feminism, then law.” Feminism is defined, in a characteristic blur, as that which “stresses the indistinguishability of prostitution, marriage, and sexual harassment.” The book is a dizzying blend of legal references, special pleading and mesmerizing incoherence that reads like a fun-house mirror. MacKinnon strung it together from a series of public speeches. Possibly aware that her personal charisma outweighs her credibility as a theorist, MacKinnon begins: “I want you to hear me speaking, rather than read me writing.” The odor of the podium pervades her rhetoric, much of it rabble-rousing or alarmist (“Most women have died without a trace”). Simplification and confusion run riot. The very few facts that appear are so subject to distortion that they cease to inform. For MacKinnon, this is proof that “liberal feminism” has failed:

The rape rate is increasing significantly while the conviction rate for rape is not, in spite of legal changes feminists fought for and won.

What does that mean? Is rape outpacing other violent crimes, which also happen to be rising? To what extent does the “increase” reflect greater documentation in a climate more supportive of the victim? If the percentage of convictions is stable, can we assume that the number of convictions is keeping up with the number of reported rapes? If reform (such as the “rape shield law,” which precludes inquiry into a victim's sexual history except with the accused) has not altered the conviction rate, does that indicate an inadequate legal system? Or does it simply mean that the more protected status of the alleged victim does not override the rights of the defendant?

MacKinnon's arguments sink into sweeping, indiscriminate accusations that are never substantiated. Her standards of proof tend toward anecdotal evidence and manipulative extrapolations from equivocal data. Her “evidence” is acquired through a process of selective perception that allows her to ignore or disesteem any voice that contradicts her own. Despite considerable testimony that coercion is rare, and unnecessary, in the porn industry, MacKinnon flaunts the “slave training” of Linda Marchiano (Linda Lovelace of Deep Throat) as the norm. The preferences and qualities of judgment of women who work in the porn industry are as various as the women themselves. But MacKinnon reduces all variables to force and torture. Convinced of the “commonalities between convicted rapists and other men,” she indulges in statements like this: “Specific pornography does directly cause some assaults. Some rapes are performed by men with paperback books in their pockets.”

Her two footnotes here point to no supporting social science data. The first refers only to MacKinnon's ordinance, and admits that “it would be very difficult to prove ‘direct cause.’” The second is a complaint that wonders “how many bodies must pile up” before correlation is equated with causation. In her impatience with court standards for “close and demonstrable cause,” she bypasses the obvious. Any sociopath intent on doing sexual harm is likely to enjoy looking at sexually explicit pictures. Anything can provide stimuli for disturbed personalities. The greater the pathology, the harder it is to predict either the stimulus or its result. Seven Brides for Seven Brothers or the stigmata of St. Francis might “cause” violent aggression. The 1970 Commission on Obscenity and Pornography found no significant connection between anti-social behavior and pornography. It concluded that most existing legal regulation should be terminated. MacKinnon submits no convincing new evidence—neither does the Meese commission—to change that conclusion.

MacKinnon's bluster is stunning. Faked orgasm is discussed in terms of Cartesian doubt and Heisenberg's uncertainty principle. Since women are presumed “force-fucked,” sexuality is presented in the light of Marx's theory of work. Heterosexual desire is “parallel to value in Marxist theory” because it is not natural but rather “created by social relations.” Consecutive thought buckles under all the hulking bombast. The professor's charm derives largely from her unintelligibility:

Sexual is whatever sexual means in a particular society. Sexuality is what sexuality means. This is a political hermeneutical view. Hermeneutics concerns matters of meaning.

In other words, sexuality means whatever she says it means. Language, too, means whatever she wants it to mean. The prose is perfect for terrorizing city fathers and tenure committees. It is a snake pit of hissing jargon that encircles itself and swallows its own tail:

If heterosexuality is the dominant gendered form of sexuality in a society where gender oppresses women through sex, sexuality and heterosexuality are essentially the same thing. This does not erase homosexuality, it merely means that sexuality in that form may be no less gendered. Either heterosexuality is the structure of the oppression of women or it is not.

Agree or die. Agree or be accused of lying, of “false consciousness,” “pimping,” “fronting for male power” or “fronting for the ACLU as the ACLU is fronting for the pornographers.” (In person, on April 4, MacKinnon scorned objections to her ordinance by the Feminist Anti-Censorship Taskforce as “an address to the penis.”)

Her intimidation obscures chronic bad thinking and an inability to define pornography in a useful way. The failure stems from her mistaken assumption that “pornography” is a technical term. It is a subjective, value-laden word that can cover an almost limitless range of utterances beyond those characterized by existing obscenity laws. The dictums denoting obscenity are equally subjective, dependent on the hypothetical “average person” applying hypothetical “community standards.” The point at which sexually explicit imagery sacrifices a certain tact and becomes “pornographic” or “humiliating” is determined by the tastes and values of the viewer. Porn-sniffing is a parlor game. One woman's art is another's pornography. One man's filth is another's solace. For some, the moral evaluations in the word “pornography” are better applied to gun magazines, Rambo and Charles Bronson's Death Wish movies. The promiscuous ownership of handguns is more seriously “subordinating” than split-beaver shots and skin flicks.

Bereft of legally significant criteria, MacKinnon takes the view of Justice Potter Stewart: “I know it when I see it.” She sees it everywhere. Pornography is not just about sex. It “is sex” and “a form of forced sex.” Art and life do not imitate each other, “they are each other.” (Dworkin, at the same rally, defined pornography as “that bastard in his collective manifestation.”) Small wonder the MacKinnon-Dworkin ordinance was declared unconstitutionally vague.

The Feminist Anti-Censorship Taskforce called MacKinnon's ordinance “squarely within the tradition of the sexual double-standard.” The American Civil Liberties Union amicus brief deemed it “extraordinarily ill-drafted,” “fatally overbroad” (its prohibitions would include even clinical literature and illustrations in medical texts), filled with “multiple uncertainties” and “riddled with discriminatory distinctions.” Ditto Feminism Unmodified.

MacKinnon's intellectual sloppiness is not surprising in view of her obsession with the supremacy of her own will. The actual empowerment of women in substantive ways is quite beside the point. The key to MacKinnon is in her rage against the Supreme Court's decision on abortion. By invoking the principle of privacy, Roe v. Wade granted women the right to choose abortion on grounds that did not require dangerous definitions of life, nonlife or, worse, life-unworthy-of-life. The humane caution of the decision is intolerable to MacKinnon: “Why should women not make life and death decisions?” The thrill is gone if she cannot play God. The right to privacy is a mere vanity of the hated “liberal myth structure.” She stamps her foot and declares that women will not be equal until the Court recognizes the right to abort as residing exclusively in the will to abort. In MacKinnon's capricious lexicon, equality is a variant of carte blanche (“unencumbered possibilities”). She musters support for her position by stating, falsely, that the privacy principle necessarily cuts women off from state funding for abortion. It does not. Her attempt to fudge the difference between two separate issues is flatly dishonest.

The eye for smut is sharper than the eye for our own subterranean biases and fears. Behind the catch phrases of the porn squad (“subordination of women,” “trafficking in women's bodies”) crouches the tattered old horror of masturbation. Lurking, too, is the ancient repugnance of the Better Sort for the desolate and down-and-out who inhabit porn districts. The sexuality of “that element” is a menacing nether world, condemned as obscene because it reminds us of the fragility of our well-being. Antiporn crusades are a symbolic barrier between us and them, illusory buffers against all wayward, darkling encroachments on our slender margins of safety. Such movements are cruel in that they fail to address the conditions that help create and sustain “offensive” populations of the economically or emotionally disenfranchised. They divert scarce resources from the enforcement of existing sanctions against actual harmful behavior. In addition, they contribute nothing to the material ability of women to leave abusive relationships or exploitative jobs.

MacKinnon and Dworkin are mountebanks strutting on a feminist stage. Women have much to lose by submitting to the regressive “protection” of these neobarbaric thought police and self-appointed arbiters of “correct” sexuality. Despite the reservations we might have about pornography, the only proven danger to date is the censorship mentality itself. There is no constitutional protection for women or men against uncertainty, ambivalence, dread or distaste. These are the hazards of living. By seeking legislation against speculative perils and whatever offends us, we invite suppression of any controversial speech. Such censorship is the cherished technique of every Führer who claims to know what is good for us.

Hilde Hein (review date October 1987)

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SOURCE: Hein, Hilda. “In Search of Equality.” Women's Review of Books 5, no. 1 (October 1987): 6-7.

[In the following review, Hein delineates the major thematic concerns of the essays collected in Feminism Unmodified.]

Catharine MacKinnon will be best known to readers of The Women's Review of Books for her work in feminist theory1 and, with Andrea Dworkin, for her legislative campaign against pornography. Ordinances proposed by Dworkin and MacKinnon narrowly missed becoming law in both Minneapolis and Indianapolis and, had they been approved, would have radically transformed the law around pornography. I believe that MacKinnon's most important contribution to feminism lies in this intermediate area between theory and activism. Her incisive legal scholarship and innovative interpretation of legal concepts are already beginning to have an impact upon the slowly moving tide of precedent. A dozen years ago, as MacKinnon pointed out in her earlier book, Sexual Harassment of Working Women (Yale University Press, 1979), no court had held that sexual harassment is sex discrimination and several had held that it is not. Her arguments, articulated in that book and the cases she litigated, have helped to change the climate of opinion.

Feminism Unmodified is a collection of occasional essays, “engaged works,” originally delivered as speeches at law schools, university debates, professional conferences and public gatherings between 1981 and 1986. In them MacKinnon refines and articulates the legal concepts through which theory is brought to bear upon the concrete experience of women and men. The essays embrace a body of issues now identified as “women's concerns” and frequently discussed by feminists—sex discrimination, rape, battery and violence against women, harassment, abortion, pornography, women in sports. The choice of topics is obviously determined by the occasions on which the speeches were delivered, and the book lacks the dramatic coherence of MacKinnon's earlier work; but taken collectively the essays provide a consistent statement of her radical, or “unmodified,” feminist position, and a corresponding critique of feminisms that are “modified”—marxist, socialist, or liberal. MacKinnon sees all of these as ultimately unsuccessful endeavors to extend male-centered theory to women's reality.

Modified feminisms, says MacKinnon, have failed to come up with an adequate theory of the state and so cannot imagine an alternative legal system conceived from women's perspective. Ironically her own strength seems to lie in her exquisite comprehension of the logic of the existing structure of American law and her ability to unmask its intent. She envisages ways to deflect the law along pathways that are innovative and likely to be beneficial to women without appearing to require revolutionary change. MacKinnon does not herself devise a feminist theory of the state or a new legal system. She does argue persuasively for jurisprudential reforms which if implemented would strike at the male bias that is as deeply embedded in current legal theory and practice as it is in the society that they reflect.

The chief merit of this book is its piecemeal approach to legal change; for revolution is not around the corner, and short of it, we cannot expect profound transformations in the social lives of women. MacKinnon's hair-splitting, sometimes repetitive, legalistic style will irritate some readers. I see it as simply a reflection of her competence and technical expertise—qualities sometimes at odds with the passionate expressions of personal and political conviction that ruffle the restraint of her lawyerly tone.

Readers of MacKinnon's earlier book will pick up references to a distinction made there between the “differences approach” and the “inequality approach,” which takes into account the effect that difference produces, implicitly acknowledging that inequality, rather than mere difference, is at the root of sex discrimination. She interprets gender as a predominantly social difference that is essentially hierarchical and enforces inequality. To see gender as a natural subdivision of a universal, neutral “humankind” is to misrepresent it; in fact, gender is chiefly a political device used to justify treatment that favors some to the disadvantage of others. In her judgment, it is not the fact of difference but its outcome that matters; on a metaphysical level, because what is other becomes inferior; on a political level, because the inferior is legitimately subordinated; and on a phallocratic level, because the subordination of the inferior is sexualized.

Feminism Unmodified begins squarely from the collective perspective of women as women, historically placed in a world in which male power is so absolute that it can invisibly set a standard of “point-of-viewlessness.” As she rejects that standard's authority, MacKinnon reflects angrily upon the absolute control that it exerts even over women, including some feminists. Her own brand of feminism has won few followers, and yet the overwhelming abundance of her evidence and the relentless efficiency with which she presents it must have had a powerful impact even upon audiences who are not sympathetic to her point of view. She must have moved adversaries as well as allies to reconsider those genderized concepts and institutions that we have come to think of as “women's issues.”

Her assault on pornography, for example, places it in an altogether different legal framework from that murky domain of “protected speech” in which it usually resides. Under the currently prevailing interpretation of the law, the pornographer's right to free speech can be superseded only if demonstrable harm or injury is done to an individual (a claim that is nearly impossible to prove), or if the material depicted violates “contemporary community standards” of propriety and is socially irredeemable. These standards, be it noted, are defined in terms of a “normal,” i.e. male, disposition to prurient arousal, and the offense that is alleged is against the sensibilities of this abstractly “normal” person. MacKinnon argues that the pornographer's speech is protected at the cost of the exploitation of all women, for whom the world has become a pornographic place.

MacKinnon devotes particular attention to the case of Linda Marchiano, the real person behind “Linda Lovelace” and author of Ordeal, the book that describes the coercion and torture that Marchiano suffered at the hands of her pimp/manager while making the film Deep Throat. MacKinnon points out that the film continues to be widely distributed and shown. It qualifies as protected speech, but the book that tells its story has been suppressed as the result of a libel suit. Why this differential treatment? Her answer is that pornography is so pervasive that it creates its own atmosphere, one which renders the implausible ecstasies of the Lovelace character believable, while silencing the woman who seeks to expose their fraudulence. This invisibility of pornography and its victims is the problem that cannot be relieved by appeals to “community standards” since they are the product of the reality that pornography constructs. Pornography cannot police itself. But women, all of us live in the world that pornography has made. It determines how we are perceived, and also how we perceive ourselves and each other. It legislates behavior as well as attitudes; but so far our only recourse has been to a police force which creates the very conditions against which it “protects” us.

The legislation that Dworkin and MacKinnon have proposed would circumvent the protected-speech definition and treat pornography as a form of political action which harms women. By defining it as a practice of sex discrimination, they argue that those who benefit or profit from it are guilty of violating women's civil rights. This charge rests in turn upon the “inequality approach”: because pornography promotes inequality, it reinforces the domination of one sex by the other. Sex has always been a matter of dominance: as MacKinnon sums it up, “the issue is not the gender difference, but the difference gender makes.” It certainly makes a massive difference in the lives of women whose gender alone consigns them to subordination. And if pornography is an injury of gender inequality, then, the argument goes, compensation may be sought for it. As in affirmative action cases, it is not necessary to prove direct personal harm in order to obtain relief; the charge is brought on the basis of the history of injury suffered by an entire group. In short, anti-pornography suits are retributive claims on behalf of all women.

MacKinnon's struggle against sexual harassment is also expressed in a legal conceptualization that seeks to give concrete form to a practice previously nameless to its victims while perpetrated with impunity by their victimizers. Although a well-known phenomenon to women, sexual harassment did not exist as a matter of grievance or litigation until the mid-seventies. Before then, a woman could charge a harasser with causing a nuisance or, if he was physically violent, with assault, but in addition to the difficulty of proof, those charges failed to capture the systemic and political nature of the offense. Sexual harassment was not merely permitted by law; it was unthinkable in law. (By now, sexual harassment cases have reached epidemic proportions; as MacKinnon notes, “it may well be that sex harassment is the hottest Title VII issue.”2)

By taking the “inequality” approach to this type of exploitation, MacKinnon again abandons the traditional legal fiction of the abstract, gender-neutral individual. Sexual harassment, she argued in her defense of Mechelle Vinson before the Supreme Court in 1986 and in Sexual Harassment of Working Women, is a form of sex discrimination. The point is not just that men sexually harass women, which they do, but that they do it in a hierarchical world where women, as women, occupy an inherently inferior place. Sexual harassment, like pornography, helps to keep them there.

According to the “difference” doctrine, differential treatment of people is legitimate where genuine non-arbitrary differences can be shown to exist: that is, as long as it is based upon authentic and relevant variations. The Equal Protection Clause of the Fourteenth Amendment does not prohibit discrimination based upon “some ground of difference having a fair and substantial relation to the object of legislation, so that all persons similarly circumstanced shall be treated alike.” This means that “genuine” differences such as a propensity to pregnancy can be regarded as “relevant,” non-discriminatory reasons for differential treatment—for example, of women as insurance risks.

In 1976 the Supreme Court ruled (in the case of Gilbert v. General Electric) that although pregnancy was excluded from disability coverage by a private employer's insurance plan, this was not sex discrimination. Because not every woman gets pregnant, it was argued, the distinction was not based on gender; while the fact that only women get pregnant was dismissed as irrelevant. Pregnancy, in other words, counts as a “natural” difference, one that has nothing to do with our allegedly neutral humanity but at the same time legitimizes our differential treatment.

How many other differences are supposed to be “natural”? And who does the supposing? Much of the language and actions that women find most repulsively harassing is condoned under law as a “natural” way of expressing appreciation for “genuine” differences. The burden falls on the deviant woman who reacts so hypersensitively (read “unnaturally”) to men's normal biological expression. By contrast, MacKinnon shows how men's “normal” behavior capitalizes on women's actual and gender-based social inferiority. She also points out that harassment is not the spontaneous manifestation of a man's lust or sensuality; it is not a response to individual qualities of a specific woman but to generic qualities of woman as gender. It is the sexualization of power, disguised as the power of sexuality.

Another issue that MacKinnon addresses from the same perspective is abortion. As she sees it, women generally get pregnant from intercourse under conditions of gender inequality. In other words, the choice to have sex, let alone to conceive, is not entirely their own. This may seem like an obvious observation, but the point is that it is not assumed by existing legal theory, nor by the celebrated reforms of Roe v. Wade. Examining the judicial history of abortion decisions since that case, MacKinnon finds that they have uniformly preserved a male perspective upon the human person, making only such extensions as appear necessary to conform to the vagaries of liberal ideology. This means that individual women's right to privacy has been exalted “as a means of subordinating women's collective needs to the imperatives of male supremacy.” Under the appearance of women's right to have sex (with men) on the same terms as men have sex with women, that is, “without consequences,” access to abortion is presumed to be an equalizer. Yet to conclude that women are now liberated to “enjoy” sex freely, like men, takes for granted the “gender neutral” norm. Women, no longer encumbered by the inconvenience of pregnancy, are free to be like men. But, MacKinnon insists, they are not like men, and in a world in which access to women's sexuality remains under the control of men, the private “privilege” of abortion gives only limited and negligible relief.

MacKinnon perceives even this relief as suspect. In an analysis of the 1981 case of Harris v. McRae, in which the Supreme Court held that the Medicaid program was not obligated to fund medically necessary abortions, she argues that the rhetoric of women's right to autonomy and privacy actually covers up the public delivery of those rights into the control of private men. Women are guaranteed only what they can get in private, and for most women that is not much. The law shields the private domain, and, as MacKinnon sees it, this protects “the central institutions whereby women are deprived of identity, autonomy, control and self-definition.”

MacKinnon's object here is neither to deny women access to abortion nor to promote more government intervention in our sexual and reproductive lives. It is to warn against false friends bearing legal gifts. An ideology that “keeps the private beyond public redress and depoliticizes women's subjection within it” is not to be trusted. As she notes, almost none of the lawyers who have dealt with the abortion cases, nor any other writers on the subject, have argued that constraint upon abortion is a practice of sex discrimination, although both sides have used the charge of every other kind of social discrimination—poverty, race, minority status—upon each other. MacKinnon's aim is to recast the abortion issue altogether in terms of a political approach and legal strategy that clearly identify it as a matter of gender inequality.

Feminism Unmodified explores other topics—the politics of Playboy, a feminist redefinition of athletics, the sexual politics of the First Amendment, and the merits of the ERA. The essays are sometimes irritatingly repetitious in their cataloguing of the same statistical data, and entire paragraphs reappear in several essays, flaws that might have been corrected by better editing. But I believe that, in the end, the redundancy strengthens the force and clarity of MacKinnon's argument. The book also presupposes that the reader is familiar with ideas that are more fully worked out in MacKinnon's earlier writings and not discussed here. Their absence makes reading Feminism Unmodified a more difficult task than it need be, even though MacKinnon strives to preserve a spontaneous conversational tone.

MacKinnon has been criticized—and she defends herself against the rebuke—for her remorseless presentation of women as victims. Others fault her for seeking to use (and modify) the institutions of existing society instead of pursuing more radical feminist aims. I think these objections are misplaced, as are the objections to her assigning preeminence to gender inequality, rather than to class or race or cultural status, as the basis of women's oppression. She does not underestimate the weight of these forms of oppression; but she observes that while they may intensify and multiply the variety of ways in which women suffer from gender inequality, they do not explain it.

MacKinnon's objective is not merely to explain, but to change, and she believes in the power of words and institutions to do that. Women have had little to do with defining the words or creating the standards that control them. They have been exhorted to buy into the myth of gender neutrality, and privileged women especially have been invited to dissociate themselves from the reality of gender. To those women who think “it isn't good for women to think of themselves as victims,” she responds, “How can it be good for women to deny what is happening to them? Since when is politics therapy?”

Of course politics can be therapeutic, because to become engaged is to initiate, if not to seize, control, and that is what MacKinnon is doing. She is doing it in an adversarial environment and with minimal means. Her experience is with the law and that is what she manipulates well without glorifying it as more than the instrument it is. Does she trust it? By no means, but the alternatives are limited:

We do not trust medicine, yet we insist it respond to women's needs. We do not trust theology, but we claim spirituality as more than a male preserve. We do not abdicate the control of technology because it was not invented by women. We do not abandon the environment, the more it is taken over. We do not trust the media; we are more likely to pressure it to express our values than to let it go on as it is because it doesn't. If women are to restrict our demands for change to spheres we can trust, spheres we already control, there will not be any.

(p. 228)

Notes

  1. “Feminism, Marxism, Method and the State: An Agenda for Theory,” Signs, Vol. 7, no. 3 (Spring 1982), and “Feminism, Marxism, Method and the State: Toward Feminist Jurisprudence,” Signs, Vol. 8, no. 4 (Summer 1983).

  2. An encouraging example of this trend was the unanimous ruling by the Massachusetts Supreme Court in June, 1987. The Court ruled in the case of Loretta D. Rizzi that sexual harassment is in violation of the state's discrimination laws; it further ruled that employers have vicarious liability for the harassing conduct of their employees.

Raymond W. Mack (review date March 1988)

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SOURCE: Mack, Raymond W. Review of Feminism Unmodified, by Catharine A. MacKinnon. Contemporary Sociology 17, no. 2 (March 1988): 148-49.

[In the following review, Mack offers a negative assessment of Feminism Unmodified.]

“Gender is an inequality of power, a social status based on who is permitted to do what to whom. Only derivatively is it a difference. Differences between the sexes do descriptively exist; being a doormat is definitely different from being a man. … Inequality comes first; differences come after” (p. 8). If you share (or are interested in) this notion of social stratification and a truly simplistic interpretation of the distribution of power in human society, this book is for you. It allows you to skip Max Weber and C. Wright Mills and go directly to “feminism stresses the indistinguishability of prostitution, marriage, and sexual harassment” (p. 59).

This book [Feminism Unmodified] consists of a congeries of speeches, mostly devoted to the law on sexual harassment, which she has devoted herself to establishing, and to the law on pornography, which she believes is in serious need of reform. The speeches are characterized by angry rhetoric; they are a joyless set. The two words with the longest lists of citations in the index are “pornography” and “rape.” The word “orgasms” appears twice in the index (“female: faking” and “male: from pornography”).

The author's misandry infects her forceful prose style and corrupts her analysis of urgent matters: rape and the law, pornography and the First Amendment, gender and social stratification. Her hyperbole is not persuasive. The shrillness of her prose trivializes issues deserving thought, research, interpretation, and prescription.

Christina B. Whitman (review date May 1988)

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SOURCE: Whitman, Christina B. “Law and Sex.” Michigan Law Review 86, no. 6 (May 1988): 1388-403.

[In the following review, Whitman outlines MacKinnon's feminist perspective of law, calling Feminism Unmodified a “rough, powerful, important work.”]

In Feminism Unmodified, a collection of speeches given between 1981 and 1986, Catharine MacKinnon talks of law from the perspective of feminism. MacKinnon does not approach her topic as a lawyer with a uniquely legal perspective on feminism; she brings, instead, a distinctively feminist approach to law. Nor is the feminism from which she speaks grounded in the standard political theories: MacKinnon disclaims and attacks the Marxist approach to feminism, the socialist approach to feminism, and, most emphatically and repeatedly, the liberal approach to feminism that has been embraced by many lawyers in their effort to use law to eliminate discrimination on the basis of sex. MacKinnon's goal is to define feminism on its own terms. That is what she means by “unmodified.” This book both exemplifies and discusses the difficulty, and the considerable success, of her project. It is a rough, powerful, important work.

MacKinnon talks about law, and about the effect upon women of trying to talk in legal language. Although she herself is, in at least some of these essays, talking to lawyers, and although lawyers typically adopt a language of neutrality, MacKinnon herself makes no pretense of neutrality or disinterest. These are political speeches. They are concerned with the way law works as a system of power, a system that reinforces the supremacy of men over women. To adopt the language of law as if it represented not politics, but neutrality or a claim to a disinterested justice, would be to give up her claim from the beginning. It would cede to law the very status she contests. Yet the costs of MacKinnon's choice to talk about law from the standpoint of feminist politics—the personal and political costs, particularly the loss of credibility—are high. That is a chief theme of this book:

My work is considered not law by lawyers, not scholarship by academics, too practical by intellectuals, too intellectual by practitioners, and neither politics nor science by political scientists.

… [A]s for me, I notice that law gives me some credibility, but that being woman-identified takes it away. The law gives male credibility; female identification erases it.

[pp. 132-33]

How do you persuade as a feminist lawyer? Must you choose between a language of neutrality, which provides credibility but disables you from saying those things you most need to say, and a feminist language, which allows you to say those things at the cost of being believed? In MacKinnon's view, a central tactic of male supremacy is to deny credibility to women who speak as women. The central task of feminism is, in the face of this, to articulate a woman's point of view. The law has responded to the voice of the disempowered in the past. MacKinnon calls on it to do so once again.

The speeches in this collection build upon two earlier, more formal articles, both published in Signs.1 In these articles MacKinnon began to elaborate her view of the explanatory power and distinctive methodology of feminism. This methodology, consciousness-raising, consists most basically in believing women's descriptions of their own experience. It also requires of women, however privileged they may be, that they identify with women, that they remain loyal to and accountable to women, rather than to the system that has given them a comparative advantage (p. 77). When you listen to women, MacKinnon testifies, the world assumed by law does not exist (p. 169). What is left out by law is the systematic domination of women by men in public and, most importantly, in private life. That domination, MacKinnon argues, is based on sex: “[F]eminism is built on believing women's accounts of sexual use and abuse by men” (p. 5).

Two-thirds of the essays in Feminism Unmodified apply the perspective of women to specific legal questions. From that perspective, much that is not currently perceived as harm based on sex, or even as harm at all, becomes visible as sex discrimination. An example—one in which MacKinnon's efforts in making discrimination visible as discrimination have already achieved remarkable legal success—is sexual harassment. From a male perspective, sexual harassment is not the infliction of an injury, but a natural biological response. From a perspective that claims to be untainted by gender, to be objective and neutral, sexual harassment might not look like sex discrimination if both men and women are harassed, or if both find the tactics offensive.2 From a woman's point of view, sexual harassment is one of many instances in which women are treated in a degrading, demeaning manner because of their sex. It is a way of reinforcing women's subordinate status. Ten years ago MacKinnon wrote a book in which she argued that sexual harassment was a practice of sex discrimination.3 This characterization, which was greeted with much skepticism when it was first articulated, now has been accepted, without dissent, by the Supreme Court.4

Repeatedly in this collection of speeches, MacKinnon redescribes as sex discrimination practices which have been thought of as neutral, objective, or based on biological differences. A key part of this argument is her critique of the law's approach to questions of inequality. The great gains in legal equality made by women since the early 1970s rest in large part on the argument that women should be treated the same as men to the extent that they are the same as men. Since many women, at least those educated like men, seem to be the same as men for most public purposes, this argument has been tremendously effective in breaking down barriers created by reliance on stereotypes and overgeneralizations. The lawyers who made this claim appealed to an image of women as autonomous, independent, and as capable of accomplishment as any man. This strategy has been most effective in gaining women access to previously segregated institutions. To close the door to these independent, fully capable women would be irrational.

The strategy creates problems when the grounds for difference in treatment are fertility, or pregnancy, or women's responsibility for child care, for discrimination on these bases appears to reflect real differences and thus to be “rational.” To the extent that lawyers arguing on behalf of women insist that women be treated like men in spite of pregnancy or reproductive potential, their claims, under the equality analysis, look like a request for affirmative action or preferential treatment. The capacity to bear children becomes a difference from men, a disability, something to be compensated for, rather than something that is a valuable part of one way of being human.

MacKinnon treats the legal strategies which focus on similarity and difference between the sexes as a single strategy with “two alternate paths to equality”—“be the same as men,” or gender neutrality; and “be different from men,” or special protection (p. 33). What the two paths share is the assumption that questions of equality are to be approached by comparing women to men: “Concealed is the substantive way in which man has become the measure of all things” (p. 34). This legal strategy, the “differences approach,” assumes that legal questions of equality can be resolved by logic, without reference to politics. MacKinnon associates this effort to avoid politics with liberalism's assumption that all adults, men and women, are free from coercion in the absence of government interference, able to make choices completely voluntarily and to determine their life direction. The legal strategy, the liberal assumption that underlies it, and the feminists who make claims in these terms, are the main objects of attack in her book.

MacKinnon argues that gender discrimination is a question of dominance, rather than of distinction: “To feminism, equality means the aspiration to eradicate not gender differentiation, but gender hierarchy” (p. 22). The systematic subordination of women by men cannot be solved by drawing more appropriate distinctions. Just as the legal arguments made by liberal feminists drew on precedent from race cases that challenged segregation and exclusion by refusing to permit classifications based on race,5 MacKinnon points to precedent from race discrimination law that describes the problem as “white supremacy,” rather than irrational differentiation.6 Even though the attention of feminist lawyers in the 1970s was directed primarily at the exclusion of women from male institutions, segregation, MacKinnon argues, is not at the core of women's problems. MacKinnon is much more concerned with what happens when women live with men.

MacKinnon's approach, which sees the achievement of equality as tied essentially to the overthrow of male dominance and gender hierarchy, assumes that men and women are different in a system of male supremacy. The “differences approach” leads to a dead end, for it is insensitive to the way in which gender differences are socially constructed. Women are not “similarly situated” in our society—specifically, they are not autonomous and independent. Liberal feminism assumes that, once the stereotypes are swept away, we will have left only some irreducible biological differences in gender that can be rationally taken into account because they reflect differentiation that is neither inaccurate nor irrational. MacKinnon argues that nothing, not even biology, is irreducible in that way. The so-called biological differences among the sexes are given meaning—in fact, created—by social practices, including the practices of law (p. 173). This is not the familiar argument that we cannot know what is attributable to biology until we eliminate social inequities. MacKinnon asserts that we cannot get beyond social readings of gender to an unbiased, neutral view of difference. The key question then becomes: What has been the social construction of sex differences, and how has the law contributed to it?

MacKinnon's position is that the key to understanding the social meaning of gender, and thus the key to understanding male dominance, is what society has made of sex. The link between dominance and sex is simple and direct: We have been taught to believe that women enjoy sexual dominance, that they are naturally subordinate in this most basic of biological activities and therefore naturally subordinate in all aspects of life. In linking dominance with sex, rather than with economic or class interests,7 or with psychological conditioning,8 MacKinnon has been powerfully influenced by the work of the philosopher and novelist, Andrea Dworkin (pp. 129-31, 149, 173). In Dworkin's analysis “sexuality itself is a social construct, gendered to the ground. Male dominance … is not an artificial overlay upon an underlying inalterable substratum of uncorrupted essential sexual being” (p. 149). The social construct of sexuality is that women are objects for male use. One consequence of “believing women's accounts of sexual use and abuse by men” is to blur the distinction that the law has drawn between impermissible forms of dominance, such as rape, and everyday relationships between men and women. The testimony that MacKinnon hears, from women “who have lived through or worked hands-on with violence against women,” from former prostitutes, and from former pornography victims like Linda Marchiano, capture more of women's situation for MacKinnon than does most feminist writing (pp. 216-17). In one of her Signs articles, MacKinnon has argued that the legal definition of rape legitimates the forcing of sex upon women. It does so by defining rape from a male point of view, as consisting of those forms of coercion that the men in the legislatures are unlikely to use.9 Sex that does not fit into the legal definition of rape is assumed to be consented to, to be voluntary. But the legal definition, MacKinnon argues, ignores most of the ways in which sex is actually forced upon women. These include, but are not limited to, economic coercion, the more subtle physical coercion created by limited options and women's trained passivity, and violence assumed to be consented to because the woman did not scream and fight, as well as the pervasive coercion that flows from being called frigid, or repressed, or anti-male, if a woman says no.

Some of the most cherished victories of the women's movement are called into question by MacKinnon's description of male supremacy. For example, she redescribes the significance of Roe v. Wade,10 the case that held state prohibitions of abortion to be unconstitutional. The Supreme Court in Roe based its decision on a theory of freedom of choice in private matters, rather than a theory of sex discrimination. MacKinnon challenges this reasoning, which assumes that women are free to make choices about private matters unless they are subject to government coercion.11 MacKinnon argues that it is in private matters that women may be least free. Again, the comparison to men as a standard has skewed the legal question: “the equality issue has been framed as a struggle for women to have sex with men on the same terms as men: ‘without consequences’” (p. 98). The result, although it has undoubtedly helped many desperate women, has also furthered male power over women: “So long as women do not control access to our sexuality, abortion facilitates women's heterosexual availability. In other words, under conditions of gender inequality, sexual liberation in this sense does not free women; it frees male sexual aggression” (p. 99). A decision that looks like a victory for feminism also serves—may have been possible only because it also serves—the dominance of man.

Both the arguments in support of Roe and the arguments against it assume that the normal, typical, sexual relationship between men and women in our society grows out of the free choice of both parties. MacKinnon argues that that is true only from a male perspective. For women, sex is almost universally compulsory. And what sex means, what it acts out, is domination by men and submission by women. It is not a sufficient answer to this claim to point out that many women enjoy sex. MacKinnon would respond that they are trained to that preference, and that it is not surprising that women try to make the best of their situation. The real power of MacKinnon's claim turns not on individual preferences, but on the social meaning of sex. For a man, sex is consistent with, even essential to, a public image of power and prestige. For a woman, sex is inconsistent with authority; it is a sign that someone has exercised power over her. Socially, sex is not seen as enhancing a woman in her various roles, but as defining her limitation to a single role. The social meaning captures what MacKinnon asserts: that sex is forced on women. In elaborating what sex means to women, MacKinnon links women across class lines. For poor women, forced sex may take the form of economic coercion into abusive marriages, unwanted pregnancies, pornography, and prostitution. Elite women may or may not have more economic independence, but they too, MacKinnon argues, are victimized because of their sexual identity.

Because sexuality and its social meaning as dominance and subordination are central to MacKinnon's theory, the practices that create that meaning are first on MacKinnon's agenda for legal change. Foremost among those practices, she argues, is pornography. MacKinnon argues that pornography, like sexual harassment, is a manifestation of sex discrimination. Like rape, pornography is not separate from normal sexual relations. In fact, MacKinnon claims, pornography is a cause of sex discrimination, and it determines sexual relations. Almost half of Feminism Unmodified is about pornography. Her critique, which builds explicitly and with admiration on the work of Andrea Dworkin,12 may change forever the way in which the subject is viewed by lawyers. It is also the area in which MacKinnon is most under attack in her claim to be speaking for women.

Before Dworkin and MacKinnon came on the scene, the law, most liberals, and most lawyers regarded pornography from the point of view of the pornographer; pornography was primarily a question of free speech, and the essential harm was that inflicted by government censorship upon the speaker. MacKinnon looks at pornography from the point of view of the woman who is the subject of the pornographer's speech. From this perspective, what is troubling is not obscenity, bad taste, or offensiveness. What is troubling is pornography's subordination of women. MacKinnon is not simply concerned with violent pornography, for the very concept of violence incorporates a male standard of what is coercive. Pornography that portrays sex as violence toward women is a large part of the problem, but violence is only one way in which women are subordinated (p. 187). MacKinnon is also concerned about pornography that dehumanizes women and pornography that portrays humiliation or submission as central to the sexual role of women.13

Defined this way, pornography is the central practice of male supremacy. It illustrates the link that MacKinnon sees between male dominance and sexuality. Pornography legitimates the domination of women by men by making this domination appear natural, an expression of innate sexual urges in both the man and the woman. It defines what is thought to be sexual freedom, and teaches that it is acceptable for men to dominate women because women, biologically, enjoy being dominated (p. 91). Pornography teaches what sex is and what, women are. The prevalence of similar messages in non-pornographic areas of society, such as advertising and art, only reinforces MacKinnon's point that “normal” sex has been created in pornography's image. MacKinnon's legal response is an ordinance, drafted by MacKinnon and Dworkin, which gives women who can establish that they have been injured in the production of, or as a consequence of, pornography, a cause of action against the pornographer, and, in some cases, a right to have the material removed from the market. By casting the legal action as a civil rights suit brought by the victim,14 rather than as government-initiated regulation, the MacKinnon-Dworkin proposal builds the woman's perspective into the legal process. The harm to the individual woman who is in the courtroom as the plaintiff is the center of the suit.

The first amendment objections to the ordinance have prevailed in court,15 but MacKinnon challenges these constitutional constraints as reflecting, again, a male perspective. First amendment law, she argues, protects individuals against government oppression because that oppression is what men fear (p. 207). It assumes that in the absence of government coercion, the speaker can say whatever is on his mind, that freedom from the state is total freedom. Women's experience is different. Their oppression takes place in private, and it comes from men rather than from the state. “[T]he free speech of men,” in particular the speech of pornographers, “silences the free speech of women” (p. 156). It discourages women from speaking, and when they speak it makes what they say not credible. To the extent that the core first amendment value is tolerance of others' views, it is a habit of mind that women do not need to learn. Women are trained to be tolerant of and to adapt to male ways of seeing the world. What women need to achieve is the confidence to insist on their own voice.

In form as well as in content, this book is about speaking from women's experience and the effort to achieve credibility for what is said. This is an issue of immediate, as well as theoretical, importance for MacKinnon. In Feminism Unmodified her ideas are not presented as a finished whole. Instead, they are developed over time, through speeches which begin tentatively in the early 1980s and build throughout the decade toward more certainty and more anger. In her earliest essays, for example, she is uncertain about the proper response to pornography.16 Four years later, after innumerable debates over her ordinance, and after watching its quick demise at the hands of the federal courts, she is furious—at the federal judges17 and, even more so, at other women, particularly women lawyers, who claim to speak as feminists yet oppose her proposal. We see how her ideas and her speaking strategies develop in response to responses, and in many different contexts, before groups with a variety of agendas.

It is not clear whether the versions of the speeches that appear in the book represent written texts from which MacKinnon would speak, or whether they are transcripts from taped presentations. Some seem quite clearly to be texts written for publication, others are so full of references to the particular occasion that they seem to have been put down undigested on the page. She says that “they were all spoken first without a written text,” though some were later revised (p. 1). They are all deliberate political acts, as well as essays in theory. The most formal is the Biddle lecture given at Harvard in April of 1984. Others are portions of panel discussions in which MacKinnon participated, with the contributions of the other panelists excised, but with an occasional brief question from the floor included. There seems to have been virtually no editing for publication. There is considerable repetition; and there are some frustrating omissions. Occasionally MacKinnon refers to positions that other people have taken in the course of the conference or panel discussion at which the speech was given, or to political maneuverings that preceded her speech, but these are not explained in any detail. Even when her speech is a fierce attack on another perspective, as in “On Collaboration,” she seems so suspicious of her opponents' arguments and motives that she does not communicate what they are saying. Despite occasional statements by MacKinnon that she is interested in dialogue (e.g., p. 46), hers is the only voice that you hear in these pages. The voices of other women are included only through MacKinnon's retelling of their stories or her fury at their failings.

MacKinnon is simultaneously mesmerizing and infuriating. She is provocative, grating, moving, defensive, devastating, repetitive, relentless. Even her written words often capture the passion and cadence of a preacher. Although she is explicitly political, she refuses to conform to the expectations of any particular style of discourse, even the discourse of conventional politics. One of her characteristic techniques is to build an argument elliptically, through a chain that appeals to an understanding of connections that are developed more fully elsewhere: “Pornography turns sex inequality into sexuality and turns male dominance into the sex difference. … [P]ornography makes inequality into sex, which makes it enjoyable, and into gender, which makes it seem natural” (p. 3). She is witty, and funny, and sharp: “Lawyers considering whether anything can be done for a woman … rarely conclude that they should confront or change the law. They look at cases the way surfers look at waves” (p. 13). And: “[T]o consider ‘no more rape’ as only a negative, no more than an absence, shows a real failure of imagination. Why does ‘out now’ contain a sufficiently positive vision of the future for Vietnam and Nicaragua but not for women” (p. 219)? MacKinnon exaggerates, though not without basis,18 and she makes her points through redefining terms in surprisingly broad, though not inaccurate, ways.19 She is deliberately shocking: “Pornography strips and devastates women of credibility, from our accounts of sexual assault to our everyday reality of sexual subordination. … Even if she can form words, who listens to a woman with a penis in her mouth” (p. 193)? She can be conclusory and vague. She plays language games. For example, the word “pornography” becomes a verb, something that is done to women, as in “[t]he film Deep Throat, in which Linda was pornographed …” (p. 128). Perhaps MacKinnon's most distinctive pattern is the juxtaposition of extremely academic, abstract arguments with crisp, biting sentences:

Along with the rape and prostitution in which it participates, pornography institutionalizes the sexuality of male supremacy, which fuses the erotization of dominance and submission with the social construction of male and female. Gender is sexual. Pornography constitutes the meaning of that sexuality. Men treat women as who they see women as being. Pornography constructs who that is. Men's power over women means that the way men see women defines who women can be. Pornography is that way.

[p. 148]

For MacKinnon, speaking for women means speaking about sex, specifically, about sex as forced upon women. Feminism Unmodified is about credibility—about the credibility of women who testify to sexual abuse, and about MacKinnon's own credibility when she speaks for these women. Her point is that the very effort to speak about these matters in this way calls into question the credibility of the speaker. That is one of the damaging effects that she attributes to pornography (p. 193). In her most recent speeches and in the afterword, where she writes directly about her experiences as a speaker, MacKinnon struggles explicitly with the hostility, the dismissals, and the attacks that her lectures have elicited. She is most concerned, perhaps because most surprised, when those attacks have come from women.

For the past two decades, feminist theory has elaborated upon the basic insight that “the personal is political.” MacKinnon's claim is to have captured the essential meaning of that phrase in drawing the connection between political power, manifested in the system of male supremacy, and the sexual relations between men and women. Feminism Unmodified is an elaboration of the consequences of drawing that connection. But it is also an exploration of the connections between the “personal” and the “political” in another sense. In these essays, which are the texts of political speeches, MacKinnon is often very personal. One of her strategies is to engage her audience and her foes directly by naming names and making personal accusations.20 She also addresses explicitly, throughout the time period of these speeches,21 the hostile reactions that have been directed against her and her colleagues personally. One not uncommon response to MacKinnon's tactics, especially among people exposed to these ideas for the first time, is to try to evade the political point by focusing on the person of the speaker—to ask whether she likes sex, or to speculate about her sexual preference.

Why do MacKinnon's essays evoke not only disagreement, but such extreme hostility? Why are they so unsettling, even to people who are committed feminists?

Despite her evident distress and even surprise at the strength of the resistance she has encountered, MacKinnon would say that the resistance simply establishes the force of her argument. She is correct. It is dangerous for a woman to speak about sex and to call it coerced. At best, what she says will be trivialized—for instance, reduced to a debate about her own sexual practices. At worst, she will be hounded and hated. The very strength of the negative reaction becomes evidence of one of MacKinnon's main themes: that it is important to those who have a stake in the existing system that women's point of view be denied credibility.

MacKinnon claims that the legitimacy she gains through law is taken away because of her identification as a woman (pp. 132-33). But part of the problem—this is another one of her themes—is that she cannot simultaneously identify herself as a woman and as a lawyer in any conventional sense. She would claim that the things she has to say cannot fully be said in lawyers' language. To some extent, her arguments can be made with traditional legal techniques. She can point to analogous claims that have been recognized by the courts in the past, especially in the racial discrimination cases. In those cases, harms that were once ignored have been made visible. More specifically, MacKinnon rejects the legal strategy that holds up the ideal of a gender-blind system, and, in doing so, she can rely on the acceptance in race cases of the idea that a color-blind government is inadequate to achieve true equality after centuries of abusive treatment.22

But in many significant ways, MacKinnon deliberately refuses to speak like a lawyer, or even like a traditional academic. She refuses to feign neutrality or disinterest. She even refuses to make a pretense of stating the other side's position. She claims that the matters of which she speaks are not matters about which one can or should be neutral and objective, that the standards of objectivity and neutrality are techniques used to conceal the fact that reality has been constructed from the male point of view. In a world created according to the male point of view there is no way that one can talk about what happens to women without sounding strident and hysterical—that is the way in which the testimony of women is made unbelievable. Again, the very hostility MacKinnon evokes becomes evidence in support of her claim.

MacKinnon's analysis is powerful and coherent. But she has made other choices as well, choices not so obviously required by her agenda. She is often offensive and cruel to individuals and groups who disagree with her. This is one way in which she refuses to respect the line between the personal and the political. One of the last essays in this collection is called “On Collaboration.” It is not about MacKinnon's collaboration with Andrea Dworkin, Linda Marchiano, and other women whom she repeatedly and graciously acknowledges throughout this book. It is about collaboration in the World War II sense. The essay is directed at women lawyers who do not support MacKinnon's proposed pornography ordinance. These women are not called “women lawyers,” or “feminists,” except with a sneer (pp. 200, 202). They are called, repeatedly, “women lawyers who identify as feminist.”23 MacKinnon is a woman who has found anger empowering, and she is angry at those who find anger debilitating, or who are not driven by the same anger. To her, those women seem less courageous. It may well be impossible to talk about what MacKinnon has to talk about without being angry, very angry, but it is not theoretically clear that one must also be cruel.

The cruelty in MacKinnon's voice may serve a purpose. It communicates her view that the stakes are high and that action must be taken. It refuses to allow the reader to fall back on neutrality; it insists on a reaction. It refuses to adhere to the line between emotion and intellect. But one unfortunate consequence of her anger is to muddy the effectiveness of her point about credibility. Resistance to what she has to say can be explained as itself resistance to dominance, resistance to MacKinnon's own bullying tone, rather than as a refusal to hear testimony from the experience of women.

There is another, more troubling way in which resistance to MacKinnon feels like resistance to dominance. MacKinnon claims to speak for women, to be articulating a “woman's point of view,” yet she is not listening to all women.24 Some women are not worth listening to because they have been given access to power, and they have chosen to “defend … their relatively high position among women under male supremacy” (p. 205). Others are indifferent because of “sexual self-interest” (p. 14). At the beginning of the 1980s, MacKinnon is tentative in her claims about pornography. But four years later, women who oppose her ordinance are “siding with the pornographers” (p. 205).

As MacKinnon ruefully acknowledges, “To put it mildly, people take sex personally” (p. 218). And not all women would accept MacKinnon's characterization of sex as representing their perspective. Women, as well as men, do not want to be told what sex is for them. MacKinnon's response, which is powerful, is that those women who do not agree with her description of what sex is under conditions of male supremacy are not being sufficiently critical about the ways in which their own preferences have been formed by their limited options. They “are trying to make the best of a situation that they think (not without reason) they cannot change” (p. 14).

The issue of who speaks for women, and as women, arises in other contexts. Indeed, the claim of the book is to have articulated the only pure, “unmodified,” feminism—the only feminism uncorrupted by male theories and perspectives. However compelling MacKinnon's theory may be, and I think it very compelling, it is unfair to ask women to accept a single perspective about either feminism or sex. Women have had too much practice in accepting a position that has been handed to them. As MacKinnon, despite her certainty about her own position, does understand (p. 48), we are in the middle of the project of describing what life has been and is for women. One of the great pleasures of feminist theory has been that it complicates accepted views by adding previously unheard perspectives. It is not yet time for women to give themselves over to a single, even though new, description. And it is especially troubling that in so much of what MacKinnon says she seeks to distance herself from women who disagree. Women have also had too much practice in being the Other.

To a disturbing extent, MacKinnon has borrowed from the tools of male dominance in her writing. There is the occasional abstruse, academic sentence. There is the claim to truth, or at least to the correct theoretical perspective. And there is cruelty. It is true that she uses these tools in the service of ideas that are just beginning to be heard in our culture, especially in our legal culture. Her aggression is explicitly in the service of bias and argument, of a particular perspective; she does not disguise her political claim as a description of the natural, and inevitable, order of human life. Moreover, even though her effort to include the voice of women seems to exclude some women's perspectives, the testimony she does include comes from the least powerful, and thus least heard, women in our society. But ironically, MacKinnon's argument may be most effective among academics, who can appreciate its insight, its intelligence, and its coherence, and among lawyers, who understand the need for action and the need to argue from a particular position for specific change. It may be least effective politically among the general population, for its divisiveness and anger will seem like more of the same male politics to many women who will not listen long enough to question whether they have been trained to be suspicious of women who refuse to be conciliatory. MacKinnon raises the uncomfortable question of what feminist politics must be to be effective.

Finally, I think that there is a way of misreading MacKinnon that both evokes hostility from some and misdirects the attention of others whom she has moved and persuaded. One criticism of MacKinnon is that she must not like sex. Another is that she must hate men. These are interesting charges. Again, the mere fact that they are made supports MacKinnon's basic thesis: Why are the charges relevant, even if true? And, in particular, why does it cast doubt on what a woman has to say if she shows contempt for men, when we have shown so much tolerance for men who express contempt for women? To say that a woman hates men is to cast doubt on her rationality and her judgment. But similar comments about women from Oxford dons or White House aides indicate at the most bad taste, a certain unfortunate crudeness, rather than lack of fitness for office. We live in a society in which it is acceptable to disparage women, but unacceptable to disparage men.

In any case, MacKinnon cannot be charged with contempt for men. Nor can she be taken to urge feminists to become separatists or to forgo all sexual relations with men. To read her in either way is to trivialize what she means by “[t]he personal is political.” She takes care to make it clear that she is not talking about individual men, even when she mentions them by name (pp. 164, 212). She is concerned about the injuries that pornography does to men as well as to women (p. 189). MacKinnon is not claiming a biological ground for men any more than for women. She is talking instead about what men have been trained to be and about what they have to gain from their place in the social hierarchy. The difference between men and women “is that men have power and women do not” (p. 51). Here is MacKinnon speaking to men directly, in a speech given at a rally held “to grieve and protest a series of rapes” (p. 81):

I think you need to remember that we love you. And that as a result it's often very unclear to us why you are so urgent. It's unclear to us why you are so pressured in seeking sexual access to us. We want you not to denigrate us if we refuse. We want you to support us, to listen to us, and to back off a little. Maybe to back off a lot.

[p. 83]

And MacKinnon acknowledges her desire for what sex can be: “a sexuality of one's own yet with another, both of whom are equally present because yes is meaningful because no is meaningful” (p. 217). The problem, she says, is that “many people want to believe they already have this more than they want to have it” (p. 217).

The point of seeing the political implications of our personal, sexual relations is precisely to emphasize the political. The point is that there is no “private,” noncoerced sphere of choice for women (p. 100). It is easiest to respond to MacKinnon's characterization of male-female relationships by trying to work out the best one possible in your own life. That is no small achievement. But to read MacKinnon that way is to trivialize her message. She does not mean to offer a blueprint for individual relations. She is talking about sex, but she is talking about it in order to bring about political change. That is why pornography comes so high on her agenda. She sees making pornographers pay their victims as a way to redistribute wealth and political power, as well as a way to change the language which legitimizes power relations. The point is to see how power and politics structure what seems to be only personal, and how political and legal action may be a path to change. MacKinnon does have a personal message for women, but it is not about better sex. It is a demand upon women with power in our society, a claim that they see what they have in common with less powerful women.

We are in a time in which it is hard to see the common interest of women. Some women have been able to move into positions of prestige, influence, and wealth. They have the education, the money, the intellectual skills, the confidence, and the opportunities that used to be reserved for men. Other women are, if anything, worse off than they ever were. They are thrown by economic circumstance into prostitution and pornography, or confined by economic and other fears to marriages with abusive husbands. Or they are poor and isolated in households and communities of unskilled and uneducated women and children. MacKinnon belongs to the empowered group. She is a woman who has power and opportunity, but her political mission is to articulate what it feels like for women who are less privileged. Her message is hard to hear, because it claims that what women have in common is that they are all victims. MacKinnon looks straight at what happens to the least powerful women in our society, and then appeals to those moments in which powerful women share their vulnerability. Although different women are affected in different ways, all women, MacKinnon argues, lose because sex means male dominance in our society.

Women have been uncertain whether legal tools can be devised that cannot be used against them. It has been hard to make specific suggestions for change precisely because the ways in which women are subordinated are so various and so pervasive. Can equal opportunity for women who can make it on male terms be preserved if other women, more economically vulnerable women, persuade the courts that their interests deserve special protection?25 Will laws banning pornography be turned against lesbians or heterosexual women who are trying to define a new, more empowering women's sexuality?26 Is there a way to protect a woman's reproductive freedom without denigrating those women who find their only source of self-respect in motherhood and pregnancy?27

MacKinnon might respond that these are false dilemmas, created by the effort to maintain credibility by sounding neutral (p. 165). The way to ensure that the tools of law are not used against you is to insist on being heard on your own terms.

Notes

  1. MacKinnon, “Feminism, Marxism, Method and the State: An Agenda for Theory,” 7 Signs: J. Women Culture & Socy. 515 (1982) [hereinafter “Feminism, Marxism, Part 1”]; MacKinnon, “Feminism, Marxism, Method and the State: Toward Feminist Jurisprudence,” 8 Signs: J. Women Culture & Socy. 635 (1983) [hereinafter “Feminism, Marxism, Part 2”].

  2. E.g., Rabidue v. Osceola Ref. Co., 805 F.2d 611 (6th Cir. 1986), cert. denied, 107 S.Ct. 1983 (1987).

  3. C. MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination (1979).

  4. See Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986).

  5. See, e.g., Brown v. Board of Educ., 347 U.S. 483 (1954); Strauder v. West Virginia, 100 U.S. (10 Otto) 303 (1880).

  6. P. 42. MacKinnon cites Loving v. Virginia, 388 U.S. 1 (1967).

  7. MacKinnon rejects those theories that “appl[y] the objectivist strain in Marxism to women and call[ ] that marxist feminism.” P. 60. But she draws upon another strain in Marxism, one which “is more critical of the necessary situatedness of its own standpoint.” P. 59. She describes her approach as “methodologically postmarxist” in that it “treats women as a social group.” P. 60. MacKinnon's argument that “the molding, direction, and expression of sexuality organize society into two sexes” is explicitly parallel to the Marxist analysis of society as fundamentally constructed of the relations of people through work. Pp. 48-49.

  8. MacKinnon criticizes theorists such as Carol Gilligan and Susan Griffin, who build upon psychological analyses of women's situation in order to identify some “real” woman's perspective or sexuality that exists outside of and is distorted by male culture. Pp. 38-39, 148-49.

  9. “Feminism, Marxism,” Part 2, supra note 1, at 646-55.

  10. 410 U.S. 113 (1973).

  11. The Court's rationale, unlike MacKinnon's, would find no inconsistency between the result in Roe and a government refusal to fund abortions, for the latter involves no government coercion of choice. The Court so held in Harris v. McRae, 448 U.S. 297 (1980).

  12. Pp. 129-31. Dworkin's basic work on the subject is Pornography: Men Possessing Women (1981).

  13. Under her definition, pornography is “the graphic sexually explicit subordination of women through pictures or words that also includes women dehumanized as sexual objects, things, or commodities; enjoying pain or humiliation or rape; being tied up, cut up, mutilated, bruised, or physically hurt; in postures of sexual submission or servility or display; reduced to body parts, penetrated by objects or animals, or presented in scenarios of degradation, injury, torture; shown as filthy or inferior; bleeding, bruised, or hurt in a context that makes these conditions sexual.” P. 176.

  14. The version of the ordinance adopted by the city of Indianapolis also permitted suits by men, children, or transsexuals who could “prove injury in the same way that a woman is injured.” Indianapolis, Ind., City-County General Ordinance No. 35 16-17(b) (1984), quoted at p. 294.

  15. American Booksellers Assn. v. Hudnut, 598 F. Supp. 1316 (S.D. Ind. 1984), affd., 771 F.2d 323 (7th Cir. 1985), affd., 475 U.S. 1001 (1986).

  16. Censoring pornography has not delegitimized it; I want to delegitimize it. What would do that is unclear to me at this time. Maybe there is a way. There needs to be. It is not that I think the state can't do anything for women in this area. I think making sexual harassment sex discrimination has helped delegitimize sexual harassment. That is as far as I have gotten with the problem at this time.

    P. 140

  17. “My best guess is that [the MacKinnon-Dworkin pornography] law takes the point of view that women do not enjoy and deserve rape, and [Judge Easterbrook] law that as just one point of view among many.” P. 211.

  18. For example, she describes an Equal Employment Opportunity Commission ruling that a sexual harassment complainant had not met the burden of proof without a corroborating witness as saying “a woman's word is worthless. Usually all the man has is his denial.” P. 113.

  19. For example, she asks why she is not believed when she says that “only 7.8 percent of women have never been sexually assaulted.” P. 171. Her figure “includes all the forms of rape or other sexual abuse or harassment … noncontact as well as contact, from gang rape by strangers to obscene phone calls, unwanted sexual advances on the street, unwelcome requests to pose for pornography, and subjection to peeping Toms and sexual exhibitionists (flashers).” P. 233. Under this definition it is amazing that any woman has escaped from sexual assault. But MacKinnon's point is made: Women feel that they have not been victims of sexual assault only because they accept so much of it as “normal”, as something that must simply be tolerated to get along in the world.

  20. See, e.g., pp. 141-42, p. 260 nn. 13-14 (Professor Charles Nesson); p. 220 (Judge Ellen Bree Burns).

  21. See, e.g., pp. 132-33 (from 1982); p. 209 (from 1986).

  22. The Supreme Court agrees with MacKinnon. See California Fed. Sav. & Loan Assn. v. Guerra, 107 S. Ct. 683, 693-94 (1987).

  23. E.g., pp. 201, 202, 205.

    What law school does for you is this: it tells you that to become a lawyer means to forget your feelings, forget your community, most of all, if you are a woman, forget your experience. Become a maze-bright rat. Women lawyers as a group have not been much of an exception to this, except that they go dead in the eyes like ghetto children, unlike the men, who come out of law school glowing in the dark. Women who defend the pornographers are defending a source of their relatively high position among women under male supremacy, keeping all women, including them, an inferior class on the basis of sex, enforced by sexual force.

    … I … really want you on our side. But, failing that, I want you to stop claiming that your liberalism, with its elitism, and your Freudianism, with its sexualized misogyny, has anything in common with feminism.

    P. 205

  24. The opening essay, appropriately enough, represents MacKinnon's side of a debate with Phyllis Schlafly and raises immediately the question of which of them speaks on behalf of women. MacKinnon handles this gracefully and powerfully, by making the case that Schlafly has been underappreciated by her own political colleagues, that Schlafly has herself been a victim of discrimination. Pp. 29-30.

  25. Thus feminists disagreed over the appropriate resolution in a case challenging a state statue that required employers to provide women with an unpaid maternity leave. California Fed. Sav. & Loan Assn. v. Guerra, 107 S. Ct. at 693-94. Some saw the statute as the beginning of a new wave of protectionist legislation based on stereotypical, or overgeneralized views of women. Others thought it a necessary protection if women, like men, were to combine the exercise of their reproductive rights with work.

  26. This fear was expressed in an amicus brief opposing the MacKinnon-Dworkin ordinance. Brief Amici Curiae of the Feminist Anti-Censorship Taskforce at 29-32, American Booksellers, Inc. v. Hudnut, 771 F.2d 323 (7th Cir. 1985) (No. 84-3147), affd. 475 U.S. 1001 (1986). See also Ellis, I'm Black and Blue from the Rolling Stones and I'm Not Sure How I Feel about It: Pornography and the Feminist Imagination, Socialist Rev., May-Aug. 1984, at 103.

  27. See K. Luker, Abortion and the Politics of Motherhood (1984).

Katharine T. Bartlett (review date summer 1988)

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Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 2665

SOURCE: Bartlett, Katharine T. Review of Feminism Unmodified, by Catharine A. MacKinnon. Signs 13, no. 4 (summer 1988): 879-85.

[In the following review, Bartlett investigates the relationship between MacKinnon's themes in Feminism Unmodified and Susan Estrich's Real Rape.]

Catharine MacKinnon's Feminism Unmodified: Discourses on Life and Law and Susan Estrich's Real Rape are two of the best recent examples of feminist legal writing.1 The authors are prominent feminist lawyers and legal theorists. They both write about the powerlessness of women and the role of the legal system in enforcing this powerlessness.

MacKinnon's Feminism Unmodified, which is a collection of speeches delivered from 1981 to 1986, serves as a comprehensive and readable summary of the critique of American society and its legal system that has established MacKinnon's reputation as one of the most original and uncompromising of contemporary feminist thinkers. MacKinnon's central theme is that the whole of society is organized hierarchically, by sex. She presents a theory of power that, like Marxism, is a “total” theory—a description of the social arrangement between men and women that is “internally coherent and internally rational and pervasive yet unjust” (49). MacKinnon takes on many topics—women's inferior status in the workplace, sexual harassment, pornography, rape, family violence, the small number of women athletes—using each one as an opportunity to demonstrate this arrangement.

Under MacKinnon's analysis, much of the success of men in dominating women can be attributed to the insidious use of abstract standards and principles, which appear to be gender-neutral but, in fact, are designed to create and maintain male advantage. Thus, “men's physiology defines most sports, their needs define auto and health insurance coverage, their socially designed biographies define workplace expectations and successful career patterns, their perspectives and concerns define quality in scholarship, their experiences and obsessions define merit, their objectification of life defines art, their military service defines citizenship, their presence defines family, their inability to get along with each other—their wars and rulerships—defines history, their image defines god, and their genitals define sex” (36; see also 71-72).

MacKinnon draws heavily on the theme of pornography to demonstrate her thesis that the whole of society is structured as male hierarchy. Pornography creates sexual reality for both men and women, setting the terms upon which men relate to women as subject to object. Pornography silences women, defining them as acquiescent in, indeed desirous of, violation and possession by men. At the same time it eroticizes male violence against women and “institutionalizes the sexuality of male supremacy” (172). Like abstract (male) principles of neutrality, equality, and justice, pornography hides what it is by calling itself something else. “Pornography turns sex inequality into sexuality and turns male dominance into the sex difference” (3). Because pornography so successfully constructs social reality, it makes the harm of dominance and violence by men against women commonplace, assuring its invisibility.

MacKinnon rejects both the “equal treatment” approach of liberal feminists and the “special treatment” approach of more radical feminists as fatally committed to the principle of difference. Such a commitment, she claims, merely perpetuates the male standards and values from which difference is measured. MacKinnon urges as an alternative what she calls the “dominance” approach, which calls not only for an elimination of those impediments to women's success in the world on male terms but also for the transformation of those terms and the right of women to be judged by their own standards.

MacKinnon is at her best in exposing the irony of the terms of women's oppression. In describing the survival of women who reject and rise above male authority, for example, she explains how “the success of our survival is used to delegitimize what we have survived to say” (131); it can't be that bad if some women have risen above it. She explains how the degradation of women stigmatizes women to the point where that degradation is taken as evidence that there was nothing of value to which harm could be done; a raped woman or a woman who is the victim of pornographers is damaged goods hardly worth the respect a recognition of her harm would bring.

MacKinnon's insights are devastating. The force of her thesis, however, is sometimes weakened by internal contradictions and by the totality of her claims. For example, she categorically asserts in one place for one purpose that women have an unshakeable knowledge of reality (57-58) while asserting with equal vehemence elsewhere for another purpose that women have an infinite capacity to be duped (138). She claims to speak for all women, yet dismisses in disgust as “collaborators” those who don't think and act in accordance with her own views (198-205, 216-28). Moreover, facts and law are loosely reported in support of her theory.2 These characteristics are particularly frustrating to the friendly reader who wants to assume that she is credible.

Estrich's subject is more limited and her treatment more restrained than MacKinnon's, but in its specificity Real Rape provides considerable evidence for MacKinnon's analysis. Estrich explains how the crime of rape has been defined by courts and legislatures to cover only circumstances involving strangers, physical force, vigorous physical resistance by the woman, and immediate reporting by the woman. Where the rape meets these criteria, as did her own rape that she describes in the opening chapter of the book, the woman is believed and protected (sort of), the rape prosecuted (more or less), the defendant (sometimes) convicted. Estrich contrasts the law's treatment of stranger rape with its treatment of “simple rape”: rape cases in which the woman knew her “rapist,” cases in which force is implied (from previous relations between the parties or other threatening circumstances), cases in which the woman chose not to exercise physical force in response to her assailant, or cases in which the woman delayed in reporting the event. These cases, Estrich shows, are not taken at all seriously by the legal system, even though if money had been taken under similar circumstances rather than sex, the law would treat the case as one of robbery. Estrich makes the case that simple rape is real rape. Her point is a simple but powerful one: women ought to be able to say “no” to someone they have met (or to whom they are married) as well as to someone who jumps out at them from behind a bush. They ought to be able to say “no” without risking further force by their own physical resistance. This “no” ought to be respected by men who want to have sexual intercourse with them and, if not by men, by the criminal justice system.

Estrich's analysis supports MacKinnon's in that it establishes how deeply engrained in the law is a distrust of women who claim violation by men, assuming that women mean “yes” when they say “no,” that they will falsely and vindictively accuse an innocent man of rape, and that they are easily confused, often irrationally feeling they are threatened by men when they are not. Rape law assumes that husbands should have ready sexual access to their wives and that at least some coercion is a “natural part” of the sexual act. Yet at the same time the law also assumes that a woman is to be judged as a free and autonomous being, capable of resisting force with force, of evaluating circumstances rationally, of seeing through a man's seduction if she chooses to do so. The law thereby puts women in a double bind: they are unreliable, ambivalent, and impossible to read, necessitating that victims of rape (unlike other crimes) prove lack of consent; yet the same qualities are totally ignored in evaluating how much resistance, consent, and rationality women are expected to bring to bear on an unwanted sexual advance. This is the kind of contradiction women confront over and over again in the broader social arena described by MacKinnon.

Both of these books are, in their own way, brilliant. They share, however, a common failing. Neither develops a countervision to the male world that is adequate to the transformation they advocate. MacKinnon explicitly eschews discussion of what a world in which women were not dominated by men would look like, dismissing any such vision as “fantasy” (221) and those who would have one as idealist and elitist. Her position is that instead of developing any prescriptions now for what women want (besides, simply, more power), we must wait and see who women are after they are no longer oppressed. Over and over, she assumes that underneath their oppression, women have some true essence, or essences, which only need to be discovered.

MacKinnon's faith in some authentic reality of womanhood that will emerge once women have thrown off the yoke of male domination contradicts her reliance on the importance of social construction in explaining male hegemony. MacKinnon understands that by controlling the definition of what women want, men have been able to dominate women for so long. By ignoring the importance of what will replace male hegemony, that is, what women want to replace it, however, she fails to carry forward that understanding. Freedom from a socially constructed perspective, as MacKinnon should realize, is impossible. Although our perspectives may shift (and the insights MacKinnon provides may influence us to shift them) we cannot transcend perspective; for that matter, neither can the men who now dominate us. The individual woman or man who freely chooses her or his destiny from some Archimedean vantage point is an invention of liberal ideology. MacKinnon rejects liberal ideology because its assumptions do not apply to women in our society; yet her assumption that achieving parity of power with men will enable women to freely determine and choose what they want suggests that at some deeper level she retains allegiance to this ideology.

Although we cannot transcend perspective, we must nevertheless join in the process of social construction, attempting to define now what kind of world we want to construct. Our ability to change the way things are is limited by the absence of a vision of where we are going; transformation of our values must coincide with and stimulate the undoing of our system of gender-based oppression.

Estrich works more deliberately toward a reconstruction of rape law. She deemphasizes altering the legal definition of force as a way of broadening the definition of rape—the approach used by many reformists—preferring instead to focus on the issues of the man's intent and the woman's consent. She urges both that a man must be required to act “reasonably” and that, in determining whether he has done so, a woman must be taken at her word. “Reasonable men should be held to know that no means no; and unreasonable mistakes, no matter how honestly claimed, should not exculpate” (103).

Estrich's redefinition of the crime of rape is a reasonable one. Simple rape is real rape, and the injury it causes to women should be accounted for in criminal law. Moreover, acknowledging this injury would weaken the notion that women's role is to be the submissive sexual servants of men and, thus, the gender-based hierarchy that MacKinnon describes.

Though Estrich understands the radicalism of her proposal, she does not fully acknowledge the genuine difficulties with its implementation. The legal rules that Estrich wants to eradicate—rules that require some objective manifestation of lack of consent by the woman, such as physical resistance or force by the man—exist, as Estrich points out, because of concern that some women are sometimes ambivalent about having sexual intercourse with men; that some women are sometimes turned on by and, at some level, seek to be dominated or overcome by men; that some women will seek to get back at men who have dumped them or made promises to them they did not keep, perhaps by claiming that a sexual encounter was actually rape. Laws that ignore simple rape undoubtedly help to perpetuate these patterns. But can we totally ignore these circumstances or pretend they do not exist? Indeed, an important step toward ending a gender-based hierarchy is acknowledging that women, as well as men, have been socialized to think of themselves, men, and sex in these ways.

Estrich predicts that new rules criminalizing simple rape will have a transformative effect on the social expectations of both women and men. That transformation will not be an easy one; the new rules will catch not only the man who brings a woman to his apartment and threatens her with or without physical force to have sexual intercourse with him but also the man who honestly feels that a woman has led him on, the man who is duped by a woman playing by the old rules—a woman who is ambivalent about having sex, who says “no” but gets a thrill from the seduction that she in some ways encourages but later regrets.

Does Estrich think that no such woman exists? Or that even if she does exist, the man nevertheless should be liable for action taken after the woman, however coyly, has said “no”? MacKinnon's view is that it is virtually impossible to think of any sexual encounter in our society as noncoerced, that even women who think they consent to sex have been so pressured by the terms and conditions of male hierarchy that true consent is impossible. Would MacKinnon then, have men punished for every sexual act? Estrich clearly would not, but it is not entirely clear where she would draw the line, or whether she is concerned in any way about ambivalence, manipulation, and deceit by women, or about “good faith” by men. It is not enough to answer that real injury to women has been ignored for centuries and that the advantage men have historically enjoyed over women justifies new rules that favor women over men. It seems inappropriate to use the criminal law system to punish the members of one sex for the sins of their predecessors.

Estrich and MacKinnon have each taken us far in our understanding of how the American legal structure contributes to the oppression of women. But our understanding of this oppression must always be accompanied by a continuing struggle to find a plausible and defensible alternative to this oppression. We are both on to our oppression and tricked by it. We both need men and are oppressed by them. We want intercourse and yet do not. In demanding that the world begin to shape itself to us instead of shape us, we must decide just who we are, and we must be aware of our own contradictions. MacKinnon and Estrich have told us much about how we have been “had,” but there is much still to discover about who we will be.

Notes

  1. For an extended analysis of MacKinnon's book, see Katharine Bartlett, “MacKinnon's Feminism: Power on Whose Terms?” California Law Review 75 (1987): 1559.

  2. Perhaps the best example is MacKinnon's insistence that “virtually every ounce of control that women won out of [the legalization of abortion] has gone directly into the hands of men—husbands, doctors, or fathers” (101). It is true that Roe v. Wade, 410 U.S. 113 (1973), and much of the case law that has followed, has defined the abortion right in terms of the decision of the woman and her physician. It is also true that access by poor women to abortions has not been secured as a matter of constitutional right (Harris v. McRae, 448 U.S. 297 [1980]). However, in an age in which doctors are, by and large, willing to perform abortions and in which funding for abortions is provided to poor women in fourteen states and in another thirty-two under some circumstances (Ellen Relkin and Sudi Solomon, “Using State Constitutions to Expand Public Funding for Abortions: Throwing Away the Carrot with the Stick,” Women's Rights Law Reporter 9, no. 1 [1986]: 27-88, esp. 27, 32, n. 11), MacKinnon's conclusion is surely overstated. With respect to the power of husbands, in particular, the Supreme Court has flatly held that states may not condition the right of a woman to an abortion on the consent of her husband (Planned Parenthood v. Central Missouri v. Danforth, 428 U.S. 52 [1976]).

Vivien Hart (review date April 1989)

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SOURCE: Hart, Vivien. Review of Feminism Unmodified, by Catharine A. MacKinnon. Journal of American Studies 23, no. 1 (April 1989): 147-48.

[In the following review, Hart compliments Feminism Unmodified as a “tightly-argued, consistent and provoking work of social theory.”]

MacKinnon is a feminist lawyer, first known (and widely applauded) for her role in winning recognition by American courts of sexual harassment as a legal claim. That principle was detailed and derived from her version of feminism in her first book, Sexual Harassment of Working Women, published by Yale in 1979. Since then she has been known, or perhaps notorious, above all for her collaboration with Andrea Dworkin to find a new legal route to the banning of pornography.

The present volume [Feminism Unmodified] is a collection of academic lectures and public speeches in which MacKinnon updates earlier causes, reports upon and justifies her recent activities and spells out the philosophy which inspires her. Topics include the Equal Rights Amendments, the law on rape and abortion and the rights of Native American women, as well as an analysis of judgements on sexual harassment and a separate section of six speeches on pornography. In that section, MacKinnon makes her case that pornography is a form of action against women and hence a violation of their civil rights, not a form of speech protected under the First Amendment as the currently dominant “obscenity approach” has it. To date, however, her argument has failed to convince a great many liberals, who find reasons for tolerating pornography—or fear censorship as a greater evil—and the Supreme Court, which summarily struck down the Indianapolis ordinance embodying the MacKinnon principle. This book demonstrates why this is such a fraught debate for feminists and civil libertarians. It is easy to see how MacKinnon herself has attracted much personal hostility: her denunciation of liberal feminists, whose opposition she believes betrays the interests of women, is angry and uninhibited. But it is not easy, whatever, one's persuasion, lightly to reject her positions on pornography and other issues of sexual politics discussed in this book. Her legal and legislative strategies are deduced from a complex, important analysis of gender as a political, rather than social or biological, status (set out most clearly in the essay on “Difference and Dominance”). These collected speeches add up to more than an insulated feminist dialogue. Despite the variety of topics and of styles from the popular to the expert, MacKinnon gives us a tightly-argued, consistent and provoking work of social theory and of analysis of the role of law in American society.

Linda Nicholson (review date December 1989)

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SOURCE: Nicholson, Linda. “A Radical's Odyssey.” Women's Review of Books 7, no. 3 (December 1989): 11-12.

[In the following review, Nicholson contends that Toward a Feminist Theory of the State exposes the strengths and weaknesses of radical feminism.]

Toward a Feminist Theory of the State was written over an eighteen-year period (parts of it have already been published), but its unity as a theoretical expression of one individual's vision is obvious. Since the chapters were written relatively independently of each other, the reader has to do a bit more work than usual to bring them together. But that they fit together as smoothly as they do must attest to something strong and consistent in Catharine MacKinnon's own intellectual odyssey.

How useful is that unity for other feminists engaged with MacKinnon in the collective project of feminism as political movement? My response to this question is mixed. This book confirms my previous impression of MacKinnon's work as an eloquent expression of a radical feminist stance, and I see many of its strengths as related to that which is most creative and insightful in radical feminism. But it also reveals for me radical feminism's limits and problems.

The first section of the book focuses on the relation of feminism and Marxism. Three of its four chapters were written in the mid 1970s, and their lack of timeliness is irritating, since the arguments and positions MacKinnon grapples with here strike me as having been superseded by later debates. All the same, they made me appreciate the power of MacKinnon's vision and her eloquence in articulating it. She makes a very persuasive case for the view that something fundamental has divided Marxism and feminism, and that attempts to merge the two must prove futile. Because the central organizing categories of Marxism and feminism—production and sexuality—are crucially distinct, any notion of a Marxist feminism must involve some undercutting of that which, for MacKinnon, is basic to feminism.

MacKinnon is certainly correct in stressing the centrality of production for Marxism. I would agree that the limits of that category are the limits of Marxism, leading to weaknesses in its ability to analyze gender as well as to a host of other deficiencies. One problem, however, with her analysis is that it equates Marxism with socialism, and so has little to say about the relation of feminism to socialism, other than the obvious point that socialist men have not always been supportive of feminism.

But what I see as a not trivial feature of the last decade of feminism is that many Marxist women, in coming to see the limitations of Marxism for feminism, increasingly came to describe themselves as socialist feminists instead. That way, they could retain a historical awareness and a commitment to overcoming economic inequality while abandoning the Marxist insistence on the primacy of production. The feminist philosopher Nancy Fraser has confirmed my own observations that this change in the vision of many Marxist women has meshed with the increasing tendency of many radical feminists to include socialist concerns, such as attention to the issue of class, in their political perspective and organizing. In the eighties, the divisions between radical feminists and those who once called themselves Marxist feminists have come to seem less important than they were during the seventies.

But this is not how MacKinnon views feminism either in these early chapters or throughout the book. Socialist feminism is either ignored altogether or dismissed as often amounting to Marxism applied to women. Instead, she explicitly states that “Radical feminism is feminism.” But this appears to endorse implicitly that kind of radical feminism most widespread during the seventies: a feminism creative in its focus on the family and personal life, but weak in its attention to history and diversity.

In the middle section of the book, the focus turns away from Marxism to what MacKinnon feels is distinctive about feminism. Her claim, in brief, is that feminism possesses its own method, consciousness raising. Unlike objectivist modes of knowing, consciousness raising recognizes its own involvement in the knowing process, takes as its object that which is intrinsically social, and is directly related to political practice; indeed, in consciousness raising, awareness becomes political practice. But, asks MacKinnon, what is it about women's experience which leads to such a distinctive mode of awareness? Her response is that “Sexual objectification of women—first in the world, then in the head, first in visual appropriation, then in forced sex, finally in sexual murder—provides answers.”

If there is one idea that forms the true core of this book, it is MacKinnon's identification of sexuality with women's oppression. This provocative claim gives the book much of its unity and much of its strength. As MacKinnon notes, there must be something beyond coincidence to explain the fact that the word “sex” refers both to gender and sexuality. (Even if one adds “at least within the English language,” something significant is still being said about speakers of this language.) If one combines this linguistic clue with the observation that a more than superficial connection exists between the sexuality we know and issues of dominance and subordination, one has to acknowledge that MacKinnon is on to something major.

The crucial question for me, though, is how do we interpret such insights? In what kind of framework are they situated? My major disagreements with this book follow from my perception that MacKinnon does not take these strokes of awareness as starting points for a self-critical investigation—a search for the places her insights meet negations, counter-examples and differences. Rather, she uses them as means in the creation of a theory which is ultimately totalizing.

I do not mean that MacKinnon's writings reveal any obviously simplistic methodology. The power of her thought stems from something more than a handful of insights; she is a highly sophisticated theorist who has clearly devoted a lot of time and thought to issues of method. She is careful to claim that feminist theory as she describes it does not aspire to the kind of universal, “objective” status that she correctly imputes to certain readings of Marx. Nor does she believe that any of the claims she makes follows from anything “natural” to human beings, and she carefully reminds us that sexuality is a social construction. The problem, however, is that she is a social constructionist with little concern for history.

For example, she makes a connection between feminists' turn to consciousness raising in the 1970s and women's relegation to the social sphere of private and domestic life. However, she does not analyze this connection historically. If she had, she might have been more wary about converting the feminist claim which was made necessary by women's relegation—that “the personal is political”—into an apparently ahistorical claim about women's lives. She says that “the personal is political” means “that women's distinctive experience as women occurs within that sphere that has been socially lived as the personal—private, emotional, interiorized, particular, individuated, intimate—so that what it is to know the politics of women's situation is to know women's personal lives, particularly women's sexual lives.” This statement amalgamates the experiences of all women to those for whom the relegation to home and domesticity did, at a certain point in Western history, come to mean an experience of life as “private, emotional, interiorized, particular, individuated, intimate.”

A similar retreat from history is illustrated in her claim that “The male epistemological stance, which corresponds to the world it creates, is objectivity …” To say this is to lose sight of the historical emergence of the norm of objectivity, its connection with the rise of science and the increasing cultural authority of particular groups of men. This in turn obstructs the possibility of a feminist understanding of other, non-objectivist, theories and ways of knowing, and the specific forms of power that go with them—exemplified by patriarchal heads of medieval manors, men who were influential in such intellectual currents as romanticism, historicism and hermeneutics, and even many men who now derive some of their power over women from knowledge claims unrelated to objectivity (for example, that “the Bible says so”).

As these examples illustrate, the problem of ahistoricity from a feminist point of view is the problem of erasure: erasure of modes by which some dominate as well as modes by which many experience oppression. As a consequence, the forms of experience which are depicted become narrow and fundamentally ethnocentric. Because for MacKinnon sexism means the sexualization of women, forms of oppression which are only indirectly related to sexuality are ignored in this book—the forms of oppression poor women experience in dealing with the welfare system, poor and older women experience with the health care system, or many women experience in obtaining adequate day care, for instance. As I read I kept thinking about all those women whose daily frustrations with life and men would probably not be described by them in terms of sexual objectification.

It is not just that the forms in which women suffer are narrowed to exclude the experiences of many; the very characterization of what it is to be a woman is slim. MacKinnon most typically characterizes women as a singular entity. At one point, she invokes black and working-class women as women who have not fit standardized constructions of femininity. This invocation, which feels so exceptional in the context of her analysis, immediately brought to my mind Elizabeth Spelman's recent argument in Inessential Woman (Beacon Press, 1989) that feminist theory becomes racist not only by excluding mention of black women but by bringing them in only as exceptions or failures to the models being described. In other words, what I missed throughout the book was attention to the diverse meanings of being a woman—the positive and negative meanings of womanhood associated with those who are not only white, Western and middle-class.

The issue of exclusion is also central in MacKinnon's treatment of sexuality. In her eyes sex and oppression are synonymous: “what is called sexuality is the dynamic of control by which male dominance—in forms that range from intimate to institutional, from a look to a rape—eroticizes and thus defines man and woman, gender identity and sexual pleasure. It is also that which maintains and defines male supremacy as a political system.” She has no patience with analyses of female sexuality which affirm that women, in either heterosexual sex or in homosexual sex where there exists any trace of gender roles, can experience agency: “interpreting female sexuality as an expression of women's agency and autonomy, as if sexism did not exist, is always denigrating and bizarre and reductive, as it would be to interpret Black culture as if racism did not exist.” But the existence of sexism is not incompatible with the presence of women's power, of women's resistance, of women's agency. As Ann Ferguson points out in Blood at the Root (Pandora, 1989), changes in twentieth-century attitudes towards sexuality have given many women more agency in sexuality, in spite of the continued exploitation of women's sexuality in general.

In the last section of the book, the explicit focus is on the state. MacKinnon's analysis here is in some respects very interesting, though, ironically, a good part of the analysis replicates criticisms Marxists have often made of liberal state forms. For example, she notes that the freedoms the liberal state protects are primarily negative: freedoms against interference from itself. The liberal state allots few powers to the individual that she or he does not already possess, and provides only limited protection to the individual against the strengths and powers others already possess.

This is a point which many Marxists' critiques of liberalism have made. What struck me as most original and illuminating in these chapters stemmed in part from MacKinnon's application of such standard Marxist charges to issues Marxists have rarely thought about, specifically to rape, pornography and abortion. The corollary weakness, however, lies again in the implicit claim that such issues—that is, those which have to do with women's sexuality—are the only “women's” issues there are.

Again my central concern focuses on exclusivity. Certainly there is nothing problematic in identifying pornography, abortion, or rape as feminist issues. The problem is an analysis which takes these as central and marginalizes issues such as poverty or homelessness. My guess is that MacKinnon would counter my charges with an argument relating these two issues to male control of women's sexuality. But this type of response reminds me of the intellectual maneuvers Marxists have frequently made when confronted with feminist arguments. As MacKinnon would herself agree, the elevation of production within Marxist theory meant that modes of oppression not immediately illuminated by work relations—such as racism or sexism—became marginalized within the theory and ultimately within the practice of Marxists. Confronted by feminists who pointed out the limits of the category of production for illuminating women's lives, Marxists frequently either tried to stretch the category so that it lost all meaning, or attempted to explain sexual oppression as a function of class oppression. But MacKinnon's analysis leads in a similar direction: sexuality is to MacKinnon what work is to Marx. The consequence, in spite of her protestations to the contrary, is another totalizing theory.

Ultimately my critique of totalizing theories is their tendency to turn into political obstacles. Marxism mobilized many to see the inequalities, the injustices wrought by capitalism. But by constituting its own insights as the key to social domination, it became an obstacle to struggles against sexism, racism and homophobia. In the same way, I see a theory such as MacKinnon's mobilizing many women to see the horrors of sexism and the extent to which women's oppression is uniform. But by turning its insights into an encompassing theory of sexism, it also becomes an obstacle to the kind of politics where women struggling against rape can ally with women and men struggling against poverty. And that is the kind of politics I see us most needing today.

Elizabeth Kristol (review date April 1990)

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SOURCE: Kristol, Elizabeth. “Prisoners of Gender.” Commentary 89, no. 4 (April 1990): 65-8.

[In the following review, Kristol contrasts the feminist theory found in Susan Moller Okin's Justice, Gender, and the Family with MacKinnon's Toward a Feminist Theory of the State.]

For career military, civilian life can sometimes appear aimless and drab. For career feminists, life outside the academy can appear similarly bleak, offering little in the way of glamor, reputation, or moral satisfaction.

“Career feminism” is a relatively recent phenomenon. Women used to become feminists because they hoped that it would open doors to things they wanted to do—like becoming brain surgeons or lawyers or fire jumpers. They looked forward to participating fully in civilian life, and could not wait until the war was over so they could get down to serious business. But other feminists turned out to have a taste and a talent for the battle; they liked the camaraderie, the rhetoric, and the pleasure of championing a cause. When they took shelter in the universities, their transformation into career feminists was complete. The universities today are filled with such professional feminists, women whose research, writing, and scholarship revolve around the nuances of feminist theory. Until recently all they had lacked was a unifying goal, preferably one sufficiently remote as to engage them for a very long time.

They now have such a goal and it is nothing less than the understanding and eventual abolition of gender, “gender” defined as the thoroughgoing social and political implications of being biologically male or female. It seems there is still a problem of there being two sexes in the world, a fact which, if we are not extremely careful, could have consequences. Fortunately, trained experts in the academy can alert us to all the ways in which the consequences of gender can be avoided. In this spirit, two new books by established feminist scholars take conventional political theory to task for overlooking the role of gender and thus developing inadequate notions of justice and the state.

Susan Moller Okin is a professor of politics at Brandeis and the author of Women in Western Political Thought, which has become a standard text in feminist political theory since its publication ten years ago. Her latest work, Justice, Gender, and the Family, is designed to reach beyond her usual academic audience to address the concerns of all women who are struggling to combine a career and family.

More precisely, Justice, Gender, and the Family is a 16-page polemical essay prefaced by 169 pages of analysis, quotation, and footnotes. Okin takes the reader on a laborious tour of the views of the reigning philosophers of justice—John Rawls, Alasdair MacIntyre, Robert Nozick, Michael Walzer—and accuses them of having paid insufficient attention to the family. The family, Okin wishes to show, has been the primary breeding ground for injustice—just as it might one day, in a transformed state, become a breeding ground for equity. “Until there is justice within the family,” writes Okin, “women will not be able to gain equality in politics, at work, or in any other sphere.” Political theory has erred in focusing its attention on the political realm, assuming the private realm of the family to be immune from oppression, competition, and power struggle. The public/private distinction—long the bane of feminist theorists—is once again revealed to be false: gender dynamics ensure the same dismal picture at home as in the market or workplace.

It is in a lone footnote, and in her concluding chapter on “Toward a Humanistic Justice,” that Okin sets forth her own analysis and policy recommendations. Since gender is the primary source of inequality, “the disappearance of gender is a prerequisite for the complete development of a non-sexist, fully human theory of justice.” In her view, any and all moves toward true justice must begin with the widespread availability of low-cost, high-quality day care. “Only children who are equally mothered and fathered can develop fully the psychological and moral capacities that currently seem to be unevenly distributed between sexes.” In a just world, men and women would participate “in more or less equal numbers in every sphere of life.” The plan is simple:

Parental leave during the post-birth months must be available to mothers and fathers on the same terms, to facilitate shared parenting. … All workers should have the right … to work less than full-time during the first year of a child's life, and to work flexible or somewhat reduced hours at least until the child reaches the age of seven. … Large-scale employers should also be required to provide high-quality on-site day care for children from infancy up to school age. … Schools should be required to provide high-quality after-school programs, where children can play safely, do their homework, or participate in creative activities.

Finally, since gender often creates an imbalance of power within the home, employers should “make out wage checks equally divided between the earner and the partner who provides all or most of his or her unpaid domestic services.”

Some quantitative types might be wondering what all these reforms might cost. Okin has anticipated their concern. First, she endorses redistributive taxes and massive defense cuts. Second, she closes her book by offering a series of questions designed to cast a shadow on the moral integrity of those who would raise the subject of money. This list opens with the moderately guilt-inducing “… even if my suggestions would cost, and cost a lot, we have to ask: How much do we care about the injustices of gender?” and builds to the no-holds-barred “How much do we want the just families that will produce the kind of citizens we need if we are ever to achieve a just society?” In its mode of thinking, Justice, Gender, and the Family bears a striking resemblance to the sign carried by advocates for the homeless, which reads: Housing Now! As a moral sentiment it is hard to quibble with, as a policy program a little thin.

It is something of a relief to turn to Catharine MacKinnon's Toward a Feminist Theory of the State and to find that there are feminists who recognize the shallowness of unfettered reformist zeal. A relief, that is, until one realizes that Okin's liberal optimism is replaced here by a world view so dark and cynical as to throw into question not only the possibility of reform, but the efficacy of basic speech and action as well. MacKinnon, the author of Feminism Unmodified and a professor of law at York University in Toronto, is a well-known feminist legal scholar who has become something of a staple on the lecture and conference circuit, shocking audiences with her scathing critiques of (in ascending order of outrage) the legal system, the pornography industry, and sexual intercourse.

As this latest volume of essays makes clear, MacKinnon's commitment to radicalism is as profound as her contempt for liberalism. In a liberal democracy, says MacKinnon, women are deceived into regarding the state as a “tool of women's betterment and status transformation”—which is a case of the fox guarding the hen-house, if ever there was one. Liberal feminists speak quaintly in terms of “gender inequalities,” thus creating the impression that equality once existed, and might possibly be resurrected. In truth, asserts MacKinnon, gender so permeates every aspect of our existence that it is naive to assume the possibility of reform.

In a classic example of the law that no good deed goes unpunished, MacKinnon goes on to denounce liberalism for granting women free will. Liberalism perpetuates the view that “social life is comprised of autonomous, intentional, and self-willed actions, with exceptional constraints or qualifications by the state.” The good news, according to MacKinnon, is that “this aggregation of freely-acting persons as the descriptive and prescriptive model of social action is replaced, in radical feminism, with a complex political determinism.”

Finally, liberalism is pernicious because it fosters the myth that people can be different but equal—as if difference could entail anything other than a hierarchy of power. In MacKinnon's poetic phrase, “difference is the velvet glove on the iron fist of domination.” Even Marxism, which MacKinnon considers superior to liberalism in its appreciation of hierarchy and dominance, fails to appreciate the degree to which women are profoundly unfree. While Marxists and liberals might have thought they were paying women a compliment by assuming they were made of noble enough matter to conduct their domestic lives unsupervised, MacKinnon resents women's exclusion from a male-constructed deterministic scheme: “When men work, they become workers, Marx's human beings. When women work, they remain wives and mothers, inadequate ones.” Marxism as good as slapped women in the face when it deprived them of the full benefits of dehumanization.

MacKinnon's world view is unremittingly bleak. Gender—and only gender—breathes life into women, but it soon saps that life away. Male dominance is the Adam's rib from which woman is created: it is “perhaps the most pervasive and tenacious system of power in history” and “is metaphysically nearly perfect.” The very foundations of human society—thought, language, sexuality, the family, the state—exist solely in reference to men: “There is no such thing as a woman as such.” With this utterance, MacKinnon manages to bring feminism full circle by adding a whole new ontological dimension to the pre-feminist lament, “I am nothing without a man.”

MacKinnon does not attempt to develop a political theory, at least not of the sort that we are used to seeing. She admits (or boasts) that feminism “has a theory of power but lacks a specific theory of its state form.” While Okin at least gives us a glimpse of what a gender-lite society might look like, it is not at all clear what MacKinnon's utopia would resemble, or whether she believes in even the philosophic possibility of a gender-free state. MacKinnon faces an especially difficult challenge, since she rejects what most theorists would regard as necessary building blocks of any political system—the individual, the family, the class. She has exposed the individual as a chimera; the family as institutionalized rape and incest; class as an inadequate description of power structures.

The pessimism of MacKinnon's world view is paralyzing but it is also convenient; those who share her view (and there are a considerable number) feel no need to tackle practical policy considerations or to venture outside the purview of feminist theory. More appealing still, they are guaranteed the moral righteousness that accompanies perpetual victim status; if there were ever to be a Wide World of Feminism, its motto might well be “The thrill of defeat, the agony of victory.”

Okin and MacKinnon define the liberal-radical spectrum of contemporary academic feminism, which in recent years has adopted a deterministic world view based on gender. The appeal of determinism is readily apparent; its ultimate futility less so. There is much cowardice underlying any deterministic outlook. Contemporary feminists, who in the past two decades have achieved numerous freedoms and rights, seem exceedingly reluctant to put those freedoms to the test. Rather, they spin out ever-growing reasons why those freedoms are not quite so perfectly realized as they might be, gender being as insidious as it is, and all.

To which it seems only fair to respond: if you place greater value on making use of freedom than on measuring it, you will find that it is far better to act as if you were free than to sit out the game until the whole determinism business can be resolved once and for all. Certainly, to take an example of far greater moment than the travails of upper-middle-class women, this is the lesson of recent political events: when Poles, East Germans, and Czechs acted as if they had greater rights and liberties than their regimes accorded them, they succeeded in enlarging their scope of freedom.

As for those feminists who prefer to cling to the belief that they are nonentities, incapacitated by gender from making a valid contribution to society, they will surely help cause that prophecy to come true.

Zillah Eisenstein (review date June 1990)

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SOURCE: Eisenstein, Zillah. Review of Toward a Feminist Theory of the State, by Catharine A. MacKinnon. American Political Science Review 84, no. 2 (June 1990): 635-37.

[In the following review, Eisenstein argues that the essays in Toward a Feminist Theory of the State are “theoretically significant and important contributions” to feminist theory but notes flaws in MacKinnon's “homogeneous” view of male power.]

MacKinnon's book [Toward a Feminist Theory of the State] grapples with the meaning of politics and how we think about what constitutes the political in terms of sexuality itself. The first section of the book, “Feminism and Marxism,” presents published materials from the mid-1970s, which she says may seem “groping and comparatively primitive” (p. x). Anyone who has not already read these articles (which are slightly revised) will find them theoretically significant and important contributions. For those familiar with the debates between Marxism and feminism this will be a review of familiar territory. Much has changed over the past decade in this debate due to developments within feminism itself. An accounting of these developments would begin to uncover some interesting transformations that have located many socialist feminists of this earlier period outside the debate today.

The second section of the book discusses the method and epistemological foundations of feminism and the politics of sexuality. MacKinnon, like many radical feminists, argues that the feminist method and politics of “consciousness raising” uncovers women's situation “as it is lived through,” as “lived knowing.” Through this process women come to know politics differently—in a different way—because the process of knowing uncovers its own politics. Coming to know the “personal as the political” reinvents the way we think of politics itself because “the personal is epistemologically the political, and its epistemology is its politics” (p. 120).

In the consciousness-raising process sex and gender become interchangeable for MacKinnon, but they do not remain equivalents. Instead, sexuality becomes the linchpin of gender inequality (p. 113). MacKinnon's feminism identifies sexuality as the primary social sphere of male power through rape, incest, battery, sexual harassment, prostitution, pornography, and abortion.

In the third section of the book MacKinnon constructs a vision of the state that theorizes sexuality at its base: state power emerges as male power: “The state is male in the feminist sense: the law sees and treats women the way men see and treat women” (p. 162). And the “male perspective is systemic and hegemonic” (p. 114). She asks what state power is for women, how women encounter the power of the state, and how law legitimates male power. She also begins to uncover how the state embodies and serves male interests. This final section of the book points in important directions as it demands a recognition that male privilege is systemic and is organized through the construction of the state.

The discussion put forth about feminist method and politics is crucial for any contemporary understanding of politics today. MacKinnon convincingly argues that gender is a system that divides power and constructs politics. But her analysis of male power and the state appears overly determined and homogeneous. The feminist notion of the “personal as the political” and the idea that there is a “politics to sex and gender” is the unique and valuable contribution of radical feminism to feminism (and to political theory).

But since the development of this notion in the 1970s, there have been crucially important feminist critiques (through the 1980s) of the limitations of this notion. The critiques have uncovered problems with equating (rather than relating) personal and political life and with treating sex and gender interchangeably. Although the realms are completely implicated with each other, they are not simply interchangeable realms. We further elucidate politics when we can explain how the two are similar and how they differ.

Although I would agree with MacKinnon that male power is systemic, I do not think it is internally homogeneous and undifferentiated, as she seems to. The state institutionalizes male privilege. But patriarchy as a system does not merely embody male privilege in terms of sexuality, as male bodies. Gender privilege has a complicated set of structures and institutions that cannot be reduced to maleness per se or sexuality.

The politics of the state expresses different factions with both similar and differing interpretations of male privilege. Clearly, this is evident in the abortion debate today with the varying reactions within state legislatures like Florida, Georgia, and Pennsylvania or in the presidential veto of the House and Senate proposal on broadening Medicaid funding.

MacKinnon does not direct her inquiry here because she rejects the theoretical premise that the state is simultaneously patriarchal and structured by liberal discourse and that these realms remain distinct. She equates liberal feminism with liberalism applied to women and socialist feminism with traditional Marxism. She equates the state with male power; hence, she posits the centrality and homogeneity of sexuality. In this scenario, the politics of abortion only reflects male power.

In the end, she argues that radical feminism (which she terms “unmodified” feminism) is feminism. But the richness of feminism today is that it has emerged out of a transformed Marxism, a revised radical feminism, and a liberal feminism that has uncovered its own limitations via the critiques of women of color, radical feminism, and so on. The source of feminism's radicalism today is that it has been (radically) modified through a dialogue between feminisms. The critiques of feminism by feminisms have refined our understanding of the relationship between the personal and the political. They cannot be equated or collapsed as one.

MacKinnon knows better than most that there are differences between the personal and the political. But her presentation of feminist epistemology and her theory of the state do not give us any room to construct what they are.

Carrie Menkel-Meadow (review date spring 1991)

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SOURCE: Menkel-Meadow, Carrie. Review of Toward a Feminist Theory of the State, by Catharine A. MacKinnon. Signs 16, no. 3 (spring 1991): 603-06.

[In the following review, Menkel-Meadow contrasts the feminist legal theory of Deborah L. Rhode's Justice and Gender with MacKinnon's Toward a Feminist Theory of the State.]

How has law constructed “woman”? How has feminism changed law? What contributions have legal feminism made to political feminism and to feminist theory? Is a feminist theory of the state or its rules of law possible? The authors of these books on legal feminism take on these important questions, if somewhat obliquely. MacKinnon's answers are crisp, radical, elegant, and eloquent, if also dated, essentialist, and somewhat unsatisfying. Rhode's answers are more textured, socially situated, contingent, measured, and also somewhat unsatisfying. Read as historical documents, these books capture both the exciting new theories (sexual harassment, civil rights approaches to pornography) and the old approaches (“formal” versus “special” equality, the Equal Rights Amendment) that have fueled the second wave of feminism in its legal forms. But read as efforts to provide an organizing theoretical structure for the role of law in modern feminism, both books fail to transcend the current impasses in feminist legal theory.

Perhaps, despite their very different tones, these books reflect the ambivalence that feminists must feel about law. In her recent book Feminism and the Power of Law, Carol Smart warns feminists not to make too much of law, not to infuse it with too much power, because it is a discourse that supplants the discourses of women and may be juridogenic (causing harm as it attempts to right wrongs).1 Law's categories have been created in service to the particular interests of men. In MacKinnon's words, “the law sees and treats women the way men see and treat women” (161-62); the question for feminist legal scholars has been how the law would look if it were made by and truly responsive to women.

MacKinnon has long maintained that we cannot know the answer to this question because women have been dominated by the power of men, who define women in terms of their sexuality. Again, in her own pithy and eloquent words, “sexuality is to feminism what work is to marxism” (3); sexuality is the fulcrum on which dominance and determinism turn. Until we have thrown off the chains of dominance, it is virtually impossible to know how we will reconstruct the state and its institutions, including law. MacKinnon's efforts to establish sexual domination as an explanatory linchpin for women's oppression are brilliant but partial. Her analysis in this book [Toward a Feminist Theory of the State] includes the essays originally published in Signs2 and the results of her pathbreaking work creating two legal causes of action on behalf of women, for sexual harassment and for the harms caused by pornography. By focusing primarily on the state's treatment of rape, abortion, and pornography, MacKinnon is able to keep the sexual domination theory in the foreground. Unfortunately, it will not hold as a linchpin for a broader analysis of women's oppression.

Rhode's more comprehensive treatment of the issues [in Justice and Gender] that implicate the state and law in women's lives—family, work, education, and association—exposes the failures of a totalistic theory such as sexual domination. Rhode's hope that a legal focus on “sex-based disadvantage” rather than “sex-based difference” (1) will solve the problems of this approach is derivative of MacKinnon's older work3 and underdeveloped in terms of legal doctrinal issues. Recognition that women are disadvantaged not only because of their sexual objectification but also because of their reproductive capacities (a competing linchpin in much feminist legal analysis), their current social roles as child rearers, and other “social” facts does not help legal strategists decide how to “challenge the difference gender difference makes” (5) except, in Rhode's words, by paying “close attention to context … [namely,] which women benefit, by how much and at what cost” from particular legal strategies or claims (4). This focus on disadvantage necessarily implicates issues of class and race by which women will be differentiated from each other. Many of the gains in “equal employment opportunity” at the top have been won, by middle-class white women, off the backs of underpaid women of different classes and races.

Taken together, these books represent opposite sides of the same coin—the search for a grand or unifying theory of women's oppression to help guide our legal and political strategies into liberation. While MacKinnon's approach is largely deterministic and universalistic (some would say ahistorical), Rhode's begins to fade into contextualized indeterminacy. MacKinnon holds tenaciously to an essentialist position that women are united by their sexual oppression (a remarkably heterosexist analysis). Rhode gives up the quest for a single unifying theory by recalling that splits in feminist movements historically correspond with our current debates about equality and difference in the law and urges instead a vague appreciation of contextualized disadvantage, with little thematic or theoretical guidance.

The intellectual and practical problem then becomes whether we can develop an analysis of women's inequality that will transcend our diversity (both books pay pen-service to but do little analysis of the diversity of women's experiences) and be useful in the legal and political arenas. Here MacKinnon is somewhat more helpful, recognizing that feminism has yet to develop a theory of the state and its relation to law and civil society, in part because feminism is “schizoid” (160) in its relation to the state. The state has occasionally, in the form of law (MacKinnon is a bit unclear on the delineations of state, law, and civil society), intervened on behalf of women to protect them (if incompletely) from dangers in an unmediated state of nature dominated by men. (MacKinnon cites rape, abortion, and sex discrimination laws as examples.) Feminist political theorists at work on this question may help us unravel the issues about the role of law, once we are clearer about the role of gender in the creation of states.4 Even a fully patriarchical state and legal system cannot be abandoned; indeed, they must be struggled with if they are the site of much, if not all, of our oppression.

Rhode suggests that legal issues may be less important in this era of the second wave of feminism because many of the basic legal rights have been won (the vote, equal employment opportunity, educational equality, and family law reform), yet her own meticulous research points out just how mixed the results of these legal reforms have been. In my view, MacKinnon's attempt at a political theory based on the exercise of male power (sold to us as the neutral, objective, and liberal state), is situated too narrowly in a sexual analysis but still offers some hope for both theory and legal action.

MacKinnon asks us to think about the state and its laws “from women's point of view” (161). Rhode reminds us that there is no single point of view among feminists, let alone among women (an observation that undercuts much of MacKinnon's reliance on consciousness-raising as the method to get us out of these problems). That already existing and appealingly “simple” theoretical frameworks such as Marxism or sexual subordination no longer work is a testament to the complexity of human struggle and history.

Law and the state have been “man-made.” Both MacKinnon and Rhode would agree to that much structural analysis. If these authors have not yet given us a fully articulated women's view of the state and its laws, it is in part because we are too recently admitted to the acts of state and lawmaking. These books tell us where we have been; we now have more work to do to conceptualize our future.

Notes

  1. Carol Smart, Feminism and the Power of Law (London and New York: Routledge, 1989).

  2. Catharine MacKinnon, “Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence,” Signs: Journal of Women in Culture and Society 8, no. 4 (Summer 1983): 635, and “Feminism, Marxism, Method, and the State: An Agenda for Theory,” Signs 7, no. 3 (Spring 1982): 515.

  3. Catharine MacKinnon, Sexual Harassment in the Workplace (New Haven, Conn.: Yale University Press, 1979).

  4. See, e.g., Carole Pateman, The Sexual Contract (Stanford, Calif.: Stanford University Press, 1988); and Susan Moller Okin, Justice, Gender and the Family (New York: Basic, 1989).

Susan A. Farrell (review date May 1991)

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SOURCE: Farrell, Susan A. “Differentiation and Stratification: Age Groups, Class, Gender, Race, and Ethnic Groups.” Contemporary Sociology 20, no. 3 (May 1991): 350-51.

[In the following review, Farrell regards Toward a Feminist Theory of the State as a valuable study for both feminist theorists and sociologists with an interest in feminist legal theory.]

Toward a Feminist Theory of the State is Catharine MacKinnon's newest addition to her continuing project of creating feminist theory. This work in progress contains some previously published essays (the first one is derived from “Feminism, Marxism, Method, and the State: An Agenda for Theory,” which was published in Signs and has become a feminist “classic”). However, here, as in her earlier Feminism Unmodified (1987), MacKinnon not only attempts to integrate feminist theory into social theorizing on law and the state, but she allows us to participate in this project by reading her work as it develops. This reading becomes an exercise in the sociology of knowledge: how does theory develop and, more important, how does it change over time through self-reflection and criticism?

MacKinnon admits that the essays may seem contradictory in places as well as repetitive, but this is part of a work in progress. Her attempts at comparing and contrasting Marxism and feminism have been refined over time as she moves from simple explication, to clarifying the differences between the two, to a current belief that feminism actually completes the Marxian project of class analysis and human liberation.

MacKinnon makes an important contribution to our understanding of the social construction of sexuality as it is implicated in the social construction of gender and the system of domination of women by men. Although she eschews the differentiation that many feminist theorists use between sex and gender (West and Zimmerman 1987), MacKinnon strongly asserts that sexuality and gender are co-constructions of women's identity under varying forms and conditions of patriarchy. MacKinnon criticizes Marxist theory as well as liberal feminism for neglecting to incorporate sexuality into their theorizing and for the acceptance of both gender and sexuality as socially constructed. In this volume MacKinnon rejects any notion of essentialism and the universalizing of women's experience without accounting for difference and variation.

Some critics misunderstand MacKinnon's work because they continue to accept uncritically notions of sexuality that are really based on sociobiological understandings of sex drives and instincts à la Freud and Lacan. This uncritical notion of sexuality as presocial and outside the realm of the cultural can even be seen in some feminist work. Many sociologists have not examined their assumptions about sexuality and either ignore or take for granted certain biologized notions of what it is to be sexual and gendered in social institutions (Stein 1989).

After the contrast and comparison of Marxism and feminism, as both theory and method, MacKinnon discusses the concrete ways in which the law and even liberal jurisprudence continue to oppress women. For MacKinnon, the way in which the legal system has been constructed inherently objectifies women and their children. In chapter 12, she deconstructs the way “difference is inscribed on society as the meaning of gender and written into law as the limit on sex discrimination … considering gender a matter of sameness and difference covers up the reality of gender as a system of social hierarchy, as an inequality” (pp. 216, 218). MacKinnon's clarification of the sameness-difference problem is one of her most important contributions to feminist theory. She supports her case with data from the legal system: The system protects pornography and pornographers even in their most violent manifestations; it fails to enforce albeit weak laws against rape, sexual and physical abuse, and battery against women and children; and it continues to refuse to recognize lesbians and gays as fully human persons under the law.

Since the state is the embodiment of political power in modern society and has the ultimate threat of coercion to ensure compliance (Weber [1919] 1946), MacKinnon sees the law as the link between the structured oppression of women and their everyday lived experience. The state is not gender-neutral; together with the law, it continues to be the embodiment of male power over women (p. 244). She criticizes feminism for not confronting “the relation between the state and society within a theory of social determination specific to sex” (p. 159). According to MacKinnon, a theory of feminist jurisprudence is a necessary step in this direction.

The precise interrelationship of law, the state, and social structure needs additional analyses to get at the depth of gender, racial-ethnic, and class oppressions and heterosexism. MacKinnon's insistence on the co-construction of sexuality and gender is a crucial point, one which other feminists are using to examine the overall organization of social life. Taken together with Joan Acker's recent analysis of organizational life as not only masking the genderedness of modern bureaucracy but also suppressing sexuality (1990), MacKinnon has made an important scholarly contribution toward a feminist theory of the state. I look forward to further and more detailed analyses of the social construction of gender and sexuality in social structures and institutions. I highly recommend this book not only to feminists but to sociologists seeking to deepen their analyses of law and the state and those who are developing theories that take into account gender and sexuality as integral parts of theorizing, going beyond the usual formula of “add women and stir.”

Works Cited

Acker, Joan. 1990. “Hierarchies, Jobs, Bodies: A Theory of Gendered Organizations.” Gender and Society 4: 139-58.

MacKinnon, Catharine A. 1987. Feminism Unmodified: Discourses on Life and Law. Cambridge, MA: Harvard University Press.

Stein, Arlene. 1989. “Three Models of Sexuality: Drives, Identities and Practices.” Sociological Theory 7: 1-13.

Weber, Max. [1919] 1946. “Politics as a Vocation.” Pp. 77-128 in From Max Weber: Essays in Sociology, edited by H. H. Gerth and C. Wright Mills. New York: Oxford University Press.

West, Candace and Don Zimmerman. 1987. “Doing Gender.” Gender and Society 1: 125-51.

Michael J. Meyer (review date July 1991)

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SOURCE: Meyer, Michael J. Review of Toward a Feminist Theory of the State, by Catharine A. MacKinnon. Ethics 101, no. 4 (July 1991): 881-83.

[In the following review, Meyer argues that, despite its flaws, Toward a Feminist Theory of the State is a provocative, insightful, and worthwhile addition to feminist studies.]

This [Toward a Feminist Theory of the State] is not an easy book to gauge. It is by turns insightful and obscure. It is quite interesting (even genuinely disturbing in a most thoughtful way), yet it is also, at times, rhetorical to the point that it seems to undermine what may be its very purposes. MacKinnon does have a real flair for style, and the book is also, with only a few exceptions, exhaustingly documented.

The book is divided into three main sections—(1) feminism and Marxism, (2) method, (3) the state—and closes with a summation of sorts entitled “Toward a Feminist Jurisprudence.” “Feminism and Marxism” is a thorough and probing account of “The Problem of Marxism and Feminism” (p. 3), including a feminist critique of Marxism, a Marxist critique of feminism, and concluding with an analysis of the failures at an attempted synthesis. The feminist critique of Marxism offered here is essentially a critique of Marx and Engels mainly focusing on Engels. MacKinnon then moves to delineate the boundaries between liberal feminism (particularly in the guise of what she suggests is its high point, Mill's The Subjection of Women [p. 41]) and radical feminism. Liberal feminists and a variety of others (e.g., Simone de Beauvoir, Nancy Chodorow, Dorothy Dinnerstein, Shulamith Firestone, Carol Gilligan, Kate Millett) receive slim though sometimes engaging treatment. MacKinnon's account of the failure of the synthesis between Marxists and feminists focuses on an interesting, but somewhat belabored, account of a “wages for housework” theory (p. 63). The principal weakness of this otherwise valuable section is the tendency to curtail, or relegate to the endnotes, the discussion of various contemporary opponents.

The book's central section on method begins with an account of consciousness-raising as the key to feminist methodology. This important section is intriguing but offers an inadequate account of some quite serious problems. For instance, since the method of consciousness-raising “makes everyone a theorist” (p. 102), MacKinnon suggests that feminism ought to refuse to “simply regard some women's views [e.g., right-wing women and lesbian sadomasochists] as false consciousness” (p. 115). She notes that “treating some women's views as merely wrong, because they are unconscious conditioned reflections of oppression and thus complicitous in it, posits objective ground” (p. 115). And, since MacKinnon refuses to stake out objective (or for that matter subjective) epistemological territory, the search is on for some coherent methodological middle ground. However, “this new process of theorizing” (p. 116) remains obscure throughout this section. Neither is any hint given as to how, in light of the rejection of objectivity, the promised new method will arbitrate genuine substantive differences, let alone the clash to be expected between right-wing women's experience and the experience of radical feminists.

Now, perhaps the most thoughtful, and disturbing, chapter of this methodological section is the chapter on sexuality. This discussion is too rich and complex to summarize fairly here, but this understanding of sexuality—viewed in terms of forced, and deeply entrenched, patterns of dominance and submission—informs the rest of the argument. This provocative discussion itself provides reason to read the entire book.

The final section—“The State”—begins with a critique of “liberals” (and seemingly, by implication, liberal feminists) which at times indulges in generalizations that clearly fail to address the diversity and complexity of liberal perspectives. For example, MacKinnon asserts: “In Anglo-American jurisprudence, morals (value judgments) are deemed separable and separated from politics (power contests), and both from adjudication (interpretation)” (p. 162). Having said so, she fails to engage Ronald Dworkin's extensive, and well-known, discussion of this very point. A throwaway reference to Dworkin at the end of the chapter (p. 170) hardly fills this void.

In general, in this section the critical examination of liberals is largely based on a critique of the positive law of the United States. Yet, it is a critique that some liberals (and many liberal feminists) might well embrace. MacKinnon's discussion of rape law is especially well done, though it stops short of offering a full feminist account of genuine consent, which would be most useful in this regard. The discussion of abortion, and the privacy doctrine, is almost uniformly insightful. The account of pornography is a powerful analysis and is most interesting.

In this section's final chapter, “Sex Equality,” MacKinnon draws some of her previous observations on sexuality, rape, abortion, and pornography together in an overall analysis of sex discrimination. She also cuts through a tendency to overgeneralization found elsewhere in the book and notes: “Granted, some widowers are like most widows: poor because their spouse has died. Some husbands are like most wives: dependent on their spouse. A few fathers, like most mothers, are primary caretakers … [but] that some men at times find themselves in similar situations does not mean that they occupy that status as men, as members of their gender. They do so as exceptions” (p. 228; emphasis added). All of this, of course, leaves open the normative question—one that MacKinnon clearly wants to eschew “This book is not a moral tract. It is not about right and wrong” (p. xii). Is the good father as caretaker the good man? Or, must his goodness as a caretaker inhere in some quality other than his manhood? MacKinnon (who has only limited success in avoiding the normative dimensions of her inquiry) at least is well placed to note that, the good man as caretaker is typically seen to be a good man, only by virtue of what is widely regarded as supererogatory action and not duty.

Toward a Feminist Theory of the State is a provocative book of broad-ranging sweep. It is a good book that deserves the attention not just of feminists and political and legal theorists, but also of all those concerned about the relationship among sex, gender, and inequality in the modern world.

Jean Bethke Elshtain (review date fall 1991)

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SOURCE: Elshtain, Jean Bethke. “Feminisms and the State.” Review of Politics 53, no. 4 (fall 1991): 735-38.

[In the following review, Elshtain contrasts stylistic elements of MacKinnon's Toward a Feminist Theory of the State with Mary Lyndon Shanley's Feminism, Marriage, and the Law in Victorian England.]

It is by now de riguer in feminist theory circles to repudiate what is called dichotomous reasoning. But I must begin with a stark dichotomy, for these two volumes [Toward a Feminist Theory of the State and Feminism, Marriage, and the Law in Victorian England] differ as the night to the day. Where Shanley's is an exercise in meticulous scholarship, moderation, and an openness to dialogue, MacKinnon's is a torrent of proclamatory certainties.

Shanley moves in on concrete problems, seeking to unravel the complexities of changing laws governing divorce, married women's property, infanticide, protective labor legislation, child custody, wife-abuse, marital rape, and the like. MacKinnon casts her project in far more grandiose terms. Rich and complex bodies of feminist theorizing, which caution against assuming an abstract and universal point of departure, are of little interest to her. She routinely deploys, but never unpacks, such terms as idealist, materialist, justice, and equality. Each of these complex categories means precisely what MacKinnon declares it to mean, no more and no less.

In MacKinnon's world, men are oppressors and women are victims. Her treatment of the history of political thought, the philosophy of political inquiry, including Marxism and feminism, is terribly polemical. Her fixations are so obsessive the reader begins to feel bludgeoned. Her standards of evidence are dubious. She cites works that have been tellingly criticized as if they constituted, unproblematically, the fact of the matter and a secondary critical literature did not exist. She seems unfamiliar with much of the by now vast women's studies literature in cultural anthropology, social history, and philosophy.

MacKinnon's problems begin at the very beginning with her preface. She assumes the feminist approach, her own, and a Marxist methodology. Similarly, she writes of “power as such” but it is unclear what this is supposed to mean. At best this is an essentialist claim, odd for a theorist who purports to be exposing the depredations of “idealism.” MacKinnon poses questions in a way designed to provide a delimited, cut-and-dried set of responses. Although the text is peppered with references to “materialism” (p. 13) and to “many attempts at unified theory” (p. 11), we are not let in on what attempts she has in mind, or on what constitutes a compelling explanatory theory by contrast to a weaker effort.

MacKinnon assumes that Marxist theory and liberal theory are “unified” theories and that, in the ways that are most important for looking at gender, “Engels and liberal theory are indistinguishable” (p. 20). It takes a good bit of sleight-of-hand to pull this one off. But the argument is pushed through analogy by fiat; for example, “Engels' analysis … precisely tracks liberal theory” (p. 28) and “Engels presupposes … as liberal theorists do” (p. 35). Given the mountains of work devoted to comparing and contrasting Marxism and liberalism, surely one must be a bit more modest in casting absolutist claims about either theory. But care in such matters is conspicuous by its absence in MacKinnon's work.

To be feminist, she claims, one must accept that all women everywhere have been victims of a continuing tradition of injustice. But it is difficult to evaluate this claim, having been offered no serious discussion of either justice or equality, two of the most essentially contested concepts in political discourse. MacKinnon would forge feminism into a single collectivity, itself synonymous with the entire class or category “woman.” Although she acknowledges, at points, that there is no single feminist perspective, much of her discussion makes sense only if the reader recognizes that MacKinnon consistently equates her feminism with feminism tout court. Typical locutions are: “Feminists charge” or “feminists argue” (p. 5) or “in the feminist view” (p. 10) or “feminism sees,” “feminists believe,” and “feminism's search” (p. 38). She insists that feminism places a priority on women's point of view, but she ignores other women's points of view if they fail to jibe with her own. For example, in her preface, MacKinnon construes disagreement with her arguments only, and necessarily, as distortion on the part of the reader: “As the work progressed, publication of earlier versions of parts of this book … gave me the benefit of the misunderstandings, distortions, and misreadings of a wide readership” (p. xi). Despite occasional caveats to the contrary, apparently no reader has ever understood, or read accurately, unless she concurs with MacKinnon one hundred percent. Men, too, are regularly reduced to a unified standpoint: “The perspective from the male standpoint,” “the male perspective,” “thus the perspective from the male standpoint” (p. 114). Surely this will not do. The male perspective of an Adolf Hitler and a Mahatma Gandhi are scarcely identical. (MacKinnon also gets certain thinkers, Michel Foucault in particular, entirely wrong. She turns Foucault into a kind of quasi-Marxist, even though he problematizes all the categories Marx assumes as law-like. Foucault is in vogue, so MacKinnon clearly wants to draw him to her side even if it means doing violence to his work.)

MacKinnon also thrashes positivism, but she seems to have little depth understanding of what is at stake for her own discussion is riddled with many of the features of a particularly dogmatic positivism: stipulative definitions, proclamations of causal propositions, the use of limited empirical evidence to substantiate strong normative claims. The simplicities of MacKinnon's discourse are further evident in her discussion of sexual violence and pornography. Any and all defenders of the liberal state come in for a bashing as apologists hiding behind such niceties as the First Amendment. Those who distinguish the rule of law from force are especially visible in her rogue's gallery. She makes no distinction between being forced to comply at gunpoint in a dark alley and confronting ambiguous evidentiary rules. The law, too, is violence against women. For MacKinnon, “women are raped by guns, age, white supremacy, the state—only derivatively by the penis” (p. 173). This would be interesting news to rape victims. But MacKinnon is not concerned with the specific victims of specific assaults. For her, rape is both metaphor and metonymy, it is both typical and prototypical, and concerns with evidentiary rules and protection are little more than acquiescence to a rape culture.

Shanley, by contrast, is a scholar who takes great pains to be thorough and to eschew claims that cannot be sustained by the evidence at hand. She gives credit where credit is due, specifically to “the Victorian feminists,” who “took it as their task to expose the falsity of the idealization of marriage and to show how oppressive marriage and family life could be for women. This was no small undertaking; in order to modify popular views of marriage and liberal theory's distinction between the private world of family life and the public world of politics feminists had to gain acceptance for their contention family was the locus of male power sustained by the judicial authority of the state” (p. 4). In her discussion, Shanley examines “both the theory that motivated these remarkable feminists and the practical successes and failures of their efforts to translate the ideal of spousal equality into law” (p. 4).

Using the Victorian feminist condemnation “of their society's sentimentalization of patriarchal power in the family” as her beginning point, Shanley examines both their hopes for “a new egalitarian marriage” (p. 20) as well as the tension that their efforts exposed in a liberal society. Shanley demonstrates just how complex is a relationship between contractarian liberalism and those sets of social traditions and customs that do not readily lend themselves to contractual construals.

A great strength of this work is the concreteness, specificity, and historic acuity Shanley brings to bear, whether she is examining the Divorce Act of 1857, the Married Women's Property Acts of 1870 and 1882, or the Infant Custody Act of 1886. Shanley insists that “principles of justice must govern relations in the family as well as in the public realm” (p. 195) and this claim is far more problematic than she allows. But by permitting us to enter the worlds of those who operated from such a stance, she enriches our understanding of both the past and the present. Her book can be read profitably by all students of history and political and legal thought. It provides much grist for the mill. Shanley invites her readers into a debate and a dialogue with her rather than lining them up either to be dismissed, coerced, or turned into troops mobilized for some all encompassing struggle.

Susan E. Bernick (essay date winter 1992)

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Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 6516

SOURCE: Bernick, Susan E. “The Logic of the Development of Feminism; or, Is MacKinnon to Feminism as Parmenides Is to Greek Philosophy?” Hypatia 7, no. 1 (winter 1992): 1-15.

[In the following essay, Bernick maintains that the position of MacKinnon's work in relation to radical feminism is analogous to the place of Parmenides's work in ancient Greek philosophy.]

Feminist theory is in crisis. Given the institutionalization of Women's Studies programs, the research grants funded, and the concomitant proliferation of feminist theories of all descriptions, one might be tempted to believe that any such claim must be an exaggeration at best, and perhaps even a touch hysterical. The belief that a multitude of voices is in and of itself a good thing is held as an article of faith in the religion of liberal tolerance; it is not a matter of reasoned consideration even among the politically sophisticated. While I would concur with those (both feminists and not) who assert that the feminist theory of the late 1970s and early 1980s failed to speak to the concerns of many women (both feminists and not), I would argue that (1) diversity of opinion and approach in feminist theory, as elsewhere, is not necessarily, without further explanation or comment, a good thing and (2) the particular kind of diversity that evolved in the face of the criticism of 1970s feminism was not the kind of diversity the criticism had demanded.

This second claim perhaps needs further elaboration. A careful examination of the evolution of what now passes as diversity in or of feminist thought would reveal that the splintering of radical feminist theory—that collection of views that has always been presented as a monolithic entity by its critics, but which was never a univocal theory even at its most singular moments—represents a failure of feminism that has not yet been faced, let alone solved. Once it became clear that we did not have and perhaps should not even want a single explanation for the whole thing, a unitary answer to the questions “Why sexism, and what do we do about it?”, we seem also to have given up on the struggle for a unified (not unitary) movement.1 Feminists walked up to the edge of knowing what would be required of us to do this impossible thing that we must do to survive, but cannot imagine surviving having done, and for perfectly understandable reasons backed down, taking different paths on our various retreats. This would be considerably less tragic if we could bear to admit it.

This project, which does not directly address these issues, will, I hope, nonetheless contribute to the necessary task of sorting through the rubble of feminist theory by tracing back to one time when I believe the failure to connect began, or at least began to matter. Recently, however, I've been encouraged to find evidence that others are having similar reservations. These works2 are filled with accounts of fear and frustration; there seems to be a growing awareness that something has gone terribly wrong somewhere. This is a small comfort after having felt for a very long time as if I were the only one who didn't believe that the fracturing of theory was going to solve all our problems.

Everyone has a different story to tell about how feminism has gotten to the place it is at present. I would suggest that a useful project for some feminist scholar to undertake would be a comparative analysis of the several genealogies3 of feminism that have been offered in recent introductory remarks in review essays on and anthologies of feminist theory. Perhaps the impetus to put writers into typologically labeled boxes and to trace their theoretical interrelationships derives from women's traditional role in maintaining and transmitting family histories:

“First there was your grandmother Betty, and your grandfather Karl,4 and together they had five daughters: Liberal, Radical, Socialist, Marxist, and Cultural.”

“No, no, Alison, that's not the way it was at all! You are forgetting great-grandmother Simone, and she had three daughters, Egalitarianism, Culturalism, and Nominalism,” said Alison's Aunt Julia. “Betty and Karl are from the other side of the family.”5

For myself, I tend to follow Catharine MacKinnon's view that radical feminism is the central trunk of feminist theory; the genus that needs no species name as modifier. Most of the other genealogies of feminism treat all the species as structurally co-equal (if not equally “true”). MacKinnon is characterized as a radical feminist, and she is typically consigned to share her pigeon hole with Andrea Dworkin, Adrienne Rich, Susan Brownmiller, Robin Morgan, Susan Griffin and Mary Daly. MacKinnon herself is very critical of at least Brownmiller, Griffin and Daly, although this by itself does not prove which one of their versions of radical feminism is the genus, or if in fact radical feminism is the genus from which all other forms of feminism derive.6

I believe the following analysis will support my claim that radical feminist theory is the central expression of feminist activism and longing in the latter part of the twentieth century, although I will not argue directly for this assertion. I want to suggest, first, that Catharine MacKinnon's investigation of sexuality (and her extension of this theory to an inquiry into the role pornography plays in the subordination of women) is the rational conclusion of at least one strand of radical feminist thought. Second, I contend that the position of MacKinnon's work relative to radical feminist (and hence feminist) theory as a whole is analogous to the way the work of Parmenides was situated in ancient Greek philosophy. Finally, I argue that until post-MacKinnon feminists take her work as seriously as post-Parmenidean Greeks took his, feminist theory cannot progress further.

I need to clarify the claims that are being made so that there is no question about what I am not saying. First, this work (if not its author) is agnostic on the question of whether or not MacKinnon's account of sexuality is, ultimately, the best (or even the best available) theory of the subordination of women. In other words, I think it is possible for feminists who disagree with MacKinnon to agree that the comparison I will make between Parmenides and MacKinnon is both correct and illuminating. Second, the “MacKinnon is to feminist theory as Parmenides is to Greek philosophy” analogy I'm making is a logical analogy. The position I see Parmenides and MacKinnon sharing with respect to their philosophical traditions is a logical, not a substantive, position; I'm not saying they are both metaphysicians of a certain sort or philosophically idealist or materialist in interestingly similar ways. It follows from this that, although it is crucially important that MacKinnon's work has an activist component that (presumably) Parmenides's work lacks, I believe that this difference between the two is not fundamentally disruptive to the comparison I am making between them. The precise nature of this logical relationship will be developed further in the discussion below.

Although there is an enormous literature on Parmenides, and nearly as many interpretations of the meaning and import of his writings as there are commentators, most agree that he was the pivotal figure in the development of Greek thought between Thales and Plato.7 Before Parmenides, philosophers had sought a single essential reality that underlay the supposedly misleading appearance that there are multiply real things. All previous metaphysical accounts also assumed that change is a real (not just apparent) process and attempted to explain it. Thales, Anaximander, and Anaximenes, despite having differing accounts of which substance was the foundational “stuff” from which all things derived, maintained that the world evolved from simplicity to complexity. Heraclitus gave up the search for a physically foundational substance and posited change itself as the only knowably unchanging (and therefore real) thing. For the Pythagoreans, change meant that what began as unlimited became limited and thus quantifiable. Parmenides's critique of metaphysics was equally damaging to all of these theories since his argument, if accepted, condemned both change and differentiation of any kind as illusory.

Parmenides apparently only wrote one philosophical treatise, which was in the form of a long poem and which has come down to us in a series of fragments, only a few of them complete. It is estimated that approximately one-third of the total poem remains (Gallop 1984, 5). A youth travels to visit a goddess, and she delivers the theory in the form of a pronouncement to the youth. The goddess begins by describing the only three possible ways of inquiry. She produces reasons for ruling out two of them and insists that the remaining one is the only correct one.

The first way: “that [it] is, and cannot not be.”8 This she calls The Way of Truth.

The second way: “that [it] is not, and must necessarily not be.” This is ruled out on the grounds that “what is not” is unknowable and unsayable. The line of reasoning is that “being” is an either/or matter: “Either it is or is not.” It cannot be “is not,” or “nothing”; “nothing” is not. Therefore, it must be. “The basic premises, then, are that ‘nothing’ is nonexistent (presumably regarded as tautological) and that the object of thought can exist (that is, it is possible to think of something)” (Furley 1967, 48).

The third way: The Way of Seeming is the way followed by ordinary human beings. Their error is that they believe that “to be and not to be is the same and not the same,” which is usually interpreted to mean that we believe that “is not” and “is” can both be true of something at the same time.

The central section of the poem, the single longest fragment that has survived, is concerned with deriving certain conclusions about “what is” from the proof offered that the only possible way of inquiry is that “[it] is and cannot not be.” The conclusions seem bizarre and fantastical—for example, that “what is” is ungenerated, or put another way, that “coming into being” is impossible. “What is” turns out to be single, homogeneous, and eternal.

The arguments offered by Parmenides for these conclusions take the form of deriving absurdities or contradictions from an initial assertion that a commonsense view of the world—e.g., that there is change—is correct. These absurdities, like the proof that the Way of Truth is the only way of inquiry, turn on the impossibility of asserting of something that is, that it also “is not” in some way or another. Montgomery Furth, in his influential (if controversial) article, “Elements of Eleatic Ontology” has tried to convey the force of these arguments by translating them into a dialogue between an imaginary character, Betathon (who does not appear in the poem), and “Henry” Parmenides. Betathon, having been convinced that both the way of “is not” and the way of “is and is not” are closed, tries to engage Parmenides on the subject of “what is” (Furth 1974, 264-65).9

BETATHON:
Trees are.
PARMENIDES:
[silent]
BETATHON:
Lizards are.
PARMENIDES:
You're repeating yourself. …
BETATHON:
I said that something different was, the second time.
PARMENIDES:
How, “different”?
BETATHON:
Clearly, trees are different from lizards. …
PARMENIDES:
An example, please.
BETATHON:
Henry, here, is a lizard.
PARMENIDES:
[silent]
BETATHON:
And [it] is not a tree.
PARMENIDES:
Thou canst not be acquainted with what is not, nor indicate it in speech.

This is one reconstruction of the “argument” for the claim that “what is” cannot be differentiated in any way, is homogeneous and indivisible. Similar arguments are given for the assertions that “what is” is ungenerated and indestructible. “What is” cannot have come into being from “what is not” because “what is not” is absolutely unthinkable, hence unknowable, hence nonexistent. Since there is no change in what exists, “either it is or it is not.” But the decision between these has already been made.

It is, as a whole, entirely. … There are no degrees of being. … Any form of change … implies the destruction of one state of affairs that exists and the generation of one that does not exist.

(Furley 1967, 49)

I have provided this admittedly sketchy summary simply to provide the flavor of the poem and its argument. To modern readers, the logic seems contrived; the point, if there is one at all, seems merely a juvenile delight in words and their negations or a game of peekaboo with “nothing.” One common suggestion from the middle part of this century, for example, was that the puzzle left by Parmenides was no more than an erroneous conflation of the existential and predicative uses of the verb “to be.” In other words, Parmenides had confused “it is,” meaning “it exists,” with “it is,” meaning “it is x,” where “x” is a property or characteristic of “it” (Guthrie 1975, 47). The Parmenidean riddle did not seem so simple, however, to the Greeks who followed him.

Part of the difficulty for modern commentators (equipped with the tools of philology and symbolic and modal logics) has been to make plausible the degree to which Parmenides stopped Greek thought in its tracks. His conclusions were seen by those who followed him to be absolutely unassailable but equally inconceivable. Until Plato “solved” the Parmenidean puzzle in his dialogue that bears Parmenides's name, no one who wrote could avoid confronting his legacy, the extent to which his arguments seemed to make any further speculations into metaphysics not just difficult or discomforting but literally impossible.

I think MacKinnon's conclusions ought to have stopped feminist theory in its tracks, in precisely the same way and for precisely the same reasons Parmenides stopped Greek thought. Further, to the extent that MacKinnon's conclusions have not had that effect, to that extent has she been misread or ignored. In her writings, she has pushed one strand of radical feminist theory to its logical conclusion. She hoped to demonstrate that if one took sexism seriously, one had, ultimately, to take sex seriously as a (perhaps the) genesis of sexual oppression.

Her initial premises are the bedrock of radical feminist thought: “Sexuality is to feminism what work is to marxism: that which is most one's own; yet most taken away” (MacKinnon 1982, 515). Sexuality is constructed through the practice of sex. Sexism is the oppression of women as women, and through sex.10 “What defines woman as such is what turns men on” (MacKinnon 1982, 531). As one would expect, then, her description of sex as it is currently practiced is instrumental. She describes and defines sexuality in terms of what it does, not in terms of what it is. Sexuality for MacKinnon isn't anything at all. It is a social process that eroticizes dominance and submission and that creates men and women as the social creatures as we know them.

I define sexuality as whatever a given society eroticizes. That is, sexual is whatever sexual means in a particular society. … If sexuality is seen in this way, it is fundamentally social, fundamentally relational, and it is not a thing. … Because sexuality arises in relations under male dominance, women are not the principal authors of its meanings. In the society we currently live in, the content I want to claim for sexuality is the gaze that constructs women as objects for male pleasure. I draw on pornography for its form and content, for the gaze that eroticizes the despised, the demeaned, the accessible, the there-to-be-used, the servile, the child-like, the passive, and the animal. That is the content of the sexuality that defines gender female in this culture, and visual thingification is its method.

(MacKinnon 1987, 53-54)

She then asks that feminism take seriously that sexuality so understood might be neither just one feature of social life among many deformed by sexism (and perhaps other forms of oppression as well), nor socially constructed through social relations between men and women acting out gender roles that are in turn socially constructed (by something else higher [or lower] on the scale). “Sexuality in feminist light is not a discrete sphere of interaction or feeling or sensation or behavior in which preexisting social divisions may or may not be played out” (MacKinnon 1989a, 318). The claim is much deeper, and stranger, and has been fully understood by few, if any, of her critics. The claim is that men, women, and the social relations they engage in are all constructed by sex, the activity, rather than the other way around. “Sexuality is that social process which creates, organizes, expresses, and directs desire, creating the social beings we know as women and men, as their relations create society” (MacKinnon 1982, 516).

Sexuality, then, is a form of power. Gender, as socially constructed, embodies it, not the reverse. Women and men are divided by gender, made into the sexes as we know them, by the social requirements of heterosexuality, which institutionalizes male sexual dominance and female sexual submission. If this is true, sexuality is the linchpin of gender inequality.

(MacKinnon 1982, 533)

Despite the apparent strangeness of this conclusion, if one follows MacKinnon's argumentation carefully, and if one has any sympathy whatsoever for the premises with which she begins, the conclusions seem inescapable and unassailable. There is a sense, after reading a long piece of MacKinnon's prose with a pencil in hand, working out the arguments, of having been caught in a trap.

Parmenides's argument was essentially a negative one. Montgomery Furth notes that typically the practice of the elenchus (the technical term for this type of argument) had two distinct motivations. The first, which he identifies with Socrates, is to get the respondent in the dialogue to admit the truth of a premise that at the beginning of the procedure of argumentation the respondent has rejected. The second, which he attributes to Parmenides,

is to compel the respondent, by the very outlandishness of the conclusion, to begin searching for the tacit assumptions with which it was obtained. In the later case, the elenchus functions as an instrument for forcing the assumptions to the surface.

(Furth 1974, 268)

MacKinnon's intention is slightly different. Her argument is negative in the sense that she is interested in forcing into the open the assumptions of her critics. Her primary motivation is the conceptually prior one of setting the “Agenda for Theory.”11 The resulting feminist theory of sexuality that the agenda calls for

would locate sexuality within a theory of gender inequality, meaning the social hierarchy of men over women. … Such an approach centers feminism on the perspective of the subordination of women to men as it identifies sex—that is, the sexuality of dominance and submission—as crucial, as fundamental, as on some level definitive, in that process. Feminist theory becomes a project of analyzing that situation in order to face it for what it is, in order to change it.

(MacKinnon 1989a, 316)12

After Parmenides, Greek philosophy splintered into several competing and inconsistent schools of thought. All of them attempted to “save the appearances,” to save some reality for the natural world, but they were also constrained by the belief that Parmenides' logic could not be violated (Furley 1967, 50). Empedocles posited the existence of a universe made up of four elements: earth, air, fire and water. All the elements were unchangeable and homogeneous, that is, met the criteria Parmenides had set for anything that “is.” Anaxagoras multiplied the number of fundamental substances to be coextensive with the number of natural kinds. All natural substances, not just a privileged small number, were elementary and unchangeable.

The atomists also tried to solve the problems of multiplicity and change, not by increasing the number of fundamental substances, but by asserting that “what is not” could exist in the form of a void. They agreed that no qualitative differences of being were possible, but asserted that quantitative differences could be measured by the empty space separating atoms of a single kind of substance.

Plato, who was both the culminating figure in the early development of Greek thought and the first philosopher in the Western tradition of philosophy, finally worked out how “[it] is not” could be possible. Like Parmenides, he thought that anything of which we have knowledge must necessarily exist. Plato's Theory of Forms owes a great deal to Parmenides in that it was the Parmenidean elenchus that convinced Plato that the objects of knowledge must be eternal and unchanging. The world of appearances received an intermediately real status in Plato as the object of human belief; Parmenides granted the world of appearances no ontological status at all. Plato's analysis of the different senses of “not being” that were possible was undertaken at the height of his powers; in this effort he tried to answer directly the paradox that Parmenides had set for Greek thought.

Post-MacKinnon, the situation is quite different. Instead of trying to untie the conundrum of women, men, feminism, and sex that MacKinnon has bequeathed, her critics (note that Parmenides is not represented as having critics, just followers) have in the main simply walked around her as if she were not there. Rather than analyzing the logic of the arguments MacKinnon marshals in favor of her position (and those negative arguments she uses against other interpretations of women's situation), her critics in the main reject her logic without or prior to engaging it.

Another tactic that has been employed is to simply redefine the terms used by MacKinnon in her argument. MacKinnon herself is painfully aware of this strategy and often scathingly criticizes those she sees engaging in it:

Given that this characterizes the reality [victims' reports of rape are similar to the sex depicted in pornography], consider the content attributed to “sex itself” in the following … quotations on the subject: “Only if one thinks of sex itself as a degrading act can one believe that all pornography degrades and harms women”. … Given the realization that violence against women is sexual, consider the content of the “sexual” in the following criticism: “The only form in which a politics opposed to violence against women is being expressed is anti-sexual”. … And “the feminist anti-pornography movement has become deeply erotophobic and anti-sexual”. …

(MacKinnon 1989a, 336, n. 73; italics in the original)

From the point of view from which MacKinnon writes, the authors of these quotations are advocating the sexuality that feminism has identified as exploitative, in the name of feminism. There has still been no direct answer to the account she has offered of sexuality and its place in the subordination of women, in the sense that no one who finds her conclusions inconceivable has criticized them in the face of their logic and their unassailability. Nothing that has happened on the theoretical front in any way addresses the arguments she has advanced about the meaning of sex and its place in the construction of an unequal social order, “gendered to the ground” (MacKinnon 1987, 173).

There is not a little irony and even perhaps a touch of paradox here. On the face of it, it is hard to identify the source of the commitment on the part of Parmenides's followers that would have led them to try so hard to maintain their faith in both his premises and his logic at the same time that they felt compelled to find a way to reject his conclusions. In the end, a few of the later thinkers did reject the premise that ultimately the universe must be composed of a single fundamental substance, but not without serious reservations; this belief had been the absolute bedrock of Greek speculative thought for the previous one hundred and fifty years. MacKinnon's critics share a political and intellectual commitment to feminism with her, and this commitment limits the number of premises that can be simply tossed out. The irony is that in the modern-day case, where shared feminist commitment would seem to require that any critic of any writer proceed with a kind of serious respect, entire books have been dismissed with a wave, and arguments have been so twisted in the retelling that they bear no resemblance to their originals.13

Following Foucault, it has become a commonplace of feminist theory to claim that power is not congealed in any single institution or person, that power is diffused, multiply situated. MacKinnon, on the other hand, defines power in terms of male dominance and claims that “[male dominance] is metaphysically nearly perfect” (MacKinnon 1983, 638).

Male power is real; it is just not what it claims to be, namely, the only reality. Male power is a myth that makes itself true. What it is to raise consciousness is to confront male power in this duality: as total on one side and a delusion on the other.

(MacKinnon 1982, 542)

The duality of power for MacKinnon is thus total/delusional, while for the post-Foucauldian feminist, the duality, if there is one, would be better characterized as unitary/fractured. What puzzles me about the relationship of Foucault to feminism, and to the critique of MacKinnon offered by feminists following Foucault, is that no one, including to some extent MacKinnon herself, seems to treat the questions of what power is, and how it is exercised, resisted, overthrown or accommodated as empirical, which it seems to me they ultimately must be. For example, MacKinnon writes:

Women's acceptance of their condition does not contradict its fundamental unacceptability if women have little choice but to become persons who freely choose women's roles. For this reason, the reality of women's oppression is, finally, neither demonstrable nor refutable empirically.

(MacKinnon 1982, 542; italics in the original)

What MacKinnon wants women to be able to have is something like integrity, something like selves of our own. She says, for example, “Women have been deprived not only of terms of our own in which to express our lives, but of lives of our own to live” (MacKinnon 1987, 15). If a life is understood as the project of a self, then we are pushed into consideration of how this concept of self is deeply tied to Western ideas about the value of the individual, and, indeed, to Western individualism. The postmodern, postliberal reply to this demand is that having an integral self is impossible for anyone, not just women—just when women (and others) have begun to articulate what it means to be limited in the kind of self one can have, why and how we have been denied selves, and the cost to human beings of being denied a self. I take this point from Hartsock (1990, 163-64).

What is overlooked in this effort to “change the subject” is that if sexism is real, in any meaningful sense of real, whatever is defined by the postmodern sensibility as the “new self” will also be something men will have and women will be both denied access to and defined by our lack of. Attempts, like MacKinnon's, to provide a coherent and all-encompassing feminist theory are met with charges of essentialism, mistaking the result for the cause, as if the experience of oppression were an entirely random one that left no telltale mark, no similar brand to distinguish its presence. MacKinnon and other feminists do not deny that the meaning of womanhood, femaleness, and/or femininity has changed and will change again. The claim is that unless the change is liberating for women, it is merely a modification in the mechanisms of oppression; a particular form of womanhood might disappear from the face of the earth without it being the case that any woman has ceased being oppressed.14

As a final illustration of the difference between legitimate and illegitimate ways to counter an argument, consider the example of the recent plant closings that have plagued the industrial sector of this country. In several cases, the labor force of the plant has tried to keep the plant open through concessions, or attempts to buy out management, or through legal arguments concerning their contracts. During these negotiations it is an accurate description of the state of affairs to say that the business is experiencing a labor-management problem. If, ultimately, the factory is closed, however, there ceases to be a labor-management problem. The situation has been transformed into an unemployment problem. That a labor-management problem had ceased to exist would be equally true if the workers had bought out the owners and transformed the concern into a cooperative. In the former case, however, there is a large number of relatively unskilled unemployed people. In the latter case, there is not.15 The difference is crucial, and an analogous difference is crucially overlooked in the response to MacKinnon. One can dissolve the “sex problem” by linguistic fiat—sex is not what you say it is. But this is not the same thing as reconstituting the world such that the conditions described by MacKinnon are no longer present to be described.

Other than the move of redefining terms, there are at least two other approaches that might be taken. The first is to claim that sex, sexuality, and perhaps even gender are natural and, in their natural state, can or do exist in nonoppressive forms.16 This approach is usually considered politically dangerous for a variety of reasons, not the least of which is that women do not control research into “nature.” It is also considered false by large numbers of feminists, and so objectionable for that reason. A second alternative is to develop a competing theory of sexuality. The challenge for any such theory is that it must do at least as well as does MacKinnon's in accounting for the prevalence of sexual abuse without making it women's fault. If some account of women's sexual agency is desired (the lack of this possibility under MacKinnon's account is the most common complaint lodged against it), the new theory must give an account of how such agency is theoretically possible. Merely asserting its existence or even its possibility is insufficient, especially since MacKinnon has some powerful arguments for how such agency is theoretically impossible.

A more profitable direction for post-MacKinnon feminist theory can be gleaned if we examine once more the example of Parmenides. Parmenides's legacy to the Greeks was the impossibility of any future metaphysics. MacKinnon's legacy to feminism is the impossibility of any future feminism. Her account makes feminism theoretically impossible. There are numerous places in her writings where she acknowledges that if male dominance were as total in fact as she presents it as being in theory, then feminism could not exist. To give just a few examples:

[T]he problem of how the object can know herself as such is the same as how the alienated can know its own alienation. This, in turn, poses the problem of feminism's account of women's consciousness. How can women, as created, “thingified in the head,” complicit in the body, see our condition as such?

(MacKinnon 1982, 542; footnote omitted)

The practice of a politics of all women in the face of its theoretical impossibility is creating a new process of theorizing and a new form of theory.

(MacKinnon 1983, 638)

How sisterhood became powerful while women were powerless will take its place among the classic alchemies of political history. How did they do that? students will be encouraged to wonder.

(MacKinnon 1987, 3; footnote omitted)

This is the same tension, contradiction, or paradox that Plato was faced with after Parmenides. Plato's work didn't look exactly like Parmenides's; they did not agree on everything, and Plato did, ultimately, reject some of what Parmenides had said. But Plato did not reject Parmenides; he scooped out an arc of the world in thought that had basically the same shape, basically the same relationship to the rest of the world. No one has even come close to trying this approach to MacKinnon. Few commentators have noted the paradoxical nature of her conclusions, except in passing, and I find it significant that none of her harshest critics has argued against her on these grounds, opting instead for the illegitimate move of redefining terms discussed above. Now that the dust from the first round of this battle has more or less settled, I suggest that it is time to begin again; maybe we can do it better this time. Feminist theory could use a Plato of our own.

Notes

  1. To give just two examples of what's wrong with the current diversity: in the first place it has not been matched with an equal diversity of theorizers. The same white and upper-middle-class bias of the academy still permeates most of the writing; if anything, the content of what is being written is becoming less and less connected to the everyday concerns of the majority of women. Moreover, one of the primary concerns of the majority of women now surely has to be the imminent loss of the right to abortion; that we can be this close to losing this right after twenty years of theory suggests to me that it has not done us much good.

  2. I am thinking in particular of recent work by Susan Bordo (1990) and Teresa de Lauretis (1989). In Lauretis's essay, which introduces a special issue of Differences on the topic of essentialism, she confronts in an endearingly audacious way the possibility that the essentialism/anti-essentialism debate is really the lesbian/straight split revisited.

  3. The term is Nancy Fraser's; she uses it in her introduction to the special issue of Hypatia on French Feminist Philosophy that she edited (Fraser 1989).

  4. Friedan and Marx, respectively.

  5. The imaginary conversation between Alison Jaggar and Julia Kristeva is drawn from Jaggar (1983 and Fraser (1989). Fraser's source for Kristeva's feminist family tree is Kristeva (1986).

  6. MacKinnon criticizes Brownmiller for finding rape biologically inevitable; Daly and Griffin for being philosophically idealist and therefore liberal. MacKinnon interprets Daly as being idealist about women generally; Griffin is read as idealist about Eros. On Brownmiller, see MacKinnon (1983, 646-47) and MacKinnon (1989a, 323); on Daly and Griffin, see MacKinnon (1989b, 50-51). On Griffin, see also MacKinnon (1983, 639n.8; 1989b, 197-98).

  7. See, for example, Guthrie (1967, 1975), Furley (1967), Hussey (1972), Furth (1974), Owen (1975), Barnes (1979), Gallop (1984). My account is an attempt to summarize and amalgamate these various sources into a balanced but simplified version of their considerably more complex presentations.

  8. The relevant passage in Greek—here translated “[it] is”—is apparently the bare verb “is” without any subject attached. Most of the debate about Parmenides concerns (1) which meaning of “is” is intended (existential, predicative, veridical), (2) whether or not the Greek “is” carries with it an implicit subject, and (3) whether or not Parmenides intended a different subject, and if so, which one. While the debate makes for fascinating reading, none of the fine points of the dispute are relevant to the comparison I want to make. I have tried to steer a course through the treacherous shoals of Parmenidean scholarship without committing myself to any one interpretation.

  9. There is no mention in the poem of either lizards or trees; Furth has simply tried to give an account that makes sense of the elliptical remarks Parmenides does make. I have added the bracketed “it” in Betathon's final speech.

  10. Another way to put this: As against Irigaray, who describes women as “the sex which is not one,” MacKinnon would describe women as “the sex which is sex.”

  11. “An Agenda for Theory” is the subtitle of MacKinnon (1982). See also, MacKinnon (1984): “The subtitles of the articles to which these comments refer—‘an agenda for theory’ and ‘toward feminist jurisprudence’—were not the false postures of tentativeness they typically are. They stated what I meant to do. An agenda sets the terms of a discussion, it does not have it” (184).

  12. Feminism Unmodified (MacKinnon 1987) is a collection of papers initially given as talks at conferences or invited lectures. In the Afterword to this book MacKinnon addresses some of the objections to her analysis that have been raised. She mentions that her audiences often ask her “after all this negative, what do I have to say positive” (MacKinnon 1987, 219). While she thus acknowledges that her audiences perceive her to be a negative theorist, she does not accept this characterization of her position:

    [T]o consider “no more rape” as only a negative, no more than an absence, shows a real failure of imagination. Why does “out now” contain a sufficiently positive vision of the future for Vietnam and Nicaragua but not for women?

    (219)

  13. The feminist insight that ontological and epistemological commitments are basic, while political commitments are contingent, is once more proven true.

  14. This poses an interesting question, however—namely, how will we know when what has happened is not just another transformation in our prison, but that we are, finally, free? On the other hand, and equally important, it is a different thing to be Nelson Mandela in jail and Nelson Mandela “free” in a South Africa still ruled by apartheid; Nelson Mandela in a majority-rule, one-person-one-vote South Africa and Nelson Mandela in a world where racism (and sexism) have been eliminated.

  15. The unemployed, if any, are the more highly skilled former managers.

  16. Despite their insistence that sexuality is socially constructed, most critics of MacKinnon adopt this strategy. Sexuality is socially constructed at the level of society; sex is essential at the level of the individual. Nominally nominalist, this view posits particular sexual preferences as the source of identity (understood as essence), as completely immutable (and therefore never to be criticized), and of miraculous (unknown and unidentifiable) etiology.

An earlier version of this paper was read at the Midwest Society for Women in Philosophy, February 1991. Helpful suggestions on the paper and the ideas in it have come from Meg Baldwin, Naomi Scheman, Michael Root, Melinda Vadas, and Carol Mickett.

Works Cited

Barnes, Jonathan. 1979. Thales to Zeno. Vol. 1 of The Pre-Socratic Philosophers. London: Routledge & Kegan Paul.

Bordo, Susan. 1990. “Feminism, Postmodernism, and Gender-Scepticism.” In Feminism/Postmodernism, ed. Linda J. Nicholson. New York: Routledge.

De Lauretis, Teresa. 1989. “The Essence of the Triangle, or, Taking the Risk of Essentialism Seriously: Feminist Theory in Italy, the U.S. and Britain.” Differences 1 (Summer): 3-37.

Fraser, Nancy. 1989. “Introduction.” Hypatia 3 (3): 1-10.

Furley, David J. 1967. “Parmenides of Elea.” In The Encyclopedia of Philosophy, ed., Paul Edwards. New York: Macmillan.

Furth, Montgomery. 1974. “Elements of Eleatic Ontology.” In The Pre-Socratics: A Collection of Critical Essays, ed. Alexander P. D. Mourelatos. Garden City, NY: Anchor Press.

Gallop, David. 1984. Parmenides of Elea: Fragments—A Text and Translation. Toronto: University of Toronto Press.

Guthrie, W. K. C. 1967. “Pre-Socratic Philosophy.” In The Encyclopedia of Philosophy, ed. Paul Edwards. New York: Macmillan, Inc.

———. 1975. The Greek Philosophers from Thales to Aristotle. New York: Harper.

Hartsock, Nancy. 1990. “Foucault on Power: A Theory for Women.” In Feminism/Postmodernism, ed. Linda J. Nicholson. London and New York: Routledge.

Hussey, Edward. 1972. The Pre-Socratics. New York: Charles Scribner's Sons.

Jagger, Alison. 1983. Feminist Politics and Human Nature. Totowa, NJ: Rowman and Allanheld.

Kristeva, Julia. 1986. “Women's Time.” In The Kristeva Reader, ed., Toril Moi. New York: Columbia University Press.

MacKinnon, Catharine A. 1982. “Feminism, Marxism, Method, and the State: An Agenda for Theory.” Signs 7 (Spring): 515-44.

———. 1983. “Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence.” Signs 8 (Summer): 635-58.

———. 1984. “Reply to Miller, Acker and Barry, Johnson, West, and Gardiner.” Signs 10 (Autumn): 184-88.

———. 1987. Feminism Unmodified: Discourses on Life and Law. Cambridge: Harvard University Press.

———. 1989a. “Sexuality, Pornography, and Method: ‘Pleasure under Patriarchy.’” Ethics 99 (January): 314-46.

———. 1989b. Toward a Feminist Theory of the State. Cambridge: Harvard University Press.

Owen, G. E. L. [1960] 1975. “Eleatic Questions.” In The Eleatics and Pluralists. Vol. 2 of Studies in Pre-Socratic Philosophy, ed., R. E. Allen and D. J. Furley. London: Routledge & Kegan Paul.

Neil MacCormick (review date 22 January 1993)

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SOURCE: MacCormick, Neil. “With Due Respect.” Times Literary Supplement, no. 4686 (22 January 1993): 3-4.

[In the following review, MacCormick examines MacKinnon's feminist legal theory in Toward a Feminist Theory of the State and finds parallels between her ideas and those of Elizabeth F. Kingdom in What's Wrong with Rights?]

In the very month that saw the bitter break-up of Woody Allen and Mia Farrow amid mutual allegations of startling abuse, a yet more remarkable family lawsuit came to the boil in Florida. Gregory Kingsley sued his mother for termination of her parental rights over him, and won. Gregory was thirteen, but the court recognized him as competent to bring his action for himself in his own name. The court saw no other way of securing his legitimate interests than to let him sue for himself. The court granted his application to be adopted by his then foster-parents, who were themselves legally precluded by their position as foster-parents from taking steps to adopt Gregory. A triumph for liberal legality? A path-breaking extension of effective legal personhood into the ranks of hitherto disfranchised minors? A brave day for children's rights? Or penultimate self-parody of a litigation-junkie society, paving the way for Janet and John to sue for the Christmas Nintendo?

Well, Gregory got his rights. Shouldn't children get their rights? Shouldn't women as well, and minorities, and all the un- or under-represented, for whom the promises of the Rechtsstaat, the “Right-state”, have too often been a cruel hoax? What's wrong with rights, except that some of us, an uneasily patterned some of us, don't seem always or usually to get them? What's Wrong with Rights? tells you what's wrong with rights. And Gregory's case is a good way to get at the weight of Elizabeth F. Kingdom's point.

It would be difficult for a sensitive or human person not to be glad of the outcome for the Gregory we saw on television giving evidence in his own case (if justice is public justice, let it be publicly done, down to the details of courtroom tears in courtroom cross-examination, and haircuts and perms all set for the day in court-on-television). Here was a bright and articulate young person, with as sensible an appreciation of his own interests as most of us could pretend to. A system geared to advancing the best interests of the child could not in good conscience close its ears to his best evidence of those interests in this case.

But was the case not indeed exceptional? And even in this case, was the court-and-television the right setting in which to explore the successes and failures of Gregory's biological mother's attempts to make a go of her life and get into a position to do right by her children? What about sympathy for her? One couldn't avoid that here either, could one? Was she not as much or more a victim of the system as the astonishingly bright and collected Gregory? Bring it all nearer home and ask: considering the colossal cost and time involved in the Orkney inquiry, given the Cleveland cases of yesteryear, given the innumerable breakdowns of the social-work approach to family problems, shouldn't we just buy into the Florida solution, and leave it all to the courts, and legislate competence to children and battered women and everybody else to vindicate their rights at law? Although this will not work, that doesn't prove that it will not work worse than, or even as badly as, the existing system does not work.

That is the kind of view Kingdom is out to challenge. The individualistic system in which legal rights are vindicated or not at the option of whoever's rights are neglected, flouted, or threatened is not, for the cases that concern her, an effective way of securing the desired end-states. The system is adversarial, yet the condition of life it must aim at is familial, communal. The law's majestic equality does not diminish differential access to the law's practitioners—length of purse, and pertinacity, and luck have a deal to do with that.

“Rights” and their individual vindication have been characterized by some as only one particular legal technique for social control; by others as fundamental to human personality and autonomy, no mere technique but an expression of the very thing that gives moral agents their due status as such. Kingdom is of the technique camp, and the technique is one which, from a critical feminist's standpoint, she finds questionable. It is a technique ideologically privileged by the liberal state—but she has other things to say against it. Those who agree that, exceptional Gregories possibly excepted, there have to be better forums than the civil courts for helping children and families with problems, will so far see her point.

Kingdom's line, in short, is one of severe scepticism about the use of the language or technique of rights for the purpose of advancing women's causes and rectifying the masculinist bias of law, state and civil society. Her scepticism is grounded in her suspicion that the legal techniques of interpretation and the forums in which interpretation proceeds are biased by the conscious and even more the unconscious mind-sets of bench and bar. Here you see an ostensibly welcome attempt to uphold a woman's right to reproduce (barring by law the involuntary sterilization of a mature woman with retarded mental development). Next, you see it all too readily generalized into a right of men and women alike, and this leads back to male appropriation of female sexuality through the agencies and values of patriarchal society. And the right to reproduce fades into the duty of carrying a partner's child unwantedly to term.

In Catharine A. MacKinnon's book, Toward a Feminist Theory of the State, two more bags of grist for the same mill would be provided by the law on rape and the law on obscene publications. If MacKinnon is right, the deepest fact of relationships, in the liberal state is the fact of violence, violence both individual and collective, alike domestic and endemic. This she finds deeply rooted in attitudes to sexual relations and thus to sexuality, especially in its pornographic excrescences and in what she considers to be ideological construction of rape. Men's, and (therefore) the law's, consciousness of rape is of an exceptional act of abnormal and wicked ferocity or cruel deception, an act set far beyond ordinary loving or sportive sex by mutual consent, an act meriting hatred and contempt, and condign punishment. To MacKinnon, men (and their law) share false consciousness. To her, the evidence speaks of women's actual experience of sexual demands levied by men inside and outside of continuing relationships, and always intimately connected with power—brute power or (subtler) differential access to income and wealth. The bright line between the coerced and the uncoerced is foggy and obscure in the actual conditions of women's lives, and in their perception of a matter intimately concerning them.

What of pornography? “Differences in the law over time—such as the liberalization of obscenity doctrine—reflect either changes in which group of men has power or shifts in perception of the best strategy for maintaining male supremacy—probably some of both.” For always there is a failure to see the violence inherent in sexual pornography as such, the objectification of woman, the hatred that comes to the surface of the written or photographic page. A conception of free speech and of a free press that, with whatever expressions of distaste and regret, grants freedom to that peddling of hate and violence which is pornography itself, only shows that liberal law's liberal freedom incurably licenses violence of men against women. Legend tells us that Romulus and his warrior band procured a progeny for Rome by the rape of the Sabine women. MacKinnon does not, but might well, take that as the foundation myth for the liberal state. “However autonomous of class the liberal state may appear, it is not autonomous of sex. Male power is systemic. Coercive, legitimated and epistemic, it is the regime.” The italicization is the author's. Her insistence on the case against the liberal state is comprehensive. I have cited only two from many points of argument.

Is there a case for any other view? Can human relations, legal relations, and the state only be conceptualized either as this “liberalism” has it or as critical feminists counter-argue? One of the great triumphs of humour over solemnity in philosophy is the section of the Treatise of Human Nature where Hume treats of sexiness as one of the masculine virtues. His suggestion is that the popularity of a “good women's man” among the ladies arises from their sympathy (empathy) with those who actively enjoy his charms, a sympathy felt even by those whose resolute chastity insures them against any such active enjoyment. Whatever this flight of levity may have contributed to Hume's not being appointed Professor of Moral Philosophy at Edinburgh, it does contribute nicely to explaining the role of feeling and of fellow-feeling in Hume's moral and legal philosophy. Hume's is a theory of justice grounded in sentiment, not rationalism. Elsewhere, he points it out as a curiosity that men admit women to relationships of justice with them. This is a curiosity, because justice in its concern with allocation of and respect for property rights is grounded in the need to alleviate raw competition for scarce resources among creatures of similar bodily frame and physical power. But nearly all men are physically more powerful than nearly all women; so why are women admitted to the community of justice, as distinct from that of mere humanity?

The answer lies in the ties of sentiment that bind men to women, and in the arts of femininity that subdue the masterful will of males of the species. Fellow-feeling, sympathy in its eighteenth-century sense, links men and women, and adults and children, in ways which admit weaker humans to a common world of law and justice that would otherwise be closed to them. The theory of sympathy was further developed by Adam Smith, who builds it into a rather more persuasive moral psychology than Hume's. And Smith's disciple John Millar elaborated the doctrine in The Origin of the Distinction of Ranks. The idea is adapted to the other powerful eighteenth-century theory of societal evolution through different types of economy. Actually, it is not a universal feature of human societies that women are admitted to equality with men, says Millar. It is a special feature of commercial societies, where the pleasures of polite intercourse bring men and women together as equals, and where family relationships between husbands and wives become relations of equal mutual support and friendship, rather than the instrumental and exploitative relationships of ruder ages.

Millar's (or Hume's) announcement of sexual equality was no doubt a bit previous. In the context of reviewing feminist works of jurisprudence, one cannot read such self-congratulation among dead white European males without at best a wry smile if not a squawk of outrage. The tone of the argument goes a long way to make the feminists' point. Why then mention them at all here? Salutary reminders are always in place. It is salutary to be reminded by Elizabeth Kingdom of the futility in some settings of awarding legal rights-and-remedies as though these were always actually effective remedies for experienced evils and injustices. It is salutary to be reminded by Catharine MacKinnon of the radical difference between women's and men's experience of violence and threats of violence in their lives. It is salutary to ponder liberal freedoms as female oppressions.

But other reminders are salutary too. Kingdom and MacKinnon both focus their critique of masculinism (to give it a name) on a certain theoretical conception of liberalism and the liberal state. Implicit in the critique is an identification of liberalism and the liberal state with Enlightenment rationalism, with Enlightenment as rationalism, and (so-called) rational legal order as the distinctive but intrinsically flawed keystone of the modern state. The rationalism they attack is certainly a one-sided reason. It is reason distorted by omission of half the human psyche. It is Hobbesian reason exhibited in the state of nature, where full-grown men battle with each other for control of resources and glory, pitting reason to the needs of strategy in universal conflict: or it is Locke's reason calculating how to make secure each man's right to life, liberty and estate, or Kant's reason universalizing every maxim of action and testing it against any possible foundational contract for civil society, Kant's goodwill grounded only in universal duty-prescription without any place for the mere phenomena of human feelings.

The Rechtsstaat may largely have emerged from hat stable of ideas, with resultant imperfections and incompletenesses. What becomes of caring in such a state-picture? The answer is obvious: it is delegated to the private sphere, to the discretionary play of personal judgment and commitment within one's own estate. What becomes of outrages against classes or communities of person? If an individual can sue, or can prove special damage, that's one thing. Otherwise, apart from establishmentarian anomalies like (anti-Christian) blasphemy, nothing is to be done. What of endemic rather than exceptional and striking violence? Put it down to (universal) “human nature.”

But stay a moment. There was more than one “Enlightenment project”, and more than one classical road into liberalism. If Adam Smith doesn't count, who in these post-Marxist times does count? It is not true that feelings, or the caring emotions, or the place of resentment, and fellow-feeling with the resentment of one who suffers, and a sense of right grounded in fellow-feeling, or fellow-feeling itself, or caring, have no place in the philosophy of the Enlightenment. It is not all reason and rationalism. That reason should be only the “slave of the passions” is no doubt pitching it too far and putting it too high, and no way to get a Chair in Edinburgh. But a dialectic or interplay of feeling and reason and a readiness to respond through sympathy and with sympathy to human suffering, a readiness to respond to resentment felt, but resentment filtered through some communalizing filter like an ideal (both-sexed) spectator—such a dialectic might give a fully, and even-handedly, human ground for moral and political theory and, derivatively, a critical theory of law and state.

I am only too ready to go far along the road with much that is in feminism, much in the argument of a Kingdom or a MacKinnon. Our inherited institutions have been and are saturated with the acknowledged and (yet more insidious) unacknowledged biases of the male human outlook, and will remain in this condition until women have for some time been taking their full part in our political and legal processes, and in business and industry as well. A full acceptance of equal membership and equal participation, and therefore a full commitment to changes in the conditions of and for opportunity for membership and participation are requirements of justice and even more of the common good, laying due and careful stress on “common”. But the liberal inheritance is a pluralistic, not a monolithic one. There are plenty of healthy babies as well as much dispensable bathwater. Rights can be both a technique, sometimes helpful but sometimes worse than useless, and an expression of respect for the human being without regard to sex or race. We have to strive for the respect, and universalistically for respect, even where particular situations call for legal techniques other than those of rights-based litigation in private law.

Rights go along with duties. An urgent duty of the present is to listen, to listen with human and Humean sympathy, and sometimes with Humean scepticism as well. There is a profound message in Kingdom and MacKinnon. It needs a careful hearing, it needs to be inwardly digested—which, of course, requires that it not be swallowed whole.

Roger Kimball (essay date October 1993)

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SOURCE: Kimball, Roger. “Sex in the Twilight Zone: Catharine MacKinnon's Crusade.” New Criterion 12, no. 2 (October 1993): 11-16.

[In the following essay, Kimball summarizes MacKinnon's case against pornography, describing her arguments as obsessive and extreme as well as concluding that MacKinnon exhibits a reductive view of human behavior.]

Speaking about pornography is not like anything else. It is crazier. … It makes grown men cry and smart people stupid.

—Catharine MacKinnon, Feminism Unmodified

Every idea is an incitement.

—Oliver Wendell Holmes

The demand for excessive freedom is a curious thing. Beginning in wholesale rebellion against restraint, it soon sets about erecting its own restraints—often harsher and more irrational than those it intended to replace. What was meant to shatter the bonds of convention and establish liberty ends up forging a new set of tyrannous conventions, all the more noxious for being imposed in the name of freedom.

The latest access of sexual liberation is a case in point. Born in the 1960s, the movement for sexual liberation has followed a predictable trajectory. It started in naïve abandon—chanting “Down with monogamy, emotional commitment,” etc.—and proceeded quickly through shock, disillusionment, bitterness, and rage. Herbert Marcuse, Norman O. Brown, and a thousand lesser gurus foretold the sensual paradise awaiting those who were bold enough to dispense with the repressive trappings of bourgeois morality. (And bourgeois politics: it is remarkable how regularly prophets of sexual revolution have fused, or confused, sex and radical politics.)

By the mid-Seventies, though, the prophets were grumbling. The sexual utopia they had envisioned was, literally, no place. Nature itself was part of the problem. A battery of new sexually transmitted ailments, from herpes to AIDS, arrived in quick succession to make casual sex a dangerous, potentially a deadly affair. Nor was disease the whole story. For one thing, most people found the pursuit of sexual gratification for its own sake ultimately ungratifying. They were looking for sex without strings. It turned out that “the strings”—the emotional and spiritual nourishment that longstanding relationships offer—were essential: sever them and the pleasure chills.

So much was a salutary corrective to the excesses of the Sixties and Seventies. But true to form, the demand for sexual liberation has also spawned a counter-movement, an ideologically motivated demand for sexual orthodoxy. This shows itself above all in what we might call the sexual-harassment industry: the fantastical reinterpretation of everyday life such that every human exchange is potentially open to the charge of sexual malfeasance. Of course, there are genuine instances of sexual harassment, when an employer or a teacher or even a family member or friend takes unfair sexual advantage of someone. In the course of things, such cases are rare, which indeed is one reason we continue to be shocked when they come to light. But the sexual-harassment industry universalizes these instances. Largely an expression of the rancorous side of feminism, it is a perfect specimen of political correctness in action: yet another case of the euphoric Sixties suffering from a hangover. As usual, comic elements abound. Connoisseurs of bunk owe the folks at Smith College a great deal for the insistence that “lookism”—the “prejudice” that some people are more physically attractive than others—is a form of “oppression” that will not be tolerated on their campus. Only slightly less splendid is the notice posted at the University of Wisconsin warning that men had been caught “staring” at women in the library and urging those who had been “victimized” in this way to report malefactors to the police. Such examples could be multiplied indefinitely. Most are absurd; not all are so funny, as the spectacle of Anita Hill testifying against Clarence Thomas on national television reminded us.

The restrictiveness and intrusiveness of the sexual-harassment industry have led some to describe it as a “new puritanism.” In fact, it is a new marriage of radicalism and intolerance. In this sense, it represents the underside of the movement for sexual liberation: sharing crucial goals and assumptions but differing over questions of implementation and method. Far from signaling a return to traditional sexual scruples (as some commentators have suggested), the sexual-harassment industry is really a kind of guerrilla arm of feminism. Male sexuality and “patriarchy” are the ostensible targets. But this campaign for sexual redress is ultimately directed against nature itself. How inconsiderate and illiberal of nature to have created human beings male and female! Let us therefore attempt to remedy this imposition by legislating it out of existence.

If this characterization seems extreme, consider the work of Catharine A. MacKinnon, perhaps the most articulate and influential representative of what one writer has dubbed “feminist fundamentalism.” A tenured professor at the University of Michigan Law School, Professor MacKinnon is the author of Feminism Unmodified (1987), a collection of essays about what a rotten time women have had of it, and Toward a Feminist Theory of the State (1989), an elaborate effort to demonstrate that the law is sexist—or, if that seems too blunt, that the state participates “in the sexual politics of male dominance by enforcing its epistemology through law.” Together with the activist Andrea Dworkin (to whom Feminism Unmodified is dedicated), Professor MacKinnon has labored long on the frontiers of a certain species of feminist radicalism. The two women cultivate very different personae. Professor MacKinnon is poised and comely, conservatively, almost primly, dressed and meticulously made-up, her nails gleaming and hair piled high in calculated disorder. Andrea Dworkin is, well, the opposite. But both come bearing the same message. It is a short tape, yet it plays on an endless loop. Miss Dworkin sums it up when she writes that in contemporary America (which—it is one of her charms—she spells “Amerika”) “rape is the paradigmatic sexual act.” An alarming claim. But no more alarming than the argument, vigorously put forward by Professor MacKinnon and Miss Dworkin, that pornography itself is a form of rape. Accordingly, both argue that pornography should not be protected under the First Amendment. (“First Amendment absolutism” is for both a term of contempt.) On the contrary, they insist that, as an instance of discrimination against women, pornography should be actionable under the Fourteenth Amendment (the “equal protection” amendment) as a violation of civil rights. They have even drafted a model ordinance for the city of Indianapolis outlawing “the graphic sexually explicit subordination of women through pictures and/or words.”

Until recently, Miss Dworkin and Professor MacKinnon have been largely cult interests. But Professor MacKinnon has lately emerged as an important academic celebrity. Last spring, The New York Times Magazine and New York both ran cover stories on her. After all, it is not every day that you find an attractive female law professor obsessed with pornography and arguing against the First Amendment. There are also some gossipy tidbits. One piquant detail is that Professor MacKinnon is engaged to be married to Jeffrey Masson, the renegade psychoanalyst whom Janet Malcolm wrote about in The New Yorker a few years back. Among other claims to notoriety, Mr. Masson admits to having slept with nearly a thousand women. This is not generally the sort of thing to win a feminist's heart, but Mr. Masson has apparently mended his ways. It may also help that he considers his fiancée “the greatest mind at work in the world today.” Living with Professor MacKinnon is “like living with God,” he told readers of New York. “She just sits and thinks deep thoughts.”

The latest digest of Professor MacKinnon's deep thoughts is to be found in a slim volume entitled Only Words.1 Originally presented in April 1992 as the Christian Gauss Memorial Lectures in Criticism at Princeton University, Only Words is by and large a recapitulation of arguments Professor MacKinnon had made in previous books. But its brevity gives it a special punch—much as distillation produces a more potent, not to say more toxic, brew. The book is remarkable on several counts. In the first place, it is remarkable that an exercise in feminist legal apologetics should have been delivered as the Gauss lectures. Established in the late 1940s, this distinguished series was conceived primarily as a forum for new work in criticism and aesthetics. (The comprehensive listing supplied by Princeton is headed “The Princeton Seminars in Literary Criticism.”) There have been some exceptions—Hannah Arendt on Karl Marx, for example—but the dominant focus of the Gauss seminars has until recently been literary or literary-critical. Previous Gauss lecturers include such eminent writers and critics as Erich Auerbach, Francis Fergusson, René Wellek, Robert Fitzgerald, Randall Jarrell, Edmund Wilson, Rosemond Tuve, W. H. Auden, and Lionel Trilling. It tells us a great deal about the state of the humanities in the academy today that someone with Catharine MacKinnon's radical views should have been deemed appropriate for this honor.

Only Words is also remarkable in its tenor. The book is a philippic against pornography. Yet it contains many graphic passages sure to bring a blush to the cheek of a young person. Professor MacKinnon displays an uncommonly expert acquaintance with the varieties of pornographic experience, assuring us, for example, that she has done “five years of research on the making of pornography in cults and white supremacist organizations.” Her thundering denunciations, delivered from the pulpit of feminist self-righteousness, remind one of an old-time preacher's invocation of hellfire and brimstone: How terrible pornography is! How degrading that women should be depicted in this way! Let me give you all the shocking details. … Other opponents of pornography might conclude that to some extent Only Words is an example of what it condemns.

Professor MacKinnon's argument rests on the observation that some speech is not only speech but is also a kind of action. The law has long recognized this, which is why it enforces oaths and certain oral contracts and provides remedies for libel, slander, etc. When we say “I do” at the altar or shout “Fire!” in a crowded theater, we do not express an opinion but commit an action. Professor MacKinnon's contention is that pornography, far from being “only words” (or pictures), is also a form of behavior. “What pornography does it does in the real world, not only in the mind.” And again: “To say it is to do it, and to do it is to say it. It is also to do the harm of it and to exacerbate harms surrounding it.” It is this dubious equation that licenses her claim that “protecting pornography means protecting sexual abuse as speech” and, further, allows her to call for legal sanctions against pornography. It is a short step from here to Professor MacKinnon's claim that “there is no way to prohibit rape if pornography is protected.”

Professor MacKinnon can be a diligent scholar; and no doubt the case law she cites raises challenging questions for specialists interested in the tension between the First and the Fourteenth Amendments (a tension that in this context might be described as the conflict between the demand for individual freedom and the promotion of group rights). But all her scholarship is in the service of an obsession. Thus it is that Only Words, like Professor MacKinnon's other books, proceeds on two levels. On the one hand, we find a clever theorist spinning ingenious arguments about the ways in which pornography is more act than speech and hence qualifies as a species of discriminatory behavior. On the other hand, we encounter an impassioned ideologue in the grip of an idée fixe. The latter keeps breaking through the text of the former, undercutting her credibility. This shows itself particularly in Professor MacKinnon's tendency to treat her central categories as infinitely elastic metaphors. In Toward a Feminist Theory of the State, for example, she writes that “women are raped by guns, age, white supremacy, the state—only derivatively by the penis.”

Hmmm. One wonders whether victims of such “derivative” rape would agree. It's partly a case of the little girl crying wolf. The problem is that rape—what we might be forgiven for calling “real rape”—gets lost in the blanket indictment. The same is true of Andrea Dworkin's identification of rape as the “paradigmatic” sexual act. Professor MacKinnon and Miss Dworkin want to declare the entire world a disaster area. This makes it impossible for them to discriminate between genuine emergencies and business as usual. (They will tell you that “business as usual” is the emergency: but that of course is the rub.) It is difficult not to conclude that that little tinkle one hears while reading Professor MacKinnon's books is the rattling of a loose screw. Consider her remark, in Feminism Unmodified, that for the previous five years (this was 1984) she had spent two hours a night, five nights a week, studying martial arts as “a physical, spiritual, and political activity.” A cheering thought, that! And then there is her complaint that “sexual intercourse” is “still the most common cause of pregnancy.” Still? Even now?

According to Professor MacKinnon, pornography is to blame for all manner of social calamity. Indeed, it sometimes seems that she regards it as a kind of latter-day Original Sin—with Adam, not Eve, proffering the forbidden fruit. In her mind, the power of pornography is preternaturally formidable: “its power is the power of the State,” she exclaims. No image of brutality is extreme enough to capture the evil of pornography. In one place she likens it to the Holocaust. And in a recent PBS television interview about her book, Professor MacKinnon even implicated pornography in the rape and slaughter now sweeping Bosnia. In the former Yugoslavia, she explained on the Charlie Rose Show, pornography was even more prevalent than it is in the United States. (And America, she says repeatedly, is a society “saturated” with pornography.) It was just this—the ubiquity of pornography—that “created a population of men preprimed sexually to enjoy inflicting torture.” Pornography, she concluded, created an army “just waiting to commit a genocide.”

What's wrong with this picture? For one thing, Professor MacKinnon assumes a breathtakingly simplistic and reductive view of human behavior. Men she regards with contempt: “the ultimate male bond,” she says, is “between pimp and john.” Not only are men heartless exploiters, they are also dangerous automata: one whiff of pornography and they are irretrievably set on the path toward rape: “Sooner or later, in one way or another, the consumers want to live out the pornography further in three dimensions.” One sometimes gets the sense that what really enrages Professor MacKinnon is the ungovernable fact of sexual desire itself. “Men define women as sexual beings,” she notes with distaste. What effrontery! In Professor MacKinnon, we have a modern Lady Macbeth, calling on the gods to unsex her—and everyone else, too.

As it happens, Professor MacKinnon's attitude toward women is hardly more encouraging. Of course, her declared goal is equality—between the sexes first of all, but also between classes, races, etc. (She is yet another tenured professor opposed to “hierarchy.”) But if women are the feckless, supine creatures that Professor MacKinnon conjures up, then equality is no more than a chimera. “You hear the cameras clicking or whirring as you are being hurt,” she writes. “You learn that language does not belong to you, that you cannot use it to say what you know. … You learn that your reality subsists somewhere beneath the socially real—totally exposed but invisible, screaming yet inaudible. … You learn that speech is not what you say but what your abusers do to you.”

Who is the “you” in this nightmare scenario? Women—abused and “silenced” by a society that tolerates pornography. Professor MacKinnon is endlessly loquacious about the “silence” of women. And their helplessness. For her, women never have any choice about whether to become prostitutes; they never freely choose to act in pornographic films; they never display a prurient interest in pornography. The London Sunday Telegraph recently ran a story about a woman-run brothel in Germany that supplies women for women. Not wonderful, perhaps. But in Professor MacKinnon's victimology it should be impossible: Women are used and abused by men, not by other women.

The absurdity of this view of women has been adroitly exposed in The Morning After,2 Katie Roiphe's recent book about the sexual-harassment industry. Miss Roiphe is quite right that Professor MacKinnon's attack on pornography is a “potent mixture of mysticism and legalistic logic” that “infantalizes” women. “The image that emerges from feminist preoccupation with rape and sexual harassment,” she notes, “is that of women as victims, offended by a professor's dirty joke, verbally pressured into sex by peers.” Are women so fragile, so much in need of protection? Miss Roiphe reminds us that we have every reason to doubt it. She also takes issue with Professor MacKinnon's “monkey-see-monkey-do” model of male behavior according to which pornography “causes” men to become perverts. Is looking at dirty pictures really so dangerous?

Currently a graduate student at Princeton, Miss Roiphe is only in her mid-twenties. Yet her book, which focuses largely on her undergraduate years at Harvard, displays more common sense (not to mention more humor) about relations between the sexes than all of Professor MacKinnon's dour lucubrations. For Professor MacKinnon, if a man whistles at a woman, it is a crisis of sexual harassment. No doubt the whistler acts in bad taste. Perhaps his attentions are unwanted and make the woman feel uncomfortable. Should his whistling be proscribed? Miss Roiphe's comment is a breath of fresh air: “although it may infringe on the right to comfort, unwanted sexual attention is part of nature. To find wanted sexual attention, you have to give and receive a certain amount of unwanted sexual attention.” Professor MacKinnon seems not to have figured out this elementary fact of courtship yet.

Given her attack on feminist fundamentalism, it is worth noting that Miss Roiphe identifies herself as a feminist. But she is what one might call a red-blooded feminist: bright and impatient with the anemic fantasy according to which an evil male conspiracy has systematically subjugated the frail female throughout history. The testimony of her own experience tells her how distorted this view is; her observation of its effects on her peers shows how damaging to the real interests of women it can be. Miss Roiphe had occasion to sit through the lecture version of Only Words. During the question period she asked about Vladimir Nabokov's Lolita: is it, too, a form of pornography? Most readers will be surprised to discover that, according to Professor MacKinnon, Lolita is really about “the tragedy of child abuse.” Tinkle, tinkle, tinkle: would that we had Nabokov's rejoinder to that one.

It should go without saying that one does not have to subscribe to Professor MacKinnon's absolutist stand on pornography in order to conclude that it is a social ill. Even in its milder forms, pornography tends to depersonalize sex. And as a substitute for genuine human connectedness, it is narcissistic and dehumanizing. In this sense, pornography may be said to harm men, its primary consumers, even more than women, its chief subject. It is also true that in its hardcore varieties pornography is basically sexualized psychopathology. We are told that pornography is a $10 billion-a-year industry—larger than the “legitimate” film and record industries combined: a dispiriting statistic, if accurate. About this we can commiserate with Professor MacKinnon. And we can agree with her, too, that the pornographer's insistence on his First Amendment right to publish filth is largely a cynical abuse of his democratic freedom. The Founders struggled mightily to frame a document that would secure political liberty for the citizens of this country. It is grotesque to see their efforts used to justify Hustler or Deep Throat.

At the same time, it is worth remembering that virtually all advanced societies produce pornography; its partisans call it—or the forms of it they approve of—erotica. Not that the ubiquity of pornography is a reason that its production and circulation should not be restricted in various ways. In most societies, it is: often by indirect social pressure as much as by law. The point is that in a free society, people are legally “allowed” to do many things that we hope they will forbear doing. The limits of permissible behavior are not the same as the limits of desirable behavior. We count on upbringing, education, and socialization to nudge us closer to the latter. Because we value freedom, we grant the latitude to err. It is this that Professor MacKinnon cannot abide. Thus she advocates a sweeping program of censorship that would restrict not only pornography but also “materials that promote inequality.” And who do you suppose would be empowered to decide what sort of materials “promote” inequality?

This brings us to what is most radical in Professor MacKinnon's thought. Although pornography is her chief subject, her goal is not simply the eradication of smut. For her, pornography is a metaphor, a crystallization, of social and sexual inequality. Banishing pornography is only one element in a campaign to revolutionize the law and, with it, all of society. Professor MacKinnon concludes her book by calling for “a new model for freedom of expression in which the free speech position no longer supports social dominance, as it does now.” A level playing field is not enough: she wants to enforce her own brand of “equality.” What she opposes even more than pornography is what she calls “the stupid theory of equality”—the theory, that is, according to which everyone is equal under the law. Because some people are disadvantaged, she argues, they deserve unequal (i.e., preferential) treatment in order to establish “true” equality. Hence she wishes to replace the “abstract rights” guaranteed by the Constitution with a menu of “substantive rights.”

What would this mean? The short answer is a new feminist tyranny. Professor MacKinnon expatiates at the end of Toward a Feminist Theory of the State: “The main question would be: does a practice participate in the subordination of women to men, or is it no part of it? Whether statutes are sex specific or gender neutral would not be as important as whether they work to end or reinforce male supremacy, … When it is most ruthlessly neutral, [the law] is male; when it is most sex blind, it is most blind to the sex of the standard being applied. When it most closely conforms to precedent, to ‘facts,’ to legislative intent, it most closely enforces socially male norms.” In other words, fair is foul, foul is fair.

Professor MacKinnon tells us that she looks forward to the imposition of a “non-dominant authority.” This marvelous Orwellian oxymoron—even she admits that it is currently “unthinkable”—perfectly epitomizes her approach to social policy. Tyranny is necessary to establish freedom, while the rule of law must be broken to make room for a “higher” law. To Catharine MacKinnon, it looks like the promised land. In fact, as this ravaged century has shown repeatedly, it is a recipe for disaster.

Notes

  1. Only Words, by Catharine A. MacKinnon; Harvard University Press, 152 pages, $14.95.

  2. The Morning After: Sex, Fear, and Feminism on Campus, by Katie Roiphe; Little, Brown, 180 pages, $19.95.

Richard A. Posner (review date 18 October 1993)

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Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 3068

SOURCE: Posner, Richard A. “Obsession.” New Republic 209, no. 16 (18 October 1993): 31-6.

[In the following review, Posner maintains that Only Words is “eloquent and forceful,” but derides the work for lacking “brevity,” “careful distinctions, scrupulous weighing of evidence and fair consideration of opposing views”]

The title of Catharine A. MacKinnon's new book is intended as an ironic commentary on the belief that pornography is “only words” and therefore, unlike sticks and stones, can never hurt anyone. There is a further irony that is unintended: Only Words is a rhetorical, rather than an analytical, production; it is only words. It is eloquent and forceful but it lacks, perhaps because of its brevity, the careful distinctions, scrupulous weighing of evidence and fair consideration of opposing views that one is entitled to expect in a work written by a professor at an eminent law school (Michigan) and published by a distinguished university press (Harvard).

The book is a verbal torrent that appeals, much like pornography itself as MacKinnon conceives it, to elemental passions (fear, disgust, anger, hatred) rather than to the rational intellect. There is no nuance, qualification, measure or sense of proportion. “You grow up with your father holding you down and covering your mouth so another man can make horrible searing pain between your legs. When you are older, your husband ties you to the bed and drips hot wax on your nipples and brings in other men to watch and makes you smile through it.” “The message of [pornography] … is ‘get her’ … This message is addressed directly to the penis, delivered through an erection and taken out on women in the real world.” “Society is made of language,” and “speech … belongs to those who own it, mainly big corporations,” which are complicit in the production of pornography because they are managed by men and have a financial stake in being free to publish anything that is profitable. “Pornography makes the world a pornographic place.” We live in “a world made by pornography.” “‘Pornography [MacKinnon is quoting with approval her frequent collaborator Andrea Dworkin] is the law for women.’” And so on.

Beneath the anger, the hyperbole, the sarcasm, the rhetorical questions, the indignation and the innuendoes—MacKinnon says that “some [consumers of pornography] undoubtedly write judicial opinions” and suggests that the Supreme Court might not have held child pornography illegal if the children in the case before the Court had been girls rather than boys—the outline of an argument can be discerned. It is that pornography destroys the lives of the women who appear in it and causes the men who consume it to commit rapes and sexual murders, abuse female children sexually and generally discriminate against, disvalue and intimidate women. “Sooner or later, in one way or another, the consumers want to live out the pornography further in three dimensions,” want “to keep the world a pornographic place so they can continue to get hard from everyday life.”

Since pornography “impels behaviors in ways that are unique in their extent and devastating in their consequences,” why do the courts permit it? Partly because most judges are men, partly because, in laudable reaction to the excesses of the McCarthy era, they made a dogma of the First Amendment's free speech and free press clauses. This dogma has blinded these male judges to the fact that “women are far more likely to be harmed through pornography than the U.S. government is to be overthrown by Communists.” Judges do not realize, moreover, that there is no tenable distinction between words and deeds. “Saying ‘kill’ to a trained attack dog is only words.” They have never been able to explain “why, if pornography is protected speech based on its mental elements, rape and sexual murder, which have mental elements, are not [protected speech] as well.”

The incoherence of the judicial approach is further shown, in MacKinnon's view, by the fact that laws against sexual harassment in the workplace have been upheld even though much of that harassment is verbal: Why should women be protected only in the workplace? Above all, the courts have failed to recognize the tension between equality, which is protected by the Fourteenth Amendment, and freedom of expression, which is protected by the First Amendment. When free expression is used to demean or intimidate a vulnerable group—as in the case of racial epithets and other “hate speech,” including the teaching that the Holocaust never happened—restricting that express on may be necessary to the achievement of full equality, and it should therefore be allowed. We should not regret that, if this argument is accepted, members of minority groups will have greater freedom of speech than white males. “The more the speech of the dominant is protected, the more dominant they become.” We should not succumb to “the studied inability to tell the difference between oppressor and oppressed that passes for principled neutrality.”

To evaluate MacKinnon's argument, it is first necessary to consider what exactly she means by “pornography.” In ordinary language the word denotes a sexually graphic representation, verbal or pictorial, heterosexual or homosexual, designed to titillate or to arouse the reader or the viewer. What it means to MacKinnon is not entirely clear, but it seems implicitly confined to two categories of expression: live erotic performances (such as striptease dancing) and, more important, photographs of women nude or engaged in a sexual act, real or simulated. She says that “all pornography is made under conditions of inequality based on sex,” and this seems to exclude a purely verbal or cartoon presentation where no woman is involved in the production of the work as model or actress. To count as pornography, the representation must depict women as “subordinated” to men in some fashion, but this requirement would appear to be satisfied by virtually any nude photograph of a woman, since MacKinnon calls Playboy pornographic. She is understandably most concerned about violent pornography, especially when it involves actual violence rather than simulated violence perpetrated upon the pornographic models or actresses. Yet her implicit definition, confusingly different from the Dworkin-MacKinnon antipornography ordinance that Indianapolis adopted and the courts struck down, sweeps far more broadly.

It is odd that MacKinnon should leave her definition of pornography implicit. It is odd, too, that she should let her book create the impression that all pornography, as she defines it, except that in which child models are used, is legal in the United States. Most “hard-core” pornography—approximately, the photographic depiction of actual sex acts or of an erect penis—is illegal. MacKinnon could complain, but does not, that the existing laws are not enforced with sufficient energy. Since men control the legal system (she believes) and have (she further believes) an immense stake in pornography, she seems unable to conceive that there might actually be laws on the books, even underenforced laws, against the stuff.

But what is true is that her conception of pornography reaches far beyond current law, and would forbid a good deal of material that is considered to be privileged by the First Amendment. How much farther is unclear, but it may be very far indeed. Playboy's stock in trade is retouched nude photographs of smiling, voluptuous young women in suggestive poses. If these photographs, only moderately erotic by contemporary standards, are pornography, as MacKinnon appears to believe, much of the production of the American film and theater industry, a fair amount of cable television, a huge number of videocassettes, some greeting cards, some advertising and even an occasional opera are pornographic as well.

That is rather a lot to remove from the market. It would require, as MacKinnon fails to mention, not a smattering of Indianapolis-style local ordinances, but a law enforcement effort on the scale of Prohibition or the “war on drugs,” and with the same dubious prospects of success. Would it be worth it? In MacKinnon's distinctive idiom, “How many women's bodies have to stack up here even to register against male profit and pleasure presented as First Amendment principle?” In more neutral language, what is the harm of “soft core” pornography, à la Playboy, that would justify an Iran-style crusade against the photographic display of the female body?

On this critical question, the book is largely a blank. A footnote cites several studies that have found that pornography can incite aggressive behavior by men; and this is supplemented by some anecdotal evidence. (MacKinnon mentions a sexual murder committed in a manner that had been depicted in a magazine published eight months earlier, though there is no evidence that the murderer had seen the magazine.) MacKinnon also tries to get some mileage from the decision invalidating the Indianapolis ordinance by noting that the decision accepted the ordinance's premise that pornography harms women. In fact the premise was accepted only for the sake of argument; the court held that the ordinance would be unconstitutional even if the premise were true.

MacKinnon's treatment of the central issue of pornography as she herself poses it—the harm that pornography does to women—is shockingly casual. Much of her evidence is anecdotal, and in a nation of 260 million people, anecdotes are a weak form of evidence. She does not acknowledge the limited scope of the scientific evidence that she does cite; this evidence, which concerns the attitudinal and behavioral effects of pornography, is largely limited to the violent kind, but she wants to forbid the nonviolent kind as well. She also does not consider the counterevidence, which is extensive. It includes such facts as that Denmark, which has no law against even hard-core pornography, and Japan, in which pornography is sold freely and is dominated by rape and bondage scenes, have rates of rape far lower than the United States; that the rate of rape in the United States has been falling even as the amount of hard-core pornography has undoubtedly increased because of the videocassette; and that women's status tends to be lower in societies that repress pornography (such as those of the Islamic nations) than in societies that do not (such as those of the Scandinavian nations). And some of MacKinnon's conservative allies in the fight against pornography believe that pornography deflects men from intercourse to masturbation (in MacKinnon's own words, “pornography is masturbation material”) rather than spurring them to rape. Pornography may be a substitute for intercourse (including rape) rather than a complement to it.

It would be a mistake to conclude that pornography has been shown to be harmless. The evidence is inconclusive. My point is that our present knowledge does not warrant a confident conclusion that eliminating or, more realistically, reducing the quantity of pornography would either reduce or increase the incidence of sex crimes and other mistreatments of women. It is especially reckless to conclude, as MacKinnon does, without a careful discussion of the state of the evidence, that pornography in the United States today is a major cause of harm to women. The issue of magnitude is critical; it would not pay to devote substantial social resources to extirpating a minor source of harm.

It is not on behalf of consumers of pornography (not all of them heterosexual males) who will be deprived of a source of possibly harmless pleasure that I raise this question. My concern is that she is proposing an enormously ambitious and possibly quixotic program of law enforcement in order to bring about what for all anyone knows might be only a small improvement, and perhaps no improvement at all, in the life of American women. Not even to discuss this question is the cardinal weakness of the book.

MacKinnon's blindness to the fact that hard-core pornography is already illegal in this country largely vitiates her emphasis on the brutal treatment of pornographic models and actresses. For that is exactly the sort of treatment that one expects in an illegal market. When an economic activity is placed outside the protection of the law—as we know from Prohibition, prostitution, the campaign against drugs and the employment of illegal immigrants—the participants in that activity will resort to threats and violence in lieu of the contractual and other legal remedies denied them. The pimp is an artifact of the illegality of prostitution, and the exploitation of pornographic actresses and models by their employers is parallel to the exploitation of illegal immigrant labor by their employers. These women would be better off if all pornography were legal.

MacKinnon misses another critical distinction when she complains about the asymmetrical treatment of pornography on the one hand, and the verbal sexual harassment of women in the workplace on the other. If words are actionable harm in the latter context, why then, she asks, not in the former context, too? An obvious answer is overlooked. In the case of harassment, the words are aimed at a woman; she is the target of a verbal assault. In the case of pornography, the words (pictures are MacKinnon's actual concern) are aimed at a man, the reader or the viewer of the pornography, and the aim is to please, not to insult or to intimidate. Since a woman is not the intended (and rarely the actual) viewer or reader, she can be harmed only if the voluntary male consumer of the pornography is incited by it to mistreat a woman. The effect is indirect, and whether it is substantial is the essential issue that MacKinnon fails to confront. She is also too facile in equating child pornography with adult pornography on the grounds that the objection to child pornography is the inequality between children and adults, and that adult pornography reflects a similar inequality between women and men.

MacKinnon wants to associate women with other traditional victim groups, specifically blacks and Jews. She compares pornography to the shouting of racial epithets and to Nazi marches and Holocaust revisionism, all of which are expressive sources of pain. But these comparisons, especially the last one, cause her to equivocate over the difference between the form of expression and its content. Most of the time she treats pornography as something that bypasses the rational intellect (the “message is addressed directly to the penis”), and misogynistic messages not conveyed by sexually explicit representations then fall outside its scope; “pornography [is] more than mere words, while the words of communism are only words.” Mere words are privileged. But then she applauds Canada for punishing the propagation of claims that the Holocaust did not occur, even though these claims, like “the words of communism, are only words.”

In the same vein MacKinnon observes that “the current legal distinction between screaming ‘go kill that nigger’ and advocating the view that African-Americans should be eliminated from parts of the United States needs to be seriously reconsidered.” But if the line between incitement and advocacy, and between obscenity and misogyny, is erased, then censorship will become a pervasive feature of American public life. And the Communist case will then be an easy one, communism having done more harm to more people than pornography, and so I cannot understand why MacKinnon regards the protection of the free speech of Communists as one of the shining moments of American constitutionalism.

She approves of the decision in New York Times v. Sullivan, which limited the right of public figures to sue for defamation, because the public figures involved were white racists; if they had been black, they should have been allowed to sue. She is derisive about the refusal of the courts to distinguish between oppressor and oppressed, and to grant more rights to the latter. And yet it is not always clear which is which. Some people believe that criminals, who in this country are disproportionately black, and who are, of course, the perpetrators of rape and other sex crimes, are an oppressed group. German judges before 1945 thought that Germans were an oppressed group and that Jews were their oppressors; and Stalin exterminated so-called oppressors by the tens of millions. In the United States today, Jews are being harmed by affirmative action for blacks and other favored minorities in higher education; concerns are voiced about the return of the numerus clausus and its effect on American Jews' sense of security. Would it really be a good thing for judges to pick their favorite groups, pronounce them oppressed and award them extra rights? Would it help women?

And just how oppressed are women in the United States in 1993? Can MacKinnon be oblivious to the changes in the status of women that have occurred in recent years, changes to which she has contributed through her tireless advocacy? Is she stuck in a time warp? Is pornography really what is holding women back? Can it be pornography that is responsible, as she suggests, for “femininity”? If censorship is the answer to women's problems, shouldn't we censor the forms of femininity-encouraging expression that women actually watch, such as television commercials in which housewives wax kitchen floors happily, or Doris Day movies?

The enormous increase in the number of working women has focused public attention on employment conditions, such as sexual harassment and the lack of generous provisions for child care and maternity leave, that disfavor female employees. That increase, both a cause and an effect of women's increasing emancipation from traditional household duties, has also increased women's demands for sexual freedom and reproductive autonomy, hence for secure protection against rape and for the right of abortion. Less dependent on men, better educated, better paid, more conscious of alternatives to marriage, women have become politically more assertive, more powerful. And so politicians cater to them; and some women are themselves influential politicians. The result has been a flood of laws, including rape-shield laws, laws criminalizing marital rape, laws forbidding sexual harassment and discrimination, all designed to help women who want sexual freedom, reproductive autonomy and successful careers.

There is still oppression of individual women in America. (Although MacKinnon's estimate that 38 percent of American women were sexually abused as children is probably a twofold exaggeration, the lower figure is still a shocker.) MacKinnon's conception of American women as eternal victims, cowed, fearful, intimidated and silenced—by pornography, yet—may once have been true, though I greatly doubt it; but today it is certainly false and patronizing. I do not know what has caused MacKinnon to become, and, more surprisingly, to remain, so obsessed with pornography, and so zealous for censorship. But let us not sacrifice our civil liberties on the altar of her obsession.

Ronald Dworkin (review date 21 October 1993)

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SOURCE: Dworkin, Ronald. “Women and Pornography.” New York Review of Books 40, no. 17 (21 October 1993): 36, 38, 40-2.

[In the following review, Dworkin outlines MacKinnon's arguments against pornography in Only Words, speculating on how her opinions affect national and state governments and the issue of censorship.]

1.

People once defended free speech to protect the rights of firebrands attacking government, or dissenters resisting an established church, or radicals campaigning for unpopular political causes. Free speech was plainly worth fighting for, and it still is in many parts of the world where these rights hardly exist. But in America now, free-speech partisans find themselves defending mainly racists shouting “nigger” or Nazis carrying swastikas or—most often—men looking at pictures of naked women with their legs spread open.

Conservatives have fought to outlaw pornography in the United States for a long time: for decades the Supreme Court has tried, though without much success, to define a limited category of “obscenity” that the Constitution allows to be banned. But the campaign for outlawing all forms of pornography has been given new and fiercer form, in recent years, by the feminist movement. It might seem odd that feminists have devoted such energy to that campaign: other issues, including abortion and the fight for women's equality in employment and politics, seem so much more important. No doubt mass culture is in various ways an obstacle to sexual equality, but the most popular forms of that culture—the view of women presented in soap operas and commercials, for example—are much greater obstacles to that equality than the dirty films watched by a small minority.

But feminists' concentration on pornography nevertheless seems easy to explain. Pornographic photographs, films, and videos are the starkest possible expression of the idea feminists most loathe: that women exist principally to provide sexual service to men. Advertisements, soap operas, and popular fiction may actually do more to spread that idea in our culture, but pornography is the rawest, most explicit symbol of it. Like swastikas and burning crosses, pornography is deeply offensive in itself, whether or not it causes any other injustice or harm. It is also particularly vulnerable politically: the religious right supports feminists on this issue, though on few others, so feminists have a much greater chance to win political campaigns for censorship than any of the other campaigns they fight.

And pornography seems vulnerable on principle as well. The conventional explanation of why freedom of speech is important is Mill's theory that truth is most likely to emerge from a “marketplace” of ideas freely exchanged and debated. But most pornography makes no contribution at all to political or intellectual debate: it is preposterous to think that we are more likely to reach truth about anything at all because pornographic videos are available. So liberals defending a right to pornography find themselves triply on the defensive: their view is politically weak, deeply offensive to many women, and intellectually doubtful. Why, then, should we defend pornography? Why should we care if people can no longer watch films of people copulating for the camera, or of women being whipped and enjoying it? What would we lose, except a repellent industry?

Professor Catherine MacKinnon's new book of three short essays, Only Words, offers a sharp answer to the last of these questions: society would lose nothing if all pornography were banned, she says, except that women would lose their chains. MacKinnon is the most prominent of the feminists against pornography. She believes that men want to subordinate women, to turn them into sexual devices, and that pornography is the weapon they use to achieve that result. In a series of highly charged articles and speeches, she has tried to talk or shock other women into that view. In 1986, she wrote that

Pornography constructs what a woman is as what men want from sex. This is what pornography means. … It institutionalizes the sexuality of male supremacy, fusing the eroticization of dominance and submission with the social construction of male and female. … Pornography is a harm of male supremacy made difficult to see because of its pervasiveness, potency, and principally, because of its success in making the world a pornographic place.1

Only Words is full of language apparently intended to shock. It refers repeatedly to “penises slamming into vaginas,” offers page after page of horrifying descriptions of women being whipped, tortured, and raped, and begins with this startling passage:

You grow up with your father holding you down and covering your mouth so that another man can make a horrible, searing pain between your legs. When you are older, your husband ties you to the bed and drips hot wax on your nipples and brings in other men to watch and makes you smile through it. Your doctor will not give you drugs he has addicted you to unless you suck his penis.

The book offers arguments as well as images, however, and these are presented as a kind of appeal, to the general public, from a judicial decision MacKinnon lost. In 1983, she and a feminist colleague, Andrea Dworkin, drafted an ordinance that outlawed or attached civil penalties to all pornography, defined as the “graphic sexually explicit subordination of women through pictures and/or words” that meet one or more of a series of tests (some of which are impossibly vague) including: “women are presented dehumanized as sexual object, things, or commodities”; or “women are presented as sexual objects experiencing sexual pleasure in rape, incest, or other sexual assaults”; or “in positions of sexual submission, servility, or display”; or “women's body parts—including but not limited to vaginas, breasts, or buttocks—are exhibited such that women are reduced to those parts.”

In 1984, largely through their efforts, a similar ordinance was adopted by the Indianapolis legislature. The ordinance included no exception for literary or artistic value, and it could plausibly be interpreted to outlaw not only classic pornography like John Cleland's Memoirs of a Woman of Pleasure, but a great deal else, including, for example, D. H. Lawrence's novels and Titian's Danae. In 1985, the Seventh Circuit Court of Appeals held the ordinance unconstitutional on the grounds that it violated the First Amendment's guarantees of free speech and press, and in 1986, the Supreme Court declined to overrule the Seventh Circuit's decision.2

Only Words offers several arguments in favor of the Indianapolis ordinance and against the Seventh Circuit's ruling, though some of these are run together and must be disentangled to make sense. Some of MacKinnon's arguments are old ones that I have already considered in these pages.3 But she devotes most of the book to a different and striking claim. She argues that even if the publication of literature degrading to women is protected by the First Amendment, as the Seventh Circuit declared, such material offends another, competing constitutional value: the ideal of equality embedded in the equal protection clause of the Fourteenth Amendment, which declares that no state may deprive any person of the equal protection of the laws. If so, she says, then the courts must balance the two constitutional values, and since pornography contributes nothing of any importance to political debate, they should resolve the conflict in favor of equality and censorship.

Unlike MacKinnon's other arguments, this claim has application far beyond the issue of pornography. If her analysis is right, national and state governments have much broader constitutional powers than most lawyers think to prohibit or censor any “politically incorrect” expression that might reasonably be thought to sustain or exacerbate the unequal positions of women or of racial, ethnic, or other minorities. I shall therefore concentrate on this new argument, but I shall first comment briefly on MacKinnon's more conventional points.

2.

In Only Words, she repeats the now familiar claim that pornography significantly increases the number of rapes and other sexual crimes. If that claim could be shown to be even probable, through reliable research, it would provide a very strong though not necessarily decisive argument for censorship. But in spite of MacKinnon's fervent declarations, no reputable study has concluded that pornography is a significant cause of sexual crime: many of them conclude, on the contrary, that the causes of violent personality lie mainly in childhood, before exposure to pornography can have had any effect, and that desire for pornography is a symptom rather than a cause of deviance.4 MacKinnon tries to refute these studies, and it is important to see how weak her arguments are. One of them, though repeated several times, is only a metaphysical sleight-of-hand. She several times insists that pornography is not “only words” because it is a “reality.” She says that because it is used to stimulate a sexual act—masturbation—it is sex, which seems to suggest that a film or description of rape is itself a kind of rape. But obviously that does not help to show that pornography causes rape in the criminal sense, and it is only the latter claim that can count as a reason for outlawing it.

Sometimes MacKinnon relies on breathtaking hyperbole disguised as common sense. “Sooner or later,” she declares, “in one way or another, the consumers want to live out the pornography further in three dimensions. Sooner or later, in one way or another, they do. It does make them want to; when they believe they can, when they feel they can get away, they do.” (Confronted with the fact that many men who read pornography commit no rapes, she suggests that their rapes are unreported.)5 Elsewhere she appeals to doubtful and unexamined correlations: In a recent article, for example, she declares that “pornography saturated Yugoslavia before the war,” and suggests that pornography is therefore responsible for the horrifying and widely reported rapes of Croatian and Muslim women by Serbian soldiers.6 But, as George Kennan has noted in these pages, rape was also “ubiquitous” in the Balkan wars of 1913, well before any “saturation” by pornography had begun.7

Her main arguments, however, are anecdotal: she cites examples of rapists and murderers who report themselves as having been consumers of pornography, like Thomas Shiro, who was sentenced to death in 1981 in Indiana for raping and then killing a young woman (and copulating with her corpse) and who pleaded that he was not responsible because he was a lifelong pornography reader. Such evidence is plainly unreliable, however, not just because it is so often self-serving, but because, as the feminists Deborah Cameron and Elizabeth Fraser have pointed out, criminals are likely to take their views about their own motives from the folklore of their community, whether it is sound or not, rather than from serious analysis of their motives. (Cameron and Fraser, who favor banning pornography on other grounds, concede that “arguments that pornography ‘causes’ violent acts are, indeed, inadequate.”)8

MacKinnon's second argument for censorship is a radically different one: that pornography should be banned because it “silences” women by making it more difficult for them to speak and less likely that others will understand what they say. Because of pornography, she says,

You learn that language does not belong to you. … You learn that speech is not what you say but what your abusers do to you. … You develop a self who is ingratiating and obsequious and imitative and aggressively passive and silent.9

In an earlier work she put the point even more graphically:

Who listens to a woman with a penis in her mouth? … Anyone who cannot walk down the street or even lie down in her own bed without keeping her eyes cast down and her body clenched against assault is unlikely to have much to say about the issues of the day. … Any system of freedom of expression that does not address a problem where the free speech of men silences the free speech of women … is not serious about securing freedom of expression.10

On this view, which has been argued more elaborately by others,11 it is women not pornographers who need First Amendment protection, because pornography humiliates or frightens them into silence and conditions men to misunderstand what they say. (It conditions them to think, for example—as some stupid judges have instructed juries in rape trials—that when a woman says no she sometimes means yes.) Because this argument cites the First Amendment as a reason for banning, not for protecting, pornography, it has the appeal of paradox. But it is premised on an unacceptable proposition: that the right to free speech includes a right to circumstances that encourage one to speak, and a right that others grasp and respect what one means to say.

These are obviously not rights that any society can recognize or enforce. Creationists, flat-earthers, and bigots, for example, are ridiculed in many parts of America now; that ridicule undoubtedly dampens the enthusiasm many of them have for speaking out and limits the attention others pay to what they say. Many political and constitutional theorists, it is true, insist that if freedom of speech is to have any value, it must include some right to the opportunity to speak: they say that a society in which only the rich enjoy access to newspapers, television, or other public media does not accord a genuine right to free speech. But it goes far beyond that to insist that freedom of speech includes not only opportunity to speak to the public but a guarantee of a sympathetic or even competent understanding of what one says.

MacKinnon's third argument centers on the production rather than the distribution or consumption of pornography: she argues that women who act in pornographic films suffer actual, direct sexual subordination, compounded by the fact that their degradation is recorded for posterity. She points out that some women are coerced or tricked into making pornographic films, and mentions the notorious “snuff” films which are said to record the actual murder of women. But of course all these crimes can be prosecuted without banning pornography, and, as MacKinnon herself concedes, it would be wrong to “rely on the fact that some pornography is made through coercion as a legal basis for restricting all of it.” Laws banning child pornography are indeed justified on the grounds that children may be damaged by appearing in pornographic films. But these laws, like many others that treat children differently, suppose that they are not competent to understand and consent to acts that may well be against their present and future interests.

It would plainly be a mistake to assume that women (or men) who appear in pornographic films do so unwillingly. Our economic system does, it is true, make it difficult for many women to find satisfactory, fulfilling employment, and may well encourage some of them to accept roles in pornographic films they would otherwise reject. The system, as MacKinnon grimly notes, works to the benefit of the pornographers. But it also works to the benefit of many other employers—fast-food chains, for example—who are able to employ women at low wages. There is great economic injustice in America, but that is no reason for depriving poor women of an economic opportunity some of them may prefer to the available alternatives.

I should mention a fourth consideration that MacKinnon puts forward, though it is difficult to find an argument in it. She says that much pornography is not just speech—it is not “only words”—because it produces erections in men and provides them with masturbatory fantasies. (She warns her readers never to “underestimate the power of an erection.”) Her view of the psychology of sexual arousal is mechanical—she thinks men who read pornography “are sexually habituated to its kick, a process that is largely unconscious and works as primitive conditioning, with pictures and words as sexual stimuli.” In any case, she thinks that pornography's physiological power deprives it of First Amendment protection: “An orgasm is not an argument,” she says, “and cannot be argued with. Compared with a thought, it raises far less difficult speech issues, if it raises any at all.” But that seems a plain non sequitur: a piece of music or a work of art or poetry does not lose whatever protection the First Amendment affords it when some people find it sexually arousing, even if that effect does not depend on its argumentative or aesthetic merits, or whether it has any such merits at all.

3.

The continued popularity of bad arguments such as those in Only Words testifies to the strength of the real but hidden reason why so many people despise pornography and want to ban it. The sado-masochistic genre of pornography, particularly, is so comprehensibly degrading that we are appalled and shamed by its existence. Contrary to MacKinnon's view, almost all men, I think, are as disgusted by it as almost all women. Because those who want to forbid pornography know that offensiveness alone does not justify censorship, however, they disguise their repulsion as concern that pornography will cause rape, or silence women, or harm the women who make it.

In the most interesting parts of Only Words, MacKinnon offers a new argument that is also designed to transcend mere repulsion. She says that the way in which pornography is offensive—that it portrays women as submissive victims who enjoy torture and mutilation—contributes to the unequal opportunities of women in American society, and therefore contradicts the values meant to be protected by the equal protection clause. She concedes, for the sake of this argument, that in spite of its minimal contribution to intellectual or political debate, pornography is protected under the First Amendment. But that First Amendment protection must be balanced, she says, against the Fourteenth Amendment's requirement that people be treated equally. “The law of equality and the law of freedom of speech are on a collision course in this country,” she says, and she argues that the balance, which has swung too far toward liberty, must now be redressed.

The censorship of pornography, she says, should be regarded as like other kinds of government action designed to create genuine equality of opportunity. It is now accepted by almost everyone that government may properly prohibit discrimination against blacks and women in employment and education, for example. But such discrimination may take the form, not merely of refusing them jobs or university places, but of subjecting those who do manage to find jobs or places to an environment of insult and prejudice that makes work or education less attractive or even impossible. Government prohibits racial or sexual harassment at work—it punishes employers who subject blacks to racial insult or women to sexual pressures, in spite of the fact that these objectionable practices are carried out through speech—and many universities have adopted “speech codes” that prohibit racial insults in classrooms or on campus.

Banning or punishing pornography, MacKinnon suggests, should be regarded as a more general remedy of the same kind. If pornography contributes to the general subordination of women by picturing them as sexual or servile objects, as she believes it does, then eliminating pornography can also be defended as serving equality of opportunity even though it restricts liberty.12 The “egalitarian” argument for censorship is in many ways like the “silencing” argument I described earlier: it supposes not that pornography significantly increases sexual crimes of violence, but that it works more insidiously to damage the standing and power of women within the community. But the “egalitarian” argument is in two ways different and apparently more cogent.

First, it claims not a new and paradoxical conflict within the idea of liberty, as the silencing argument does, but a conflict between liberty and equality, two ideals that many political philosophers think are often in conflict. Second, it is more limited in its scope. The “silencing” argument supposes that everyone—the bigot and the creationist as well the social reformer—has a right to whatever respectful attention on the part of others is necessary to encourage him to speak his mind and to guarantee that he will be correctly understood; and that is absurd. The “egalitarian” argument, on the contrary, supposes only that certain groups—those that are victims of persisting disadvantage in our society—should not be subjected to the kind of insult, harassment, or abuse that has contributed to that disadvantage.

But the “egalitarian” argument is nevertheless much broader and more dangerous in its scope than might first appear. The analogies MacKinnon proposes—to sexual harassment laws and university speech codes—are revealing, because though each of these forms of regulation might be said to serve a general egalitarian purpose, they are usually defended on much more limited and special grounds. Laws against sexual harassment are designed to protect women not from the diffuse effects of whatever derogatory opinions about them are part of the general culture, but from direct sexual taunts and other degrading language in the workplace.13 University speech codes are defended on a different ground: they are said to serve an educational purpose by preserving the calm and reflective atmosphere of mutual respect and of appreciation for a diversity of cultures and opinions that is essential for effective teaching and research.

I do not mean that such regulations raise no problems about free speech. They do. Even if university speech codes, for example, are enforced fairly and scrupulously (and in the charged atmosphere of university politics they often are not) they sometimes force teachers and students to compromise or suppress their opinions by erring on the side of safety, and some speech codes may actually be unconstitutional. I mean only that constraints on speech at work and on the campus can be, defended without appealing to the frightening principle that considerations of equality require that some people not be free to express their tastes or convictions or preferences anywhere. MacKinnon's argument for banning pornography from the community as a whole does presuppose this principle, however, and accepting her argument would therefore have devastating consequences.

Government could then forbid the graphic or visceral or emotionally charged expression of any opinion or conviction that might reasonably offend a disadvantaged group. It could outlaw performances of The Merchant of Venice, or films about professional women who neglect their children, or caricatures or parodies of homosexuals in nightclub routines. Courts would have to balance the value of such expression, as a contribution to public debate or learning, against the damage it might cause to the standing or sensibilities of its targets. MacKinnon thinks that pornography is different from other forms of discriminatory or hostile speech. But the argument she makes for banning it would apply to much else. She pointedly declares that freedom of speech is respected too much by Americans and that the Supreme Court was right in 1952 when it sustained a prosecution of anti-Semitic literature—a decision it has since abandoned14—and wrong in 1978 when it struck down an ordinance banning a Nazi march in Illinois.15

So if we must make the choice between liberty and equality that MacKinnon envisages—if the two constitutional values really are on a collision course—we should have to choose liberty because the alternative would be the despotism of thought-police.

But is she right that the two values do conflict in this way? Can we escape despotism only by cheating on the equality the Constitution also guarantees? The most fundamental egalitarian command of the Constitution is for equality throughout the political process. We can imagine some compromises of political equality that would plainly aid disadvantaged groups—it would undoubtedly aid blacks and women, for example, if citizens who have repeatedly expressed racist or sexist or bigoted views were denied the vote altogether. That would be unconstitutional, of course; the Constitution demands that everyone be permitted to play an equal part in the formal process of choosing a president, a Congress, and other officials, that no one be excluded on the ground that his opinions or tastes are too offensive or unreasonable or despicable to count.

Elections are not all there is to politics, however. Citizens play a continuing part in politics between elections, because informal public debate and argument influences what responsible officials—and officials anxious for re-election—will do. So the First Amendment contributes a great deal to political equality: it insists that just as no one may be excluded from the vote because his opinions are despicable, so no one may be denied the right to speak or write or broadcast because what he will say is too offensive to be heard.

That amendment serves other goals as well, of course: free speech helps to expose official stupidity and corruption, and it allows vigorous public debate that sometimes generates new ideas and refutes old ones. But the First Amendment's egalitarian role is independent of these other goals: it forbids censoring cranks or neo-Nazis not because anyone thinks that their contributions will prevent corruption or improve public debate, but just because equality demands that everyone, no matter how eccentric or despicable, have a chance to influence policies as well as elections. Of course it does not follow that government will in the end respect everyone's opinion equally, or that official decisions will be equally congenial to all groups. Equality demands that everyone's opinion be given a chance for influence, not that anyone's opinion will triumph or even be represented in what government eventually does.

The First Amendment's egalitarian role is not confined, however, to political speech. People's lives are affected not just by their political environment—not just by what their presidents and legislators and other public officials do—but even more comprehensively by what we might call their moral environment. How others treat me—and my own sense of identity and self-respect—are determined in part by the mix of social conventions, opinions, tastes, convictions, prejudices, life styles, and cultures that flourish in the community in which I live. Liberals are sometimes accused of thinking that what people say or do or think in private has no impact on anyone except themselves, and that is plainly wrong. Someone to whom religion is of fundamental importance, for example, will obviously lead a very different and perhaps more satisfying life in a community in which most other people share his convictions than in a dominantly secular society of atheists for whom his beliefs are laughable superstitions. A woman who believes that explicit sexual material degrades her will likely lead a very different, and no doubt more satisfying, life among people who also despise pornography than in a community where others, including other women, think it liberating and fun.

Exactly because the moral environment in which we all live is in good part created by others, however, the question of who shall have the power to help shape that environment, and how, is of fundamental importance, though it is often neglected in political theory. Only one answer is consistent with the ideals of political equality: that no one may be prevented from influencing the shared moral environment, through his own private choices, tastes, opinions, and example, just because these tastes or opinions disgust those who have the power to shut him up or lock him up. Of course, the ways in which anyone may exercise that influence must be limited in order to protect the security and interests of others. People may not try to mold the moral climate by intimidating women with sexual demands or by burning a cross on a black family's lawn, or by refusing to hire women or blacks at all, or by making their working conditions so humiliating as to be intolerable.

But we cannot count, among the kinds of interests that may be protected in this way, a right not to be insulted or damaged just by the fact that others have hostile or uncongenial tastes, or that they are free to express or indulge them in private. Recognizing that right would mean denying that some people—those whose tastes these are—have any right to participate in forming the moral environment at all. Of course it should go without saying that no one has a right to succeed in influencing others through his own private choices and tastes. Sexists and bigots have no right to live in a community whose ideology or culture is even partially sexist or bigoted: they have no right to any proportional representation for their odious views. In a genuinely egalitarian society, however, those views cannot be locked out, in advance, by criminal or civil law: they must instead be discredited by the disgust, outrage, and ridicule of other people.

MacKinnon's “egalitarian” argument for censorship is important mainly because it reveals the most important reason for resisting her suggestions, and also because it allows us to answer her charge that liberals who oppose her are crypto-pornographers themselves. She thinks that people who defend the right to pornography are acting out of self-interest, not principle—she says she has been driven to the conclusion that “speech will be defined so that men can have their pornography.” That charge is based on the inadequacy of the conventional explanation, deriving from John Stuart Mill, that pornography must be protected so that truth may emerge. What is actually at stake in the argument about pornography, however, is not society's chance to discover truth, but its commitment to the very ideal of equality that MacKinnon thinks underrated in the American community. Liberals defend pornography, though most of them despise it, in order to defend a conception of the First Amendment that includes, as at least one of its purposes, protecting equality in the processes through which the moral as well as the political environment is formed. First Amendment liberty is not equality's enemy, but the other side of equality's coin.

MacKinnon is right to emphasize the connection between the fight over pornography and the larger, more general and important, argument about the freedom of Americans to say and teach what others think politically incorrect. She and her followers regard freedom of speech and thought as an elitist, inegalitarian ideal that has been of almost no value to women, blacks, and others without power; they say America would be better off if it demoted that ideal as many other nations have. But most of her constituents would be appalled if this denigration of freedom should escape from universities and other communities where their own values about political correctness are now popular and take root in the more general political culture. Local majorities may find homosexual art or feminist theater just as degrading to women as the kind of pornography MacKinnon hates, or radical or separatist black opinion just as inimical to racial justice as crude racist epithets.

That is an old liberal warning—as old as Voltaire—and many people have grown impatient with it. They are willing to take that chance, they say, to advance a program that seems overwhelmingly important now. Their impatience may prove fatal for that program rather than essential to it, however. If we abandon our traditional understanding of equality for a different one that allows a majority to define some people as too corrupt or offensive or radical to join in the informal moral life of the nation, we will have begun a process that ends, as it has in so many other parts of the world, in making equality something to be feared rather than celebrated, a mocking, “correct” euphemism for tyranny.

Notes

  1. Catherine MacKinnon, “Pornography, Civil Rights and Speech,” reprinted in Catherine Itzin, editor, Pornography: Women, Violence and Civil Liberties: A Radical View (Oxford University Press, 1992), page 456. (Quotations are from 461-463.)

  2. American Booksellers Ass'n v. Hudnut, 771 F. 2d 323 (1985), aff'd 475 US 1001 (1986). In a decision that MacKinnon discusses at length, a Canadian court upheld a similar Canadian statute as consistent with that nation's Charter of Rights and Freedoms. I discuss that decision in “The Coming Battle over Free Speech,” The New York Review, June 11, 1992.

  3. “Two Concepts of Liberty,” in Isaiah Berlin: A Celebration, edited by Edna and Avishai Margalit (University of Chicago Press, 1991), and printed in The New York Review of Books, August 15, 1991.

  4. Among the prestigious studies denying the causal link MacKinnon claims are the 1970 report of the National Commission on Obscenity and Pornography, appointed by Lyndon Johnson to consider the issue, the 1979 report of the Williams Commission in Britain, and a recent year-long British study which concluded that “the evidence does not point to pornography as a cause of deviant sexual orientation in offenders. Rather it seems to be used as part of that deviant sexual orientation.” MacKinnon and other feminists cite the voluminous, two-volume report of the infamous Meese Commission, which was appointed by Reagan to contradict the findings of the earlier Johnson-appointed group and was headed by people who had made a career of opposing pornography. The Meese Commission duly declared that although the scientific evidence was inconclusive, it believed that pornography (vast tracts of which were faithfully reprinted in its report) did indeed cause crime. But the scientists on whose work the report relied protested, immediately after its publication, that the commission had misunderstood and misused their work. (For a thorough analysis of all these and other studies, see Marcia Pally, Sense and Censorship: The Vanity of Bonfires (Americans for Constitutional Freedom, 1991). MacKinnon also appeals to legal authority: she says, citing the Seventh Circuit opinion holding her antipornography statute unconstitutional, that “not even courts equivocate over [pornography's] carnage anymore.” But this is disingenuous: that opinion assumed that pornography is a significant cause of sexual crime only for the sake of the argument it made, and it cited, among other material, the Williams Commission report, as support for the Court's own denial of any such demonstrated causal connection.

  5. In “Pornography, Civil Rights and Speech,” MacKinnon said, “It does not make sense to assume that pornography has no role in rape simply because little about its use or effects distinguishes convicted rapists from other men, when we know that a lot of those other men do rape women; they just never get caught.” (page 475).

  6. “Turning Rape Into Pornography: Postmodern Genocide,” Ms., July/August 1993, p. 28.

  7. “The Balkan Crisis: 1913 and 1993,” The New York Review, July 15, 1993.

  8. Catherine Itzin, editor, Pornography: Women, Violence and Civil Liberties, p. 359. At one point MacKinnon offers a surprisingly timid formulation of her causal thesis: she says that “there is no evidence that pornography does no harm.” The same negative claim can be made of course, about any genre of literature. Ted Bundy, the serial murderer who said he had read pornography since his youth, and whom feminists often cite for that remark, also said that he had studied Dostoevsky's Crime and Punishment. Even MacKinnon's weak statement is controversial, moreover. Some psychologists have argued that pornography, by providing a harmless outlet for violent tendencies, may actually reduce the amount of such crime. See Patricia Gillian, “Therapeutic Uses of Obscenity,” and other articles reprinted and cited in Censorship and Obscenity, edited by Rajeev Dhavan and Christie Davies (Rowman and Littlefield, 1978). And it is at least relevant that nations with the most permissive laws about pornography are among those with the least sexual crime, (See Marjorie Heins, Sex, Sin, and Blasphemy, New Press, 1993, p. 152) though of course that fact might be explained in other ways.

  9. MacKinnon's frequent rhetorical use of “you” and “your,” embracing all female readers; invites every woman to see herself as a victim of the appalling sexual crimes and the abuses she describes, and reinforces an implicit suggestion that women are, in pertinent ways, all alike: all passive, innocent, and subjugated.

  10. Reprinted in Catherine Itzin, editor, Pornography: Women, Violence and Civil Liberties, p. 483-484.

  11. See Frank I. Michelman, “Conceptions of Democracy in American Constitutional Argument: The Case of Pornography Regulation,” Tennessee Law Review Vol. 56, No. 2 (1989), pp. 303-304.

  12. Not all feminists agree that pornography contributes to the economic or social subordination of women. Linda Williams, for example, in the Fall, 1993 issue of the Threepenny Review, claims that “the very fact that today a variety of different pornographies are now on the scene in mass market videos is good for feminism, and that to return to the time of repressing pornographic sexual representations would mean the resurgence of at least some elements of an underground tradition … of misogyny.”

  13. See Barbara Presley Noble, “New Reminders on Harassment,” The New York Times, August 15, 1993, p. 25.

  14. Beauharnais v. Illinois, 343 US 250 (1952), abandoned in New York Times v. Sullivan, 376 US 254 (1964) at 268-269.

  15. See Smith v. Collins, 439 US 916 (1978).

Roger Scruton (review date 1 November 1993)

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SOURCE: Scruton, Roger. “Kiss Me, Cate.” National Review 45, no. 21 (1 November 1993): 61-2.

[In the following review of Only Words, Scruton enumerates the weaknesses of MacKinnon's case against pornography and free speech and asserts that her arguments function to incite hatred against men.]

I read Only Words with horrified amazement—at the thing against which Professor MacKinnon rails, and at the manner of her railing. I knew in outline of the American culture of pornography, and was familiar from her other writings with Miss MacKinnon's hate-intoxicated style. But never had I guessed at the relation between them—the magnetic force with which pornography grips the feminist imagination, and the reckless obsession that results from this. Here, in 150 relentless pages, are the two most degrading of present-day America's sins against the spirit: pornography and misandry. Miss MacKinnon's diatribe is a vivid instance of what she condemns, a dirtying of life and love that deploys all the dehumanizing tricks of the pornographer, blocking out the soul with the hate-filled image of the body. I fully agree with her that pornography should be banned; and there is no better candidate for the bonfire than this book.

It would never have occurred to earlier generations of Americans that the Constitution could be used to forbid the expression of opinions judged “offensive” by a self-chosen elite, or to permit the propagation of material that is offensive to everyone. It went without saying that the First Amendment exists in order to protect free discussion of matters of public concern, not to permit the wholesale distribution of pornographic images which contribute to the free discussion of nothing. Yet today the United States is perhaps the only country in the civilized world where quite reasonable opinions about matters of the greatest importance—such as race and sexuality—cannot be expressed without risk of legal or disciplinary action. And it is one of the few countries where access to pornography of a kind that beggars all description, save that bestowed on it by Miss MacKinnon, is regarded as a constitutional “right.”

Various factors have contributed to the rise of pornocracy in America. One is the effect of liberal activism on the judicial process. It is now widely supposed that the Constitution does not mean what the Founding Fathers intended it to mean, still less what the reasonable citizen would understand it to mean. The Constitution means what the liberal jurists decide—which is to say, whatever offers the greatest offense to the moral majority. It is vain to show that pornography is not speech in the sense intended by the First Amendment, vain to show that it is intrinsically degrading and pleases precisely because it degrades, vain to show that neither the Founders nor their successors would have had the slightest desire to permit it, vain to show that the law depends upon a tacit respect for decency which, if too much provoked, will bring about the end of constitutional government. The liberal establishment has decided that pornography is so offensive to the conservative conscience that it must at all costs be protected by law. Pornography has therefore been defined as “speech” for the purpose of the First Amendment, just as words used to express conservative opinions have been defined as “discrimination” for the purpose of the Fourteenth.

Pornography would never have enjoyed the protection of the law, however, without the influence of another force: the sexual liberation of the Sixties, which entirely changed the language in which our most important experiences are discussed. We no longer “make love”: instead we “have sex,” and the idiom is already pornographic, a deliberate denial of the personal bond and a focusing on the body and its functions. Sexual behavior is described with a medicinal explicitness that removes the air of shame and mystery. Reduced to a bodily sensation, desire is emancipated from morality, and placed on display in the supermarket of pleasure. Pornography merely reinforces the view of sexual love that is now official. It is a direct avenue to the common goal: namely, the avoidance of love.

In a pornocracy everything disappears that makes it possible for women to trust men, or for men to leave the sexual playground. With the abolition of shame, modesty, hesitation, and innocence there is no longer the necessary barrier between the sexes. That which should be breached by love is first eaten away by curiosity. Sexual desire was once a maturing force, which lifted the adolescent from the world of self-centered pleasure and prepared him for a true commitment. Now it scarcely deserves the name “desire,” being a routine in which the other need be no more than a partner. The individual is no longer the object of desire; for desire has been generalized, and redefined as a bodily function. Pornography displays this transformation; but it is endorsed by almost every self-appointed “sexologist” in America, from Alfred Kinsey to Richard Posner.

It is hardly surprising that women should be enraged by pornography. For the reduction of sex to a commodity jeopardizes everything that gives a woman confidence in her sexual feelings: love, commitment, marriage, and an enduring father to her children. The intemperate fury of the American feminist conveys the heartbroken recognition that those things are no longer available except on temporary loan to the very attractive. The result is a hatred of men that knows no bounds, together with an urgent desire to warn against the common enemy. To this end activists such as Karen Hall, Andrea Dworkin, and Catharine MacKinnon are at work on every campus, instilling into the minds of young women the thought that men are rapists, that a sexual advance is the first step toward a violation, and that women are at best the “survivors” of an encounter which they will certainly not enjoy. That which to an outside observer might appear comic—the code being enforced at Antioch College, for instance—is in reality a tragedy of the highest order. For it shows how far the trust between man and woman has been destroyed, and how difficult it will be for the next generation to achieve the only known form of human happiness.

Whether Hell knows a fury greater than Catharine MacKinnon I cannot say. But Only Words surely goes as far in the direction of inciting hatred toward its target as is legally possible. Spitting out obscenities, and crowding her pages with pornographic descriptions of men at work, she implies that only a thin veil of prohibition arrests my desire to rape, torture, humiliate, and dismember the next woman who catches my eye. Her frequent descriptions of the sexual act are as impersonal, violent, and reifying as the pornography she condemns, and the assumption throughout is that there is not a man on earth who would really trouble himself to gain a woman's consent, did not the law require it. The last time I encountered group libel of this kind was in a recent showing in Poland of the film Jew Süss, made at Goebbels's instigation in order to fan the flames of anti-Semitism. All I can say is that Jew Süss was mild by comparison.

The book has other weaknesses, besides its moral depravity. The first is Miss MacKinnon's assumption that only women are victims of pornography: yet men too are victims when, as she puts it in a rare moment of poetry, “that which should be given is stolen and sold.” Her ideologically motivated bias leads to a nonsensical definition of pornography—a definition that is none the better for having been worked out in conjunction with Andrea Dworkin and passed through the Illinois legislature (though not through the Supreme Court). According to Miss MacKinnon, pornography consists in “graphic sexually explicit materials that subordinate women through pictures or words.” It says a lot about America that a high-ranking academic jurist can propose a law that forbids the degradation of women while allowing that of men. Does she really imagine that there is no pornography in which men are bound and humiliated, whether by other men or by punitive females? It could be that images of the sexual degradation of men have a certain appeal for her. Nevertheless, it shows intellectual as well as moral blindness not to recognize that they are part of the phenomenon that she seeks to outlaw.

The second weakness is revealed most clearly in the last of the three essays in the book, devoted to the concept of free speech. It is permissible not to mention Spinoza, Locke, Mill, Stephen, and Berlin, but surely not to write as though they had never existed. Miss MacKinnon seems not to have thought about this issue until her encounter with pornography. She writes as though nobody had ever argued that freedom of speech does not include the freedom to shout “fire” in a crowded theater, and as though the attempt had never been made to distinguish the legitimate expression of unpopular views from the seditious fanning of emotion. This suggests a cavernous ignorance not only of philosophical literature, but also of English common law.

Through the dim fog of her discussion I came to see that she is not really interested in freedom at all, except insofar as it is the enemy of the chimerical sexual equality that she desires. The age-old conflict between freedom and equality (between the First and the Fourteenth Amendments) erupts into her prose with all the more vigor in that she is not truly aware of it. All she can see is the need to remove speech from the dominant sex, so that the victim can be heard: “the less speech you have, the more the speech of those who have it keeps you unequal; the more the speech of the dominant is protected, the more dominant they become and the less the subordinated are heard from.” Here you have it in a nutshell: the old marxisant excuse for oppressing the class enemy. For Miss MacKinnon the relation between man and woman is one of war. Love, courtship, and marriage are at best the ideology of male domination; the reality is rape. The battle against pornography is not fought in order to restore the bond between woman and man: after all, “bond” means bondage. The battle is against men as such, and if the moral order is destroyed in the course of it, so much the worse for the moral order. As she inimitably expresses the point: “How many women's bodies have to stack up here even to register against male profit and pleasure presented as First Amendment principle?”

If the battle against pornography is fought with prose like that, then it is already lost.

Kyle A. Pasewark (review date 17 November 1993)

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SOURCE: Pasewark, Kyle A. “Who May Speak?: Amending the First Amendment.” Christian Century 110, no. 33 (17 November 1993): 1164-67.

[In the following review, Pasewark considers how MacKinnon's arguments will affect the First Amendment of the U.S. Constitution and asserts that Only Words “has the appearance, both in form and content, of a hastily constructed affair born more of anger, invective and deadlines than careful thought.”]

Only Words is a disturbing book—for better and for worse. For better, MacKinnon aims at the heart of an important and heated debate: what may or may not be said in the classroom, in the pulpit or on the street corner as well as what may or may not be shown on screen, written in books or depicted in the arts. In the end, however, MacKinnon contributes only more heat to this debate. In place of argument, she offers hyperbole; instead of coming to grips with her opponents' arguments, she piles up words of denunciation. If we have the right to expect more considered reflection from a full professor at a major law school, we should also expect more careful editing from a major university press—the book's endnotes should at least be numbered correctly so that they consistently correspond with the text. Only Words has the appearance, both in form and content, of a hastily constructed affair born more of anger, invective and deadlines than careful thought. It is, though, no less worrisome for that.

MacKinnon's central argument is that the range of the First Amendment prohibition on “abridging the freedom of speech, or of the press” is unconscionably wide; current judicial interpretation of the amendment protects speech that should not be allowed. On what grounds should speech be prohibited? MacKinnon offers two answers. First, all speech that “does what it says,” and what it says glorifies domination, is outside the range of legitimately protected expression. Primary in this category are “pornography” and “hate speech.” This first assertion ultimately collapses into a second more overarching claim: speech with “antiegalitarian meaning and devastating consequences,” which are finally identical for MacKinnon, should also be banished. MacKinnon's position rests on her fundamental, and unusual, contention that the equal-protection clause of the 14th Amendment provides ample justification to restrict the First Amendment. Not only is the First Amendment less important than the 14th, the speech of those deemed “powerful” is less worthy of protection than that of those deemed “powerless.”

MacKinnon develops her first rationale for prohibiting speech initially in a discussion of pornography. She marshals several arguments against pornography, most of which have been made before, not only by MacKinnon but also by the political right. But her primary thesis is that pornography should be eradicated because it is speech that “does what it says,” that is, it not only speaks the subordination of women, its very production is an act of subordination. Speech that either is or results in domination or subordination (racial and sexual “hate speech” are included in this broad category) is fair game for the law, according to MacKinnon; it should be outside the protection of the First Amendment.

MacKinnon's case is built on the complete erasure of any distinction between the commission of an act and the artistic depiction of it, not to mention the difference between the depiction (or even reporting) of an activity and the endorsement of it. In place of these distinctions, MacKinnon substitutes “sexual explicitness” and evidence of harm as criteria to distinguish protected from unprotected speech. The extent of sexual explicitness is, apparently, the only distinction between the disturbing brutality of A Clockwork Orange or Blue Velvet and the vast majority of pornographic films. The mere presence of an undefined level of explicitness is why MacKinnon supports the banishment even of pornography “that shows no overt violence.” Sexual explicitness is itself domination and subordination and should be outside First Amendment protection.

A second criterion by which MacKinnon thinks she is able to designate pornography as unprotected and illegal speech is that it does harm. MacKinnon's evidence here is extremely weak; certainly it does not meet any judicial standard of clear and present danger, and that is a matter for concern. If she is willing to allow three anecdotes of criminal behavior by self-professed pornography “addicts” to pass as compelling evidence of the universal harm done by pornography—and thus as justification for its elimination—then surely Boyz in the Hood, one of the finest films in the past five years, must be censored even sooner, since its release was accompanied by in-theater violence. In essence, MacKinnon makes all artists liable for every interpretation of their work, no matter how outrageous or unconscionable. Her implicit appeal to a less than precise idea of “public order” reveals MacKinnon's affinity here, as elsewhere, with the far right.

There is even more cause for concern. Finally, not even a division between fact and fiction is relevant to the protected status of speech in MacKinnon's legal universe. Her indictment of violent pornography—“In the visual materials, [viewers] experience [violence] being done by watching it being done. … Men [experience orgasms] doing this”—applies equally to nonfictional material.

This stunning ignorance of male sexuality also allows her to claim that aggression and the desire to violate women are activated only by pictures and words, and automatically so. No interpretation, whether it leads to revulsion or delight, is possible—dirty pictures are addressed not to the mind but “directly to the penis” in a process that “is largely unconscious and works as primitive conditioning, with pictures and words as sexual stimuli.” Filmed brutality of actual, not fictional, violence could not horrify men; it could only stimulate them. It is not at all clear how, by this standard, a documentary presentation of the brutalization of Bosnian Muslim women could escape the censor's eyes.

To be sure, not all films or works of literature that “do what they say” are sexually explicit. But sexual explicitness is an arbitrary dividing line for protected speech. MacKinnon is coolly, almost disinterestedly dismissive of liberal defenses of First Amendment rights. One she repudiates speedily and without argument is the claim that banning speech at the margins, speech that few care for (such as pornography and hate speech), sets a corrosive precedent that eventually allows the eradication of speech that is rational, meaningful and truthful. A sad but illuminating irony of Only Words is that, after summarily rejecting this “slippery slope” hypothesis, MacKinnon proves its accuracy. Only Words progresses from advocating a ban on pornography, to pressing for a ban on hate speech (both vaguely defined), to defending the legitimacy of eliminating all anti- and nonegalitarian speech because, like pornography and hate speech, antiegalitarian speech also advocates and extends systems of subordination. A slippery slope indeed, and one that ends far beyond the coordinate marked “sexually explicit.”

Indeed, it is sometimes unclear how Only Words can avoid falling victim to its own egalitarian standard and especially its prohibition against hate speech. Without a scintilla of evidence, MacKinnon talks blithely of “the male rape fantasy” and “the ultimate male bond, that between pimp and john.” Such claims are reckless and false—not to mention insulting. If taken seriously they mean, for example, that men hearing about sexual crimes against women really experience pleasure rather than sinking feelings of dread, nausea, helplessness or anger that men are capable of doing such things to women. MacKinnon's divisive language equally insults any woman who has confided about her own violation to any man; according to MacKinnon, she has been speaking with the enemy; “your violation his arousal, your torture his pleasure.” MacKinnon's prescription is for a separation of—and antagonism between—the sexes on the basis of the moral inferiority of men.

Where have we heard such language before? We have heard it when women, blacks and others have been spoken of as inferior. In those cases MacKinnon seeks to ban subordinating language because it is hate speech. Yet how does her own vitriol gain exemption from the same ban? It is here that MacKinnon's egalitarianism is decisive: she maintains that it is a fiction that “equality could be achieved while the First Amendment protected the speech of inequality.” In the absence of full social equality MacKinnon proposes to eradicate unequal speech. Apparently, only those who dominate are capable of hatred; in any case, she maintains that only they are capable of hate speech. She stands opposed to standard First Amendment interpretation in which, she maintains contemptuously, “the position of those with less power is equated with the position of those with more power as if sexual epithets against straight white men were equivalent to sexual epithets against women” (emphasis added). It is not the content of speech that makes it hateful or not, subject to legal restriction or not, but its targets—the powerful or the powerless.

MacKinnon's project defies common sense. Is it plausible to say that a person who can prevent another from speaking is “dominated,” while the person who is prohibited from speaking is a “dominator”? To answer yes is to deny that an act of suppression is also an act of domination, and such blindness is at the very center of fanaticism. If, on the other hand, the obvious is granted—namely, that suppression of speech is itself an act of domination—MacKinnon's argument is self-defeating. The moment the speech of the dominant is prohibited, they are by definition no longer dominant but dominated exactly to the extent that they are prevented from speaking. MacKinnon's egalitarian standard devours itself. If one were to follow the logic of the argument, those prevented from speaking—just because they are impeded—immediately gain the right to determine the range of acceptable speech and to prohibit whatever speech they please. Round and round it goes.

That MacKinnon does not follow her own logic to its conclusion exemplifies a troubling trend: the assumed right to speak is related directly to a showing of one's oppression. If one cannot claim to be oppressed or victimized, one has nothing to say that is worth hearing. This tendency is disturbing, but not because our culture is trying to turn an ear to persons or groups that have been ignored or oppressed. That is long overdue. But the purpose in discussing social domination is to overcome it—and this point now seems lost. There is, in fact, less and less incentive to rise above the status of being a victim because, if one agrees with MacKinnon, as soon as any person or group succeeds in not being a victim, that person or group is dismissed from cultural attention.

Contemporary public discussion is driven increasingly not by a desire to escape oppression, but by the need for everyone to assert that he or she is dominated in order to earn the right to speak. One suspects that much of the flap among men about “male-bashing” is motivated by some men's felt need to be included among the “victims.” Suffering is no longer something that must be conquered; even small victories of justice cannot be acknowledged without the victor's ejection from public speech. Suffering has become the admission ticket to the privilege of speech. It is this perversion of purpose that fuels a broad defiance of common sense—that allows people to give speech after speech while claiming to be silenced.

Other consequences follow this peculiar use of oppression. Among them is MacKinnon's simplistic analysis of dominance and its relations. For MacKinnon there are dominant and dominated groups—period. She shows no inkling that a group that dominates certain arenas may itself be dominated in others. It seems evident, for example, that women's continuing susceptibility to sexual violence does not imply that all women are economically disadvantaged. Such an idea does not occur to MacKinnon. More disappointing, Only Words gives no hint that MacKinnon believes it might be possible to construct social or personal relations between groups or individuals on any ground other than domination—a sad prospect indeed.

Armed with these claims about domination, MacKinnon insists that the 14th Amendment authorizes not the “stupid theory of equality,” that is, formal equality of rights, but the intelligent theory of substantive equality. How intelligent is substantive equality as a criterion for determining who is allowed to say what? Even to probe that question is difficult since, for MacKinnon, there can be no discussion about the validity of egalitarianism itself; she grants and removes the possibility for such a debate in the space of a single paragraph. But, in any case, one wants to know what exactly “substantive equality” means. Does it mean equality of income, goods, opportunity, health care, home size? All of these and more? None of them?

Further, one wants to know who are the relevant groups to be made substantively equal. MacKinnon draws the line between white men and everyone else. The result is less than credible. It allows her to maintain that male American Nazis, for example, are socially dominant, while all women are dominated. By what possible yardstick? Certainly not with reference to the members of reactionary groups themselves, who generally join together precisely because they feel impotent—and fortunately, for the most part they are. MacKinnon certainly can't arrive at such a conclusion by claiming that no women have been published by Harvard University Press or are full professors of law. Even MacKinnon admits that it is a “rather obvious reality that groups are made up of individuals.” If so, why not slice the pie differently so that MacKinnon and upper middle-class academic women cannot claim the oppression of poor inner-city or rural women as their own; and so that men who clean law school floors and bathrooms in Ann Arbor are not placed absurdly in the category of dominators? At what level of social status and at how comfortable an income bracket do the claims of across-the-board oppression begin to ring hollow?

These questions are not idle ones but are central to MacKinnon's project. In skating across all these issues—the proper meaning of equality, whether equal protection implies egalitarianism, relevant comparison groups, implications of equality for humanity and society—MacKinnon also slides over a crucial issue: Who decides? Christians, among others, know that we are mired in sin to the extent that we see our own needs more clearly than others', that we will give a privileged position to our own truths and that, given a chance, most of us will deny others their fair claims upon us. We know, too, if we have read our Augustine and Luther, that these are also special dangers for government. MacKinnon seems to hold an utopian belief in the impartial decisionmaker (is it she?) who can, with a clear and principled eye, make the right decisions for the rest of us.

It was precisely the lack of confidence in the purity of anyone that led to the enactment of the First Amendment. Realistic cautiousness about who decides is, fundamentally, why the First Amendment must take precedence over the 14th Amendment and all others. To decide the meaning of the 14th Amendment, we must speak about it. If speech is prohibited, it is left to self-appointed saviors to determine that equality is the end of society and that they know what equality is. Then we shall be on our way to a totalitarian state in which those who are allowed to determine that constitutes “antiegalitarian meaning” can impose their version of equality and the 14th Amendment. We know only one thing in advance—they will not impose anything like equality.

There is no better way, there is finally no other way, to determine truth or falsity except through speech and language. MacKinnon's attempt to elevate a vague, arbitrary and coercive egalitarianism above First Amendment protected speech is a chilling move that is doomed to fail. Imposition of rigid equalities in power is finally a contradiction in terms. But MacKinnon is correct that the free-speech notion of a marketplace of ideas is not necessarily—and certainly not automatically—a success. Free speech is not merely a “right”; it is also a responsibility. In the current cultural climate, however, it is a responsibility easily passed off to others, especially in light of MacKinnon's own derogatory rhetoric. Ironically, if we believe MacKinnon, it really is the case that rape and sexual assault and harassment of women are solely “women's issues” because men are such lowly creatures that they not only all want to perpetrate such crimes but are incapable of understanding that a problem exists.

It is time to speak forcefully against such a divisive thesis and equally forcefully for the unity of humanity. It is also time that both sexes refuse to accept the balkanization of sexual violence as a “women's issue,” and that all races refuse to accept racial violence as a problem of the victimized race alone. These are human issues, purely and simply, and it is the responsibility of people within all ethnic, racial, gender and economic groups to speak to them. Men not only have a right to speak about sexual violence, women have every right to demand that men speak about it. Given the currency of ideas such as MacKinnon's, the atmosphere has been poisoned for all of us. The “opening to a new conversation” cannot wait for the fully egalitarian society; such a wait would be endless. If more speech cannot guarantee the victory of truth, it remains true that speech, words and ultimately the Word are the only hopes for a fallen world. The right to speak has been available for some time. It is time for more of us to use it.

R. Emmett Tyrrell, Jr. (essay date February 1994)

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SOURCE: Tyrrell, Jr., R. Emmett. “The Worst Book of the Year.” American Spectator 27, no. 2 (February 1994): 20-1.

[In the following essay, Tyrrell argues that MacKinnon's arguments in Only Words are both “specious and sophomoric.”]

It is that joyous time of year when I and my colleagues on the J. Gordon Coogler Committee confer the Coogler laurels upon the author of that degenerate literary work that we adjudge the Worst Book of the Year. Generally the award is conferred a couple of months into the new year, for in this era of widespread higher education a stupendous number of very bad books are published. Reading them all takes a vast amount of time. In fact, reading merely one or two can be time-consuming. Some are sleep-inducing (particularly those written by the so-called professoriate) and others can leave the reader nauseated (I have in mind the dreadful stuff written by that ghastly lit set babied and cosseted at one of the Republic's idiotic writers workshops; think of Robert Coover, author of The Public Burning and Coogler laureate for 1977).

This year our job was easy. Another feminist law school prof has heaved up a semi-literate tract, and all the judges rushed to it. Years of reading bad books suggested that she would turn out true drivel, drivel beyond anything any other university professor might exhale. Surely her scholarly efforts would be a mess upon the page.

We have not been disappointed. Professor Catharine MacKinnon, the screaming jewel of the University of Michigan Law School, has won the 1993 Coogler Award for the Worst Book of the Year. Her book is Only Words, another feminist sally into misandry. Now there is a word we in the age of feminist rant rarely see. It means the hatred of men.

Only Words's argumentation is specious and sophomoric. Its data are dubious when not errantly bogus. Its prose is what we have come to expect from the modern law school. And its theses are nonsensical and often mischievous to the Bill of Rights, the rule of law, and a happy sex life. This is such a dreadful book that I shall not be surprised if it also wins a Pulitzer Prize and the National Book Award.

La MacKinnon believes that words are deeds. Bad words are the same as bad deeds. Ipso facto, bad words should be treated as bad deeds, which is to say punishable by law. The First Amendment shall be abbreviated.

But a word is not a deed. To enter into debate with such a fraud is to enter into her fantasyland. If a bad word is a bad deed, then a good word is a good deed, so the honored axiom that “actions speak louder than words” is extinct. No longer do we need to help an old lady across the street. Now it is sufficient to sit by the curb uttering pious thoughts as the poor lady inches her way through the traffic.

Professor MacKinnon is very much opposed to rape, which she believes makes her unique. She is also opposed to pornography, another position she assumes to be controversial. Yet she comes from the same philosophical tradition that has allowed pornography to become such a widespread nuisance, and inasmuch as pornography might encourage rape she comes from the philosophical tradition that allowed the increased incidence of rape. The tradition teaches that words have no general meaning. Thus, thirty-five years ago, when the barriers against pornography withered, sophists very much like MacKinnon were arguing that the word “obscenity” had no common meaning, that what was pornography for thee was literature for me, that some dirty-necked sexual deviant scribbling about excrement played the same role as Shakespeare writing The Merry Wives of Windsor. In fact, it is la MacKinnon's philosophical tradition that lectures us against the existence of sexual deviants.

One of the problems with denying the general meaning of words is that bullies can then dominate discourse. They will tell us what are good and usable words and what are the words that will land us in court. MacKinnon is, aside from being a faulty thinker and preposterous writer, a bully. She would eagerly have writers jailed for writing what she says is pornography. That is clear from her stupid book. As for what she might adjudge pornography, it might be anything. She has already accused the man who reviewed her book unfavorably in the Nation of raping her by his review. She and her boyfriend have publicly threatened the reviewer, the boyfriend writing, “If there is ever anything I can do to hurt your career, I will do it.” Let us hope la MacKinnon accepts her Coogler award for the Worst Book of the Year as a compliment. I do not want my career cut short.

Cathy Young (review date February 1994)

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SOURCE: Young, Cathy. “Rancorous Liaisons.” Reason 25, no. 9 (February 1994): 57-8.

[In the following review, Young asserts that, despite the “hypnotic power” of MacKinnon's prose, the central arguments in Only Words are exaggerated, “spurious,” and poorly constructed.]

A fascinating chapter in The Morning After focuses on legal theorist Catharine MacKinnon (dubbed “the anti-porn star”) as the leading exponent of the new “victim” feminism that sees sexual violation as central to the female experience. Those interested in learning more about the woman who gave us our current sexual harassment laws can turn to MacKinnon's own latest opus, the mercifully short Only Words.

A blurb from Columbia University's Patricia Williams, hailing MacKinnon as “one of the most visible and effective advocates behind this nation's attention to crimes against women,” laments that “because her brilliant writing is largely unread, she has become an ideological easy mark.” I'm afraid she's got it wrong: It's only because MacKinnon's work is largely unread that she is considered a legitimate advocate for anything.

“Brilliant” or not, MacKinnon's prose does have a certain hypnotic power. It comes from hyperbolic declarations—“I am asking you to imagine that women's reality is real”—and relentless repetition of claims which are meant to be made flesh by the sheer force of faith. Thus she makes constant references to “snuff pornography,” films of actual sexual murders. Evidence that such an industry exists is less than scant: MacKinnon fails to cite a single source. Still, she states that “only for pornography are women killed to make a sex movie,” and writes, “suppose the consumer could not get in any other way the feeling he gets from watching a woman actually be murdered. What is more protected, his sensation or her life?” This is an utterly spurious question since, even if “snuff films” exist, they are clearly not protected by law.

Elsewhere, MacKinnon invokes anecdotal and inconclusive evidence: a man who raped and hanged a little Asian girl “had spent much of the day of the murder in an adult bookstore” where he might have seen a relatively recent issue of Penthouse showing Asian women “trussed and hung.” One feels it is quite useless to point out that sexual violence has existed in virtually smut-free societies, or that it is extremely rare in Japan or Scandinavia, despite wide availability of porn.

Insisting that First Amendment rights should be balanced by 14th Amendment guarantees of equality, MacKinnon points to the inconsistency of regulating “discriminatory” speech in the workplace, as sexual harassment laws do, but not in the rest of society. (Some of us who believe that existing harassment laws infringe on speech in unacceptable ways will agree.) Even more central to her case, however, is the argument that pornography is fundamentally different from all other forms of expression.

Pornographic films are not just speech but action, MacKinnon says, because live women are required—usually coerced—to act in them. Would graphic sex in books or animated cartoons, then, be OK? No, because it would still be acted out on live women: “In human society, where no one does not live, the physical response to pornography is nearly a universal conditioned male reaction.” (Women, of course, could not possibly have such a response.) According to MacKinnon, misogynist ideas permeate society, but pornography is uniquely dangerous because it acts not on the conscious mind but on an irrational process: “The message of these materials … is ‘get her,’ pointing at all women. … This message is addressed directly to the penis, delivered through an erection, and taken out on women in the real world.”

This doesn't necessarily mean that the consumer of pornography will rape a woman or a child. It may simply mean that after watching pictures of “a penis ramming into a vagina,” he “goes and rams his penis into a woman's vagina” (something that evidently would never occur to him without the pictures). Is the ramming consensual? Is it mutually pleasurable? That doesn't seem to matter.

MacKinnon has been often accused of equating all sex with rape and has invariably denied the charge. But if images of sex acts inevitably degrade and violate women, what of the acts themselves? If the recognition that “inequality between children and adults” makes child pornography criminal should be extended to adult porn because of inequality between men and women, should the law treat heterosexual sex as it treats child molestation?

As portrayed in Only Words, men are not innately evil, just made that way by pornography; indeed, MacKinnon shows some sympathy for sex murderers whose claims that smut made them do it were, she feels, unfairly ignored (“we kill a man rather than … stop the pornography that produced him”). But her notion of the evil produced by porn seems to include not just male violence but male sexuality: pornography “gives men erections that support aggression against women.” Disapproving references to erections and orgasms pop up, pardon the expression, with alarming regularity. In MacKinnon's vision, the erect penis looms as a malevolent force of almost biblical proportions.

David McCabe (review date 11 February 1994)

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SOURCE: McCabe, David. “Is Pornography ‘Free Speech’?” Commonweal 121, no. 3 (11 February 1994): 22-3.

[In the following review, McCabe contends that, although there are some weaknesses in MacKinnon's reasoning in Only Words, the work is “on the whole quite persuasive in arguing that we need to rethink our approach to the pornography debate.”]

In case you haven't noticed, the old battle between pornography and community standards of decency is over; decency lost. While it is true that the Supreme Court has devised an elaborate (and largely irrelevant) test for obscenity, for the most part pornography seems to be here to stay. To no one is this fact more disturbing than University of Michigan law professor Catharine MacKinnon, the intellectual leader of what has come to be called the feminist critique of pornography. What distinguishes this critique from earlier “standards of decency” arguments is its insistence that pornography be banned because it contributes heavily to the continuing subordination and abuse of women. Through the work of writers like MacKinnon, this critique has largely succeeded in shifting the terms of the debate: no longer is it a question of liberated sexual mores confronting repressive puritanism; instead, the battle is now pitched between the pornographers' rights to free speech and the equality rights of women.

In her latest offering, Only Words, MacKinnon displays the passion, intelligence, and tinge of fanaticism that have made her such a potent force in the battle against pornography. While the book covers in some depth a broad range of issues, including racist speech and sexual harassment, the subject that dominates these pages is pornography, about which MacKinnon seems to know everything, from legal precedent to details of film production. The chief target of her attack here is the position that she calls First Amendment absolutism: the view that pornography is a form of speech between the producer and the consumer, and that the First Amendment prohibits any government interference with speech merely on grounds of content. This position also tends to be bolstered by vague warnings about starting down the slippery slope to government repression, the suggestion being that banning Co-Ed Prison Sluts leads inevitably to an Orwellian nightmare where we're all forced to do calisthenics in front of Big Brother and words like “dissent” and “criticism” have vanished from our dictionaries.

In the course of this book MacKinnon offers several arguments against this absolutist position, but her chief one appears to me utterly convincing. Even if pornography is a form of speech, says MacKinnon (which she doubts, suggesting instead that it communicates its ideas through a kind of “unconscious primitive conditioning”), this does not tout court mean that it cannot be regulated by the government. There are, in fact, several kinds of expression that the government has outlawed precisely because of the content they convey: for example, saying “We serve only whites here,” or “If you sleep with me I'll give you a promotion,” are speech acts which are clearly outlawed because they are recognized not as only words, but as acts of discrimination and harassment. Nobody claims that because speech is the medium for these acts, they therefore merit First Amendment protection, nor does anyone reasonably suggest that their prohibition brings us closer to the totalitarian nightmare. In these cases the right to free speech is simply outweighed by the clear social interest in eliminating racial discrimination and sexual harassment.

MacKinnon does a fine job of revealing the confusion and shallow thinking implicit in the reflexive appeals to free speech offered by many defenders of pornography. But notice: her argument has shown that pornography may, under certain conditions, be restricted. It has not yet shown that it should be restricted. In order to establish this further point, she must show that pornography in fact systematically harms women. Here I think she needlessly confuses her argument by stressing that some pornography is made from child abuse and some from actual rapes and tortures. That this goes on is obviously horrifying, but it is equally obvious that no one is arguing for the legality of these actions, and the polemical element introduced by these facts muddies the clarity of her overall case. MacKinnon is more persuasive, I think, when citing the recent court decisions in the U.S. and Canada, and the growing sociological literature, that acknowledge pornography's causal role in women's subordination and abuse, though here too the evidence is more ambiguous than she admits.

Two other weaknesses deserve mention, though they are primarily sins of omission. First, one wishes that MacKinnon had devoted more space to showing that her definition of pornography (explicit sexual material that subordinates women) is precise enough so that judges can apply it without making difficult aesthetic analyses about the real meaning of a work. A second problem involves the blurry distinction MacKinnon draws between “debating and expressing” obnoxious ideas (which she seems to want to tolerate) and “imposing” discrimination through “expressive” means. Each of these problems involves the difficulty of drawing clear boundaries, and while it is true that the cry “But where do you draw the line?” is frequently the refuge of idiots, in matters of free speech this difficulty merits special concern. It is useful to remember that we value free speech because of other things it secures—things like political accountability, artistic achievement, self-determination—and what is missing from this book, with its welcome emphasis on social equality, is any real acknowledgment of the importance of these other goods.

These failings aside, MacKinnon is on the whole quite persuasive in arguing that we need to rethink our approach to the pornography debate, and this important and thoughtful book should further that goal. Readers should be cautioned, however; though quite short, Only Words is not an easy read. Some of the challenges it presents are inevitable and arise from the complexity of the issues and the complicated legal precedents MacKinnon cites. But it must be said that MacKinnon's often inelegant prose presents challenges of its own. Many of her readers, I fear, simply will not finish sentences like the one that begins, “Sexual harassment, because it is sexual, and because of the place of words and images in sex, and the place of sex in life, manipulates the perpetrator's socialized body relatively primitively and directly,” and this will not help her cause.

Given the sheer brainpower on display here, however, stylistic criticisms are relatively small potatoes. In the end, the effort to make sense of this book more than pays off. Having struggled through complex arguments and occasionally torturous prose, one is finally rewarded with the understanding that results only from having engaged in dialogue with a serious thinker working to clarify the central issues of an often murky but highly relevant area of debate. This is something we are all in need of, and Only Words delivers the goods.

Carl Sessions Stepp (review date March 1994)

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SOURCE: Stepp, Carl Sessions. “Fighting the First Amendment's Free Ride.” American Journalism Review 16, no. 2 (March 1994): 53.

[In the following review, Stepp lists several flaws in MacKinnon's theories on pornography and hate speech in Only Words but notes that the debate the work has inspired is ultimately important and worthwhile.]

With Only Words, Catharine MacKinnon has touched off a rousing argument about pornography and hate speech. She hasn't won it. But she has locked onto something important, serving notice that the First Amendment's free ride may be over.

Unfortunately, she delivers the message in intemperate terms certain to polarize.

“You grow up with your father holding you down … so another man can make a horrible searing pain between your legs,” she writes. “When you are older, your husband ties you to the bed and drips hot wax on your nipples. … Your doctor will not give you drugs he has addicted you to unless you suck his penis.”

That's just her opening paragraph.

MacKinnon is both a Michigan law professor and a fed-up feminist, and her language shifts between layered argumentation and furious ventilation. But the underlying idea is compelling: that words cannot be separated from actions, especially those based on sex.

MacKinnon calls into question “the extent to which the First Amendment protects unconscious mental intrusion and physical manipulation, even by pictures and words, particularly when the results are further acted out through aggression and other discrimination.”

Like a skier plunging down a steep slope, her logic begins on firm terrain but quickly skids toward the uncontrollable.

“Society is made of words, whose meanings the powerful control, or try to,” she writes reasonably, hitting a theme familiar to journalists who understand words' profound influence.

Then, accelerating precariously: “At a certain point, when those who are hurt by them become real, some words are recognized as the acts that they are.”

Veering toward the edge: “Discrimination does not divide into acts on one side and speech on the other. Speech acts. … Acts speak.” And, finally, perhaps flying over it: “To express eroticism is to engage in eroticism, meaning to perform a sex act. To say it is to do it, and to do it is to say it.”

The book leaves itself wide open to attack. MacKinnon never defines pornography, or distinguishes between the consensual and the nonconsensual or even between fantasy and rape. She leaps unpersuasively from the indisputable (words are powerful) to the implausible (words equal actions). She much too casually disregards the protection free speech offers the oppressed. And she barely acknowledges the thought-police implications of her own words.

These objections may undermine the extremities of her position, but powerful elements remain at its core. First, words do carry a force far beyond ink on paper or dots on screens. I'm not convinced that words are actions, but like MacKinnon I accept that they are more than “only words.” They certainly go beyond abstractions. Words connect intimately with behavior.

MacKinnon intriguingly reasons that speech should be seen not just through the First Amendment but through a 14th Amendment “equality lens” as well.

“Social life is full of words that are legally treated as the acts they constitute without so much as a whimper from the First Amendment,” she writes. Examples: saying “kill” to an attack dog, verbally fixing prices that defy antitrust laws, displaying “whites only” signs at public accommodations. Why, she argues, shouldn't sexually oriented hate speech receive similar treatment as “not a mere expression of opinion but a practice of discrimination in verbal form”?

By now, First Amendment absolutists should be squirming. And other current developments amplify their discomfort: anger over the crass, exploitative violence of TV; the revolt against the rampant use of abusive language to harass the defenseless and oppressed; and the accumulating debasements that reflect society's violence and prejudice.

For many, these daily degradations cut deeply into the reverence for the sacred intangibles of free speech. In the same way that escalating violence makes anti-gun control absolutism seem insane, it's hard to muster much sympathy for a company's right to market lurid arcade games to children.

I believe, with de Tocqueville, that free expression is the “constitutive element of liberty.” Its preeminence as a trump value undergirds our very way of life.

But I also think questions such as MacKinnon's must be engaged. The imperial assumption that First Amendment values are transcendent faces too many challenges. To redevelop the consensus surrounding free expression in light of changing times, First Amendment lovers must grapple anew with the central issue MacKinnon fails to resolve: Where are the boundaries between expression and action? At what point, if anywhere, does abusive and hateful speech becomes the equivalent of shouting fire in a trigger-happy culture?

David C. Dinielli (review date May 1994)

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SOURCE: Dinielli, David C. Review of Only Words, by Catharine A. MacKinnon. Michigan Law Review 92, no. 6 (May 1994): 1943-52.

[In the following review, Dinielli delineates MacKinnon's feminist legal theories and addresses the critical reaction to Only Words.]

Professor Catharine MacKinnon's1 short book, Only Words, has already produced a flurry of reactions. Only a few who have reviewed the book, which sets out MacKinnon's theoretical framework for her campaign against pornography, have treated it, or MacKinnon, kindly. Most have been unabashed in their criticism. Judge Richard Posner in the New Republic, for example, labels her “reckless.”2 In the Nation, Carlin Romano closes his review, in which he invites the reader to follow along as he fantasizes raping MacKinnon,3 by calling her an “authoritarian in the guise of a progressive.”4 Ronald Dworkin's review in the New York Review of Books, while generally respectful, spells MacKinnon's first name Catherine rather than Catharine5 and includes on the opening page a caricaturized drawing of the professor with crossed arms and pursed lips, topped with a wild tornado of voluminous hair.6

Moreover, many of the criticisms reviewers have leveled are gender biased. For instance, Calvin Woodard states that the arguments MacKinnon employs in Only Words come merely from a woman sounding “a heartbreaking cry for help.”7 At the same time, however, her blunt, aggressive writing seems to have invaded a rhetorical space traditionally reserved for the words of men. Woodard, for example, labels MacKinnon “militant,”8 apparently unbothered by any inconsistency in his characterizations. Carlin Romano gets on the bash-MacKinnon-because-she-is-acting-like-a-man bandwagon when he laments that “precisely because of her star power, MacKinnon can't be laughed off. She's the lead commando in a legal phalanx …”9 Still another reviewer uses her allotted page in the Village Voice to muse about the possible sexual nature of MacKinnon's relationship with the recently newsworthy Jeffrey Masson.10 The combined implication seems to be that we should not take MacKinnon's legal critiques seriously because she is a helpless commando who has a lot of sex.

Why the hostility? Why do these reviews read more like reactions than engagements? Did MacKinnon anticipate, or in fact even invite, this sort of response? To answer these questions, I should first outline what her book does.

The mere 110 pages of text divide into three parts. In the first part, titled “Defamation and Discrimination,” MacKinnon attempts to link the production and consumption of pornography to a host of social sex inequalities, including rape and sexual harassment (pp. 3-41). Pornography, according to MacKinnon, creates these inequalities, at least indirectly: “Pornography does not leap off the shelf and assault women. Women could, in theory, walk safely past whole warehouses full of it, quietly resting in its jackets. It is what it takes to make it and what happens through its use that are the problem” (p. 15).

This cause-and-effect relationship between pornography and sex inequality motivates MacKinnon's project, yet some writers still doubt its empirical validity. Ronald Dworkin, no newcomer to the debate about pornography and free speech,11 has gone so far as to assert that “no reputable study has concluded that pornography is a significant cause of sexual crime: many of them conclude, on the contrary … that desire for pornography is a symptom rather than a cause of deviance.”12

Perhaps because she recognizes that the causal link remains, in legal parlance, a disputed issue of fact,13 she lends her claim intellectual, if not empirical, force by relying on modern speech-act theory. Pornography, MacKinnon claims, is more than allusive; it does things: “Its place in abuse requires understanding it more in active than in passive terms, as constructing and performative rather than as merely referential or connotative” (p. 21; footnote omitted).

This strategy is clever, and MacKinnon correctly identifies J. L. Austin's How to Do Things with Words as the “original enunciation of the theory of performative speech.”14 A useful exploration of what pornography does, however, in all its various modes of production, commerce, and consumption, would require a more textured understanding of speech-act theory than the streamlined account MacKinnon gives in Only Words. Although the paradigmatic speech act—a minister's pronouncing a couple man and wife or a jury's finding a defendant guilty—is easily understood as an act in addition to an utterance, pornography pushes the bounds of the paradigm. For example, the only utterances in pornography are usually written down or taped on film or videocassette. Thus, the performer of the alleged speech act is rarely in the presence of his or her audience, the obvious exception being the case of live sex shows. Can “speech” in such a circumstance be or have the effect of a speech act? That is, are speech acts iterable? If I want to marry Jane Doe, can I play a recording of a minister proclaiming us to be married, or would the performance of marriage require the minister's presence?

Questions such as these have spawned a significant literature building on and critiquing Austin's ideas, particularly focusing on the problem of iterability of performative speech. Jacques Derrida, for instance, has observed “the possibility for every performative utterance (and a priori every other utterance) to be ‘quoted.’”15 Austin, however, considered reiterated speech acts hollow, void: “[L]anguage in such circumstances [of reiteration] is in special ways—intelligibly—used not seriously, but in ways parasitic upon its normal use. … All this we are excluding from consideration.”16 To Derrida, Austin's bracketing of this crucial element of performative speech—its iterability—renders the Austinian version of speech-act theory flawed, or at least incomplete.17 If Derrida is correct and Austin's description of the performative does not seek to explain the nature and effects of reiterated speech, then where is the Austinian performative speech in pornography? Who is saying what to whom and in what context? This all is not to say that the “speech” in pornography does not create inequality; the discussion merely suggests that MacKinnon needs to look beyond Austin if she hopes to describe accurately the mechanisms by which pornography “performs” its dirty work.18

MacKinnon's vivid description of pornography and its effects19 suffers from another weakness as well: it fails to address the potential harm of pornography to men.20 That is, perhaps male consumers of pornography also suffer by their exposure to it. The damage to men would be of a different sort than the damage to women; it would be a degradation and corruption of men's views of sexuality, and perhaps, the argument might go, the law should discourage activity or commerce that corrupts and degrades. According to Ronald Dworkin, this argument grows out of

the hypothesis that humans will develop differently and in fact best, and find the most suitable conditions for their own flourishing, if their law cultivates an ennobling rather than a degrading attitude towards their sexual activity by prohibiting, even in private, practices that are in fact perversions or corruptions of the sexual experience.21

To be sure, arguing that pornography hurts men would be secondary to the thrust of MacKinnon's argument—that pornography creates sex inequality—but such an argument might be useful from a strategic standpoint. Given that Only Words has been described, perhaps unfairly, as “radiat[ing] the kind of hostility, resentment and contempt toward men that MacKinnon skewers men for expressing toward women,”22 MacKinnon would benefit by at least acknowledging the interest men might have in ensuring the success of her campaign.23

Regardless of these shortcomings, the first part of the book effectively performs its intended function. It recasts the reality of what pornography does—or at least what MacKinnon says it does—and contrasts that with what First Amendment law thinks pornography says:

In … the approach of current law, pornography is essentially treated as defamation rather than as discrimination. That is, it is conceived in terms of what it says … rather than in terms of what it does. Fundamentally, in this view, a form of communication cannot, as such, do anything bad except offend.

[p. 11; footnote omitted]

This reconception of pornography as something that does something in addition to saying something is critical to the antipornography movement. Without it, pornography remains protected expression.

Having presented her argument for a reconception of pornography in Part I, MacKinnon returns to safer ground in Part II, titled “Racial and Sexual Harassment” (pp. 43-68). Her purpose here is to bolster the arguments in Part I, or at least make them more palatable, by immersing the reader in an area of law and life in which words have long been viewed as acts: “If ever words have been understood as acts, it has been when they are sexual harassment. … Only words—yet they have not been seen as conveying ideas …” (p. 45). MacKinnon attempts to show how absurd it would be to characterize behavior we now label as harassment as expression worthy of constitutional protection.24 With the harms of pornography fresh in the memory from Part I, the reader, MacKinnon hopes, will see that pornography is really just like harassment, and so protection of pornography is just as absurd as would be protection of harassment.

This strategy—showing that pornography is identical in relevant respects to something the law already prohibits—is really just an instance of traditional analogical reasoning; it is like saying, “Pornography is more like harassment than speech, so we should treat it like harassment.” Given the traditional method of this element of MacKinnon's argument, it seems odd to read Judge Posner maligning the book as “a verbal torrent that appeals … to elemental passions (fear, disgust, anger, hatred) rather than to the rational intellect.”25 The strategy, to the contrary, displays just the sort of reasoning law professors hope to impart to their students through the case method and analysis of hypothetical fact patterns.

Despite its appeal, simplicity, and traditional structure, however, the analogical argument may not be strong enough alone to support a wholesale shift in the regulation of pornography. In the first place, Title VII creates a civil cause of action to counter only workplace harassment.26 A woman targeted for sexual harassment on the street or in the home remains, according to the law, merely offended, notwithstanding that nonworkplace harassment probably also contributes to sex inequality. Thus, if we were to treat pornography as we treat harassment, where would we prohibit it? Everywhere? Only where women's equality matters most?

The analogical argument also falters because it unfairly underestimates the force of expressive concerns in the debate regarding just how far antiharassment regulation should go. MacKinnon admits that courts are now considering the extent to which campus speech codes, for instance, impinge on speech rights.27 However, she never directly faces the implications of the growing concern over the conflict between harassment law and speech law for her analogical argument. If the judicial and academic trend is to pay increasing attention to the expression suppressed by harassment law, then MacKinnon might want to rethink whether she really wants the law to treat pornography the same way it treats harassment.

These criticisms, however, are really no more than quibbles. The question MacKinnon asks—Why should we treat pornography more like speech than harassment?—is valid. From an ahistorical standpoint, it has no compelling answer. Of course, MacKinnon does know how legal protection of pornography developed historically:

In America, the examples that provide the life resonance of the expressive freedom, the backdrop of atrocities for the ringing declarations, derive mostly from attempts to restrict the political speech of communists during the McCarthy era. … The story of the First Amendment is an epic story of overcoming that, of progress, of making sure it never happens again.

[pp. 74-75]

Thus, she argues in Part III—“Equality and Speech”—that First Amendment doctrine has developed an unwarranted obsession with protection of speech that is in one way or another unpopular (pp. 71-110). She labels this obsession the “‘speech you hate’ test. … You can tell you are being principled by the degree to which you abhor what you allow” (p. 75).

MacKinnon argues in this last part of her book, however, that our experiences with McCarthyism need not be the only historical backdrop against which we develop our First Amendment doctrine. Equally important, if not more so, are the values embodied in the Fourteenth Amendment's Equal Protection Clause. MacKinnon rightfully wonders why modern speech doctrine, which postdates the Fourteenth Amendment, largely ignores equality concerns.28 For instance, the state protects nude dancing as speech, yet nude dancing arguably contributes to sex inequality by exposing women to harms because of their sex. If so, the Constitution might require the state to recognize that the equality guarantee limits or even trumps the alleged speech right protecting the dancing.29 Our Constitution is, as MacKinnon notes, “a document that accepts balancing among constitutional interests as method” (p. 84). In suggesting that the Fourteenth Amendment might provide limits on speech rights independent of those deriving from the First Amendment itself, MacKinnon performs once again her classic move. Just as she has done with so many other legal issues,30 she recasts pornography as an instance of sex inequality.

Of course, even MacKinnon accepts that in a true balancing of interests, equality might not always win.31 All she wants is a “fair fight … between equality and speech as two constitutional values” (p. 85). This request is really quite modest, especially when posed to her adversaries who presumably incant the “marketplace of ideas” mantra. Reviewers, however, have balked at the idea of exposing First Amendment freedoms to equality scrutiny. Ronald Dworkin, for instance, worries that “the frightening principle that considerations of equality require that some people not be free to express their tastes or convictions” could lead to government censorship of any material that “might reasonably offend a disadvantaged group.”32 Even though Dworkin overstates MacKinnon's argument,33 his fear of what government might do with this equality-justified license to censor may not be wholly unfounded. The Canadian Supreme Court, for instance, has upheld laws restricting hate propaganda34 and obscenity,35 relying largely on equality principles. The repercussions of these decisions, however, may not be identical to those for which MacKinnon and others had hoped. One opinion piece in the New York Times has noted that MacKinnon has become the target of widespread anger among Canadian artists, writers, and activists.36 Apparently, Canadian authorities have used the terms “degrading and dehumanizing”—terms lifted straight from the judicial opinion MacKinnon champions in Only Words as a victory for women—to justify seizing lesbian, gay, and feminist material and fining a bookstore owner for selling a lesbian magazine.37

These acts of censorship and harassment might demonstrate the danger of misapplying MacKinnon's vision of an equality-tempered speech right, but they do not prove the theory is flawed. Presumably, MacKinnon would argue that Canadian heterosexuals were not at risk of sexual abuse and assault as a result of the sale of lesbian literature. Thus, those who found the materials degrading—nonlesbians—were not deserving of equality protection, for “[i]n this new model, principle will be defined in terms of specific experiences, the particularity of history, substantively rather than abstractly. It will notice who is being hurt and never forget who they are” (p. 109).

With her argument that the constitutional equality guarantee should inform free speech doctrine, MacKinnon has brought the reader full circle, back to the opening pages of the book in which she attempts to link pornography to social inequality. The structure of the argument is simple: First, show that pornography harms women—that is, that it creates inequality. Next, show that pornography is similar to harassment, an issue the law already views as raising equality concerns. Finally, make a structural argument that the Constitution itself requires the law to examine pornography through an equality lens. This argument in itself does not appear particularly offensive, so we are still left with the question: Why have the reactions to the book and its author been so hostile?

The answer must lie not in what the book says but in how it says it. Only Words does not read like a law review article.38 Instead, MacKinnon takes every opportunity to display her rhetorical strengths. She knows and uses the emotional punch of sharply visual and visceral language.39 This style is often riveting, always challenging. Occasionally, however, the speed of MacKinnon's language seems to get the better of her. For instance, in an effort to force the reader to break out of a particular thought paradigm, she frequently simply pronounces that something is or is not something the reader probably never before thought it was or was not: “You find that the pictures, far from making what happened undeniable, are sex. …” (p. 4). “What was words and pictures becomes, through masturbation, sex itself” (p. 25). These equivalences frequently seem to get caught in their own syntax and the point is lost: “In pornography, pictures and words are sex. At the same time, in the world pornography creates, sex is pictures and words. As sex becomes speech, speech becomes sex” (p. 26). “So-called speech that works as a sex act is not an argument. An orgasm is not an argument and cannot be argued with” (p. 63). “When words of sexual abuse are in our mouths, that is pornography, and we become pornography because that is what pornography is” (p. 66).

So what. My guess is that among the reasons MacKinnon chose to write Only Words as a book was to avoid the constraints student editors of law reviews impose on authors. The Michigan Law Review, for instance, would probably have required MacKinnon to footnote each of the equivalences quoted above. We would have advised her that her argument would be more accessible if she were to tone down some of her rhetoric. We would have asked her to provide readers early on with a roadmap to her piece, so as to guide the reader gently through her argument step by step.

Only Words, however, is a book, not a law review article. That MacKinnon made the risky choice40 to write it in a discomforting style is to her credit. Moreover, books, as evidenced by this issue of the Michigan Law Review, get reviewed. They get attention. Only Words has received attention largely because of the way MacKinnon wrote it. She must have intended this.

If so, then Catharine MacKinnon has pulled off something really quite clever. Her book, of course, is only words, yet it has incited unbridled anger and verbal abuse. Carlin Romano expressed his fury by imagining raping the professor. MacKinnon claims the publication of this fantasy actually raped her.41 Only words, yet look at the responses, look at the rage directed toward the professor. These responses and the anger and fear that lurk within them have in a sense become part of the text of Only Words; to read them is to read a part of what MacKinnon aimed to show. Like the pornography she hopes will someday reside only “in a glass case next to the dinosaur skeletons in the Smithsonian” (p. 110), MacKinnon's words have engendered real abuse, directed at her as a woman. In short, she has proved her point.

Notes

  1. Professor of Law, University of Michigan Law School.

  2. Richard A. Posner, Obsession, New Republic, Oct. 18, 1993, at 31, 34. Judge Posner also complains that the book contains “no nuance, qualification, measure or sense of proportion.” Id. at 31.

  3. Carlin Romano, Between the Motion and the Act, Nation, Nov. 15, 1993, at 563, 563.

  4. Id. at 570.

  5. Ronald Dworkin, Women and Pornography, N.Y. Rev. of Books, Oct. 21, 1993, at 36, 36.

  6. Id.

  7. Calvin Woodard, Speak No Evil, N.Y. Times, Jan. 2, 1994, § 7 (Book Review), at 11, 12.

  8. Id. at 12.

  9. Romano, supra note 3, at 564.

  10. See Mim Udovitch, Imagine That, Village Voice, Jan. 25, 1994, at 19 (“I like men who have both [ideas and erections], preferably men who are capable of having more than one of both. (And from what one reads by and about Jeffrey Masson, that's the kind Catharine MacKinnon's got.)”).

  11. A 1981 article by Dworkin, for example, provides an extremely readable account of the numerous concerns at play in this debate. See Ronald Dworkin, Is There a Right to Pornography?, 1 Oxford J. Legal Stud. 177 (1981).

  12. Dworkin, supra note 5, at 38.

  13. MacKinnon might fruitfully draw here on the growing body of feminist science suggesting that, at its core, Western scientific inquiry grows out of and reinforces sex bias. See, e.g., Sandra Harding, Whose Science? Whose Knowledge? (1991). In other words, if social science as we now experience it fails to find an empirical link between pornography and sex crime, the failure might indicate an inability of the scientific method rather than an absence of an actual link. Given this possible failing of science, anecdotal evidence of a connection—the very kind MacKinnon employs—might be the best we can rely on in ascertaining the relationship of pornography to behavior.

  14. P. 21 n. 31 (citing J. L. Austin, How to Do Things with Words (1962)).

  15. Jacques Derrida, Signature Event Context, in Limited Inc 1, 16 (Gerald Graff ed., Samuel Weber & Jeffrey Mehlman trans., 2d ed. 1990).

  16. Austin, supra note 14, at 22.

  17. See Derrida, supra note 15, at 17 (“For ultimately, isn't it true that what Austin excludes as anomaly, exception, ‘non-serious,’ citation (on stage, in a poem, or a soliloquy) is the determined modification of a general citationality—or rather, a general iterability—without which there would not even be a ‘successful’ performative?” (footnote omitted)).

  18. Consider, in this light, an example of harm MacKinnon attributes to pornography: “In pornography, women are gang raped so they can be filmed.” P. 15. Speech-act theory sheds little light on the mechanism by which this harm occurs. What is the speech here and what is it doing? Speech-act theory might help to explain, for instance, why the video broadcast of the gang rape has a particular effect on someone; it does not help disentangle the harms intrinsic in the production of pornography from the speech doctrine that protects the finished product.

  19. See, e.g., p. 19 (“Sooner or later, in one way or another, the consumers want to live out the pornography further in three dimensions. Sooner or later, in one way or another, they do.”).

  20. I am not speaking here about gay male pornography, which—at least according to John Stoltenberg, a compatriot of both MacKinnon and Andrea Dworkin—also finds its roots in misogyny and perpetuates sex inequality by eroticizing sexual dominance. See generally John Stoltenberg, Gays and the Pornography Movement: Having the Hots for Sex Discrimination, in Men Confront Pornography 248 (Michael S. Kimmel ed., 1991). Stoltenberg reasons that gay pornography, because it calls upon the same vocabulary as straight pornography, reinforces misogyny, which in turn perpetuates homophobia.

  21. Dworkin, supra note 11, at 189.

  22. Romano, supra note 3, at 564.

  23. On the other hand, such a gesture might undermine MacKinnon's pungent rhetorical strategy of addressing the book to the individual female reader. She begins the first page with an imperative: “Imagine … [y]ou grow up with your father holding you down and covering your mouth so another man can make a horrible searing pain between your legs.” P. 3. In case the reader glosses over this syntactic slap, MacKinnon reiterates the point, using you or your a total of 30 times on the first page alone. She thus forces even male readers to participate in her imagined reality. If she were later to make a separate nod to any potential male readers, she would undermine the power and universality of her initial command that each of us envision himself or herself as suffering the harms pornography visits upon women.

  24. For example, she observes:

    The workplace comment “Black women taste like sardines” has not been construed as a possible advertisement for fish, hence protected commercial speech. … When a man slips a woman's paycheck into his pants and requires her to “go for it,” nobody suggests he is making a militant display of dissent against the economic system.

    p. 47 (footnote omitted)

  25. Posner, supra note 2, at 31.

  26. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 63-67, 73 (1986) (recognizing a cause of action for workplace harassment under Title VII).

  27. The potential conflict between speech rights and workplace harassment law is beginning to receive scholarly attention as well. See e.g., Eugene Volokh, Comment, Freedom of Speech and Workplace Harassment, 39 UCLA L. Rev. 1791 (1992).

  28. See, for example, p. 71:

    [T]he First Amendment has grown as if a commitment to speech were no part of a commitment to equality and as if a commitment to equality had no implications for the law of speech—as if the upheaval that produced the Reconstruction Amendments did not move the ground under the expressive freedom, setting new limits and mandating new extensions, perhaps even demanding reconstruction of the speech right itself.

    Id.

  29. It might also be proper to question whether affirmative state protection of behavior that works an inequality on a protected group also works an “expressive harm” on that group. Cf. Richard H. Pildes & Richard G. Niemi, Expressive Harms, “Bizarre Districts,” and Voting Rights: Evaluating Election-District Appearances after Shaw v. Reno, 92 Mich. L. Rev. 483, 506-07 (1993) (“An expressive harm is one that results from the ideas or attitudes expressed through a governmental action, rather than from the more tangible or material consequences the action brings about. On this view, the meaning of a governmental action is just as important as what the action does.”). In other words, even if First Amendment doctrine would argue for protection of a certain form of expression, resonances from governmental failure to protect the targets of that expression might nevertheless militate against protection.

  30. MacKinnon has argued that the law should view a number of topics through the lens of sex inequality and treat laws that affect these topics as governed by the Equal Protection Clause. Among these topics are rape, see, e.g., Catharine A. MacKinnon, “Reflections on Sex Equality under Law,” 100 Yale L. J. 1281, 1301 (1991) (“Women are sexually assaulted because they are women: not individually or at random. …”); reproduction, see, e.g., id. at 1309 (“[W]omen, because of their sex, are subjected to social inequality at each step in the process of procreation.”); homosexuality, see, e.g., Catharine A. MacKinnon, Toward a Feminist Theory of the State 248 (1989) (arguing that in a world viewed through a sex equality lens, “[g]ay and lesbian rights would be recognized as sex equality rights”); and sexual harassment, see, e.g., Catharine A. MacKinnon, Sexual Harassment: Its First Decade in Court, in Feminism Unmodified 103, 109 (1987) (stating that “sexual harassment is sex-based discrimination”).

  31. For instance, in imagining how her constitutional scheme might play out in the courts, she reckons that “pornography ordinances and hate crime provisions fail constitutional scrutiny that they might, with constitutional equality support, survive.” P. 85.

  32. Dworkin, supra note 5, at 40.

  33. Throughout the book, MacKinnon makes clear that “offense” is neither her target nor her motivation. It seems unlikely then that she would ever approve a constitutional scheme whereby mere offense on the part of a member of a disadvantaged group would justify curtailing established First Amendment freedoms. The civil statute she and Andrea Dworkin drafted created a civil cause of action through which women harmed through pornography could sue to “prove its role in their abuse, to recover for the deprivation of their civil rights, and to stop it from continuing.” P. 92. Offense, under this statute, is not among the harms constituting a deprivation of civil rights. Ronald Dworkin's fear, therefore, may direct itself to a straw man argument. Admittedly, however, MacKinnon does occasionally appear dismissive of the value of speech rights. See, e.g., p. 108 (“Wherever equality is mandated, racial and sexual epithets, vilification, and abuse should be able to be prohibited, unprotected by the First Amendment.”).

  34. See Regina v. Keegstra, [1990] 3 S.C.R. 697 (Can.).

  35. See Butler v. Regina, [1992] 1 S.C.R. 452 (Can.).

  36. Leanne Katz, Censors' Helpers, N.Y. Times, Dec. 4, 1993, at 15. It would seem that almost everyone—conservatives, liberals, artists, writers, activists—opposes MacKinnon's antipornography campaign. She does retain some powerful allies, however, including, apparently, Mother Nature. The vast majority of pornographic videos are produced in Southern California's San Fernando Valley—directly above the epicenter of the recent Northridge earthquake. X-rated Industry Is Disrupted, N.Y. Times, Jan. 31, 1994, at A11.

  37. Katz, supra note 36, at 15.

  38. With only 110 small pages of text and 192 endnotes, however, it is about the length of a moderately sized law review article.

  39. See, e.g., p. 17 (“With pornography, men masturbate to women being exposed, humiliated, violated, degraded, mutilated, dismembered, bound, gagged, tortured, and killed. … The women are in two dimensions, but the men have sex with them in their own three-dimensional bodies, not in their minds alone. Men come doing this.”).

  40. I claim that MacKinnon chose to write Only Words the way she did because, in comparing this book with her other writings, it becomes obvious she can write in the traditional academic mode. See, for example, her 1991 Yale Law Journal article: MacKinnon, “Reflections on Sex Equality under Law,” supra note 30. She clearly knows how to write in a manner that garners critical approval. Telling is the newest paperback cover of Feminism Unmodified, which quotes a glowing review from the New York Times: “[Feminism Unmodified] is passionate, brilliant … [.] MacKinnon offers a systematic and persuasive perspective on issues that are central not only to feminism but to social theory in general.” MacKinnon, Feminism Unmodified, supra note 30, at front cover (quoting Alison M. Jaggar, Male and Female, Men and Women, N.Y. Times, May 3, 1987, § 7 (Book Review), at 3).

  41. Richard Lacayo, Assault by Paragraph, Time, Jan. 17, 1994, at 62.

Bernard Williams (review date 12 May 1994)

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SOURCE: Williams, Bernard. “Drawing Lines.” London Review of Books 16, no. 9 (12 May 1994): 9-10.

[In the following review, Williams comments that the legal arguments in Only Words will be difficult for British readers to fully comprehend.]

Best known as an eloquent campaigner against pornography, Catharine MacKinnon is a lawyer—a Professor of Law at the University of Michigan Law School. Not all of this book (based on talks given at Princeton) sounds much like legal argument, and particularly when she is talking about pornography she gives a rhetorical display which may well have been breathtaking in the lecture hall. But the book [Only Words] does in fact offer a legal argument, one which is interesting, and also deeply American, in the sense that MacKinnon discusses the problems raised by pornography and also by speech that constitutes sexual or racial harassment in terms of American law and the American Constitution. MacKinnon herself does not accept those terms as presently defined, and her book is an eloquent plea to Americans to move beyond what she sees as the prejudiced limitations of current doctrine, in particular of current liberal doctrine. As a plea to Americans, it takes for granted several aspects of American discussions. Some of this a British reader may find rather bewildering.

The First Amendment to the US Constitution protects ‘freedom of speech’; this has been interpreted in a robust way that makes it quite difficult to ban anything. There are some provisions to restrict pornography, in particular to make child pornography illegal, but hard work has gone into generating the rather shaky formulae that support the restrictions. Some of those who do not want pornography to be Constitutionally protected have tried to argue that it does not count for the purposes of the Constitution as ‘speech’. This is not because it now more often consists of pictures than words—a great deal of Constitutionally recognised ‘speech’ is not verbal. The claim is, roughly, that pornography is not ‘speech’ because it does not convey ideas: it is designed to produce erections rather than opinions. But this line has not found much favour, particularly with liberals. While most pornography conveys no ideas, some expressions that convey ideas may be thought pornographic (a mild case is a jacket of the Vietnam War era, often mentioned in the literature, which said ‘Fuck the Draft.’) More generally, it is hard to draw a line between different types of expression, with respect to their form, or their intentions, or their effects, and proclaim that some and not others count as the ‘speech’ which the First Amendment protects.

This is a point, then, at which liberals do not want to draw a line, and in order to understand some of what MacKinnon says, in particular some of her more vituperative asides, one has to see that she is attacking them on this score. MacKinnon does want to draw a line here. Since she wants the law to suppress pornography (or at least to provide remedies to those who have complaints against pornography), but does not want to suppress political argument on sexual subjects, she needs a distinction between more and less argumentative forms of expression.

While liberals are not keen to draw a line by distinguishing a kind of expression that is (so to speak) less than speech, they do need to distinguish what is ‘merely’ speech from what is more than speech—that is to say, from action. The First Amendment protects speech, argument, the exchange of ideas, and that includes obnoxious ideas, for instance of a racist character; but it does not protect hostile actions designed to intimidate people of another race. The extremely obvious problem is that some speech acts just are intimidating acts of that sort; or, to put it the other way round, some acts of an intimidating kind take the form of ‘mere’ speech, produced in some specific circumstances to a specific audience. In the case of political speech or anything that might conceivably be construed as political speech, the prevailing interpretations of the First Amendment go to remarkable lengths to protect the speaker, rather than the people whom the speech is intended to insult. In 1978, the American Nazi Party proposed to hold a march in Stokie, Illinois, a site chosen because many Jewish Holocaust survivors lived there. This demonstration was legally held to be protected speech, a decision upheld by the Supreme Court (Justice Blackmun dissenting).

This line of interpretation seems particularly perverse in light of the fact that in other connections, especially in relation to conditions of employment, American law is keen on the idea that speech or other forms of expression can constitute action. Under the Fourteenth Amendment, which guarantees ‘equal protection’ to all citizens, legal action can be taken against sexual and racial discrimination, which may include verbal and related kinds of harassment. Attempts have been made, with some success, to extend such provisions from the workplace to university campuses, in the form of ‘speech-codes’. This has given rise to some argument, because of supposed difficulties in distinguishing between loutish insults, on the one hand, and, on the other, academic arguments or other material which a woman or a member of a minority might find contributed to a ‘threatening environment’. In the workplace, however, various forms of speech and other kinds of expression, such as pornographic photographs, have been held to contribute to discrimination and inequality.

Taken together, all this leads to the result that American law can restrain locker-room crudities or dirty photographs in the factory, but neo-Nazi thugs shouting threats and racial insults at elderly Jews in a Chicago suburb are protected by the police. To some, particularly Europeans, this seems quite extraordinary. Catharine MacKinnon writes: ‘It is my observation that anyone who attended primary school anywhere but in the United States tends to regard this approach, and the passion with which it is defended, as an American cultural peculiarity or fetish to be tolerated.’ She is right. Perceptions differ in the other direction as well. A few months ago I expressed a few reservations on these lines to some liberal friends in New York, and later heard that after I had left it was found amazing that this reasonable Englishman should be, on questions of free speech, the next thing to a fascist.

However, it is not simply a question of cultural peculiarities. All democracies have problems about the relations of free speech to other political values, but the United States has problems which are severe and not always adequately acknowledged. I do not think that MacKinnon exaggerates when she says that ‘the law of equality and the law of freedom of speech are on a collision course in this country.’ MacKinnon herself tends to be on the side of control, of affirming equality by punishing speech, but you do not have to go all the way with her on that to acknowledge the problem.

The present liberal position requires one to hold three views at once. The first: there is no safe or clear line between speech and other forms of expression less than speech. The second: there is a clear and enforceable line between speech and action that is more than speech. The third: there is an effective line between insults directed to particular people in work-places and insults directed to classes of people in public space. The third view means, in effect, that there is a kind of speech that is, in a very broad sense indeed, political or public, and this is protected by the First Amendment, as opposed to speech which is (let us say) ‘non-political’, which is not protected. In particular, ‘political’ speech cannot be constrained by any provision that favours one side of an argument over the other, so racist speech must be tolerated. Racial discrimination in action, however, is forbidden, so at this point one has to rely—when in a ‘political’ context—on the distinction between speech and action (the second of the three views). In a ‘non-political’ context, however, it is accepted that speech can be action, and it can be legally restrained. But where can we find a distinction between the ‘political’ and the ‘non-political’ strong enough to support these two different ways of treating speech?

The first of the three liberal views is based on the idea that all sorts of behaviour of an expressive kind can contribute one way or another to the moral and political environment: if we are to protect the ‘political’, this view says, we must protect much more than public political argument. But then, why are offensive acts or displays in the work-place not protected, since they also presumably contribute fairly generously to the moral environment? Conversely, if it is right to defend racial equality by controlling speech in the work-place, why is it not right to control the speech of racist groups in public places chosen in order that the speech shall harass—which one might think was a more spectacular form of harassment?

These problems are under discussion in America, and liberals are anxious to find legal formulations that will distinguish what I have called the ‘political’ and the ‘non-political’. But there is a real conflict between ideals here, and its resolution is likely to require a rethink, not simply cleverer distinctions. The United States claims to be dedicated to affirming racial equality; the Fourteenth Amendment is mobilised to express this; its writ allows the possibility of much intrusive legal activity. When it comes to matters that involve the First Amendment, there is an enormous strain in combining this with what MacKinnon calls ‘the studied inability to tell the difference between oppressor and oppressed that passes for principled neutrality in this area’. The strain is yet more severe when one must say that speech which is action in a ‘non-political’ area is not action in a ‘political’ area; and when, moreover, what counts as speech in the ‘political’ area is construed so broadly that it is unclear why there is a ‘non-political’ area.

MacKinnon has strong arguments, it seems to me, to show that in these ways American liberal opinion is in a tight corner. However, there is more than one reason why the reader might not immediately see what these arguments are. One is that, as I said earlier, she takes for granted or mentions only obliquely what she is attacking, and British readers, in particular, may not only fail to recognise the target, but may wonder why the detailed hagiography of the First Amendment matters to them. (There is an answer to that: we deeply need something like the First Amendment, as we need affirmations of other basic rights, and should be warned of problems that can come with them.)

There is another reason, however, why any reader might find it hard to follow her argument. The reason is that it is associated with a polemic about pornography that often conceals the argument and for some people is likely to discredit it altogether. On the strength of its first chapter and its closing pages, you might say that the book is actually about pornography, and that the arguments about the First Amendment are mobilised only as a weapon in that cause, but I do not read it in that way. It seems to me a book about the law and politics of equality and free speech, overlaid by an oration about pornography which is rhetorically spectacular and in that line sometimes quite enjoyable, but which systematically runs together most of the distinctions that are needed if one is going to make sense of the problems of controlling pornography. Indeed, they are distinctions that are needed if MacKinnon is to make sense of her central argument.

Two assumptions are made throughout the oration, both of them untrue. The first is that all pornography is both heterosexual and sadistic. Pornography is solely a matter of the abuse of women by men, and gay pornography, or pornography which is erotic rather than aggressive in effect, simply disappear from the discussion altogether. The second false assumption is that it is straightforwardly known, scientifically established, proved beyond doubt etc, that pornography ‘causes’, ‘is responsible for’, ‘is the agent of’ rape, sexual abuse,’ sexual murder and so forth. Beyond wearily noting that this is no better known now than it ever has been, and that MacKinnon offers no evidence for it, I shall leave aside this kind of claim—which is anyway not as distinctive a part of MacKinnon's case as two other assertions she continually (and it is clear, intentionally) runs together with it. One is that crimes are sometimes committed in the course of making pornography. This is certainly true, and any sensible scheme of regulation will seek to ban pornography which can be supposed to involve such crimes. (The Committee on Obscenity and Film Censorship which I chaired in the late Seventies recommended this as the one ground for banning pornographic materials, as opposed to restricting them to adults who choose to view them.) American law bans child pornography under this principle. MacKinnon approves of this ban, but finds American practice inconsistent in not extending it to other cases. However, she does not tell us how far she would extend it. If there are ‘snuff’ movies, or movies that make us suspect that real torture or coercion was involved in making them, many would agree that there is reason not just to pursue those crimes, but to suppress the movie. How much further does MacKinnon want to go? Sometimes she seems to think that no woman would appear in a porno movie unless she was coerced by a man, so the mere existence of a porno movie shows that a crime was committed in making it.

The other distinctive idea that MacKinnon appeals to here is that there is no relevant distinction between doing it in a movie and doing it. This is not the idea that pornography causes rapes, nor the idea that some pornography may be made by bringing about a rape. This is the idea that a pornographic representation of a rape just is rape. It is the most extreme version of the idea that speech is action.

It is true that photographic pornography is, as it might be grandly put, ‘auto-iconic’: so far as basic sexual activity is concerned, at least in the hardcore case, the participants are doing what they are represented as doing. But this, platitudinously, does not extend to everything that they are represented as doing; for instance, to leave aside simulated violence for the moment, they may be represented as having just cheerfully got together on a bicycling holiday, when they have in fact wearily started on the fourth day of filming sex in an LA cellar. Similarly, the reactions of people watching the movie are not necessarily the same as if they were watching everything represented in the movie. It is because these truths are so obvious, presumably, that MacKinnon devotes her advocacy so single-mindedly to obscuring them. ‘In terms of what the men are doing sexually,’ she writes, ‘an audience watching a gang rape in a movie is no different from an audience watching a gang rape that is reenacting a gang rape from a movie, or an audience watching any gang rape.’ That weasel qualification, ‘in terms of what the men are doing sexually’, has to do a lot of work to stop that from being, to put it plainly, a lie.

MacKinnon deliberately enacts an indifference to almost every distinction that might be thought relevant to this subject: between what actually happens and what is represented as happening; between reality and fantasy; between crimes possibly caused by the film and crimes actually committed on the set; between pornography that shows women being humiliated and dismembered and pornography that represents them as active and enterprising sexual participants. This indifference does not come, I am certain, from intellectual confusion, but from a deliberate policy. It is part of a strategy to obliterate the liberals’ usual hiding places, to deny them their lines of intellectual communication. In the open spaces that will be left when the usual distinctions have been blown away, the liberals will be seen for what they are, the guerrilla forces of male power.

Like other strategies of the same kind, this has considerable political and human costs. One victim of MacKinnon's tactic is her responsibility to the law. It is quite unclear what her proposals about pornography would in fact catch. She and Andrea Dworkin designed a Model Ordinance making pornography actionable as a civil rights violation; it was declared unconstitutional in the United States, though a version of it has had more success, with rather dubious results, in Canada. It is drawn in terms that leave it very unclear what it might be taken to cover. Again—besides the distinction between what is and what is not political argument, which I have already mentioned—MacKinnon also needs the law to distinguish between mere pornography and works of art or radical expression which (just once and very briefly) she admits should be defended. But there is no reason to think that this can be done, and in the Report of the Committee on Obscenity and Film Censorship we argued, I still think correctly, that the whole idea of legal protection for creative works, entrenched in English law in the form of the ‘Public Good Defence’ under the Obscene Publications Act, is misguided in principle.

What is clear is that MacKinnon, at least at this stage of her campaign, does not mind about any of this. There is a rather alarming note of angry, moralistic, populist impatience with these legal quibbles. This is not suitable to someone who is presumably committed to the integrity of the law. It is also not necessarily very clever politics. It is a tone more familiar, in these subjects, from the Right, and MacKinnon should reflect—as feminists have often been asked to reflect—who are her real allies; who would use the vague and moralistic laws she wishes to introduce, and to do what She will be lucky if they are the friends of women's freedom.

MacKinnon claims, imperiously and with out any questions, to speak for women. But many women may not want to be spoken for in such tones. It is not only that they may take a more positive view of some pornography than MacKinnon allows (as Linda Williams for one, does in her book Hardcore). They may wonder whether pornography can be quite the all-consuming, omnipresent and supremely important threat to their freedom and autonomy that MacKinnon makes out. She quotes her friend Andrea Dworkin as saying ‘pornography is the law for women.’ This seems to me an insult to women, who have more to fear from the law, and more to hope from it, than this would allow.

Slogans of this kind also obscure the form of MacKinnon's more general arguments. She has laid bare significant weak spots in the modern liberal doctrine of free speech, particularly in the United States; but many people, including many women, will fail to take her seriously on this if they have no alternative to crouching together with American liberals under the indiscriminate onslaught which she aims at consecutive thought about pornography.

Sue Golding (review date 3 June 1994)

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SOURCE: Golding, Sue. “Devils and Deep Blue Seas.” New Statesman and Society 7, no. 305 (3 June 1994): 45.

[In the following review, Golding explores MacKinnon's concept of free speech as presented in Only Words, focusing on the question of speech versus action as it relates to pornography.]

Catharine MacKinnon is a woman who knows evil when she sees it. Her mission (and ours, should we choose to accept it) is to search out and destroy this evil; to go where no man has gone before and snuff it out at its root.

She calls this evil: pornography; though at times she interchanges it with the words “men” or “them” or “penis” or “liberals” or “postmodernists” or “violence against women” or “sexual abuse” or simply “rape”. With all the innocence of a courtroom lawyer but—oddly enough, and despite her years of legal training—without the air-tight logic of one, she pretends not to notice this blurring of distinctions, nor the facile rhetoric used to seduce when her arguments fail to attract.

Rather than obliterate, or at least contribute to the obliteration of, hatred in all its forms—including that generated from crude stereotypes of women or of men—Only Words simply exchanges one form of bigotry for another and, more infuriatingly still, names that exchange: “feminist”.

“Pornography is masturbation material,” MacKinnon solemnly intones. “It is used as sex. It therefore is sex.” Men know this: “With pornography, men masturbate to women being exposed, humiliated, violated, degraded, mutilated, dismembered, bound, gagged, tortured, and killed … What is real here is not that the materials are pictures, but that they are part of the sex act. The women are in two dimensions, but the men have sex with them in their own three-dimensional bodies, not in their minds alone. Men come doing this.

“This, too, is a behaviour, not a thought or an argument. It is not ideas they are ejaculating over. Try arguing with an orgasm sometime. You will find you are no match for the sexual access and power the materials provide … Until we face this, we will be left where Andrea Dworkin recognises we are left at the end of Intercourse: with a violated child left alone on a bed—this one wondering if she is lucky to be alive.”

For MacKinnon, then, pornography is as much an “either/or” monster as it is a roller-coaster slide; always, already “the law” for woman; always, already the unrelenting sex drive for man; a nasty-nasty starting somewhere atop the slippery slope of (male) masturbation, skidding wantonly to rape and ending at the bedpost of a sexually mauled child. There is no middle ground, no ability to post claims to the contrary.

Indeed, the very thought that there might be a different reading about pornography itself—say, for example, by any woman who might enjoy watching it, or making it or playing with it—is rendered utterly untenable. This, not surprisingly, allows her to dismiss as “brainwashed” or “too intellectual” or simply “a lie” all the serious scholarship in feminism, gay and lesbian studies, not to mention legal briefs over the past 20 years, that go against her grain.

Given all this, one does begin to wonder at the cogency of the work. And yet if one can bear to chip away at the layers of fatuous dogma verging on the shrill, one does find an argument around obscenity, cruelty and the law worth considering—though not for the reasons she puts forward. In short, it turns on the question of speech versus action, and it runs something like this:

Free speech—the bedrock of US civil rights and the cornerstone to most concepts of a democratic world—should not, MacKinnon insists, be tolerated as a defence for the circulation and exchange of erotic material. Rather than be seen as a form of speech, pornography is now condemned by MacKinnon as an imposition “on individuals against their will”. As such it carries “all the characteristics of a physical assault” and should be counted as action.

If counted as action, rather than speech, erotic material could quite possibly be held to contravene another, though quite different, basic democratic right in America: that of equal protection under the law. Known as the Fourteenth Amendment to the US constitution and ratified in 1868 after a series of debates, not to mention a civil war, this amendment extended to every state all rights previously guaranteed only at the federal level.

Over the years, this has been interpreted to mean that any public policy that forged its procedures out of discriminatory or racist practices would not only be condemned; it would be outlawed, and punishable as such. These are important legal and political changes that have made life better for thousands. Yet they appear, as she puts it, to be on a “collision course” with freedom of speech.

MacKinnon wants to know why pornography—or rather, its sexist effects on women—cannot be attenuated by the equal protection clause, given that pornography is, as she puts it over and again, not “only words”. And as it must be considered action in the strongest sense of the term (assault), she wonders why those who promote it or speak on its behalf cannot face the full penalty of law, as a rapist or murderer would do.

She is convinced that with a little—or a lot of—extra control placed in all the right places, this evil will never rear its ugly head again. Somehow there will never be an abuse of this power; never a fatwa proclaimed against the “real” innocents among us; never a committee struck to find the “Un-American” compatriot; never a police raid against people whose sexual proclivities—like being lesbian or transvestite—could ever be abused. Indeed, she dismisses the actual reality of police raids on scholarly gay book-stores in Canada, only weeks after the implementation of new anti-porn legislation there, as outright “lies”.

The odd thing here is that no one ever thought the right to free speech only ever meant “just” words. This is precisely why it was entrenched as the most fundamental right of a people. But by putting the debate in terms of speech versus action, MacKinnon has actually done us a favour. Given that most people today now understand power itself as multiple and varied, and as a function of processes rather than end-points or simple goals, it becomes clearer than ever why we must entrench freedom of speech in the strongest terms possible, broadening it to include that which concerns the erotic.

That there are (deeply) blue areas, sometimes called grey, does not mean that it is impossible to expunge sexism or racism or homophobia, or that ethical principles are tossed to one side (the side of “male power”). It means precisely the reverse: no law “protecting” our interests will safeguard them better than the right to exchange, assemble and discuss. At the risk of sounding too bold or too liberal or too radical, the old remark still applies: I may not agree with what MacKinnon writes, but I will certainly defend to the death her right to say it.

James T. McHugh (review date summer 1994)

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SOURCE: McHugh, James T. “Pornography and Power.” Review of Politics 56, no. 3 (summer 1994): 596-97.

[In the following review, McHugh considers Only Words to be a valid and notable contribution to the discussion of the limits of free speech under the U.S. Constitution.]

This book [Only Words] offers a continuation of Catharine MacKinnon's earlier writings on the subject of speech, freedom of expression, and constitutional law from her unique perspective of feminist legal thought. It extends her already familiar approaches to this broad issue by challenging dominant civil libertarian attitudes regarding the relationship between women and speech. While readers might object to her apparently rigid style and equally inflexible approach, there is an important challenge presented by this book which anyone with an interest in this profound subject needs to address.

The dominant theme of this book revolves around the relationship of speech to power, and particularly to the issue of women's lack of empowerment as represented by, and inflicted through, pornographic expressions. This theme is hardly a novel one, but MacKinnon pushes it to new limits in her attempt to compel her readers to challenge prevalent attitudes within society, including attitudes shared by many feminists, regarding the distinction between erotica and pornography. At first glance, her examples (and, indeed, her entire approach) may appear to verge upon hyperbole. However, upon further reflection the nondismissive reader is forced to think critically about her arguments—even if for no other reason than to offer a meaningful reason to dismiss them as being extreme.

The most profound problem experienced within this book is the lack of a specific and consistent distinction between the concepts of “pornography,” which refers to sexually explicit expressions that are harmful in some sense, and “erotica,” which refers to sexually explicit expressions that are not strictly harmful (and which may, in fact, promote positive expressions of human sexuality) and which may indicate a broader and meaningful message. MacKinnon appears to rely upon the easier, though unsatisfying, premise that all expressions of a sexual nature which involve women promote an image (and thus the reality) of the general dominance of women by men within society and, therefore, deny women in their quest for empowerment.

While there may be obvious problems with adopting such an inflexible premise, it must be understood as being part of the larger process through which MacKinnon attempts to compel her readers to accept her essential argument that pornographic expressions should not be protected as free speech. This argument ultimately contends that pornographic expressions are fundamentally wrong, not because they are objectionable from the view of a Victorian sexual sensibility, but because they promote inequality, violence, and other forms of “harm”—particularly when they are legitimized through such legal sanctions as the protection offered by the “free speech” clause of the American First Amendment. Thus MacKinnon ultimately (and perhaps ironically) uses a liberal democratic principle to promote an argument that has been more readily embraced by radical, rather than liberal, feminist legal scholars.

For example, when MacKinnon challenges Manet's painting of clothed men and naked women at a picnic through use of this standard, she is also challenging the reader not to dismiss such an example out of hand. After all, there is a defendable case to be made that such an artistically acclaimed and aesthetically pleasing representation nonetheless promotes a male fantasy and dominant attitude regarding female availability in the presence of male power and dignity. It would be a gross mistake simply to denounce such an example as prima facie ridiculous, as many critics have been tempted to do. Instead, MacKinnon does here what any good scholar should do; she challenges the reader to explain exactly why this painting should not qualify as pornography. It is unacceptable simply to declare that it is a great work of art and, therefore, beyond the realm of harmful expressions which may be proscribed; one needs to be able to define such concepts specifically and apply them critically.

It is for that reason that MacKinnon's comparative analysis is so useful. Canadian constitutional development has been extremely instructive regarding the growth of such principles and definitions as MacKinnon seeks to explore within this book. It is a constitutional development which originates in the twentieth, as opposed to the eighteenth century, so that it reflects a more sophisticated evolution of the rights tradition than is evident within recent American jurisprudence. While the American constitutional tradition has limited freedom of expression upon the basis of a rather parochial definition of the liberal “harm principle” (such as Oliver Wendell Holmes's “clear and present danger” test), the Canadian tradition has extended that definition to include the presence of a broader and more pervasive sense of “social” harm, including the sort of harm which MacKinnon addresses within this book. While critics may decry such legislative “social engineering,” as represented by Canadian “hate crime” statutes, and judicial intervention that are compared so favorably here, MacKinnon offers a very real challenge to prevailing American constitutional norms which must not be dismissed in a cavalier fashion.

Even if one rejects MacKinnon's final analysis as presented within this work (and it does appear to be too unqualified to be sustained entirely), the legitimacy of the challenge itself should not be denied. There is a growing diversity of approaches regarding women, society, and sexually explicit expression from a theoretical and a policy perspective. Regardless of one's attitudes regarding the author and her thesis, Only Words makes a valid and notable contribution to that growing body of literature.

Richard Sennett (review date July 1994)

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SOURCE: Sennett, Richard. “The New Censorship.” Contemporary Sociology 23, no. 4 (July 1994): 487-91.

[In the following review, Sennett notes that while Only Words is MacKinnon's weakest work, it owes its popularity “to the assimilation of feminism into a rhetoric of aggression, sexual repression, and community building which marked the mythology of the American frontier.”]

By any measure, the United States is a violent society, marked by high rates of murder, assault, child abuse, and rape. Women suffer disproportionately from this violence. Gendered violence has thus prompted new thinking and writing about pornography, but the renewed interest in pornography's social consequences has created new confusions. Traditional, right-wing advocates of censorship have been joined by people seeking to lighten the burden of gendered violence through forbidding its representation. And old dilemmas about the very act of representing the forbidden, once framed in aesthetic terms, have reappeared as political and social issues, which has not made them any clearer.

For anyone who writes sexually explicit fiction, as I do, the sociological weight now given to representations of sexual violence can prove an artistic burden, as the new advocates of censorship indeed intend. Smutty texts are as old as literature itself. Graphic writing about the juncture of sex and violence began to accumulate at the time of the French Revolution, notably in the work of the Marquis de Sade (1740-1814), a literature which aimed at exposure and subversion of the reigning social codes of bodily propriety. The family tree of such writing has now become elaborately branched, including writers and artists who explore child abuse, such as Russell Banks and Dennis Cooper; sadomasochism among gay and lesbian partners, such as Robert Mapplethorpe and Joan Nestle; as well as more mainstream artists exploring more mainstream, heterosexual violence, such as John Updike and Martin Amis.

Some of the new advocates of censorship seek to distinguish between pornography that does harm to women and serious artistic efforts which aim to explore sexual violence; Cass Sunstein does so, for instance, in Democracy and the Problem of Free Speech, perhaps the most intellectually distinguished of the recent arguments in favor of censorship. The guarantee of freedom of expression to “real” artists is often derived in turn from the artistic distinction between the pornographic and the erotic. In literature, pornography divorces sex from personality, from narrative, and from a larger setting; these serve the pornographer as mere props for the real action, which is up-close description of cocks, anuses, cunts, and breasts. Erotic writing, by contrast, should tell something about people's characters by describing sexual pleasure and pain in their bodies, and something indeed about the society in which they live.

The trouble with this distinction is that the truly erotic writer may reveal a social vision which is deeply offensive to the moral, communal standards of his or her readers. As Maurice Lever's new study of the Marquis de Sade makes clear, Sade offends as an erotic, rather than a pornographic, writer; he constantly explained and indeed moralized about his orgies, though it is not an explanation which most of his readers want. The scenes of rape and defilement he created express a peculiarly aristocratic vision of worldly pleasure, the bodies of other people serving only the master's desires; there is no sexual equality, no mutual pleasure, in Sade's writings, only command and obedience. When Sade's writings excite his readers erotically, it means that we are drawn by pleasure's complicity into that disturbing vision.

In the practical world, the distinction between the erotic and the pornographic therefore often founders. While the feminist censors Andrea Dworkin and Catharine MacKinnon have often sought to draw a line between the two in statutes they have drawn up for various communities, their tradition-minded partners in those communities have not done so, because of the very power of erotic art like Robert Mapplethorpe's to upset, provoke, and destabilize communal values.

The new debate about pornography involves, however, a perhaps deeper debate, concerning the very nature of representation. Forty years ago the British barrister John Sparrow defended the publication of D. H. Lawrence's Lady Chatterley's Lover by invoking the principle of the neutrality of representation. Sparrow argued that reading about a woman committing adultery did not necessarily lead a reader to commit adultery. Other defenders of freedom of expression have argued that explicit representations both of sexuality and of violence in fact have a discharging rather than activating effect, dissipating in a reader's fantasy life desires that might otherwise build up like steam pressure and lead a person to transgress.

Recent scholarship challenges this assertion of the neutrality of representation. To the debate about the power of literary imagery, it adds new insights into visual representations of gendered violence, particularly in the mass media. The most impressive modern scholarship in this vein has come from outside academic sociology, in the humanities from art historians and critics of film like Richard Slotkin and Laura Mulvey, in the social sciences from political theorists and legal scholars like Cass Sunstein and Catharine MacKinnon. Yet the variety of this work turns on a shared sociological premise: Representation leads to mimesis; that is, looking at gendered violence leads to copying it.

In place of the neutrality of representation, art historians have explored the “politics of the gaze,” apparent in nineteenth-century depictions of nudity which place the male viewer in a position of mastery looking at a naked female subject. Linda Nochlin has argued that Courbet's viewers, for instance, in gazing at such sexually graphic works as “La Creation du Monde” legitimated through the image a host of attitudes demeaning to women which could be made licit only within the domain of high art. Film critics like Laura Mulvey have in turn applied this “politics of the gaze” to popular art, film, and advertising, arguing that sexualized violence against women becomes normalized and routinized through the image as it could not be through the spoken word. Cass Sunstein draws on such challenges to the neutrality of representation to make the case for the legitimacy of censorship per se: “The problem consists of tangible real-world harms, produced by the portrayal of women and children as objects for the control and use of others, most prominently through sexual violence” (p. 213).

The theoretical foundation for the proposition that representation leads to mimesis derives largely from the writings of Michel Foucault. Representation, in Foucault's view, activates behavior in which the image serves as a neutral standard with anything but neutral consequences, and this is particularly true of the kinds of visual representations conveyed by films and television. The viewer doesn't participate in making such visual imagery as the reader's fantasies enter into the mental imagery conjured by words; instead, the visual images of the mass media are received just as themselves transcriptions or glimpsed records of actual experience. Foucault argues in Discipline and Punish that the “innocent” image thus more powerfully shapes behavior than words or verbal laws subject to challenge and debate (and this is why Foucault calls the Panopticon of Jeremy Bentham the first “innocent machine,” distinguishing its visual powers from older verbal techniques of examination or confession).

The greater emphasis on regulating images than words in the new censorship derives from this insight. Sunstein writes that “the evidence on pornography as a stimulus to violence deals mostly with movies and pictures, and the immediacy and vividness of these media suggest a possible distinction from written texts” (p. 218). As a practical correlation, the protections for free speech that apply to literature should not apply in the same way to film or television.

The proposition that representation leads to mimesis is now the real issue in a great empirical debate about the sociological effects of pornography. An excellent summary of the research favoring this proposition has been edited by Catherine Itzin. Pornography: Women, Violence, and Civil Liberties brings together a large number of essays by both English and American writers; part 3 of this collection presents, in particular, ten research articles laying out the evidence of harm on which a politics of censorship could be based. Feminist groups disputing this evidence include the Feminists against Censorship group in the United Kingdom and FACT (Feminists against Censorship Taskforce) in the United States, the latter group linked to the American Civil Liberties Union. The writings of their members can be found in another anthology, Sex Exposed: Sexuality and the Pornography Debate, edited by Lynne Segal and Mary McIntosh; a focused attack on the data presented in Catherine Itzin's anthology appears in Marjorie Heins's book Sex, Sin, and Blasphemy.

I cannot imagine that this empirical debate would satisfy a sophisticated statistician, and indeed the Segal and McIntosh volume is at its best in criticizing the measures of harm used by Itzin's colleagues. Moreover, the discussions frequently degenerate into simplistic cause-and-effect scenarios, neglecting the characteristics of who does harm for the sake of debating what does harm. A deeper difficulty lies in using the extremes of pornography as data indicative of more general social experience. As two of the contributors to Itzin's volume, Deborah Cameron and Elizabeth Frazer, remark, “The recent focus of so many writers on causal models of sexual violence … often impl[ies] that the problem is non-normal individuals and extreme sexual practices” (p. 381).

I note, for instance, a recent evening of family entertainment on television which featured a serial killer holding a knife to a woman's breast just below her nipple. To qualify as “pornographic,” the breast would have been bared; since this was family entertainment, the young lady was shown wearing a sweater. Clothing her accomplishes the legitimation of gendered violence, as stripping her naked would not; the violence against her becomes a licit image precisely by not being sexually explicit. Or, in Foucault's terms, the image of gendered violence becomes “innocent” and normative by observing a convention of sexual discretion which allows the depiction of violence free rein, making the violence palatable to a mass audience.

It was for this reason that writers of and about explicit sexuality, from the Marquis de Sade to Georges Bataille, have argued that graphic representation can indeed become a subversive experience by removing the screen of normality from desires otherwise clothed. Bataille has argued that only when violence is literally bared, in the sexual play of pornography, can people see it as they never will see violence, no matter how graphic, which still observes the normalizing rule of sexual dissimulation.

One of the few proponents of censorship to take up this connection is the legal scholar Catharine MacKinnon. MacKinnon's early writings shocked many readers because she argued that gendered violence derives from gendering as such. Heterosexual erotic relations are in modern society inherently unequal relations of power, she has argued, an inequality expressed through violence; the more explicit the representation of sexuality, the more evident the link between violence and sex.

A serious exposition of MacKinnon's views is to be found in her essay “Pornography, Civil Rights, and Speech” (reprinted in the Itzin collection), where she makes a strong argument that the domination of women is unlike other forms of domination in that it must be inherently sexually brutalizing. She argues that “the object world is constructed according to how it looks with respect to its possible uses. Pornography defines women by how we look according to how we can be sexually used” (p. 463). If in general MacKinnon hopes to stifle gendered violence by repressing its display, she more specifically hopes that women will sense themselves to be empowered by the very struggle to forbid depictions of gendered violence.

This practical proposition flies in the face of her deeper understanding of the relation of sex and power; indeed, it would only reinforce the normalizing tendencies of the violent image. Just as it is licit to show a knife menacing a clothed breast, so too can images of serial killings, of torture, and of war crimes all be rendered legitimate precisely by following the rules set out by MacKinnon and Sunstein. To act logically on their analysis, the censors ought to direct their efforts at a massive program of regulating the mass media rather than focus on the supposed extremes pornography; the censors ought to attack licit rather than illicit representations of violence, for it is in these mass-media images, if anywhere, that representation gives rise to mimesis; it is in the shared community of images that violence is normalized by observing certain representational conventions concerning sex.

Here, it seems to me, lies a sociological, rather than a legal, problem. What social purposes are served by structuring representation such that violence acquires legitimacy through codes of sexual discretion? To answer this question, we might consider pornography's historically older cognomen, obscenity.

Since early Roman times, state power has needed obscenity. Roman emperors imprisoned their enemies for obscenity when they lacked other sufficient reasons; Roman generals sought to explain away lost military campaigns as the result of lax morals in order to deflect blame from themselves to the troops. Christian attitudes toward Jews in the Middle Ages and the Renaissance similarly constructed “the Jew” in an obscene body in order to justify state powers of repression. In modern times, fascist and communist regimes have used obscenity as a synonym for dissidence, in ordinary politics as well as in art and literature.

This familiar pattern has ruled in American history as well, but with a further twist. American society has made use of obscenity to do the work of community building. In a country whose population is diverse and highly mobile, whose settlements are geographically fragmented, codes of sexual probity have formed a way to define what community is all about. The popular language of “family values” and of “values” per se is a barely disguised language of sexual prohibitions, the popular allies of MacKinnon and Sunstein taking the breakdown of family values and community standards to be synonymous with sexual explicitness.

It isn't quite historically accurate to trace this juncture of community formation and sexual prohibition back to the Puritans; the Puritans spoke a language about the body which was far more frank than bodily discourse in the later Colonial era. But there was one Puritan source for the current identification of community with sexual probity. Violent expulsion from the community promised moral regeneration to the Puritans: Once obscene influences are banished, the community will be reborn.

In a remarkable series of books, the historian Richard Slotkin has sought to trace the history of this intrusion of violence into the links between community and sexuality: Regeneration through Violence: The Mythology of the American Frontier, 1600-1860; The Fatal Environment: The Myth of the Frontier in the Age of Industrialization, 1800-1890; and most recently the conclusion to this trilogy, Gunfighter Nation: The Myth of the Frontier in Twentieth-Century America (reviewed in CS November 1993, pp. 854-55). Unlike the discourse of many of the new censors, who assume, as did the Marquis de Sade, that sexuality and violence are nearly biologically inseparable, Slotkin has sought to show how in America they became entwined historically as Americans dealt with the traumas of building community.

Through the vast panorama of these remarkable books, he shows, for instance, how ideas of masculinity were shaped through the violent imposition of European settlement on the native American landscape, and how that violent, conqueror's masculinity gradually turned inward within the European community to define the relations between American men and women. The final volume, Gunfighter Nation, particularly in parts 3 and 5, takes up mass-media violence in the context of American uncertainties about the durability and certainty of community life; the peculiar combination of unbridled aggression and clothed sexuality in film appears to him as providing a seductive bond between power and probity, recovering “the ideological values, if not the material reality, of the mythic Frontier” community (p. 228).

There are curious echoes of Slotkin's theme in Catharine MacKinnon's most recent book, Only Words. It is, unfortunately, the weakest of her writings: its scholarly apparatus is nil, and the author shows herself intolerant of all contrary argument. The immense popularity of this tract owes everything to its rhetoric. It begins, for instance, in a spirit which Sade might have thoroughly approved:

You grow up with your father holding you down and covering your mouth so another man can make a horrible searing pain between your legs. When you are older, your husband ties you to the bed and drips hot wax on your nipples and brings in other men to watch and makes you smile through it. Your doctor will not give you drugs he has addicted you to unless you suck his penis.

[p. 3]

This rhetoric draws its strength from many of the themes Slotkin has traced through his history: the settler's sense of living in a brutal environment; the need to fight implacably for survival, denying the claims of those who differ; the belief that a community will take form among those who fight together in a hostile land—for the word colonist one need only substitute the word feminist. Only Words owes its enormous American popularity, I think, to the assimilation of feminism into a rhetoric of aggression, sexual repression, and community building which marked the mythology of the American frontier.

I remarked at the beginning of this review that, as a writer of books which have been attacked as pornographic, I could not read the new literature of censorship with an unbiased mind. The social justification of erotic violence seems to me to consist exactly in its explicitness and openness, in its power to disturb. If it is true that representation leads to mimesis, then the socially consequent forms of censorship have to address licit representations, rather than communally illicit forms, and would require a regulatory apparatus of control on the model of the Catholic Inquisition during the Counter-Reformation.

If censorship is understood as a sociological phenomenon rather than as the political event Cass Sunstein imagines, the peculiarly American resonances in MacKinnon's rhetoric ought to give pause to everyone involved in this debate. What does “empowerment” mean? Does it mean community building? The undertow of community building in our society mobilizes aggression and violence; the myths of communal regeneration are inflected peculiarly in America because the tissues binding people together in this country tear so easily. Gendered violence is an enormous problem in this country, but its center of gravity lies in that perverse condition Foucault calls “innocence,” in the domain of the normative rather than the deviant.

Susan Fraiman (review date December 1995)

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SOURCE: Fraiman, Susan. “Catharine MacKinnon and the Feminist Porn Debates.” American Quarterly 47, no. 4 (December 1995): 743-49.

[In the following review, Fraiman summarizes the debate among feminists regarding pornography and highlights the strengths of MacKinnon's arguments in Only Words.]

Those of us in academe all know by know that sexuality is constructed. We also know that it may feel rather unreconstructed, even untheorizable. In spite of our training, sexuality may nevertheless seem to us irrational, unmediated, and very personal. Sometimes it seems downright natural. As Catharine MacKinnon observes, “Because of its location in intimacy, harassment that is sexual peculiarly leaves nothing between you and it: it begins in your family, your primary connections, those through which the self is developed” (60). There is, of course, another sense in which sexuality does not begin in the family as much as in the courtroom, medical treatise, or literary text, but it is equally true that we live it in the tender, psychological interstices MacKinnon describes. Given this double sense of sexuality and its representations—as both public and private—I want to preface my comments on Only Words with an anecdote that I hope will do double duty as it suggests at once my personal relationship to Catharine MacKinnon and the antipornography movement and establishes something of a historical context for her most recent book.

The year is 1982, and the Reagan era is still in its appalling infancy. I am a graduate student at Columbia and active in the feminist community. A few years back, I have seen the slide show put together by Women against Pornography, and I take for granted the connection between pornographic images of women and material violence against them. Now I am looking forward to the ninth annual Barnard conference on feminism and scholarship; the theme, this year, is the politics of sexuality. On the morning of the conference, I am surprised to find my way blocked by a line of angry picketers. What species of antifeminist are these? What faction of the new right has gotten up bright and early to keep women from talking about sex? Imagine my astonishment to learn that the protesters, like the conference-goers, are feminists; they are, in fact, my old allies, Women against Pornography, and they see the conference as an endorsement of sadomasochism and other power-driven sexualities.

I walk a little more eagerly toward the opening session. The protesters are right—conference speakers do indeed explore the controversial topics of butch-femme lesbianism, feminism and fetishism, intergenerational sex, and other erotic practices long taboo in high feminist circles. The upshot is that a host of well-credentialed feminists—Gayle Rubin, Ann Snitow, Carole Vance, Pat Califia, and Ellen Willis, among others—are earnestly calling feminism to task for a regime of sexual correctness that was leaving lots of people out in the cold. Newsweek take note: feminists themselves have been worrying the issue of “sexual correctness” since 1982.1 In the next few days, I am asked to sign a petition sponsored by a lesbian S/M group and critical of Women against Pornography. I am still used to being, precisely, a woman against pornography, and I have never understood my feminism as a defense of bondage—quite the opposite—but I begin to understand that we have become too prescriptive about what people do in bed (or wherever), and I end up signing.

In retrospect, the whole confusing event marked not only a turning point in my own thinking about feminism and sexuality but also the explosion into print of a division among feminists that had been present for some time—stretching back, arguably, even to the nineteenth century, when “social purity” and “free-love” feminists fell out along similar lines.2 This time around, the decade-long, sisterly skirmish would come to be known by those in the trenches as the “Sex Wars” or, more specifically, the “Porn Debates.” Briefly, the antipornography side sees porn as a form of violence against women that is best combatted through legislative means. It points to coercion used in the making of pornography and offers the ultimate example of the “snuff film,” in which a woman is actually murdered. It also argues that porn causes copycat violence and cites studies about pornography's influence on sex offenders. Its emphasis, generally, is on the danger posed by sexuality for women—an emphasis that clusters the phenomena of pornography, prostitution, rape, and battering as the linchpins of women's oppression. The major strategy of this side has been various legal ordinances designed to restrict the circulation of pornographic materials. Having drafted most of these ordinances, Catharine MacKinnon, along with co-author Andrea Dworkin, is by far the most visible advocate of this position.

The other side—known as “anticensorship” or “prosex” feminism—is wary of legislative remedies. It points to the problem of defining harmful images and fears that conservative lawmakers will end up banning images we have fought for: women's health-care and sex education manuals, depictions of lesbianism, the vulval ceramics of Judy Chicago. It condemns violent porn but does not isolate the sexually explicit—or sex—as the root of all evil. Hustler is placed, rather, on a misogynist continuum that includes the glossiest of mainstream advertisements and the highest of cultural artifacts, and sexual violence is seen as but one locust in a plague of social, economic, and political crimes against women. This position also wants, more positively, to claim female sexual agency, in all its many and sometimes disconcerting forms. To the other side's cry of “danger,” its response is pleasure and pluralism. Without actually defending the pornography industry, prosex feminists deny that all sex workers are coerced, that sadomasochistic porn naturalizes female submission, and that images of female body parts necessarily reduce women to those parts. And prosex feminists have their own studies disproving the link between pornography and rape.

Needless to say, the clash between these views has been fierce and has fostered rival organizations in England, as well as the United States, and a flow of publications that has yet to abate.3 Antipornographers are accused of being antisex, of regressing to the puritanism and class condescension of many Victorian feminists, of abetting the Moral Majority, and of jeopardizing free speech. Prosex feminist, for their part, are accused of condoning a multibillion dollar, global industry of sexual violence against children and women, its worst victims frequently from third-world countries. This, then, is the heated context for Catharine MacKinnon's newest publication and also—in the aftermath of my Barnard conversion—for the skepticism with which I inevitably approached it.

The book itself is a moving volume in many respects, but it nevertheless finally reinforced my alliance with, as the terms of this debate would have it, leather over legislation. For example, MacKinnon denies, at one point, that her polemic against pornography presumes the use of coercion in its making (20). In fact, however, the rhetorical force of her argument relies heavily on an implicit equation between the specific abuses she itemizes and the production of porn generally. Linda Marchiano, who has testified she was raped for the filming of Deep Throat, is taken to stand for all sex workers; the snuff film, its horror obvious but actual existence doubtful, is taken to stand for all pornography. Few people would deny that women should not be raped or killed for the camera—and I agree with MacKinnon that, in such cases, the pornography itself should be implicated. What I do question, though, is her reference to a totally undifferentiated pornographic field—as if magazine and video, soft-core and hard-core, commercial and underground, heterosexual and lesbian porn could all be effortlessly conflated. The same goes for the experience of women in the business. It is important to acknowledge that, for every Linda Marchiano, there is an Annie Sprinkle or Nina Hartley who sees herself as empowered by pornography, and sex workers speaking on their own behalf have, for the most part, demanded not better work, but better working conditions.4 MacKinnon has argued that women, like children, cannot consent to posing for pornography since they are unequal parties to the transaction (36); yet no heterosex is purely consensual by this definition, and, unequal as women may be, I would want to insist that when women say “yes,” unlike children, they mean “yes.”

So much for the production end of pornography. As for the harm caused by consumption, I do not need any scientific studies to convince me that sexist porn contributes to the oppression of women—I teach literary and cultural studies largely because I share MacKinnon's view that words are never “only words,” that language has the power, for better or worse, to organize our lives. But if I tried to outlaw all misogynist texts, the planet would be greatly diminished—with few great books and fewer mainstream films, not many newspapers, and probably no fairy tales. Somehow, practically, the legal meaning of discriminatory language has to be constructed more narrowly than that which contributes to inequality. MacKinnon's claim that watching a rape on video is tantamount to raping often involves the implication that men turn around and act on what they have seen. When this is actually the case, I have no trouble prosecuting the flick along with the dick. But MacKinnon also wants to charge both instruments even when the only victim is on screen. “What is real here is not that the materials are pictures,” she says, “but that they are part of a sex act. The women are in two dimensions, but the men have sex with them in their own three-dimensional bodies, not in their minds alone” (17). MacKinnon's point is that such a scenario involves an act, not mere speech—so First Amendment speech protections do not pertain. I agree with her that an erection is an act, but it does not seem to me an inherently culpable one, and it should certainly be distinguished from the act of going on to restage a scene of violence. More important, however, is that pornographic materials do not, by and large, involve violence. As others have noted, women are brutalized far more often on prime time and are far more apt to be punished for sex in a Hollywood thriller.5 The typical consumer of pornography is not even necessarily a male, much less a rapist; heterosexual and lesbian couples now comprise a sizable part of the home-video market.6 The problem is, once again, MacKinnon's tendency to homogenize her subject—to deny the diversity and complexity of porn, as well as the possibility that its consumption might ever entail pleasure instead of danger for women.

MacKinnon's attempt to define pornographic speech as a discriminatory act is more successful, I think, when it comes to sexual harassment. Here the women at the receiving end are, significantly, not two- but three-dimensional, and this makes MacKinnon's claim that assaulting them with sexual words and pictures does not involve protected speech far more credible. I agree with her in this case that such words “do not merely describe sexuality or represent it. In a sense, they have sex” (58). But, nonlawyer that I am, I cannot help wondering if the legal debate about pornography has not boxed MacKinnon into the sometimes limiting contention that words, when sexual, are actions. I understand that MacKinnon needs to do this strategically, in response to those who wave the First Amendment in defense of pornographic expression. As a result, however, she is forced to deny the ways that sexual images function not as actions but as representations. For this reason, I am most persuaded by her final chapter, in which she shifts ground to take up speech primarily as speech, arguing that the Constitutional defense of its freedom should be balanced by the no less Constitutional commitment to equality—First Amendment protections brought into dialogue with Fourteenth Amendment ones. According to MacKinnon, courts should have to weigh the right of pornographers to speak against the right of women to be treated fairly, and any consideration of speech rights should also address the issue of equal access to speech. This last strikes me as an especially salient point: discussions of speech must, as MacKinnon insists, recognize that some groups are more empowered to speak than others (102).

So I find some things to praise about Only Words, though I continue to take the “pleasure” side of this particular intrafeminist dispute. MacKinnon's ideal society, liberated from sex between “human beings and pieces of paper” (110), strikes me as a place deficient in imagination. Yet, as I have tried to suggest, my trouble with the views MacKinnon has come to symbolize is very much the product of a specific history, in which the pendulum between stressing the pleasures and stressing the dangers of sexuality for women had swung, in my opinion, too far in the direction of the latter. This coincided with a moment in the early 1980s when the Moral Majority was already mounting a campaign to persecute sexual dissidents, and the Right was poised to commandeer any feminist law restricting the sexually explicit. The truth of the matter, however, is that sexuality remains rife with dangers, as well as pleasures, for women, and that feminism needs to articulate both the positions I have noted, including a stringent critique of pornography and other tools of compulsory heterosexuality. For risking personal attack to give us this, I am grateful to Catharine MacKinnon. Moreover, in light of recent attempts to discredit the feminist antirape movement on campuses—a backlash that ignores prosex feminism altogether while denying that male sexuality ever has its victims—I sometimes think the time has come to cross back over to her side.7

Notes

  1. See Sarah Crichton's much-discussed article, “Sexual Correctness: Has It Gone Too Far?” Newsweek, 25 Oct. 1993.

  2. See Linda Gordon and Ellen DuBois, “Seeking Ecstasy on the Battlefield: Danger and Pleasure in Nineteenth-Century Feminist Sexual Thought,” Feminist Studies 9 (spring 1983); Sheila Jeffreys, The Spinster and Her Enemies: Feminism and Sexuality, 1880-1930 (London, 1985); and, on the range of sexual attitudes in New Woman novels, Ann Ardis, New Women, New Novels: Feminism and Early Modernism (New Brunswick, N.J., 1990), 83-114.

  3. A select list of publications on the antipornography side includes Kathleen Barry, Female Sexual Slavery (New York, 1979); Andrea Dworkin, Pornography: Men Possessing Women (Chicago, 1979); Laura Lederer, ed., Take Back the Night (New York, 1980); Susan Griffin, Pornography and Silence (London, 1981); Susanne Kappeler, The Pornography of Representation (Minneapolis, Minn., 1986); Catherine Itzin, ed., Pornography (Oxford, 1992); and Diana E. H. Russell, ed., Making Violence Sexy (New York, 1993); Writings on the prosex side include the special sex issue of Heresies (New York, 1981); Ann Snitow et al., eds., Powers of Desire (New York, 1983); Carole Vance, ed., Pleasure and Danger (Boston, 1984); Varda Burstyn, ed. Women against Censorship (Vancouver, 1985); Kate Ellis et al., eds., Caught Looking (Seattle, 1986); Linda Williams Hard Core (Berkeley, 1989); and Lynne Segal and Mary McIntosh, Sex Exposed (New Brunswick, N.J., 1992).

  4. See F. Delacoste and P. Alexander, eds., Sex Work: Writings by Women in the Sex Industry (London, 1988).

  5. See Linda Williams, for example, “Pornographies on/scene, or Diff'rent Strokes for Diff'rent Folks,” in Segal and McIntosh, Sex Exposed, 263.

  6. Anne McClintock, “Gonad the Barbarian and the Venus Flytrap: Portraying the Female and Male Orgasm,” in Segal and McIntosh, Sex Exposed, 130.

  7. For a conspicuously ugly attack on MacKinnon (fantasizing her rape), see Carlin Romano's review “Between the Motion and the Act,” The Nation, 15 Nov. 1993. Notable trashings of feminists against rape have come from Camille Paglia in Sex, Art, and American Culture (New York, 1992) and Vamps and Tramps: New Essays (New York, 1994); and from Katie Roiphe in The Morning After: Sex, Fear, and Feminism on Campus (Boston, 1993).

Lester Olson (review date November 1996)

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SOURCE: Olson, Lester. Review of Only Words, by Catharine A. MacKinnon. Quarterly Journal of Speech 82, no. 4 (November 1996): 433-35.

[In the following review, Olson presents several objections to MacKinnon's arguments in Only Words but concludes that the book will “almost certainly reconfigure the national debate over pornography, harassment, free speech, and equality.”]

Presented originally as the Christian Gauss Memorial Lectures in Criticism, Catharine MacKinnon's Only Words endeavors to reconfigure the legal treatment of harassment and pornography by developing the thesis that “the law of equality and the law of freedom of speech are on a collision course in this country” (71). The book consists of three interrelated chapters. The first, “Defamation and Discrimination,” focuses upon the commonplace legal argument that in the United States pornography is protected as free speech, stressing that in this country “pornography falls presumptively into the legal category ‘speech’ at the outset through being rendered in terms of ‘content’, ‘message’, ‘emotion’, what it ‘says’, its ‘viewpoint’, its ‘ideas’” (10). She endeavors to shift the focus of the argument from what pornography says to what it does as an inherently discriminatory activity in that pornography. From this perspective pornography refers to “graphic sexually explicit materials that subordinate women through pictures or words” which are produced for profit and which result in demonstrable harm to women (22). In chapter two, “Racial and Sexual Harassment,” she emphasizes that “if ever words have been understood as acts, it has been when they are sexual harassment. … Only words—yet they have not been seen as conveying ideas, although, like all social practices, they do” (45). She amplifies, harassment “has been legally understood in terms of what it does: discriminate on the basis of sex. … When threatening, severe, or pervasive enough, it works to exclude and segregate and denigrate and subordinate and dehumanize, violating human dignity and denying equality of opportunity” (46). In chapter three, “Equality and Speech,” MacKinnon juxtaposes the commonplace treatment of pornography as speech with the legal treatment of sexual and racial harassment as discriminatory deeds to support the book's thesis.

The most fundamental rhetorical strategy of the book, juxtaposing legal treatment of pornography with that of harassment, is clever in that MacKinnon places pornography in a context that emphasizes its role in reproducing unequal relations between the sexes. In the cases of both harassment and pornography (as she defines it) “social inequality is substantially created and enforced—that is, done—through words and images” (13). She stresses, “at stake in constructing pornography as ‘speech’ is gaining constitutional protection for doing what pornography does: subordinating women through sex” (29). She adds, “discrimination does not divide into acts on one side and speech on the other. Speech acts. It makes no sense from the action side either. Acts speak” (30). At the same time, this strategy is highly risky in a fundamentally patriarchal society in that once the connection between pornography and harassment has been established, the argumentation by comparison could cut the other way by providing a rationale for legally treating racial and sexual harassment as protected free speech, though it appears that this mode of comparison is already underway: “Equality-promoting provisions on hate crimes, campus harassment, and pornography … tend to be attacked and defended solely in terms of the damage they do, or do not do, to speech” (73). She endeavors to overcome this liability by mentioning at the outset of chapter two that “until recently, sexual harassment has never been imagined to raise expressive concerns, although all sexual harassment is words, pictures, meaningful acts and gestures” (45).

MacKinnon's position appears to be that both free speech and equality should be upheld in sanctioning communicative deeds that violate either of these vital elements of the U.S. Constitution. One part of the Constitution should not be evoked to condone the violation of another part: “there never has been a fair fight in the United States between equality and speech as two constitutional values, equality supporting a statute or practice, speech challenging it. Courts have balanced statutory equality interests against the constitutional speech protection. Equality always won these fights until pornography, statutorily framed as sex inequality, lost to the First Amendment, and now equality is losing to speech-based attacks on hate provisions as well” (85).

Another fundamental rhetorical strategy, in evidence in the quotation stressing that “speech acts” and that “acts speak,” emphasizes the actual experiences that go into these communicative deeds, as when MacKinnon writes: “This process of empowerment of the perpetrator and traumatization of the victim occurs not because of the content of the words in the usual sense but because of the experiences they embody and convey” (59). In the chapter on pornography, she frequently stresses that both the production and the consumption of such materials entails the performance of activities: “To express eroticism is to engage in eroticism, making to perform a sex act. To say it is to do it, and to do it is to say it” (33). This strategy is essential to making it possible to treat both harassment and pornography under equality provisions of the Constitution, since more than speech is entailed inherently in both activities: social relationships are defined as unequal through the experience of both pornography and harassment. She draws upon speech act theory to support her position that both pornography and harassment should be understood as acts, not merely ideas.

Another rhetorical strategy in MacKinnon's argumentation that merits mention is her use of analogies between the graphic subordination of women and the graphic subordination of African Americans, children, and Jews, as well as gays and lesbians. She affirms, “only for pornography are women killed to make a sex movie, and it is not the idea of a sex killing that kills them” (15). Later she argues that lynching, a form of sexualized aggression in that it usually entails castration, “expresses a clear point of view. Photographs were sometimes taken of the body and sold, to extend its message and the pleasure of viewing it. More discussion. Are these acts inexpressive and contentless? Are the pictures protected expression? Is a Black man's death made unreal by being photographed the way women's subordination is? … Does the lynching itself raise speech issues, since it is animated by a racist ideology?” (34). To undermine the first amendment protection of pornography, she also affirms, “We are told by the Supreme Court that we cannot restrict speech because of what it says, but all restricted expression says something. Most recently, we have been told that obscenity and child pornography are content that can be regulated” (23). MacKinnon contends, “women's reaction to the presentation of other women being sexually abused in pornography, and the reaction of Jews living in Skokie to having Nazis march through their town, are routinely trivialized in the United States as ‘being offended’” (104-5). This rhetorical strategy is powerful in that it calls upon readers to seek consistency in the treatment of various classes of individuals within the U.S. Less frequently, MacKinnon draws upon legal treatment of depictions of gay and lesbian sexuality (74), even though discrimination laws on a national scale through agencies such as the EEOC do not extend to same-sexuality and this area of the law does not lend such ready support to her case. According to Richard Mohr, author of Gays/Justice, the Supreme Court has only once in its history made a decision favorable to the gay and lesbian community (in 1962 concerning a postal worker's refusal to deliver a newspaper conveying gay content). Of course, the decision on Amendment 2 in Colorado would raise this figure to two favorable decisions in the history of the Supreme Court. Even the EEOC has been found guilty of firing an employee, John F. Singer, because he was gay (Mohr, 154). To MacKinnon's credit, she mentions “that judicially eliminating grievance procedures that recognize racist or homophobic vilification as barriers to education officially denies students equality in education” (74).

Several objections may be raised in response to MacKinnon's argument. First, she depicts women as lacking agency throughout her accounts of them in this book. In this respect, she may contribute to reproducing an unfortunate stereotype of women as passive even as she endeavors to overcome discriminatory practices against women. Second, her use of terms like “victim” oversimplifies the range and complexity of women's diverse experiences of the issues raised by the production and consumption of pornography. Some may, for instance, prefer the terms “survivor” or “warrior” as a matter of personal empowerment and self-definition, despite the fact that the legal system appears to require the presentation of self as a “victim” as a condition for accessing its remedies. Still other women appear to consider the production and consumption of pornography as an aspect of personal choice and sexual liberation. Third, her position on the distinction, if any, between “pornography” and “erotica” is not clear or explicit (though I recognize that she has commented on her position concerning this issue in Rape and Society). Fourth, she omits some commonplace uses of pornography and erotica: some people consider the use of such materials as one responsible way of dealing with the misfortune of sexually transmittable illness. Yet MacKinnon makes no mention of AIDS or its ramifications for the debate, despite the fact that these lectures occurred more than a decade into the pandemic. Fifth, even though I recognize that MacKinnon is not responsible for the political appropriations and uses of her argument by other segments of the society, if her position is accepted by the legal communities, then this new understanding of pornography would almost certainly be selectively and most strenuously enforced against minority communities, as is currently the case with several other laws concerning the expression of sexuality. Despite these objections, MacKinnon's central argument about the role of pornography in the narrow sense she defines it—the mass production for profit of graphic, sexually explicit materials enacting and perpetuating discrimination through words and images, and resulting in actionable harms—merits the serious attention of communication scholars, because it is compelling. Only Words, like MacKinnon's earlier scholarship on the Sexual Harassment of Working Women, will almost certainly reconfigure the national debate over pornography, harassment, free speech, and equality. It merits careful study by scholars in rhetoric, communication, free speech, women's studies, and law—in fact, by anyone wishing to participate in the political and legal process as an informed citizen.

Charlotte Witt (review date summer 1997)

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SOURCE: Witt, Charlotte. “Pornography.” NWSA Journal 9, no. 2 (summer 1997): 165-74.

[In the following review, Witt places MacKinnon's Only Words within the feminist debate over pornography, contrasting her views with Nadine Strossen's Defending Pornography.]

With the Christmas release, to rave reviews, of The People vs. Larry Flynt, it seems that pro-porn philosophy, as argued by Nadine Strossen in Defending Pornography, and Avedon Carol in Nudes, Prudes, and Attitudes, is winning the culture war. The movie portrays Larry Flynt, the publisher of hard-core Hustler magazine, as a flawed but courageous defender of free speech. Frank Rich, in the New York Times calls it “the most timely and patriotic movie of the year”. Even critics, such as Ellen Goodman in the Boston Globe and Hanna Rosin in the New Republic focus on the movie's airbrushing of Flynt (in life he was fat and ugly, had five wives, and neglected his kids) rather than on feminist arguments against pornography, such as those made by Only Words, Power Surge, and The Price We Pay—as if the movie just needed a more attractive “hero” (Hugh Heffner?) and a better product (Playboy?). The invisibility of the feminist debate over pornography in reviews of The People vs. Larry Flynt makes a clear understanding of the terms of the debate all the more urgent.

Feminist debates over pornography originate in fundamental philosophical disagreement. Catharine MacKinnon and Nadine Strossen, whom I will take as representative of their respective viewpoints, do not inhabit the same world. Not only do they differ with regard to the central conceptual and legal questions surrounding pornography, but they differ ontologically—with regard to what is real—and epistemically—with regard to how we can know what is real. Moreover, their views of what language is differ in ways crucial to the debate over pornography. A grasp of these philosophical or theoretical differences helps us understand why it is that their two books do not directly engage with one another, even though they address the same issues and the same range of evidence, and why it is difficult for their feminist readers to compare and evaluate them. The same difficulty faces readers of Avedon Carol's Nudes, Prudes, and Attitudes (a Strossen-style, pro-porn argument for Great Britain), who try to compare its argument with Power Surge by Susan G. Cole, a Canadian ally of MacKinnon, and with the essays in The Price We Pay.

First the ontological differences. MacKinnon lives in a world in which categories like gender are socially constructed according to the blueprint of misogyny. Within this social reality, sexuality is not a natural or biological given (different, perhaps, in men and women) but part of the construction of women as inferior to men. One of the master's tools is pornography, which both depicts and is the subordination of women. The way that we can know this reality is to look at it, and to see it in a new way (view pornography as sex discrimination rather than as obscenity). The evidence that sexuality plays a central role in sex discrimination is also before our eyes in the statistics concerning rape, spousal battery, and sexual harassment. MacKinnon's holistic approach to evidence includes sexual crimes within sexuality as it exists in our culture, and she argues that the way that sexuality (as it exists in our culture) differs for men and women is a significant form of sex discrimination rather than a biological given.

MacKinnon's Hegelian-Marxist intellectual roots are evident in the way she approaches the question of individual choice and freedom.1 In that tradition our identities are constructed through the mediation of public, social institutions and not through private psychological experience. In other words, our individual, private sexual identities, our desires, are formed through our culture's public sexual institutions. Because our culture is misogynist, its core sexual values include the rape, abuse, and sexual harassment of women—the very values that are depicted and enacted in pornography, which MacKinnon thinks is our culture's central sexual pedagogical institution. Pornography teaches misogyny to its users, and it does so by making misogyny sexual. MacKinnon's ontological view concerning the way that private and public are intermingled in constituting an individual's identity explains her extreme pessimism concerning the possibility of a vibrant, exuberant sexuality for women, given current social conditions and institutions. Both Power Surge and The Price We Pay contain chilling descriptions of the way that real-world misogyny shapes women's sexuality.

Nadine Strossen's universe, in contrast, is populated by women (and men) freely choosing to enjoy sexual relations in a wide variety of ways, including the use of pornography. In Strossen's ontology there exist persons, endowed with free will and choice, whose autonomy, and hence standing as moral and political agents, requires full and free choice in the sphere of sex. The repressive forces that limit sexual freedom are either external to the individual—the heavy hand of government intervention and censorship—or internal—our superegos or psychological censors. That is, Strossen inhabits the world of classical liberalism with a contemporary twist in that she celebrates sexual freedom as an important piece of human autonomy for both women and men. Whether its source is external or internal, sexual repression is an enemy of individual freedom and autonomy. Women, in her view, have some catching up to do with men in the sexual arena, but she marshals the evidence of pornography, and women's use of pornography, to show that we have come a long way.

Strossen posits desire and choice as ontological givens, and she views them through a democratic lens—all sexual desires are equal, all sexual choices are equal. Human sexuality is diverse, imaginative, and transgressive—and its pleasures are equally anarchic. Of course, Strossen recognizes rape, battery and sexual harassment as impermissible crimes, but she does not see them as having any wider meaning with regard to sexuality or gender discrimination. And she sees them as crimes that are entirely unrelated to pornography, which is sexual expression, not sexual act. In making these distinctions, Strossen takes an atomistic approach to the evidence; by segregating sexual crime from sexuality (that inner hedonistic drive common to all humans), she finds no evidence of gender discrimination in sexuality—except the repression inflicted by our puritanical culture or our puritanical selves. Feminists, she argues, should fight sexual repression and sexual censorship. Nudes, Prudes, and Attitudes also identifies censorship as the true enemy of feminism.

Strossen and MacKinnon also differ crucially in their views of the language of pornography. In this century, philosophers of language can be divided into two camps. There are those who think that the primary function of language is to represent the world, and for these philosophers the central issue in semantics is truth: how does language mirror reality? Let us call this a representationalist theory of language. The other major philosophical school takes a pragmatic approach to language and views language as closely linked to action, and, in some cases, as action. Let us call this the pragmatic theory of language. Because Strossen is a representationalist and MacKinnon a pragmatist with regard to the language of pornography, they have very different views on what pornography is, what it does, and how it does what it does.2

For Strossen pornography is sexual expression; pornography simply represents sexual ideas. Questions about the meaning of pornography are simply questions about what it represents, and how it is to be interpreted. Because Strossen believes that pornography as sexual expression does nothing, she is sharply critical of MacKinnon whose antipornography argument appears to conflate words with deeds. On the question of the meaning of pornography, Strossen cites evidence that viewers disagree over its meaning, and she uses that evidence to argue for a subjectivist view of its meaning. “The concept that no text or image has any objective, fixed meaning, but rather has a different meaning for each member of its audience, is an integral aspect of the poststructuralist, or deconstructionist, movement that has been so influential in the humanities and social sciences in recent years” (146). A subjectivist view holds that a pornographic picture represents what its viewer takes it to represent.3

For MacKinnon, who explicitly adopts a pragmatist theory of the language of pornography in Only Words, it is a mistake to distinguish between what pornography says, its meaning, and what it does. For a pragmatist an expression, language itself, is an action, and MacKinnon argues that pornographic speech is a speech act and not only words. Moreover, she disagrees with Strossen's subjectivist view of the meaning of pornography. Meaning, for MacKinnon, is not determined privately (as a matter of subjective interpretation) but is fixed publicly by means of cultural norms and institutions. The meaning of pornography is not whatever each individual might think it to be—so that its meaning is subjective, unfixed, and unstable. Rather, pornography reflects and encodes the sexual norms of our culture, which MacKinnon believes are sexist and misogynist. The question of whether the meaning of pornography is a matter of individual interpretation or is established by cultural norms returns us to the contrast between a classical liberal position that stresses the individual and the subjectivity of meaning and a Hegelian position that stresses the role of culture in determining meaning.

What we find in these books, therefore, is a conflict between two worldviews, two ontologies, two stories about what is given and what is constructed, two depictions of social reality, two accounts of what pornography is and how its meaning is established. How can we decide between them? I think that the pervasive use of pornography in the sexual harassment of women by men reveals the inadequacy for feminists of Strossen's liberal defense of pornography. Neither Strossen's view that pornography is merely sexually expressive language nor her claim that its meaning is purely subjective allows us to understand how and why it is used to discriminate against women in the workplace. In contrast, I think that MacKinnon's explanation of the connection between pornography and sexual harassment supports the utility of her theoretical perspective for feminists.

SEXUAL HARASSMENT AND PORNOGRAPHY

The Supreme Court has recognized two kinds of sexual harassment: (1) quid pro quo harassment occurs when a job benefit or opportunity is conditioned upon an employee granting sexual favors to a supervisor; (2) hostile environment harassment occurs when “verbal or physical conduct of a sexual nature has the purpose or effect of unreasonably interfering with an individual's job performance or creating an intimidating, hostile or offensive work environment.”4 In theory, sexual harassment in the workplace and in education is an entirely separate phenomenon from the production and consumption of pornography. In fact, however, pornography, and other forms of sexual expression, frequently play a central role in both kinds of sexual harassment.

Several of the essays in The Price We Pay describe the use of pornography in workplace sexual harassment. “A Weapon to Weaken: Pornography in the Workplace” by Olivia Young and “Like a Smack in the Face: Pornography in the Trades” by Barbara Trees are first-person accounts of pornography directed against women in a work setting. And “Pornography in the Workplace” by Dorchen Leidholdt describes the legal history of sexual harassment and pornography in the workplace. Pornography and sexual expression were also a major element in the sexual harassment case brought by the Equal Employment Opportunity Commission (EEOC) against Mitsubishi Motor Manufacturing of America, in 1996. According to the EEOC, more than five hundred plaintiffs may be eligible for $300,000 in damages; it is the largest sexual harassment case in the nation's history.

For MacKinnon, who wrote a pioneering work defining sexual harassment as sex discrimination and successfully argued the first case before the Supreme Court, the connection between pornography and sexual harassment is direct, given her views on what pornography is. MacKinnon believes that pornography, like other kinds of sexual harassment, is a type of sex discrimination. Just as the words “Did you get any this weekend?” are viewed by the courts as an act of sexual harassment, so, too, is the showing of pornographic films in the station house. “The point is, for fifteen years courts have shown real comprehension that what might be called speech, if forced into an abstract First Amendment mold, are in fact acts of inequality, hence actionable as discrimination” (49).

MacKinnon argues in Only Words that pornography is “performative”; it is a speech act that does something in what it says. In making this claim, MacKinnon is adopting the pragmatist view of language as action expressed in J. L. Austin's phrase “to say something is to do something.” For example, in the appropriate circumstances saying “I do” is the act of marrying. In the appropriate circumstances, the words “Whites only” constitute an act of racial discrimination.5 And, in appropriate circumstances, the display of pornographic images is an act of sexual harassment that can be prosecuted as a violation of civil rights.6

For Strossen, the connection between pornography and sexual harassment is contingent, and depends on the agent's intention. Since for Strossen pornography is sexual expression, it is not an act of any kind. Therefore, it is not an act of sexual harassment. Because Strossen implicitly adopts a representationalist view of language, she understands pornography as an example of the expression or representation of sexual ideas. As such, it is speech and not action, and the issue of free speech is central. What makes sexual expression constitute sexual harassment depends on how it is used: “Sexual expression—along with all other expression or conduct—might well constitute sexual harassment, if—but only if—it is used in a certain way” (126). Indeed, Strossen is critical of “hostile environment” sexual harassment cases that do not require a determination of the agent's intention to harass the victim.

But Strossen's criticism is mistaken. For the question of whether or not pornography (or any other sexual expression) constitutes a case of sexual harassment cannot turn on the agent's intent since for men the display of pornography or use of sexual language might sincerely be intended as entertainment or as a joke. Our common sense and our courts have rendered the unanimous decision that the agent's intent cannot be the determining factor in all cases of sexual harassment.

For MacKinnon, however, you do not need to determine that the agent intended to harass in order to transform expression into discrimination, words into deeds. Rather, since she thinks of pornography as a speech act, it is simply by virtue of saying what it says that pornography does something—in this case it harasses and, therefore, discriminates. It is not necessary to determine that the agent intended to harass the victim to determine that a hostile work environment prevails.

Viewing pornography as a speech act, of course, does not establish that it is a harassing act, a discriminatory act. Indeed, one could accept MacKinnon's pragmatist views on the language of pornography and reject her account of what kind of speech act pornography is. The kind of speech act pornography is, is determined by its content or meaning, and on this point (i.e., the content or meaning of pornography) MacKinnon and Strossen differ markedly. As we will see, what they think pornography means, as well as the way in which they think we ought to determine its meaning, reflects the different theoretical commitments of MacKinnon's Hegelian perspective and Strossen's classical liberal viewpoint.

THE MEANING OF PORNOGRAPHY

According to Strossen, pornography—from very soft to hardest core—is a good thing for women's sexuality. It is good for the women who choose to make it (and quite generally to participate in the sex industry) and it is good for the women who choose to use it. Furthermore, it is not just sexually good for women (helping them to enjoy rich and satisfying sex lives), it is also politically good for women; political equality for women includes equal sexual expression and freedom. And pornography is not good simply for women, it is also good for a culture's political life and freedom; greater pornography in a culture correlates with increased political freedom.7 Indeed, given the picture that Strossen draws of the benefits of pornography for women's sex lives and for their equality with men, her book is a veritable celebration of the political and liberatory benefits of pornography rather than a principled defense of a sad and sordid industry in the name of free speech.8

Strossen's hymn of praise to pornography employs the fundamental assumptions of classical liberalism. Hers is a world of individuals who freely choose to express their sexuality using or making pornography. Sexual desire, like Descartes' reason, is common to all persons, and can be directed toward a vast array of activities and objects. Pornography simply represents those activities and objects, and its meaning is as fluid as sexual desire itself. The value of pornography for women lies not in any particular “message” it delivers to or about us, since its message depends on individual interpretation. Rather, its value lies in its ability to weaken the sexual repression that has been particularly damaging to us.

However, given the positive role of pornography in the sexual lives of women, and given the fact that it has no fixed, general, or social meaning, the role of pornography in sexual harassment is genuinely puzzling. Why is it that displaying pornography is sexual expression for a man but sexual harassment of a woman? At this point the philosophical differences between Strossen and MacKinnon emerge. For Strossen, whose ontology includes persons whose sexuality and desires are givens, it is a genuine puzzle why the personhood of some (men) is not threatened by sexual desire, while the sexuality of others (women) conflicts with their personhood.

MacKinnon, in contrast, because she thinks that sexuality and desire are socially constructed rather than givens, explains the conflict in terms of misogyny, which is the way that sexuality and desires are organized in our culture. Because a person's individual sexuality is mediated by social institutions, and because our social institutions are oppressive to women, the conflict between sexuality and equality is just part of what it is to be a woman under patriarchy. MacKinnon notes, “Were there no such thing as male supremacy, and were it not sexualized, there would be no such injury as sexual harassment” (60). Pornography is one way in which male supremacy is sexualized, and for that reason displays of pornography are acts of harassment and discriminate against women.

Strossen's argument that pornography is a good thing for women deprives her of the resources to explain why pornography can constitute sexual harassment that discriminates against women. That displays of pornography harass and discriminate against women cannot be adequately explained by reference to the agent's intent because that intent could be simply sexual expression and pleasure (e.g., the showing of pornographic films in a police station). MacKinnon's interpretation of pornography within the social framework of patriarchy explains not only why pornography displayed in the workplace is sexually harassing of women but also why men, in the same workplace, might consider it to be enjoyable sexual expression.

It might be objected that MacKinnon's approach seems overinclusive, since its explanation of why pornography in the workplace is sexually harassing is that pornography is a sexually subordinating speech act. But, whatever its merits as an explanation of pornography as sexual harassment on the job, this view might seem implausible applied to the private use of pornography, since it is unlikely that many men (or women) view pornography in private with the intent to subordinate anyone.

This objection relies on the view that the meaning of pornography depends on the subjective intentions of its users, however, and MacKinnon rejects this position. She does not think that a man must have a subordinating thought or intention in order for pornography to subordinate women. Rather, she thinks that its meaning is socially fixed by a culture whose sexual institutions discriminate against women. For women (but not for men) sexuality does conflict with personhood; for women (but not for men) normal sexuality includes rape, exploitation, and abuse.9 Pornography both reflects and propagates these differences; it shows the rape, exploitation, and abuse of women as pleasurable for them, and, in the showing, it sexualizes discrimination.

No one in the current media debate about The People vs. Larry Flynt thinks that the meaning of what is depicted in Hustler is elusive or subjective; it is “vile, racist, scatological, pig-ugly, and violently women-hating porn” in the words of Hanna Rosin. This observation, worthy of MacKinnon herself, is left to hang in space, crowded out by affirmations of the importance of free speech, and condemnations of Larry Flynt's bad character and lifestyle. Perhaps this uneasy mix of reality, principle, and personality is a good thing. Could it be a sign of conflicting intuitions about whether Strossen's pro-pornography stance, and its underlying assumptions, are adequate for feminist thinking about pornography? Perhaps the canonization of Larry Flynt, First Amendment Saint, is the reductio ad absurdum of the liberal argument that asks women not only to defend, but also to celebrate Hustler magazine.

Notes

  1. I would like to thank Cynthia Freeland for her ideas on MacKinnon and Hegel.

  2. For a discussion of pornography and speech acts see Dwyer. The papers by Rae Langton and Jennifer Hornsby in Dwyer do an excellent job of explaining speech act theory and its application to the pornography debate.

  3. There is no necessary connection between Strossen's representationalist view of language and her subjectivist account of the meaning of pornography (and sexual expression). Many representationalist are objectivists concerning meaning, and they would not be persuaded by Strossen's argument from disagreement. It does not follow from the fact that viewers disagree over the meaning of a pornographic picture that its meaning is subjective.

  4. Equal Employment Opportunity Commission guidelines on Discrimination because of Sex, 29 CFR Part 1604.11(a) (1985), quoted in Strossen.

  5. For a discussion of this example, and a persuasive account of how we might understand certain speech acts as discriminatory and subordinating, see “Speech Acts and Unspeakable Acts” by Rae Langton in Dwyer.

  6. In the theory of speech acts, context and circumstances play an important role. Saying “I do” is the act of marrying only in a certain culture and under certain circumstances. Similarly for pornography. If, for example, pornography were shown in a lecture on misogyny in American culture (or in a lecture comparing Japanese with American misogyny), then it would not constitute an act of sex discrimination.

  7. Strossen makes these claims concerning the benefits of pornography in chapters 7 and 8 of Defending Pornography. The sexual benefits of pornography for women are supported by the following evidence: (1) quotations from women who like pornography, (2) statistics on women's use of pornography alone or in couples (3) the claim that even its opponents (MacKinnon and Dworkin) like it and make it, (4) the fact that pornography is used to treat sexual dysfunctions, (5) the fact that pornography delivers information about sex, and (6) the fact that it validates women's desires, especially their rape fantasies. To support (2) Strossen cites the growing use of pornography by women; according to a study by Redbook magazine, nearly half of respondents said they watched pornographic movies, and women, alone or in a couple constitute 40 percent of the adult videotape rental audience (Strossen 144).

  8. In Nudes, Prudes, and Attitudes Avedon Carol does not extol the liberatory value of pornography to the extent that Strossen does, but she does argue broadly that “anti-pornography activism is not merely a useless device for eliminating sexism and violence, but also a disaster for feminists, women in general, and society as a whole” (ix).

  9. Of course men are sexually abused and raped in prison, for example; but this is an abnormal context for male sexuality, not the norm.

Works Cited

Dwyer, Susan, ed. The Problem of Pornography. Wadsworth, 1995.

Goodman, Ellen. “The Sanitizing of Larry Flynt.” Boston Globe 19 January 1997: 7E.

Rich, Frank. “Larry Flynt, Patriot.” New York Times 12 October 1996: 15.

Rosin, Hanna. “Hustler: Larry Flynt, Scum Chic.” New Republic 6 January 1997: 20.

Jeffrey Rosen (review date 29 June 1998)

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Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 9846

SOURCE: Rosen, Jeffrey. “In Defense of Gender-Blindness.” New Republic 218, no. 26 (29 June 1998): 25-35.

[In the following review, Rosen traces the development of sexual harassment law, discusses the law's recent challenges, and considers MacKinnon's impact on theories of sexual harassment.]

I.

In February, Yale Law School sponsored a conference to celebrate the twentieth anniversary of the publication of Catharine MacKinnon's Sexual Harassment of Working Women. The Paula Jones trial seemed still likely to proceed on schedule, and there was a tincture of defensiveness in the air as conference participants dismissed the growing chorus of criticism that harassment law was losing its moorings. Andrea Dworkin thoughtfully ridiculed the critics of sexual harassment law as “millions of men [who] want to have a young woman in the workplace to suck their cock.” Jane Larson knowingly declared that “more than one person may have come to orgasm in that White House closet,” and insisted that “sex harassment law benefits women who seek sex at work and those who resist.” And Frederick Schauer, the Frank Stanton Professor of the First Amendment at Harvard's Kennedy School of Government, dismissed as “Irivolous” concerns that current harassment law might inhibit free speech. All this certitude was a sure sign that all was not well with the cause.

There were useful presentations at the conference, notably on the manner in which sexual harassment law operates in the cases that actually go to trial. Cass R. Sunstein noted that in the nearly 70 reported cases, there was no correlation between the factors that ought to justify higher or lower jury awards—such as coerced sex, bodily contact, or harassment of other employees—and the damages actually awarded. What was missing from the proceedings, however, was a critical examination of the first principles of sexual harassment law. There was remarkably little discussion, for example, about the extent to which the liability rules of modern harassment law have transformed corporate workplaces and universities, creating strong incentives for prudent employers to restrict far more speech and behavior than the law actually forbids. And more abstractly, there is the urgent and indelicate question of the relationship of sexual harassment law to liberalism. For sexual harassment law makes certain assumptions about legal personhood, and about the objectivity of law, that seem profoundly inconsistent with the liberal ideal.

The truth is that, practically and philosophically, something has gone terribly wrong. As the Supreme Court prepares to decide three important cases that could redefine the liability rules in sexual harassment cases, it is worth asking whether or not the costs of the existing liability regime outweigh the benefits. More ambitiously, the time has come to resurrect a vision of gender-blindness that the current harassment regime has spurned. In contemporary American life, gender-blindness may seem even more impracticable than color-blindness; but in the face of empirical evidence suggesting that men and women, in the aggregate, perceive the same situations in intractably different ways, the need for a legal standard that refuses to honor these differences, and promote them into the last word on the subject, is increasingly urgent in a democracy founded on notions of legal neutrality and equal citizenship.

II.

Most people are surprised to learn that sexual harassment law does not impose liability on sexual harassers. Instead it puts the full weight of responsibility on their employers. And owing to the incentives created by this liability regime, prudent companies have little choice but to restrict a great deal of sexual expression that no jury would ultimately condemn. The law has transformed inquisitions into the emotional lives of employees into an ordinary matter of corporate self-interest.

In 1986, the Supreme Court held that employers can reduce the danger of being held liable for sexual harassment by establishing procedures “calculated to encourage victims of harassment to come forward.” Since then, almost 75 percent of companies with more than one hundred employees have adopted anti-sexual harassment policies. Most of those policies look very much like the “Sample Antiharassment Policy” reproduced in Barbara Lindemann and David Kadue's Sexual Harassment in Employment Law, which first appeared in 1992. The model policy begins by quoting the EEOC's definition of sexual harassment: “Unwelcome sexual advances, requests for sexual favors, and other physical, verbal, or visual conduct based on sex constitute sexual harassment when (1) submission to the conduct is an explicit or implicit term or condition of employment, (2) submission to or rejection of the conduct is used as the basis for an employment decision, or (3) the conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.” And the model policy goes on to say that “sexual harassment may include explicit sexual propositions, sexual innuendo, suggestive comments, sexually oriented ‘kidding’ or ‘testing,’ ‘practical jokes,’ jokes about gender-specific traits, foul or obscene language or gestures, display of foul or obscene printed or visual material, and physical contact such as patting, pinching, or brushing against another's body.”

By itself, of course, a suggestive comment or a practical joke from a boorish supervisor or coworker wouldn't be sufficiently “severe or pervasive” to be illegal under the Supreme Court's definition of harassment. But a hostile environment can be created by nothing more egregious than a pattern of comments or jokes from different employees; and so, to protect themselves from the risk of ruinous liability, companies face increasing pressure to launch formal investigations in response to relatively trivial offenses. “If you are in management, now is the time to refine your sexual harassment policy so that it is in the spirit of your organization's values rather than written to the letter of the law,” writes Rita Risser in a report in 1996 by Fair Measures Management Law Consulting Group. “Your policy should go beyond [what the law forbids]. If you set your standards too low, one mistake by one supervisor could make you the next landmark case. Also, the EEOC accepts claims for conduct that clearly is not illegal. Since it's costly to respond to such claims, it's in an organization's best interest to minimize them.”

The Sample Antiharassment Policy goes on to provide a grievance mechanism for employees to report harassment complaints. “All ABC employees are responsible to help assure that we avoid harassment. If you feel that you have experienced or witnessed harassment, you are to notify immediately Mr. ——— or Ms. ——— in the Department of Human Resources. … The Company's policy is to investigate all such complaints thoroughly and promptly. To the fullest extent practicable, the Company will keep complaints and the terms of their resolution confidential.

The fact that harassment policies allow complaints by offended third parties who think that they have witnessed harassment, regardless of the feelings of the purported victim, exemplifies the stereotypes that the law now embodies. Imagine, for example, the case of a male supervisor who engages in well-intentioned but suggestive teasing with a female employee. She isn't offended, and she doesn't believe that his remarks interfere with her ability to do her job. Under most company harassment policies, if a coworker overheard the conversation and felt offended, she would have a duty to notify the Department of Human Resources and might have a cause of action on her own.

The company would then be compelled to launch a full-blown investigation, interviewing the alleged harasser and the putative victim, and all the other employees who had come into contact with either of them, about intimate details of their relationships. Even if the woman who was the object of the contested remarks continued to insist that she did not feel victimized, the model policy wouldn't permit the company to drop the matter without allowing the brutal investigative mechanisms to grind to their conclusion.

As the quasi-legal procedures took their toll, the alleged harasser and the alleged victim might feel more ill-treated by the invasive investigation than by anything that had been said—the harasser, because he suddenly found himself forced to defend his career over remarks that no one had ever told him were offensive, and the victim, because she did not appreciate being cast as a victim against her will.

Beset by pressures from all sides, the purported victim and the purported harasser might justifiably feel that they were being used as symbols to ventilate the grievances and the frustrations of their colleagues. Yet none of this would matter. Despite the obvious costs of harassment policy—the disruption of workplace relationships, the harm to reputations, and the invasions of privacy—even a liberal employer would not have the option of resolving the dispute quietly, by taking the supervisor aside and telling him to watch his language.

The scenario that I've described is a machine without mercy. It does not empower individual men and women; it demeans them, and robs them of their autonomy. And it is the ineluctable consequence of the liability rules currently under examination by the Supreme Court.

Companies are generally held “strictly liable” for cases of “quid pro quo” harassment, in which supervisors fire or demote or punish employees who refuse to have sex with them. Strict liability means that the company management is held responsible even if it did not know that the harassment was occurring, and even if it has adopted a well-publicized policy designed to prevent harassment. When supervisors flamboyantly abuse the authority that the company has delegated to them, the argument goes, their acts should be imputed to the company as a whole.

In cases involving “hostile environment” harassment, courts tend to impose a lower liability standard. The general rule is that companies should be held responsible only when they are negligent—that is, when they actually knew about the harassment and failed to do anything to stop it, or when they should have known about it but failed to adopt policies designed to prevent it. The effect of the negligence standard has been to encourage companies to adopt anti-sexual harassment policies to shield themselves from liability. But lower courts aren't sure whether or not the adoption of a policy automatically gets a company off the hook, and so they are increasingly inclined to ask whether the policy was effective in deciding the company's ultimate liability. This only increases the pressure on companies to root out as much sexual expression as possible.

So the defenders of harassment law must be wrong when they deny that harassment law has provided incentives for companies to regulate speech and behavior to a degree that would have been unimaginable when MacKinnon published her pathbreaking book two decades ago. The question is not whether the current harassment regime has led to excesses; it is whether we should accept those excesses as a transitional phase in the transformation of workplace norms that has followed the integration of women into the workplace.

In a provocative presentation at the Yale conference, Robert Post suggested that the corporate workplace is a “managerial” sphere in which social relations are organized around principles of efficiency. For this reason, he argued, citizens should be willing to accept greater restrictions on their autonomy and their expression in the workplace than they would tolerate in the public sphere, which is ideally a space of self-governance.

But surely this Taylorite vision of the modern workplace, rooted in principles of industrial democracy in the 1920s, is hard to accept today. As e-mail, modems, and PCs break down the boundaries between work and home, there are increasingly few private or public spaces for citizens to express themselves autonomously. Moreover, the range of workplaces regulated by modern harassment law—which includes not only widget factories but newspapers, theaters, and lifeguards on beaches—is too diverse to be captured by the managerial model. Without the freedom to test controversial ideas with colleagues, journalists (to take an example) cannot properly do their job; and actors (to take another example) are not exactly devoted to efficiency above all.

As harassment law has developed, it seems ill-equipped to make the fine distinctions among workplaces that Post imagines. Surely public universities and high schools should be regulated by less restrictive behavior codes than corporate businesses. The purpose of a university is to promote freedom of thought, not to increase productivity; and holding schools to the same standards as corporations arguably poses a direct threat to the experience of teaching and learning. The Supreme Court is now debating whether liability rules should be different for universities and corporate workplaces, but political pressures to adopt harassment codes are already extending the restrictions that originated in corporations into the academic sphere.

In her powerful new book, Daphne Patai argues that anti-harassment policies, in universities at least, have produced “not greater justice, not an absence of discrimination against women, but a climate that is inhospitable to all human beings.” Patai includes a close reading of the leading harassment manual for colleges and universities, Sexual Harassment on Campus: A Guide for Administrators, Faculty, and Students, edited by Bernice R. Sandler and Robert J. Shoop. Its first chapter, entitled “What Is Sexual Harassment,” enumerates a list of indignities, extending from “sexual innuendos, comments, or bantering,” through “humor or jokes about sex or females in general”; it also includes “touching a person,” “giving a neck or shoulder massage,” “leering or ogling, such as ‘elevator eyes,’” “calling women ‘hot stuff,’ ‘cutie pie,’ etc.,” “sexual graffiti,” and “laughing at or not taking seriously someone who experiences sexual harassment.”

Sandler and Shoop also include a chapter on “student to student harassment,” which they think is on the rise. The attempt to stamp out peer harassment, in public schools as well as public universities, is a useful window on the excesses of the current liability regime in harassment law. Children, after all, are not adults, and they can't be expected to conform their behavior to adult norms. Teasing, poking, grabbing, and clumsy horseplay are a natural part of growing up; and if publicly funded schools were held liable for failing to root out all sexual experimentation between students, they would be vulnerable for damage awards far greater than the federal grants that created the liability in the first place. They would also transform themselves into cruelly stunting environments.

The question of how responsible schools should be for peer harassment is an open legal question; but a few months ago Judge Richard A. Posner suggested in an appellate opinion that even a negligence standard would be too demanding. In an age in which parents are suing teachers for attempting to clip their children's fingernails, forcing schools to take Draconian measures to banish all horseplay from the classroom would be as likely to expose a school to suits as the failure to protect the potential victims in its care. For this reason, Posner proposed that schools should not be liable for peer harassment unless they were deliberately or recklessly indifferent to it: unless, in other words, they actually knew about hostile or offensive conduct likely to interfere with a student's education, and made no efforts to stop it.

It is easy to imagine the hazards of holding schools liable for sex discrimination when their students grab each other; but the question of a school's liability when teachers harass students, which is now before the Supreme Court, raises similarly troubling questions. The facts of the Supreme Court case are stark. A Texas social studies teacher named Frank Waldrop seduced one of his ninth-grade students, a girl named Alida Gebser, and had sex with her for a year. As soon as he was discovered, he was fired; later, he was jailed for sexual assault.

The school district doesn't dispute that the conduct was criminal; it says that since the girl never told anyone about her ordeal, including her parents, school officials should not be liable for conduct that they couldn't have been expected to discover. Gebser's parents counter that the school should have known that one of its teachers was abusing his student; and since the school failed to promulgate a well-publicized anti-sexual harassment policy, it should have to pay a lot of money.

The Gebser case suggests that well-publicized harassment policies are unlikely to deter the most egregious sexual abusers. Alida Gebser did not complain because she was confused and traumatized by her ordeal; but the procedures were not wanting. Later she testified that she was afraid that she would lose Waldrop as a teacher if she told anyone about their relationship.

All this calls into question the argument, made by the Clinton administration and women's advocacy groups, that sexual harassment in schools is “eminently foreseeable.” The kind of monitoring that would be necessary to root out secret relationships such as the one in the Gebser case would disrupt far more than secret sexual relationships between teachers and students. To avoid liability, schools that accept public funds would have a powerful legal incentive to adopt speech codes to regulate the behavior of their students and teachers, even though the Supreme Court held in 1992 that speech codes adopted by legislatures are presumptively unconstitutional. In trying to navigate the legal shoals, schools would suffer a serious threat to academic freedom, suppressing a great deal of innocent speech for the dubious purpose of holding schools liable for conduct that is already illegal under federal and state law.

The Supreme Court might decide to treat schools and universities differently than other workplaces, on the grounds that free expression is central to the idea of a university, and the costs of monitoring the behavior of teachers and students would chill the learning process. Yet the workplace at issue in the second Supreme Court case involves lifeguards on Boca Raton Beach, and this mise-en-scène is similarly hard to construe as a “managerial” sphere.

Beth Ann Faragher says that she was subject to a series of tribulations during the five years that she worked as a lifeguard in Boca Raton to put herself through college. Her supervisors, she says, invited her to the unisex shower with them, used vulgar language in her presence, complimented her body, and grabbed her on occasion; and one of them tried to kiss her after she agreed to go on a date. Yet Faragher never told the offending parties that she found the conduct offensive during her five years on the job. Nor did she complain to anyone in the city management, though she did tell another supervisor, who thought she was consulting him as a friend and failed to report it to anyone else.

At what level must a woman complain before a public employer will be held liable for harassment? Like Alida Gebser's parents, Beth Faragher says that the city of Boca Raton should be held liable, because it had an anti-sexual harassment policy but failed to publicize it properly. It is hard to believe, however, that a better-publicized policy would have encouraged Faragher to file a complaint, since she refused to do so even when urged by a female coworker, who was filing a complaint of her own.

In its Supreme Court brief, the Clinton administration argues that employees should not be expected to complain in hostile environment cases because they may fear retaliation from their supervisors, even if there is no explicit threat. “When the employer's practices and the supervisor's conduct reasonably have led an employee to fear that adverse employment consequences will result if she resists or complains,” writes the Solicitor General, the employer should be liable, whether or not it has adopted a harassment policy. Yet the “hostile environment” doctrine is an amorphous one, according to which a man's joke can be a woman's lawsuit, and so it seems dangerous to create a strict liability standard that allows women to sue for boorish behavior that they never indicated was unwelcome.

The administration is taking a similarly paternalistic position in the third Supreme Court case, Burlington Industries v. Ellerth. This case has been compared to the one brought by Paula Jones. Kimberly Ellerth says that her boss made sexually suggestive comments, told dirty jokes, commented on her breasts and legs, and once, while leaving a hotel bar after a business trip, said, “You know, Kim, I could make your life very hard or very easy at Burlington.” Ellerth understood this as a quid pro quo threat.

But she ignored it, and she was promoted anyway. Two months later, without mentioning anything about harassment, Ellerth resigned, after other bosses told her that customers and colleagues had complained about her work. Three weeks later, she accused her supervisor of harassment for the first time. Ellerth says that she never filed a formal complaint or invoked the company's harassment policies because she was afraid of losing her job. Arguing, as lawyers say, in the alternative, she also says that she quit because the harassment became “unbearable.” But if she knew that she was going to quit, why didn't she complain?

The technical question in the Ellerth case is what the liability standard should be for harassment cases that involve unexecuted threats but no tangible job injuries. In ordinary quid pro quo cases, again, the company is liable whether or not it knew about the harassment, on the theory that firing is an official act that companies should be expected to monitor carefully. But, as Posner argued in his appellate opinion in the Ellerth case, it is infeasible to expect employers to stamp out all consensual affairs in the workplace between supervisors and employees:

Romantic encounters, including romantic encounters between supervisors and supervised, are a fact of the workplace. Title VII, does not purport to forbid them, and would be quixotic if it did. Many happy marriages have grown out of such encounters. … The words, the gestures, the other behaviors that differentiate the fully consensual relationship from the coercive relationship will often be invisible to the supervisor's supervisor. The yielding to a threat will look no different from the yielding to a lawful proposal. It is only when the threat is carried out that the abusive supervisor does something, such as firing the supervised employee, that the employer will know about and should monitor. It is facile to suggest that employers are quite capable of monitoring a supervisor's actions affecting the work environment. Large companies have thousands of supervisory employees. Are they all to be put under video surveillance? Subjected to periodic lie detector tests? Trailed on business trips by company spies?

For these reasons, Posner proposes that companies should be strictly liable for their supervisor's threats only when the threats are actually carried out; and all other advances should be governed by a negligence standard, which means that the companies may (or may not) be able to avoid liability by adopting a harassment policy.

Behind the legalisms about liability, the three Supreme Court cases raise a single question, and it pertains as much to social policy as to law: Should a woman have to make clear that a man's behavior is offensive before the man is punished? Some of the most interesting empirical data at the Yale conference were presented by Louise Fitzgerald, a social psychologist at the University of Illinois, who suggested that men and women often perceive the same social interactions very differently. “Men are more likely to perceive sexual motives and intentions, “Fitzgerald said, pointing to one of her interview subjects who insisted that he was being propositioned at a lunch counter by a woman who had accidentally stepped on his foot.

From this gap in perception, Fitzgerald concludes that it is unrealistic to expect women to complain about behavior that they find offensive. “Psychological literature says that the real victims do nothing,” she said. “One in five women directly tell men to stop; only five percent complain to their employer.” According to Fitzgerald, this doesn't mean that women are passive in the face of sexual insult. Her subjects show a range of behavior: avoiding or appeasing the offending man, or remaining silent and refusing to give him the satisfaction of a response. Since “coping with abuse is a psychological process,” Fitzgerald concluded, the law is wrong to insist that the only valid complaint is a formal complaint.

Fitzgerald proposed instead that certain acts should be considered “harassing per se,” such as calling women by names traditionally reserved for body parts, whether or not a woman complains. In such cases, the burden should shift onto the man to prove that the words were welcome. But this conclusion seems exactly backward. Fitzgerald is correct that “men in general see sex where it isn't there and insist that it is there,” but in light of this gap in perception, shouldn't the liability rules be set up to encourage women to make their own very different perspective clear, by objecting to behavior that they find objectionable? Otherwise, boorish men in the workplace may be unable to change their behavior until it is too late, because no one ever told them that their behavior was unacceptable. (The best data suggest that the most effective way to stop harassment is to ask the harasser to stop.) Or to put it differently, an essentialist view of gender differences—for that is what Fitzgerald is peddling, even if the essentialism comes in social-scientific camouflage—makes it even more imperative that we think hard about the roots of the sexual harassment law that is now loose in the land.

III.

It may seem surprising that the Supreme Court has not yet made clear whether or not women have to complain about offensive speech for liability to be imposed. But really the confusion is not surprising, for it reflects a deeper confusion at the heart of the legal and philosophical definition of sexual harassment itself. Since the Supreme Court has continued to skirt the question of why, precisely, harassment is a form of discrimination, the law has evolved in ways that only gender essentialists can find convincing.

At the beginning of the Supreme Court argument in the Texas schoolgirl case, Chief Justice Rehnquist asked a simple question. “Was there some showing of discrimination?” he asked, referring to allegations that the ninth-grade teacher had an affair with his student. “We're assuming harassment and discrimination are synonymous,” the girl's lawyer revealingly replied. But Rehnquist was not convinced. “I think the statute says you have to discriminate on the basis of sex; you have to treat students differently.” “Here, this student was singled out,” the lawyer repeated. “Because of sex?” Rehnquist asked again.

The exchange went to the heart of the analytical weakness of harassment law. It seems odd to think of a teacher's seduction of a ninth-grader as a form of sex discrimination, Statutory rape, certainly. But discrimination on the basis of gender? Not in the way that we ordinarily understand the term. To be sure, Rehnquist's ingenuousness was a little disingenuous. It was Rehnquist who, in 1986, wrote the opinion for the Court in the Meritor case, declaring unequivocally that a bank supervisor who coerced one of his employees into repeatedly having sex was practicing a form of sex discrimination. “Without question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor ‘discriminate[s]’ on the basis of sex,” he wrote.

So how, precisely, did the Court come to view erotic fixation as form of gender discrimination? Discrimination usually implies some form of contempt for a class of people being singled out for disadvantageous treatment as a consequence of their shared characteristics. Unwanted advances, by contrast, often involve a man's attraction to a particular woman because of her unique characteristics. Early judicial rulings in the 1970s refused to recognize sexual advances as a form of gender discrimination, on the grounds that they were motivated by personal proclivities rather than by gender animus. Desire may be rampant, but it is not general. A man does not hit on a gender.

Unless, of course, you believe that a woman is a gender; and that there is no significant distinction between a class and a member of a class, and every member of a class stands for the class, and is essentially and definitionally fixed in her identity by her membership in the class. Enter Catharine MacKinnon. It was she who provided the theoretical arguments for considering unwanted advances a form of discrimination. In Sexual Harassment of Working Women, MacKinnon compared two mutually inconsistent, competing theories of liability. The first, which she called the difference approach, asks the following question: “How can you tell that this happened because one is a woman, rather than to a person who just happens to be a woman?” According to MacKinnon, “The basic answer, which presupposes sex comparability, is: a man in her position would not be or was not so treated.”

The difference approach is unsatisfying for several reasons. First, it requires courts to engage in an oddly subjunctive thought experiment, a kind of transvestite counterfactual: How would the complainant have been treated if his or her sex were changed? But sexual attraction, again, is particularized, even unique. It is hard to imagine how a judge is supposed to guess whether someone would have been treated differently if she were a different person. And in workplaces where there are few men or few women, the thought experiment is even more arcane: earlier this year, in the Oncale case involving same-sex harassment, the justices were asked to imagine whether Oncale would have been treated differently if he were a woman, even though there were no women on the oil rig where the roustabout worked.

Indeed, the difference approach presents a particular difficulty for those who hold a MacKinnonite analysis of gender. It requires courts to imagine how women would have been treated if they were men, when MacKinnon believes that the genders really cannot be compared in meaningful ways, because women are socially subordinate to men. “To take the differences approach requires temporary suspension of the fact that the sexes are substantively unequal, not just different, a fact which calls into question the appropriateness of presuming equality in order to measure disparity,” MacKinnon observes. Although it might be reasonable to compare the sexual harassment of men and women in a world in which the sexes were equal, “in this society, it is not, because of that social inequality which discrimination law exists to eliminate.”

MacKinnon explored the difference approach as a litigation strategy, but she preferred an alternative, mutually inconsistent, and far more radical approach to the question of how sexual advances could be considered sex discrimination. She called it the “inequality approach.” In her words, “practices which express and reinforce the social inequality of women to men are clear cases of sex-based discrimination in the inequality approach.”

This inequality is not merely social or political. It is a much deeper and more indelible disadvantage. Sexuality itself, MacKinnon has famously argued, is the lynchpin of gender inequality. “The male sexual role … centers on aggressive intrusion on those with less power”—namely, women. “A feminist theory of sexuality,” therefore, “locates sexuality within a theory of gender inequality, meaning the social hierarchy of men over women.” Anatomy is destiny; or rather, law.

In her less guarded rhetoric, MacKinnon seems to suggest that even apparently consensual heterosexual sex may reinforce the social inequality of women to men, and thus constitute sex discrimination, at least when it takes place between men and women whose social status is not precisely equal. “Is ordinary sexuality, under conditions of gender inequality, to be presumed healthy?” MacKinnon asks in a crucial passage:

When if inequality is built into the social conceptions of male and female sexuality, of masculinity and femininity, of sexiness and heterosexual attractiveness? Incidents of sexual harassment suggest that male sexual desire itself may be aroused by female vulnerability. … Examination of sexual harassment, precisely because the episodes appear commonplace, forces one to confront the fact that sexual intercourse normally occurs between economic (as well as physical) unequals. In this context, the apparent legal requirement that violations of women's sexuality appear out of the ordinary before they will be punished helps prevent some from defining the ordinary conditions of their own consent.

MacKinnon's inequality approach, in other words, narrows the definition of consensual sex in a way that dramatically restricts the sphere in which consensual sexual relations can occur. “[I]t cannot be assumed that if the woman cares about the man, the sex is not coerced.” she writes. When pressed to explain whether or not she believes that women can freely consent to sex with more powerful men, MacKinnon's writing becomes even more opaque than usual. “The courts are clear, if others are not, that working women cannot sue for having mutual sexual interactions,” she wrote in an elusive piece a few months ago in The New York Times. “Courts also recognize that sexual coercion can be situational: power differences can be a form of force. Sex under conditions of extreme inequality can be coerced and exploitative; sexual compliance can be coerced. But sex cannot be harassment at work by law unless the woman or man really didn't want to have it.”

Although MacKinnon held out the possibility, in that article, that sex, under some circumstances, might be consensual, she has argued elsewhere that in a world defined by gender inequality—which is to say, by gender—neither the law nor the accused man nor the woman herself can know a woman's will, because the law defines consent from the man's perspective. Thus, MacKinnon has emphasized “the appearance of rape as similar to normal heterosexual encounters” in a world defined by the male viewpoint. As she rather crisply taught, “Man fucks woman; subject verb object.”

This is not only a terrible pessimism about erotic life. It is also legally and historically troublesome. In an essay called “Sex and Guilt,” recently published in the University of Virginia Law Review, Anne Coughlin challenges MacKinnon's view that rape law, by requiring women to offer physical resistance to prove their lack of consent, promotes the sexual agency of men at the expense of that of women. MacKinnon's error, Coughlin argues, is to assume that American law ordinarily treats sexual intercourse as legal. In fact, the roots of rape law extend to the puritanical codes of the late seventeenth century, in which consensual sex outside marriage was presumptively illegal.

For most of American history, judges confronted with an allegation of sexual misconduct had to decide whether the encounter involved a rape, for which the man alone was to blame; or fornication or adultery, for which both the man and the woman shared criminal responsibility; or marital intercourse, for which neither participant would be punished. Rather than marking the boundary between sex and rape, Coughlin argues, the woman's lack of consent was what distinguished the man's crime (rape) from the couple's crime (fornication or adultery). Since women had an incentive to claim they had not consented to sex to avoid criminal liability for fornication or adultery, courts had every reason to put the woman on trial, to find out whether or not she was looking for an excuse to avoid guilt.

MacKinnon, ironically, does not assume that nonmarital sex is presumptively legal. By suggesting that sex between unequals cannot ever be truly consensual—and that the inequality in sex is owed to an essential incommensurability of men and women—MacKinnon has helped to resurrect a world that very much resembles the seventeenth-century Puritanism from which modern rape law evolved.

MacKinnon's argument that “sex under conditions of extreme inequality can be coerced and exploitative” masquerades as a vision of radical egalitarianism; but its intellectual and legal consequence is to promote and to preserve a rigid social hierarchy. By pressuring companies to ban even consensual affairs between those on different rungs of the corporate ladder, for fear of liability, MacKinnon has dramatically restricted the possibility for romantic interactions between people of different social classes, and in the process she has reinforced the class distinctions themselves. She is a sexual determinist, and determinists are not the most reliable champions of progress.

MacKinnon thinks ahistorically, in terms of fixities. Specifically, she thinks ahistorically about America, and about its great democratizing (and disorienting) achievement of social mobility. The American workplace has traditionally been a laboratory of social mobility, as men and women from very different backgrounds meet each other and improve their station. From Bill Gates on down, executives often fall in love with employees and, through marriage, transform their social status. Is this love only another instrument of oppression?

Indeed, in an essay on Marxism and feminism, MacKinnon herself recognizes this dynamic. “From a feminist perspective, a woman's class position, whether or not she works for wages, is as much or more set through her relation first to her father, then to her husband,” MacKinnon writes. “Through relations with men, women have considerable class mobility, down as well as up.” And yet the perverse effect of the MacKinnonite rule—that only romances between social equals are permissible—is to entrench existing class divisions by preventing women and men lower down on the social scale from marrying those above them. The promise of America is embodied in the Whitmanian individualist, unconstrained by class limitations, and free to imagine the world anew and to act on his (or her) imaginings; but MacKinnon's vision is closer to the hierarchical corporatism of Babbitry, in which anxious middle managers are imprisoned by their class limitations, and afraid to accept dinner invitations from those above or below them.

If one were looking for modern societies that most closely approximate MacKinnon's neo-Puritanical vision of gender relations, the likeliest candidates would be the extreme Islamic theocracies, in which the private space for sexual relations beyond the reach of legal and religious regulation is exceedingly narrow. In such societies, marriages are arranged, and class mixing is rare because prospective wives are chosen (by male marriage guardians) from among the groom's social class. Women are secluded and protected from unwanted sexual attention by a strict dress code; the injunction for women to cover all but their hands and face is designed to prevent them from provoking sexual excitement in men.

The constitutions of several Islamic states proclaim that preserving female honor is a duty, and they require the state to prohibit offenses to public decency, including anything that might be objected to as immodest or sexually suggestive. Extramarital sexual relations must be negotiated with legalistic attention. As Geraldine Brooks has described, for example, Shiite Muslims execute a temporary marriage contract called sigheh, which allows unmarried couples to date or to have sex for a mutually agreed upon amount of time, free from the prying of revolutionary zealots. Outside of sigheh, unrelated men and women cannot be alone together, touch each other, or appear uncovered before each other. Women in general are seen not as distinctive individuals but as passive, fungible beings, who must preserve morality at all costs.

Islamic law, of course, secludes and protects women as a means of subordinating them to men, while MacKinnon seeks to seclude and to protect women as a means of liberating them from male subordination. For the Islamic clerics, the power of the patriarchy is prescriptive; for MacKinnon, it is descriptive. But both the Islamic and MacKinnonite visions of gender agree that the private sphere, in which men and women can encounter each other free from regulations, should be very small, and the public sphere, in which sexual relations are intricately regulated, should be very large; and that male domination and female submission are inherent in the very nature of gender identity. Inadvertently evoking the Islamic injunction to preserve female honor, MacKinnon sees sexual harassment laws, like restrictions on pornography, as a form of protection for female dignity.

IV.

In the recently published hearings on her bill to ban pornography in Minneapolis and Indianapolis as a form of sex discrimination, MacKinnon stresses that her arguments “that defined sexual harassment as a form of discrimination on the basis of sex” are based on “the same view of sex discrimination that underlines this ordinance.” The root meaning of pornography, MacKinnon noted during the Indianapolis hearings, is “the graphic depiction of whores. … In pornography, women are graphically depicted as whores by nature, that is, defined by our status as sexual chattel.” It is the depiction of women in subordinate positions, MacKinnon argues, that makes pornography and harassment forms of sex discrimination: “pornography as we define it makes the inequality of the sexes sexual, the way that it makes sexy, the way that it eroticizes putting women in an inferior position.”

Courts and citizens have had no trouble understanding that MacKinnon's efforts to regulate pornography as a form of sex discrimination violate the core protections of the First Amendment. Her Minneapolis ordinance defined pornography as “the sexually explicit subordination of women, graphically depicted, whether in pictures or in words, that also includes one or more of the following: women are presented dehumanized as sexual objects, things or commodities … women are presented in postures of sexual submission … women are presented as whores by nature.” “This is thought control,” Judge Frank Easterbrook noted in his opinion in 1985 striking down the Indianapolis ordinance.

Speech treating women in the approved way—in sexual encounters “premised on equality”—is lawful no matter how sexually explicit. Speech treating women in the disapproved way—as submissive in matters sexual or as enjoying humiliation—is unlawful no matter how significant the literary, artistic of political qualities of the work taken as a whole. The state may not ordam preferred viewpoints in this way.

What is surprising is that judges have been so much slower to grasp that MacKinnon's view of sexual harassment law offends the First Amendment for precisely the same reason that her vision of pornography does. The problem is not that the MacKinnonite vision of harassment and pornography permits the banning of speech merely because it is offensive. “Somebody can be real offended by something and if it isn't described by this statute, they can't do anything about it under this statute,” MacKinnon noted during the Indianapolis hearings. “They can also not be offended by it, and they won't be the people to bring an action under this law probably. … In other words, it doesn't have anything to do with subjective feeling.”

Instead, the MacKinnonite efforts to ban harassment and pornography are designed to protect the reputation of women in general, regardless of whether or not any particular woman is offended, and they achieve their purposes by forbidding the verbal denigration of women in some terms but not in others. In this sense, MacKinnon's vision of harassment and pornography very much resembles efforts to restrict group libel, which the Supreme Court now seems to recognize as an unconstitutional attempt to regulate speech at the center of the First Amendment's protections. So the MacKinnonite vision of harassment and pornography violates the central principles of free expression, at least in the context of public employers who are bound by the First Amendment. (Whether the First Amendment is violated when the government pressures private employers to adopt speech codes in order to avoid liability under Title VII is a more complicated question.)

But the MacKinnonite vision is troubling in a deeper sense, which has to do with MacKinnon's conception of legal personhood. She believes that men and women are defined by their sex rather than by their individual personalities and choices. Although she is too much of a post-foundationalist to talk in terms of essences, she is, for all intents and purposes, a gender essentialist. In her view, gender is constitutive of personhood, which is to say that all men are oppressors and all women are victims, regardless of whether or not they actually feel oppressive or victimized.

To abstract away from gender, and to construct a universalist theory of equality, MacKinnon believes, is a concession to the patriarchy. It is remarkable, in retrospect, that MacKinnon has largely succeeded in embedding her vision of gender essentialism into American law, for her vision represents a direct assault on the liberal vision of gender-blindness. And that vision is the foundation on which the Supreme Court's jurisprudence of gender discrimination was originally constructed. It was championed by Ruth Bader Ginsburg as an advocate in the 1970s, and as a Justice in the Virginia Military Institute case in 1996. “Generalizations about ‘the way women are,’ estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description,” Justice Ginsburg wrote, in a rebuke to Virginia's essentialist claim that men learn best in adversity and women in harmony.

Ginsburg has not yet acknowledged, in her sexual harassment opinions, the extent to which the MacKinnonite vision of gender equality is a direct repudiation of her own. And so, as the Court prepares to hand down three important harassment decisions, it is worth asking what a gender-blind understanding of harassment law would look like. In its recent opinions, the Supreme Court has intoned rather plaintively that harassment must be “because of sex” in order to be actionable. “The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed,” Justice Ginsburg wrote in 1993. But the Court can't make the analytical problem go away merely by incarnating the magic words “because of sex.” How, precisely, can the law be reformed to focus on sex discrimination, as opposed to sexual expression?

In a widely publicized proposal for reform, Vicki Schultz argued recently in the Yale Law Journal that sexual harassment law has erred in emphasizing sexual advances, rather than gender-based hostility, as the core of an actionable offense. By accepting the MacKinnonite notion that sexuality is the lynchpin of inequality, Schultz argues, courts have “neglected equally pernicious, nonsexual forms of gender-based misconduct in the workplace—particularly conduct that denigrates women's competence and thereby preserves work along gendered lines.” Rather than defining harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature,” as the EEOC guidelines do, Schultz would prohibit “conduct the purpose or effect of which is to make it more difficult for someone to do their job based on sex.”

There is much to admire in Schultz's effort to reorient harassment law away from its misguided focus on sexual expression; and Schultz has been cast as an advocate of narrowing the scope of harassment liability. Alas, this is a misrepresentation of her proposal. In fact, Schultz argues the opposite. “We have not conceptualized the problem in sufficiently broad terms,” she writes, Schultz would expand the scope of admissible evidence in harassment cases, stressing that conduct that demeans the person as a professional and makes it more difficult for women to do the job may take the form of sexual advances or other conduct of a sexual nature, but need not do so. Nonsexual hazing, work sabotage, or failure to provide informational training would count toward establishing a hostile work environment for women. “In the context of a workplace with long-standing inequality,” she writes, “a potentially ‘stray remark’ about women … may assume heightened causal significance.”

In Schultz's view, when a supervisor demeans the professional abilities of a subordinate, the company should be automatically liable, rather than being able to take refuge in an effective anti-harassment policy. This would create an incentive for companies to police the speech of their supervisors far more dramatically than current law requires. Schultz also argues that a harassment complaint, in which a woman alleges that her competence has been undermined, should open the window on a broad inquiry into the treatment of women in the corporate workplace more generally. The criteria for hiring, assignment, and promotion would all come under scrutiny. The only way that a company could be confident that it could avoid liability for the remarks of its employees, Schultz suggests, would be to achieve some kind of proportional representation of women at all levels of the corporate hierarchy.

Schultz's ultimate goal, gender proportionality and gender parity, is a far more ambitious endeavor even than MacKinnon's effort to eliminate pornography and to narrow the scope of sexual expression in the workplace. Schultz might also suppress more speech at the core of the First Amendment than MacKinnon. Imagine, for example, a San Francisco firefighter who is appalled by a consent decree in which the Fire Department agrees to hire women in proportion to their numbers in the population as a whole, even though the applicant pool of women who want to be firefighters is less than 20 percent. What if the angry male firefighter, questioning the overall ability of women hired under this scheme, said something like this: “This new group of women that we've been forced to hire just isn't up to the job.” Under Schultz's regime, such comments might expose the Fire Department to ruinous damages, and would increase the legal pressures to achieve gender parity, even though the comment is a fine example of core political speech.

Schultz's attempt to refocus harassment law on gender discrimination rather than sexual expression deserves respect; but she, like MacKinnon, wants to use harassment law as an engine for the wholesale restructuring of the American workplace. In both Schultz's and MacKinnon's accounts, workers cannot be protected from sexualized or demeaning comments unless the workplace itself is transformed. This is a long way from the classically liberal vision of Ginsburg, who sought to guarantee equal access for individual women to choose professions on the basis of their individual talents and preferences, instead of using sex discrimination law to generalize about the appropriate choices and desires of women as a whole.

V.

What, then, would harassment law look like if it were reformulated in gender-blind terms? Title VII refers to discrimination in the terms and the conditions of employment, and this would certainly include firing a woman or a group of women because of their sex—that is, because the employer does not like women in general, or likes them too much and wants to protect them from the indignities of the workplace. The existing law of quid pro quo harassment, in other words, could largely be preserved in a gender-blind world.

It is arguable, as courts held in the 1970s, that a supervisor who threatens to fire a woman because he is attracted to her, and is uncomfortable working with her after he has been rebuffed, is discriminating on the basis of her rejection of his sexual advance, and not on the basis of her sex. It would clearly be sex discrimination, however, if all women in the workplace were forced to endure the ordeal of being threatened with losing their jobs unless they succumbed to sexual advances, because the terms and the conditions of employment would then be different for women than for men. And the analysis is at least arguably similar if a supervisor only threatens to fire that subset of women that he is attracted to, even if it includes only a single woman.

Hostile environment harassment is another matter. A concerted campaign to drive all women, or some women, from the workplace by hassling, teasing, and abusing them would change the terms and the conditions of employment in a way that should be actionable under Title VII; but the law cannot forbid comments that only some women might find offensive without generalizing about the sensibilities of women in a way that offends the gender-blind construction of the idea of equality. For this reason, several commentators have suggested refining the hostile environment test in a way that imposes liability only on speech whose purpose is to annoy a woman or a group of women in particular, rather than on speech that supposedly has a disparate impact on women in general. Thus Eugene Volokh argues that speech, to qualify as harassment, must be directed at a particular listener. A group called Feminists for Free Expression would require “a pattern of targeted and/or intentional verbal abuse.” Cathy Young suggests that “hostile environment” claims should be based on actual hostility; she would narrow the EEOC formula to conduct that has the “purpose and effect” (rather than “purpose or effect”) of “unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.”

Where does that leave what Mark Hager calls “mashing,” or sexual overtures, as opposed to “bashing,” or derogatory and demeaning treatment of women? In a provocative article in the Connecticut Law Review, Hager argues that sexual overtures among non-supervisory coworkers should be regulated through tort law rather than through sex discrimination law. This represents a major shift in legal paradigm, and a welcome one. The restoration of liberal sanity to the discussion of sexual harassment and the law may indeed require that the sex discrimination model be exchanged for the tort model.

Wrongful discrimination implies some kind of contempt for a category of people, Hager argues, but harassing sexual overtures are a different matter. They mostly represent a combination of erotic fixation and insufficient moral restraint. In addition to offending common sense, the construal of erotic fixation as “discrimination” obscures the moral harm involved when sexual advances in the workplace really are egregious and really do go too far. “The harasser's wrong consists of contempt for the dignity and autonomy of another human being,” Hager wisely observes, “denigrating her intrinsic worth and treating her as a mere means of gratification. The victim's harm consists of having her dignity disparaged and her autonomy impeded. Hence, harassment is inherently tortious. Its essence is of non-consensual personal invasion.” There is no inconsistency, in other words, between President Clinton's abstract support for women's rights and his behavior as an appalling cad.

Genuinely malicious advances, Hager argues, could be punished under an existing branch of tort law that compensates victims who have suffered “intentional infliction of emotional distress.” Employers would be liable for a pattern of directed harassment by a supervisor only if they manifested “deliberate indifference” to the offensive conduct. This sort of legal standard would dismantle the inquisitorial machine that the sex discrimination version of sexual harassment law has constructed. Courts would be encouraged to weigh the harms of harassment against the burdens of preventing them. As for harassment by coworkers, Hager proposes that employers should only be liable when they are deliberately indifferent to a pattern of targeted abuse by more than one worker, joined by at least one superior.

To be actionable as a tort, a sexual advance would have to be “outrageous” and the distress that it provokes would have to be “severe,” which means that many indignities that are now illegal under discrimination law would no longer be legally regulated. This represents a shrinkage in the scope of sex harassment law; but only the tort paradigm, I think, can vindicate the promise of a gender-blind ideal that treats women and men as autonomous individuals, rather than as prisoners of gender stereotypes and sex-based generalizations. The tort model would encourage individual responsibility by placing the blame for inappropriate conduct on the perpetrator, rather than the employer, and would increase the incentives for women to protect their own dignity rather than passively relying on employers to protect it for them. It would empower individual women and men by allowing them to decide whether or not offensive comments interfered with their ability to do the job, rather than using them as helpless symbols in the gender wars as a whole. It would end the unconscionable invasions of privacy that are now a regular feature of the workplace, in which employers are forced to engage in hideous and paternalistic investigations of consensual affairs between employees and supervisors, for fear of liability. And given the extensive evidence that men and women perceive the same situations differently, a tort paradigm would increase the possibility of understanding between the sexes by encouraging women or men to complain when they feel offended.

If the costs of the current harassment regime were limited to disrupting the careers of a small group of unfortunate employees who have failed to adjust quickly enough to the transformation in social norms that govern interactions between men and women at work, then it would be easy enough for society to bear them. All of us should try to behave like ladies and gentlemen in every sphere of our lives; and at this stage in our gender politics, anyone who is reckless enough to treat colleagues, employees, students, and fellow citizens with less than Victorian respect deserves, in some measure, the ignominy that will follow. But the real costs of harassment law are not simply the careers that it disrupts and the workplaces that it fills with confusion and fear. The costs are, more generally, to the liberal dispensation in America.

Constructing legal rules based on stereotypes about the essential natures of men and women is the central evil that Ginsburg's ideal of gender-blindness was designed to banish. The law, Ginsburg rightly insisted, can never provide a complete description of the person. The legal person is an abstraction. In this act of abstraction, however, lies the possibility of neutrality. The denuding of the individual of his or her particular traits or characteristics, so as to arrive at a standpoint from which all may be viewed impartially, is not the debasement of an identity but the construction of an identity, which is the identity of citizenship. It is especially important now, in this golden age of difference in America, in which universalism is on the run and perspectivism is a reality to which politicians and professors gladly pander, that we appreciate that equality is a positing of sameness. The United States today is a proudly splintered polity; but the sameness that liberalism stubbornly imputes to all men and all women is a sublime sameness.

For the law, certainly, it is the very condition of objectivity. But then, these are not the best of times for objectivity either. In the gender-blind view, however, objectivity is not an illusion or a disguise for power, and equality is something that all men and women have inalienably in common. It is a lowest common denominator that is also a highest common denominator. In our madly sexualized culture, to be sure, the ideal of gender-blindness may seem especially elusive. But if it is not possible to look beyond the gender (and the race and the class) of an individual, it is not possible to deliberate and meet as citizens on equal terms.

Gender-blindness was a tremendous legal and philosophical achievement, perhaps the greatest achievement of legal liberalism since the sexual revolution. Yet no sooner was it enshrined in law than it suffered a radical assault from the gender essentialism that threatens everything it stands for. Two decades ago, when women were beginning to enter the workplace in meaningful numbers, MacKinnonite generalizations about the subordination of women to men may have had more of a foundation in reality, and they may have served as a useful spur. But those generalizations are neither accurate not harmless any longer; and philosophically they were always a betrayal of liberalism. Today the victims of patriarchy have been joined by the victims of essentialism. This has to stop. We must make ourselves blinder if we are to see more.

Frances Olsen (essay date December 1999)

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Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 937

SOURCE: Olsen, Frances. “The Outsider.” American Lawyer 21, no. 11 (December 1999): 93, 153.

[In the following essay, Olsen presents an overview of MacKinnon's life and body of work.]

Not since the 1890 Harvard Law Review article by Charles Warren and Louis Brandeis initiated the cause of action for violation of privacy has an author been as closely identified with a new cause of action as Catharine MacKinnon has been with sexual harassment.

MacKinnon, who now holds a J.D. and a Ph.D. degree in political science, was a student at Yale when sexual harassment cases first arose in the 1970s. To some feminist attorneys, it seemed self-evident that quid pro quo harassment constituted sex discrimination. Hostile environment harassment, too, struck many as an obvious method of excluding or driving away women, and thus a form of sex discrimination. But a number of federal district judges, perhaps in part because they were primarily men who took male privilege for granted, accepted men's sexual overtures toward women as natural compliments, rather than as hostile discrimination. A supervisor's retaliation was seen as an understandable, if somewhat cowardly, response to an embarrassing personal rebuff. To these judges, sexual harassment was merely a personal matter. And while it was not commendable, it also was not sex discrimination. The first cases reaching federal district courts were summarily dismissed.

In response, MacKinnon proposed a radical view that did much to set the terms of the subsequent debate. In 1979, her book Sexual Harassment of Working Women was published by the Yale University Press. On first reading, it seemed a scholarly work of some importance; closer examination revealed that the book also contained a new theory of the foundation for women's oppression.

MacKinnon's book examined the structure of sexual relations in modern society and found exploitation and inequality at the core. Sexual harassment, in this view, was not simply an abuse of an employment position or an effort to exploit women's inferior status in the workplace. Rather, it was part of a broader dynamic. Sexual harassment disadvantages women as a gender, argued MacKinnon; the harm comes in a social context in which women's economic survival and sexual exploitation are constructed and joined to women's detriment. MacKinnon further contended that antidiscrimination law should do more than merely pick out and condemn those laws and policies that were based on inaccurate or outmoded stereotypes and that thus failed to mirror society. Instead, she said, it should seek to eliminate the subordination of women to men. With inequality “sexualized,” and sexuality reinforcing gender inequality, sexual exploitation was seen as central to other forms of oppression of women by men.

Sexual Harassment of Working Women was widely circulated before publication among litigators at the cutting edge of sex discrimination law. It contributed to the eventual judicial recognition of sexual harassment as a form of sex discrimination, and it has changed the perception of sexual harassment from a workplace hazard to a form of sexual abuse. It also changed the way constitutional equal protection law was taught in law schools. In 1981, Harvard Law School professor Laurence Tribe introduced MacKinnon's theories about sex discrimination into his constitutional law class—the first established male law professor, I believe, to do so.

Federal appellate courts began to recognize sexual harassment, overturning lower courts, and in 1980 the Equal Employment Opportunity Commission issued guidelines forbidding both quid pro quo and hostile environment sexual harassment. The notion of sexual harassment also spread internationally. The European Union followed the U.S. example and began conceptualizing sexual harassment as a form of sex discrimination, and in 1992 Japan decided its first sexual harassment case, relying importantly on U.S. law, although basing the action in tort rather than in civil rights.

MacKinnon participated in the two major challenges to sexual harassment in the U.S. Supreme Court—Meritor Saving Bank v. Vinson, the 1986 case in which the Supreme Court for the first time accepted certiorari and recognized sexual harassment as a cause of action, and Oncale v. Sundowner Offshore Services, Inc., the 1998 case approving a hostile environment sexual harassment action by a man against other men. The recognition that sexual overtures can indeed be intended as hostile now seems firmly fixed in law.

The same analysis of sexuality as the linchpin of women's inequality lay at the center of some of MacKinnon's more controversial positions regarding rape and pornography. Echoing feminist poet Adrienne Rich's assertion that society coerces women into heterosexual relations, MacKinnon has argued that under conditions of male dominance, male sexual initiative in general cannot be sharply distinguished from rape. Some (mis)understood her to mean that all sexual relations are rape. She and Andrea Dworkin drafted a municipal ordinance making pornography a violation of women's equality and providing a civil cause of action against pornographers; free speech advocates were outraged, and succeeded in having the ordinance declared unconstitutional.

The daughter of a prominent Republican who was named a federal judge by President Nixon, Catharine MacKinnon followed a path similar to that of many feminists before her. Like theirs, her route was often rough in spite of the privileged position from which she began. She became a law professor, but for years she had to struggle through a series of temporary and untenured positions. She considered dropping out of teaching, and even exiled herself to Canada until, finally, the University of Michigan School of Law offered her a tenured professorship in 1989. Combining teaching, law practice, and public advocacy, she has made an important contribution to the field of feminist legal theory, and thus to legal theory generally. Her work regarding sexual harassment remains her most original contribution and her most important legacy.

Denise Schaeffer (essay date September 2001)

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Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 9221

SOURCE: Schaeffer, Denise. “Feminism and Liberalism Reconsidered: The Case of Catharine MacKinnon.” American Political Science Review 95, no. 3 (September 2001): 699-708.

[In the following essay, Schaeffer argues that certain aspects of MacKinnon's feminist theory must be understood within a liberal framework.]

Feminist theory has contributed a great deal to our understanding of the incompleteness of unreconstructed liberalism for addressing all aspects of human life. But the view that liberalism and feminism are incompatible has become widespread, especially among radical feminists who reject liberalism for offering women “a piece of the pie as currently and poisonously baked” (Morgan 1996, 5). When liberalism is understood as thoroughly patriarchal, feminism is understood as something separate from and beyond liberalism. The presentation of liberalism and feminism as disjunctive—indeed, as a contradiction1—raises the question of whether we have become too eager to dissociate thoroughly feminism from liberalism. Once we acknowledge the gender bias in many classical liberal tenets as originally formulated, we are left with the question of whether liberalism is simply one of “the master's tools [that] will never dismantle the master's house” (Lorde 1984).2 Does liberalism remain relevant to feminism, or does feminism require “a new process of theorizing and a new form of theory” (MacKinnon 1989, 116)? The prominent feminist legal theorist, Catharine A. MacKinnon, is one of the more forceful defenders of this latter claim. Yet, I shall argue, certain aspects of the theoretical project she lays out in Toward a Feminist Theory of the State rest on liberal underpinnings. I maintain that liberal theory remains crucial to feminist theory's attempt to articulate fully the possibilities of feminism, even as a feminist critique is necessary to articulate fully the possibilities of liberalism.

Although the most vociferous debate in feminist theory currently centers on disentangling the complex relationship between feminism and postmodernism, the relationship between feminism and liberalism continues to be analyzed and reassessed as well (see, e.g., Allen 1988; Hirschmann 1996; Johnson 1994; Kensinger 1997; Nussbaum 1999; Sinopoli and Hirschmann 1991; Wendell 1987). Pauline Johnson (1994) has identified three stages in the changing relationship between feminism and liberalism. First, the classical paradigm was problematically applied to women by liberal theorists such as Mill. Second, feminist theorists exposed the patriarchal biases of the classical paradigm. The third stage, in which Johnson locates her own work, involves grappling with the following question: “In what terms, namely, are the value commitments of liberalism, which have underpinned feminism's own culture-critique, to be preserved in the light of the powerful feminist challenge to the conception of politically qualified subjectivity which has traditionally underpinned the critical values of liberalism” (1994, 69)?

Defenders of liberalism against the feminist critique often fail to take into account the specific challenges posed by Catharine MacKinnon. The exception is Martha Nussbaum (1999), who responds to several aspects of MacKinnon's critique, although she does not address MacKinnon's critique of liberal epistemology, to which I will devote considerable attention. Other commentators who address MacKinnon's work tend to ignore her theoretical claims and focus on the more limited task of reconciling antipornography legislation with the First Amendment (see, e.g., Scoccia 1996). Such an approach does not address the broader question of whether the assumptions underlying liberal theory are themselves part of the problem. Similarly, Easton (1994) examines Britain's 1986 Public Order Act, which prohibits incitement to racial hatred, with a view toward prohibiting pornography as incitement to sexual hatred. She defends such legislation by appealing to the liberal concern for “a more equal and just social order” (p. 154). Although this argument appears to link the practical political issue with broader theoretical questions, it appeals to an overly broad conception of liberalism—both Marxism and anarchism, for example, are certainly also concerned with a more equal and just social order—and disregards the degree to which “equality” and “justice” are contested terms. While offering useful practical insights, Easton circumvents important theoretical questions about feminism and liberalism.

In light of MacKinnon's (1987) claim to offer an “unmodified” feminism as well as the significant effect of her work on both the political and theoretical landscapes, it is important to confront the unique challenge she poses to liberalism before we can determine whether feminism can be useful in revealing not only the limitations but also the potential of liberalism. I will demonstrate that MacKinnon's work should be understood as part of a conversation within liberalism, not as a separate and fundamentally antagonistic enterprise. My intent is neither to render MacKinnon's ideas more palatable or less threatening nor to dismiss her equally important debt to Marxism.3 Although MacKinnon goes out of her way to distinguish her feminist theory from both liberalism and Marxism, the Marxist dimensions of her work have been widely discussed (Brown 1996; Cornell 1991; Ring 1990). Yet, the liberal dimensions of her work remain underappreciated. This results in a largely inaccurate understanding of MacKinnon's feminist theory and contributes to the common misperception of the relationship between contemporary feminism and liberal theory as fundamentally antagonistic.

I begin with MacKinnon's theoretical writings rather than the more recent Only Words, which is a particular application of the feminist method and jurisprudence that MacKinnon explains and defends in her earlier works. In Toward a Feminist Theory of the State, she distinguishes her own position from two other tendencies found in feminist approaches to liberalism.4 The first charges liberalism with inconsistency, arguing that liberal ideals traditionally reserved for the public realm must be extended to the private realm (see Okin 1990). The second, which grew largely out of the work of Carol Gilligan (1982), argues that the virtues traditionally relegated to the (feminine) private realm should replace the traditional (masculine) liberal model of the public realm structured around atomistic individualism (see Held 1993; Ruddick 1989). Scholars of this persuasion argue that the public sphere should be recast in terms of care and connectedness, which would entail a revaluation of women's voices, work, and ways of being in the world.

In contrast, MacKinnon believes our options should not be limited to insisting that women are independent individuals, on the one hand, or celebrating the fact that they are not, on the other. Rather, she is interested in changing the social conditions that prevent women from being independent individuals. She criticizes liberal theory for presupposing that women are self-defining individuals, but she directs feminism to create conditions that support rather than undermine women's individuality, which liberals erroneously take for granted. To insist that women are individuals “will not make it so; it will obscure the need to make change so that it can be so” (MacKinnon 1987, 59, emphasis in original). Historically, liberalism as applied to the project of women's liberation has generally focused upon removing the explicit, state-sanctioned barriers that kept women from competing in the public sphere. MacKinnon sees barriers where others have not. In order to make these barriers visible, she challenges liberal theory in two ways, criticizing the liberal tendency toward abstract equality as well as the tendency to rely on empiricist assumptions about what it means to know social reality.

MACKINNON'S CRITIQUE OF ABSTRACT EQUALITY

On the surface of her argument, MacKinnon rejects the classical liberal conception of equality. She acknowledges that formal equality has achieved important advances for women (noting that it has been even more successful in gaining access for men to women's traditional protections), but she argues that it is insufficient for several reasons. First, it is virtually impossible to apply the liberal understanding of equality (treating likes alike and unlikes differently) to issues of sex and gender, since the sexes are socially defined by their mutual unlikeness. “Socially, one tells a woman from a man by their difference from each other, but a woman is legally recognized to be discriminated against on the basis of sex only when she can first be said to be the same as a man. … Sex equality becomes a contradiction in terms, something of an oxymoron” (1989, 216).

Second, MacKinnon argues that gender difference is more accurately gender dominance. Norms of masculinity and femininity vary over time, but the social meanings of “man” and “woman” remain linked to a hierarchical conception of heterosexuality in which dominance and submission define the two. MacKinnon maintains that despite the legal distinction between rape and sex, which turns on the question of consent, a certain degree of force/dominance is actually built into our understanding of normal heterosexual behavior. It is socially acceptable for men to pressure women for sex; only after some (ambiguous) threshold is crossed is a wrong committed. We dither over how much pressure is too much without questioning why any at all is acceptable. When a judge refers to “half-won arguments in parked cars” as part of the normal dance of sexual behavior that the law must protect, MacKinnon asks why half-won is enough. “Why not half-lost” (1991b, 193)? The roles men and women are expected to play in this view are not simply different, but inherently unequal.

The acceptance of hierarchy in sexual relations as a natural (and thus innocuous and immutable) difference between men and women undergirds our tendency to accept other “differences” between the sexes. Because equality is premised on sameness, this leads to a real disparity in social power between men and women, with the result that women are rarely “similarly situated” to men. Beyond the obvious fact that women get pregnant, centuries of economic dependence, differential treatment in education, discriminatory legislation, and physical/sexual intimidation have created a situation in which the average woman is not similarly situated to the average man. The playing field is not level, and pretending does not make it so.

Because the average woman is not similarly situated to men, purely formal equality can be quite detrimental, as the “feminization of poverty” phenomenon indicates (see Pearce 1990). Insofar as the sexes are socially unequal, when the law treats them neutrally, it tends to enforce women's inequality. For example, the move to a gender-neutral criterion for deciding child custody did not result in greater equality for women. “Men often look like better ‘parents’ under gender-neutral rules like level of income and presence of nuclear family, because men make more money and (as they say) initiate the building of family units. In effect, they get preferred because society advantages them before they get into court, and law is prohibited from taking that preference into account because that would mean taking gender into account” (MacKinnon 1991a, 83-4).

Therefore, if women are treated by the law in abstraction from the fact that they are women, their unequal status is rendered invisible and remains unchanged. But if they ask to be treated as “women,” they provide justification for unequal treatment by admitting they are different from men. MacKinnon thus explains why contemporary feminism appears to be divided against itself, why it is said that feminism cannot decide whether women want equality or “special treatment.” Feminists are accused of trying to have it both ways. The question MacKinnon asks is: Men have it both ways, and why is that not considered unfair? Her answer is that male privilege is invisible; it is not described as having it both ways. For men, there is no conflict between the (so-called) neutral and the particular.

For these reasons, MacKinnon (1991b, 184) concludes that liberalism is insufficient to accomplish feminist goals: “Applied to women, liberalism has supported state intervention on behalf of women as abstract persons with abstract rights, without scrutinizing the content of these notions in gendered terms.” What such scrutiny entails is not an abandonment of liberal principles but a new way of studying social reality in order to perceive better where and how it contradicts those principles. MacKinnon demonstrates that liberalism is insufficient unless supplemented by a feminist critique of the gendered social reality that liberal neutrality takes as a given, but it does not follow that liberalism and feminism are incompatible. Indeed, in my view, her analysis suggests that each requires the other. After I examine MacKinnon's epistemological critique of liberalism, it will become apparent just how and why this is the case.

CHALLENGING THE “FACTS” OF LIFE

In order to correct liberalism's deficiencies, MacKinnon offers a rethinking of the epistemological assumptions that underlie liberal political theories. The liberal approach to sex equality is most helpful in redressing inequalities due to stereotyping. Yet, any difference that is found to have a factual basis justifies differential treatment. The problem, according to MacKinnon, is that many “facts” about women that are taken to be real differences are not immutable givens; they have been produced by the sexual inequality embedded in our social arrangements. Women have been damaged by sexual inequality; if we take their damaged selves to be an accurate picture of what they are, they will never be similarly situated to men. Stereotypes are “most deeply injurious at the point at which they become empirically real” (MacKinnon 1989, 230). The more “real” the stereotype, the harder it is to argue that it must be changed or fixed. “Where liberal feminism sees sexism primarily as an illusion or myth to be dispelled, an inaccuracy to be corrected, true feminism sees the male point of view as fundamental to the male power to create the world in its own image, the image of its desires, not just as its delusory end product” (MacKinnon 1991b, 183).

First and foremost, liberalism assumes individual agents who participate in but are not constructed by the field of social interaction, makers of meaning who are not themselves made. This view underlies the liberal state's commitment to neutrality rather than interference and its unwillingness to change the social conditions perceived as “facts.” But insofar as the state remains neutral in the face of a social arrangement that is not neutral, male dominance is reinforced. MacKinnon charges that liberal neutrality or “objectivity” is merely blind to its own bias. She goes so far as to state that “male dominance is perhaps the most pervasive and tenacious system of power in history … it is metaphysically nearly perfect. Its point of view is the standard for point-of-viewlessness, its particularity the meaning of universality” (1989, 116-7). Its metaphysical near-perfection lies in its coherence; the male perspective is so embedded in social reality that it becomes almost invisible as anything particular in itself. It comes across as “the way things are” (p. 162) and thus, in the empiricist view, defines rationality, making all accounts of reality that contradict the accepted “facts” easily dismissed. It is this virtual invisibility of male privilege, rather than force, that serves as gender inequality's best protection.

Pornography, which disseminates a sexual script wherein women are portrayed as sexual objects that exist solely to gratify men,5 is a primary channel through which sex and domination are fused. MacKinnon therefore treats pornography as a crucial feminist issue, arguing that it harms women in three ways. First, women are harmed in order to make pornography (just as children are harmed in the production of child pornography). Second, it perpetuates the image of women as sexual objects and thus dehumanizes them, undermining both their demands to be treated as full human beings and their credibility when they complain about sexual violation. “Men treat women as who they see women as being. Pornography constructs who that is” (1992, 298). It legitimates and promotes gender inequality by making that inequality sexual. The more widespread pornography use becomes, the more difficult it becomes to dissociate sex and degradation. How many adolescents absorb their understanding of sex from pornography? What effect might this have?

But the effect of pornography on the social position of women is not limited to the dissemination of harmful views of them. The conditioning effect constitutes the third and most important way pornography is harmful.6 By appealing not to the intellect but to a largely unconscious sexual (physical) response, pornography habituates its users to experience a sexual thrill from the degradation of others (usually women). Insofar as it is used for sexual gratification, MacKinnon argues, pornography must be considered as a material component of sex rather than something that reflects or depicts sexual experiences.7 Thus, pornography is more of an action than a communication of ideas, and MacKinnon implicitly invokes Mill's harm principle in framing her argument in these terms. Moreover, she attempts to redress the harm of pornography through legal reform rather than dismissing legal change as specious, as would someone who adopts a more thoroughly Marxist perspective.

By conditioning sexual desire and thus shaping sexual behavior, pornography does not just distort human sexual desires.8 It also causes the dominance/submission model of sexuality to become an empirical “fact” about sexual behavior, which renders the distinction between reality and myth or stereotype virtually meaningless. MacKinnon is not challenging the dominance/submission model of heterosexuality as a myth that needs to be dispelled; she acknowledges dominance/submission as a reality of sexual behavior and then challenges both the authenticity and the justice of that reality. The empiricism that informs so much liberal theorizing can at most capture a static picture of social reality. It fails to detect the contingency of the “facts” it perceives, and it thus regards pornography as mere representation and dominance/submission as reality. When the issue is framed this way, it becomes almost impossible to argue against gender dominance, as it is taken to be empirically real. This difficulty exemplifies what MacKinnon means when she says patriarchy is metaphysically nearly perfect.

MacKinnon charges that most feminist analyses, even some that call themselves “radical,” fail to capture the complex reality of gender inequality because they unwittingly work from within a traditional liberal epistemology. For example, in Gyn/Ecology, Daly (1978) discusses the traditional Hindu practice of suttee, in which a widow throws herself upon her dead husband's funeral pyre, supposedly out of overwhelming grief and a desire to remain pure. Daly proves that the widows do not voluntarily throw themselves but are often drugged or pushed. By showing that suttee usually is not voluntary, Daly believes she is demystifying the whole practice. Her analysis suggests that women's consciousness exists outside the prevailing understanding of their society. Women may be told that life is nothing without a husband, but they do not believe it. The harm Daly identifies is the explicit coercion of suttee, and she assumes that the women's reality is located in the absence of coercion.

But institutionalized inequality has the power to create inequality in its own image. In MacKinnon's view, Daly ignores the material effects of systemic gender inequality, which not only hide women's authentic response to the death of a husband but also shape it. Daly locates the “real” feminine response to suttee in women's resistance, but their resistance is neither as universal nor as untouched by social expectations as Daly suggests. Daly thus closes off the possibility of understanding the true power of suttee, which is most profoundly manifested in the woman who does not have to be pushed, who wants to die when her husband dies. This woman, according to MacKinnon, is the greatest victim, notwithstanding the absence of visible, immediate coercion. A woman who jumps is not evidence of lack of coercion, but of coercion so fundamental that it has become foundational to a woman's self-understanding.

MacKinnon discerns a similar internalization when women subscribe to a social understanding of sexuality that tells them they should orient themselves toward men's desires because to do so is to be a woman. What is at stake in MacKinnon's analysis is the degree to which the social meaning of gender becomes the content of women's lives. To the extent that women become “thingified in the head” (1989, 99), they appear to consent to their subjection, and liberalism is hard pressed to help them. “In other words, to the extent pornography succeeds in constructing social reality, it becomes invisible as harm” (1992, 299). Moreover, to the extent that dominance and submission are eroticized as the basis of heterosexual relations, it is difficult for both men and women to discern the line between sex and rape. MacKinnon shares the liberal preoccupation with choice and consent but tries to make them meaningful for women by identifying unacknowledged barriers that interfere with their free exercise.

BEYOND INEQUALITY: MACKINNON'S LIBERAL HUMANISM

MacKinnon clearly draws on Marxist insights in formulating her critique of liberal idealism, but she then distances herself from Marxist critics by charging them with oversimplifying social reality as much as liberalism does, albeit from the opposite direction. “As liberal theory has looked for the truth of women in the mirror of nature, left theory has looked for the truth of women in the mirror of social materiality” (1989, 122). Like liberal idealism, materialism fails to capture the complex reality of woman as someone who both is and is not a product of her conditions. The complexity of this reality allows MacKinnon to avoid invoking the concept of false consciousness. We cannot say that either the woman who is explicitly coerced or the woman who does not need to be coerced is suffering from false consciousness. Both are exhibiting a real response to real conditions, and both responses need to be taken into account in order to appreciate those conditions. Yet, neither is exhibiting a fully real response because ultimately both are products of oppressive conditions. We have no idea, under these circumstances, what a woman's real response would be. Feminist theory as conceptualized by MacKinnon orients itself toward both dimensions of women's reality: the reality of women's inequality and the reality of women as self-determining human beings.

One must take careful note of MacKinnon's acknowledgment that patriarchy is only nearly perfect. This careful qualification allows MacKinnon to identify some critical space from which women can challenge the system that has in large part produced them. Marxists encounter a similar difficulty in trying to account for the class consciousness of the proletariat under capitalism, a parallel MacKinnon mentions (1989, 103-4). Yet, her theory entails a much weaker version of this problem because she never presents consciousness as a unilinear reflection of material conditions. If she did, it would be difficult to justify her argument that the empirical “facts” about women are not actually true, although they accurately describe women as they are and so cannot be dismissed as mere stereotypes. Paradoxically, the stereotypes are “true and false at the same time” (p. 104), which is why women can claim consciousness that existing social reality is not theirs and simultaneously argue that they have been constructed by that reality. MacKinnon does not dismiss patriarchy as mere illusion. “As it justifies itself, namely as natural, universal, unchangeable, given, and morally correct, it is illusory; but the fact that it is powerful is not illusion” (p. 100).

Although sexual inequality is real, feminism is also real, and it provides a glimpse of a “shadow world” (MacKinnon 1989, 104) of possibilities for women. Women are what they are (which is reflected in yet not exhausted by what they are said to be), but they are (or could be) something more or something else. The evidence of women's reality beyond the reality of their experience of inequality is the awareness that they could be more than they are allowed to be, that is, its evidence is feminism. If sexual inequality were not real, feminism would not exist. If it were exhaustive of the real, feminism could not exist. Feminism exists at the intersection of the reality of women's oppression and their reality as complete human beings and affirms the reality of both. The Enlightenment epistemology that is central to liberalism—the detached, rational subject knowing a separate, static object—is insufficient to capture this complex reality. MacKinnon thus requires an epistemic position that locates itself within the dynamics of the existing social system of gender inequality (because women are never “outside” it) and yet is not wholly determined by that system (because women are not reducible to it). Mind and world are neither detached nor collapsed but interpenetrated.

The necessary intersection of the reality of women's inequality and the reality of women as self-determining human beings is not always appreciated by MacKinnon's commentators. Often, MacKinnon is presented as someone who seeks to sensitize her audience to women's victimization without pointing them beyond it (Brown 1996, 94; Elshtain 1997, 253; Ring 1987, 470). Consider, for example, Cornell's (1991, 128-9) characterization:

MacKinnon is a “realist” in two senses. First, she is a “realist” in that she argues for a descriptive methodology in which the reality of gender difference, understood as a determinate presence that determines individual identity as sexualized, is traced and brought to consciousness. Thus, she argues against those … who have argued that social and legal reality is indeterminate. Secondly, and in a related manner, MacKinnon is a realist in the colloquial sense that she insists that women face up to reality. We must confront what male domination has done to us, rather than try to see the world of gender hierarchy through rose-colored glasses.

Cornell suggests that MacKinnon sees women's oppression as constitutive of women's reality. This is partly accurate insofar as MacKinnon criticizes those who abstract from existing inequality to view women as essentially free. But what Cornell ignores is that MacKinnon herself then abstracts from that inequality in order to argue that oppression is not exhaustive of women's reality. If it were, radical feminism would be no more than a celebration of victimhood, a worldview that denies women's capacity for choice and self-determination. Instead, the emancipatory potential in women's consciousness of the existing inequality is affirmed by MacKinnon (1989, 91) as essential to the development of feminist consciousness: “Women experienced the walls that have contained them as walls—and sometimes walked through them.” She may criticize liberals who focus their attention on protecting the individuality of the exceptions to the rule without questioning why the rule—pervasive factual inequalities between the sexes—persists, but she cannot help but rely on the existence of “exceptions” to the pervasiveness of patriarchy in order to advance her own arguments.

Cornell also opposes MacKinnon's realism to the poststructuralist view that social reality is indeterminate. Clearly, MacKinnon sees the social/sexual objectification of woman as fairly stable rather than as a perpetually shifting text. Although she does emphasize the discursive construction of sex and gender and the importance of seeing the meaning of “sex” and “woman” in their social context, she does so for the purpose of arguing that this context is a distortion. She disputes the social meaning of womanhood not on the grounds that identity is inherently indeterminate but because there is something to “woman” that is authentic and real, and it must be taken into consideration in assessing whether our social order is just. Moreover, she seeks recourse to a position beyond power and history from which social reality can be evaluated. In her characterization of existing social reality as a distortion she implies another reality against which it can be measured. Although this reality does not, in MacKinnon's view, simply underlie the cultural production of gender, untouched and waiting to be discovered once we strip away the layers of stereotypes, her references to this reality reveal her liberal, humanist tendencies. She posits a shared human core that she considers authentic rather than arbitrary, something that is more than a mere reflection of a new social order and serves as the basis for her arguments on behalf of women as individuals of intrinsic dignity and worth.9

MacKinnon does not propose that, apart from a shared experience of sexual objectification, women share any particular qualities, and she does not argue that women would be just like men absent gender inequality. If there is such a thing as the “human,” our understanding of it cannot be complete until women contribute to that understanding. Yet, MacKinnon (1989, 187) invokes a liberal humanist vision when she frames her principal question in the following terms: “Are women human beings or not?” Implicit in her challenge is an overriding concern with women's capacity for choice and self-determination. Moreover, the reasoning she supplies for her reluctance to spell out in advance any concrete details of a shared human core reflects liberal concerns about preserving individual choice. Critics who deride MacKinnon as paternalistic (Berns 1994; McElroy 1995) assume that she desires a state-sponsored, top-down process of social transformation in the name of her own vision of the good (feminist) society. Yet, MacKinnon explicitly rejects such an approach, criticizing those who claim to miss women's voices so much that they (paradoxically) “proceed to imagine for them the world they should be a part of building” (MacKinnon 1987, 219).

Rather, women must participate in building this world as “real” (free) women, not as walking projections of male needs. If civil rights were conceptualized in such a way as to recognize the harm to women caused by sexual use and abuse, then individual women could bring suits against pornographers (and the specific harm would have to be proven in each case, arguably a very high standard to meet). If pornography were actionable as a civil violation, the state would not have to ban books or art by decree. In MacKinnon's presentation, the conflict over pornography exists between individuals and not between the individual and the state. She intends her attack on pornography as an expansion of individual rights, rather than an abridgement of them.10

It is particularly important to note MacKinnon's attention to individualism because it is generally believed that liberalism and feminism use two different units of social analysis, which creates a fundamental chasm between them insofar as liberalism is individualist and radical feminism collectivist.11 That distinction is not absolute, however, from the point of view of either liberalism or radical feminism. Liberals have long acknowledged the importance of individual membership in various collectivities to the definition of the individual.12 And although MacKinnon argues on behalf of women as a group, her antipornography civil rights legislation, written with Andrea Dworkin, is designed to permit anyone (including any man) who has been harmed on the basis of sex through the making or use of pornography, as the ordinance defines it, to sue. According to MacKinnon, any individual can occupy a position of sexual degradation; the antipornography statute is “gender-neutral in overall design” (MacKinnon 1992, 300). Her point is that when the recipient of harm is viewed as feminine (understood as sexually violable), the harm tends to disappear or get explained away. She does not jettison Mill's harm principle; she asks that it be applied more judiciously. It is true that this requires looking beyond individual cases in order to see how gender operates structurally; but the group-level analysis is shown to be necessary precisely because of the way gender affects individual cases.

Moreover, unlike some feminists who, inspired by Marx's attempt to eradicate class, seek to eradicate sex (Firestone 1970), MacKinnon does not demand an enforced obliteration of the gender distinction altogether, hoping to bring about a substantive sameness. Her “clean slate” is not a final goal; it is a new beginning from which individuals can and must act, and it therefore transcends the distinction between “equality of opportunity” and “equality of results.” Some have argued that MacKinnon discards such concern about fairness in favor of “revenge” (Cornell 1991, 138), but this is not the case. The perennial liberal tension between freedom and equality may not be resolved by MacKinnon, but it is a concern that she incorporates.

CONNECTING EPISTEMOLOGY AND POLITICS

The problem is that the empiricist epistemology traditionally employed by liberal theorists hampers our recognition of the barriers that make it virtually impossible for women to occupy the position of the individual who is the basic social unit in liberal theory. MacKinnon identifies this position, with the attendant capacity for choice and self-determination, as essential to the full experience of humanity. She does not, as do some other feminist critics, argue on behalf of an alternative to the liberal conception of the individual; she employs a liberal view of the self as an essential part of her argument. Her critique challenges the assumption that women presently occupy this position and that they should be treated neutrally by the law; her goal, however, is to foster social conditions under which such a view of women would be justified. For example, only when women have speech (only when they are heard even when they contradict the speech scripted for them) will they be in the position of liberalism's presumed “individual,” whose free speech must be protected from government interference. It is from this perspective that she launches her attack on pornography.

Paradoxically, MacKinnon wants liberals to see differently and to see more of what already tends to register as contrary to liberal principles. In her presentation of the complex relationship between consciousness and material conditions she stretches liberal theory the farthest, although she detects an appreciation for that complexity in Mill's work ([1859] 1978, [1869] 1988).13 For example, MacKinnon (1989, 44-5) cites favorably his acknowledgment that “women's consent to their place is no less coerced for seeming acquiescent.” Mill also addressed the fact that myths supporting sexual inequality are true and false at the same time, which makes it impossible to defend women as “just like men.” He recognized the ways in which social practices caused a harm to women much more profound than formal inequality, even if the remedies he proposed did not adequately address that harm.14 The principle of individual inviolability supplied him, as it ultimately supplies radical feminism, with a standard for arguing the injustice of such harm, but that principle requires the contributions of a feminist perspective (like that of MacKinnon, or perhaps Harriet Taylor) in order even to recognize the harm. Liberalism is open to seeing harm in new places; the question is whether it is open to seeing harm in new ways. MacKinnon has been quite successful in arguing that sexual harassment constitutes harm, which suggests that mainstream American culture is willing to rethink its received notions of acceptable sexual behavior without abandoning its dominant liberal framework.

Despite the influence of Marxism on her work, MacKinnon does not contextualize or historicize the ideals to which she appeals in defending the importance of women's reality. Some see this as a potential contradiction in her work. For example, Ring (1991) believes MacKinnon emphasizes relativism and subjectivism over objectivity, and she defends a version of dialectical materialism as superior to MacKinnon's approach. Ring argues that the interaction between multiple subjectivities can provide access to objective reality. For example, the truth of whether a rape occurred can emerge out of the conflict between the man's defensive account of his actions and the woman's outrage at her perceived violation. Both must be weighed according to their emotional intensity. Each subjective response is valid as a subjective response; their clash should yield something greater than the sum of its parts. But what if a woman at some level believes she deserved what happened to her in a parked car? What if the woman's outrage does not materialize or is so tinged with ambivalence that it lacks the kind of emotional intensity that would impress a jury? According to Ring (1991, 201), “if that emotional bedrock of rage that I am here assuming accompanies a sense of violation, never emerges, the jury will indeed have to find that a rape did not occur.” She adds (p. 201): “Catharine MacKinnon herself would have to believe in the superiority of conventional objectivity, if she were to argue that such a legal decision is erroneous.” MacKinnon indeed appeals to some “objective” standard even as she rejects conventional empiricism. I have shown that MacKinnon orients herself not only toward a material inequality (that must be taken into account in order to correct liberalism's idealism) but also toward an abstract vantage point that cannot simply grow out of women's experience of inequality, and to which she attaches fairly traditional liberal ideals.

Presently, “sex equality” may be meaningless insofar as its requirements result in a contradiction in terms, but MacKinnon is not content to expose its contingency; rather, she works toward bringing about what she refers to as its true, comprehensive meaning (1989, 242). To better understand what she means by this, we must simultaneously draw on and think beyond the traditional liberal vocabulary. Only by revealing the illiberal tendencies of liberalism can certain harms be made visible. MacKinnon holds liberals up to their own standards in order to show them how they fall short. Civil rights activists faced a similar challenge; they had to recast the humanist ideals of liberalism in order to render them more comprehensive. Similarly, MacKinnon calls on us to recognize another unacknowledged instance of a failure to live up to liberalism's promise—its abstract, humanist, universal promise. She does not hold out an alternative promise for women, although she does say that it is hard to imagine what social reality will look like once that promise is met (1989, 249). This is not only because true sexual equality has never been tried, but also because true sexual equality will allow individuals—male and female—to shape the social landscape.

It is not surprising that MacKinnon affirms the successes achieved by civil rights activists who worked within a liberal framework. “There came a point in Black people's movement for equality in this country when slavery stopped being a question of how it could be justified and became a question of how it could be ended” (MacKinnon 1991a, 90). Just as arguments about racial equality shifted from explicit discrimination to systemic or endemic racism, so does radical feminism turn our attention to how sexism can be embedded in the social fabric in ways that may not come to light without sensitizing liberalism to its own blind spots.15 According to MacKinnon, liberalism's most dangerous blind spot in the application of its principles to women is the persistent presumption that they are meant to be sexually used, which undermines any individual woman's chances at a fair trial, an equal opportunity, and so on. Her arguments are designed to get us to recognize this presumption as a barrier, but nowhere does she herself advance an argument that barriers as such are wrong.

Instead, I submit, MacKinnon relies on liberal opposition to barriers to individual choice and self-determination. Taking as a given that harm to another justifies limitation to one's freedom, she argues only that harm to women in the form of sexual objectification is such an instance. This requires more of a change in how we see women than in how we conceptualize the harm principle. The problem that MacKinnon detects arises from the fact that the sexual use and abuse of women will not register as harm if it is seen as only natural, if indeed “sex is what women are for” (MacKinnon 1991b, 191, emphasis in original). The hierarchical conception of gender operates in advance, undermining individual women's accounts of their experiences of discrimination and violation by making such treatment seem appropriate to them. It certainly contributes to the view that pornography's harm to women is less insidious than the effect of pornography regulation on pornographers. If we could reach an agreement about how best to delineate the harm to women caused by the eroticization of dominance and submission, there is no inherent reason it could not be rectified from within a liberal perspective.16

CONCLUSION

If we take liberalism to be “essentially a view about the bases of political and social criticism, about what counts when we evaluate alternative political and social institutions and practices” (Johnston 1994), we see that MacKinnon agrees with liberals that choice, consent, and protecting individuals from harm by others and from state power should “count” fundamentally. She also argues that women must “count” in how these abstract ideals are given life in a concrete social system. She demands that liberals consider soberly the question of whether women are indeed human beings, and she spells out the serious implications of the seemingly innocuous equivocation, “Yes, but …” This is not to reduce her theory to a demand for inclusion. But we cannot understand her work in complete opposition to liberal theory and we cannot understand the ways in which liberalism may or may not be “feminist,” or make sense for women, until we understand the complexity of her work and appreciate the depth of her challenge to liberalism.

My analysis shows that MacKinnon is part of an ongoing conversation. We must not ignore the extent to which she reformulates the liberal project, especially its idealism. Her work is not merely a mirror or a repetition of traditional liberal rhetoric and concepts; it is a rearticulation that shapes that which is articulated. She neither completely abandons traditional liberal theory nor mirrors it. In fact, her relationship to liberalism exhibits the same tensions we see in her characterization of feminism's relationship to the status quo of male power—more than a mere reflection but not entirely separable either. Whether or not we agree with MacKinnon's presentation of sexuality, her presentation of feminism's method and dilemmas provides a particularly fruitful example of both the possibilities and the difficulties of situated social criticism.

The tensions that characterize MacKinnon's relationship to liberalism, as a harsh critic as well as a fervent adherent, arise from her attempts to comprehend both the concrete (inequality) and abstract (equality) of women's reality. Her vision requires double vision in order to appreciate the concreteness of women's inequality and the “shadow world” of their equality. MacKinnon works to create the political conditions under which this reality, at present only a shadow world, might flourish, and women might experience their full humanity. Such conditions do not involve an abandonment of liberal principles; on the contrary, those principles provide the basis for these conditions. For the most part MacKinnon's rhetoric emphasizes the limits rather than the possibilities of liberalism, but she also offers modest endorsements; she acknowledges, for example, that “legal guarantees of equality in liberal regimes provide an opening” for social changes (1989, 242). A great deal of feminist input is necessary to pry open that opening, but even in MacKinnon's estimation the potential is there. My reading of her work is intended to highlight that potential and the ways she makes use of it.

What, then, are we to make of MacKinnon's claim that her feminism is “unmodified” by existing theories? This claim applies more accurately to some aspects of her work than others. When MacKinnon is rethinking the social category “woman,” her inquiry is radically new, and she demands that we engage her arguments on their own terms without filtering them through predetermined categories of what we do and do not already “know” about sex. To questions of individual freedom, equality, and choice, however, she does not offer “unmodified” answers. Rather, she invokes a liberal conception of these ideals. Hers is certainly not a “liberal feminism” if that phrase is taken to mean the application of liberal principles to women, without rethinking the category “women.” But it is precisely on the basis of these liberal ideals that she argues such a rethinking is necessary.

To conclude either that MacKinnon should be lumped in with liberalism or that she abandons it is to oversimplify not only her theory but also liberalism. Too often the feminist critique turns liberalism into an overly static concept. It is obvious that liberalism relies on some basic, abstract ontological and political claims, but it is also the case that these claims are and must be continually articulated with respect to the specific questions they are intended to address. This process of articulation produces a diverse range of possibilities and attaches different meanings and implications to those claims. That is why there are and have been many disputes about and within liberalism, disputes in which feminism has participated and continues to participate. When feminism acknowledges this participation rather than claim it is proceeding on a different plane altogether, it can help reconceptualize the plane and parameters of liberal theory. Liberal theorists are paying more attention than ever to issues of racial, sexual, and economic inequality and pondering whether liberal theory offers the resources to address these inequalities (see, e.g., MacLean and Mills 1983; Yack 1996). My analysis lends support to the notion that liberalism's resources are still relevant to the issue of sexual inequality.

MacKinnon can contribute to this ongoing reevaluation of liberalism, and once her salience is acknowledged, the possibility of a more synergistic relationship between feminism and liberalism must also be acknowledged, whether or not we accept MacKinnon's specific prescriptions. The reopening of a dialogue between feminism and liberalism is necessary, according to Johnson (1994, 136):

If contemporary feminist theory persuades itself that it can have no dialogue with the formulations of humanist ideals which have rooted themselves (albeit in an incomplete, flawed and fragile form) in modern social life, then, it inevitably severs itself from a reflective, interpretative relationship with the sense of frustrated potentials and dissatisfied cultural needs which have, from the first, galvanized the modern women's movement.

A real dialogue consists of contributions from both sides. Feminist theory must recognize the contribution of liberal theory to its own enterprise, beyond liberalism's historical role.17

I do not suggest that liberal assumptions, ideals, and institutions are not contestable and contested; they are and should be. I do not claim there is anything in liberalism that is “off limits” for feminist interrogation; but when the interrogation yields results that partially affirm the framework being challenged, these results need to be acknowledged in order that the strengths and weaknesses of both the critique and the framework can be fully appreciated. Obviously, there are risks in invoking liberalism's abstractions, which, as MacKinnon shows, can be as much part of the problem as part of the solution. But there are risks in disavowing them as well. The extreme view that feminism and liberalism are incompatible drives an unnecessary wedge in what otherwise could be a productive alliance.

Notes

  1. A classic example is The Radical Future of Liberal Feminism, in which Zillah Eisenstein (1993, 3) argues that “the contradiction between liberalism (as patriarchal and individualist in structure and ideology) and feminism (as sexual egalitarian and collectivist) lays the basis for feminism's movement beyond liberalism.” As Eisenstein presents it, only by transcending liberalism did feminism realize its full potential.

  2. “Liberalism” is notoriously difficult to define. I will refer to specific features that are generally accepted as intrinsic to the liberal tradition, which is made of up several strands, without claiming to address all the features that can be attributed to liberalism. In general, I focus on liberal values, principles, and theoretical commitments (such as the primacy of individual choice and self-determination, and the equal moral worth of all human beings based on a shared human core of dignity), rather than on liberal political institutions.

  3. We may broadly distinguish between “liberal” and “Marxist” feminist theories, but MacKinnon (1989, 39) reminds us that “few are exclusively liberal or exclusively radical.”

  4. Nussbaum (1999) offers a thorough and persuasive defense of liberalism against these two strands of feminist critique.

  5. MacKinnon defines pornography as the graphic sexually explicit subordination of women (as well as men, children, or transsexuals) through pictures or words. Her definition does not include all erotic or sexually explicit materials, only those that also present women as “dehumanized as sexual objects, things, or commodities; enjoying pain or humiliation or rape; being tied up, cut up, mutilated, bruised or physically hurt; in postures of sexual submission or servility or display; reduced to body parts, penetrated by objects or animals, or presented in scenarios of degradation, injury, torture; shown as filthy or inferior; bleeding, bruised, or hurt in a context that makes these conditions sexual” (1992, 300, emphasis added). The definition is intended to distinguish pornography from other sexually explicit material that does not meet these criteria and therefore is not sexually discriminatory.

  6. I believe it is the most important because it circumvents the argument that pornographic images are mere speech or representation of ideas. The Seventh Circuit Court of Appeals acknowledged the harm that pornography causes to women by disseminating the view that they are sexual objects, but it then used this admission to categorize pornography as protected speech that must not be abridged based on the particular content or viewpoint it expresses. See American Booksellers v. Hudnut 771 F. 2d 323 (7th Cir. 1985), aff. mem. 475 U.S. 1001 (1986).

  7. For a more detailed explanation of how pornography is an activity and not just a representation of ideas, see MacKinnon 1993.

  8. Nussbaum (1999) directs her arguments to this aspect of MacKinnon's discussion of pornography.

  9. Because MacKinnon's theory generalizes about gender, many commentators accuse her of essentialism, that is, of attributing a fixed essence in common to all women (see Cornell 1993; Harris 1990). Rapaport (1993) defends MacKinnon against this charge, demonstrating that she makes only socially and historically contextualized generalizations limited to modern Western industrialized society. I agree that the generalizations are contextualized, but I also think MacKinnon employs a general (and liberal) conception of the human.

  10. MacKinnon has criticized Canadian policy for taking a criminal approach to pornography, although she commends the Canadians for at least recognizing that pornography is a sex equality issue (MacKinnon and Dworkin 1996).

  11. Although he does not address MacKinnon, Graham (1994) argues that radical feminism is liberal with regard to ends but not with regard to means. My analysis of MacKinnon's rejection of paternalism suggests that she, at least, is liberal with regard to means as well.

  12. Johnson (1994) provides an overview of liberalism's appreciation of the interrelatedness of the individual and the group. See also Kautz 1995.

  13. Ring (1991, 64-84) detects self-contradiction in Mill, resulting from his commitment to empiricism, rather than subtlety in his treatment of women. But based on Mill's appreciation of the complex relationship between consciousness and material conditions, Burgess-Jackson (1995) argues that Mill has been mislabeled as a liberal feminist and was in fact a radical feminist.

  14. Analyses of Mill's failings in this regard are provided in Eisenstein 1989 and Ring 1991.

  15. In making manifest the illusory quality of some of liberalism's most fundamental assumptions, MacKinnon operates as critic in much the same way as Rousseau. She reveals the chains underneath the flowers (or hearts and flowers) with a view to moving from illusory to true liberty and equality. She even uses language that explicitly recalls the opening lines of On the Social Contract (Rousseau [1782] 1968), observing that “women are men's equals, everywhere in chains” (1989, 104). We would hardly characterize Rousseau as extrinsic to the liberal tradition, which has been profoundly shaped by many of his insights (via Kant), even though Rousseau himself had republican aims.

  16. Scoccia (1996) provides a detailed defense of the position that a ban on violent pornography is consistent with Mill's harm principle. Easton (1994, i-xi) points out that the harm principle has been used by both defenders and critics of the right to pornography.

  17. For examples of the kind of feminist analysis that proceeds along these lines, see Allen (1988) on the issue of privacy and Kiss (1997) on the issue of rights.

An earlier version of this article was presented at the 1996 annual meeting of the Southern Political Science Association. I thank Peter Lawler, David Nichols, Mary Nichols, Rachel Zuckert, and the anonymous APSR referees for their comments and suggestions. I also thank the Lynde and Harry Bradley Foundation for supporting this research.

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