[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 Read as historical documents, these books capture both the exciting new theories (sexual harassment, civil rights approaches to pornography) and the old approaches (“formal” versus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).