[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.