Vol. 15 No.8 (August 2005), pp.770-774

 

WOMEN’S LIVES, MEN’S LAWS, by Catharine A. MacKinnon. Cambridge: Harvard University Press, 2005. 576pp. Hardcover. $39.95 / £25.95 / €36.90. ISBN: 0-674-01540-1.

 

Reviewed by Rose Corrigan, Department of Government, John Jay College of Criminal Justice. Email: rcorrigan@jjay.cuny.edu .

 

Catharine MacKinnon is a famously polarizing figure; her groundbreaking work in feminist legal theory has ardent admirers and fanatical opponents, with much of the substance of her analysis and method obscured by political and intellectual fallout over her controversial work on pornography. Though this collection includes several succinct essays on pornography, I want to turn attention to the analysis and method that are at the heart of her attempt to re-make equality law.

 

WOMEN’S LIVES, MEN’S LAWS brings together more than two decades of MacKinnon’s thinking. Many of the speeches, articles, and essays have appeared in print elsewhere; a handful are published here for the first time. Though the collection necessarily lacks the coherence and sustained intellectual force of TOWARD A FEMINIST THEORY OF THE STATE (1991), its scope makes it an absorbing overview of MacKinnon’s views on women’s inequality. She defines sexual inequality as “a hierarchy that is substantially sexual at base and merges especially crucially with inequalities of race and class” (p.2), and argues that law—in its current state—is not an effective tool to create conditions of substantive equality.  Law is especially incompetent at recognizing and addressing the legal needs of women in areas formerly regarded as “private” (sexuality, reproduction, family, violence); regulation in these areas typically have protected men’s, not women’s, interests and rights. Previous efforts to remedy inequality failed because reformers tried to fit women’s injuries into a constitutional framework that never intended to provide equality for all. Mainstream efforts to expand equality to address women’s needs were thus doomed on two counts: first, the concept of equality as developed in the U.S. provides equality only when groups are similar; and second, because law—in its methods, procedures, and concepts—protects those in power. MacKinnon proposes a radical new vision of formulating legal principles that will, she says, result in real change for women.

 

MacKinnon’s method turns the accepted form of legal reasoning on its head. Rather than deciding whether a named injury fits within a recognizable category, she openly advocates an outcome-based, instrumental use of law to remedy what are clearly harmful conditions whether or not they are actionable injuries in the legal sense. Protecting individuals and groups, she argues, should be prioritized over procedural niceties. “Anyone who has ever practiced law knows that the real issues of a case—its gut, how it plays on the street—are one thing; the legal issues, into which these real issues must somehow be shoehorned, are commonly [*771] another. Rarely do the two coincide; often they do not even overlap. Legal theory, in my opinion, should analyze the legal issues in terms of the real issues, and strive to move law so that the real issues are the legal issues” (p.6). A process that sees injuries to women but deems them outside the scope of legal remedies, or rejects the remedy as conflicting with prior rights—as the Seventh Circuit did in the HUDNUT case, striking down MacKinnon’s anti-pornography ordinance even as it recognized some of the harms the ordinance tried to prevent—is incompatible with justice. In her view, a legal system focused on abstract rules and principles, such as fidelity to the Constitution, norms of stare decisis, conventions of judicial reasoning, or constraints on interpretation, necessarily protect the privileged and powerful.

 

The first step in the articulation of new, truly meaningful equality principles is the rejection of equality law as it has been developed. Like other legal scholars, MacKinnon argues that our legal model is cramped by an inability to think about the requirements of equality in the presence of “difference” (Minow 1990). Simply expanding equality, therefore, is insufficient; MacKinnon says that we must abandon the idea of trying to conceptualize women’s injuries to fit equality doctrine. The exclusion of women from making law renders it not just ignorant of women’s injuries, but currently incapable of redressing these grievances. “The law that is applied to . . . women was not written by women, white or Black, rich or poor. . . . [N]o women had voice or representation in constituting this state or its laws, yet we are presumed to consent to its rule. It was not written for our benefit, and it shows” (p.33).  The intellectual and legal tools necessary to improve the material conditions of women’s lives are simply not available under current statutory and doctrinal interpretation.

 

Once the failures of existing equality law are conclusively documented, MacKinnon offers a base from which to reconstruct viable and just principles. The actual principles themselves remain unclear, but the process for identifying them is examined in some detail. These come from two forms of practice: the practice of law, and the practice of women’s lives. Like Elizabeth Schneider (2000), MacKinnon offers a vision of the capacities and failures of law that arises out of legal advocacy for women. 

 

MacKinnon begins her search for equality in what she calls the practice of women’s lives—the unique forms of inequality that limit women’s lives: restrictions on reproductive freedom, commodification and exploitation of women’s sexuality, historical experiences of race- and class-based discrimination. MacKinnon derides the use of neutral principles and disembodied selves to articulate the requirements of equality, dismissing these as fictions that refuse to see that “some people—sometimes you, your colleagues, your friends—[are] systematically treated worse than others” (p.66). Identifying and eliminating systematic forms of discrimination should be the purpose of equality law. The role of law is not to protect principles, but to make people’s lives better.

 

Instead of starting from established legal principles, then, MacKinnon wants to start with substance. What substantive [*772] decisions would advance sexual equality? How does looking at the injuries women suffer as women lead us to then articulate principles that would eradicate those injustices? That this would entail what is usually vilified as substantive due process bothers MacKinnon not at all. In discussing LOCHNER and its progeny, MacKinnon says that “[c]ommon wisdom holds that, if substance is allowed to drive outcomes . . . the wrong substance may win; so the lesson learned was to preclude substantive decisionmaking and avoid substance at all costs. Missed is that the legislation was not invalidated in the name of its substance, unbridled capitalism, but in the name of a legal abstraction, freedom of contract. . . . What was wrong with these cases . . . was not their substantivity but their substance. What was problematic was not that substantive decisions were made. Ineluctably, they are. What was wrong was that abstractions obscured both the substance of the decisions and the fact that the decisions were substantive” (p.8).

 

 In MacKinnon’s view, substance is exactly what groups should be fighting over. The reduction of  substantive disagreements to abstract legal principles does nothing to clarify or contest the values that determine legal outcomes, and indeed, as the quotation above points out, merely hides the values privileged by law. But why this contest is properly pursued through the judicial rather than the legislative process is left unaddressed, a troubling prospect for observers who note that elected representatives are already quite eager to leave tough conflicts to the judiciary. MacKinnon’s approach seems to validate this trend. Although she clearly does not reduce all law to that announced in courtrooms, the heavy focus in both her lawyering and theoretical work on changing judicial interpretations of law, rather than changing law itself, indicates that the legislative process is not her main target. If MacKinnon wants communities to engage in real discussion over the meaning and requirements of equality, the courtroom seems to be perhaps the worst, most constrained, least accessible venue for these conversations. Indeed, the legislative success contrasted with the legal failure of the MacKinnon/Dworkin anti-pornography ordinance in Indianapolis would seem to point MacKinnon to leave courts out of a re-interpretation of sexual equality as much as possible. A more sustained assessment of how the logic, forms, and requirements of law varies in these different political contexts, and offer different possibilities and limitations for women would strengthen and enrich the argument over how communities should determine what substantive goals should be protected by law.

 

There are other, important questions raised but ultimately left unanswered by the essays. As MacKinnon herself points out, “women’s everyday life has real rules, but they are not the formal ones. They have never been legislated or adjudicated. They have not had to be. . . . These rules go under the heading of socialization, pressure, religion, popular culture, masculinity and femininity” (p.34). MacKinnon does not adequately explain why law is the best way to ameliorate these informal rules that continue to cramp and thwart women’s lives. Her argument is that “while legal change may not always make social change, sometimes it helps, and law [*773] unchanged can make social change impossible” (p.103). But this recognition that law is important does not necessarily help explain or understand what legal avenues help women most, or least, or for what reasons. If one accepts MacKinnon’s premise that the legal system privileges and protects male interests she needs to explain more fully how to avoid the potentially perverse consequences of implementing women’s equality through a still largely masculine legal system.

 

MacKinnon points to her work on sexual harassment as evidence that legal theory derived from the experiences of women can produce significant change. “When women’s experience was made the basis for the law against sexual harassment, everyday life altered as well. . . . Most important, women’s own sense of violation changed because the harm had legal expression and legitimacy and public sanction. . . . Changing what could be done by law changed the way it felt to live through it in life, and the status of women took a step from victim to citizen” (p.40). Yet she does not offer a single citation or footnote to support this claim; there is no empirical evidence that sexual harassment law has done what MacKinnon claims that it has, nor does she grapple with critical literature on anti-discrimination law (such as the work of Kristin Bumiller (1988)) that could raise questions about whether even laws written by women can address victimization in positive ways. Her assertions of meaningful change, I think, fail to produce sufficient evidence to persuade skeptics.

 

The inevitable repetition and elisions in a collection of this sort should not detract or distract from the importance of its overarching themes. Her perspective obviously recognizes and builds on the insights of the legal realism and critical legal studies schools, but MacKinnon makes the extraordinarily bold move to develop a positive theory and practice of sex equality under the law. In this I think that she joins only a handful of contemporary theorists whose work goes beyond critique and offers a genuinely new way of talking and thinking about significant problems.

 

 I see the purpose and value of this book in doing just that—forcing readers to think deeply and seriously about why law fails to protect groups, especially women. Despite my own questions about her work, I see MacKinnon’s purpose and contribution not as crafting well-documented, adequately footnoted, empirically sound arguments of the typical scholarly variety; it is instead to ask fundamental questions about our very notions of law and justice. Whether one agrees with her or not, MacKinnon is extraordinary in her willingness to tackle big, provocative questions about the nature of law, the requirements of justice, and the limitations of legal discourse. Her answers are not always persuasive; some, no doubt, will find them deeply objectionable. It is rare for a collection of this type to offer genuinely new intellectual insights, but WOMEN’S LIVES, MEN’S LAWS does just that. It is a significant addition to legal scholarship about equality and an important amplification of MacKinnon’s vision for women’s rights.

 

REFERENCES:

Bumiller, Kristin. 1988. THE CIVIL RIGHTS SOCIETY: THE SOCIAL CONSTRUCTION OF VICTIMS. [*774] Baltimore: The Johns Hopkins University Press.

 

MacKinnon, Catharine. 1991.  TOWARD A FEMINIST THEORY OF THE STATE. Cambridge: Harvard University Press.

 

Minow, Martha. 1990. MAKING ALL THE DIFFERENCE: INCLUSION, EXCLUSION AND AMERICAN LAW. Ithaca: Cornell University Press.

 

Schneider, Elizabeth. 2000. BATTERED WOMEN AND FEMINIST LAWMAKING. New Haven: Yale University Press.

 

CASE REFERENCES:

AMERICAN BOOKSELLERS ASSOCIATION v. HUDNUT, 771 F.2d 323 (7th Cir. 1985).

 

LOCHNER v. NEW YORK, 198 U.S. 45 (1905)

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© Copyright 2005 by the author, Rose Corrigan.