Catharine A. MacKinnon
ARE WOMEN HUMAN?
And other international dialogues
392pp. Belknap Press. £22.95 (US $35).
0 674 02187 8
Catharine A. MacKinnon is the world’s leading feminist legal theorist, and her work over the past three decades has helped create an entire field of theorizing about gender, the State and law. Along with the late Andrea Dworkin, MacKinnon has also become one of the major thinkers and activists on the issue of women’s rights in the global arena, particularly regarding the way in which enduring distinctions between the public and the private spheres (in areas such as pornography, for example) sustain a matrix of inequality and exploitation.
In this collection of previously published essays and public lectures, MacKinnon focuses on the international legal dimensions of feminist theory. She asks how international law, specifically international human rights protections, might be structured to take account of the uniqueness of crimes against women. The core of her arguments is to expose the elision between law and masculinity. Crimes experienced by men are coded as violations of human rights, whereas crimes against women – from sexualized trafficking to rape to pornography – are coded as, at best, a subcategory: “women’s rights”. In this sense, she says, women cannot be fully human until the atrocities against them are absorbed into legal discourse on human rights and efforts are made to secure the real equality of women through legal practice.
But what does it mean for women to be less-than-human? One sense is the purely metaphorical: that the international legal order does not adequately recognize atrocities that specifically target women. Victims of such crimes are only partially “human” if their suffering is not fully acknowledged as a gender-specific human rights violation. But MacKinnon means more than this, and there is an ontological argument about humanity lying at the base of her theorizing. As she writes in the introduction to this volume:
“[human] rights can be observed to be a response to atrocity denied. Before atrocities are recognized as such, they are authoritatively regarded as either too extraordinary to be believable or too ordinary to be atrocious. If the events are socially considered unusual, the fact that they happened is denied in specific instances; if they are regarded as usual, the fact that they are violating is denied: if it’s happening, it’s not so bad, and if it’s really bad, it isn’t happening. The given status of certain people is seen as tautologous with, even justified by, the deprivations of their human rights . . . . Victims are thereby ideologically rendered appropriate to their treatment, the unequal treatment serving to confirm their ontological status as lesser humans. When nothing is done, the treatment, and social status accordingly, confirm and create who one is. Legally, one is less human when one’s violations do not violate the human rights that are recognized.”
As one wends one’s way into the meandering prose and backpedals through the passive voice, one is tempted to say that this is just nonsense. Unfortunately, many of the pieces in this book are written in a similar style. There are some – such as the lightly edited public speeches – which are worse.
But there is an important idea here which bears some closer scrutiny. It would be difficult to gainsay the central assumption in MacKinnon’s work, which she has expressed elegantly in her other volumes: that the State and law are universal constructs built on a very particular base. Men’s concerns are so fundamental to the way that institutions and legal frameworks are organized that we have become accustomed to believing in the universality of concepts that are plainly gender-specific. The way we think about fairness, peace, justice, rights, power and just about every other concept at the heart of the modern legal order can be shown to be based on and uniquely to benefit a particular category – men, certainly, but in different societies, men of certain castes, races, ethnic groups or religions. Erase these other category markers and there is a near universal preference for the gender-particular. Men both make the legal order and, usually, make it just as they please.
It is one thing, however, to offer a critique of this state of affairs and quite another to claim that those disadvantaged by it constitute a group uniquely wronged. Throughout these essays, MacKinnon consistently mixes the concepts of “group” and “category”. Yet they are not the same thing. To claim that the law systematically defines and excludes a category of humans from adequate protection is a very different thing from claiming, as MacKinnon does, that a uniquely violated group exists which should and can demand redress.
To understand why the group-category distinction matters, consider what might be called a category crime, for example, “hate crimes” in the United States – a punishable offence whose motivation (racial or sexual bigotry, for example) is held to be an aggravating feature of the crime in question. The idea behind enshrining category crimes within a legal system is plainly not to make racial or sexual minorities “more human” or even to make sure that the rights of particular communities are especially protected. Indeed, the “groupness” of the targets of these crimes is neither in theory nor in practice a key component of the way in which hate crimes are either perpetrated or punished.
Hate crime legislation does not exist in order to protect a disadvantaged minority. It exists as a statement, by the society in which the law operates, that the targeting of victims based solely on a given set of categories is itself so abhorrent as to constitute a crime in itself. Assaulting someone in order to rob him of his cash is bad. Assaulting someone solely because the assailant places the victim in the category “black” or “gay” or “Jew” is worse. At my own university, some undergraduates have been known to scrawl “faggot” on the dorm-room doors of individuals whom they disliked. Those responsible for this behaviour – not really a crime as such but certainly a violation of the university’s code of behaviour – most likely had little knowledge of whether the victim was homosexual; in any case, plenty of heterosexual men have been victims, too. But the act is condemned not because it systematically disadvantages or targets a group as a whole, or even an individual who is a self-identified member of that group. We condemn it because the act of targeting based on the social category “homosexual” diminishes our ability to live in a civil, egalitarian order. It is the category, not the group, that is the issue.
Women exist, of course, as does the social category “woman”. But to think of this category as automatically mapping a single, unified social group, with a sense of social solidarity, purpose and common views about everything from human rights to erotic videos, is to mistake a social category for a social group. Categories do, on occasion, map real groups, but usually only when those groups are small enough to exhibit real social solidarity, or when there is some overarching incentive for social mobilization. By claiming to speak for women as a group, MacKinnon inevitably runs into the same problem as old Marxists: those who question the analysis and its implications are usually accused of displaying either naked self-interest (if they happen to be men, in this case, and therefore implicit beneficiaries of the status quo) or false consciousness (if they happen to be women who have not yet awakened to their own groupness).
Like Marxism or, indeed, liberalism, MacKinnon’s approach is a reading of social relations, not a theory of them, at least not in the scientific sense of the term. Feminist critiques provide a radically useful way of perceiving the sources and uses of power in society, and MacKinnon has been a pioneer in applying the feminist lens to State institutions, legal norms and the practice of jurisprudence. But because her main goal is critical rather than explanatory, MacKinnon sometimes ends up asserting rather than arguing. She relies on a shaky form of causality whose calling cards are the passive voice and the sweeping generalization. And as with the work of many public intellectuals, there are some pieces in this collection – her discussant’s report from an academic conference, for example, or transcripts of parliamentary testimony – which only appear here because MacKinnon wrote them, not because they are particularly eloquent or important contributions to wider debates. None of this is to deny the need for making women fully “human”, in all the senses that this volume implies. But it is still possible to be deeply committed to women’s legal and practical equality with men for reasons that MacKinnon, one suspects, would find simply wrong-headed.
