CATHERINE MACKINNON: FEMINIST JURISPRUDENCE

SUBMITTED BY

Rishabh Sen Gupta

UID: SM0116036

Faculty-in-charge

Mr. Saheb Chowdhury

NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY, ASSAM.

Abstract:
This research paper discusses about Catherine Mackinnon’s feminist critique of law. It first
goes about introducing the subject matter and then delves into feminist jurisprudence as
presented by Mackinnon. It goes on to discuss her claim on how the concept of law is male thus
disabling women from fully enjoying their privileges and then proceeds to explain her views
on formal equality and impartiality along with objectivity.
1. INTRODUCTION

Catherine Mackinnon is regarded as one of the most vocal and endearing advocates for a
feminist account of law. In feminist jurisprudence there is not one definitive theory and great
diversity amongst feminist scholars. In the case of Mackinnon, her fiery critique attacks law
from a different angle. Its underlying assumption being that women have become so damaged
by our culture’s devaluation of them that they are in peril of losing their power of self-
definition, and thus at risk of becoming living embodiments of desires of the opposite sex.

Her feminist jurisprudence is mainly concerned with reasons why the law has been ineffective
in valuing women and covering its tracks with its unquestioned assertion of its own neutrality.
One must keep in mind that Mackinnon writes from the position of an American woman thus,
the legal system she lives in and where she has waged her battles necessarily influences her
approach. Therefore, in tis paper one must understand the difficulty in claiming its universal
relevance.

However, considering the fact that feminist jurisprudence as a discipline is at stage of infancy
her account provides a platform for wider discourse. This article gives an overview of some
fundamental points in order to demonstrate how questions posed by an American feminist can
be constructively used to suggest concepts of feminism in a male dominated world of law.

2. FEMINIST JURISPRUDENCE

According to Mackinnon, law and legal method are gendered tools of social organization. Her
feminist critique of law is distinguished from others as Mackinnon does not simply claim that
individual laws disadvantage women.

In her view it is not individual laws by themselves, but the law as a whole that has failed
women. Her belief is that the very nature of law and legal method is male.1 Her claim that law’s
maleness is inherent in the very form of legal reasoning means that the gender of legal

1
F. Olsen, 'The Family and the Market: A Study of Ideology and Legal Reform' (1983) 96 Harvard Law Rev.
1497.
personnel is irrelevant. Thus, while more women judges would clearly have an impact upon
prevailing attitudes, it would not make much of a difference with an impact of a male legal
order. Also, women lawyers who argue are also bound by male notions of truth.

Thus, her critique offers the conclusion that law’s claims to objectivity and neutrality are
fundamentally suspect as observed further.

Mackinnon’s view on formal Equality:

Equality is recognized as a fundamental principle of the rule of law. It assumes that equality
will be guaranteed to each and every person when they come into contact with the law. This is
however believed to be false. People are never equal before they encounter the law and
subsequent equal treatment cannot deal with the already existing inequality. Therefore, unequal
distribution of power is masked by support of the formal equality of the rule of law. Neutrality
in the law equates substantive powerlessness with substantive power, and calls treating these
the same ‘equality’.2

Like cases be treated alike is asserted by the rule of law. This means equality is intrinsically
linked to sameness. Mackinnon argues that the result of sex inequality is socially perceived
differences, so if sameness is a condition for the application of equality legislation, then sex
equality ‘is conceptually designed in law never to be achieved’.3 The only women protected by
formal equality are the ones who already got which pervasive inequality systematically denies
most of their sex.

Mackinnon takes the argument even further by asserting that the day gender was taken into
account was not the day that a man was appointed in preference to a woman but was when the
job was structured under the assumption that the person doing it would have no childcare
responsibilities.4 The claim that law ensures equal access to employment will remain frivolous
one until women’s domestic role continues to undermine their ability to do the job.

The preoccupation of law with neutrality serves to disguise the significance of gender. Laws
governing sexual harassment and pornography fail to acknowledge that the role of the victims
is determined by their sex. It is almost always men who harass woman and produce and use
pornography, but the laws use gender neutral language to address these issues. It is impossible
in Mackinnon’s view to address these issues adequately without taking into account the sexual

2
MacKinnon, p. 34.
3
id., p. 44.
4
id., p. 37.
structures which define women in terms of their sexual availability. The gender of victims is
hidden by the inability to use sex-specific language, and the law restricts its potential efficacy.

The need to frame equality legislation in gender-neutral terms means that the law cannot be
used to create real equality. Compensation of women for their unequal status requires
identifying them as a group yet doing so is considered against guarantee of equal treatment. If
it is discrimination to differentiate one group from another, then affirmative action expresses
sex bias and is unlawful.

Mackinnon’s main focus is on law’s failure to address the reality of sex inequality. Speaking
in wider terms it could be contended that the law is always concerned with an abstract person,
not real social types. The fictional legal person is then granted a specific set of characteristics
which are then universalised. This baseline of sameness then makes it legitimate to treat
people’s individual achievements differently. So, for instance, it is taken for granted that
everyone has equal educational opportunities and variations in qualifications are then a result
of individual diligence or talent.

The premise on which liberal individualism rests on is the premise that each citizen is a self-
interested, autonomous individual with an inherent desire for self-advancement. It is therefore
considered crucial that freedom to pursue self-defined goals is promoted. The law can only
interfere with this freedom of action insofar as that interference is necessary to preserve the
rights of others. Thus, the law assumes that individuals will function best when they act on
their own. The complex web of social connections within which each of us lives is ignored.
We are all responsible for all of the choices we make, and none of us owes anyone else anything
but the most minimal duty to refrain from causing harm.

Weber defines a legal person as a capitalist who will relentlessly pursue personal gain.5 Law is
used to preserve a community comprising of strangers who are driven by self-interest. This
obviously assumes that the legal person, gender neutral, is a highly motivated member of the
paid workforce. Although race, class and sex are ostensibly not important, the features
presented as inalienably human are, in fact those of a middle class white man. In treating
everyone as though such characteristics are already possessed by them, the law is asserting that
this is the standard by which humans should be judged. If they make the grade, they are entitled
to all the benefits conferred to white middle-class men. If they do not, then discrimination is

5
M. Weber, On Law in Economy and Society (1954).
legitimate. The law does not pay attention in the social context which has restricted access to
opportunities for success.

Mackinnon focuses on the gender of this abstract legal standard. She appears to treat men as a
homogenous group, when in actuality this abstract legal person is a also a successful capitalist.
She then seems to universalize the position of men, and in doing so, mirrors the law’s tendency
to not take into account social context. Men are also products of human interaction and
experience, and a comparatively small proportion actually have access to the features assumed
by law.

Mackinnon’s views on Impartiality and objectivity:

Legal positivism works to rest each lawful choice on actualities which can be unbiasedly
decided. It is expected that there is a value free position from which neutral justice can be
apportioned. While numerous commentators have scrutinized the presence of any unsituated
domain, MacKinnon's approach is more particular. She contends that all information and
experience is gendered. The target viewpoint is what rules on the planet, and under male
matchless quality, this is the male perspective. In the event that the perspective of the capable
is so unavoidable and persevering that it has turned into the impartial ground, the arrangement
of energy 'is powerfully almost perfect'.6 If the confined eyewitness in law sees things from the
male perspective, a prohibition of women’s encounters will be intangible.

If one accepts the objective standard to be applicable, the authoritative application of law is an
exercise in male reasoning. By harping on the value of neutrality and assuming its existence in
the law, the dynamics of the system of male power are disguised. Since women's discourse
cannot embody the male standpoint, it cannot aspire to be objective. If women must then speak
subjectively, they will be marginalized by a legal system which values neutrality.

Objectivity is a stance only a subject can take, and MacKinnon believes that men affirm their
status as subjects by using women as sex objects.7 Women then become valued in the same
way as other things in the object world - for their looks and the ease with which they may be
used. Language has contributed to this reality, as MacKinnon bluntly asserts: 'man fucks
woman: subject verb object'.8

6
MacKinnon, p. 116.
7
id., p. 122.
8
id., p. 124.
Throughout her work MacKinnon often repeats that 'objectivity is the epistemological stance
of which objectification is the social process'.9 Objectivity as an epistemological stance
involves privileging a certain understanding of the world. Objectification as a social process is
to treat other human beings as objects whose characteristics are valued according to the
subject's criteria, rather than treating them as equal subjects with equally valid criteria of self-
definition and valuation. It is not absolutely clear what the connection is that MacKinnon makes
between objectivity and objectification. Does she believe that the two simply run parallel to
each other, or is she claiming that there is a causal connection?

MacKinnon's fundamental point is that the way men see the world has become synonymous
with rationality. So, if men see women as sex objects, this will be regarded as an objectively
determined truth. The practice of objectification presupposes a definition of women as objects
to be valued by their sexual performance. If any male assumption is lent credence by its
notional foundations in rational, objective truth, the objectification of women will be
legitimized and sustained.

If the male point of view is infallible, and if the male point of view is inherently exploitative,
the feminist imperative must be to explode the myth of the former and the corruption of the
latter. But there is a broader agenda beyond MacKinnon's rather narrow terms of reference.
The claim that there is no unsituated terrain is used to explain the universal relevance of gender.
But this conclusion does not encompass all the consequences of the impossibility of
impartiality. Women may indeed be excluded from the institutionalized determination of truth,
but men are not universally included. There will be very little common ground between the
perspectives of a judge and an unemployed black man. Their shared gender will not occlude
their differences. Only by acknowledging divergence in male experience can we start to remove
the privilege of epistemological authority from a very small body of men.

3. CONCLUSION

MacKinnon's work is infused with a paradoxical mix of debilitating pessimism and

unfathomable optimism. The assumption seems to be that male power has forced itself on the
world so completely that it has become an inevitability. Given that society has been structured
so that male supremacy is sustained and nourished by law in the name of gender neutrality, it
is impossible to imagine its overthrow. On the other hand, MacKinnon is clearly guided by the

9
id., p. 248.
belief that, as a crucial part of the existing power settlement, law is an instrument for social
change, and that law could be other than it is.

She argues that consciousness raising can help women identify political issues in their personal
experiences. The recognition that women's experiences are shared can help foster the
realization that concern is justified. Once something has been identified as a social problem,
demands for legal sanctions are more likely to be successful. Consciousness raising is thus
imperative before women's experiences can be incorporated into law.

4. BIBLIOGRAPHY:
 Emily Jackson, Catherine Mackinnon and Feminist Jurisprudence: A Critical
Appraisal, Journal of Law and Society, Vol. 19, No. 2 (Summer, 1992), pp. 195-
213.

 F. Olsen, 'The Family and the Market: A Study of Ideology and Legal Reform'
(1983) 96 Harvard Law Rev. 1497.
 M. Weber, On Law in Economy and Society (1954).
 Catherine Mackinnon, Sexuality and legality: A feminist theory of the state
(1981).