Women's Status, Men's States: Feminist lawmaker Catharine MacKinnon on the new international human rights law paradigm

By Tina Ottman

 

gWomenfs Status, Menfs Statesh: Catharine MacKinnon in Japan

l        A report of the lecture gWomenfs Status, Menfs Statesh, given by renowned feminist lawyer, activist and international relations scholar Catharine MacKinnon.

l        MacKinnon spoke at the Centre of Excellence (CoE) Kyoto University symposium on 6th August 2007; with Okano Yayo, Ritsumeikan University, commentator; and Yokoyama Mika, Kyoto University, moderator.

l        The report contains transcriptions from MacKinnonfs readings of her recent work, Are Women Human (2006). I have appended current well-known arguments for and against MacKinnonfs position: a critique from feminist academic Judith Butler, support from philosopher Martha Nussbaum, and a different perspective from feminist lawmaker Drucilla Cornell.

 

The MacKinnon File

l        MacKinnon has a BA from Smith College (1968), a JD from Yale Law School (1977) and a PhD in political science from Yale University Graduate School (1987). She was admitted to the Connecticut Bar in 1978 and the Bar of the US Supreme Court in 1986., and has been Professor of Law at the University of Michigan Law School since 1990.

l        MacKinnon is an expert on sex equality, and is best known for her pioneering legal work on sexual harassment, which was accepted as a form of sexual discrimination by the US Supreme Court in 1986. She took a similar approach towards pornography, together with the late Andrea Dworkin, campaigning for womenfs rights to claim damages under civil rights law. Together they wrote an anti-pornography civil rights ordinance for the Minneapolis city government in 1983; the law was vetoed but eventually passed in Indianapolis, Indiana in 1984. Feminist groups continued to campaign for further passage of the law elsewhere. The Supreme Court of Canada in 1992 partially accepted her positions on pornography, hate speech and equality.

l        MacKinnon continues to be at the forefront of litigation, law- and policymaking on womenfs human rights, and has represented on a pro bono basis Croatian and Muslim women and children seeking international legal justice for sexual atrocities committed during the gethnic cleansingh genocide in Serbia (Kadic v. Karadzic). Together with co-counsel she won damages $745 million in August 2000 in this case, which first recognized rape as an act of genocide.

l        Her academic publications include Sex Equality (2001), Toward a Feminist Theory of the State (1989), Only Words (1993), Women's Lives, Men's Laws (2005), and Are Women Human? (2006).

 


On December 10, 2008, the UN Universal Declaration of Human Rights[i] will be 60 years old. As a description of what constitutes humanity, and what are the entitlements of human beings, it remains a historic document in the annals of international human rights law (IHRL). But the question asked by feminist lawyer and international relations scholar Catharine MacKinnon[ii] is, are women human yet?

@@ If women were human, would we be a cash crop shipped from Thailand in containers into New York's brothels? Would we have our genitals sliced out to purify us (of what?) and to bid and define our cultures? Would we be used as breeders, made to work without pay our whole lives, burned when our dowry money wasn't enough or when men tired of us, starved as widows when our husbands died if we survived his funeral pyre, forced to sell ourselves sexually because men won't value us for anything else? Would we be sold into marriage to priests to atone for our family's sins or to improve our family's earthly prospects? Would be we sexually and reproductively enslaved? Would we, when allowed to work for pay, be made to work at the most menial jobs and exploited at barely starvation level? Would we be trafficked for sexual use and entertainment worldwide in whatever form current technology makes possible? Would we be kept from learning to read and write?
@@ If women were human, would we have little to no voice in public deliberations and in government? Would we be hidden behind veils and imprisoned in houses and stoned and shot for refusing? Would we be beaten nearly to death, and to death, by men with whom we are close? Would we be sexually molested in our families? Would we be raped in genocide to terrorize and destroy our ethnic communities, and raped again in that undeclared war that goes on every day in every country in the world in what is called peacetime? If women were human, would our violation be enjoyed
by our violators? And, if we were human, when these things happened, would virtually nothing be done about it?[iii]

 

That is a shocking portrayal of womenfs sub-human status – but MacKinnon,[iv] who is renowned for introducing sexual harassment legislation to the workplace, and for her controversial anti-pornography activism with Andrea Dworkin, claims that there is nevertheless hope of promotion up the ranks. A new model of human rights is in the making, one which is transforming the international human rights legal paradigm. It features womenfs resistance to inhumanity; it will not allow for the denial of sex-specific violations, because overcoming the denial of atrocities is gthe path to becoming human,h which MacKinnon takes to be a normative social status.

Reforming the system has been hampered by the fact that states are essentially gdemographically maleh (i.e. their political systems are male-dominated). Referring back to her 1989 work, Towards a Feminist Theory of the State[v], MacKinnon asked, gWhat in gendered terms is the role of international law?h Can the international system, including international law, provide a counterbalance to the male state? Is it a restraining force, or is it merely gmeta-maleh? Does the international order, especially IHRL, challenge statesf behaviour, or does it reproduce and reinforce it?

Two opposing strands need to be taken into account when considering the question: the existence of a so-called gdemocratic deficith in the international system, and the perception that we witnessing the decline or death of state power. In the case of the former, opponents of the discourse of the gsubaltern theoryh [vi]--and others who support the institution of the state-- allege that state democratic institutions are more effective than international ones, a claim that MacKinnon regards as gquestionableh given the gbackwardnessh of male states. In the case of the latter, a multiplicity of transnational forces such as globalisation, religion and multinational corporations suggest that the state is an outmoded concept. And rising from the ashes of state collapse is womenfs global consciousness of their fully human status.[vii]

However male power, too, has long been a transnational force, as MacKinnon dryly observes; and indeed, both these two strands of thought may cause us to overlook the effects of gender as a transnational, top-down dynamic of male-female oppression. The effects of male dominance are to be found, according to MacKinnon, in the gquintessentially maleh distinction of public and private; in the naturalization of the dominance versus difference discourse, and its equally misleading Aristotelian amelioration of equating glikesh with gunlikesh, which in any case gdoes not produce true equalityh, since gequality does mean samenessh; and in hiding coercion behind gconsenth, obscuring politics behind gmoralityh (which she defined as something which seems like a good idea). In particular, hiding coercion behind consent assumes womenfs freedom – in the sexual context – but gfreeh does not mean equal, MacKinnon observes.

Yet despite the systemic preference for the national system over international jurisdiction, women, from bottom up, are gchallenging male global dominanceh according to MacKinnon. Since civil rights are often gwhat men think they need to protect them from other menh, womenfs best legal hope for address of domestic injuries may be to appeal to men who are goutside c more spatially distant from men at home, where they are most often violatedh. Rape, for example, may be prosecuted as a collective crime. She cited examples of successful womenfs resistance through international jurisdictional pressure in former Yugoslavia, whereby witnesses and womenfs groups got the International Criminal Tribunal for the Former Yugoslavia (ICTY) to include charges of sexual violence in the indictment of former Yugoslav president Slobodan Milosevic (2001)[viii], and the prosecution by the International Criminal Tribunal for Rwanda (ICTR) of former mayor Jean-Paul Akayesu, who on October 2, 1998 received three life sentences for crimes against humanity and genocide, plus an additional 80 years for rape and encouraging widespread sexual violence.[ix] Thus sexual violation is not merely the gground zeroh or ultimate challenge to the law in its male incarnation, because according to male rules it is considered to belong to the private domain; yet it is public, and as such, affects public order, and enacts dominance. It is most often rationalised as consensual, but it is coerced; and though endlessly moralized about, it is actually sexually political.

 

Formal equality

The limitations of gformal equalityh have produced considerable feminist debate. In the U.S. in particular, gformal equalityh has often clashed with gdifference feminismh on grounds of equality and freedom. Fellow lawyer, activist, political scientist and philosopher Drucilla Cornell has sought to reconcile these positions through works such as The Imaginary Domain.[x]

While MacKinnon campaigns for formal equality, she admits that it does not necessarily produce equality in practice, despite substantive equality conventions, such as the recent gPalermo Protocolsh,[xi] and considerable legal advances in countries such as Canada, South Africa and Sweden. India, for example, may guarantee constitutional equality, but we do not necessarily think of it as a country of optimum conditions for women. Nor is all IHRL sound on womenfs issues; surprisingly, MacKinnon takes issue with the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),[xii] for its preamble, wherein sex equality is argued to be a ggood ideah – the much-disparaged morality argument of which she is highly critical.

Although womenfs second class status in law remains concealed and prevalent all over the world, MacKinnon avers, the generally progressive climate has made it gunacceptable for all countries to profess or practice discriminationh even if they continue to do so behind closed doors; and there is gunanimous condemnationh of violent subordination of women by men. Sex and ethnicity are at the core of humanity; it is becoming increasingly difficult to dismiss them as peripheral. As for the arguments of cultural relativism that may require womenfs equality to take a back seat or an unrecognisable form in certain cultures, MacKinnon dismisses them emphatically: feminism and the desire for equality are indigenous to all women.

 

Morality and politics axis

Returning to her demolition of the gmoral argumenth for sex equality, MacKinnon disparages the tendency to see it as a gnice ideah. Such nice ideas gimpede progress worldwideh. Calling something gharmfulh is far more powerful than describing it as morally gwrongh.[xiii] Patriarchy is harmful. The normalization of oppression is harmful. For MacKinnon, it is a matter of the law taking a clear-eyed approach to fundamental inequity, so that there can be no blurring of the distinction that what is coerced—for example the issues of prostitution and pornography—has been chosen. And, since gender hierarchy as a global system takes diverse forms all over the world, she has no problem with thorny issues such as FGC/FGM (female genital cutting; female genital mutilation); as harmful practices, they are not open to cultural defence, unlike the values inscribed in moral judgment itself. Once the arguments of cultural relativism are employed to defend aspects of what she considers to be womenfs oppression, they transform that oppression into ga cultural universal or a cultural particularityh, meaning that gnothing can or should be done about ith.

In this context international institutions are likely to be far more democratic towards womenfs issues than states, those sites of cultural oppression. Non-state arenas present a forum for resistance, and the deepest changes may take place there, according to MacKinnonfs neofunctionalist position. One reason for this, she suggests, is distance. It gattenuates the male bondh and genhances what men call objectivity.h It has taken her 30 years to figure out what men call objectivity, says MacKinnon: it means that gthey do not identify with the men involved, so they can be fairh.

The events of 911, moreover, have enhanced the prominence of non-state actors, showing that they have power in ways that governments are gsuddenly interested in thinking abouth. They can be remedial or aggressive; they may also be perpetrators of violence, or victims; likewise the nature of the offence can be group-based; and civil society may contain both representations of the problem and also routes to its solution, while civil remedies have been shown to be more transformative and restorative than criminal approaches alone.

In this vein, MacKinnonfs Are Women Human? concludes with a piece entitled gWomenfs September 11thh, citing the statistics that a similar number of women are killed annually by men in the U.S. as those people who perished in the attack on Twin Towers (around 2,800 to 3,000). Yet no gsurgeh was launched to protect those women, although for her such violence constitutes a kind of casus belli. Perhaps, given Bushfs current catastrophe, it is just as well; nothing could further illustrate the adage that war only breeds more war. Deeming men to be the axis of evil is unlikely to bring peaceful resolution to gender conflict. On this MacKinnon is known to concur:

I think about the question of violence and war that it is a sort of the ultimate male tool. And whether that means it will work in our hands or not, Ifm not sure. But I really do think that most women have decided not only that they donft want to do it, but that it wouldnft work.[xiv]

 

Critiques

Finally, the transformative limits of the justice system and of state power are where MacKinnon and many feminist theorists and post feminists are said to have taken a different stance, as Stuart Jeffries noted in a 2006 interview:[xv]

 

Camille Paglia, for instance, charges that MacKinnon and her late collaborator Andrea Dworkin are responsible for "totalitarian excesses" in sexual harassment regulations and that their "nightmarish sexual delusions" have invaded American workplaces and schools and warped their views on pornography. Naomi Wolf branded her a "victim feminist". "Victim feminism," claims Wolf, "urges women to identify with powerlessness, even at the expense of taking responsibility for the power they do possess." In The Morning After, Katie Roiphe wrote that MacKinnon had an "image of woman as child" and attacked her for allegedly portraying all women as potential victims and all men as potential predators. Others have called her a fascist proponent of sexual correctness.

 

MacKinnon is considered to be gold schoolh by those who favour deconstructionist@ positions taken by feminist scholars such as Judith Butler, In an interview with Peter Osborne and Lynne Segal, Butler comments that merely seeking social change to end patriarchy may prove to be a somewhat blunt instrument:

 

Catharine MacKinnon has become so powerful as the public spokesperson for feminism, internationally, that I think that feminism is going to have to start producing some powerful alternatives to what she's saying and doing - ones that can acknowledge her intellectual strength and not demonise her, because I do think there's an anti-feminist animus against her, which one should be careful not to encourage. Certainly, the paradigm of victimization, the over-emphasis on pornography, the cultural insensitivity and the universalisation of "rights" - all of that has to be countered by strong feminist positions.

What's needed is a dynamic and more diffuse conception of power, one which is committed to the difficulty of cultural translation as well as the need to rearticulate "universality" in non-imperialist directions. This is difficult work and it's no longer viable to seek recourse to simple and paralysing models of structural oppression.[xvi]

For this MacKinnon has her answer too. Discussing Butlerfs Gender Trouble, which analyses the performative nature of gender-as-act, she has said in interview:

c Itfs all just about a self presentation, anyway. And also there is no organized, social reality of oppression out there that requires confrontation and change. So of course that makes it very acceptable. And especially when you called it feminism, then everyone has the impression that they can be suddenly very avant-garde and progressive, while doing nothing about it, because itfs all just in play, itfs just a game. Itfs very status quo defined. There are people who are in essence in love with gender, from whom male dominance is not a real and oppressive system, talking about it that way maintains it just the way it is, which accounts for why itfs beloved, especially by people in power who then go tell everybody what they should love.

c Judith Butler ET al.- theyfre just voices for a certain kind of misogyny and denial. Theyfre not creating the problem; they are useful and theyfre in the way. But letfs talk about the pornographers; letfs talk about the international sex traffickers; letfs talk about the rapists; letfs talk about the sexual harassers. THEY are the problem.[xvii]

And MacKinnon still has her supporters, philosopher Martha Nussbaum for one, who in a noted New Republic article, gThe Professor of Parodyh[xviii], has charged Butler with obscurantism and professing gverbal and symbolic politicsh. We know she is talking about Butler and the postmodernists when she says:

 

Feminist thinkers of the new symbolic type would appear to believe that the way to do feminist politics is to use words in a subversive way, in academic publications of lofty obscurity and disdainful abstractness. These symbolic gestures, it is believed, are themselves a form of political resistance; and so one need not engage with messy things such as legislatures and movements in order to act daringly.

 

And indeed later Nussbaum names her, in no uncertain terms, as she takes out the hatchet:

 

One American feminist has shaped these developments more than any other. Judith Butler seems to many young scholars to define what feminism is now. Trained as a philosopher, she is frequently seen (more by people in literature than by philosophers) as a major thinker about gender, power, and the body. As we wonder what has become of old-style feminist politics and the material realities to which it was committed, it seems necessary to reckon with Butler's work and influence, and to scrutinize the arguments that have led so many to adopt a stance that looks very much like quietism and retreat.

 

In contrast, says Nussbaum, gOne cannot read a page of Catharine MacKinnon, for example, without being engaged with a real issue of legal and institutional change.h Feminists may not agree on how to improve the lot of women, but none differ on the extent of the injustice that is wrought on women, and most concur that glaw and political action can make them more nearly just.h She appreciates MacKinnonfs no-nonsense depiction of ghierarchy and subordination as endemic to our entire cultureh and her gcautious optimismh regarding the possibilities of improvement in womenfs situation through the law, particular through domestic rape laws, sexual harassment legislation and IHRL.

For all of us, cautious optimism sounds like a preferred state, and one certainly worth defending.

 

 

 



[i] The text of the UN Universal Declaration of Human Rights can be found at the UNfs website http://www.un.org/Overview/rights.html (including a link to other languages).

[ii] For a biography and bibliography, see MacKinnonfs faculty page at the University of Michiganfs Law School http://cgi2.www.law.umich.edu/_FacultyBioPage/facultybiopagenew.asp?ID=219

[iii] Are Women Human?: And Other International Dialogues, Catharine MacKinnon. Cambridge: The Belknap Press of Harvard University Press, 2006. This extract gAre Women Human? Reflections on the Universal Declaration of Human Rights 171h retrieved on 3 September 2007 from http://www.nostatusquo.com/ACLU/MacKinnon/mackin1.html

[iv] For a biography and bibliography, see MacKinnonfs faculty page at the University of Michiganfs Law School http://cgi2.www.law.umich.edu/_FacultyBioPage/facultybiopagenew.asp?ID=219

[v] Toward a Feminist Theory of the State, Catharine MacKinnon. Cambridge: Harvard University Press, 1989.

[vi] gSubaltern theory takes the perspective of the "Other" as the one who has had no voice because of race, class, or gender. This theory is based on deconstruction as Derrida has proposed it. It emphasizes that norms are established by those in power and imposed on the "Other."h Retrieved on 3 September 2007 from the website Dear Habermas/ Theory Multiple Choice http://www.csudh.edu/dearhabermas/theorymp02.htm

[vii] Putting the end-of-days cataclysmic post-911 argument of those who argue against the dissolution of the state system, commentator Okano Yayo recalled a quotation from Jean Elshtainfs Just War Against Terror (Basic Books: 2003).: gWhen states fall, we approach something like the nightmare of Thomas Hobbesf war of all against allh.

[viii] gCharging Sexual Violence Against Milosevich; gThe Furundzija Case: Disclosure of Rape Witnessf Medical Recordsh , website of the Coalition of Womenfs Human Rights in Conflict Situations, retrieved on 3 September 2007 from http://www.womensrightscoalition.org/site/advocacyDossiers/formerYugoslavia/index_en.php ; gWomen's Groups Congratulate ICTY on Charges of Sexual Violence Against Slobodan Milosevich , website of the Coalition of Womenfs Human Rights in Conflict Situations, retrieved on 3 September 2007 from http://www.womensrightscoalition.org/site/newsReleases/2001-10-yugo_en.php

[ix] gRWANDA: Akayesu Sentencing a Victory for Women's Rightsh, website of the Coalition of Womenfs Human Rights in Conflict Situations, retrieved on 3 September 2007 from http://www.womensrightscoalition.org/site/newsReleases/1998-10-rwanda_en.php

[x] Cornell argues for the "imaginary domain," where one may re-imagine gwho one is and who one seeks to become". The law should secure an equivalent opportunity for all, women and men, to transform themselves into people, the best they can become. Yet legal decisions and cultural debates have never reached satisfactory conclusions on questions of privacy and rights when freedom and equality are ranged against each other, for example, in the case of Roe v. Wade, which permitted rights for women to obtain legal abortions on grounds of privacy, but then attempted to overturn those rights. If the protection of the imaginary domain is the legal argument, then legislation that prevents women from access to abortion or information cannot be deemed justice. The Imaginary Domain: Abortion, Pornography and Sexual Harassment. New York: Routledge, 1995.

[xi] The gPalermo Protocolsh include the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children http://www.unodc.org/unodc/en/trafficking_human_beings.html

[xii] Convention of the Elimination of All Forms of Discrimination Against Women, retrieved on 3 September 2007 from http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm

[xiii] Commentator Okano Yayo notes that Cornell departs from MacKinnon in her approach to this. gFeminism has at its heart the demand that women be treated as free human beings. We claim the right to be included in the moral community of persons as an initial matter,h writes Cornell in At the Heart of Freedom: Feminism, Sex, and Equality. Princeton: Princeton Univ. Press 1998.

[xiv] gInterview with Catharine A. MacKinnon: «They havenft crushed me yet»h by Catharine Albertini and Emily Blake, July 3rd, 2005. Retrieved on 3 September 2007 from http://www.sisyphe.org/article.php3?id_article=2001

[xv] gAre women human?h by Stuart Jeffries. The Guardian, Wednesday April 12, 2006. Retrieved on 3 September 2007 from http://www.guardian.co.uk/gender/story/0,,1751983,00.html

[xvi] London, 1993: gExtracts from Gender as Performance: An Interview with Judith Butler.h Retrieved on 3 September 2007 from http://www.theory.org.uk/but-int1.htm

[xvii] @gInterview with Catharine A. MacKinnon: «They havenft crushed me yet»h by Catharine Albertini and Emily Blake, op. cit.

[xviii] gThe Professor of Parodyh by Martha Nussbaum. Post date 11.28.00 | Issue Date 02.22.99. The New Republic Online ("TheNewRepublic.com") http://www.tnr.com/index.mhtml. Retrieved on 3 September 2007 from http://www.akad.se/Nussbaum.pdf

 

 


.

G.A.L.E. Main Page / Articles / Events / Links / Feedback



This page last updated November 19, 2007

Web Manager
http://www.tokyoprogressive.org.uk/gale/articles/womens-status.html