Wear Clean Draws  (because there’s 5 million ways to kill a ceo)

2006-09-17 00:48:47

Janet Halley explains her assertion that there are two MacKinnons, early and late. All underlines and bold are my additions and not in the original text. —————————————————————————-
SEXUAL SUBORDINATION FEMINISM The Structural Male/Female Model. In the book that did more than anything else to provide the theoretic basis for sex harassment law, Sexual Harassment of Working Women, published in 1979, Catharine A. MacKinnon set out a theory of sex, gender, sexuality, and power that explains why male/female sexual overtures at work are sex discrimination. Here’s MacKinnon’s male/female model:

“Analysis of sexuality must not be severed and abstracted from analysis of gender. What the current interpretations of rape [as an exercise of power, not of sexuality] fail to grasp… is the argument most conducive to conceiving sexual harassment as sex discrimination: a crime of sex is a crime of power. Sexual harassment (and rape) have everything to do with sexuality. Gender is a power division and sexuality is one sphere of its expression. One thing wrong with sexual harassment (and with rape) is that it eroticizes women’s subordination. It acts out and deepens the powerlessness of women as a gender, as women.” [3]

This paragraph uses a number of ambiguous terms, but it gives them very stable, intelligible meanings; Sex appears here both as the difference between men and women (I call this sex1, to indicate bodily dimorphism, the purportedly stable difference between male and female bodies) and as erotic appeal, genital eroticism, and everything that makes “fucking” a central focus of attention (I call this sex2). Sexuality is the structural rather than interpersonal dimension of sex2 (it appears that MacKinnon was not thinking here about sexual orientation at all). The crucial term, however, is gender. Rape and sex harassment are homologous crimes of sex1 because they use sex2 to generate gender. Gender renders men as men (that is, superordinate) and women as women (that is, subordinate). Women as women are powerless. Their gender is this subordination. In the important theoretical article that MacKinnon published in the feminist journal Signs in 1982 but had written well before the publication of Sexual Harassment of Working Women4 she restated this point and elaborated it:

“Sexuality, then, is a form of power. Gender, as socially constructed, embodies it, not the reverse. Women and men are divided by gender, made into the sexes as we know them, by the social requirements of heterosexuality, which institutionalizes male sexual dominance and female sexual submission. If this is true, sexuality is the linchpin of gender inequality.” [5]

As MacKinnon suggested in 1979 and as she explicitly states here, gender renders sex hierarchy as what men and women are; it produces rather than reflects sex1. This is one of the most radical elements of MacKinnon’s theory of sex2. The reality of sex1, and the consciousness in which that reality seems real, natural, and inevitable, are effects of power. As MacKinnon put it in her subsequent 1983 Signs article, sex hierarchy is ontologically and epistemologically “nearly perfect”:6 by producing both its own reality and our every mode of apprehending that reality (with the sole exception of feminist method as MacKinnon defines it), it almost completely occupies the horizon of possibility. I call this the male/female model. It is a neat, tight system; indeed, for all its constructedness and contingency, it is total, structural, complete.7 Purportedly operating on the ground of sex1 but actually producing it, men use sex2 to make themselves superordinate, and that is their gender; and to make women subordinate, and that is our gender. They win, we lose. Of course, this is not inevitable; rather, it is a historical catastrophe. Almost luckily, rape and sex harassment are especially concentrated forms of sex2. Just like myriad other rituals of heterosexual interaction, but with particular force and clarity, rape and sex harassment give men and women gender (that is, makes them men and women), which, for MacKinnon, means their relative place in a male/female hierarchy. And here is where MacKinnon places her Archimedes’ lever. According to MacKinnon’s theory of legal remediation, the law of rape and of sex harassment, when they provide a remedy for the injury of sex1 based on a woman’s claim to women’s point of view, provide ways of exposing this terrible mistake, interrupting the ontological and epistemological seamlessness of sex2, and enlisting the energies of the state in the project of justice. Now, the claim of any one woman to “women’s point of view” is necessarily problematic. Not only do women disagree, but their epistemic powers are, MacKinnon insists, fundamentally constructed by the eroticization of male dominance. In 1982 MacKinnon urged feminism to address, not resolve, this problematic, by dedicating itself not to the assertion of women’s point of view but to the search for it.8 In 1982, the essence of feminism to MacKinnon was not the male/female model but a methodological commitment to consciousness raising. But by 1983 she began to claim that CR had revealed women’s point of view, and revealed it to be nothing other than the social truth of the male/female model. By 2000 she could make the following claim:

Gender . . . was what was found there, by women, in women’s lives. Piece by bloody piece, in articulating direct experiences, in resisting the disclosed particulars, in trying to make women’s status be different than it was, a theory of the status of women was forged, and with it a theory of the method that could be adequate to it: how we had to know in order to know this. . . . In and from the experience of woman after woman emerged a systematic, systemic, organized, structured, newly coherent picture of the relations between women and men that discernibly extended from intimacy throughout the social order and the state. Our minds could know it was real because our bodies, collectively, lived through it…. My own work provides just one illustration of how this philosophi- cal approach of theory from-the-ground-up has been productive in. practice.. .. Feminism made a bold claim in Western philosophy: women can access our own reality because we live it; slightly more broadly, that living a subordinated status can give one access to its reality. . . . We .. . claimed the reality of women’s experience as a ground to stand on and move from, as a basis for conscious political action. . . . Women turned the realities of powerlessness into a form of power: credibility. And reality supported us. What we said was credible because it was real. [9]

Between 1982 and 2000, then, MacKinnon made a transition from critique to Enlightenment knowing, one that helps to explain how, originally the radical feminist par excellence, she has been able to make an almost com- plete reconciliation with liberal feminism. A second change was also necessary. In 1983 MacKinnon offered the bold proposal that the state, its law, and the rule of law are male. She “propose[d] that the state is male in the feminist sense” not only because it pursued and protected men’s interests in sexual control over women by adopting particular rules (which presumably could be rewritten), but be- cause “formally, the state is male in that objectivity is its norm.” The very “rule form . . . institutionalizes the objective stance as jurisprudence,” which, in liberalism, is “the law of law.”1 0 Asking the law, rather than women, to speak the meaning of sexuality from women’s point of view would be a hopelessly contradictory undertaking. And so rewriting the rules of rape adjudication to make women’s subjective experience decisive would merely reinscribe the terms of male dominance into the feminist project:

“Even though the rape law oscillates between subjective tests and more objective standards invoking social reasonableness, it uniformly presumes a single underlying reality, not a reality split by divergent meanings, such as those inequality produces.. . . Onesidedly erasing women’s violation or dissolving the presumptions into the subjectivity of either side are alternatives dictated by the terms of the object/subject split respectively. 86 JANET HALLEY These are alternatives that will only retrace that split until its terms are confronted as gendered to the ground.” [11]

This at least suggests what the Signs articles repeatedly affirm: that women’s subjective experience, no less than men’s, is part of the epistemological dilemma posed by male dominance. To move “toward a feminist jurisprudence,” for the MacKinnon of 1983, was to engage in critique by exposing that dilemma in all its stringency, as an opening for a feminist consciousness currently unattainable in its terms. And so, just after affirming, in the passage quoted above, that “what is wrong with rape is that it is an act of the subordination of women to men,” MacKinnon turned from law and rape to the system of meaning in which they are embedded: “the issue is not so much what rape ‘is’ as the way its social conception is shaped to interpret particular encounters.” [12] It seems quite fitting, then, that the second Signs article ends in the mode of critique. Its last section warns that “making and enforcing certain acts as illegal reinforces a structure of subordination,” catalogues the dilemmas posed for her feminist project by liberal and left jurisprudence, insists in its last line that “justice” would require something quite “new” â€â? and avoids any effort to reconcile the idea of a charge of rape or cause of action for sex harassment by a particular woman with the problematic relationship that may obtain between her understanding and “women’s point of view.” [13] But by 1989 MacKinnon was able to say that there can be “feminist law”:

“Abstract rights authoritize [sic] the male experience of the world. Substantive rights for women would not. Their authority would be the currently unthinkable: nondominant authority, the authority of excluded truth, the voice of silence.” [14]

An individual woman who suffers sex harassment at work thereby exemplifies, in her sexual injury, women’s gender. As long as her legal cause of action for sex harassment performs the perspective produced by women’s point of view, it will allow her to interrupt the ontological seamlessness joining male superordination with the law, enabling her to make not only her injury but the injury of all women visible, audible, and interruptable. The idea that the legal claim of one woman flawlessly reveals the injury that male superordination and female subordination inflict on all women seems quite foreign to the radicalism and the critical stance of MacKinnon’s Signs articles, but nevertheless pervades her practice of legal remediation.