NOTES
The Big Mac Attack: A Critical Affirmation of MacKinnon’s
Unmodified Theory of Patriarchal Power
Alexandra Z. Dobrowolsky * & Richard F. Devlin**
Introduction
For several years now, Catharine MacKinnon has impressed and inspired
us in that she has consistently and eloquently articulated much of what we felt
and feared: that the condition of women in North American society is intoler-
able; that the state, because of its acts and omissions, is complicitous in the
enforced inequality of women; and that law, more often than not, has been part
of the problem rather than part of the solution. However, despite our broad
agreement with the general direction of MacKinnon’s analysis throughout this
period, we each have had, in our own different ways, a sense of discomfort, an
inchoate feeling that something was amiss. Yet, we found it difficult to focus
and express this dis-ease. Then, as we, from our diverse perspectives, discussed
MacKinnon’s most recent book, Toward A Feminist Theory of the State’ we
began to come to terms with our disquiet, to identify, define and delineate our
concerns. The result of these conversations is this collaborative essay which, in
the words of Cornell West and bell hooks, aspires to be a “critical affirmation”2
of MacKinnon’s enterprise.
* Feminist Activist, M.A. Political Theory, Dalhousie University.
-Associate Professor of Law, University of Calgary.
McGill Law Journal 1991
Revue de droit de McGill
‘Cambridge: Harvard University Press, 1989.
2See b. hooks, “Black Women and Men: Partnership in the 1990’s” in b. hooks, Yearning: Race,
Gender, and Cultural Politics (Boston: South End Press, 1990) 203 at 208 & 213 [hereinafter
Yearning]. hooks captures the key elements of this seemingly oxymoronic concept of critical affir-
mation in the following way:
[W]e educate one another to acquire critical consciousness, we have the chance to see
how important airing diverse perspectives can be for any progressive political struggle
that is serious about transformation. Engaging in intellectual exchange where people
hear a diversity of viewpoints enables them to witness first hand solidarity that grows
stronger in a context of productive critical exchange and confrontation (“Liberation
Scenes: speak this yearning” in Yearning, supra, 1 at 6).
McGILL LAW JOURNAL
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Our note consists of four parts. Part I presents a brief introduction to the
main elements and themes of MacKinnon’s argument, particularly as they are
synthesized and developed in Toward a Feminist Theory of the State. Part II
engages in a critique of what we consider to be the simultaneously under and
over-inclusive nature of MacKinnon’s theory and tentatively offers some reme-
dial suggestions. Through an analysis of MacKinnon’s conception of conscious-
ness raising, Part III highlights an internal incoherence that exemplifies the
problems we identify in Part II. Finally, Part IV, in the spirit of contextualism,
sheds some further light on the perspectives which lay the foundations for our
concerns.
I. MacKinnon’s Project
In writing the book, Toward A Feminist Theory of the State, Catharine
MacKinnon sets herself a daunting task: to formulate a feminist theory of
power; power that is omnipotent and omnipresent; power that fuels law, state
and society as we know it; power that is, simply and overwhelmingly, male
power. In her preface, MacKinnon’s aim is starkly and boldly stated. She writes,
this book “is about what is, the meaning of what is, and the way what is, is
enforced.”3 For MacKinnon, “what is” is a society constituted and scarred by
male domination and female subordination through sexuality and gender. This
situation is sanctioned and promoted by both state and laws as they legitimate
and disseminate male power.
The book is a response to what MacKinnon suggests is feminism’s failure
to articulate a theory of socio-politico-legal power. To say that hers is an ambi-
tious endeavour is an understatement. MacKinnon deserves admiration and
respect for taking on this formidable responsibility which can be seen as both
onerous and potentially inspiring, especially given that the final product is per-
spicacious, impressive and praiseworthy. Toward a Feminist Theory of the State
is a book full of valuable MacKinnonesque insights and analyses. The author
has an enviable writing style,4 one that combines rigorous evaluation with biting
irony, caustic cynicism and a healthy disrespect for the academic enterprise. By
and large, MacKinnon’s themes are well developed and integrated and her
reconceptionalizations and recategorizations of old debates are particularly illu-
minating. The result is compelling reading and innovative arguments that paint
a grim picture of an inequitable, unjust society in which male dominance is
institutionalized and female inequality is entrenched. Toward a Feminist Theory
of the State will never allow readers to think about the world in quite the same
way again. It is, in itself, a mode of consciousness raising.
3Supra, note 1 at xii.
4We have quoted extensively from MacKinnon’s text for two reasons. First, MacKinnon’s phra-
seology is difficult to improve upon, indeed almost addictive. Second, given that we offer a critique
of her work, we want to ensure absolute accuracy.
1991]
NOTES
It is, of course, impossible to do justice to the depth and sophistication of
MacKinnon’s analysis in a note. Therefore, in this part, we shall briefly high-
light what we consider to be some of the crucial elements of her argument, con-
centrating on those which we will further pursue in Parts III and IV.
Toward A Feminist Theoiy of the State is divided into three sections which
correspond to MacKinnon’s three central inquiries into I) Feminism and Marx-
ism, II) Method, and IlI) The State (and Law). The sections are interrelated, and
each section works as a building block to the next.
In Section I, MacKinnon addresses the problem of marxism and feminism
through commentary on Marx and Engels, through what she calls a marxist cri-
tique of feminism and through an examination of attempts at synthesizing the
two. According to MacKinnon, marxism and feminism are both theories of
power, but the two have separate histories, and that which is pivotal to the
former, work, is distinct from that which is fundamental to the latter, sexuality.
As a consequence of these differences, marxism initially did not adequately
address feminist concerns. Later efforts at synthesis were not successful and,
MacKinnon argues, will never be successful if they continue to ignore the cen-
trality of sexual violence perpetrated by men against women. The only approach
that has come close is that of the “wages for housework” theory, but close only
counts in horseshoes, and so even this does not go far enough for MacKinnon.
Significantly, Chapter three’s title, “A Marxist Critique of Feminism,” is
misleading, given its actual content. The chapter does not venture into the intri-
cacies of marxist philosophy in an attempt to study the marxist interpretation of
feminism. Rather, it largely pertains to MacKinnon’s criticism of what, ostensi-
bly, appears to be classical, liberal feminism beginning with John Stuart Mill,
and then the chapter develops into an appraisal of various feminists from
Simone de Beauvoir and Carol Gilligan to Nancy Chodorow and Susan Brown-
miller. Chapter three, therefore, contains important insights into MacKinnon’s
philosophical stance which we shall return to later.
The second section, Method, presents the crux of MacKinnon’s meaning-
ful, thought-provoking, and controversial theorizing. This section moves from
a discussion of consciousness raising, to an adumbration of MacKinnon’s fem-
inist project with her views on power and her analysis of sexuality.
Through the process of consciousness raising, MacKinnon explains that
women move beyond ideas to practice by obtaining “a lived knowing of the
social reality of being female.”5 For MacKinnon, race, class, and or physiology
may define one woman from another, but, nevertheless, “simply being a woman
has a meaning that decisively defines all women socially, from their most inti-
mate moments to their most anonymous relations.”6 The crucial realizations
5Supra, note I at 90.
6Ibid.
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emerging from consciousness raising, in MacKinnon’s estimation, are that men
possess the power to dominate women, or to choose not to and that they as a
group benefit from women’s subordination.7
In Chapters 6 and 7, MacKinnon addresses what she terms feminist method
as she deals with the issues of power and sexuality. These discussions, we sug-
gest, lie at the heart of her theory and are pivotal to an understanding of her
analysis. She writes:
Feminism has a theory of power: sexuality is gendered as gender is sexualized.
Male and female are created through the eroticization of dominance and submis-
sion. The man/woman difference and the dominance/submission dynamic define
each other. This is the social meaning of sex and the distinctively feminist account
of gender inequality. Sexual objectification, the central process within this
dynamic is at once epistemological and political. 8
MacKinnon offers a three-step, cumulative analysis. First and foremost, male
power is fundamental. Second, filtered through this prism of male power, sex-
uality must be understood as neither natural, nor biological, but as a social con-
struct of male power.9 Third, gender as a social construction is forged and for-
matted by this hierarchicalized sexuality. Thus, gender relates backward to
sexuality and then to power.’0 As an illustration, MacKinnon lists a series of
stereotypically female personality traits and traces them back to sexuality. For
instance, female passivity and frailty translate into women’s inability to resist
sexual advances,” which structurally and ideologically dovetail with male
desire to control and have access to women. She encapsulates her theory in
these terms: “Male dominance is sexual. Meaning: men in particular, if not men
alone, sexualize hierarchy; gender is one.”‘ 2 MacKinnon contends that this fem-
inist theory of sexuality becomes its theory of politics. 3 She writes:
what is called sexuality is the dynamic of control by which male dominance –
in forms that range from intimate to institutional, from a look to a rape –
erot-
icizes and thus defines man and woman, gender identity and sexual pleasure. It is
also that which maintains and defines male supremacy as a political system.’ 4
In the final section of the book, The State, MacKinnon applies and concret-
izes her theory by means of an analysis of the patriarchal liberal state, and hones
in on the issues of rape, abortion and pornography. Her penultimate chapter
responds to the difference/dominance debate. The book closes with MacKin-
71bid. at 93-94.
‘Ibid. at 113-14.
91bid. at 128.
‘0lbid. at 113.
“Ibid. at 110.
‘2lbid. at 127.
’31bid. at 131.
‘4 bid. at 137.
1991]
NOTES
non’s articulation of the premises and ambitions of a radical feminist jurispru-
dence, that is, feminism unmodified.
MacKinnon claims that feminism has not confronted the problem of the
liberal state. She argues that the state must be seen for what it is, “male juris-
prudentially, meaning that it adopts the standpoint of male power on the relation
between law and society.”‘ 5 MacKinnon leaves no measure of doubt when she
writes that the liberal state “is not autonomous of sex. Male power is systemic.
Coercive, legitimated, epistemic, it is the regime.”‘ 6 MacKinnon discusses rape,
abortion and pornography, in terms of her feminist method. Accordingly, laws
relating to all these issues are seen, formally and substantively, as embodiments
of the male standpoint. MacKinnon suggests that the law of rape, “divides
women into spheres of consent according to indices of relationship to men …
Daughters may not consent; wives and prostitutes are assumed to, and cannot
but.”‘ 7 However, when further unpacked, the discourse of consent is revealed as
ideological obfuscation because “men are systematically conditioned not even
to notice what women want.” 8 Moreover, the crime of rape is defined and adju-
dicated from the male point of view and, she argues, this results in a legal deter-
mination of “whether or not a rape occurred from the rapists’ perspective.”‘ 9
The alternative, according to MacKinnon, is the feminist interpretation of rape
which sees rape not as an act of violence but as an “act of subordination of
women to men. It expresses and reinforces women’s inequality to men.”‘ 0
Similarly, abortion policy has never seriously included the woman’s per-
spective. MacKinnon illustrates how women were granted the abortion right as
a “private privilege, not as a public right.”‘ The American law on abortion
embraces the public/private dichotomy as it frames abortion rights in terms of
privacy. MacKinnon determines that abortion rights articulated in terms of pri-
vacy work against women, pitting individual women against women’s collective
needs, and thus do more harm than good.22 She brings her argument full circle
by delineating how the law of abortion encapsulates the male construction of
sexuality:
The abortion right frames the way in which men arrange among themselves to
control the reproductive consequences of intercourse. The availability of an abor-
tion enhances the availability of intercourse. 23
151bid. at 163.
161bid. at 170.
171bid. at 175.
‘8lbid. at 181.
191bid. at 244.
20Ibid. at 182.
2’Ibid. at 192.
-21bid. at 187-88.
231bid.
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MacKinnon’s unmodified feminist analysis would relate the issue of reproduc-
tive control to the broader context of women’s unequal sexual, social, economic
and political condition.
Pornography provides the most graphic substantiation of MacKinnon’s
method. For MacKinnon, the laws which regulate pornography obscure more
than they reveal because through the moralistic prism of “obscenity” they
abstract from the realities of male power and thus work as a liberal, legal guise
to preserve male supremacy.24 In MacKinnon’s assessment, the ubiquity of por-
nography proves that “[s]exual terrorism has become democratized.”‘ As with
her analysis of rape, MacKinnon disputes the reduction of pornography to vio-
lence.26 She feels that calling pornography violence hides the specificity of
women’s viewpoint, and “not only abstracts from women’s experience; it lies
about it.” 7 She succinctly sums up her objection to equating rape and pornog-
raphy with violence with her statement:
As with rape, where the issue is not the presence or absence of force but what sex
is as distinct from coercion, the question for pornography is what eroticism is dis-
tinct from the subordination of women. This is not a rhetorical question. Under
male dominance, whatever sexually arouses a man is sex. In pornography, the vio-
lence is the sex.28
Chapter 12, the penultimate chapter, addresses the issue of sameness and
difference. Moral theory and laws on sexual discrimination often consider
equality and gender issues in terms of either sameness or difference. For
MacKinnon, this practice “covers up the reality of gender as a system of social
hierarchy.” 9 Ultimately, both the sameness and the difference paths lead to
dead-ends. With sameness, women are encouraged to be the same as men. In
law, this means that women are formally granted access to what men have
through approaches like “gender neutrality.”3 With difference, women are
encouraged to be different from men and to value what they are, or have been
constructed as, distinctive as women. In law, this is doctrinally encoded as the
“special protection rule.”‘” In both, women must measure up to the male stand-
ard, either in their proximity to it, or their distance from it.
241bid. at 195.
2-Ibid. at 201.
26This is not the same as saying there is no connection between pornography and violence.
Indeed, drawing on laboratory research, MacKinnon argues that there is a causal connection
between pornography and violence against women. Ibid. at 196.
271bid. at 211.
2Ibid.
29Ibid. at 218.
30Ibid. at 220-21.
31Ibid.
1991]
NOTES
For MacKinnon, the rubric of difference is especially problematic as it
becomes a “double standard [that] does not give women the dignity of the single
standard.”‘ 2 Women are stigmatized as different and “[m]aking exceptions for
women, as if they are a special case, often seems preferable to correcting the
rule itself.”33 For instance, women have not been allowed employment in male
prisons due to their “womanhood,” i.e., due to their rapability, and yet, the “con-
ditions that create women’s rapability are not seen as susceptible to legal
change.” Hence, neither sameness nor difference constitute real progress for
women as the:
[G]ender-neutral approach to sex discrimination law obscures, and the protection-
ist rationale declines to change, the fact that women’s poverty and consequent
financial dependence on men … forced motherhood, and sexual vulnerability sub-
stantively constitute their social status as women. 35
The way out, according to MacKinnon, is to conceive of the problem in terms
of gender hierarchy, and to see that the “sexes are equally different but not
equally powerful. 36
These arguments are brought together in the final chapter which adum-
brates her conception of feminist jurisprudence. Here, MacKinnon continues her
scathing analysis of law as she writes:
In liberal regimes, law is a particularly potent source and badge of legitimacy, and
site and cloak of force. The force underpins the legitimacy as the legitimacy con-
ceals the force. When life becomes law in such a system, the transformation is
both formal and substantive. It reenters life marked by power … Liberal legalism
is … a medium for making male dominance both invisible and legitimate by
adopting the male point of view in law at the same time as it enforces that view
on society.37
In particular, she argues that liberal legalism’s central legitimizations –
objec-
tivity and neutrality –
are always and already encoded with the male point of
view. Consequently, they are liberal legalism’s most significant political, i.e.,
male supremacist, achievement because the espousal of objectivity and neutral-
ity render male domination most invisible, most natural, most taken for granted,
and therefore most powerful.
However, all is not negation and MacKinnon’s vision of escape from this
state, her envisaged reconstitution of the relationship between life and law, is
that of feminism unmodified, her methodologically postmarxist feminism.38 To
32Ibid. at 225.
33Ibid. at 226.
34Ibid.
351bid. at 228.
361bid. at 232.
371bid. at 237.
38Ibid. at 241.
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[Vol. 36
elaborate, her plan is to take advantage of the “crack”” provided by liberal,
legal guarantees of equality, 4 and, rather than applying sameness and difference
strategies, widen the gap by applying her dominance/subordination analysis.
Consciousness raising in the seventies uncovered the problem of sex equality
and now there is a need to apply this analysis to law.4’ The first stage is an
acceptance of the reality of women with respect to sexual inequality, as they
experience it. The second stage is a recognition “that male forms of power over
women are affirmatively embodied as individual rights in law.”’42 Issues such as
rape, reproductive rights and pornography can then be reassessed in light of the
sex equality as anti-domination perspective, 3 rather than from the standpoint of,
for example, the “reasonable rapist.” Consequently, the question of whether
statutes are gender neutral or sex-specific would no longer be central. Instead,
the significant queries would be: “[D]oes a practice participate in the subordi-
nation of women to men …? [Do statutes] work to end or reinforce male suprem-
acy … [And, are] they concretely grounded in women’s experience of subordi-
nation or not[?]” ’45 These procedures would help to bring about the changes
MacKinnon strives for, but can barely imagine, in law and life: law that does
not dominate life and a society in which men do not dominate women.46
II. Finely Focused Feminism: The Dilemma of Under and Over- Inclusion
As this synopsis indicates, Toward a Feminist Theory of the State is an
important, inspiring book, thick with significance and radiating with reflections
that have obviously been through the eighteen year gestation of which MacKin-
non speaks. However, in our opinion, there are some serious problems with
MacKinnon’s ambitious work. These stem, largely, from the fact that she takes
it a step too far, her aspirations become too great, her project too large. Rather
than building a feminist theory of the state, MacKinnon will not settle for any-
thing less than constructing the feminist theory, the one and only feminist
framework through which to view our contemporary condition. Her theory
comes dangerously close to totalization, for she grows categorical in her meth-
odology, definitive in her analysis and condemnatory in her critiques. As a con-
sequence, we suggest that her theory becomes both under and over-inclusive.
By under-inclusive we mean that too much is left unsaid in terms of other fem-
inist theories. By over-inclusive we mean that too much is also left unexplained
in terms of MacKinnon’s own theory. Specifically, we posit that she has an
39Ibid. at 244.
40Ibid. at 242.
41Ibid. at 244.
421bid.
431bid. at 245-67.
“Ibid. at 182.
451bid. at 248.
46Ibid. at 249.
19911
NOTES
excessively broad conception of power, while her prescriptions for a mode of
change are curiously sanguine and, we fear, fundamentally ambiguous.
A. Problems of Under-Inclusion
To begin with, there is a disturbing strain of orthodoxy within the book.
Though it is true that every political activist and academic believes in the cor-
rectness of their analysis, and indeed that as an audience we expect conviction,
MacKinnon’s analysis, at times, seems to go beyond this. It is not just that
marxism, liberalism, liberal feminism, socialist feminism, feminist liberation-
ism and critical legal studies are left in the dust of an unmodified feminism,
rather it is the sense that there is one, and only one, acceptable analysis. There
is no hint that an intellectual enterprise may require an element of corrigibility.
For example, referring to previously published versions of sections of the book,
she says that this “gave me the benefit of the misunderstandings, distortions,
and misreadings of a wide readership.”’47 As we read this, the mistakes lie with
all others, while MacKinnon’s analysis, emphasis, and communicative skills
have been exact from day one, no modification has been required, simply the
elaboration of “a sustained theoretical argument.”48 And yet, we see inconsist-
encies in her work. For example, if we address the politics of language,
MacKinnon castigates male discourse for using terminology like “penetrate,”’49
and yet, she, curiously, adopts both “penetrate”‘ 0 and “interpenetrate.”‘” More-
over, there are times when one gets the impression that almost no one else
counts, for despite her acknowledgements,52 the “collaborative intellectual odys-
sey” has been with her “previous selves.”53
Some may counter that the above is a reflection of MacKinnon’s assertive,
assured style more than her substance, but, on our reading, there is no doubt of
her singularity of purpose. MacKinnon’s stated ambition for the book is the cre-
ation of an “epic theory” along the lines of Sheldon Wolin, one that provides “a
symbolic picture of an ordered whole,” that is “systematically deranged,” a the-
ory that “attempts to change the world itself.”‘ 4 This begs the question, what
does MacKinnon mean by theory, and, in light of her condemnation of others,
we wonder whether there is an unconscious assumption that epic theory occu-
pies the field, all others being mere pretenders?
47Ibid. at xi.
481bid. at ix.
49Ibid. at 273, n. 27.
501bid. at 125.
51Jbid. at 290.
52Ibid. at xvi-xvii.
53Ibid. at ix.
54Ibid. at x-xi. MacKinnon cites S. Wolin, “Political Theory as a Vocation” (1967) 63 Am. Pol.
Sci. Rev. 1079.
McGILL LAW JOURNAL
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In MacKinnon’s hands, the pursuit of the ordered whole takes its form
through the analysis of male power. The consequence is that other power rela-
tions are structurally, though not necessarily intentionally, reduced to second
order issues. In the preface, MacKinnon speaks to this issue, but, in our opinion,
only superficially, through the technique of confession and avoidance. She
admits that the book, “does not try to explain everything” and argues that, “[tio
look for the place of gender in everything is not to reduce everything to gen-
der.”5 Still, the best that she can offer is that she “does not pretend to present
an even incipiently adequate analysis of race and sex, far less of race, sex, and
class. That further work … will take at least another eighteen years.”56 It is true
that one cannot argue everything at once. However, perhaps it is also true that
the nature of power relations in modem society are such that they cannot be cap-
tured in a holistic epic theory; that the axes of power intersect, intertwine, cross-
fertilize, are mutually complementary as well as perhaps being, paradoxically,
mutually undermining. 7 Thus, an explanatorily more thorough methodological
approach may be one that is significantly more contextual,58 historically sensi-
tive, localized and diversified. 9 In this way, we might gain a more comprehen-
sive understanding of the interlocking relations between race, class and gender 61
rather than structurally priorizing one (which, as we shall see later, seems to
suggest something MacKinnon censures, a “women’s unity”‘” based on power-
lessness) and putting others on hold. 2 By extension, such an inquiry would have
551bid. at xi.
561bid. at xii.
57E.g., bell hooks describes the current condition as a “white supremacist capitalist patriarchy”
(“Third World Diva Girls: politics of feminist solidarity” in Yearning, supra, note 2, 89 at 92). For
a more sustained discussion of the non isolatable nature of the grids of power see E. Spelman, Ines-
sential Woman: Problems of Exclusion in Feminist Thought (Boston: Beacon Press, 1988).
58Consider, e.g. the narrative style that has been adopted by many people of colour. See, for
example, P. Monture, “Ka-Nin-Geh-Heh-Gah-E-Sa-Nonh-Yah-Gah”
(1986) 2 C.J.W.L. 159; D.
Bell, And We Are Not Saved: The Elusive Questfor Racial Justice (New York: Basic Books, 1987);
K.L. Scheppele, “Foreward: Telling Stories” (1989) 87 Mich. L. Rev. 2073 at 2073-94. Another
example might be that of Foucault’s genealogical method. See, for example, M. Foucault, “Nietzs-
che, Genealogy, History” in P. Rabinow, ed., The Foucault Reader (New York: Pantheon, 1984).
59E.g., bell hooks writes that the “ideal situation for learning is always one where there is diver-
sity and dialogue” (“feminist scholarship: ethical issues” in Talking Back: Thinking Feminist,
Thinking Black (Boston: South End Press, 1989) 42 at 47 [hereinafter Talking Back]). Both of these
elements do not seem to be accorded a significantly high priority within MacKinnon’s scheme of
things.
6″Critical Interrogation: talking race, resisting racism” in Yearning, supra, note 2, 51 at 59 &
62.61Supra, note 1 at 5.
62E.g., we are unsure how MacKinnon’s analysis could even approximately approach a persua-
sive explanation of the Canadian state’s approaches to immigrant women in the labour market. See,
Immigrant Women’s Editorial Collective, “Immigrant Women in Canada: The Politics of Sex, Race
and Class” (1987) 16 Resources For Feminist Research 3. In other words, the overconcentration
1991]
NOTES
crucial ramifications on any proposed reconstructive agenda.63
I
In the actual text, MacKinnon appears less guarded in her conception of the
relationship between sex and the other axes of power. She claims, “[f]eminism
is the first theory to emerge from those whose interest it affirmns.” ‘ This may
or may not be true,65 but to simply assert it without reference to, for instance,
nationalist theories that reject imperialism, or work by people of colour combat-
ting racism, seems just a little too quick and easy.66 Or again, in discussing the
viability of a socialist feminist jurisprudence, she asserts that the “woman ques-
tion” is “the question,”’67 clearly ranking gender over class. This reductionism in
the body of the text gives us the impression that the preface was written after
the circulation and publication of some recent critiques of her work,6 without
fully grasping that their analyses may require a significant rethinking of some
of her key assumptions. Such a reconsideration cannot be achieved by means of
a few brief comments and the promise of subsequent inquiry.
Just as class and race tend to become second order issues, those feminist
analyses that are distinct from MacKinnon’s also fall by the wayside. MacKin-
non’s epic theory is based upon a narrowly subscribed, singular vision of fem-
inism. She writes, “[t]he challenge is to demonstrate that feminism systemati-
cally converges upon a central explanation of sex inequality through an
on sexuality will result in taking a “short cut through women’s lives” (Spelman, supra, note 57 at
187).630ne might want to consider, for instance, Jesse Jackson’s rainbow coalition comprised of those
who are disempowered. For discussions see, for example, S. Collins, The Rainbow Challenge: The
Jackson Campaign and the Future of U.S. Politics (New York: Monthly Review Press, 1986) and
I.M. Young who suggests that:
[Tihis is an idea of political public which goes beyond the ideal of civic friendship in
which persons unite for a common purpose on terms of equality and mutual respect.
While it includes commitment to equality and mutual respect among participants, the
idea of the rainbow coalition specifically preserves and institutionalizes in its form of
organizational discussion the heterogeneous groups that make it up (“Impartiality and
the Civic Public: Some Implications of Feminist Critiques of Moral and Political The-
ory” (1986) 5 Praxis Int. 381 at 398).
See also, I.M. Young, Justice and the Politics of Difference (Princeton: Princeton University Press,
1990).
64Supra, note 1 at 83.
65Indeed, surely one of the primary themes of Toward a Feminist Theory of the State is that tra-
ditional, political theory, written as it is by men, be they left or liberal, affirms the male interest,
i.e. the domination of women. Furthermore, this historical proposition seems curious in a book that
otherwise seeks to be assiduously ahistorical.
66Another reality is expressed by bell hooks when she states, “Certainly feminist struggle is not
nearly as old as the struggle against racism in this culture” (“interview” in Talking Back, supra,
note 59, 167 at 171).
67Supra, note 1 at 12.
68E.g., A.P. Harris, “Race and Essentialism in Feminist Legal Theory” (1990) 42 Stan. L. Rev.
581; M. Kline, “Race, Racism and Feminist Legal Theory” (1989) 12 Harv. Women’s L.J. 115.
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[Vol. 36
approach distinctive to its subject yet applicable to the whole social life, includ-
ing class.”’69 MacKinnon is then unflinching in her specifications of what con-
stitutes feminism, for only radical feminism will do; “Radical feminism is fem-
inism.”7 And, even more specifically, MacKinnon’s understanding of radical
feminism is revealed to be her own, self-proclaimed, consciousness raising
based, unmodified, post-marxist feminism. This account, she claims, has “spe-
cial access” to the “collective reality of women’s condition.”‘ The following
provides as concise a statement as any of MacKinnon’s stance:
A theory of sexuality becomes feminist methodologically, meaning feminist in the
post-marxist sense, to the extent it treats sexuality as a social construct of male
power: defined by men, forced on women, and constitutive of the meaning of gen-
der. Such an approach centers feminism on the perspective of the subordination of
women to men as it identifies sex –
that is, the sexuality of dominance and sub-
mission –
as crucial, as a fundamental, as on some level definitive, in that proc-
ess. Feminist theory becomes a project of analyzing that situation in order to face
it for what it is, in order to change it.72
Although we have found much that is enlightening in MacKinnon’s theory,
this strictly focused, uni-dimensional analysis is dismaying given the polyvocal
nature of feminism. One only has to look at the heterogenous nature of the
women’s movement to understand the reality and necessity of its complexity.7
69Supra, note I at 108, emphasis added.
70Ibid. at 117.
71Ibid. at 121.
721bid. at 128.
73Herstory shows us that to effect change in women’s condition, whether formally or substan-
tively, heterogeneity is extremely useful, if not, in the final analysis, essential. For example, the
suffrage movement in Canada required diversity in order for women to gain the vote provincially
and federally. Middle class women doctors in Ontario provided the spark, but farm women in the
west were the first to persuade male politicians to grant them the vote. The movement has often
been described as headed by white, middle class, Anglo-Saxon women, but the numerous excep-
tions to this profile, from working class women dressmakers, to Icelandic women emigrds, dem-
onstrate greater complexity and suggest that these differences were in fact a crucial, if unintended,
strategy in countering the sophisticated opposition from various sources in the home, the church
and the state. See C. Cleverdon, The Woman Suffrage Movement in Canada (Toronto: University
of Toronto Press, 1974); C. Bacchi, Liberation Deferred? The Ideas of the English-Canadian Suf-
fragists, 1877-1918 (Toronto: University of Toronto Press, 1983); A. Prentice et al., Canadian
Women: A History (Toronto: Harcourt, Brace, Jovanovich, 1988); and N. Adamson, L. Briskin &
M. McPhail, Feminist Organizing for Change: The Contemporary Women’s Movement in Canada
(Toronto: Oxford University Press, 1988).
A more contemporary example is the rallying by a wide spectrum of Canadian women in order
to secure equality provisions in the Canadian Charter of Rights and Freedoms, Part I of the Con-
stitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11. The women who
became involved in this process were drawn from traditional women’s organizations, radical
women’s organizations and many organizations in between. Non-partisan Canadian women, as
well as prominent female politicians, were incensed into action. Male politicians were both bom-
barded by phone calls and letters from women working from “without” and pressurized by women
lobbying from within the political system. This multi-levelled strategy was, perhaps, the key to
1991)
NOTES
Feminist analyses have grown over the years and must continue to develop, to
be open, to recognize and respond to their limitations. Feminism’s past, and
present, shortcomings with respect to race analysis provide an important exam-
ple of its ongoing need for openness, sensitivity, malleability and corrigibility.
This might be called “the principle of self-reflexivity.”74
Feminism has tended to be sceptical of “objective” and one-sided, truths
for these have characterized male epistemology. In fact, MacKinnon spends a
significant part of her book unpacking the inherent maleness of objectivity at its
epistemological level thereby revealing the partiality of what counts as reality.
She criticizes the “Western philosophical tradition” for its “methodological
hegemony” and its “thrust … to end diversity of viewpoint, so that there can be
no valid disagreement over what knowing is right knowing.”75 However, she
then advocates the notion of an epic theory and proceeds to espouse a new
“master narrative”’76 thereby installing an authoritative account of women’s
reality.
This stance leads her to denounce those people who do not subscribe to her
theory and those practices that do not fit with her theorizing. She does this
through use of innovative categorization. For example, liberal feminism is writ-
ten off as inter alia “individualistic” and “ahistorical” ’77 and into this liberal fem-
inist paradigm she lumps diverse feminists, who hold wide-ranging views, such
as Mary Daly, and Carol Gilligan,” as well as Simone de Beauvoir and Shula-
mith Firestone.79 Socialist feminists, from Alexandra Kollontai to Sheila Row-
botham, fare little better. In MacKinnon’s estimation, the former held a dis-
torted, “hybridized”” view of feminism and marxism that ultimately subsumed
the problem of women. For MacKinnon, Rowbotham provides the classic exam-
ple of the “derivation and subordination strategy”‘” in which the analysis of
women’s achievement of formal equality rights. See P. Kome, The Taking of Twenty-Eight: Women
Challenge the Constitution (Toronto: Women’s Press, 1983); C. Hosek, “Women and the Consti-
tutional Process” in K. Banting & R. Simeon, eds, And No One Cheered: Federalism, Democracy
and the Constitution Act (Toronto: Methuen, 1983); and S. Burt, “The Charter of Rights and the
Ad Hoc Lobby: The Limits of the Success” (1988) 14 Atlantis 74.
For a broader analysis of these and other attempts by women to challenge the male political
order, see A. Dobrowolsky, “Promises Unfulfilled: Women and the Theory and Practice of Rep-
resentative Democracy in Canada” (M.A. Thesis, Dalhousie University, 1990) [unpublished].
74For an elaboration and discussion of this idea in the context of human rights discourse, see R.
Devlin, “Solidarity or Solipsistic Tunnel Vision: Reminiscences of a Renegade Rapporteur” in K.
Mahoney & P. Mahoney, eds, Solidarity and Interdependence: A Global Challenge (Proceedings
of the International Human Rights Conference, Banff, Nov. 1990) [forthcoming 1991].
75Supra, note 1 at 106-07.
76Yearning, supra, note 2 at 25.
77Supra, note I at 40.
78Ibid. at 50-51. She considers them both to be liberal due to their “idealism.”
791bid. at 51-54. She sees them both as liberal in their “naturalism.”
S0Ibid. at 63.
81lbid. at 62.
McGILL LAW JOURNAL
[Vol. 36
women’s condition is granted “more separate validity than … [before] but it nev-
ertheless reduces women’s oppression to a special dimension of the class ques-
tion.””s In the end, MacKinnon resolves that there has never been a satisfactory
union of marxism and feminism. This conclusion is not new to the reader as
MacKinnon explicitly states in her first chapter:
[S]ocialist-feminism basically stands before the task of synthesis as if nothing
essential to either theory fundamentally opposes their wedding … [Therefore,]
[h]owever sympathetically, “the woman question” is always reduced to some other
question.8 3
Those feminist theorists who work on the basis of women’s difference from men
are also thoroughly critiqued. MacKinnon claims that their efforts
limit feminism to correcting sex bias by acting in theory as if male power did not
exist in fact, including by valorizing in writing what women have had little choice
but to be limited to becoming in life, is to limit feminist theory the way sexism
limits women’s lives: to a response to terms men set.84
We shall return to the question of difference later. In the final analysis, it seems
that almost every other feminist, with perhaps the exception of Andrea Dwor-
kin, has been polluted by malestream assumptions, and only “[fleminism unmo-
dified, methodologically postmarxist feminism, aspires to better.”85
Our suggestion is not that MacKinnon is mistaken in her interpretation, but
that it is only an interpretation and not the interpretation. It should not, there-
fore, have any claims to “special access”8 6 in terms of comprehending women’s
social reality, for what in fact happens is the opposite. MacKinnon’s theoretical
rigidity ironically leads to a situation where she disregards the practical and
contextual realities of women in favour of the theoretical principle. This occurs
even though MacKinnon makes it clear that she respects women’s knowledge
based on their lived experiences, with, for instance, her faith in consciousness
raising as political praxis. Her proclivity toward philosophical intractability is
apparent in her characterization of the rape issue. In her analysis, rape should
not be seen as violence as distinct from sex, for it is “an act of subordination
of women to men … [and it] expresses and reinforces women’s inequality.”87
This may be theoretically appropriate, but who is to say that given a specific
rape incident, we should not accept the fact that a woman might feel the vio-
lence and not the sex?
12Ibid.
“I1bid. at 12.
14Ibid. at 128.
851Ibid. at 241.
86Ibid. at 121.
871bid. at 182.
1991]
NOTES
An even better illustration of this tendency is evident in MacKinnon’s anal-
ysis of abortion. MacKinnon is wisely critical of using privacy as a legal loop-
hole to gain access to abortion. She suggests that the law of privacy “translates
traditional liberal values into the rhetoric of individual rights as a means of sub-
ordinating those rights to specific social imperatives.””8 She goes on to explain
that the problem of using the idea of privacy is that it legitimizes the liberal ide-
ology of the public/private dichotomy which, amongst other things, assumes the
private realm is free, when in fact it has never been so for women. For women,
the private realm has been the sphere of exclusion and domination, the site of
violence and abuse. 9 Therefore, MacKinnon believes that the right to privacy
isolates “women at once from each other and from public recourse. This right
to privacy is a right of men ‘to be let alone’ to oppress women one at a time.
It embodies and reflects the private sphere’s existing definition of woman-
hood.”9 Lastly, MacKinnon directs us to Andrea Dworkin’s link between abor-
tion and male desire, which identifies the bottom line: “[g]etting laid (is) at
stake”‘” that is to say, abortion makes intercourse more accessible for men.
Although we theoretically agree with most of MacKinnon’s concerns here,
practically, a woman faced with an unwanted pregnancy would use any loop-
hole available to assist her in her immediate circumstances. Perhaps in spite of
herself, MacKinnon censures due to her absolute, theoretical considerations, but
she does not consider the various contingencies, the grassroots repercussions.
The principle is important, but so are the lack of alternatives for women and the
importance of some abortion rights, however flawed, in view of the dire conse-
quences of no abortion rights: unwanted children, death due to illegal abortions
et cetera. This, of course, is not to say that we should not strive for certain goals.
Clearly, we must work towards achieving the most liberating circumstances for
women in law and in life. Rather, the point is that MacKinnon leaves insuffi-
cient room for women to maneuver in their strategies of survival in this male
dominated and controlled social order. As a result, the theory seems to be too
disconnected from the “politics of location,”9” that is, the multiplicities and
complexities of womens lives.
B. Problems of Over-Inclusion
The foregoing comments highlight the problem of under-inclusiveness in
Toward a Feminist Theory of the State. MacKinnon’s discussion of the concept
“Ibid. at 187.
89For a discussion of how the significance of the private realm may differ on the basis of race
or class see b. hooks, “Homeplace: A Site of Resistance” in Yearning, supra, note 2, 41.
90Supra, note I at 194.
91Ibid. at 190.
92b. hooks, “Third World Diva Girls: politics of feminist solidarity”, supra, note 57 at 89; b.
hooks, “Choosing the Margin as a Space of Radical Openness” in Yearning, supra, note 2, 145 at
145.
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[Vol. 36
of power is an example of over-inclusion. Central to MacKinnon’s thesis is her
theory of the power of men over women. However, in spite of the foundational
status of this argument, and indeed her own claim that one of “the most basic
questions of politics” is “the nature of power and its distribution,”93 MacKinnon
appears to fudge her analysis of the extent and nature of that power. For exam-
ple, throughout her discussions, power is portrayed through a multitude of
adjectives, descriptions and metaphors.94 In our opinion, these cannot be under-
stood as simply a series of attempts to describe the same subject, male power
over women. They encapsulate different and not necessarily compatible concep-
tions of the distribution and very nature of power. If arranged on what we might
call a “continuum of oppression” these descriptions of power could range from
“control or systemic or hegemonic power” at the lower end, to “omnipotent or
total power” at the higher end. At no point does MacKinnon directly address the
theoretical issue of the extent of male power, a lacuna that is surprising in what
describes itself as an epic theory of that power.
This is not just a question of semantics, because depending on which one
of these conceptions more accurately reflects her understanding of the nature
and distribution of male power, it will of necessity impact on the viability,
indeed even the possibility of feminism. If male power more closely approxi-
mates the “total or supreme power” end of the spectrum, then it will be theoret-
ically and practically impossible for feminism to claim “the voice of women’s
silence 95 and “feminism unmodified”96 – MacKinnon’s feminism – must also
be a lie because it too must have been “shoved down (women’s) throats.”97 If,
however, male power more closely approximates the “pervasive and hegemonic
power” end of the spectrum, then it is possible to understand why and how
women resist and thereby provide a theoretical comprehension of the agency of
women. It recognizes the possibility of crevices and contradictions within the
patriarchal order (including, for example, MacKinnon’s own favoured emanci-
patory strategy, equality doctrine in the Supreme Court of the United States, but
also, as we will suggest, other potential sources such as the discourse of differ-
ence and the ethic of care) and encourages the search for centres of resistance,
and the valorization of modes of feminist power. Hence, much the same critique
93MacKinnon, supra, note 1 at 41.
94Consider, e.g., the various ways that MacKinnon, ibid. portrays power in her book:
“dominance” at ix; “social hegemony” at x; “control” at 4; “male supremacy” at 33; “sexism’s
omnipresence” at 90; “a major part of gender definition” at 92; “encompassing” at 103; “systemic
and hegemonic” at 114; “male totality” at 115; “pervasive and tenacious” at 116; “metaphysically
nearly’ perfect” at 116; “closed system” at 121; “omnipotent” at 125; “nearly everywhere” at 130;
“largely universal if always in specific forms” at 151; “it is the regime” at 170 [emphasis in orig-
inal]; “a total system” at 239; and “intractable” at 242.
95Ibid. at 117.
96Ibid.
97Ibid.
1991]
NOTES
that MacKinnon levels against neo-marxists who espouse the relative autonomy
thesis9″ to the relationship between economics and the state, can be applied to
MacKinnon’s thesis on power: “[W]hat qualifies what is as ambiguous as it is
crucial” and thus it is unclear “where to go to do something about it.”99 .
MacKinnon’s conceptualization of power requires greater clarity and spec-
ificity as to the distribution of power within contemporary patriarchal society
and perhaps a more acute historical sensitivity to the changing distributions of
male power. For example, what makes equality discourse, in the juncture with
late twentieth century American liberalism, potentially responsive to the equal-
ity as anti-domination thesis? Would such an argument even be comprehensible
in, for instance, mid-twentieth century Quebec, when women were denied
formal equality in terms of the provincial franchise and “had no value in their
own right … only as mothers” as “their status was directly proportional to the
number of children they produced?””‘ What do these different historical con-
junctures tell us about the comprehensiveness, or lack thereof, and mutational
nature of male power?’
98The relative autonomy thesis is an explanatory structure developed by neo-marxists to explain
that although the state or law cannot be understood as a simple instrumental reflex of economic
relations, that there is a certain independence of legal and political relations from economic rela-
tions. In other words, Marxist analysis is still essentially correct in that the independence of law
and politics is not absolute, for ultimately, legal and political relations do correlate with the struc-
tural requirements of capitalism. For one lucid discussion of the thesis see, J. Fudge, “Marx’s The-
ory of History and a Marxist Analysis of Law” in R. Devlin, ed., Canadian Perspectives on Legal
Theory (Toronto: Emond Montgomery, 1990) 151 at 155-56.
99Supra, note 1 at 159. This problem of a lack of precision in defining the nature, extent and
distribution of male power, and consequently the viability of a feminist critique, is replicated in
relation to her theory of sexuality. The central dynamic of MacKinnon’s analysis is that women’s
sexuality is simply the construct of male power –
“what is called sexuality is the dynamic of con-
trol by which male dominance … eroticizes and thus defines man and woman, gender identity and
sexual pleasure” (supra, at 137). However, a deconstructive reading reveals a more nuanced
account. For example, after twenty-five pages of what seems to be an absolutist conception of the
male construction of sexuality, this appears to be modified when she says that “so-called women’s
sexuality largely a construct of male sexuality searching for someplace to happen” (supra, at 152,
emphasis added). Is it or is it not? If sexuality is not a total male construct, why not? Which part
is not? How not? And these questions are intensified on the following page through a fairly cryptic,
and perhaps problematic, reference to the parallel between women’s sexuality and Black culture
when she argues that it both is and is not theirs. At this point, she acknowledges that as a response
to powerlessness, oppression and exclusion, it might still be possible to conceive of Black culture
and women’s sexuality as “a source of strength, joy, expression, ahd as an affirmative badge of
pride … They may be part of a strategy for survival or even of change” (supra, at 153). This ambi-
guity has deleterious ramifications: first, it suggests theoretical laxity; and second, it provides little
guidance as to how feminists (or Black men, or Black feminists) should proceed.
‘ 00D. Lamoureux, “Nationalism and Feminism in Quebec: An Impossible Attraction” in H.J.
Maroney & M. Luxton, eds, Feminism and Political Economy: Women’s Work, Women’s Struggles
(Toronto: Methuen, 1987) at 58.
‘A further omission is that although MacKinnon spends a great deal of time describing the
ways in which men dominate and women are subordinated, including rape, battery, sexual harass-
McGILL LAW JOURNAL
[Vol. 36
Apart from these historical and quantitative issues of the distribution of
power, we also have concerns about MacKinnon’s qualitative conception of the
nature of power. The common thread running through MacKinnon’s long list of
adjectives describing the modes of power is that they all reflect an understand-
ing of power as cognate of “power over” which, we think, is a unilateral con-
ception of power.”2 It echoes a Weberian, negative and repressive analysis of
power, a lawyerly vision of power,”3 what Foucault describes as a juridical con-
ception of power.” But power is more than simply pervasive and systemic. It
is also heterogenous, polymorphous and multifaceted. 5 Power can be under-
stood in the sense of “power to” as well as “power over.” “Power to” is power
as a cognate of freedom, a progressive, emancipatory and potentially transform-
ative conception of power, a conception which emphasizes the creative,
capacity-enhancing, ability-encouraging, variation of power.” This is a qualita-
tively different conception of power. Men may understand and use power in its
imperialistic guise in order to dominate women,” 7 but that does not mean that
ment, sexual abuse of children, prostitution and pornography, curiously, very little is said about
why men behave in this way, except to claim that it fits with the “interest from the male point of
view” (supra, note 1 at 112). To be sure, the whole book can be read as illustrative of why the sub-
ordination of women is in men’s interests. But, on occasion, MacKinnon indicates that not all men
dominate, and that some might even choose not to do so (supra, at 94). If it is in his interest to
dominate, why would any man ever make such a choice? Does this suggest that interest is not the
same as political perspective and preference, and therefore, that this element of her argument needs
greater development? Moreover, at one point, she even mentions that Robert Dahl is one of the
world’s “ten nicest men” (supra, at xvi). Yet, on the basis of her theory of power, it is difficult to
see that as a man he could be nice. The personal is the political, is it not? Does the inverse not
also hold true, particularly given Dahl’s liberalism, and liberalism’s complicity in women’s
domination?
“‘For similar concerns about the prevalence of “generic” statements about power/powerlessness
advocated by both sociologists and feminists see A. Duffy, “Reformulating Power for Women”
(1986) 23 Can. Rev. Soc. & Anth. 22.
13See R. Devlin, “Nomos and Thanatos (Part A). The Killing Fields: Modem Law and Legal
Theory” (1989) 12 Dalhousie L.J. 298.
ed. (New York: Pantheon, 1980) [hereinafter Power/Knowledge].
104M. Foucault, Power/Knowledge: Selected Interviews and Other Writings, trans. C. Gordon,
“‘5The following reflections on power are influenced, in part, by the work of Foucault although
they aspire to a somewhat different, that is optimistic, agenda than his. See Foucault, ibid.; M. Fou-
cault, Discipline and Punish (New York: Pantheon, 1984); M. Foucault, The History of Sexuality
(New York: Vimtage, 1988); J. Sawicki, “Foucault and Feminism: Toward a Politics of Difference”
(1986) 2 Hypatia 23; 1. Diamond & L. Quinby, eds, Feminism and Foucault: Reflections on Strat-
egies of Resistance (Boston: Northwestern University Press, 1988).
1t0See Y. Cohen, “Thoughts on Women and Power” in A. Miles & G. Finn, eds, Feminism in
Canada: From Pressure to Politics (Montreal: Black Rose Books, 1982) at 263 [hereinafter Fem-
inism]; and G. Finn, “Conclusion,” supra, 299 at 302.
17We would also point out that women are not the only victims of power in this form. Some
men have power over other men on the basis of, for example, class, race or sexual preference.
Another example is that, perhaps, humankind in general responds to the environment on the basis
of this paradigm.
1991]
NOTES
“power over” is the immutable essence of power. Feminism, we want to sug-
gest, may pose the opportunity to conceptualize and nourish another, emancipa-
tory side of power, a side that expands our horizons rather than curtails them,
a side that nurtures our personhood rather than stultifies it, a side that fosters
care for inherent human dignity. bell hooks, for example, addresses the possibil-
ities of the power of love:
In reconceptualizing and reformulating strategies for future feminist movement,
we need to concentrate on the politicization of love, not just in the context of talk-
ing about victimization … but in a critical discussion where love can be understood
as a powerful force that challenges and resists domination.108
Feminism, rather than working within and thereby reproducing the androcentric
interpretation/imposition of power, may be able to challenge the very meaning
of power itself.
To be fair to MacKinnon, interstitially, there are suggestions that her anal-
ysis and reconstructive vision incorporate a transformed” and non-repressive
conception of power, but these are disturbingly underdeveloped. For example,
when she argues that “radical feminism is developing a theory of male power,
in which powerlessness is a problem but redistribution of power as currently
defined is not its ultimate solution, upon which to build a feminist theory of jus-
tice””‘
there is a suggestion that there is a radical feminist reconception of
power, though we are given no indication as to what it might look like.”‘ Fur-
thermore, the reference to “ultimate” suggests that in the meantime the current,
that is male, conception is available for feminist use. Thus, within the transi-
tional period from patriarchal domination to the desexualized egalitarian society
a key element of the patriarchal order, power in its repressive mode, is to remain
available. Are we to assume that it will eventually wither away? Or, will it be
necessary to work towards its transcendence? And what about Audre Lorde’s
warning that the master’s tools will never dismantle the master’s house?”‘
Further ambivalences in Towards a Feminist Theory of the State indicate
that we cannot even be sure that if we were to reach MacKinnon’s vaguely envi-
sioned society that there would be a feminist form of power, distinct from power
“‘8″feminism: a transformational politic” in Talking Back, supra, note 59, 19 at 26. hooks draws
on the work of Paulo Friere who embraces the power of love as he writes: “I am more and more
convinced that true revolutionaries must perceive the revolution, because of its creative and liber-
ating nature, as an act of love” (Pedagogy of the Oppressed, trans. M.B. Ramos (New York: Sea-
bury Press, 1970) at 77 n. 4).
“‘9Supra, note 1 at 125.
“0lbid. at 46, emphasis added.
“‘Another example is to be found in her discussion of the ability of “male power to create the
world in its own image … power to shape reality” (Ibid. at 118). See also some passing comments
(supra at 230).
12A. Lorde, Sister Outsider: Essays and Speeches (Trumansburg, N.Y.: Crossing Press, 1984)
110 at 112.
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[Vol. 36
in its male mode, because, as mentioned earlier, her discussion tends to manifest
the essentialist, Weberian, and juridical conception of power. Consider, for
instance, her proposition that male power combines, “like any form of power,
legitimation with force.”‘ 3 The taken for granted assumptions are that male
power is but a specific form of power, with which we would agree, and the fur-
ther assumption, with which we would disagree, is that power, generically, is
necessarily repressive. This resonates with the naturalism of which MacKinnon
accuses others. Our conceptualization does not capitulate to the liberal idealism
of “as if,” nor does it indulge in the “analytic wish-fulfillment” 4 that feminism
can simply reimagine power and that then everything will be fine. Rather, it is
to refuse to surrender to the patriarchal, false necessity” 5 that maleness is all.
We therefore criticize MacKinnon on the same basis that she criticizes sexual
liberation feminists, in that she “uncritically adopts as an analytic tool the cen-
tral dynamic of the phenomenon … [she] purports to be analyzing.””‘ 6 As a
result, MacKinnon may have failed to challenge male supremacism at its core.
By espousing an overly inclusive conception of power and by omitting any seri-
ous discussion of a feminist reconstruction of power, the assumption of hierar-
chy and therefore of domination, remains entrenched.
What then might a feminist reconstruction and reconceptualization look
like? What has MacKinnon omitted that we would include so as to offer a more
sustained and destabilizing challenge to malestream domination? Pursuant to
our earlier proposition that feminism must remain faithful to its polyvocal
nature, we would argue that equalitarianism though vital, cannot be the sole
shining path for feminism, and that, for example, the discourse of “difference”
and “the ethic of care” could also be considered as legitimate and potentially
fruitful modes of analysis and praxis.
In this book, as in Feminism Unmodified and the Buffalo debate,”7
MacKinnon devotes especial space to a critique of those (women in particular)
who find value in the concept and discourse of “difference” and maintains that
the radical feminist approach must focus its attention on equality as anti-
domination. Difference, she argues, is a derivative concept, attributed signifi-
cance by the pre-existing, hierarchy-imposing male order, and therefore irre-
trievably antithetical to women’s interest: “the velvet glove on the iron fist of
” 3Supra, note I at 122.
“4 bid. at 135.
” 5 See R.M. Unger, False Necessity: Anti-Necessitarian Social Theory in the Service of Radical
Democracy (New York: Cambridge University Press, 1987).
“6Supra, note 1 at 135-36.
117 C. MacKinnon, Feminism Unmodified: Discourses on Life and Law (Cambridge: Harvard
University Press, 1987) [hereinafter Feminism Unmodified]; E.C. Dubois et al, “Feminist Dis-
course, Moral Values, and the Law – A Conversation” (1985) 34 Buffalo L. Rev. 11 [hereinafter
Discourse].
19911
NOTES
domination.””‘ Once again, although this time only briefly, she singles out the
work of Carol Gilligan,” 9 denouncing it for its “liberal idealism,” its failure “to
situate thought in social reality,” and for analyzing “women’s situation as if
equality, in spite of everything, already ineluctably existed.”‘”0 This critique, we
suggest, is somewhat harsh and inaccurate.
First, there is MacKinnon’s claim that Gilligan misses women’s social real-
ity, and its implicit assumption that MacKinnon has got it. No doubt both
women have insights on women’s experiences of the world, but by what criteria
does MacKinnon dismiss Gilligan’s analysis? As far as we can see, none except
that it does not fit with MacKinnon’s own epic theory. There is no argument that
Gilligan’s research strategy is flawed, and indeed, when we compare the
approaches of MacKinnon and Gilligan as they each attempt to portray women’s
realities, Gilligan’s seems more direct and less mediated, or filtered, than
MacKinnon’s. Whereas Gilligan’s scholarship reports and interprets the results
of research specifically designed to tune into women’s perceptions, MacKin-
non’s scholarship, in the tradition of mainstream political theory, tends to be less
contextual and more assertive as to what people, and in her case, women in par-
ticular, want. This is not to posit that MacKinnon is misinterpreting women,
after all she has organized hearings around pornography in Minnesota, but
merely to query her self-perceived “special access” to women’s social reality.
Put simply, it is surprising to us to think that any feminist would want to argue
that there is just one social reality for women.’
Second, MacKinnon argues that Gilligan makes it “seem as though
women’s moral reasoning is somehow women’s”‘2 but this, we think, is a mis-
reading of Gilligan’s research, though perhaps not of some of those who have
applied her analysis.'”‘ Although, on occasion, Gilligan does identify difference
with “feminine,”‘2 4 she is at pains to point out that she is not talking about a
women’s morality. At the very beginning of In A Different Voice, Gilligan
unequivocally states:
The different voice I describe is characterized not by gender but theme. Its asso-
ciation with women is an empirical observation, and it is primarily through
bridge: Harvard University Press, 1982) [hereinafter In A Different Voice].
“SSupra, note 1 at 219.
19See C. Gilligan, In A Different Voice: Psychological Theory and Women’s Development (Cam-
120Supra, note I at 51.
121Charlotte Bunch discusses feminism in terms of a transformational politics, for it strives to
change structures as well as people, and in so doing it must take into consideration that “[a] crucial
part of this process is understanding that reality does not look the same from different people’s per-
spective” (Passionate Politics: Feminist Theory in Action: Essays 1968-1986 (New York: St. Mar-
tin’s Press, 1987) at 338).
122Supra, note 1 at 51.
12See e.g., K. Karst, “Women’s Constitution” [1984] Duke L.J. 447.
1241n A Different Voice, supra, note 119 at 105.
McGILL LAW JOURNAL
[Vol. 36
women’s voices that I trace its development. But this association is not absolute,
and the contrasts between male and female voices presented here to highlight a
distinction between two modes of thought and to focus a problem of interpretation
rather than to represent a generalization about either sex.2
Moreover, in a debate with MacKinnon, Gilligan declared, “I deliberately called
it a different voice, I did not call it a woman’s voice.”‘ 26 How can MacKinnon
not listen to this other woman? Or, is it that she just does not believe Gilligan?
Third, MacKinnon’s rejection of the discourse of difference and care on the
basis that they reaffirm powerlessness and are part of the package which has
been forced upon women by men leads her to charge advocates of such perspec-
tives with being liberal idealists “who do not take social determination and the
realities of power seriously enough.”‘2 While we think that this critique of dif-
ference is an important warning against the dangers of utopianism, 128 it tends to
be overstated. An advocacy of difference need not be based on an essentialist,
reductionist vision of male/female nature, absolute, incorrigible, transcendental,
reified. Rather, we understand difference to be part of the broader matrix of
social relations as culturally 29 (within which we would include politics) and
psychologically constructed. It is a deeply entrenched ideology, but an ideology
nonetheless. 3 The consciousness that the discourse of difference is an ideology
–
is therapeutic in that it indicates not only the
artifactual nature of the discourse, but also its contingency and mutability, as
well as its vulnerability to assessment and valorization. In the spirit of MacKin-
non’s critical enterprise, we can ask: valued by whom and for what reasons?
Where we differ from her is that, echoing her theories of power and sexuality,
she sees the discourse of difference as masculinist ventriloquism, and therefore
seems to reject it in toto. Due to our more expansive conception of power, one
that recognizes the possibility of strategies of resistance, while recognizing the
historical and political nexus between the discourse of difference and male dom-
even a pervasive ideology –
’25lbid. at 2.
126Discourse, supra, note 117 at 38.
127Supra, note 1 at 51-52.
128See, e.g., S. Ruddick, “Matemal Thinking” and S. Ruddick, “Preservative and Military
Destruction: Some Reflections on Mothering and Peace” in J. Trebilcot, ed., Mothering: Essays in
Feminist Theory (Totowa, N.J.: Rowman & Allenheld, 1983).
129See C. Gould, “The Woman Question: The Philosophy of Literature and the Literature of Phi-
losophy” in C. Gould & M. Wartofsky, eds, Women and Philosophy (New York: Putnam, 1972);
L. Finley, “Choice and Freedom: Elusive Issues in the Search for Gender Justice” (1987) 96 Yale
L.J. 914 at 932-33; and R.W. Connell, Gender and Power: Society, the Person and Sexual Politics
(Boston: Allen & Unwin, 1987).
130See N. Chodorow, “Gender Relation and Difference in Psychoanalytic Perspective” in H.
Eisenstein & A. Jardine, eds, The Future of Difference (Boston: G.K. Hall, 1980); A. Jardine, “Pre-
lude”, supra, at xxv; M. Wittig, “Paradigm” in G. Stambolian & E. Marks, eds, Homosexualities
and French Literature (Ithaca, N.Y.: Comell University Press, 1979) 115; M. Minow, “Justice
Engendered” (1987) 101 Harv. L. Rev. 10 at 31.
1991]
NOTES
ination, we refuse to succumb to the essentialist equation that difference is equi-
valent to domination and subordination. In short, we see the discourse of differ-
ence, like the discourse of equality, as a terrain of feminist struggle, “essentially
contestable”
and potentially salvageable.’32
Fourth, as a matter of feminist praxis, in our experience, the discourse of
difference has been a mobilizing influence for many women and to reject it
absolutely is to risk abandoning a discursive practice that has been crucial to
maintaining the ranks of the women’s movement. This is particularly worrisome
given the current politico-historical conjuncture when it is claimed by males-
tream society that we are now in a post-feminist era. Feminism simply cannot
afford the luxury of an exclusivist perfectionism.
It is not difference in and of itself that drives us to resist MacKinnon’s
polemic, though we do believe that law and politics need to develop a greater
responsiveness to this component of our community.’33 More expansively, it is
our analysis of what the substantive difference of the different voice might be.
Rephrased, what is at stake in the debate over difference is not solely whether
society should tolerate and encourage diversity, but also, what sort of political
morality should guide our agenda? Rather than relating the debate to one of gen-
der difference, we believe that it can be better understood as a debate around
two political moralities: an ethic of “indifference ” “M and an “ethic of care.”‘ 35
The former, we suggest, has been the dominant political morality and is thus,
to some degree, responsible for the masculinist disregard for women’s integrity.
The latter provides the foundational elements of, and the possibility for the
expansion of, a political counter-morality that could be used to support substan-
tive equality for women. Insofar as the juridical conception of power tends to
devalue the integrity of the victim of power, it correlates with the ethic of indif-
ference. Insofar as the expansive conception of power can contemplate the
empowerment of the other, it dovetails with the ethic of care. Viewed in this
light, perhaps it is MacKinnon who does not take the realities of power seriously
enough in that her own analysis is too uni-dimensional, it too quickly abandons
a potential source for the pursuit of women’s substantive equality, when more
than one route may in fact be necessary. Conceiving of “power to” as a cognate
131W.B. Gallie, “Essentially Contested Concepts” (1956) LVI Proceedings of the Aristotelian
Society N.S. 167.
132For a significantly more nuanced approach to difference see M. Minow, Making All the Dif-
133See N. Duclos, “Lessons of Difference: Feminist Theory and Cultural Diversity” (1990) 38
ference (Ithica, N.Y.: Cornell University Press, 1990).
Buffalo L. Rev. 325.
1341n A Different Voice, supra, note 119 at 22.
135See also J. Tronto, “Beyond Gender Difference to a Theory of Care” (1987) 12 Signs 644;
E.F. Kittay & D.T. Meyers, eds, Women and Moral Theory (Totowa, N.J.: Rowman and Littlefield,
1987).
REVUE DE DROIT DE McGILL
[Vol. 36
of care is not necessarily indulging in liberal idealism. To the contrary, it might
simply provide us with some guidance as to how we might proceed.’36
Additionally, we want to suggest that, despite MacKinnon’s bold state-
ments eschewing the discourse of care as a patriarchal dead end, we detect, once
again, a vague ambivalence regarding the relationship between radical feminism
and the ethic of care. In keeping with her social constructionist thesis that
woman is an artifact, she seems to reject a feminist affinity for care on the basis
that “Perhaps women value care because men have valued women according to
the care they give.”’37 At first blush, and in the context of the surrounding par-
agraphs which are a critique of the liberal idealism of the discourse of differ-
ence, this may appear to be a repudiation of care as a viable feminist strategy.
However, it is worth noting that this is one of the few occasions in MacKinnon’s
scholarship that she is tentative in her critique, prefacing her comments with a
“perhaps.” The suspicion that MacKinnon might still believe that care has some
role to play in the radical feminist agenda is further reinforced through her cri-
tique of contemporary industrial society’s version of the feminine stereotype,
and the sexual significance of each element of the stereotype: “docile, soft, pas-
sive, nurturant, vulnerable, weak, narcissistic, childlike, incompetent, masochis-
tic, and domestic, made for childcare, home care, and husband care.”’38 In clas-
sic MacKinnon style, over the subsequent paragraphs, she proceeds to
illuminate the nexus between each of these elements and male sexual desire.
What is uncharacteristic is that missing from this deconstruction are the final
three elements, all of which revolve around care. We are not suggesting that
there is no connection between care and the sexual construction of the female
character. We do wonder, however, why MacKinnon is so unusually incomplete
in her analysis. Could it be that she does not consider care as totally imposed
on women by men and therefore that it may not be completely irretrievable?
It is difficult to express what we are trying to get at here, and this, we think,
relates to the way MacKinnon develops her own arguments. In her crusade to
develop an epic theory, MacKinnon wants to be as clear and explanatorily com-
’36To be clear, we want to argue that any connection between women and care is contingent and
not sex reductionist. Reference to a different voice helps us to gain a critical distance on the hegem-
ony and partiality of malestream analysis, it is not reification of the feminine essence. It provides
us with an opportunity to consider what the substantive difference of a different voice might be
and how that can be used both to destabilize the dominance of the male world view, while at the
same time cautiously adumbrating some, admittedly corrigible, guidelines as to how we might pro-
ceed. The ethic of care is at once a political, legal and moral benchmark that directly challenges
the moral relativism of the liberal state.
For further discussion on difference and the ethic of care, see R. Devlin, “Nomos and Thanatos
(Part B), Feminism as Jurisgenerative Transformation, or Resistance Through Partial Incorpora-
tion?” (1990) 13 Dalhousie L.J. 123.
137Supra, note 1 at 51.
’35Ibid. at 109.
19911
NOTES
prehensive as possible. To do this she is driven at times to eliminate discussion
of complicating factors. Nevertheless, these interacting elements are like “sub-
jugated knowledges,”’39 continually threatening to irrupt, to break through the
coherence of the totalizing argument. MacKinnon’s theory seems caught in this
vortex. Our suspicion is that she does have a more comprehensive vision, but
driven by the logic of her own theory, she is forced to bury these issues. Still,
in spite of herself, they, time and again, tend to resurface. The interment cannot
be complete. This, perhaps, explains how MacKinnon can, in the main, ostra-
cize the ideology of difference, and then, at the odd moment, hint at its
potential.
Still, there is no denying that in Toward a Feminist Theory of the State,
MacKinnon, for the most part, shows little restraint in her denunciation of dif-
ference and the ethic of care. Given the intensity of MacKinnon’s disapproba-
tion of difference, we believe that her theory of power must also be applied to
her own preferred agenda, equalitarianism, that is, her ambition to translate and
transmute issues such as rape, pornography, prostitution, incest, battery, abor-
tion, and gay and lesbian rights into sex equality issues under law. If it is true
that the discourse of difference and the ethic of care are simply male ventrilo-
quism and that male power is omnipresent, how is the discourse of equality, any
more than the discourse of difference, not “a response to terms men set?””
What is it about equality, and particularly equality as MacKinnon conceives of
it, that renders it uncontaminated by maleness? Indeed, even the most cursory
reflection on the history of the concept of equality suggests it has been a central
preoccupation for the malestream western philosophical tradition, from Aristo-
tle through Locke, Kant, Marx, Mill, Rawls and now Ronald Dworkin.”‘ Since
difference has been a more marginal concern to our philosophical forefathers,
it may be, in fact, less overdetermined by patriarchal assumptions than
equalitarianism.
More broadly, why does MacKinnon seem to insist that only equalitarian-
ism is appropriate, thereby embracing the dualistic thought of either/or? Would
it not be possible to adopt an “integrative approach” 42 that could draw on the
best elements of both traditions? Thus, her critique of the use of difference by
Rosalind Rosenberg, an expert who testified in the Sears v. EEOC case,143 is too
facile as it is obvious that the result of arguing a difference analysis in this par-
cault, PowerlKnowledge, supra, note 104 at 81.
139For a discussion of the “insurrectional” potential of “subjugated knowledges” see M. Fou-
140Supra, note 1 at 128.
141For a useful discussion of the “phallocentricity” of traditional equality discourse see C. Lit-
tleton, “Reconstructing Sexual Equality” (1987) 75 Cal. L. Rev. 1279.
’42See A. Miles, “Introduction” in Feminism, supra, note 106, 9 at 12 for her discussion of”Inte-
grative Feminism”; “The Integrative Feminine Principle In North American Feminist Radicalism:
Value Basis of a New Feminism” (1981) 4 Women’s Studies Int’l. Q. 481.
143Supra, note 1 at 223.
McGILL LAW JOURNAL
[Vol. 36
ticular context would be continued economic inequality. However, there may be
situations in which one would want to draw on the discourse of difference to
argue differential treatment in order to achieve equality of results,”‘ even if it
is only to counteract past discrimination and enforced inequality. This need not
be protectionism. Consider, for example, former Chief Justice Dickson’s sug-
gestion in the context of religion that:
The equality necessary to support religious freedom does not require identical
treatment of all religions. In fact, the interest of true freedom may require differ-
entiation in treatment.1 45
Within a patriarchal social order, neither difference nor equality can be uncriti-
cally adopted by feminists but, by the same token, neither is necessarily and
completely taboo. Much will depend upon the context in which the particular
problem arises, both on micro and macro-political levels, an important flexibil-
ity that perhaps an epic theory cannot accommodate.
Further, if we are to be in the business of doctrinal revisioning –
as
MacKinnon appears to be in her last chapter with its analysis of equalitarianism
as an interstitial tradition in the American Supreme Court – we would like to
propose that such case law could just as easily be interpreted through the prism
of the ethic of care. Consider, for example, her reinterpretation of Brown v.
Board of Education: “Brown saw [the feelings of inferiority generated by apart-
heid] from the standpoint of the Black challenge to white supremacy, envi-
sioning a social equality that did not yet exist.”‘ 46 Could one not also hypoth-
esize that the Court, by holding racial segregation unconstitutional, was
translating the ethic of care into constitutional form and providing a remedy for
the harm caused by apartheid? 47 Moreover, this approach might avoid a danger
inherent in MacKinnon’s analysis which implicitly suggests that the Court could
by some process of “negative capability”‘4 s get inside “the standpoint of the
144For a further discussion of this type of proposal see C. Sheppard, “Equality, Ideology and
Oppression” (1986) 10 Dalhousie L.J. 195 at 216-18.
145R. v. Big M Drug Mart, [19851 1 S.C.R. 295 at 347, 18 D.L.R. (4th) 321.
146Supra, note 1 at 240. We think that it is rather curious that although MacKinnon makes ref-
erence to other cases that are more directly related to gender she should take as her star example
of deviationist legal doctrine a case that is primarily about race. Of course, Black women would
be affected by such a decision, but given the focus of her epic theory, women’s status, the choice
of case seems inconsistent and raises a host of questions as to the transferability of analysis
between gender and race (and class).
47To be clear, we are not suggesting that the court actually did draw on such an ethos, in the
same way as we doubt that it was “really” adopting the stance attributed to it by MacKinnon. The
revision of precedent is always a strategy of “as if,” the ex post facto construction of a doctrinal
paradigm, motivated by the purpose of having your particular interpretation canonized (if only
temporarily) by judicial sanctification.
14’See J. Keats, “Letter to George and Tom Keats, 21 December, 1817″ in H.E. Rollins, ed., The
Letters of John Keats 1814-1821, vol. 1 (Cambridge: Belknap Press of Harvard University Press,
1
1991]
NOTES
Black challenge” a suggestion that we fear is quite dangerous. We doubt that
there is any way that an all white, privileged male court could ever really come
to terms with the Black standpoint. The pretence that they might be able to do
so runs the risk of a white appropriation and encoding of that Black existential
reality. This is not to say that the privileged have no role to play in relation to
those who have been subordinated. It is simply to attempt to carefully define the
nature of the relationship and to minimize the danger of beneficent, neo-
imperialism. The ethic of care, in so far as it acknowledges that there are two
discrete subjects, the one who cares and the one who is cared for, and in so far
as it acknowledges that one has greater resources than the other, does not sug-
gest that the carer be in the position of the cared for. Rather, it demands that the
person in the stronger position attempt, so far as it is possible, to understand the
needs of the weaker party and to use her or his power to remedy the situation.
This recognizes the intersubjectivity of the parties, and encourages a solidarity,
but resists the pretence that the carer really knows what it is liketo be the cared
for.
By extension, we would suggest that each of the other issues such as rape,
abortion, pornography and sex discrimination, that MacKinnon argues must be
reconceptualized as sex equality issues could also be filtered through a juridical
prism of the ethic of care: that the law care for the experience and the perspec-
tive of women who are raped, victimized by pornography, discriminated against
or require an abortion, and provide remedies accordingly. Our point here is
modest. The ethic of care is not necessarily incompatible with MacKinnon’s
equalitarianism, indeed it may even be reinforcing, and thus for MacKinnon to
close off this avenue is to forgo one of the few reconstructive opportunities that
women might have for the sake of a juridical strategy that, even in its best light,
has only a tenuous (though hopefully expandable) influence in contemporary
North American legal discourse.
As a final point, assuming that MacKinnon’s preference is for the more
totalistic conception of male power, it is puzzling how her sex equality approach
can escape the male referent that she accuses difference discourse of emulating.
According to her thesis, maleness has constructed the world. Would it not then
follow that everything women could aspire to must, either formally or substan-
tively, bear the mark of maledom? A more nuanced analysis of power, com-
bined with an openness to the differential dynamic of care, provides, somewhat
more optimistically, for the possibility of achieving a feminist future.
H. Reconceptualizing Consciousness Raising: Caution and Creativity
To this point, our focus has been on the simultaneously under- and over-
inclusive aspects of Toward a Feminist Theoty of the State, and particularly
1958) 191 at 193. For a discussion of the “sympathetic possibilities of the imagination,” see W.J.
Bate, “Negative Capability” in John Keats (Cambridge: Harvard University Press, 1963) 233.
REVUE DE DROIT DE McGILL
[Vol. 36
MacKinnon’s reluctance to expand her argument so as to be hospitable to other
feminist and critical analyses. The power as domination thesis, and its inverse,
the equality as anti-domination thesis, appear to be the guiding axes for her
argument and the result, we have suggested, is too absolute, too impoverished
in its conception of women’s agency and ultimately too sparse in its proposals
as to where feminism should go from here. To further substantiate these con-
cems, we want to briefly change the focus of our analysis from a discussion of
what else could be included, or what could be modified, to an inquiry into the
internal coherence of MacKinnon’s own thesis. Our proposition is that although
she does not advocate a completely negative prognosis for the condition of
women, the positive messages which do emerge are at one and the same time
theoretically underdeveloped and overextended. To illustrate these problems we
will focus on what MacKinnon considers to be the feminist method: conscious-
ness raising.
To elaborate, on several occasions, as a direct and logical result of her anal-
ysis, MacKinnon asks, “What is the feminist account of how women can come
to reject the learning portrayed as so encompassing? … What accounts for some
women’s turning upon their conditioning?”’49 “How can women, as created,
‘thingified in the head,’ complicit in the body, see her condition as such?”‘ 0
And:
If the existing social model and reality of sexuality center on male force, and if
that sex is socially learned and ideologically considered positive and is rewarded,
what is surprising is that not all women eroticize dominance, not all love pomog-
raphy, and many resent rape … the truly interesting question becomes why and
how sexuality in women is ever other than masochistic.”5
We think it is important to note how MacKinnon phrases these types of ques-
tions, rhetorically, for effect. In our estimation, these questions are of much
greater significance. They go to the very core of her theory. These questions,
that echo like a refrain throughout the book, demand that an account of women’s
agency be provided, they insist on an explanation of even the very existence of
feminism, they problematize the possibility of a text like Toward A Feminist
Theory of the State and the emergence of a feminist academic activist like
MacKinnon.
MacKinnon’s answer to all of these questions is to be located in her faith
in consciousness raising. She traces the politico-historical development of con-
sciousness raising from the coming together of women in the 1960s and 1970s,
through the process of the collective recognition that women’s powerlessness
149Supra, note 1 at 103.
15″Ibid. at 124.
1511bid. at 149.
1991]
NOTES
had been “externally imposed and deeply internalizef,”‘ 52 to its transformation
into a “way of knowing”‘ 53 and a validational process,’54 and finally to its artic-
ulation of the possibility and necessity of social change so that women can
become “shapers of reality as well as shaped by it.’ ‘ 55
This discussion of consciousness raising goes some way towards helping
MacKinnon explain the seemingly partial empowerment of women in the face
of, what the rest of her analysis indicates is, an overwhelming male dominance.
However, in our opinion, the concept of consciousness raising remains problem-
atic and insufficiently developed to carry the multifaceted and heavy weight that
she imposes upon it: “a technique of analysis, structure of organization, method
of practice, and theory of social change of the women’s movement.”’56
First, if male dominance was ever as complete as MacKinnon’s theory of
power suggests, the critical recognition which she identifies could never have
taken place, either because men would not have allowed such gatherings of
potentially dissident women, or the internalization would have been so deep that
women would have had no inkling that anything was amiss. There would be no
contradictory consciousness waiting to be raised. Second, how does MacKinnon
know that consciousness raising is not just a dupe, another patriarchal cul de sac
for women? How does she know that what women discover through conscious-
ness raising is any less socially constructed than, for example, the discourse of
difference?
Third, there is also something disturbingly ahistorical about the centrality
that she accords to consciousness raising. Is MacKinnon’s suggestion that prior
to the second wave of feminism (which, interestingly, roughly corresponds with
her own biography) women had no technique of analysis, structure of organiza-
tion, method of practice or theory of social change? Surely this falsifies the past
or, at the very least, fails to explain centuries long struggles by women against
domination and for equality. To take just one example, how could MacKinnon
explain that in 1958, Carribean immigrant women organized “rap sessions” on
“maids right out” at the YWCA in Toronto. 157 MacKinnon seems unaware that
perhaps one of the most inspiring elements in feminist strategies of resistence
is “the struggle of memory against forgetting.”’58
1521bid. at 8.
1531bid. at 84.
’54Ibid. at 87.
‘551bid. at 88.
1561bid. at 7.
57T. Das Gupta, Learning From Our History: Community Development with Immigrant Women
1
(Toronto: Cross Cultural Communication Centre, 1980). For further examples see, supra, note 73.
15b. hooks, “A Call for Militant Resistance” in Yearning, supra, note 2, 185 at 185.
McGILL LAW JOURNAL
[Vol. 36
Fourth, MacKinnon portrays consciousness raising in an extremely rosy
light, but even though this has been an important part of the recent women’s
movement, we think that she should be careful to acknowledge it has not been
an unqualified feminist good. Power struggles have gone on within conscious-
ness raising groups, certain women have dominated and subordinated other
women, exclusivist practices have developed, and hierarchies and orthodoxies
have been imposed. The Psyche et Po group is one graphic example in France,’59
but experience within the feminist movement more generally suggests that this
is not an isolated incident. Male power, as a form of power, may be more per-
vasive than even MacKinnon believes and to gloss over the problem of feminist
abuses of power with a vague and euphemistic acknowledgement that “leader-
ship patterns often emerged”‘ “6 is, in her own words, to fail to take “the realities
of power seriously enough.’ 16′
Fifth, we are concerned about MacKinnon’s tendency to underestimate the
incompatibilities and limitations on solidarity within consciousness raising
groups, an issue that echoes our earlier criticism of her ranking of sex before
race or class. As bell hooks describes, this has significantly curtailed the poten-
tial of consciousness raising both as to the specificity of the problems and their
possible resolution:
If two women –
one poor the other quite wealthy – might describe the process
by which they have suffered physical abuse by male partners and find certain com-
monalities which might serve as a basis for bonding. Yet if these same two women
engaged in a discussion of class, not only would the social construction and
expression of femaleness differ, so too would their ideas on how to confront and
change their circumstances.’ 62
Cumulatively, these criticisms indicate that MacKinnon’s unidimensional
theory of power and her overemphasis on modem radical feminism drive her to
factor in too little and, at the same time, expect too much from consciousness
raising. Not only would a more cautious analysis of consciousness raising incor-
porate these criticisms, it might also tentatively suggest that consciousness rais-
ing has been a mode of empowerment for women, not just in the sense that it
has provided women with an opportunity to recognize and challenge male dom-
inance, but also because it is illustrative of a form of power distinct from the
repressive mode. Unfortunately, once again, MacKinnon’s theory of power pre-
cludes her from accepting either of these possibilities. For example, at one point
she opines, “Consciousness raising can also affirm that although women are
deprived of power, within the necessity of their compliance is a form of power
159For a discussion see, C. Duchen, Feminism in France: From May ’68 to Mitterand (Boston:
Routledge and Kegan Paul, 1986).
‘6Supra, note 1 at 85.
16 1Ibid. at 52.
162″feminism: a transformational politic”, supra, note 108 at 23.
1991]
NOTES
which they possess but have not yet seized.”’63 As we interpret this, she seems
to be saying that consciousness raising, though feminist method, is not feminist
power but is simply a vehicle that can help women access that power. We find
this frustrating because although MacKinnon comes very close to recognizing
consciousness raising as power, she holds back, engaging us with the possibility
of acknowledging an already existent, if imperfect, mode of power in its fem-
inist form, but in the end leaving us disappointed.
We, however, want to argue that consciousness raising even as method is,
and has been, a form of power for women. More specifically, we contend that
in its best moments it is an example of power in a positive light, as women,
through a mutual support network, assist each other to recognize and resist their
oppression, thus enabling them to claim a non-patriarchal integrity. Consider,
for example, MacKinnon’s own description of the significance of consciousness
raising: “the collective critical reconstitution of the meaning of women’s social
experience, as women live through it””M with its “ethic of openness, honesty,
and self-awareness.”‘ 65 Does this not sound like the ethic of care at the level of
female praxis?
To tie our themes together, we want to propose that if we adopt a more sub-
tle, complex, multidimensional and expansive conception of power we can
explain the following paradox identified, but inadequately addressed, by
MacKinnon:
With forms of power forged from powerlessness, conditions are resisted, in the
radical feminist view, because women somehow resent being violated and used,
and because existing conditions deny women a whole life, visions of which are
meager and partial but accessible within women’s present lives and recaptured
past. 6
By recognizing that alongside patriarchal dominance there has tenuously existed
a feminist conception of power, power to rather than power over, we have the
possibility of an explanation of why women have survived, how feminism as an
antipatriarchal movement can exist, and even perhaps the inchoate rudiments of
what a feminist future might look like and how we might go about achieving
it. It helps us make sense of the fact that, on occasion, the law might just
respond to the interests of women and not those of men. 67 It takes us one step
beyond the proposition that “Feminism criticizes this male totality without an
163Supra, note 1 at 101.
164Ibid, at 83.
1651bid. at 85.
166Ibid. at 47, emphasis added.
167Consider, for example MacKinnon’s own celebrated cause of action, sexual harassment which
she argues puts “into practice the analysis argued in this book.” Ibid. at 314, n. 2. See more gen-
erally C. MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination (New
Haven: Yale University Press, 1979).
REVUE DE DROIT DE McGILL
[Vol. 36
account of women’s capacity to do so or to imagine or realize a more whole
truth.’ ‘ 68 Therefore, it does not attribute too much credit to men nor too little to
women. It does not drive us to proclaim that “there is no such thing as a woman
as such; there are only walking embodiments of men’s projected needs.’ 69 And
finally, it does not consider women unremarkable, as “[p]eople who are without
names, who do not know themselves, who have no culture.”‘”7
IV. Critical Dialogue in the Hope of Solidarity and Subversive Spaces
As we read through earlier drafts of this note, we realized that, although
we have been animated and activated by MacKinnon’s theory, our analysis
appeared disproportionately critical and unappreciative of the genuine contribu-
tion that she has made. It would be easy to write off our response as character-
istic of the logical process in an interpretational essay, for you criticize that
which you find wanting in a particular work, and you adumbrate your, allegedly,
improved analysis. On consideration of our present circumstances however, we
feel that there is more to it than this. Our concerns are twofold. First, the per-
sistency of our critique is, in part, a response to the tone of MacKinnon’s argu-
ment. Though we have no problem with the focus of MacKinnon’s challenge,
a massive offensive on male power (hence, our title), we recoil at the pugilistic
impulses that animate her discourse. MacKinnon’s adversarial style incites sim-
ilar writing techniques in return, though we have tried to be wary of reacting too
intensely.
Secondly, and more substantively, the book, at times, moves beyond
aggressive techniques and controversial content to a point where the reader,
feminist or non-feminist, male or female, experiences the pain. We want to sug-
gest that MacKinnon is insufficiently sensitive to the thin line between the ther-
apeutic, and conceivably pro-active consequences of pain, and its paralysing
capacity or its reactive backlash.
For some feminists, the anguish arises from, in a sense, bearing too much
reality. This is not to say that they are too delicate to handle the gory details,
or that they would rather view the world through rose coloured glasses. Instead,
the lesson learned by many feminists over the last decade or so has been that
too much negation is harmful to the cause. Feminist psychologists and women’s
health collectives have their hands full with women suffering “feminist burn-
out.” In the current politico-historical conjuncture, the situation for women is
grim and feminists know this, see this, and experience this. The Montreal mas-
sacre.7’ is a horrific example of just how grave the situation has become, but on
168Toward A Feminist Theory of the State, ibid. at 115.
169Ibid. at 119.
170Ibid. at 87.
1710n the 6th of December, 1989, Marc Lepine entered the Engineering Faculty (the
,cole Poly-
technique) of the Universit6 de Montrdal and slaughtered fourteen women students after calling
them “a bunch of feminists.”
1991)
NOTES
much lesser levels, and in many ways, feminists feel the oppression. For them,
it is impossible to live a “feminist-free” day and tune out their analyses. Every-
where you turn, from books to videos, from billboards to newspapers, from gov-
ernment officials to judges, sexism, racism, classism, heterosexism et cetera are
apparent. Therefore, feminists must work on positive strategies, avenues of
hope and potential, as well as continue to analyze the repressive powers at large.
Toward a Feminist Theoy of the State offers some respite, and certainly causes
less dolor for feminists than MacKinnon’s earlier work, Feminism Unmodified.
However, as our essay suggests, MacKinnon’s way Out must be more clearly
delineated. And, as we have also indicated, this, in itself, is not enough. Other
sources of inspiration must also be tapped in order to shape a feminist future.
For men, there is little doubt that MacKinnon’s analyses will prove to be
a discomforting experience. Insofar as it mainly argues that, despite their best
intentions, men are the problem, it might well induce a dismissive and intolerant
response. Thus, some may counter that it serves men, and all men, right if they
suffer, considering the pain they inflict on women. But, as political realists, we
must not forget that men still hold the reins of power and control, and thus,
although women comprise over half of the population, to effect large-scale
change, women cannot go it alone. Moreover, as bell hooks points out, “the
reconstruction and transformation of male behaviour, of masculinity, is a neces-
sary and essential part of feminist revolution.” ‘172 Thus, after speaking out on
their own, it is important for feminists to strike up a conversation with men.
This dialogue is necessary, but becomes difficult, if not impossible, when both
sides are hurting. A political morality of care may provide the foundation for
such a conversation. A starting point might be a discussion of the ways in which
male sexuality is also socially constructed (something to which MacKinnon
does not even allude) and therefore potentially open to reconstruction in a less
dominating form.
What we have offered in this essay is not a trashing job on MacKinnon
from without, but an internal critique that embraces the spirit, if not always the
specifics or modus operandi, of MacKinnon’s enterprise. As a feminist and a
sympathetic male, we have both experienced the pain of this book, but also have
managed to move beyond it to talk about it. This, in turn, has enabled us to rec-
ognize and articulate perhaps our most fundamental disagreement with
MacKinnon which is that she does not identify that there is, and must be, more
than one way out.
MacKinnon has gone a long way in developing a feminist theory of state
and law, but, maddeningly, she throws so much away because of the monolithi-
cal and dismissive mode of analysis. It is particularly frustrating given that fem-
inism, and feminist theory, through its appreciation of gender difference, has
172 “feminist focus on men: a comment” in Talking Back, supra, note 59, 127 at 127.
608
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taken difference to heart and has consciously determined to keep itself open to
multiplicity. This is not the same as liberal pluralism, and it does not result in
an “anything feminist goes” mentality. Rather, it represents a positive step away
from the authoritarianism, the pursuit of “truth,” and the tidy closure of males-
tream thought. It acknowledges the possibility that some analyses may be mis-
taken and it accepts and encourages disagreement. As the opening paragraph of
Part I of this note indicates, MacKinnon’s primary emphasis is on the “is” of
male power. Consequently, we feel that she underdevelops a feminist recon-
structive programme. We believe you cannot adequately deconstruct the present
without some conception, even if it is corrigible, as to where we want to go and
how we might get there. This requires the articulation of an “ought,” the adum-
bration of a feminist political morality. And, given the formidable nature of the
task, we have argued that “ought” must include more than one viewpoint, more
than one right answer. MacKinnon, however, refuses to accept such diversity.
Therefore, we suggest that, in spite of the substance of the book which aspires
to providing the feminist theory of the state, the title more accurately captures
MacKinnon’s contribution: a progression toward formulating such a theory.
