Guilty by Gender: A Look at Catherine MacKinnon's Feminist Legal Theory
The world has long been made up of patriarchal societies. In the Christian tradition, the Bible asserts that woman is a helper of man, and therefore serves a subservient role to him. For millennia, the role of women in society has continued to be one of subservience. This diminished role is reflected in the institutions, thoughts, and beliefs of society today. Historically, women have been relegated to caring for offspring in the home, or, when permitted to work, have held low-wage jobs. Also, they have been denied access to civil and political rights, such as the right to vote, hold public office, or to occupy any position of authority, including the exclusion from such professions as medicine and law. To many women, it is the preclusion from law that is one of the most troubling aspects of living in a patriarchal society. Considering the great importance of the law and the wide influence it has on the lives of people, it has been a common point of contention for modern day women’s advocate groups. Chief among these advocates is University of Michigan law professor Catharine MacKinnon. In Toward Feminist Jurisprudence,MacKinnon offers a number of recommendations designed to overhaul today’s legal system, many of which are quite controversial. Several of these recommendations will be explored here. It is my hope that by pointing out problems with Mackinnon’s position, similar feminist arguments can, in the future, be reinforced and thus result in a more fair treatment of women under the law.
MacKinnon offers an account of how the law has come to be seen by most as an objective set of rules designed by citizens to govern their society. But, according to MacKinnon, the law is not, and should not be considered objective because it is merely a reflection of male-dominated thinking. Throughout history it has been men who have made the laws and decided what does and does not constitute law; the role of women in this process has been non-existent until recent years. Therefore, in MacKinnon’s opinion, the law is not an objective view, but rather a subjective view of how society should be governed. With the law reflecting a male-only perspective, it necessarily discriminates against women because it has excluded them from the process; consequently it must be dramatically changed if it is to adequately represent the views of both sexes.
A problem that results from seeing the law as objective is that objectivity is seen as irrefutability. Thus, when law is understood as objective, anyone who challenges such a system of law would seem to lack credibility, or appear as a radical. Therefore, when men defend law as being truly objective, and not just a result of male thinking, they assert that it should not be changed from its current form; to do so would make it subjective. But MacKinnon argues that it is already subjective (i.e., a male perspective). With the law defining what is “right” or “just” in society, women have a hard time trying to overcome past injustices in the law if they are expected to prevail over something that is purportedly objective and irrefutable.
In order to overcome the oppression that has been imposed on women by a male biased system of law, MacKinnon urges the adoption of certain practices that would help make men and women more equal. But, MacKinnon argues, treating men and women equally alone will not be sufficient. In order to overcome past injustices, it is necessary to give women an added measure of protection, somewhat like that which has been sought by such programs as affirmative action. For MacKinnon, equality in the law is not enough because one only has to look at the Canadian Charter of Rights and Freedoms to see that a mere legal recognition of gender equality does little to change how women are truly treated. For instance, it might be a matter of law in Canada that men and women are equal, but it is a matter of fact that large discrepancies in pay for equal work still exists between men and women. For MacKinnon, “…before one can be equal legally, one must be equal socially” (p.286). If women are to be truly equals, then it is attitudes that must change, not just the law. But what steps would need to be taken to effect such change?
First, MacKinnon would like to see the courts play a more activist role in society. In fact, judicial restraint is one of the key tenets of a male-based legal system that MacKinnon identifies as needing reform. If we accept the argument that the courts have traditionally upheld male-constructed laws, and that such views are discriminatory towards women (or at least unrepresentative of women), and, furthermore, that we as a society would like to ensure equality among the sexes, would it not follow that the court ought to adopt a more activist role in order to overcome past injustices towards women that result from a male bias in law? When reform of the law is defended in this fashion, one could sympathize with the wishes of feminists. Despite how radical a change this might seem to some, there is at least a very plausible position to be defended here.
Second, MacKinnon would like to see less of a reliance on precedent. As is the case today, court decisions are often reached after much consultation and comparison with previous case law. There is a desire on the part of judges and lawyers for similar cases to be decided in a similar fashion in order to give the impression that law is not simply arbitrary, but in fact a fair, predictable, and rational enterprise. In this desire to maintain consistency, MacKinnon would likely point out that remaining consistent is to remain pro-male, and, therefore, to remain committed to the subjection of women. In MacKinnon’s view, precedent presents a significant problem for women: “Lines of precedent fully developed before women were permitted to vote, [and] continued while women were not allowed to read and write…” (p. 285). It seems fair to argue that the law should not rely upon a history that excluded women; if it were to do so, it would be impossible to overcome the mistreatment of women. How could any progress ever be made on behalf of women if we continue to rely upon the male-biased decisions of the past that do nothing but reflect male standards of what is acceptable? Again, MacKinnon’s criticism of present day law does not appear unfair. It seems as though relying on law that reflects a male bias may indeed discriminate against women, and should therefore be subject to at least some reform.
While some of MacKinnon’s recommendations for the overhaul of the legal system might seem plausible and helpful, some are not. In fact, some are reckless and dangerous, and pose a direct threat to several of the most fundamental components of the rule of law. For instance, MacKinnon states that rights such as freedom of speech and privacy laws often serve to protect men who exploit women. She goes on to say that “[r] eal sex equality under law would qualify or eliminate these powers of men…” (p. 290). But what would it mean to “qualify or eliminate” freedoms of speech and privacy? First, we can imagine what it would mean to eliminate privacy laws (for men only, though): any man suspected of partaking in the exploitation of women (e.g., pornography) could be subject to a search of his home. He could not justifiably claim that he had a right to do whatever he wanted in the privacy of his home (provided it was legal) because he would no longer be afforded any privacy rights. But what if it turns out that the man in question was not partaking in the exploitation of women? It hardly seems fair to remove such fundamental aspects of the law to someone if all the accused is guilty of is arousing suspicion.
The removal of the right to free speech would be equally reckless. To remove the right of free speech would be counter-productive to the gains made in the past several centuries by liberal-democratic societies. As a fundamental democratic right recognized by the Canadian Charter of Rights and Freedoms and the First Amendment of the United States Constitution, freedom of speech is far too precious a protection to be eliminated or qualified. By presenting the benefits of freedom of speech in such a distasteful way (i.e., as a means of protecting pornography) is to do a great disservice to such an important right and does not represent it in its full scope. It is helpful to remember the positive benefits reaped by freedom of speech in order to appreciate it to the fullest extent. First, freedom of speech ensures that each person–male or female–has the opportunity to express his or her views. Second, it protects the individual from an oppressive regime by ensuring that criticism can freely be laid against the state in order to improve it. Third, freedom of speech ensures that no single view of what counts as “right” takes precedence over the views of others. This last point highlights the fact that no person or state can impose a particular religious, moral, or social view upon the individual; matters of right and wrong may sometimes only be matters of a particular moral or religious view, but they are not necessarily absolute. Therefore, laws protecting freedom of speech have many useful applications and should not be dismissed too quickly.
To qualify free speech and privacy laws seems to me an attempt to impose a state-legislated standard of morality. By this I mean that the state would decide which actions of its private citizens were moral–and therefore acceptable–and which were immoral–and therefore unacceptable. MacKinnon argues that pornography is offensive, since it depicts women in a derogatory fashion–which may very well be true. But where do we draw the line as to what qualifies as offensive? And equally important: who draws this line? The state? Women? What qualifies as offensive for one is sometimes entirely acceptable for another. I will not attempt here to defend of the morality of pornography, but in my view the state has no business legislating morality. As John Stuart Mill has argued:
the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection… He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right (p. 326)
This statement highlights the fact that the state ought not to interfere with the individual on the grounds that doing so will make them a better, more moral person. Many may agree that pornography is indeed offensive. But one does not have to agree with the action being defended in order to uphold the principle it relies on. That is to say, one does not have to support the use of pornography in order to defend it as a right of privacy or free speech. I believe MacKinnon is wrong to attack the principle that defends the action. Instead, she should focus her attack on pornography itself, not freedom of speech and privacy laws. MacKinnon, however, would likely reject the views of Mill and other liberals like him, because advocating such a position as the liberty of the individual results in increased protections for males, which in turn are used to further dominate women.
It seems almost hypocritical for MacKinnon to claim that such liberty-limiting principles should be imposed. After all, it is such rights as freedom of speech that permits those such as her to level these charges against the state. If such a regime were in place that removed freedom of speech, MacKinnon would truly be powerless. But, in fairness, she does not seek to limit these fundamental rights to everyone, only to men.
MacKinnon would also like to see burdens of proof recognize the social inequality of women in comparison to men. As it stands in law today, the burden of proof is on the prosecution. It must prove the guilt of the defendant. In other words, it is not up to the accused to prove his or her innocence. This principle is known as the presumption of innocence. MacKinnon does not say whether she would like to see this privilege removed completely for men, but she does say that if such a protection is to be used it must answer the following question: “Does [the] practice participate in the subordination of women to men, or is it no part of it?” (p .293). She goes on to say that “[w] hether statutes are sex specific or gender neutral would not be as important as whether they work to end or reinforce male supremacy…” (p. 293). In other words, does law X hurt women, or does it help them? In society, women are in a subordinate position. If the law is to be fair, it should recognize this and factor it in to cases where the law favours men (i.e., to level the playing field between men and women). But I would argue that it is not women that are at a disadvantage when faced with the presumption of innocence or burden of proof, but the victim–regardless of their gender. This is done deliberately, to protect those accused who are innocent.
The law does not and should not distinguish between genders when it comes to the presumption of innocence. It is designed to protect the accused, whether male or female. Feminists claim that such a protection of the law discriminates against them. But every victim, male or female, faces the same rule. It does not favour one gender over another. This should not be a gender issue; it is a matter of protecting innocent people who are accused of committing a crime. I think it is important to remember why we have the presumption of innocence and why the burden of proof is on the prosecution to prove guilt, rather than the accused to prove his or her innocence. For instance, one can imagine how difficult it might be in some circumstances to prove that one was not at a particular place at a particular time when a crime occurred, or that one did not have a motive or opportunity to commit a crime against person X. In some circumstances it could be nearly impossible to prove one’s innocence. As David Paciocco has said about the presumption of innocence, “How committed are we likely to be when the price of the presumption of innocence is that we will be setting child molesters free? But ask again: How can we as a society justify driving a person to these depths of vilification if we are not sure [of his or her guilt]?” (p .187). This demonstrates that while some injustice will result through our commitment to the presumption of innocence, a greater achievement will be gained in the end (i.e., innocent people will not be wrongfully convicted). This, I would argue, is a great benefit.
One final statement made by MacKinnon in her article that I would like to address is this: “The state has laws against sexual assault, but it does not enforce them. Like lynching at one time, rape is socially permitted, though formally illegal.” (p. 291). This is perhaps one of the most controversial statements in the entire article. She goes on to say that, “… the systematic failure of the state to enforce the rape law effectively or at all excludes women from equal access to justice…” (p. 291). It seems as though MacKinnon may be suggesting that because we do not end up with convictions in every rape case, that we do not effectively enforce these laws, or that somehow – and much more controversial a statement – we endorse such action. But we have laws against many other deplorable acts, but simply because we do not get a conviction every time in those cases, does not mean that we do not enforce such a law, and it certainly does not mean that such acts are socially permitted. It simply means that it is not always possible to prove the guilt of the accused, in many cases because of certain important protections afforded to the accused.
If finding the truth in order to prove the guilt of the accused was all that the law was concerned with, then protections such as privacy laws and other freedoms could be waived. Luckily, the law seeks to protect the accused–whether male or female–from a tyrannical state. Imagine what atrocities would result if protections of the rule of law were removed, all in the name of finding the truth in a particular case. It would hardly seem worth it.
While many of MacKinnon’s suggestions and comments are controversial, some are valid. For instance, I agree that the law is subjective because it does reflect a male bias. Also, lines of precedence do rely on laws that were passed before women had any input into public life. Therefore, I agree that change to the law is needed. But, when freedom of speech and privacy laws are threatened in the way that MacKinnon urges, I believe an unnecessary step has been taken on her part. We should not abolish laws that in the opinion of some serve only to protect immoral actions. To do so is to legislate a standard of morality, and this is not desirable. Such a move would impose more harm on society than was originally intended to relieve. Furthermore, because we do not get a conviction in every sexual assault case, does not mean that sexual assault is socially permitted. It just means that we regard other principles as important too, such as protecting privacy. In conclusion, I would say that MacKinnon might have more success with her arguments if she were to adopt a less rigid stance on some of her suggestions. She likely attracts the sympathy of many with some of her more reasonable arguments with respect to reforms of the law. But she likely turns off a greater number of people with exaggerated claims of how sexual assault and abuse is socially acceptable.
Catharine MacKinnon, “Toward a Feminist Theory of State,” in Readings in the Philosophy of Law, ed. Keith Culver (Peterborough, Ontario: Broadview Press, 1999).
John Stuart Mill, “On Liberty,” in Readings in the Philosophy of Law, ed. Keith Culver (Peterborough, Ontario: Broadview Press, 1999).
David Paciocco, Getting Away with Murder: The Canadian Criminal Justice System (Toronto: Irwin Law, 1999).