MacKinnon – Toward Feminist Jurisprudence

Liberalism, rooted in thinkers like Locke and Adam Smith, attempts to bring equality to the people by making everyone equal in the eyes of the law (it is kind of funny that we mean the same thing when we say that “Justice is blind.”) Marx and Engels point out the fact that the laws are created by the ruling bourgeois class, and argue that these laws are used to oppress the workers. The bourgeois claim that their laws are just and fair because they are applied equally to everyone, but Marx and Engels insist that, in reality, the deck is stacked, and the laws are written in such a way that the poor remain poor. They propose that Liberalism must be rejected in order to find true equality.

Catherine MacKinnon articulates a branch of feminism called “Postmarxist Feminism.” She is comfortable critiquing Marx for the ways in which he neglected the aspects of society that result in the oppression of women, but she uses the structure of Marxism to critique Liberalism.

Liberalism claims to be neutral, but it was created by men, and is designed to defend the rights of men. In theory it universalizes equality, but in Liberal societies sexual inequality is a reality, and consequently the laws are enforced unequally. Feminist jurisprudence says the following question should determine how a law is interpreted and implemented: “Does a practice participate in the subordination of women towards men?

The existing Liberal legal system operates off of a constitution, laws, and precedent that were formed before women hade the right to vote. It operates as if it is the objective truth, not merely a subjective interpretation. It imbues male dominance into society, just as it finds justification from the male dominance in society. One can find a gap, which can be exploited to subvert this self-justifying system, between the claim towards universal equality, and the actual oppression of women in society. This gap is what Hegel and Marx call the internal contradiction of Liberalism. In order to start a movement that addresses this gap MacKinnon uses the term “sexual inequality.”

The goal is to reject Liberalism, but inherent in Liberalism, and the idea that everyone is equal before the law, is the idea that laws must be “neutral.” MacKinnon’s rejection of Liberalism insists that the law, and the state’s implementation of the law, should proactively overcome sexual inequality. This requires recognizing that the old interpretation of law assumes the male perspective, and that when it is a matter of sexual inequality the law should be interpreted from the female perspective.

MacKinnon works out a few examples of sexual inequality, and how a feminist jurisprudence proposes that they be handled. The first example is rape. Rape is a rampant problem in society, and women are almost exclusively the target. It is technically illegal, but the laws are unenforced. Victims are afraid to report the crime because they are their claims are often not taken seriously, their character and history may come under attack, and they may be publicly humiliated. The perpetrator is allowed to determine the status of the crime by claiming that he (almost exclusively male) thought there was consent. To overcome sexual inequality the law must protect women, and not take their perpetrator’s perception of consent into account.

Under the perspective of sexual inequality, reproductive control becomes central because whoever controls the life of the fetus controls the life of the mother. In our society women are primarily responsible for raising the child, which has tremendous economic consequences for the individual woman, a well as for women as a group. A variety of factors outside of the control of the woman determine whether she may become pregnant, many of which are due to male dominance in society, such as inadequate and unsafe contraception, social pressure, and ineffective laws against sexual assault. The existence of sexual inequality grounds the need for access to abortion, which gives women equal autonomy over their bodies and lives.

MacKinnon proposes pornography as another striking example of sexual inequality. All women within a society are shaped by pornography. It sets the standard of how women are treated in private. It tells men “this is what a woman is. This is what a woman wants.” It sexualizes men’s dominance over women, so that men equate violence towards women with sex, and promotes rape, sexual abuse of children, battery, forced prostitution, and sexual murder. Liberalism treats pornography as freedom of speech, but this puts men’s rights over women’s. The law must give women equal speech, and equality when it comes to safety from sexual violence.

Liberalism can be praised for making the concept of equality available to women, but it must be overcome in order for sexual equality to be realized.

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