Law's Nobility
Robin L. Westt
I. FEM INISM , MODIFIED ...................................................................................
II. FEMINISM, MODIFIED AND ITS CRITICS .......................................................
III. QUEER THEORY, THE CRITIQUE OF DESIRE, AND FEMINISM,
RE-M ODIFIED .......................................................................................
IV . SOME CONCLUSIONS ..................................................................................
392
420
444
453
In the epigram to her most important book, Catharine MacKinnon sought
to "invent a new plot" with respect to the ways men and women negotiate (or
not) the terms of their planetary cohabitation.' Through historically momentous
scholarship 2 and national and international legal advocacy 3 spanning a thirtyt Professor of Law, Georgetown University Law Center. I thank Marc Spindelman for his
thoughtful comments on multiple drafts of this essay. Mike Seidman, Gowri Ramachandran, David
Luban, Lama Abu-Odeh and Nina Pillard also offered extremely helpful suggestions and criticism. And
of course, heart-felt thanks to Catharine MacKinnon for her monumental theoretical contributions to
feminism, jurisprudence, and life.
1. CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE, title and epigram
page (1989) [hereinafter FEMINIST THEORY OF STATE] (quoting VIRGINIA WOOLF, BETWEEN THE ACTS:
"Surely it was time someone invented a new plot.").
2. In addition to the works cited elsewhere in the Article, see CATHARINE A. MAcKINNON, ONLY
WORDS (1993) [hereinafter ONLY WORDS]; CATHARINE A. MACKINNON, WOMEN'S LIVES; MEN'S
LAWS (2005) [hereinafter WOMEN'S LIVES; MEN'S LAWS]; Catharine A. MacKinnon, Disputing Male
Sovereignty: On United States v. Morrison, 114 HARV. L. REV. 135 (2000); Catharine A. MacKinnon,
Pornographyas Defamation and Discrimination,71 B. U. L. REV. 793 (1991); Catharine A.
MacKinnon, Pornography,Civil Rights, and Speech, 20 HARV. C.R.-C.L. L. REV. 1 (1985).
3. For a discussion of her efforts in Bosnia-Herzegovina around rape and human rights, see
Catharine A. MacKinnon, Rape, Genocide, and Women's Human Rights and Turning Rape into
Pornography: Postmodern Genocide, in MASS RAPE: THE WAR AGAINST WOMEN IN BOSNIAHERZEGOVINA (Alexandra Stiglmayer ed., 1994). See also Tamar Lewin, The Balkans Rapes: A Legal
Testfor the Outraged,N.Y. TIMES, Jan. 15, 1993, at B16; Linda Watson-Brown, Rape of a Nation, THE
SCOTSMAN, Feb. 27, 2001, at 2; Elizabeth Neuffer, Bosnia Rapes Go Unpunished,BOSTON GLOBE, Jan.
4, 1998, at Al; Burt Herman, Tribunal Cracking Down on War Rapes; 3 Face Trial at the Hague in
Landmark Case Involving Crimes in Bosnia, CHI. TRIB., Mar. 20, 2000, at N6.
Domestically, MacKinnon has been principally involved in the litigation (including the
Supreme Court arguments) for most of the major sexual harassment cases of the last twenty years. See,
e.g., Brief for Law Professors as Amici Curiae in Support of Petitioners, United States v. Morrison, 529
U.S. 598 (2000) (Nos. 99-5, 99-29); Brief for Amici Curiae in Support of Petitioners, Oncale v.
Sundowner Offshore Srvs., Inc., 523 U.S. 75 (1998) (No. 96-568) [hereinafter Oncale Amici Brief],
reprintedin 8 U.C.L.A. WOMEN'S L.J. 9 (1997); Brief for Amici Curiae in Support of Petitioner, Harris
v. Forklift Sys., Inc., 510 U.S. 17 (1992) (No. 92-1168); Brief for Respondent, Meritor Say. Bank, FSB
v. Vinson, 477 U.S. 57 (1986) (No. 84-1979).
MacKinnon also helped draft and defend notable anti-pornography ordinances,
none of which
remains good law. See The Ordinances, in IN HARM'S WAY: THE PORNOGRAPHY CIVIL RIGHTS
Copyright C 2005 by the Yale Journal of Law and Feminism
Yale Journal of Law and Feminism
[Vol. 17:385
year career in public life, she has largely succeeded in doing so. Most visibly,
from within law's perspective, MacKinnon invented a "new plot" by
fundamentally restructuring our civil rights law, and she did so by reconceiving the ideal of equality that is at that law's heart. As is now well
recognized, she did so in a two step argument: She first exposed the relative
emptiness of a "formal" understanding of the ideal of equality that seeks solely
to rationalize the treatment of men and "similarly situated" women-an
approach which, virtually by definition, does little but provide a modest boost
for women who are already relatively well-off. She then provided an
alternative, "substantive" or "anti-subordinationist" account that sought to
strengthen the power of the most disadvantaged women-and to whom, for that
very reason, no formal male equivalent can be found.6 The critique and
reconstruction of our shared ideal of equality has proven sound not only for
women, but also for other groups on a similar legal quest. More concretely,
MacKinnon's critique sustained the development of a cause of action sounding
in equality law for what had previously been regarded as, at most, tortious
private wrongs, i.e., work-based sexually harassing behavior.7
As dramatically, outside law, MacKinnon upended our collective
understandings of human sexuality-a coup de culture, so to speak. She had the
audacity to suggest, and then the courage to stick to it when the suggestion
proved to be flammable, that human sexuality is not mutually shared,
discovered, and enjoyed, and more concretely that women's sexuality is not
HEARINGS 426 (Catharine A. MacKinnon & Andrea Dworkin eds., 1997) [hereinafter INHARM'S WAY)
(reprinting the various ordinances); Am. Booksellers Assoc. v. Hudnut, 475 U.S. 1001 (1986) (holding
the Indianapolis ordinance unconstitutional); Minneapolis Council Fails to Override Veto, N.Y. TIMES,
July 28, 1984, at A6 (discussing the Minneapolis ordinance).The anti-pornography movement has had
greater success in Canada, where it has not encountered the same degree of constitutionally-inspired
resistance. MacKinnon has been integral in those campaigns as well. See generally R. v. Butler, [1992] 1
S.C.R. 452; Factum of the Intervener Women's Legal Education and Action Fund in R. v. Butler, [1992]
1 S.C.R. 452 (No. 22191); BRENDA COSSMAN ET AL., BAD ATTITUDE/S ON TRIAL: PORNOGRAPHY,
FEMINISM, AND THE BUTLER DECISION (1997); Jonathan Herland, Sounding the Death Knellfor Butler?,
43 McGILL L.J. 955 (1998) (reviewing COSSMAN ET AL., supra); Catharine A. MacKinnon & Andrea
Dworkin,
Press
Release,
available
at
http://www.nostatusquo.com/ACLU/dworkin/
OrdinanceCanada.html (response by MacKinnon and Dworkin to Canada decision).
4. Catharine A. MacKinnon, Reflections on Sex Equality Under Law, 100 YALE L.J. 1281 (1991)
[hereinafter Reflections on Sex Equality].
5. Id; Catharine A. MacKinnon, Difference and Dominance: On Sex Discrimination, in WOMEN,
LAW, AND SOCIAL CHANGE: CORE READINGS AND CURRENT ISSUES 243 (T. Brettel Dawson ed., 1990).
6. Id At the time MacKinnon began her critique and reconstruction of equality law, the closest
critique of equality law came from the critical legal studies movement and was directed at race law. See,
e.g., Alan D. Freeman, Antidiscrimination Law: A Critical Review, in THE POLITICS OF LAW: A
PROGRESSIVE CRITIQUE 96 (David Kairys ed., 1982). Freeman argued that the focus in race law on the
intent of particular discriminators was an obstacle rather than a vehicle for addressing racism. Another
closely related (and earlier) argument was put forward by Owen Fiss, who argued that the focus of
equality law on particular acts of discrimination by individuals was a hindrance to efforts to upend larger
and more systemic patterns of subordination of groups. Owen M. Fiss, Groups and the Equal Protection
Clause, 5 PHIL. & PUB. AFF. 107 (1976).
7. CATHARINE A. MACKINNON, SEX EQUALITY (2001) [hereinafter SEX EQUALITY]; CATHARINE
A. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION
(1979).
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Law's Nobility
normally freely "given" by women to men for the mutual betterment of both.
Rather, women's sexuality, MacKinnon argued, is that which is consistently
and injuriously taken from women, by men, for men's interest, control and
enjoyment.8 In our history and in our current lived reality, she argued, human
sexuality is best understood as a site of exploitation and alienation, rather than a
site of mature adult affection, transitory pleasure, biologic reproduction, or
liberatory transgression.
Both of these contributions (the reconstruction-in law-of our
aspirational ideal of legal equality, and the suggestions-in culture-that
"women," as presently seen and lived, are rapable sub-humans and that sex,
like the personal, is political and not natural) have indeed "changed the plot" of
women and men's planetary cohabitation, and the impact has been felt
globally. 9 In law, MacKinnon changed the way lawyers and judges think and
talk about equality-and accordingly made the world a little more equal. In
culture and larger society, she changed the way that lawyers and non-lawyers
think, talk, see, and worry over-if not enjoy-sex. By so doing, she has made
the world somewhat more attuned than it would have otherwise been to both
violent eroticism and eroticized violence. Quite possibly, we live in a less
violent world because of it.
Less visibly, and, I think, less successfully, within legal academia,
MacKinnon has also tried to invent a new plot---or perhaps a new trajectoryin our shared intellectual history. In her theoretical and scholarly writing, again
spanning three decades, MacKinnon has set out an entirely original, and still
not well understood, argument regarding the ethical and political foundations
and aspirations of modem feminism. 10 The result is an act of discovery and
creation that I propose to call, with just a touch of irony and a great deal of
appreciation for the magnitude and profundity of the effort, Feminism,
Modified. Feminism, Modified, I want to suggest, is both more complex than is
widely appreciated and far more original. It incorporates, but by no means rests
solely on, her signature, highly skeptical ethical stance toward human sexuality
and on her now widely embraced reconstruction of legal equality. It is set out,
but only very tentatively and never explicitly, in her early book, Toward a
Feminist Theory of the State."I Its structure, its potential, its power, and its
accomplishments are implicitly and with considerable understatement tallied in
8. FEMINIST THEORY OF STATE, supra note 1.
9. See sources on the Balkans and Canada, supra note 3.
10. FEMINIST THEORY OF STATE, supra note 1, at chs. 1, 2, 12, 13; CATHARINE A. MACKINNON,
FROM PRACTICE TO THEORY, OR WHAT IS A WHITE WOMAN ANYWAY?
(1997); Catharine A.
MacKinnon, Keeping It Real: On Anti- "Essentialism", in CROSSROADS, DIRECTIONS, AND A NEW
CRITICAL RACE THEORY 71 (Francisco Valdes et al. eds., 2002); Catharine A. MacKinnon, The Logic of
Experience: Reflections on the Development of Sexual Harassment Law, 90 GEO. L.J. 813 (2002)
[hereinafter Logic of Experience]; Catharine A. MacKinnon, Points Against Postmodernism 75 CHI.KENT L. REV. 687 (2000) [hereinafter Points Against Postmodernism].
11. FEMINIST THEORY OF STATE, supra note 1.
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[Vol. 17:385
her recent casebook, Sex Equality.12 Nowhere, however, has Catharine
MacKinnon set out a sustained description or argument for the Feminism,
Modified that she has imported into legal academia and, to a lesser extent, into
our larger culture. This essay's first ambition is to state as explicitly as possible
that theoretical argument and, moreover, to do so in a way that accounts for its
incredible power.
My larger goal, however, is unabashedly to strengthen it. Toward that end,
what I hope to ultimately do in this article is to present not the only possible
but, in my view, the strongest possible interpretation of the new Olot Catharine
MacKinnon invented. My interpretation will include some departures-a remodification, in effect, of Feminism, Modified. Feminism, Modified, I will
argue, as it is currently understood and as MacKinnon first crafted it, seemingly
rests on what might best be called, by shorthand, a "critique of desire": a claim
that women's subordination and the politics of patriarchy have so thoroughly
permeated women's subjectivity that our desires, and particularly our sexual
desires, are not a reliable guide to our self interest, our true pleasures, or our
inherent worth. In short we come to sexually desire our own subordination, and
as a result, our own sexual desires should be neither trusted nor desired.
In my view, this critique of desire is deeply mistaken. Women's desires, I
want to suggest, are not so polluted. We should at least be neutral-neither
critical nor confident-regarding the degree to which our desires, if fulfilled,
will give pleasure, and whether their satiation will serve our interests. What we
should doubt, I will argue, are not women's sexual desires but rather women's
sexual choices, and particularly women's choices to engage in sex--of any
description-that is not desired. In other words, it is the undesired sex in which
we engage, and not either the sex we desire, or the desires themselves, of any
description at all, that should be the target of our critique. Likewise, it should
be women's consensual choices to engage in all of that unwanted, unwelcome,
and undesired sex that should be the target of our skepticism. We can leave our
unfathomable, and I believe politically inconsequential, sexual desires out of
this project altogether, and I will argue that we would be well advised to do so.
I will argue, however, that the critique of desire, as it is presently understood
and as MacKinnon herself first constructed it, is not essential to the larger
picture, either jurisprudential or political, that is Feminism, Modified; nor is it
central to that view's genuine radicalism. Both MacKinnon and her critics are
wrong to believe to the contrary. An embrace of, or neutrality toward, the
content of women's sexual desire, I will urge, does not necessarily reduce to an
undue liberal celebration of the sexual status quo. Rather, it holds open the
possibility of a redirection of our skeptical gaze.
Our critical tools and acumen should be directed toward the undesired sex
in which we participate, both consensually and not-and not toward the sex we
12. SEX EQUALITY, supra note 7.
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desire. This modification, I believe, is fully consistent with the core radical
message of Feminism, Modified. The strength, as well as the radicalism, of
Catharine MacKinnon's theory and advocacy both have always lain in the
power of her account as to why some of the choices women "freely" makeand particularly, the choices women make to engage in undesired sex-are so
ubiquitous, so harmful, so politically disempowering, so consequential, and so
invisible. The "critique of desire" is not necessary to this project (as it is not
necessary to Feminism, Modified's greatest doctrinal contribution: sexual
harassment law) and indeed, it undercuts it. Toward the end of this paper, I will
spell out this argument in some detail. Again, my hope is that my proposed remodification of Feminism, Modified will be heard as a friendly amendment. I
want to retain what I regard as the extraordinary core of Feminism, Modified
but also to amend where need be.
Thus, in my view, the radical, life-enhancing, and truly liberatory potential
of Feminism, Modified has indeed been hampered by its association with an
undue, unnecessary, and-in a word-overwrought critique of the content of
women's sexual desires, as well as of the sex that women actually enjoy. Both
MacKinnon herself and the growing number of her critics who find fault with
the critique of desire, however, are wrong to think that any aspect of Feminism,
Modified-including its Marxist and feminist core-requires any such broadranging skepticism regarding either the content of women's sexual desires or
the form of the sex women welcome. Rather, what Feminism, Modified rightly
counsels us to skeptically regard, as I interpret it, is not women's felt sexual
desires, and neither is it the desired sex in which women engage, no matter
what its form. Rather, it is the vast array of sexual practices, legal prohibitions,
and religious mandates that appropriate undesired, unwanted, and unwelcome
sex from women. Feminism, Modified rightly counsels us that unwelcome and
undesired sex in which we engage should inspire skepticism regarding our
sexual lives-including our consent to that sex. We need to keep our eye on the
prize, and the prize, here, is to rid the world not of welcome sex of any
description but, rather, of the unwelcome sex and of the subtly or not-so-subtly
coercive institutions that have so thoroughly normalized this sex that we have a
very hard time even seeing (much less resisting) it for what it is: subjectively
painful, objectively harmful, and profoundly injurious to women's interests and
to women's equality both.
The first Part of this four-part Article attempts a restatement of Feminism,
Modified, as I understand it. I will argue that Feminism, Modified, as put
forward in MacKinnon's early and most powerful theoretical writing, 13 fused
elements from at least four usually conflicting classical political traditions:
13. Primarily, the collection of essays in CATHARINE MAcKINNON, FEMINISM UNMODIFIED:
DISCOURSES ON LIFE AND LAW (1987) [hereinafter FEMINISM UNMODIFIED] and the sustained
arguments in the first three chapters of FEMINIST THEORY OF STATE, supra note 1.
Yale Journal of Law and Feminism
[Vol. 17:385
First, a theory of power and subordination drawn from classical Marxism;
second, a theory of the state that draws heavily from classical, Hobbesian
liberalism; third, an ethical imperative to tend directly to the suffering of
women and to do something about it-to keep one's eye on the prize-taken
from what might best be called classical feminism; and lastly-and almost
never remarked upon, at least within legal scholarship--a utopian imagining of
adjudicative law and justice. MacKinnon's faith in what I call "law's nobility"
is derived from what the legal academy sometimes calls "legalism," itself an
under-theorized and under-appreciated political philosophy. The result of this
extraordinary, alchemical fusion-of Marxism, Hobbesian liberalism, classical
feminism, and legalism-is a strikingly novel understanding of women's
subordination and of the outsized role of law in ending it. There is nothing even
approaching its high seriousness, political ambition, or theoretical depth
anywhere, either within academic feminism or within critical jurisprudence
more broadly. Of all of Catharine MacKinnon's contributions to law and life,
her intellectual and imaginative contribution to the history of political thought
may be what ultimately proves most enduring. It is certainly what is most
uniquely her own.
In Part II of this Article, I take up some current criticism of MacKinnon's
theoretical invention. I will not aim to examine the full range of even the most
contemporary of the critical feminist commentary on MacKinnon's work-that
would be well beyond the range of this or perhaps any article-length treatment
of MacKinnon's place in our contemporary world. 14 Rather, I will look in some
14. Much of that criticism, as MacKinnon herself has noted, is wildly illogical and even hysterical.
See, e.g., Carlin Romano, Between the Motion and the Act, THE NATION, Nov. 15, 1993, at 563
(reviewing ONLY WORDS, supra note 2). Much of it, as she has also noted, is misdirected, badly
misconceiving the target of critique. See, e.g., Steven G. Gey, The Case Against Postmodern Censorship
Theory, 145 U. PA. L. REV. 193 (1996). For MacKinnon's response to Gey, see Points Against
Postmodernism, supra note 10. And most of the critique, I believe, fails to come to grips with the full
theoretical picture she has presented the world on her quite large claim--relying, again, on insights
drawn from Marxism, liberalism, feminism and legalism to explain the political origin of and the legal
cure for women's subordination. For a recent example, see Jennifer Michael Hecht, Down by Law, N.Y.
TIMES, May 22, 2005, at 17 (reviewing WOMEN'S LIVES, MEN'S LAWS, supra note 2). The limitations
of much of this decades-long critical reception are unfortunate, and part of the impetus for this Article is
my attempt simply to broaden the ambitions of MacKinnon's critics.
The strongest and deepest critiques of Feminism, Modified, until the queer theoretic strand
discussed in the text, came from liberal feminists responding to and rejecting MacKinnon and Andrea
Dworkin's attempts to regulate the pornography industry. I do not discuss pornography or the critical
literature it spawned in this article, beyond my attempt to distinguish much of the liberal feminist
response from the more contemporary queer theoretic one. For some of the more influential liberal
feminist critiques of MacKinnon's work, and of the anti-pornography movement in particular, see Brief
Amici Curiae of Feminist Anti-Censorship Taskforce et al., in Am. Booksellers Ass'n v. Hudnut, supra
note 3 [hereinafter F.A.C.T. Brief], reprinted in Nan D. Hunter & Sylvia A. Law, 21 U. MICH J. L.
REFORM 69 (1988); NADINE STROSSEN, DEFENDING PORNOGRAPHY: FREE SPEECH, SEX, AND THE
FIGHT FOR WOMEN'S RIGHTS (1995); Lisa Duggan, Nan D. Hunter, & Carole S. Vance, False Promises:
Feminist Anti-Pornography Legislation, 38 N.Y.L. SCH. L. REV. 133 (1993), originally printed in
WOMEN AGAINST CENSORSHIP (Varda Burstyn ed., 1985); Sylvia A. Law, Rethinking Sex and the
Constitution, 132 U. PA. L. REv. 955 (1984); Robert C. Post, Cultural Heterogeneity and Law:
Pornography,Blasphemy, and the First Amendment, 76 CALIF. L. REV. 297 (1988); Nadine Strossen, A
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Law's Nobility
detail at one influential, and penetrating, family of criticism now being voiced
by a growing chorus of postmodern, sex-affirmative, and queer-theoretic
critics. 15 Feminism, Modified, according to its postmodern critics, is wrong on
any number of scores, but, mostly, it is wrong to urge that we take quite so
seriously, as classical feminism asks us to do, the complaints of women
victimized by various forms of sexual assault and sexual violence-including,
importantly, women complaining of sexual harassment in the workplace. In
point of fact, according to the postmodern critics, these complaints of sexual
violation often reflect nothing more than a panicked reaction to sexual
explicitness and sexual play-and particularly to same-sex advances, play, or
explicitness-rather than genuinely grievous injury, both in the workplace and
elsewhere. I want to take up this thread of these postmodern, queer-theoretic
and sex-affirmative critiques because it may well have the potential to derail
Feminism, Modified as well as the body of sexual harassment law that has been
Feminist Critique of "The" Feminist Critique of Pornography, in APPLICATIONS OF FEMINIST LEGAL
THEORY TO WOMEN'S LIVES: SEX, VIOLENCE, WORK, AND REPRODUCTION 131 (D. Kelly Weisberg ed.,
1996). 1 have written extensively on the differences and conflicts between liberal and radical feminism
elsewhere, as well as on the liberal feminist (and pro-sex feminist) anti-anti-pornography movement.
See, on the former, Robin L. West, Fifteenth Anniversary Celebration: The Difference in Women's
Hedomc Lives: A Phenomenological Critique of Feminist Legal Theory, 15 WiS. WOMEN'S L.J. 149
(2000) [hereinafter West, Fifteenth Anniversary Celebration],and on the latter, see Robin L. West, The
Feminist-Conservative Anti-PornographyAlliance and the 1986 Attorney General's Commission on
PornographyReport, 1987 AM. B. FOUND. RES. J. 681 (1987) [hereinafter West, Femmist-Conservative
Alliance].
Neither do 1, in this Article, take up the influential and important critique of Feminism,
Modified that has come from critical race feminists and others concerning its alleged essentialism, its
consequent undue focus on the dilemmas of middle-class white women, and its inattentiveness to the
quite different problems facing African-American women and other racial, ethnic, and religious
minorities. See, e.g., Kimberle Crenshaw, Women of Color at the Center: Selections from the Third
National Conference on Women of Color and the Law: Mapping the Margins: Intersectionality,Identity
Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241 (1991) (urging a feminist
method that would centralize rather than marginalize the experiences and objective circumstances of
persons "at the intersection" of various axes of subordination); Angela P. Harris, Race andEssentialism
in Feminist Legal Theory, 42 STAN. L. REV. 581 (1990) (criticizing both MacKinnon's work and my
own as essentialist and inattentive to the distinctive problems of non-white women). For MacKinnon's
response, see Catharine A. MacKinnon, From Practiceto Theory, or What Is a White Woman Anyway?,
4 YALE J.L. & FEMINISM 13 (1991). 1 have written on this and related objections in ROBIN WEST,
CARING FOR JUSTICE (1997).
15. See, e.g., Janet Halley, Sexuality Harassment,in DIRECTIONS IN SEXUAL HARASSMENT LAW
182 (Catharine A. MacKinnon and Reva B. Siegel eds., 2003) [hereinafter DIRECTIONS]; Vicki Schultz,
The Sanitized Workplace, 112 YALE L.J. 2061 (2003). There are a number of other important
contributions to the postmodern critique, some of the threads of which were apparent early on. In the
legal literature, perhaps the most noteworthy have been Kathryn Abrams, Anne Coughlin, and Katherine
Franke. See, e.g., Kathryn Abrams, FromAutonomy to Agency: Feminist Perspectiveson Self-Direction,
40 WM. & MARY L. REV. 805 (1999); Kathryn Abrams, Sex Wars Redux: Agency and Coercion in
Feminist Legal Theory, 95 COLUM. L. REV. 304 (1995); Anne M. Coughlin, Sex and Guilt, 84 VA. L.
REV. 1 (1998); Anne M. Coughlin, Sex and Self-Governance, 29 MCGEORGE L. REV. 17 (1997); Anne
M. Coughlin, Regulating the Self. AutobiographicalPerformance in Outsider Scholarship, 81 VA. L.
REV. 1229 (1995); Anne M. Coughlin, Excusing Women, 82 CALIF. L. REV. 1 (1994); Katherine Franke,
Theorizing Yes: An Essay on Feminism, Law, and Desire, 101 COLUM. L. REV. 181 (2001). I deal
exclusively with the Halley and Schultz pieces in this Article simply because, in my view, they articulate
what is distinctive about the postmodem critique most forcefully, thereby making clear where and how it
differs from the more long-standing liberal critique of the pornography movement.
Yale Journal of Law and Feminism
[Vol. 17:385
responsive to it-which, in my view, would be a tragedy. I will argue, in a
nutshell, that the queer-theoretic argument against at least sexual harassment
law is seriously misguided. Sexual harassment law as presently constituted
simply does not target the sex that queer theorists are most passionately
committed to defending: hierarchic, edgy, sometimes sadomasochistic, but
fully welcome and desired sex, at work or elsewhere.
However, and as its architects make clear, the postmodern, "sexaffirmative" critique of Feminism, Modified goes significantly beyond the
contours of harassment law. There is a quite real and quite palpable-not only
"apparent" and by no means only "theoretical"--conflict between the
conceptions of sexuality and power put forward in Feminism, Modified as
Catharine MacKinnon has developed it, on the one hand, and the conceptions
put forward in various queer theories, on the other. While MacKinnon urges a
deep skepticism toward women's sexual choices and women's desires, queer
theorists distinctively urge both an embrace of sexual pleasure and desire, and a
skepticism regarding women's claims of sexual violation. In Part III of this
piece, I attempt to respond to that deeper conflict. I do so ultimately by
proposing the amendment to Feminism, Modified suggested above: Feminism,
Modified both could and should drop the critique of desire. I also urge,
however, that queer theorists drop the critique of women's claims of violation
or, as it might be put, the critique of women's "lack of desire."1 6 We can
simultaneously remain agnostic toward women's desires (I believe we should),
skeptical regarding women's choice to engage in unwanted sex, and respectful
of women's claims of sexual violation.
My goal in the final Part and in the conclusion will be to acknowledge the
force of those aspects of the postmodern and queer-theoretic critique that I find
compelling, but to do so without compromising the classically feminist
conviction at the heart of Feminism, Modified that the critics themselves target.
We should seriously attend to women's claims of sexual violence and violation
and keep a critical and skeptical focus on the conditions within which women
forge their sexual choices.
I. FEMINISM, MODIFIED
Let me begin with a summary statement and interpretation of MacKinnon's
articulation of theoretical feminism. Again, my claim is that Feminism,
Modified incorporates insights from at least four distinctive political traditions.
16. I thank Gowri Ramachandran for her helpful formulation of this position: that radical feminism
could and should drop the critique of desire, while queer theory could and should drop the critique of the
lack of desire.
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Marxism
First, although MacKinnon's initial Signs articles famously juxtaposed and
contrasted feminism with Marxism, 17 the basic logic of MacKinnon's challenge
to heterosexuality and its dominion was nevertheless posed analogically and in
completely familiar Marxist terms. "Sexuality is to feminism," MacKinnon
wrote, in what might be the most important single utterance of twentiethcentury radical political thought, "what work is to Marxism: that which is most
one's own and yet most taken away."' 8 In fact, the notion of sex as that which
is appropriated and alienated-the definitional linchpin of women's
subordination to men-was so novel to so many readers at the time it was first
proposed that, without the use of Marx's parallel formulation regarding labor, it
would have struck many as unintelligible. It was, in other words, only by virtue
of the closeness of MacKinnon's insight regarding women's sex to Marx's
insight regarding workers' labor that the idea was at all communicable.
The borrowing was much more than just analogical and rhetorical. Sex is
that which is taken from women, just as labor is that which is taken from
workers, and in both cases-labor and workers for Marx, sex and women, for
MacKinnon-the alienation defines not only that which is taken, but also what
it is to be in the subordinated class. 19 So, women are those from whom sex is
taken. If sex is taken from you, you're a woman; sex is what is taken from you,
if you're a woman. Not logically, or definitionally, or heaven forbid,
essentially-for either MacKinnon or Marx. 20 Neither sex nor work serves
these functions by virtue of laws of deduction. But nevertheless, contingently
and universally, throughout the domains of patriarchy and capitalism
respectively, the relation holds. The substantive premise of this claim-that sex
is taken from women-is entirely MacKinnon's. The theoretical claim,
however, regarding the definitional relation between that which is taken and
what the taking does to those from whom it is taken-the definition, in other
words, of subordination-is Marx's, 21 and this claim largely dictates this
feminist view of the nature of the subordinated individual and hence, for
MacKinnon, the nature of the subordinated woman. In other words, the
understanding of subordination at the heart of Feminism, Modified is
fundamentally and importantly Marxian.
17. Catharine A. MacKinnon, Feminism, Marxism, Method and the State: Toward Feminist
Jurisprudence,8 SIGNS: JOURNAL OF WOMEN IN CULTURE AND SOCIETY 635 (1983). See also Catharine
A. MacKinnon, Feminism, Method and the State: An Agendafor Theory, 7 SIGNS: JOURNAL OF WOMEN
IN CULTURE AND SOCIETY 515 (1983).
18. FEMINIST THEORY OF STATE, supra note 1,at 3.
19. Id. at 3-4.
20. See FEMINIST THEORY OF STATE, supra note 1, passim; Points Against Postmodernism, supra
note 10, at 697-98.
21. See, e.g., FEMINIST THEORY OF STATE, supra note 1, at 54 (citing KARL MARX, THE POvERTY
OF PHILOSOPHY 121 (International Publishers 1963) (1847)). See also id. at 3.
Yale Journal of Law and Feminism
[Vol. 17:385
In particular, two aspects of women's status as depicted by Feminism,
Modified echo this Marxist account of subordination. First, the specific harm of
patriarchy done to women by men, according to MacKinnon 22 and now truly
innumerable others, 23 is the harm of subordination rather than the harm of
24 just as, perhaps more clearly, the harm done to workers by
discrimination
capitalists of capitalism, is--of course-the harm of economic subordination,
not the harm of "discrimination" against members of the working class who by
some unappreciated stroke of luck are really "most like" capitalists. This
contrast dominated the first wave of responses to MacKinnon's reformulation
of legal feminism.2 5 The act of discrimination was already for the most part
illegal and well-theorized within legalism and liberalism both.26 Particular
women are indeed hurt by being treated differently by the state when they are
in fact similarly situated or similarly qualified-when they are denied, for
example, the right to serve on juries, to run for office, to work in the
professions or trade crafts, or to vote. According to MacKinnon's
reformulation, however, that harm, although symptomatic, is simply not the
heart of the injury done to women, by men, within patriarchy. Rather, the heart
of the injury sustained by women is the alienation or expropriation of their
sexuality and the subordination of their interests that is necessary to facilitate
that expropriation. If the legal and constitutional claim of equality is to be
broadened so as to protect women, then it must target subordination (and
particularly so-called "private" subordination) as that which causes inequality.
MacKinnon's distinctive theory of equality, including its social, legal, and
constitutional dimensions, follows directly from this Marxist understanding of
the subordination that holds equality at bay.
Second, and far more controversially within feminism, MacKinnon's
understanding of women's subjectivity owes more to this Marxist
understanding of the individual than to any other political or intellectual
22. FEMINISM UNMODIFIED, supra note 13, at 22, 40, 51, 118; FEMINIST THEORY OF STATE supra
note 1, at 216-34; Reflections on Sex Equality, supra note 4, at 1286-89, 1298-99.
23. See, e.g., Ruth Colker, Anti-Subordination Above All: Sex, Race, and Equal Protection, 61
N.Y.U. L. REV. 1003 (1986); Fiss, supranote 6, at 147-77. For critical discussions, see Mary E. Becker,
Prince Charming: Abstract Equality, 1987 Sup. CT. REV. 201 (1987); Christine A. Littleton,
ReconstructingSexual Equality, 75 CALIF. L.REV. 1279 (1987).
24. See chapter 12 of FEMINIST THEORY OF STATE, supra note 1.
25. Ellen C. DuBois, Mary C. Dunlap, Carol J. Gilligan, Catharine A. MacKinnon, & Carrie J.
Menkel-Meadow, The James McCormick Mitchell Lecture: Feminist Discourse, Moral Values, and the
Law - A Conversation, 34 BUFFALO L. REV. 11 (1985); Lucinda M. Finley, The Nature of Domination
and the Nature of Women: Reflections on Feminism Unmodified, 82 Nw. U. L. REV. 352 (1988);
Barbara Flagg, Women's Narratives, Women's Story: Toward a Feminist Theory of the State, 59 U. CIN.
L. REV. 147 (1990); Frances Olsen, Feminist Theory in Grand Style, 89 COLuM. L. REV. 1147 (1989)
(reviewing FEMINISM UNMODIFIED, supra note 13); Dennis Patterson, Postmodernism/Feminism/Law,
77 CORNELL L. REV. 254 (1992); Cass Sunstein, Feminism and Legal Theory, 101 HARV. L. REV. 826
(1988); Joan C. Williams, DeconstructingGender, 87 MICH. L. REV. 797 (1989).
26. Mary E. Becker, Care andFeminism, 17 WIS. WOMEN'S L.J. 57 (2002).
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395
influence. 27 Not only is a woman's objective being determined by the fact of
27. The influence here is pervasive, but is perhaps most clearly articulated in MacKinnon's chapter
titled, "A Marxist Critique of Feminism," in which she distinguishes radical feminism from liberal
feminism on the grounds that liberals centralize the free, autonomous individual, while radical feminists,
inspired by Marx, do not:
Liberal feminism takes the individual as the proper unit of analysis and measure of the
destructiveness of sexism. For radical feminism, although the person is kept in view, the
touchstone for analysis and outrage is the collective group called women. The difference is
one of emphasis, but an emphasis that is all.... Liberal feminism aggregates all women out
of each woman. Radical feminism sees all women in each one. In liberalism, women are an
aggregate, a plural noun. In radicalism, women is a collective whole... The fact that an
individual might be socially constructed is an outrage and an injury in liberalism; liberal
feminism applies this critique to women. In radical theory, the fact of social construction of
the individual is accepted and even embraced.. .The relationship between the individual and
the social delineates a split between liberal and radical feminism in their view of the
personal. In liberal feminism, the personal is distinguished from the collective; in radical
feminism, it comprises it...
From Mill to contemporary forms, liberal theory exhibits five interrelated dimensions
that contrast with radical feminist theory, clarifying both. These are: individualism,
naturalism, voluntarism, idealism and moralism. Individualism involves one of liberalism's
deepest yet also superficially most apparent notions: what it is to be a person is to be a unique
individual, which defines itself against, as distinct from, as not reducible to, any group. The
person in radical feminist thought is necessarily socially constituted, affirmatively so through
an active yet critical embrace of womanhood as identity....
The voluntarism of liberalism consists in its notion that social life is comprised of
autonomous, intentional, and self-willed actions, with exceptional constraints or
qualifications by society or the state. This aggregation of freely-acting persons as the
descriptive and prescriptive model of social action is replaced, in radical feminism, with a
complex political determinism. Women and women's actions are complex responses to
conditions they did not make or control; they are contextualized and situated. Yet their
responses contextualize and situate the actions of others. As an individual self, one has little
power; but as an other in a social milieu, one ultimately has more. Women struggle to
transform conditions, but conditions are not resisted without means given or seized, nor
simply because they are determining, nor because women are really free beneath their
victimization. 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. Women also have access to a
clear sense that their lives would be better if they were denigrated less and paid more.
FEMINIST THEORY OF STATE, supra note 1, at 40, 4547.
Later in the chapter, MacKinnon explicitly embraces a Marxist perspective, criticizing liberal
feminism for its idealism and its individualism. Thus:
[I]f one accepts sex as a material social category at all and uses Marx's analysis of class to
scrutinize feminist analyses of sex, a substantial body of feminist work can be criticized for
the very tendencies Marx criticized in bourgeois theory. Marxists have charged feminism
with liberalism of two kinds: idealism, or belief in the power of ideas alone to cause social
change; and individualism, or reliance on the individual to effect social change.. As an
example of the feminism to which such a criticism of idealism would apply, Mary Daly...
speaks less of the creation of women's consciousness by the realities of male power,
therefore of the depth of women's damage, and more of its lies and distortions, positing mind
change as social change. For instance, in the investigation of suttee, a practice in which
Indian widows are supposed to throw themselves upon their dead husband's funeral pyres in
grief,. Daly focuses upon demystifying its allegedly voluntary aspects. Women are revealed
as drugged, pushed, browbeaten, or otherwise coerced. Comparatively neglected-both as to
the women involved and as to the implications for the diagnosis of sexism as illusion-are
perhaps suttee's deepest victims: women who want to die when their husband dies, who
volunteer for self-immolation because they believe their life is over when his is, women
whose consciousness conforms to the materially dismal and frightening prospect of
widowhood in Indian society. To the extent the analysis turns on whether the women jump or
are pushed, it gives ideas both too much and too little power.... In the case of female
powerlessness, too little, in neglecting the consciousness of the most totally victimized in
favor of a critique of the victimization of those whose consciousness, at least, has
escaped....
Id at 50-51 (footnotes omitted).
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subordination, but further, because this subordination is accomplished through
the alienation of sex, women's consciousness of our own interests and injuries,
by the force of Marxist logic, is clouded by the dominant pan-sexualist
ideology that denies the violative nature of sexual alienation, denies the
resulting injury it inflicts, and denies the importance of those injuries, when
admitted. 28 What follows, in MacKinnon's view, is a broad-based skepticism
toward the genuineness of women's desires, women's sexual preferences, and
women's sexual choices, as well as toward the authenticity of the freedom
within which those interests are perceived and those choices forged. What
follows from that skepticism, in turn, is a deeply il- or non- or anti-liberal
understanding of the individual, of individual autonomy, and of the moral
significance of free choice. In short, what follows is a broad denial of the
aspirational and descriptive "liberal self' as an adequate accounting of selfhood
enjoyed by or experienced by women.
Because this part of MacKinnon's appropriation of Marxism is central to
my own proposed modification of MacKinnon's Feminism, Modified, which I
lay out below, let me elaborate on it just a bit using my own metaphors to
capture the individualist aspiration of liberalism and the nature of MacKinnon's
quasi-Marxist challenge to it.29 What I sometimes call the "liberal self' -the
28. See FEMINISM UNMODIFIED, supranote 13, at 54; FEMINIST THEORY OF STATE, supra note 1, at
148-49.
29. Marx's pithiest denunciation of liberal individualism, as applied to wage labor, appears in
chapter six of Capital:
[l]n order that our owner of money may be able to find labour power offered for sale as a
commodity, [the possessor of labour power] ....the individual whose labour power it is,
offers it for sale, or sells it, as a commodity. In order that he may be able to do this, he must
have it at his disposal, must be the untrammelled owner of his capacity for labour, i.e., of his
person. He and the owner of money meet in the market and deal with each other as on the
basis of equal rights, with this difference alone, that one is buyer, the other seller; both,
therefore, equal in the eyes of the law.... [This] demands that the owner of the labour power
should sell it only for a definite period, for if he were to sell it rump and stump, once for all,
he would be selling himself, converting himself from a free man into a slave, from an owner
of a commodity into a commodity. He must constantly look upon his labour power as his
own property....
The second essential condition to the owner of money finding labour power in the
market as a commodity is this-that the labourer, instead of being in the position to sell
commodities in which his labour is incorporated, must be obliged to offer for sale as a
commodity that very labour power, which exists only in his living self ...
For the conversion of his money into capital, therefore, the owner of money must meet in the
market with the free labourer, free in the double sense; that as a free man he can dispose of
his labour power as his own commodity, and that, on the other hand, he has no other
commodity for sale, is short of everything necessary for the realization of his labour power.
The question why this free labourer confronts him in the market has no interest for the
owner of money, who regards the labour market as a branch of the general market for
commodities.... One thing, however, is clear-nature does not produce on the one side
owners of money or commodities, and on the other men possessing nothing but their own
labour power. This relation has no natural basis... . It is clearly the result of a past historical
development ....
Karl Marx, Capital(Samuel Moore & Edward Aveling, trans.), in 50 GREAT BOOKS OF THE WESTERN
WORLD 79-80 (Robert Maynard Hutchins ed., 1952).
After discussing how labour is converted into surplus valtlie and then into profit of the
capitalist, Marx goes on to discuss the liberal theory that legitimates it:
This sphere that we are deserting, within whose boundaries the sale and purchase of labourpower goes on, is in fact a very Eden of the innate rights of man. There alone rule freedom,
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self assumed by political and theoretical liberalism-has this central, defining
characteristic: the liberal self makes choices-meaning, decisions among
proffered alternatives, often, but not only, in open markets-which, when acted
upon, become the source of value.30 Value, for liberals, is a function of the
acted-upon choices of free individuals. This sounds simple, but for it to even be
minimally coherent, much less plausible, the liberal self must have a particular
psychological make-up. First, the liberal self must hold "preferences" between
possible potential choices. Because choices generate value, preferences
between potential choices are accorded great deference: there's just no "valuebased" reason to interfere with them (how could there be?) and every reason
not to. 31 In turn, those preferences, still according to the liberal conception of
the self, are forged from the individual's own privileged awareness of her
desires: she knows what she wants, and she prefers that which will satisfy those
wants.3 2 Our desires, looking at the causal chain the other way around, generate
equality, property and Bentham. Freedom, because both buyer and seller of a commodity, say
of labour-power, are constrained only by their own free will. They contract as free agents,
and the agreement they come to is but the form in which they give legal expression to their
common will. Equality, because each enters into relation with the other, as with a simple
owner of commodities, and they exchange equivalent for equivalent. Property, because each
disposes only of what is his own. And Bentham, because each looks only to himself. The
only force that brings them together and puts them in relation with each other is the
selfishness, the gain and the private interests of each. Each looks to himself only ...and just
because they do so, do they all, in accordance with the pre-established harmony of things, or
under the auspices of an all-wise providence, work together to their mutual advantage, for the
common weal, and in the interest of all.
On leaving this sphere... which furnishes the "Free-trader Vulgaris" with his views
and ideas, and with the standard by which he judges a society based on capital and wages, we
think we can perceive a change in the physiognomy of our dramatis personae. He, who
before was the money owner, now strides in front as capitalist; the possessor of labour-power
follows as his labourer. The one with an air of importance, smirking, intent on business; the
other, timid, and holding back, like one who is bringing his own hide to market and has
nothing to expect but-a hiding.
Id.at 83-84.
30. Posner states this most clearly in his classic piece on the ethical foundation of wealth
maximization. RICHARD POSNER, THE ECONOMICS OF JUSTICE 60-61 (1981). Classically liberal versions
of the idea that individual choice is the wellspring of social value can be found in JOHN STUART MILL,
ON LIBERTY 84-87 (1859), and JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS
AND LEGISLATION 1-4 (Gaunt 2001) (1879). Modem statements to similar effect recur in BRUCE A.
ACKERMAN, SOCIAL JUSTICE INTHE LIBERAL STATE 374-78 (1980), and in Ronald Dworkin's definition
of liberalism, according to which liberalism cannot possibly rest on any theory of the social good that
relies on anything other than individual choice. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 272-78
(1978). It is this claim that aligns liberalism with antipatemalism and that, in extreme, generates a
libertarian political outlook.
There are versions of liberalism which either deny or soften this definitional equivalence of
value and satiated choice. I have argued elsewhere that the "liberalism" and "individualism" defended
by John Dewey was not committed to this definitional equivalence, but instead rested on a robust
account of the good that was independent of individual choice. See Robin L. West, Pragmatism
Rediscovered: A Pragmatic Definition of the Liberal Vision, 46 U. PITT. L. REv. 673 (1985).
31. There is a vast literature on the role of preferences and preference formation in liberal theory
and on liberal arguments against paternalistic intervention based on its understanding of the moral value
of "preferences." For a partial and skeptical taste see, e.g., Daniel Kahneman, New Challenges to the
Rationality Assumption, 3 LEGAL THEORY 105 (1997); Robin West, Rationality, Hedonism, and the
Case for Paternalistic Intervention, 3 LEGAL THEORY 125 (1997).
32. See infra notes 33, 66-67 and accompanying text.
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our preferences. Finally, our desires, at least ideally, are a guide,
at least in a
33
healthy adult, to both individual pleasure and individual interest.
Putting this all together yields a powerful case for radical individualism:
our choices produce value, we make those choices based on what we prefer,
our preferences are a product of our desires, and our desires for the most part
track what is in our overall best interest. Or, putting it slightly differently:
Based on his preferences the "liberal self' makes choices that, in turn, reflect
his desires, which, if fulfilled, will lead to an increase in both his subjective
pleasure and his objective well-being. That increase in an individual's
subjective pleasure and objective well-being is of intrinsic value-and that's
pretty much all that is of intrinsic value. 34 Each part of this quite complex set of
correlations is independently important, but the sum of the parts even more so.
Taken holistically, the liberal self, with only a few constraints, makes choices
that, if fulfilled, will satiate desire and produce value, and she holds preferences
that, when satisfied, generate choice.
Whatever one might think philosophically of this highly individualistic
liberal understanding of value, the Marxist critique of it that has taken hold in
contemporary critical thought is not so much aspirational, or even
philosophical, as it is descriptive: none of liberal theory's quasi-empirical
premises hold true for the subordinatedself.35 In particular, the subordinated
self s "preferences" are not self-directed-the subordinated self does not
"prefer" that which will further her own pleasure or self interest or which will
33. The best defense of this position, I believe, is still Jeremy Bentham's short discussion of the
idiosyncrasy of pleasure and the difficulty of judging for another the better of "Push Pin" (think video
games) and Poetry. Or consider his anecdote concerning the oculist:
On occasions like this the legislator should never lose sight of the well-known story of the
oculist and the sot. A countryman who had hurt his eyes by drinking, went to a celebrated
oculist for advice. He found him at table [sic], with a glass of wine before him. "You must
leave off drinking," said the oculist. "How so?" says the countryman. "You don't, and yet
methinks your own eyes are none of the best."--"That's very true, friend," replied the
oculist; "But you are to know, I love my bottle better than my eyes."
BENTHAM, supra note 30, at 319 n.2.
The best critique of anti-paternalism still comes from John Stuart Mill, who somewhat
notoriously held both positions during the course of his complex ideological odyssey. See chapter two of
JOHN STUART MILL, Utilitarianism,in UTILITARIANISM AND ON LIBERTY 181, 185-202 (Mary Wamack
ed., Blackwell Publishing 2003) (1861). For a full discussion of both men's views, and their relation to
other forms of liberalism and utilitarianism, see Robin West, The Other Utilitarians,in ANALYZING
LAW: NEW ESSAYS INLEGAL THEORY 197 (Brian Bix ed., 1998).
34. In the law and economics literature, this is often held to be true simply as a matter of definition,
thus masking the empirical nature of every claim required to support the conclusion. See RICHARD
POSNER, ECONOMIC ANALYSIS OF LAW 10 (1977) ("'Efficiency' means exploiting economic resources
in such a way that 'value'-human satisfaction as measured by aggregate consumer willingness to pay
for goods and services-is maximized.") (emphasis in original); POSNER, supra note 30, at 49.
35. Perhaps the clearest exposition of the role of this critique of the individual self, in the context of
critical legal thought, is Robert W. Gordon's classic, Unfreezing Legal Reality: CriticalApproaches to
Law, 15 FLA. ST. U. L. REV. 195, 198-215 (1987). For further examples of critical essays assailing
various parts of the liberal depiction of the individual self, see Mark Kelman, Choice and Utility, 1979
WiS. LAW REV. 769 (1979); Robin West,Authority, Autonomy, and Choice: The Role of Consent in the
Moral and Political Visions of Franz Kajka and Richard Posner, 99 HARV. L. REV. 384 (1985); Robin
West, Submission, Choice, andEthics:A Rejoinder to Judge Posner,99 HARV. L. REV. 1449 (1986).
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satiate her own desires. Rather, the "preferences" of the subordinated self will
often, if not always, further the pleasures and well-being of whomever is
dominating her rather than further her self-interest, and will satiate his desires
rather than her own. Suffering false consciousness is just part of what it means
to be politically dominated; for one's own survival, one learns to prefer not
what satisfies oneself, but what serves the interest of the dominator.
Consequently, if a woman suffers subordination at the hands of a man (either
because all women are subordinated by all men or because she is by him), then,
even when her choices are "voluntary" or "consensual," these choices will
reflect his desires-not hers. Given all of this, the wonder, as MacKinnon says
in many different ways, is not that so many women have such profoundly
illiberal understandings of their own preferences, interests, choices, pleasure,
and desires-that our consciousness and self-consciousness are false. 36 The
wonder is the exception: the woman who on occasion glimpses her own self as
of consequence for herself, who has choices, preferences, desires, and pleasures
that reflect that self-assessment, and who then acts on them.37
To clarify: MacKinnon's appropriation of Marxist logic to better articulate
the condition of subordinated women entailed not an embrace of Marx's views
regarding labor but, rather, an embrace of Marx's view of the incompatibility of
social, private-sphere subordination with the theory of value propounded by
liberal individualism. That entailed, in turn, a firm rejection of the liberal (and
libertarian) claim that the maximization of individual choices is the way to
maximize well-being and, hence, value, so long as subordination on the ground,
so to speak, is an adequate description of social reality. The creation of an
individual as a source of sex implies as well the creation of an individual whose
preferences will interfere only occasionally, not fundamentally, with such a
role. Preference and choice are constructed hand-in-hand with the individual:
what the individual is-she, from whom sex is taken-will dictate what the
individual prefers-she prefers to give her sex, largely so as to avoid the threat
to life entailed by its forceful, coerced expropriation.
As I will argue in more detail below, MacKinnon argues that the structures
of domination that so misdirect the subordinated individual's felt preferences
and manifest choices also have the effect of polluting--or rendering suspectthe content of her desire. Thus, for MacKinnon, the domination that wrongly
turns a woman's preferences and choices away from her own fulfillment
likewise affect and even can come to constitute the content of her desires: it is
not only that she will prefer his pleasure to her own and will choose
accordingly, but also that she actually comes to desire her own subordination,
debasement, and submission. The content of her desire is as much a function of
36. FEMINISM UNMODIFIED, supra note 13, at 54; FEMINIST THEORY OF STATE, supra note 1, at
115-16.
37. FEMINIST THEORY OF STATE, supra note 1, at 173.
Yale Journal of Law and Feminism
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her objective subordination as is the content of her choice. It is not so clear that
Marx believed that the corollary was true with respect to laborers; while Marx
surely believed that the domination of the laborer led him to choices that were
not at all in his interest, it is not clear that Marx believed that the laborer
actually came to desire his own domination. MacKinnon, however, clearly
believes that women do so, and I will argue below that this is both an
unfortunate inference and an unnecessary one.
Here, though, I want to emphasize what she and Marx so profitably share,
and that is an account of the objective conditions of persons in liberal societies
such that at least one aspect of the liberal description of selfhood is simply
false. Given the structures of domination as both Marx and MacKinnon
describe them, it is just untrue that the satisfaction of individual choice will
inevitably-virtually by definition-maximize individual and therefore social
well-being, and thereby definitionally create value. Both Marx and MacKinnon
have provided descriptive and ethical accounts of large swaths of human
behavior heretofore simply not seen, for a simple, definitional reason: the
descriptive accounts of labor and sex provided by liberalism preclude it. From a
liberal perspective, if work is consensually exchanged, it is freely chosen, and
if so, it produces value, ethically as well as economically. If it is coerced, it is
slavery. There is no room in this accounting for an understanding or critique of
labor that is both consensually exchanged (and therefore not slavery) but
nevertheless alienated by the force of necessity, objectively harmful to the
worker from whom it is taken, and, accordingly, ethically unjust. Likewise,
from a liberal perspective, if sex is consensually exchanged, it is freely chosen,
and, if so, it produces value---ethically as well as economically. If it is coerced,
it is rape. There is no room in this accounting for an understanding or critique
of that sex that is consensually exchanged and freely chosen-and therefore not
rape-butnevertheless alienated, unwanted, objectively harmful to the woman
from whom it is taken, and, accordingly, ethically unjust.
Liberalism
MacKinnon's relation to liberal individualism and particularly to the
theory of value at its core is one of thoroughgoing opposition. But it is a
mistake to equate liberalism with liberal individualism, and, likewise, it is a
mistake to conclude that MacKinnon's feminism stands in unambiguous
opposition to liberalism. In fact, MacKinnon's relation to the liberal tradition
more broadly understood-in toto-is much more nuanced. Specifically, her
understanding of the nature and the purpose of the state, put forward in both
her books and her advocacy, owes far more to classical liberal theory-and
particularly to its father, Thomas Hobbes-than to either feminism or Marxism.
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Clearly, MacKinnon does not think or hope that the state will wither away.
Just as clearly, she does not view the state as invariably hostile to women's
38
interests or, for that matter, to the interests of subordinated peoples generally.
Rather, and this time in step with at least one of liberalism's founders, Thomas
Hobbes, MacKinnon sees the state as, potentially, the solution to the problem
of private subordination, rather than the cause of it.39 As such, the politically
sovereign state-the entity with a legitimate (because delegated) claim to a
monopoly on the use of force-is a solution to private misery that very much
ought to stay put. 40 Put in classically Hobbesian terms, MacKinnon, like
Hobbes, sees a violent, fearful, and short life in the state of nature-a violence
perpetrated by private individuals on private individuals-and consequently, a
need, given the human propensity to violence, for the creation of a state. 41 She
then, implicitly and ideally, defines the heart of the state's role by reference to
that need: the state (whatever else it does or should do) must police against that
private violence. 42 In this, she is in good company, of an emphatically liberal
pedigree.
MacKinnon's otherwise thoroughly Hobbesian theory of the state and of
the natural society it regulates fundamentally diverges from Hobbes's in two
38. She stated repeatedly, early on, that the state is "male" by virtue of its claim to objectivity. She
never held it to be invariably so, and I believe, in retrospect, it's clear that she meant by this that it is
male by virtue of a false claim to objectivity, not by virtue of the aspiration itself. One would not so
aggressively seek to use the state to counter patriarchy if one believed otherwise. Halley suggests this
same migration of MacKinnon's view of the state, albeit much more harshly, in Halley, supra note 15, at
187-89.
39. THOMAS HOBBES, LEVIATHAN 90, 121 (Richard Tuck ed., Cambridge Univ. Press 1996)
(1651). 1 discuss the relation of Hobbes, Hobbesian liberalism, radical feminism, and radical movements
more generally, in Robin West, ReconsideringLegalism, 88 MINN. L. REV. 119, 141-47 (2003).
40. Compare HOBBES, supra note 39, at 90, 121 with FEMINISM UNMODIFIED, supra note 13, at 40.
41. MacKinnon makes this clear in her typically blunt recitation of the social contract:
Here, on the first day that matters, dominance was achieved, probably by force. By the
second day, division along the same lines had to be relatively firmly in place. On the third
day, if not sooner, differences were demarcated, together with social systems to exaggerate
them in perception and in fact, because the systematically differential delivery of benefits
and deprivations required making no mistake about who was who. Comparatively speaking,
man has been resting ever since.
FEMINISM UNMODIFIED, supra note 13, at 40. Compare this with Hobbes's classic description of life
without the protection of a sovereign against the consuming threat of private violence:
Whatsoever therefore is consequent to a time of Warre, where every man is Enemy to every
man; the same is consequent to the time, wherein men live without other security, than what
their own strength, and their own invention shall furnish them withal. In such condition there
is no place for Industry; because the fruit thereof is uncertain: and consequently no Culture of
the Earth; no Navigation, nor use of the commodities that may be imported by Sea; no
commodious Building; no Instruments of moving, and removing such things as require much
force; no Knowledge of the face of the Earth; no account of Time; no Arts; no Letters; no
Society; and which is worst of all, continuall feare, and danger of violent death; And the life
of man, solitary, poore, nasty, brutish, and short.
HOBBES, supra note 39, at 89.
42. SEx EQUALITY, supra note 7, at, e.g., 715-800, 856-908, 1512-1562; Logic of Experience,
supra note 10, at 825-26, 833; and Catharine A. MacKinnon, Reflections on Law in the Everyday Life of
Women, in LAW IN EVERYDAY LIFE 109 (A. Sarat and T. Kearns eds., 1993) [hereinafter Reflections on
Law] all express this demand and, implicitly, the hope that it will be met. See also infra notes 43-55 and
accompanying text.
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regards--one stemming from her Marxist understanding of subordination and
the second from her feminism. Both push the state's raison d'etre in directions
Hobbes would have found foreign (to put it mildly). First, her Marxist
insistence that the problem of private power extends to subordination, and not
only to conventionally understood violence, extends the role of the state beyond
policing against violence, to policing against the subordination that is
violence's product and handmaiden. Second, of course, her feminist insistence
that the private violence policed against must include sexual violence puts the
leviathan and its justification metaphorically where Hobbes had not envisioned
it: in patriarchal space. Both differences are important, but they ought not to
overshadow the commonality. The members of the leviathan, for both Hobbes
and MacKinnon, must be protected against the violence of others by the state's
monopoly on violence, and individuals accordingly have a right to that
protection. For MacKinnon, distinctively, the beneficiaries of this pact must
include women, and the private power that individuals must give up, when
signing onto the project of the leviathan, must include patriarchal power.
This is a powerful synthesis of ideas. In essence, MacKinnon has basically
harnessed the power of Hobbes's fundamental liberal insight regarding the
nature of states to her feminism, in a way that strikingly parallels the manner in
which she harnessed Marx's fundamental insight regarding the nature of
subordination. The force, and I think the staying power, of MacKinnon's
Feminism, Modified is clearly in this fusion-the fusion of a radical feminist
claim regarding the dangerous and violative nature of heterosexuality, with a
deeply familiar liberal commitment to countering private violence with state
power, no less than with a deeply Marxist understanding of the impact of
subordination on the objective nature and subjective life of the subordinated
class. This fusion yields a novel claim. The elements fused, however, are not
only familiar; they are classics-the proverbial pillars of western enlightenment
thought. How we got from the deeply familiar to the thoroughly novel, though,
is not at all obvious and, as far as I know, in the scholarship on MacKinnon's
Feminism, Modified has never been fully elaborated, much less critiqued.
If we bracket for a moment the feminist (and unfamiliar) component of this
synthesis, the contours of the basic theoretical position might be clearer. The
combination of Hobbesian liberalism with a Marxist account of the nature of
subordination brought on by unjust mal-distributions of private power is not
unprecedented in American political theory. A hundred years ago, some of the
more left-leaning legal realists, notably Robert Hale, urged a strong state
response to the subordination effected by the use of private power in labor
markets.43 It is, however, unusual in our political history. At this point in our
current conservative and libertarian climate, even just the bare Hobbesian
43. Robert Hale, Coercion and Distribution in a Supposedly Non-Coercive State, 38 POL. So.
470 (1923); see also Morris R. Cohen, Propertyand Sovereignty, 13 CORNELL L.Q. 8 (1927).
Q.
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dimension of Feminism, Modified is not widely embraced. The seemingly
uncontroversial Hobbesian pillar of modem liberalism-that the state must
respond to and protect citizens against private violence (leave aside
"subordination")-is nevertheless seemingly a minority view in this country,
both in law 44 and even more so in culture, 45 as evidenced by our uneven history
of state protection against violence. Witness the states' dismal failure in the
post-bellum era to respond to the wave of lynchings that persisted well into the
twentieth century, 46 or the refusal of states even to criminalize, much less to
police against, domestic violence in the nineteenth and much of the twentieth
century,47 all under the protective and legitimating guise of coverture or, more
recently, of privacy4 8; or the late twentieth and early twenty-first century
movement-gathering, not losing steam-to make private gun ownership not
only acceptable but constitutionally protected.4 9 Famously--or infamouslythe constitutional corollary of the Hobbesian mandate-that either the due
process clause or the equal protection clause might be plausibly read to require
such a response-has been explicitly rejected by the Supreme Court, albeit in
dicta: the individual, the Court opined in DeShaney v. Winnebago County
Department of Social Services, has no constitutional right to the protection of
the state's police power against private violence. 50 That decision both
constitutes and reflects American resistance to the core Hobbesian claim that
the state's raison d'etre is just that protection. Likewise, the current trend in
state law, toward allowing individuals to "carry" lethal weapons in plain view,
constitutes as visible a counterweight as one might imagine to the Hobbesian
understanding of the leviathan's reason for being.
Nevertheless, at least within theory, the basic Hobbesian claim comes with
the imprimatur of academic, official, liberal acceptance: from Hobbes, to
Locke, to Rawls, and to Nozick, liberal theorists of the state explicitly approve
44. The Court has never held that individuals have a right to the state's protection against private
violence; indeed it has stated, albeit in dicta, that there is no such right, or correlative state duty. See
DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 197, 201 (1989).
45. The glorification of violent criminality and the denigration of law and legalism is a constant of
popular culture, although it ebbs and flows. For a good discussion of this theme in both film and
television, see Naomi Mezey & Mark C. Niles, Screening the Law: Law & Ideology in American
Culture, 28 COLuM. J.L. & ARTS 91 (2005).
46. See generally Emma Coleman Jordan, Crossing the River of Blood between Us: Lynching,
Violence, Beauty, and the Paradoxof Feminist History, 3 J. GENDER RACE & JUST. 545 (2003).
47. ELIZABETH SCHNEIDER, BATTERED WOMEN AND FEMINIST LAWMAKING 14-20 (2000).
48. See Reva B. Siegel, "The Rule of Love ": Wife Beating as Prerogative and Privacy, 105 YALE
L.J. 2117, 2151-52 (1996).
49. Symposium on the Second Amendment: Fresh Looks, 76 CHI.-KENT L. REv. 3 (2000); Second
Amendment Symposium, 1998 BYU L. REV. 35 (1998); Symposium: The Second Amendment, 10 SETON
HALL CONST. L.J. 839 (2000); Symposium: Gun Control and the Second Amendment, 15 U. DAYTON L.
REv. 1 (1989); A Second Amendment Symposium Issue, 62 TENN. L. REV. 443 (1995); Symposium: Gun
Control,49 LAW & CONTEMP. PROBS. 1 (1986).
50. DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189 (1989).
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[Vol. 17:385
it.5' Rawls, for example, refers to the maxim that the state must deter against
private individual, which he terms "Hobbes's thesis," as one of the pillars of
the "Rule of Law."5 2 He then states unequivocally that Hobbes's thesis is a
necessary condition of contemporary political liberalism.5 3 If, though, we
couple, as MacKinnon wants to do, the Hobbesian mandate with the Marxist
insight, then what follows is a markedly expansive mandate for state action
and, if constitutionalized, for a wide array of constitutionally required
affirmative duties. Put differently, if it is not only private violence to which the
state must respond but also other forms and consequences of egregious private
subordination, then the states' obligations to act are extensive, not only in the
sexual realm but also in the economic realm :and wherever else one finds
subordination and its harms. This larger understanding of equality, of
subordination, and of the state's constitutional obligation to meet it is precisely
what is implied by MacKinnon's simultaneous embrace of both a Hobbesian
account of the state's role in social life and a Marxist understanding of the
nature and ill consequences of private-sphere subordination. And, as such, it is
an unusual (again, not unprecedented) political stance: Hobbesian liberalism
typically envisions a minimalist rather than maximalist state, 54 and Marxist
accounts of subordination, particularly in spheres other than the economic,
more often place confidence in other levers of social change than in states and
state actors.55
It is not, however, unique, and it is not unique, more specifically, in that
peculiar anomaly of American politics which might best be described as "legal
radicalism"-a defining insistence that the state not only should but morally
and constitutionally must respond to private-sphere subordination. In fact,
although usually unarticulated, this Hobbesian-Marxist synthesis might be
viewed as the core, shared commitment of non-anarchist, non-violent, and nonrevolutionary radical legal movements in America from the Civil War to the
present. The legal realist advocates of New Deal radicalism, for example,
argued in a parallel fashion that the state must respond to the violence of
51. HOBBES, supra note 39, at 86-90; ROBERT NozIcK, ANARCHY, STATE AND UTOPIA 26-28
(1974); JOHN RAWLS, A THEORY OF JUSTICE 206-13 (rev. ed. 1999); John Locke, The Second Treatise
of Government: An Essay Concerningthe True Original,Extent, and End of Civil Government 123, in
JOHN LOCKE, Two TREATISES OF GOVERNMENT 267, 357 (Peter Laslett ed., Cambridge Univ. Press
1988) (1690).
52. RAWLS, supra note 51, at 211.
53. Id.
54. This understanding of Hobbes seems to be shared by both his celebrants and his critics.
Compare Richard Epstein's treatment, in TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT
DOMAIN 7 (1985) ("Hobbes gives us the account of human nature on which a system of limited
government rests.") with Tushnet's similar understanding, in MARK TUSHNET, RED WHITE AND BLUE 810(1988).
55. See, for example, Laurie Shrage's socialist-feminist account of prostitution in Should Feminists
Oppose Prostitution?,in THE PHILOSOPHY OF SEX: CONTEMPORARY READINGS 435, 447 (Alan Soble
ed., 2002), in which she advocates political organizing and education rather than law to combat
prostitution.
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economic exploitation with appropriate legislation-the leviathan, in effect,
must disempower private economic actors. 56 Post-civil-rights-era critical
not less expansive, state to police
scholars argue likewise for a more expansive,
57
subordination.
racial
private-sphere
against
Only MacKinnon, however, in the history of American radicalism, at least
to my knowledge, has appropriated and then synthesized the HobbesianMarxist insistence on a strong and active state moved to address subordination
with a feminist claim that sexuality is a site of such subordination. It is
noteworthy, although again rarely noted, that the consequence of this doublecoupling is both a limitation on the reach of the radical Hobbesian-Marxist state
and a dramatic reorientation. MacKinnon does not argue anywhere that the
state is constitutionally obligated (by the equality guarantee in the fourteenth
amendment) or even morally obliged to address all consequences of all privatesphere subordination.58 Why not? Why not a general egalitarianism, and not
just an egalitarian feminism, to inform constitutional and political
interpretation? Perhaps it is because our legal history just stubbornly refuses to
yield such an interpretation. It hardly needs pointing out, I suppose, that that
understanding-whether or not it would over-oblige the state-would run
dramatically counter to the point and history of the Constitution. 59 It is, for
example, clearly not the understanding of equality that moved the drafters of
the Fourteenth Amendment.
Nevertheless, that MacKinnon does not so argue, I believe, is not a
function of some sort of Dworkinian reading of our constitutional history and
56. See Cohen, supra note 43, at 24-30; see also Hale, supra note 43, at 492-94.
57. My colleague Professor Emma Jordan has displayed in her office an interview from twenty
years ago in which she plaintively states, as a young civil rights lawyer, "I have always thought it was
the state's obligation to protect people." For discussions in the critical race literature of the importance
of state intervention to end subordination (rather than to simply correct for irrational private
discrimination), see Kimberle Williams Crenshaw, Race, Reform and Retrenchment: Transformation
and Legitimation in AntidiscriminationLaw, 101 HARv. L. REv. 1331 (1988) (on affirmative action);
Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 MICH. L. REV.
2320 (1987) (on hate speech); and Gary Peller, Race Consciousness, 1990 DUKE L.J. 758 (1990).
58. She comes closest in Reflections on Sex Equality, supra note 4.
59. As generation after generation of advocates of constitutionalized "welfare rights" seemingly
must forever re-learn, to our ever-growing frustration. See Frank I. Michelman, In Pursuit of
ConstitutionalWelfare Rights: One View of Rawls' Theory of Justice, 121 U. PA. L. REV. 962 (1973);
Frank I. Michelman, The Supreme Court 1968 Term--Foreword: On Protectingthe Poor Through the
Fourteenth Amendment, 83 HARV. L. REv. 7 (1969). See also the articles collected in the Fordham Law
Review Symposium, The Constitution and the Good Society, 69 FORDHAM LAW REVIEW 1569 (2001),
particularly those by William Forbath, Robin West, and Frank Michelman. Similarly, see the
Georgetown Law Journal's symposium on Charles Black, the Constitution, and welfare rights.
Symposium: CharlesL. Black, 92 GEO. L.J. 773 (2004).
Charles Black, the most eloquent defender of the proposition that the Constitution can be read
so as to mandate welfare rights, was careful to couch his argument as relevant only to the
constitutionalism of some quite distant (and more enlightened) future. CHARLES L. BLACK, STRUCTURE
AND RELATIONSHIP (1969). Charles Beard, an historian, took the opposite tack, and viewed the
Constitution, at least as of early twentieth century, as unmovably hostile to the needs and interests of
poor people. CHARLES BEARD, AN ECONOMIC INTERPRETATION OF THE CONSTITUTION OF THE UNITED
STATES (1960).
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[Vol. 17:385
its limits. 60 Rather, I believe, it is simply a logical implication of her relative
neutrality toward Marxism's core claim regarding labor-that labor is that
which is most the worker's own, and most taken away. Thus, it is not, in
MacKinnon's writing, all subordination, and it is certainly not all economic
subordination, that is targeted by her expansive understanding of equality. It is,
rather, sexual subordination. That limits, dramatically, the scope of the antisubordination principle. And, it is by virtue of that limitation--only by virtue of
that limitation-that MacKinnon's anti-subordination principle with respect to
sexual equality has even minimal plausibility as a constitutional principle.
Clearly, no matter how desirable a general anti-subordination understanding of
the equal protection clause might be-if applied to poor people, working class
people, or homeless people-it would be so dramatically counter to the core
property-protective role of the United States Constitution (to say nothing of our
entrepreneurial and capitalist history) that it is virtually unfathomable that even
legislators, much less courts, would ever pursue it, either as a serious mandate
of constitutionalized legislation or as a meaningful constraint upon it.
By contrast, it is not so unthinkable that courts and/or legislators would
seriously regard a principle of equality informed by the target of sexual
subordination, for two reasons. First, sexual subordination is often, if not
always, effectuated by "garden-variety" violence that, although virtually
ignored for two thousand years, is nevertheless easily assimilated to a
Hobbesian model-think of the violence in the unregulated patriarchal
domestic home, 6 1 the violence that accompanies rape,62 and the violence that is
necessary to the sex trade and trafficking in women. Economic subordination,
although it may rest on threats of material deprivation that are potentially
lethal, is not of this nature: the violence wielded by threats of material
deprivation is indirect, subtle, and largely not visible. The contrast is important.
It is certainly not unthinkable, DeShaney notwithstanding, that the state has
some sort of positive, affirmative obligation-moral at least, but plausibly
constitutional as well-to do something proactive or reactive about private
violence, including the private violence that so directly entails sexual
subordination. It is not so clear that economic subordination carries this sort of
plausibility as a target of constitutional critique. The two claims are also
60. Dworkin famously demanded that any fair reading of our current constitutional "law" must be
both reasonably just, or moral, and reasonably true to the facts of our legal history. See DWORKIN, supra
note 30; see also RONALD DWORKIN, LAW'S EMPIRE (1986).
61. There have not, however, been a significant number of successful § 1983 cases brought over the
failure of police to respond to domestic violence calls, largely because of the impact of DeShaney's
dicta. See generally SCHNEIDER, supra note 47, at 44; id. at 92-93 (explaining why DeShaney has made
it difficult if not impossible for these claims to succeed).
62. Apparently the possible unconstitutionality of the state's failure to fully criminalize and
prosecute domestic violence and rape cases was a part of what moved Congress to pass the Violence
Against Women Act of 1994, Pub.L. 103-322, 108 Stat. 1902 (codified as amended in scattered sections
of 42 U.S.C.). See Victoria Nourse, Where Violence, Relationship, and Equality Meet: The Violence
Against Women Act's CivilRights Remedy, 11 WIS. WOMEN'S L.J. 1 (1996).
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entirely severable: sexual subordination could be addressed-is
"addressable"-while leaving economic subordination intact. That limit; in
fact, is both its strength, as a guiding norm of a constitutionally feasible
understanding of equality and, of course, its weakness.
The consequence I draw from all of this is simply that MacKinnon's
appropriation of a Marxist understanding of subordination toward feminist ends
does not take the state as far from basic, Hobbesian functions as does the
Marxist-Hobbesian argument for state intervention to disrupt and reverse
patterns of economic subordination. Affirmatively, a simple, genuine
commitment to deter male-on-female sexual violence would go a long way
toward ending the sexual subordination at the heart of patriarchy, as understood
by Feminism, Modified. That could be accomplished while leaving our class
structure fully intact. The equality entailed by MacKinnon's Feminism,
Modified has a core liberalism-the state must monopolize violence-that
makes it minimally plausible as a body of constitutional doctrine; traditional
Marxism, by contrast, does not.
Feminism
The third component of Feminism, Modified, is political feminism, or
classical feminism, per se. The relation, however, is complicated, and certainly
much more complicated than the conceit of MacKinnon's third book titleFeminism Unmodified-claimed. MacKinnon fused her Hobbesian-Marxist
account of the state's raison d'etre with strands of political feminism, but
certainly not with feminism in toto. Feminism in toto is just not that simple.
Rather, MacKinnon appropriated, magnified, and held fast to one
methodological strand of what (now) might be called the classical feminism of
the 1960s and 70s: to wit, that we should listen to, and credit, women's
narrative accounts of their sexual injuries and violations. 63 In what might best
be described as an affirmative-action-like moment of compensatory justice,
MacKinnon urged that all of us-and not just the victims and their support
groups-do so and that we do so in part to help counter the centuries-long
social, cultural, legal, and religious practice of silencing, disbelieving, or
trivializing those stories. 64 In this she reversed a dominant trend not only in
history, but in contemporary culture and law as well: the consistent, even
63. The opening pages of chapter seven, "Sexuality," of Toward a Feminist Theory of the State
make this clear-MacKinnon describes the range of movements within feminism that she identifies as
feminist and makes clear her indebtedness to them. FEMINIST THEORY OF STATE, supra note 1, at 12728. Even further, though, she makes clear that she views her own project as an attempt to synthesize and
articulate the theoretical structure of those movements-which until then, had not been subjected to
analysis or theoretical synthesis. All of those movements were in some way concerned with the sexual
use and exploitation of women and girls.
64. FEMINISM UNMODIFIED, supra note 13, at 51-52; FEMINIST THEORY OF STATE, supra note 1, at
38-39, 151-52.
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compulsive inclination to flat-out not believe any woman who claimed sexual
victimization, coupled with a near-total faith in claims of women's agency and
authenticity, particularly where those claims directly or indirectly further the
interests of sexually dominant actors.
Because this is the part of Feminism, Modified that has come under
sustained challenge in the last half decade, this time by queer-theoretic,
postmodern, "pro-sex," or "sex-neutral" discourse, let me expand on it just
slightly. In culture as in law, at the time MacKinnon began to write and still
today, all women's, as well as any particular woman's, various "decisions" and
"choices" and "preferences" to engage in virtually all sexual practices that
promote men's or a man's sexual interests-the decision to engage in
prostitution, to participate in the pornography industry, to enter into surrogacy
contracts, to marry, to marry young, to marry a man with multiple wives, to
have sex with one's husband, to go out on a date, to sign a prenuptial
agreement without benefit of counsel, to have or not to have an abortion, to
have a child, to have a fifth child, or to have a tenth child, to have the sexual
intercourse that produces those pregnancies, to put up with violence, abuse, and
harassment from an abusive domestic partner, to go to work in high paying and
high risk jobs, or to not go to work in such jobs-all of these choices are
assumed within liberal discourse, and to a lesser extent within contemporary
conservatism as well, as expressing an authentic and free and liberal self-a
self, that is, whose desires produce preferences that in turn generate choices
that, when fulfilled, increase pleasure, well-being, and, ultimately, value.
Liberalism, liberal individualism, and a liberal theory of value provide the
justification, when any is felt needed, for these practices in which women
65
engage, and which seemingly work against their interest.
65. For a sampling: On prostitution, see Margaret A. Baldwin, Split at the Root: Prostitutionand
Feminist Discourses of Law Reform, 5 YALE J.L. & FEMINISM 47, 95 (1992); Belinda Cooper,
Prostitution:A FeministAnalysis, 11 WOMEN'S RTS. L. REP. 99 (1989); Holly B. Fechner, Three Stories
of Prostitutionin the West: Prostitutes' Groups, Law and Feminist "Truth, " 4 COLUM. J. GENDER & L.
26, 37-38 (1994); Veronica Monet, Sedition, in WHORES AND OTHER FEMINISTS 217 (Jill Nagle ed.,
1997). On pornography, see the F.A.C.T. brief, supra note 14. On surrogacy, see Richard A. Epstein,
Surrogacy: The Case for Full ContractualEnforcement, 81 VA. L. REV. 2305 (1995). On consent and
privacy in justifications of violence within marriage, see Siegel, supra note 48. On rape within marriage
and the history of various defenses of marital rape statutes as violative of women's choice to enter a
marriage, see Jill Elaine Hasday, Contest and Consent: A Legal History of Marital Rape, 88 CALIF. L.
REV. 1373 (2000). On date rape, see Kathryn Abrams, Sex Wars Redux: Agency and Coercion in
Feminist Legal Theory, 95 COLUM. L. REV. 304 (1995). On abortion, see EILEEN L. McDONAGH,
BREAKING THE ABORTION DEADLOCK: FROM CHOICE TO CONSENT (1996) (discussing how the rhetoric
of choice has skewed reproductive rights issues); see also Robin West, Liberalism and Abortion, 87
GEO. L.J. 2117 (1999) (reviewing McDonagh); Robin West, Robin West (concurringin the judgment),
in WHAT ROE V. WADE SHOULD HAVE SAID: THE NATION'S TOP LEGAL EXPERTS REWRITE AMERICA'S
MOST CONTROVERSIAL DECISION 121 (Jack M. Balkin ed., 2004). For a discussion of the use of the
"lack-of-interest defense" in equal employment cases involving women's exclusion from high-paying,
high-risk jobs, see Vicki Schultz, Telling Stories about Women and Work: JudicialInterpretationsof
Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument, 103 HARv.
L. REV. 1749 (1990). On consent to harassment, see Jeannie Sclafani Rhee, Redressingfor Success: The
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It wasn't always thus. In fact, for most of our history, women's
participation in these institutions, these practices, these labor markets, these
religious regimes, particularly when misery-inducing, was justified (again,
when the need was felt to do so, which wasn't often) not by reference to
women's choice or agency-since they were not presumed to have any-but by
reference to women's nature or, even more directly, simply by reference to the
greater imperative of men's need.66 In the old days, women entered marriage or
had children, for example, because women's nature dictates they do so, and if
women seemed to get the short end of the stick, well, sacrifice was just a big
part of that nature. Now our justificatory rhetoric is different. For at least the
last half century, women's choice, agency, freedom, and contractual capacity,
rather than women's nature or appeals to "tradition," have been invoked to
legitimate women's participation in practices and institutions that seemingly
benefit men's interests and not women's. Often times, this shift-from
women's nature to women's choice-puts a palpable strain on the coherence of
those liberal bulwarks. Authenticity, freedom, choice, and agency, after all, are
pretty heroic assumptions, when they lead to conditions or terms that in other
contexts--contexts not involving women, and not involving sex-might well
lead even the most libertarian observer to question the voluntariness of the
choices facilitating those conditions.
For example, look at the still-explicit terms in traditional marriage vows, at
least in fundamentalist and some mainline protestant wedding ceremonies,
which require a wife's life-long obedience to her husband's commands.67
Wouldn't even a hard-boiled libertarian, in other contexts, be skeptical of the
freedom or agency of a purported "choice," where the content of the contract
"chosen" so drastically constrains autonomy in such a large swath of one's
adult life? Aren't we skeptical of contracts that dramatically limit future
options in virtually all other spheres? Another example, still within marriage:
Look at the unstated but quite standard legal terms in marriage contracts as
defined by the secular state-not religious tradition--regarding the husband's
sexual rights within marriage. Marital rape is still under-criminalized in most
states, both on the books and more so in practice. Do young brides know that
they are relinquishing control over access to their physical bodies when they
agree to a marriage proposal? Do they know that they are in effect ending, with
respect to this man, their right to say no to sexual penetration? Shouldn't all of
us--especially libertarians-be skeptical of the free agency involved in a
Liability of Hooters Restaurantfor Customer Harassment of Waitresses, 20 HARV. WOMEN'S L.J. 163
(1997).
66. For good historical accounts of the effect of this view of women's nature on law, see Siegel,
supra note 48, at 2145-47; Hasday, supra note 65.
67. Women promise to "love, honor, and obey;" men promise to "love and honor."
68. See Robin West, Equality Theory, Marital Rape, and the Promise of the Fourteenth
Amendment, 42 FLA. L. REv. 45, 46 (1990); Hasday, supra note 65, at 1375, 1484-85.
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[Vol. 17:385
decision to enter a marriage where this particular term regarding the state's
unwillingness to protect her against sexual violence is neither known nor its
significance appreciated? Is there any other context where the state permits one
adult citizen access to another adult citizen's physical body against the latter's
wishes and without the latter's contemporaneous consent? (No, there's not.) To
take a third example-this time outside of marriage, do prostitutes, when they
decide (often as young teenagers) to enter this career, know of the relative lack
of police protection against the violence that comes with the territory? 69 If they
know and enter the industry anyway, shouldn't that give us reason to suspect
that the choice was coerced? Do participants in pornography understand that
unlike most other entertainment-related industries their "chosen" career. lacks
the state regulation of their work conditions that might protect their physical
health and safety? 70 Do women signing prenuptial agreements without legal
advice appreciate
the vastly superior bargaining power of those who have such
71
advice?
The general point here is simply that, in spite of counter-indicators that in
other contexts often prove dispositive, 72 women's and girls' consent to enter
into these various domestic and sexual institutions, arrangements, contracts,
and industries is for the most part presumed, within liberalism, to be fully
voluntary. Once entered, of course, the coerciveness of these institutions, such
as marriage--constituted in part, perhaps in large part, by the traditional duty to
obey and the traditional legal right of husbands to force sexual intercourse on
69. The literature on this is vast. For an introduction, see Dorchen Leidholdt, Prostitution: A
Violation of Women's Human Rights, 1 CARDOZO WOMEN'S L.J. 133, 138 (1993); Vednita Carter and
Evelina Giobbe, Duet: Prostitution,Racism and Feminist Discourse, 10 HASTINGS WOMEN'S L.J. 37,
52-55 (1999).
70. See David Pritchard, Beyond the Meese Commission Report: Understanding the Variable
Nature of Pornography Regulation, in FOR ADULT USERS ONLY: THE DILEMMA OF VIOLENT
PORNOGRAPHY 163 (Susan Gubar & Joan Hoff eds., 1989).
71. For a full discussion, see Jana Singer, The Privatizationof Family Law, 1992 WiS. L. REV.
1443, 1460-61 (1992).
72. The sexual abuse, child abuse, and violence that often drive teenagers and young women into
prostitution as a profession, and into particular acts of prostitution, would be more than enough to vitiate
a traditional contract on grounds of "duress." The lack of knowledge of material terms, such as the duty
to obey and the terms of the marital rape exemption, would likely be sufficient to void a contract on the
grounds of lack of mutual assent. Contracts to sell oneself into slavery are quintessential examples, at
least in first-year law school contracts courses, of unenforceable contracts; yet, a marriage contract that
contains as a term that a woman has no power or right to refuse sex during the duration of the marriage
has never been held to be such a contract. The radically changed circumstances that follow the birth of a
child, as well as the severity of the breach-of-contract remedy, might well provide the grounds to modify
or altogether void most contractual obligations, but they are only occasionally held sufficient to void
contracts for surrogacy births on behalf of birth mothers. In all of these cases, the degree of
voluntariness, freedom, and choice required for a finding of "mutual assent" to enter a contract is greater
than that routinely exhibited by girls and women entering these "contractual" types of arrangements, but
their contractual elements are not challenged on these grounds. See id.; Hasday, supra note 65; West,
supra note 68; authorities cited, supra note 69 (on prostitution). But see Epstein, supra note 65, at 2307308 (arguing that surrogacy contracts meet traditional criteria for contractual enforcement); Marjorie M.
Schultz, Abortion and Maternal-Fetal Conflict: Broadening Our Concerns, I S. CAL. REV. L. &
WOMEN'S STUD. 79 (1992) (arguing that contract rather than status or family law, offers a better set of
legal principles on which to ground relations among family members).
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wives-is then fully masked from scrutiny and protected against outside
regulation by the initial act of consent.7 3 The future coercion was earlier agreed
to, thus making the "coercion" freely chosen-and hence not coercive after all.
Within such presumed consensuality to participation in coercive institutions,
claims of injury are quite naturally going to be made invisible (because they are
incoherent); or, if somehow visible, they are disbelieved; or, if believed, they
are trivialized. Simply: it couldn't have happened; if it did, she asked for it;
and, if she didn't ask for it, it's just not a big deal anyway.
The strand of classical feminism MacKinnon incorporated into Feminism,
Modified, and the "consciousness-raising" set of methodological practices she
relied upon, effectively reversed these libertarian presumptions. Simply put: it
did happen, she didn't ask for it, and it is a big deal. Rather than putting full
faith and credit in the agency of the woman and the autonomy of her choice,
when she entered a coercive regime, and then turning a deaf ear to the claims of
injury once there, MacKinnon insisted upon casting a skeptical eye on a
woman's "consent" to enter the transaction, and attending carefully to the
injuries sustained within them.74 Believe her, MacKinnon insists, when she
complains that her husband beat her, or that she was assaulted by a pimp or a
john, or that she suffered undue pressure when she promised away her child or
signed a prenuptial agreement, or that she was raped by her date or by an
acquaintance or by a customer or by her boss in a hotel room, or that she was
sexually abused by her stepfather, or her husband, or that the state's attorney
general upon meeting her ordered her to suck his cock, or that she-was forced to
get an abortion, or that she was forced to go through with an unwanted
pregnancy. Believe her, when she says that she was forced to go along and that
she did not want it; believe her when she says that it hurt, that it injured her,
that she was traumatized, that she has trouble reclaiming herself, that she feels
dead inside, and that she feels belittled, humiliated, betrayed.
By doing just this one, simple, communicative thing-believing her, and
not assuming or asserting her complicity, and not trivializing what she is
saying-according to the logic of feminist consciousness-raising, in its political
and pre-legal mode, we bolster a woman's or a girl's awareness of herself as
73. Thus, the general rejoinder to the movement to abolish the marital rape exemption was that
wives agree to sex with their husbands at the time of the marriage contract, and that rape during
marriage is therefore a legal impossibility. See Hasday, supra note 65; West, supra note 68. The classic
authority for the proposition that a man cannot be accused of raping his wife because of her consent at
the time of marriage is Sir Matthew Hale, 1 THE HISTORY OF THE PLEAS OF THE CROwN 629 (1778)
("The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual
matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she
cannot retract"), quoted in Rebecca M. Ryan, The Sex Right: A Legal History of the Marital Rape
Exemption, 20 L. & SOC. INQUIRY 941, 947 n. 24 (1996); see also Lalenya Siegel, Note, The Marital
Rape Exemption: Evolution to Extinction, 43 CLEV. ST. L. REV. 351, 353 n.10 (1995).
74. 1 believe this is an accurate summary of the distinctive political method of knowing MacKinnon
describes in her chapter "Consciousness Raising," in FEMINIST THEORY OF STATE, supra note 1, at 83-
105.
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[Vol. 17:385
injured, victimized, and deserving of compensation. 75 We bolster her sense of
herself as a victim of injustice, rather than her sense of herself as unimportant
and of her injuries and pain as trivial, incoherent, or inevitable. By so doing, in
turn, we might instill in her a sense of entitlement and of right--of oneself as a
subject deserving of respect, rather than as someone deserving only subjugation
to male authority.76 This was the real, political content and, often, the
consequence of the "consciousness-raising" referenced in MacKinnon's early
and most cleanly philosophical essays on the theoretical relations of Marxism
and feminism. 77 It was this feminist practice and the (until MacKinnon's
writing) largely unarticulated theory behind it that MacKinnon highlighted,
identified with feminism, and to wnich her own modification remains entirely
and deeply true.
Legalism
Lastly, and least appreciated and least understood, MacKinnon's feminism
reaffirmed the values and ideals, always, of legalism itself. Although she never
has explicitly stated as much, her steadfast reliance on courts, 78 and her
repeated invocation of classically formalist modes of argument, 79 suggest an
orientation toward law, adjudication, and courts-as distinct from politics,
legislation, and legislators-that might best be put, I think, syllogistically: The
point of law, so goes the first premise, is justice. Justice, in turn,demands
substantive equality. Substantive equality is precisely what women distinctively
lack, and they lack it, in turn, because they lack full possession of their "own"
sexuality. Hence, law-and not just politics-must, and should, address
inequality, and through methods that at least for a couple of centuries, and
maybe longer, have been at law's disposal: trials, the articulation of injury
followed by the testimony of witnesses, jury arguments, jury deliberations,
appellate arguments, and the reasoned elaboration of the law by appellate
judges. Must, in turn, implies can: law can do this work, however far it has
75. FEMINIST THEORY OF STATE, supra note 1, at 84-95.
76. Id.
77. MacKinnon references "consciousness raising" throughout those essays as the central method
of feminist inquiry. See FEMINIST THEORY OF STATE, supra note 1,at 7-8, 83-105, 240-242.
78. MacKinnon has written about her attraction to adjudication as a vehicle for social change, but
rarely with any degree of critical reflection. See Logic of Experience, supra note 10; Reflections on Law,
supra note 42.
79. This can, of course, be accounted for as simply reflecting her desire to win these cases.
Nevertheless, it is noteworthy that MacKinnon's briefs in the major cases in which she has been
involved-unlike the briefs filed by other amici advocacy groups-have used entirely traditional modes
of argument. See Oncale Amici Brief, supra note 3. Compare the so-called "Voices Brief' filed by
NARAL in a number of abortions rights cases, from Webster v. Reproductive Health Services to the
present. Brief of Amici Curiae National Abortion Rights Action League et al., Thornburgh v. American
College of Obstetricians & Gynecologists, 476 U.S. 747 (1986) (Nos. 84-495 & 84-1379), reprintedin 9
WOMEN'S RTs. L. REP. 3 (1986).
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strayed from its defining purpose. Through such legalist means, law can,
should, and must deliver its promise of equality.
Although it has escaped the notice or interest of her most vocal critics (sex
really is monumentally distracting), MacKinnon's near-absolute faith in the
capacity of adjudicative law to serve as the midwife of women's substantive
equality may be the most remarkable feature of her jurisprudence. It is that
amazing faith in law-what I think of as MacKinnon's faith in "law's
nobility"-and not her steadfast skepticism of eroticism that is most evidenced
by what may be her least reviewed piece of scholarship to date: her recent
casebook, Sex Equality. Sex Equality, as casebooks go, is disturbing and
disarming, but it is also both monumental and deeply conventional. It is
disturbing because of the skepticism regarding the ethical and political value of
human sexuality that so clearly underlies it. The book is both conventional and
monumental, however, and, ultimately, as important as it is because of the
legalist faith in law's nobility that it expresses and that clearly motivated it. I
want briefly to examine, as the book does not, the basis of the faith that
underlies it. What are the assumptions of a legal casebook that is, in turn,
grounded in the aspirations and histories embedded in Feminism, Modified?
Where does law fit into the picture?
Let me spell it out jurisprudentially. Look first at the scope of what is being
asked by Feminism, Modified of courts, beginning with doctrine. Clearly the
theory of equality upon which Feminism, Modified rests and which it asks
courts to adopt is foreign to the courts' received equality doctrine, both
constitutionally and statutorily. With the exception of only occasional and
ambiguous judicial utterances (such as in Griggs v. Duke Power Companyl),
there has never been a major judicial pronouncement putting forward a view of
inequality as an unacceptable social status quo fostered by systemic private
practice, rather than by occasional acts stemming from the discriminatory
animus of badly motivated state actors.82 And, there is certainly nothing in the
doctrine even remotely suggesting that the systemic practice of sexual
appropriation is or should be at the heart of-or anywhere near-the Court's
equality project. Rather, the taking of women's sexuality by men is
traditionally deemed as properly a subject only of criminal law, not equality
law,83 and, hence, by definition a wrong against the state, not a wrong against
80. SEX EQUALITY, supra note 7.
81. Griggs v. Duke Power Co., 401 U.S. 424 (1971).
82. And of course, there is much law to the contrary, particularly in the Court's affirmative action
jurisprudence. See, e.g., City of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989).
83. Thus, rape is understood as a crime, not as a part of the social fabric of women's inequality to
men. MacKinnon discusses this throughout Toward a Feminist Theory of the State, but most pointedly
in the chapter on "Rape." FEMINIST THEORY OF THE STATE, supra note 1, at 172-83. For an illuminating
discussion of the strategic decisions of Second Wave Feminists to disentangle discussion of rape law
and rape law reform, from equality concerns, and specifically from the Equal Rights Amendment,
during the 1970s, see Reva B. Siegel, Constitutional Culture, Social Movement Conflict and
ConstitutionalChange: The Case of the De Facto ERA, 94 CALIF. L. REV. (forthcoming October 2006).
Yale Journal of Law and Feminism
[Vol. 17:385
women; and, also by definition, the taking of sex is only an occasional and
aberrational act-not something so ubiquitous as to be a critical component of
our most intimate self-conceptions. To re-envision the taking of sex as being at
the heart of inequality rather than at most an occasional and violent crime is
itself as clear an example of a genuine paradigm shift as one would hope to find
within the history of jurisprudence. But one thing is for sure: courts-relatively
conservative, even when moved by progressive arguments or passions-are not
generally inclined to embrace paradigmatically novel conceptions of their own
binding precedent. Why expect them to embrace this one?
Now look beyond doctrine. The sad fact is that the re-conception of the
idea of equality-first from formal to substantive, and then from asexual to
sexual-is utterly foreign not only to earlier judicial understandings of that
virtue, but also to conceptions of equality that have figured prominently in the
western legal and political tradition broadly defined, from Aristotle 84 through
Locke, Marx, and John Rawls. It begins, after all, with an insight regarding the
cause of inequality of half the world's population-that sex is that which is
taken from women-never before uttered, not just in equality jurisprudence,
but also in the political theory that has informed the equality law of any of the
western traditions. The courts are being asked to change doctrine in a very
fundamental way, on the basis of an insight, a diagnosis, and a utopian vision
with virtually no support-textual or otherwise-in the larger canonical culture
from which courts, in a time of doctrinal crisis, might be inclined to draw. It is
hard to see, on first blush, how this particular hermeneutic project could
conceivably get off the ground.
Lastly, this invitation to courts is not only foreign to doctrine and to the
western philosophical tradition on which doctrine can sometimes draw, but it is
also foreign to the Court's, and courts',jurisprudentialself understanding. 85 In
the jurisprudence assumed, imagined, or argued for in Feminism, Modified, the
courts are being asked to imagine an equal future and to strive for it, rather than
being asked to do what they are accustomed to do-that is, to discern the
traditions of the past and preserve them in a way that accommodates moderate
change in the present. In other words, what is being asked is that the courts
decide cases not on the basis of doctrine, tradition, nor neutral principle, but by
reference to a frankly utopian view of equality, and a subtle, nuanced view of
the inequality that should be the target of judicial action. The Court is being
For a discussion of the decision of nineteenth century feminists to advocate for property rights and
suffrage, rather than women's full control over and possession of their bodies during marriage, see
Hasday, supra note 65, at 1382-85, 1417-33.
84. To drive the point home, MacKinnon devotes a chapter to Aristotelian, formalist notions of
equality in Sex Equality, echoing her very early critical essays on the limits of those Aristotelian
doctrines. SEX EQUALITY, supra note 7, at 2-50 (2001).
85. 1 have elaborated on this argument in Robin West, Groups, Equal Protection and Law, in
ISSUES IN LEGAL SCHOLARSHIP (2002), http://www.bepress.com/ils/iss2/art8 (essay discussing Owen
Fiss's article of the same name).
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asked to reinvent itself,as it reinvents our ideals of law, the workplace, home
life, and, eventually, our sexual practices and self-understandings.
The change sought by Feminism, Modified in our understanding of
equality and what it requires, and in our understanding of courts and what they
can do, is revolutionary and perhaps evolutionary-not piece-meal, not gradual,
and not interstitial. It is just not clear how a court or even an entire generation
of courts could conceivably embrace it, at least assuming their continuing use
of those methods-interstitial, partial, case-by-case, inductive-so widely
viewed as distinctly juridical. My aim here is not to highlight the novelty of this
politics. Rather, what I believe is so methodologically extraordinary about
Feminism, Modified is that, with full awareness of the sheer oddity of the
proposal, it nevertheless argues that it is mostly interpreted, adjudicative lawnot religion, not culture, not politics, and not education, but rather, lawauthored by judges and argued by lawyers (with only a little help from state
legislatures, city councils or--God help us--Congress), with its defining
reliance on reason, its distinctive rational method of analogizing likes to likes,
its constitutive respect for the past, its attention to individual narrative detail,
and its mandate to do justice rather than seek the good: law is to -be the means
by which sexual inequality will be best challenged, articulated, and ultimately
uprooted. The question I want to ask is this: what must one believe-what
could one possibly believe-about law, courts, judges, and adjudication for this
to seem like a plausible request?
Maybe there are other legal romantics, and maybe they have their own
idiosyncratic answer to that question. But in Catharine MacKinnon's case, Sex
Equality provides an answer more cleanly than do any of her essays or earlier
publications. The first thing revealed by even a casual perusal of the book is
what she does not believe: She does not believe or hold out hope that the
courts, or law, or judges will simply turn on a dime, suddenly adopting a
substantive rather than formal account of equality, or recognizing a hidden
sexually oppressive sphere, or employing equality law so as to secure a better
tomorrow. If she did believe that, the book would be a good deal shorter.
Rather, what MacKinnon attempts to prove in Sex Equality, through the logical
presentation of almost two-thousand pages of legal materials, is basically that
the seeds of this revolution are already planted-but that one must dig very,
very deep in our history and in our collective conscience to find them.86 Once
found, those seeds need tending. If tended they will sprout, and eventually
86. The introductory materials on meanings of equality in the western tradition, see SEX EQUALITY,
supra note 7, at 3-43, are followed by the history of equality law in the United States and elsewhere, see
id at 57-564, and then a series of "Applications," id. at 565-1651. Each chapter in the applications
portion of the book begins with a rich description of an aspect of women's lives and then recounts a
series of cases, some empowering and some distinctly disempowering. Taken collectively, however, the
book cannot be described as ambivalent; it holds out the clear promise that law, legal tools of analysis,
and the concept of equality itself are all central to women's quest for substantive equality.
Yale Journal of Law and Feminism
[Vol. 17:385
those sprouts-equality, justice, and the law itself-will grow straight, rather
than along the deformed path they've taken to date in the shadow of women's
dehumanization. The seeds are there. Their discovery-and only their
discovery-is what brings the political goal of Feminism, Modified-sex
equality-within the perimeters of a barely conceivable jurisprudence. Their
discovery, in other words, is what makes Feminism, Modified a legal, rather
than a political or revolutionary, project.
This is, to quote the junior Senator from Illinois, an "audacious hope" 87:
that justice, law, and even existing equality doctrine have been and can be
understood in an entirely different, utterly forgotten, but nevertheless, once
unearthed, a familiar way. I'd like to briefly elaborate the premises of that
hope, which might best be characterized as a set of radical reformulations of
very basic legalist ideals.
First, the hope of Sex Equality rests on a reformulation-not a reinvention-of our equality doctrine and the ideals on which it is based.
Catharine MacKinnon has written a good bit on and devotes the first few
chapters of her casebook to her now familiar critique of Aristotelian formal
equalityS88-a familiar conception that basically demands of judicial decisionmakers, in the name of equality, that they treat likes alike, and unlikes
differently. To treat likes alike in the name of equality, as MacKinnon shows in
this book and as she has shown in at least half-a-dozen earlier publications,
does little for those who aren't alike in the first place due to their pervasive and
defining social subordination-that is, virtually all women to virtually all men.
The ideal of equality as traditionally construed, then, is just beside the point for
those who have been rendered different by virtue of their inequality. In fact, it
can be harmful: formal equality has the perverse effect of ratifying the
acceptability of large swaths of social inequality, while correcting for the
occasional exceptional case. 89 Here's a quick example (for those who can't
recite this argument in their sleep): Buff, aggressive women who qualify and
want to go, can now get into the Virginia Military Institute (VMI), thanks to
formal equality and its constitutional correlates. 90 Such a victory however both
fails to address and even perversely legitimates the degradation of women's
physical self-defense skills and lack of familiarity with firearms, which prevent
the vast majority of women from either qualifying or wanting to qualify to go
to VMI. Surely, though, this difference in self-defense skills and lack of
familiarity with firearms (relative to men) are themselves more significant
87. Barack Obama, The Audacity of Hope, Keynote Address at the Democratic National
Convention (July 28, 2004), available at http://www.americanrhetoric.com/speeches/convention2004/
barackobama2004dnc.htm.
88. Reflections on Sex Equality, supra note 4.
89. MacKinnon spells out this argument in FEMINISM UNMODIFIED, supra note 13, at 32-45, 70-77;
FEMINIST THEORY OF STATE, supra note 1, at 215-34; SEx EQUALITY, supra note 7, at 6-10, 20-24;
Reflections on Sex Equality, supra note 4, at 1296-97.
90. See United States v. Virginia, 518 U.S. 515 (1996).
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contributions to women's subordinate status than the existence of a privately
run male-only military academy, even one that receives public funding.9 1
Similar examples could depressingly easily be multiplied. This is a familiar
critique, and it is against the backdrop of the inadequacies of formal,
Aristotelian equality, that MacKinnon first asserted her alternative, substantive,
anti-subordination model.
That is not, however, the whole story. MacKinnon does not simply urge the
replacement of formal equality with anti-subordinationism. Rather, behind her
critique of formal equality as it has been understood and adjudicated for twothousand years MacKinnon asserts not its abandonment but its reclamation.
Why, after all, should we care about or respond to women's subordination to
men in the first place? Why does Catharine MacKinnon care? Why should her
readers? MacKinnon never explicitly poses the "why should we care question,"
but she does answer it, and the answer is squarely within the aspirational vision
of a fully Aristotelian understanding of what formal equality demands of us, as
moral agents. Women's pervasive subordination to men matters, because
women, like men, are human beings; therefore, women, like men, must be
treated as such. Courts, furthermore, are peculiarly and particularly charged
with the duty of ensuring that likes are treated alike. To do so, courts must
embrace a substantive and anti-subordinationist rather than formal
understanding of the particular demands of equality. Anti-subordination
principles and remedies are not at odds with the moral aspiration of formal
equality. They are, rather, what formal equality demands when that constraint is
applied to the deepest inequalities of our social milieu: the subordination of one
half of the human family by the other.
Let me give a homey analogy: A parent who loves his children equally will
attend to their different needs and provide more resources, if needed, to
improve the well-being of the weakest. No loving parent would simply
formalistically regard his or her equal love of his children, as requiring only
that the parent accord the weaker child privileges and resources that are
comparable to those afforded the stronger, only when the weaker, by hook or by
crook, manages to attain some measure of likeness so as to satisfy the demands
of formality. Courts, of course, are not parents, and they are there to dispense
justice, not unconditional love. But what does justice require? Again, not the
unconditional love of a parent for a child. But, at least by the teachings of the
liberal tradition-Locke to Rawls and Dworkin-it requires dignity and
respect, to all, unconditionally, and in equal measure. And-by the teachings of
91. Women are weaker, smaller, and less skilled in martial arts than men, on average. Exclusion
from VMI certainly perpetuates this problem, but it did not cause it. A number of feminist scholars trace
women's subordinate status to women's relative physical weakness vis-&-vis men, and accordingly see
correcting that imbalance as central to ending the subordination. See, e.g., Michelle J. Anderson,
Reviving Resistance in Rape Law, 1998 U. ILL. L. REv. 953; CATHARINE A. MAcKINNON, Women, SelfPossession andSport, in FEMINIsM UNMODIFIED, supra note 13, at 117-126.
Yale Journal of Law and Feminism
[Vol. 17:385
the western tradition, from Aristotle to the present-it requires as well equal
treatment, or some measure of formal equality.
Here, then, is the heart of MacKinnon's legal formalism: If justice requires
formal equality; and formal equality demands the like treatment of likes; and
women like men are human, then women, like men, must be treated with equal
dignity and respect. What MacKinnon has added to this syllogism is nothing
other than the premise that treating women like men, with equal dignity and
respect, requires an end to sexual terrorism. She hasn't attacked the edifice of
the western tradition. What she has done is to articulate, and pretty powerfully,
exactly what it requires. There is nothing here, then, that courts should not do.
In fact, everything here courts must do. There is no attempt here to transcend
history, occupy an Archimedian point outside it, upend anything, or turn the
ideals of western culture inside out. Rather, by reference to the best
understanding of formal equality, MacKinnon has articulated what that
mandate requires: that women are human beings, and so must be treated as
such.
What is it, though, to treat all as human? Here again, what is distinctive
about Feminism, Modified as revealed in the structure as well as content of Sex
Equality is its striking continuity with-rather than any earth-shattering
challenge to-the western tradition. From the book's structure we learn the
unexceptional claim that work, love, autonomy, family, education, political
participation, and community are the components of the good life; enjoying
them is what it means to be human.92 We learn that sexual subordination,
exploitation, appropriation, and terror are the obstacles to women's enjoyment
of these human rights and capacities. We are presented with the ethically
unassailable claim that the fact that women are so barred is unjust. We
encounter the ethical mandate that women must have access to these lives. We
re-encounter-meet anew-the familiar bromide that the work of law and the
courts is to justice. We are led to conclude that law must be the vehicle of
justice. The courts must ensure the delivery.
The core, albeit unstated, ethical commitments of Sex Equality, of
Feminism, Modified, and of Catharine MacKinnon's life work are that justice
is the ethical mandate that demands all of this, and that, because justice
demands it, this equality is a legal entitlement, not simply a political goal. The
point of the book, of the theory, and of all of this advocacy, is not the political
point that women as an interest group operating within a decent political system
ought to be able to extract some measure of equality from a more or less
representative legislative assembly. The point of all of this work is not that the
community, as a community, would be better off if women's labor were put to
92. Thus, the "applications" of equality law to various aspects of women's lives, and aspects of
women's inequality: family life, sexual subordination, lesbian and gay rights, reproductive control, and
trafficking women. See chapters six through ten in SEx EQUALITY, supra note 7, at 565-1651.
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better use, or if women's health were better protected, or if women's nurturing
capacity were not so exploited, or if women's safety were better ensured. The
point is certainly not that efficiency, or overall utility, or overall well-being, or
social welfare would thereby be increased, or even that all of this-were it to
transpire tomorrow-would simply be a very good thing, all things considered.
All of that may be true, but it is so clearly just not the point. The point is that
justice demands it. Justice demands that this be done. Sex equality is a
mandate; it is an imperative. It is not just a good idea. It is not a policy that
might ensure better governance. It is what justice requires, with as much force
and potency, as much inevitability, as much universality, as much clarity, and
as much power as propels the laws of arithmetic and logic from premises to
inferences. Justice defines the end of law and the point of adjudication-not
politics, legislation, education, or culture. The law must engage this project.
Therefore the courts must.
Ought, though, implies can. If courts ought to do this, through law, then it
must be the case that they can. So the text of Sex Equality turns out to be a
lawyer's argument: This picture of equality is the deep and deeply forgotten
meaning of two thousand years of western adjudication, two hundred years of
American constitutionalism, and fifty-plus years of civil rights law. There are,
no doubt, other possible readings of our law, of our constitution, and of our
history, and Catharine MacKinnon has provided plenty of scathing ones: law as
complicitous, law as mendacious, law as hypocritical, law as legitimation, and
law as mystification. At the end of the day, though, the message of her
casebook and life is not law's mendaciousness, but law's nobility.
Law, MacKinnon clearly believes, can do this audaciously hopeful thing
that justice requires. Readers-judges and lawyers-must and can provide the
ethical ballast. But the legal materials-the materials, that is, for a highly
ethical reading of real equality, and sex equality, as at the heart of the impulse
for justice-are there. They may be hidden, and they are not self-actualizing;
they do not realize themselves. But they are there. Underneath the gauze of a
dreary and familiar legal history that readily prompts despair-the legitimation,
the mystification, the reification, the hypocrisy, the complicity, the mendacity,
the mind-boggling stupidity, and the willful illogic, in which courts have
engaged, all toward the end of securing women's inequality in cementMacKinnon has found in law, in adjudication, in courts, and in legal process an
ethical impulse. She has enlarged upon it, insisted upon it, used it, magnified it,
and made it grow, in theory and in practice, in the world of ideas and in our
lives.
There are, of course, reasons to doubt all of this. Let me just name two.
First, it is not so clear that the legal materials of the Western tradition, of our
two hundred years of constitutional doctrine, or of the last fifty years of civil
rights law do in fact hold out the hope of sex equality. Neither is it clear that the
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legal process could pursue it even if it were so inclined, or that judges as a
group, even assuming their good will, are professionally or morally constituted
so as to embrace this end. The false hope that the law, judges, and the judicial
process must, can, and will pursue sex equality could be costly: It could well
distract us from what might be the better wager, which is that we can infuse our
politics, rather than our adjudicated law, with the sense of ethical purpose and
the vision of equality that so clearly motivate this legalist work. Politics, surely,
ought to be aimed toward achieving equal dignity and respect for law, and the
tools of politics may be better, even far better, situated to interpret this aim as
requiring the end of unjust subordination. Even if justice requiressex equality,
in other words, it is not so clear that it is legal justice, rather than political
justice, that does so; perhaps we would lose none of the ethical imperativism,
or the moral urgency, of this large argument by casting it as political rather than
grist for the litigation mill.
On the other hand, it is truly inspiring---even cleansing-to see such a
strikingly romantic and hopeful depiction of law's potential being penned by
one of law's deepest critics. Sex Equality begins with Aristotle's conception of
formal equality-the like treatment of likes. The last chapters of the book deal
with the most vividly brutal depictions of women's physical and sexual
subordination to men: trafficking in women, prostitution, and pornography.
These chapters also, however, carry the most unequivocal argument that law
must, and can-equipped as it must be with a genuine and substantive
commitment to women's deserved and lived equality-bring an end to the
violence that underwrites the subordination. One will not find anywhere as
analytically powerful, as historically astute, as passionately critical, yet as
romantic a depiction of law's capacity for furthering justice. MacKinnon
conceives of law as a scythe with which to clear the underbrush-the poisoned
fruit--of our large culture's perverse, destructive, and two-thousand-year-long
societal commitment to the domination of women. The long doctrinal argument
that is the content of Sex Equality charts the hermeneutic path-the Path of Our
Law-thus cleared.
II. FEMINISM, MODIFIED AND ITS CRITICS
Let me summarize this summary. MacKinnon added to her signature
account of the "point" of patriarchy and its staying power to central
commitments drawn from Liberalism, Marxism, classical Feminism, and
Legalism. The result of her theoretical labors is unmistakably a version of
feminism, but it is one that is profoundly modified: modified by its fruitful
embrace of some of the greatest products of the Western intellectual and
political traditions loosely known as the "Enlightenment." It is the synthesis of
these classical traditions that gives this theory both its radical ambition and its
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very deep conservatism; both its remarkable capacity to spark awareness, and
ultimately, I believe, its lasting power.
Did Feminism, Modified however, at least as I have described it above,
change the plot within feminist theorizing? Let me just reiterate: In the legal
world inside law but outside feminist theory, as noted above, it has been
MacKinnon's reconstruction of equality law and, at least until recently, her
construction of sexual harassment law that has most clearly resonated. The
arguments that both constitutional and statutory guarantees of equality must be
understood to reference substantive rather than formal equality and that
equality law must target subordination rather than discrimination strike many
lawyers as sound for virtually all subordinated groups, not only women. 93 Her
construction of sexual harassment law within the legal doctrine and theory of
equal employment law has largely worked: Although still riddled with
theoretical gaps and doctrinal complexities, the law has provided an
employment relations structure that is not unduly difficult for compliant
employers to implement or unduly awkward for lawyers to litigate when
implementation is found wanting.94
This law has changed not just the contours of civil rights law; it has
changed the workforce as well. The law works, so there's less sexual
harassment than there had been previously. As important, it has changed
women's sense of entitlement, or consciousness, as they say. At least much of
the time, the pit-of-the-stomach feeling that "this is the way the world works,"
when harassed at work or school, has given way to: "I don't have to put up with
this bullshit anymore." 95 Both of these contributions to law-a different
understanding of equality and a constructed cause of action to improve the
quality of life-are substantial. Both have moved legal mountains.
Outside law, it has been MacKinnon's specific claim regarding sexuality,
96
and not Feminism, Modified that has attracted the greatest critical response.
Viewed most sympathetically, and perhaps in a sense minimally, MacKinnon's
quite plausible argument regarding the teleological "point" of patriarchy-that
the ubiquitous controls of women's work, reproduction, children, and property,
across cultures and across time, are aimed at the appropriation of female
sexuality-has introduced a healthy dollop of political skepticism, not only to
all apolitical conceptions of sexuality-including both liberatory "pro-sex"
93. For a particularly clear and general statement of the anti-subordination theory of equality and its
general applicability beyond the sphere of gender, see Colker, supranote 23, at 1007-16.
94. For a good general account of the success of sexual harassment law and a defense of its basic
coherence, see Meredith Render, Misogyny, Androgyny, and Sexual Harassment:Sex Discriminationin
a Gender-Deconstructed World, 29 HARv. J.L.& GENDER (forthcoming Fall 2005). See generally
DIRECTIONS, supra note 15, especially Reva Siegel, Introduction:A Short History of Sexual Harassment
and Catharine A. MacKinnon, Afterword in that volume.
95. Render's piece gives the clearest sense of this shift. See Render, supra note 94.
96. See, e.g., PLEASURE AND DANGER (Carole Vance ed., 1992). This is in addition to the
authorities cited, supra notes 14-15, many of which were prompted by the MacKinnon-Dworkin antipornography ordinances.
Yale Journal of Law and Feminism
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conceptions and conservative "anti-sex" moralistic accounts-but also to a sexdrenched popular culture, our sexual self-perceptions, our sexual practices, and
the content of our sexual desires. The grounds for that skepticism, she insisted
again and again, should be distinctively politicalnot moral.9 7 She urged us to
view our sexual perceptions and practices neither as hedonistic, individual acts
of self-expression, nor as (take your pick here) animalistic, innocent,
sophisticated, mutual, liberatory, or transgressive acts of pleasure, nor as
simply an instrumental means of marital reproduction or a benign mechanism
for organizing family and social life, nor as the physical embodiment of an
idealized (or religious) conception of marital or companionate affection, nor as
potentially decadent impulses needing domestication through marriage and
monogamy, but rather as sites of pain, injury, and violence (not pleasure) and
of submission to and expression of authority, exploitation, and alienation (not
mutual affection). 98
Most important, she urged that sexuality-the field of sexual practices
broadly defined-is a site of the social and political construction of women's
subordination to men, rather than a set of practices expressive of an inalterable
human essence. Now, perhaps needless to say, that dollop of skepticism
regarding sexuality, sexual desire, and eroticism has not been uniformly
appreciated, and the invitation to share it has not been widely accepted. But it
has certainly been heard. It has among much else produced a torrent of
criticism from men and women across all conceivable left-right, gay-straight,
conservative-liberal, democratic-republican, socialist-libertarian political
spectra, much of it seemingly grounded in nothing more than a (sometimes
articulate, sometimes not) fear of an impending loss of sexual power.
On the other hand, the same invitation-the invitation, that is, to view
skeptically and politically the entire sphere of sexual relations between and
among men and women--did plant a seed that took root and produced a tree
with protective shading; the shade of that tree has been felt globally.99 Some
women owe their lives to that tree, and some of those women know it.100 Many
more women here and elsewhere owe their growing sense of self-ownership,
97. See most notably her piece on pornography: Catharine MacKinnon, Not a MoralIssue, 2 YALE
L. & POL'Y REV. 321 (1984). For a critical review suggesting the distinction is not so clear, see West,
Feminist-ConservativeAlliance, supra note 14.
98. See generally FEMINISM UNMODIFIED, supra note 13, at 46-62, 81-102; FEMINIST THEORY OF
STATE, supra note 1, at 126-54, 171-183.
99. See, e.g., COSSMAN ET AL., supra note 3; ORIT KAMIR, FEMINISM, RIGHTS, AND LAW IN ISRAEL
(2002); DANY LACOMBE, BLUE POLITICS: PORNOGRAPHY AND THE LAW IN THE AGE OF FEMINISM
(1994); ABIGAIL C. SAGUY, WHAT IS SEXUAL HARASSMENT?: FROM CAPITOL HILL TO THE SORBONNE
(2003); Susanne Baer, Pornographyand Sexual Harassment in the EU, in SEXUAL POLITICS AND THE
EUROPEAN UNION 51 (R. Amy Elman ed., 1996); Orit Kamir, Dignity, Respect and Equality in Israel's
Sexual HarassmentLaw, in DIRECTIONS, supra note 15, at 561.
100. Most famously, and most poignantly, perhaps, Linda Marchiano, who under the name Linda
Lovelace was coerced into prostitution and various pornographic performances. See The Minneapolis
Hearings, in IN HARM'S WAY, supra note 3, at 39, 60-63 (transcription of Marchiano's testimony in
favor of the MacKinnon-drafted Minneapolis ordinance).
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their capacity for resistance to and defense against various forms of sexual
terrorism, their awareness of themselves when violated as victims of injustice
rather than as cultural or mental or emotional deformities, and their
membership in a community of support rather than one of oppression or torture
to the ideas, the social tumult, the new-found relationships, the shelters, the
Women's Studies programs, the legal reforms, the changes in consciousness,
and the newly negotiated terms of planetary cohabitation that have followed on
the heels of Catharine MacKinnon's simple invitation. That invitation-that
change in our cultural and social plot line-propelled a movement, and that
movement changed a history. The single idea that sex-meaning sexual
activity, behavior, and desire-is a site of politics did it.
But again, what of feminist theory, or more largely, of political theory?
Any new plot line there? Within feminist theory MacKinnon clearly changed
the plot in one limited sense: by claiming to speak for and of feminism--of a
"feminism unmodified"-MacKinnon put in question the point as well as the
intellectual foundations of a centuries-long movement, which had not
theretofore been particularly rigorous about self- or theoretical reflection. In
this limited sense her plot-changing ambitions have been realized; legal
feminism at least has become insistently theoretical.10 t But whether or how
Feminism, Modified itself has changed the plot, rather than simply making us
more aware of the need to have a plot, is harder to say. Over the last thirty
years, it is surely true that various parts of MacKinnon's Feminism, Modified
have been celebrated by critical, radical, and liberal legal theorists and political
activists alike"°2 -particularly the reconstruction of equality as properly
targeting harms of subordination rather than harms of discrimination.
Nevertheless, the entirety of the theoretical reconstruction at its core-the
Marxist account of subordination, the liberal Hobbesian reliance on the state,
the feminist insistence on hearing and believing reports and stories of female
and particularly sexual victimization, and the reliance on and even celebration
of the aspirations and tools of legalism-has not so self-evidently taken hold.
My point is not that feminists have not critically or sympathetically
engaged Feminism, Modified. Indeed, parts of Feminism, Modified have been
meticulously-at times repetitively--criticized by scores (perhaps hundreds?)
of feminist lawyers, constitutionalists, and legal theorists; feminist artists,
writers, poets, and literary critics; feminist literary and cultural studies scholars;
101. Some of this move toward theory has been a direct result of MacKinnon's modifications, and
some has been a result of different and independent causes, such as the rise of postmodemism in the
non-legal academy. Janet Halley's scholarship on MacKinnon is obviously both and is also influenced
by Queer Theory. See Ian Halley, Queer Theory by Men, 11 DUKE J. GENDER L. & POL'Y 7 (2004);
Halley, supra note 15. I attempted a schematization of feminist jurisprudence as it had developed by the
late 1980s in Robin West, Jurisprudence& Gender, 55 U.CHI. L. REv. 1 (1988).
102. Mari J. Matsuda, Love, Change, 17 YALE J.L. & FEMINISM 185 (2005); Owen M. Fiss, What is
Feminism?, 26 ARIz. ST. L.J. 413 (1994); Students, Open Letter to CatharineMacKinnon, 4 YALE J.L.
& FEMINISM 177 (1991); Sunstein, supranote 25.
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[Vol. 17:385
feminist legal and political historians; and, not least, feminist political activists
of all stripes. 0 3 That critical intra-feminist scholarship, however, has been
constrained by (or just characterized by) two broad features.
First, the vast bulk of it, including the most recent postmodern wave that I
take up in detail below, has been responsive to particular legal events that are
themselves arguably products of the political and legal successes of
MacKinnon's transformations of feminist activism. The changes in rape law,
for example, all of which would tend to broaden the criminalization of sex, and
which are often only ambiguously endorsed by MacKinnon in her various
discussions of rape law, but which are seemingly implied by her theoretical
reconstruction of feminism, prompted a good number of critiques of Feminism,
Modified. Feminist rape reformers were concerned that their own goals not be
undercut by an over-broad indictment of heterosexuality and heterosexual
penetration. 104 It is hard, under even ideal communicative circumstances, to
convince a resistant public that there is more rape than they perceive and more
than is prosecuted, and that the "more" that there "is" ought to be perceived and
prosecuted as rape. Obviously, it is even harder to do so if the suggestion is
mistaken for, and can be lumped with, a far broader claim that even ordinary
sex is likewise coercive. Something must have gone amiss, reformers quite
sensibly suggested, in the Feminism, Modified that prompted such an unhelpful
claim. Likewise, formulation of anti-pornography ordinances responsive to the
analysis of pornography spearheaded by MacKinnon and Andrea Dworkin
prompted challenges to Feminism, Modified from liberal feminists concerned
about the censorial impact of state regulation of sexual speech. 1° ' And
similarly, MacKinnon's challenge to the privacy rationale of Roe v Wade
prompted feminists committed to that value to criticize, again, the theoretical
structure that would put into question, on women's behalf, the values at the
heart of that decision.10 6 In all three cases, critical responses to these proposed
103. The breadth and depth of the critical response to MacKinnon's challenge to First Amendment
doctrine is perhaps best illustrated by the signatory list of the F.A.C.T. brief, which includes a number of
feminist poets and authors, as well as many law professors. Signatories include: Rita Mae Brown,
Cheryl L. Clarke, Mary C. Dunlap, Thomas I. Emerson, Susan Estrich, Ann E. Freedman, Betty Friedan,
David Kairys, Jonathon N. Katz, Kate Millet, Judith Resnik, Adrienne Rich, Sue Deller Ross, Gayle S.
Rubin, Elizabeth Schneider, Alix Kates Shulman, Barbara Smith, Wendy Webster Williams. F.A.C.T.
Brief, supra note 14.
104. See, for example, Susan Estrich's discussion of the problem in REAL RAPE (1987). Estrich had
argued for an expansion of rape law so as to unambiguously include cases in which a woman said no,
but the perpetrator persisted-a "no means no" standard. To make the case, she had to both distinguish
and argue against the standard that she interpreted MacKinnon as advocating-in which yes would
occasionally (often? always?) also mean no. See also Susan Estrich, Rape, 95 YALE L.J. 1087, 1093
(1986).
105. See F.A.C.T. Brief, supra note 14; see also supra note 13.
106. See, e.g., April L. Cherry, Roe's Legacy: The Non-consensualMedical Treatment of Pregnant
Women and Implications for Female Citizenship, 6 U. PA. J. CONST. L. 723 (2004); Erin Daly,
ReconsideringAbortion Law: Liberty, Equality, and the New Rhetoric of Planned Parenthood v. Casey,
45 AM. U. L. REv. 77 (1995); Ruth Gavison, Feminism and the Public/PrivateDistinction, 45 STAN. L.
REv. 1 (1992); Frances Olsen, The Supreme Court 1988 Term: UnravelingCompromise, 103 HARV. L.
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or enacted changes in our law have brought with them renewed feminist
examination of the assumptions-often ill- or non- or anti-liberal--of the
movement that prompted the questioned reform.
Second, and until the postmodem critique, virtually all of this intrafeminist criticism of Feminism, Modified, regardless of what legal event or
proposed legal reform triggered it as a theoretical matter, has been theoretically
unidimensional. Again-virtually all of the ante-postmodem criticism that I can
find has objected to MacKinnon's Feminism, Modified for its apparent
illiberality-and therefore, implicitly, the debt it owes to Marxism.10 7 Rape law
scholars and reformers objected to MacKinnon's reformulated feminism, not
only for the strategic reason that MacKinnon's willful blurring of the line that
we experience "in life" between rape and sex would make more difficult their
attempt to change the law's perception of that line, but also, fundamentally, for
MacKinnon's suggestion that consensual heterosexuality bore an important
family resemblance to that which either is or ought be perceived as rape.1os
Liberal feminists from a number of doctrinal fields (both inside and outside
law) objected to the critique of pornography, 10 9 not only because of strategic
fears that resulting laws might erroneously target Our Bodies Our Selves" 0 in
addition to Debbie Does Dallas,"' but also for the fundamental ideological
reason that the critique targeted the consumption and production choices of
adult, competent women-thus violating liberal maxims of individual free
choice.ll 2 Pro-choice activists and theorists worried not only that MacKinnon's
critique of Roe would lead to a reversal of the decision, but also that her attack
on privacy challenged a liberal value as vital to women's sense of well-being
113
and their potential to create their own path to the good life as to men's.
Taken collectively, these criticisms, all of which are grounded in traditionally
liberal and libertarian political world views, have now evolved into a fully
developed liberal feminist critique of the Marxist underpinnings of
REV. 105 (1989); Elizabeth A. Reilly, The Rhetoric of Disrespect: Uncovering the Faulty Premises
Infecting Reproductive Rights, 5 AM. U. J. GENDER & LAW 147 (1996).
107. See Linda C. McClain, Toleration, Autonomy, and Governmental Promotion of Good Lives:
Beyond "Empty" Toleration to Toleration as Respect, 59 OHIO ST. L.J. 19 (1998); Linda C. McClain,
Inviolabilityand Privacy: The Castle, the Sanctuary, and the Body, 7 YALE J.L. & HUMAN. 195 (1995);
Linda C McClain, "Atomistic Man" Revisited: Liberalism, Connection, andFeminist Jurisprudence,65
S. CALIF. L. REV. 1171 (1992); authorities cited, supranote 15.
108. Lynne Henderson called this the "bad sex" problem. See Lynne Henderson, Getting to Know:
Honoring Women in Law and in Fact,2 TEX. J. WOMEN & L. 41, 58-60 (1993).
109. See authorities cited, supranotes 14-15.
110. BOSTON WOMEN'S HEALTH BOOK COLLECTIVE, OUR BODIES, OUR SELVES: A BOOK BY AND
FOR WOMEN (1976).
111. DEBBIE DOES DALLAS (Explicit Studios 1978).
112. Anti-anti-porn material is full of this. For examples of this critique, see PAT CALIFIA,
SAPPHISTRY: THE BOOK OF LESBIAN SEXUALITY (1981); KENSINGTON LADIES' EROTICA SOCIETY,
LADIES' OwN EROTICA (1984); BURSTYN, supra note 14; PLEASURE AND DANGER, supra note 96.
113. See, e.g., James E. Fleming, Securing Deliberative Autonomy, 48 STAN. L. REV. 1 (1995);
Laura W. Stein, Living with the Risk of Backfire: A Response to the Feminist Critiquesof Privacy and
Equality, 77 MINN. L. REV. 1153 (1993).
Yale Journal of Law and Feminism
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MacKinnon's feminism--and particularly its reliance on a socially constructed,
rather than autonomous, confident, and self-affirming female essence: a
socially constructed consciousness of self-denial and often times selfdegradation, with self-denigrating preferences and, more tellingly, selfdenigrating desires, often damaging to the interests and even safety of their
holders. That image of the politically' polluted, degraded self is diametrically
opposed to the self-aware, competent, able, ingenious self whose desires match
her interest, and whose preferences and choices match her desire-in short, the
image of the self central to liberalism and, hence, to liberal feminism. That is a
profound rift. It is also, however, a fairly limited bill of particulars, and one that
now gives rise to predictable and at times clichdd dialogue. The anti-anti-porn
movement, Roe's feminist defenders, and liberal feminist rape reformers all put
MacKinnon's anti-liberalism under attack and all found it wanting. They did
not, however, engage the larger jurisprudential picture.
In the last half decade, a quite different line of critique has emerged, that
fits part, but only part, of the pattern noted above. As with earlier liberal
feminist complaints, the latest wave of intra-feminist critique of MacKinnon's
theoretical contribution to feminism has also been brought on by anxiety over
the reach and theoretical grounding of a legal reform: sexual harassment law, 14
the most successful of the various legal reforms produced by MacKinnon's
feminist transformations. In some regards the conclusions of this new line of
critique, and the contours of the emerging debate it has engendered track the
liberal-radical divide within feminism 1 5 (and more particularly echo the debate
over pornography). Nevertheless, the roots of this postmodern critique are
decidedly not liberalism redux, nor is its impact.
Spearheaded by Professors Janet Halley of Harvard Law School and Vicki
Schultz of Yale, a number of awkwardly self-styled "postmodern" feminist
critics are taking MacKinnon's theoretical feminism to task, not so much for its
illiberality, but rather for its purportedly over-broad condemnation of
heterosexuality and for its purportedly overly solicitous and credulous stance
toward claims of female victimization. 116 The complaint from the new wave of
critics, in other words, is not so much that Feminism, Modified fails to
accommodate the liberal individual self or that it fails to honor the autonomy,
choice, and sufficiency of those selves, but rather, that Feminism, Modified
114. Thus, the two major pieces I discuss in the text, by Halley and Schultz, both take as their
starting point existing sexual harassment law and then go on to make deeper, or broader, critical
arguments. See Halley, supra note 15; Schultz, supra note 15.
115. Halley has also noted the parallel, indicating that the liberal-feminist and "pro-sex" critiques
of the antipornography movement were precursors of contemporary queer theoretic critiques. See
Halley, supra note 101.
116. Halley, supra note15, at 182. For a critical point-by-point response to Halley's argument, see
Marc S. Spindelman, Sex Equality Panic, 13 COLUM. J. GENDER & L. 1 (2004); Schultz, supra note 15;
Vicki Schultz, ReconceptualizingSexual Harassment, 107 YALE L.J. 1683 (1998).
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17
over-accommodates the injured self and its claims of sexual victimization.'
More specifically, the worry is not (only) the liberal concern, voiced
throughout the two decades-long pornography debate, that women's stated
desires, preferences, and choices for sexual expression might be undercut by a
radical critique of those choices, but the worry is, more broadly, that sexuality
per se should not be understood as (primarily) a site of political exploitation
and violence. It should be understood, rather, according to the new critics, as
(primarily) a site of liberation and transgression.
Consequently, not only
should women's sexual choices be embraced-thus the overlap with
liberalism-but sex should be more or less valorized,
and women's claims of
9
"
skeptically.
viewed
be
should
sexual victimization
The legal target of the critique, as noted, is sexual harassment law. 120 Like
her earlier liberal critics, however, the new "postmodern" critics have two
targets, or two agendas; beneath the primary critique of sexual harassment law
itself lies a deeper, secondary critique of Feminism, Modified, or at least of a
substantial part of it. In this Part, I want to first spell out the argument against
both sexual harassment law and Feminism, Modified, which is complex and
has at least two separate strands. I will then criticize it. In the next Part, I will
partially endorse a part of the postmodern critics' case and then put forward my
own suggested re-modification of Feminism, Modified, which accommodates
the parts of the postmodern critique that I find compelling.
Postmodern, Queer-Theoretic,and Pro-Sex CritiquesofSex HarassmentLaw
The postmodem critique of sexual harassment law and the law's feminist
roots has two distinct strands, often confused. The first argument or theme I'll
call the "skeptical" claim: The critics urge that we should take a more skeptical
stance toward sexual harassment plaintiffs' claims of sexual victimization than
sexual harassment law, Feminism, Modified, or feminism more generally have
fostered or encouraged. The second I'll call the "libertine" claim: We should
celebrate, not denigrate, sexual urges, including urges for sexual domination
and sexual submission, but sexual harassment law either explicitly or implicitly
counsels the contrary. In this Section, I will develop each of these arguments
separately and then offer some critical observations about each.
117. Halley, supra note 15, at 193-97; Janet Halley, The Politics of Injury: A Review of Robin
West's CaringforJustice, 1 UNBOUND 65 (2005), http://www.law.harvard.edu/students/orgs/unbound/
index.php; Halley, supra note 101.
118. Halley, supra note 15, at 194-98; Halley, supra note 101, at 50-53. The point of departure for
the valorization of sexual pleasure in queer theoretic work is likely Michel Foucault, and his claim in the
Introduction to the History of Sexuality that "[t]he rallying point for the counterattack against the
deployment of sexuality ought not to be sex-desire, but bodies and pleasures." MICHEL FOUCAULT,
INTRODUCTION TO THE HISTORY OF SEXUALITY 157 (1980).
119. Halley, supra note 15, at 196-97.
120. See infra notes 155 and 187.
428
Yale Journal of Law and Feminism
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First, the skeptical strand. Both Janet Halley and Vicki Schultz argue
(albeit in very different ways) that the actual sexual harassment working
women complain of in lawsuits is often, or is at least sometimes, either
nonexistent or trivial. 12 Such legal complaints are often, or are at least
sometimes, psychologically grounded not in real sexual injury at all, but rather
in an untoward or unjustified aversion to sexuality itself, wrapped up as
justified resistance to assaultive behavior. Thus, Halley
and Schultz conclude,
122
we should all be highly skeptical of these complaints.
Now-why? Why might workers be susceptible to this aversion, and how,
exactly, might such aversion lead to unjustified lawsuits? Halley and Schultz's
arguments are very different. In Halley's articles on this issue, she details and
then heavily relies on one hypothetical scenario to sustain the burden of this
23
argument (though she does not identify an actual case that fits this pattern).
Consider, Halley suggests, a possible complaint of what is now called "samesex" sexual harassment-harassment of an employee by an employer or coemployee of the same sex.124 Such a suit, she argues, might simply be the end
result of a "homophobic panic.' 25 If the (hypothetical) complainant and
(hypothetical) perpetrator are the same gender, and if the purported victim
herself or himself harbors both unresolved and unacknowledged same-sex
desires and homophobia-thereby suffering from hornophobic self-loathingand if such a (hypothetical) complainant is then faced with either a real or
perceived sexual advance from a (hypothetical) perpetrator, such a complainant
might feel a need to re-assert his own heterosexuality publicly and privatelyto himself and others-by filing a lawsuit. In such a suit, the secretly desired
overture, whether real or imagined, would be re-packaged as actionable
aggression. 126 Given the plausibility, or at least the possibility, of this
hypothetical scenario, "sexual harassment law"--intended as a body of law that
targets sexual aggressors at work-has the potential to become, in Halley's
brilliant short-hand, "sexuality harassment"-with the law doing the harassing
127
and sexual minorities as the targets.
Although the plausibility of this hypothetical relies on a fairly wellrecognized psychological mechanism (homophobic self-loathing), itself
dependent on a very well-recognized animus (homophobia), a similar, but not
so well-recognized dynamic, might be at work in opposite-sex cases as well. A
heterosexual female victim's perception of herself as injured by sexual
121. Halley raises this possibility primarily through a re-imagining of the Oncale case as being
about homophobia, and hence about "sexuality harassment," rather than as being about assaultive sexual
behavior. Halley, supra note 15, at 192; Schultz, supra note 15, at 2105-19.
122. Halley, supra note 15, at 193-98.
123. Id.at 192-93.
124. Id.at 192-96.
125. Id.at 192-93.
126. Id.at 192.
127. Halley, supra note 15, at 196-97.
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advances by a heterosexual male on the job, and the resulting lawsuit, might be
the result of a loosely defined, culturally induced "sex panic," triggered not by
the self-loathing of homophobic potential plaintiffs, but by the sex-averse
reactions of would-be plaintiffs to relatively harmless sexual overtures of either
same-sex or opposite-sex co-workers. 28 Here, as well, even in a run-of-themill, opposite-sex sexual harassment case, the sex aversion of the potential
plaintiff-and not the overture of the defendant (or the defendant's
employee)-is the real harm. Sexual harassment laws and policies seemingly
assume the contrary, thus perpetuating rather than addressing that harm. In fact,
they do more than perpetuate it: they facilitate and amplify it, give it voice,
credibility and legal power. 29 Sexual harassment law, not sexual harassment, is
what must be reined in-disciplined. Janet Halley aims to do so.
The argument for skepticism developed in Vicki Schultz's most recent
piece 130 is quite different, as is her recommended reform. Broadly, Schultz
argues that policies adopted by employers over the last couple of decades in
response to sexual harassment law over-police workplace sex, unnecessarily
stifle workers' expression, dull pleasures, thwart romance, and, in general, dehumanize and "sanitize" the workplace.131 To that degree, her argument echoes
Halley's. She goes on, though, to argue that, by virtue of doing so, both
employers and the law to which they respond have missed what ought to be the
real target of anti-discrimination law and of sexual harassment law: undue sex
segregation of workplaces. 132 Where women are vastly outnumbered by men,
the sexual harassment of women by men may indeed be a discriminatory
practice, as such harassment undermines women's confidence and competency
and drives them out of the workforce, further depleting the very presence of
women, which is the only real safeguard against the harassment of the
1 33
remaining women.
Where, however, women are present in equal or greater numbers than
men-where the workplace is well integrated at all levels-the behavior we
have come to call "sexual harassment" rarely occurs, and, when it does, Schultz
argues, its harms are trivial. 34 Where a workforce is balanced, therefore, we
ought to be highly skeptical of claims that sexual interactions are "harassing,"
and therefore harmful, to anyone. 135 Gender integration, not de-sexualization,
of the workplace is and ought to be the goal of sexual harassment law, as it
ought to be the goal of sex discrimination law quite generally. Correlatively,
128.
129.
130.
131.
132.
133.
134.
135.
Id. at 196-97; Schultz, supra note 15, at 2167-71.
Halley, supra note 15, at 195-98.
Schultz, supra note 15,
Id. at2064.
Id. at 2070-71.
Id. at2140-41.
Id. at2143-44.
Schultz, supra note 15, at 2168-69.
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gender segregation, not sex itself, is the evil at which the law should be
136
directed.
Consequently, Schultz recommends a sort of sliding scale of evidentiary
and substantive rules to replace our current, unidirectional approach to sexual
harassment law. 137 The greater the numbers of women in the workplace, she
argues, the more employer-friendly the rules governing sexual harassment
ought to be. 13 Where a workforce is substantially integrated, we ought to
regard claims of harassment very skeptically; sex, after all, is not the evilgender segregation is. Where a workforce is integrated, it is just not likely
either that the harassment occurred, or, if it did occur, that it was injurious. Our
rules ought to reflect this reality: Where a workforce is integrated, a sexual
harassment complainant ought to be held to a much higher standard of proof
than where it is not. 39 In fact, however, and as Schultz amply shows, both the
law and employers have gone in the opposite direction. 140 At the well-occupied
far extreme, and regardless of the integration or segregation of their
employment site, employers, encouraged by sexual harassment law itself, have
embraced with gusto policies that seemingly aim to eliminate sexuality from
the workplace altogether. The all-too-predictable result is over-regulation 141and over-sterilization--of the workplace. The result is a misdirection of
precious legal resources. Because of sexual harassment law, not gender
segregation (the true target of sex discrimination law), but rather sex has been
driven out of our work sites.
None of this over-regulation, Schultz argues, is beneficial to anyone. In
integrated environments-workplaces where women are present in roughly the
same numbers as men-the injuries complained of even in successful sexual
harassment cases are often trivial. Courts are holding employers liable for their
employees' sexual horseplay, jokes, and banter-behavior that is not only not
harmful, but that helps enliven and lighten an otherwise dreary and inhumane
work environment. 142 But more importantly, she argues, the policies employers
have embraced in response to these laws go well beyond the legal requirements.
Judging by their employment handbooks and the personnel policies those
handbooks require, she argues, employers now typically forbid even welcome
affairs between co-workers and forbid all sexual ribbing and innuendo, not just
those affairs and that ribbing which are perceived to be (fairly or not) injurious
and unwelcome. Generally, employers and their policies, aided and abetted by
the law, have created a "sterile workplace" that aims relentlessly for efficiency,
136.
137.
138.
139.
140.
141.
142.
Id. at2172-73.
Id. at2174-75.
Id.
Id. at 2176.
Schultz, supra note 15, at 2184.
Id.
Id. at 2186-87.
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with no room for workers' humanity, including their sexuality. Sexual
harassment law in practice, then, whatever might have been the good intentions
of the drafters of the law, has become little more than another club in the neverending war of the capitalist class on workers. 43 By virtue of these laws,
workers must forego yet another source of pleasure and must put their muscle
to the grindstone in relentless pursuit of greater productivity, all toward the end
of maximizing corporate profits they will not enjoy. Sexual harassment law has
simply strengthened the employer's hand in mandating that workers do so.
Despite the clear differences between these authors' arguments (just look at
the footnotes: one article with hundreds of footnotes to scores of cases and
social science sources; the other with only sparse footnotes to one case and a
handful to a body of scholarship), and despite the apparent differences in their
eventual reformist goals (Halley's article does not clearly specify a reform of
sexual harassment law; Schultz, as noted above, wants to correlate employer
liability for harassing behavior with the degree of gender integration in the
workplace), Schultz's and Halley's arguments have much in common: They
share a common narrative account of sex and sexual injury that is fast
becoming an unmovable part of the core of both contemporary queer theory
and pro-sex feminism. That narrative, I think might be summarized, I hope not
unfairly, in this way: It may be true-may be true-that, as feminists assert, we
have, as a society, downplayed women's injuries (sexual and otherwise). It is
also true, however, that we have, as a society, a longstanding cultural aversion
to sexuality of virtually all sorts beyond the most traditionally-sanctioned:
missionary, heterosexual, pro-creative, and marital.144 Aversion to pansexuality has taken many forms and has done much harm, one form of which is
a too-quick willingness to see abuse and harm and injury in fully consensual
but non-conventional sex in non-traditional forums. The consequence, often, is
the criminalization of relatively innocuous or even socially beneficial behavior.
Moralists, many state legislators, and much of the larger culture see (or in the
recent past have seen) abuse, harm, and injury, for example, whenever and
wherever sex is in exchange for pay, when it is in relatively public places such
as bathhouses, when it occurs in adulterous relationships, when it is between
even committed and monogamous members of the same sex, when it is outside
of or precedes marriage, when it is anal or oral rather than coital, when it is
between teenagers, when it is between three or more participants, when it
involves whips, chains, or leather, when it is "casual" and motivated solely by a
search for pleasure, or as an expression of friendship, rather than as an
expression of long-term committed affection, when it occurs between coworkers at different rungs in an employer's ladder who both welcome and
143. Id.at 2168-69.
144. MICHAEL WARNER, THE TROUBLE WITH NORMAL: SEX, POLITICS, AND THE ETHICS OF QUEER
LIFE 195 (2000); Halley, supra note 15, at 196-97; Schultz, supra note 15, at 2168-71.
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consent to it, and so on, and so on, and so on. 145 While we may indeed unduly
and wrongly resist, trivialize, disbelieve, or just refuse to hear women's claims
of sexual injury, we also over-credit claims of sexual harm wherever
the sex is
146
bedroom.
marital
a
than
other
place
a
in
and
favored
of a sort not
According to the postmodern critics, the most recent manifestation of this
generalized sex aversion over the last thirty years is the societal consensus, too
quickly reached, that so-called sexual harassment at work ought to be regarded
as an actionable civil rights 'violation of the woman (or man) harassed. 147 Such
sex-at-work, when coerced or unwanted, may be injurious and may therefore
have something in common with other sorts of behaviors that clearly
discriminate and violate civil rights. Nevertheless, say the critics, whether or
not it violates anyone's equality rights that same behavior when it is not
coerced or unwanted also has something in common with the welcome and
consensual paid-for sex, bathhouse sex, adulterous sex, non-coital sex, nonmarital sex, same-sex sex, sadomasochistic sex, teenage sex, etc., etc., and etc.,
catalogued above. Sex-at-work, of the welcome and consensual variety, is yet
another instance of non-conventional and non-marital sex that occurs in a nontraditional and non-marital venue. 148 So, this presents a dilemma. If we should
be sensitive to both of these sorts of historical errors-the refusal to even hear
much less attend to women's complaints of sexual injury on the one hand, and
the tendency to see harm and injury where there is at most non-conventional
but consensual sexual activity on the other-how should we view complaints
about sexual harassment-unwanted sex and sexual advances at work-by
working women?
It is virtually undeniable that such complaints, for decades, when voiced at
all, were under-acknowledged and under-compensated. 149 After all, this is, for
the most part, women complaining, and women complaining of sexual injury.
The historical under-acknowledgement of these complaints, when they were
pled and viewed as simple torts, tracks a sorry and well-known history of the
under-acknowledgment of injuries disproportionately suffered by women,
which has demonstrably misshapen both tort and criminal law.150 It is also the
case, though, that what is being complained of-sexual expression outside of
domestic marriage-is indeed, for the most part, socially disapproved-of
conduct, which is disapproved of whether or not it is welcome and consensual.
So, women complaining of sex at work-calling it not sex but sexual
harassment-may be the longsuffering victims of injuries only now recognized
as such. Or not. Women who claim to be or even who sincerely think they are
145.
146.
147.
148.
149.
150.
Halley, supra note 15, at 196-97; Schultz, supra note 15, at 2167.
Halley, supra note 15, at 195.
Schultz, supra note 15, at 2094-97.
Halley, supra note 15, at 193-196; Schultz, supra note 15, at 2019-31.
For a history of sexual harassment law, see Siegel, supra note 94.
Id. at 3-8.
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being actionably harassed at work may be in the throes of a homophobic panic,
if the alleged aggressor is of the same sex, or of a more general "sex panic," if
not. Either way, the actual sexual harassment may be non-existent or trivial.
The real harm is in the mind of the purported victim: homophobia, social
Puritanism, or prudishness, shared by the larger like-minded sex-averse culture,
but in no event caused by injurious acts of a sexual perpetrator at work. 151
Whatever else it has done, the "skeptical" postmodern critique of sexual
harassment law has highlighted the second prong of this dilemma, which has
been with us, unexamined and unmentioned, for some time.
The second strand of the postmodem critique of sexual harassment law I
call (following David Kennedy) the "libertine" strand' 152 This argument begins
(and ends?) with what clearly aims to be an earthy and racy affirmation (" 'Yes,'
she said"' 53) of the overarching human value, the benignity, the virtue, the
innocence, the pleasure, and the sheer thrill, of sexual desire itself in all of its
manifestations: gay, straight, hierarchic, vanilla, sadomasochistic, public,
private-whatever and wherever. 154 Loosely, although they both make both
libertine and skeptical arguments, sex-affirmance is much closer to the heart of
Halley's argument against sexual harassment law, while skepticism is,
basically, at the heart of Schultz's, The libertine argument against sexual
harassment law is a bit more convoluted than the skeptical. It involves (at least)
three steps. The first, though, is implicit.
Rhetorically, although not explicitly, the libertine argument against sexual
harassment law begins with a straightforward affirmation of the relative value
of same-sex sexuality-a general egalitarian sentiment obviously shared not
only by civil rights theorists and activists involved in all gay and lesbian
activism or scholarship, but also by virtually all identity theorists, all liberals,
55
all radicals, and many conservatives as well, at least in legal scholarship.1
151. Halley, supra note 15, at 195-98.
152. David Kennedy,
The Spectacle and the Libertine, in AFTERMATH:
THE CLINTON
IMPEACHMENT AND THE PRESIDENCY IN THE AGE OF POLITICAL SPECTACLE 279, 289 (Leonard V.
Kaplan & Beverly 1.Moran eds., 2001) [hereinafter AFrERMATH]. In a typical passage, Kennedy writes:
For the Libertine, sex on your knees, sex which is not reciprocated, sex by yourself, by
yourself with another person, sex in a dog collar, sex when the parties are not equal in status
and wealth and salary and job grade and beauty and age and height, can also be sex. Even sex
that women want can be sex. For the Libertine, sex doesn't have to be equally chosen or
equally desired by all the parties, may not even be chosen at all. You needn't require consent,
needn't reimagine sexual partners as autonomous transactors to eliminate coercion.
Compulsion, obsession, sex when you can't stop yourself. The Libertine leans toward it,
wants to, defaults to its affirmation. Say yes to abjection. Shame. Vulnerability. Inequality.
Danger. Lean toward the sadomasochist, the fetishist, the happy couple at home on a Sunday
afternoon.
Id.
at 293.
153. JAMES JOYCE, ULYSSES 732 (Oxford University Press 1998).
154. For at least Kennedy, this may include rape, if the passage in note 152 is to be taken at face
value. Kennedy, supranote 152, at 293.
155. It goes without saying, but it is very much an essential part of the argument. For Halley,
homophobia is the harm invited by the over-regulation of sex and sexual harassment law; same-sex sex
is thus implicitly acknowledged as the norm to which cross-sex sex is eventually assimilated. Same-sex
and cross-sex sex are to be equally valorized, and the differences between them minimized, with the
Yale Journal of Law and Feminism
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Within feminism, furthermore, there are and could not possibly be any
dissenters; the affirmation of same-sex sex and same-sex sexual desire
underscores, rather than undercuts, longstanding feminist critiques of
compulsory heterosexuality.1 56 There's no apparent conflict, and a good bit of
apparent common ground, between a queer-theoretic celebration of same-sex
sex and a feminist opposition to coerced heterosexuality and between a queertheoretic celebration of non-marital and non-traditional sex between partners of
the same sex and a feminist critique of the various and profound compulsions
inside and surrounding the civil and religious institutions of heterosexual
marriage. Blandly, but importantly, the affirmation of the value of same-sex
sexual desire and behavior is the common ground between queer theoretic and
57
feminist theoretic projects.1
The second step toward the affirmation of desire invokes a premise central
to queer theory, but at odds with some versions of both feminism and identity
theory more generally, at least insofar as the latter pertains to issues
surrounding sexuality: the non-discreteness, artificiality, fluidity, and flexibility
of sexual categories, including the central categories "male" and "female," but
also "hetero"- and "homo"- sexuality. Unlike both old-fashioned identity
theory, as well as an even older-fashioned civil rights approach to gay law and
politics (those fuddy-duddies), queer theory distinctively eschews the notions,
conceits, deceptions, or self-deceptions that heterosexuals and homosexuals
occupy distinct psychic or sexual or psycho-sexual spaces, that individuals can
be put on any sort of Kinseyian "spectrum," or that gays or straights have any
fixed cultural identity.158 The point is not the familiar one that such identities
are socially, rather than biologically, constructed (this turns out to be neither
here nor there), but, instead, queer theorists question whether such identities
59
have or, more importantly, ought to have any stability.1
What queer theory
distinctively critiques or deconstructs is the distinction between gay and
straight, not its biological cause or origin (as, analogically, critical theory
conclusion that all women's claims of sexual assault--both same-sex and cross-sex-should be viewed
skeptically. Halley, supra note 15, at 195-98.
156. The classic is Adrienne Rich's essay, Compulsory Heterosexuality and Lesbian Existence, in
LIVING WITH CONTRADICTIONS: CONTROVERSIES IN FEMINIST SOCIAL ETHICS 487 (Alison M. Jaggar
ed., 1994).
157. 'And, of course, gay identity theoretical projects as well. Thus, early arguments for gay
marriage were often put in feminist terms-same-sex marriage partners, lacking the baggage of
patriarchal norms, would transform marriage from within, rendering it a more egalitarian institution. See
Chai R. Feldblum, Gay is Good: The Moral Case for Marriage Equality and More, 17 YALE J.L. &
FEMINISM 139 (2005); Chai R. Feldblum, A ProgressiveMoral Casefor Same Sex Marriage, 7 TEMP.
POL. & CIv. RTS. L. REV. 485 (1998); Robin West, Universalism, Liberal Theory, and the Problem of
Gay Marriage, 25 FLA. ST. U. L. REV. 705 (1998); Nan D. Hunter, Marriage, Law, and Gender: A
Feminist Inquiry, 1 L. & SEXUALITY 9 (1991). Marc Spindelman tracks the relation between gay
identity politics, queer theory, and feminism, all in relation to gay marriage, in Marc Spindelman,
Homosexuality's Horizon, 53 EMORY L.J. 1361 (2005).
158. Halley, supra note 15, at 194-97.
159. Id. at 194.
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distinctively critiques the distinction between public and private). There just
isn't anything to the notion that one is "gay" or "straight. ' ,160 It isn't something
that someone "is." Politics, including gay and lesbian liberation politics, that
assume there are such stable identities are misguided and disutile both.
If we put these two premises-the celebration of same-sex sex, and the
dissolution of the distinction between same and opposite sex-together, what
follows, is the libertine's celebration of all sex 61-heterosexual as well as
homosexual. What disappears, less noticed, is the conceptual ground for
virtually any feminist critique of heterosexuality, and this is the reason, in brief,
for the widening gap between queer theory and Feminism, Modified. 162 The
conclusion is that sex generally-not just same-sex sex-is to be celebrated
and is good; to think otherwise, is, through the re-winding of this argument, to
engage in a weird form of homophobia. Sexual criticism itself-any criticism
of sexuality, whether gay or straight-begins to look closely
aligned with a
163
Victorian and Puritanical homophobia and, hence, verboten.
Notably, though, this still doesn't bring us to sexual harassment law. One
can, after all, be for all forms of wanted, desired sex and still urge a clampdown on non-consensual, unwanted, and assaultive sex. The third and critical
step in the libertine critique of sexual harassment law, then (which, to recap, is
the second of two arguments against sexual harassment law) is an extension of
the affirmation of same-sex and opposite-sex sexuality to what is now
sometimes called "hierarchic sex," by which is sometimes meant sexual
pleasures that involve sadomasochistic rituals or sex involving persons on
different levels of a social, economic, educational, or military hierarchy
(Monica Lewinsky and Bill Clinton; professors and students; sergeants and
privates). 64 This, then, finally gets us at least close to a point of intersection
with sexual harassment law and the sex it targets. Harassing sex, as I will
belabor below, is harassing because it is unwelcome, not because it is
hierarchic. Nevertheless, harassing sex can obviously, in some sense, also be
described as "hierarchic." Harassing sex does indeed oppress across hierarchic
160. Id.
161. Id.at 194, 196; Kennedy, supranote 152.
162. The widening gap has been noticed both by queer theorists and their critics. See Halley, supra
note 15 at 196-198; Marc Spindelman, DiscriminatingPleasures,in DIRECTIONS, supra note 15, at 201,
213-18.
163. Halley, supra note 15, at 197:
If same-sex sexual injury can be phantasmatic, and based as much on desire as its opposite,
why not also its cross-sex counterpart? Indeed, sex2-affirmative feminism might even say
that we insult women by attributing to them such milquetoast psyches that they can be
imagined incapable of fomenting powerful phantasmatic cathexes and desires. And so we
have queer and sex2-aflirmative feminist projects of asking whether, when a woman claims
that a male coworker or supervisor or teacher injures her by desiring her sexually, we should
believe her, or think her claim of injury is reasonable. And here we are near the heart of the
sexual-subordination feminist sexual regulatory project, which has been to change things so
that women are believed when they claim sexual injury.
164. See, e.g., Halley, supra note 15, at 196 (on sadomasochism); Kennedy, supra note 152, at 293
(on hierarchic sex).
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lines. It is a part of our civil rights law, after all, rather than a part of tort law,
because it is an attack on equality, not just an attack on women's physical
integrity. The libertine, queer theoretic argument against sexual harassment law
plays on this-perhaps, puns on this--definitional family resemblance.
So, to summarize: The first premise of the libertine argument is just that
hierarchic sex (like all same and opposite-sex sex) is good; it is conducive to
pleasure, liberatory, playful, even, perhaps, subtly undermining of traditional
roles and lines of gender domination. Second premise: sexual harassment lawnot, perhaps, by legal definition, but certainly according to common sense,
common understanding, and its prominent theorists-targets hierarchic sex.
Ergo, conclusion: sexual harassment law is bad. Sexual harassment law, briefly,
is nothing but the latest manifestation of the unfortunate and stultifying sexual
Puritanism that has long twisted the American and western psyche.
This bare argument, if the target is sexual harassment law, as presently
constituted, involves a huge non-sequitur: Neither sadomasochistic sex, nor sex
involving members on differing rungs of social hierarchies, is, solely by virtue
of being hierarchic, for that reason alone, sexual harassment. For sex to be
"harassing," by legal definition, it must be unwelcome,1 65 not hierarchic, and
the two are not the same thing. In fact, taken at face value, the argument
summarized above is an almost classic example of bad doctrinal logic: the word
"hierarchic" has slipped into the definition of sexual harassment as somehow
both necessary and sufficient, when, as a matter of law, it is neither. The
doctrine, furthermore, is about as clear as these things can ever be: for sexual
advances at work to be even assaultive, much less harassing, they must be
unwelcome. 166 If the libertine's primary complaint, or point, is that sexual
harassment law ought not to target a sexual taste for hierarchy or sexual affairs
between students, teachers, presidents, interns, bosses and secretaries, he
should take comfort from the law itself: it doesn't.
So--why is the libertine argument made at all, and why does it have the
prominence it has? Where, in other words, did the idea originate, that there is
any connection, either negative or positive, between the target of sexual
harassment law-unwelcome sex and sexual assaults and advances at workand mutually desired, hierarchic sex? Again-not from the doctrine. On the
other hand, it is assuredly not a chimera. Rather, as Janet Halley has fully spelt
out in her seminal article on this point, 167 the argument that sexual harassment
law is in some way concerned with hierarchic sex comes not from sexual
harassment doctrine, but rather from Catharine MacKinnon's theoretical
165. Meritor Say. Bank, FSB v. Vinson, 477 U.S. 57 (1986).
166. Id.
167. Halley, supra note 15, at 183-93.
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elaborations
of Feminism, Modified and inferences we might draw from
168
them.
Over the years, MacKinnon has argued strenuously that both unwelcome
sex-hence, sexual harassment-and hierarchic sex (of both sorts), as well as
even the desire for the latter, are symptomatic of sex inequality. 169 Furthermore,
she has argued that the dismantling of all of it-not just of sexual harassment,
but also of desired, welcome, but hierarchic sex-is a necessary step on the
path to full sexual equality: 170 the former, through laws against sexual
harassment, the latter, through both cultural evolution and civil sanctions for
171
the production and dissemination (through pornography) of the desire itself.
Desires for non-hierarchic sex are, in effect, glimpses into the erotic subjective
contours of a utopian and future psycho-social world. Desires for hierarchic
sex, and the prevalence of those desires, on the other hand, are the fully
predictable but dreary consequence of the violent inequality that characterizes
both modem and historical sexual relations between men and women.
So, whatever might be its status in law, it is nevertheless clear that
hierarchic sex of both sorts-both sadomasochistic sexual desire and mutually
desired sexual relations between members on different rungs of various
hierarchies-are targets of the generalized skepticism toward the erotic given
voice in MacKinnon's Feminism, Modified. Sadomasochistic desire is targeted
because such desire allegedly represents, constitutes, and is loosely-albeit
indirectly--caused by an internalization of the contempt and humiliation and
abuse of women accomplished through centuries of patriarchal control.
Hierarchic sex is targeted because such relationships (whether or not they are
legally cognizable as harassment) epitomize the generic inequality of men and
172
women socially.
It is, then, this larger argument-that both sexual harassment and desired
hierarchic sex are symptomatic of sexual inequality-that provides the
backdrop of what is otherwise a mysteriously illogical critique of sexual
harassment law as wrongly targeting fully desired and quite welcome hierarchic
sex. Again, sexual harassment law does not do that, nor do its architectsincluding Catharine MacKinnon. MacKinnon has never argued (that I can find,
and I have looked) that sexual harassment law should target hierarchic sex.
MacKinnon has, however, also targeted hierarchic sex, as well as unwelcome
sex, and has linked them through the assertion that both manifest the cultural
168. Id. at 183-93.
169. FEMINISM UNMODIFIED, supra note 13, at 54; FEMINIST THEORY OF STATE, supra note 1, at
140-142.
170. FEMINIST THEORY OF STATE, supra note 1, at 126-54.
171. FEMINISM UNMODIFIED, supra note 13, at 163-97; FEMINIST THEORY OF STATE, supra note 1,
at 178-79, 195-214.
172. See MacKinnon, Afterword, supranote 94, at 692-93.
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realization of political sex inequality.173 And, most assuredly, a number of other
equality feminists have taken up the suggestion and argued that we ought to, in
effect, drop the "unwelcomeness" or "unwanted" requirement of sexual
harassment law and, instead, directly target hierarchic sex at the workplace that,
whether or not it is welcome, turns out to impede employment equality. 74 It is
really that specific theoretical claim, then, regarding the implications of this
law and the possible expansion of sexual harassment law proposed by others,
that has prompted the libertine postmodem critics' rejoinder that sexual
harassment law has cast too broad a net.
So, we should recast the libertine argument at least somewhat, if only
toward the end of assuring its relevance. The libertine argument is properly
targeted not so much against sexual harassment law, as against the political
conception of sex that arguably underlies it, and against reforms proposed by
some-but by no means all--of the law's architects. Viewed as such, the
libertine argument is considerably narrower, although, perhaps, deeper than the
skeptical argument; it is not an argument against current sexual harassment law,
so much as an argument against never-enacted reforms, and against one
possible theoretical account of the law. Feminists, and MacKinnon in
particular, criticize hierarchic sex and have rendered sexual harassment on the
job illegal and actionable; sex on the job is often hierarchic and harassing.
Therefore sexual harassment law, although it doesn't target hierarchic sex,
assumes such sex to be undesirable-and, at least some of its proponents,
defenders and architects, clearly wish it would.
So, having redirected the libertine argument, what is its content? Basically,
queer, postmodem, libertine, and pro-sex theorists in effect turn the radical
feminist denunciation of hierarchic sex-assumed to be at the heart of sexual
harassment law-on its head. Sadomasochistic desires, far from evidencing
political debasement, the postmodern critics argue are, like all sexual desires,
good for their own sake so long as they are ultimately pleasure-inducing. 175
But, more important, what these desires evidence politically is hardly
internalized debasement; rather, they evidence (and encourage?) a rebellious
imagination, a capacity for pleasure, a playfulness with roles and role-reversals,
and an entirely admirable postmodern capacity for mixing things up in intimate
spheres of life. 176 Likewise, desires for hierarchic sexual relations of the
Clinton-Lewinsky sort ought to be celebrated rather than censored: They reveal
a capacity for connection across hierarchy and a celebration of the
173. At least she has done this with respect to sadomasochism; it is not clear to me that she has
done likewise with respect to wanted sex between individuals with unequal workplace or school power
See id.
174. See, e.g., Louise F. Fitzgerald, Who Says? Legal and Psychological Constructionsof Women's
Resistance to Sexual Harassment, in DIRECTIONS, supranote 15, at 94.
175. Halley, supra note 15, at 196; Kennedy, supranote 152, at 293.
176. Halley, supra note 15, at 196; PLEASURE AND DANGER, supra note 96.
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salaciousness of hierarchy that can be transformative and liberating, not
oppressive. 177 Hierarchical sex, no less than heterosexual sex, and no less than
same-sex sex, ought to be enjoyed if one is so inclined and celebrated even if
not. It ought not to be the target of feminist critique. And it certainly ought not
to be the subject of lawsuits. Like all sex and like all desire, hierarchic sex and
the desire for it is innocent at least and liberatory at best, albeit in a playfully
anarchic, mix-it-up, postmodem kind of way.
Critique
The first thing worth noting about the postmodem critique of sexual
harassment law and its theoretical grounding is what it is not: Neither the
skeptical nor the libertine strand of this critique is liberalism redux. Let me start
with the skeptical. First, the postmodern critics are hardly celebrants of
subjective individualism. Rather, they are as skeptical of women's professed
subjectivity as any Marxist going. Not only women's claims of injury, but also
their subjective experiences of injury are subjected to doubt. 178 Complained-of
injuries are often fabricated, according to the critics, but even when they are
not, the experience of injury is sometimes just flat out inauthentic, or false179 :
what is felt to be injurious is, in fact, not. There is nothing liberal about this
skeptical stance toward the conscious experience of inflicted harm.
Second, the ground for skepticism is not the loosely liberal (or libertarian)
complaint that a woman's choice to enter into a relationship, institution,
practice, or contract must be honored, even when the freely chosen practice,
etc., later leads to claims of injury. The claim is not, in other words, that we
should honor women's choices even in the face of later regret, come hell or
high water-that we should honor a woman's decision to go to work in an
harassing environment, in the face of her later complaint of injury and harm, on
the ground that the possibility of injury has been "priced in," so to speak, to her
wage demand. Rather, the ground for doubt is historical, descriptive, and
sociological (not definitional or philosophical, as liberal arguments tend to be):
We should be skeptical of complaints of sexual harassment because of the
177. Kennedy, supra note 152, at 296:
Monica Lewinsky. Libertine Hero. There's Barbara Walters asking her in all earnestness if
she didn't agree, looking back, that it had all been pretty degrading. Unreciprocated, on her
knees, with the President. Well, actually, she said, no. It wasn't degrading. It was a mistake,
but you just had to be there ....
Through all that she was put, somehow she never lost that fresh dignity: she managed to
embrace abjection and shame and humiliation without conceding that all that had happened
was anything other than human. Maybe I see the world through rose-colored glasses, but
somehow our cities seem full of young Monicas. The students and waitresses and sales
personnel, there's her haircut, her lipstick, and above all, her firm sexual confidence.
I hope they also share mantras with Monica. It doesn't have to be private or pretty, can
be laced with power and pain, but that doesn't mean it's not fun ....
178. Halley, supra note 15, at 196-97.
179. See id at 197.
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cultural overhang of centuries of pan-sex aversion 180-not because of a general
liberal valorization of choice. The reason for skepticism, in short, is a
perception of a societal sickness, not an insistence on individual well-being.
The libertine strand, likewise, is also more illiberal than not. There are, of
course, obvious overlaps between the two. Nevertheless, the libertine argument
against sexual harassment law, or in defense of the desire that in their view is
the target of that law, is not that these desires are private, inconsequential,
beyond politics, or nobody's business, or that their expression is protected by
First Amendment rights. Nor is the point the more general liberal axiom that
desire, and the expression of desire, invariably point us toward pleasure and
self-interest.
Rather, what the postmodernists' celebration of same-sex, opposite-sex,
non-conventional, conventional, and hierarchic sex seems to be rooted in,
theoretically, is a synthesis of a Freudian and Nieztschean worldview.
Following Freud, according to the libertine account, sex seeks expression and
release; following Freud, sexual desire is always present and near-always
denied; following Freud, claims of sexual injury are often the mask for deeper
and truer impulses rooted in sexual desire; following Freud, the greatest sexual
harm is not sexual injury, violence, or violation, but rather the denial of sexual
l
desire and interest and the subsequent self-loathing that is consequent to it. 1
Following Nietzsche, power and its use are admirable, while ethical or moral
constraint evidence at best small-minded resentment; following Nietzsche, the
expressions of unadulterated power are admirable and noble; following
Nietzsche, their censorship on the grounds of either Christian moralism or a
moralistic equalitarianism is damaging.1 2 Put these two sets of claims
together, and what you get, in a nutshell, is contemporary libertine queer
theory: sexual constraint, whether on old-fashioned moral grounds or
contemporary egalitarian grounds, is a mask of twisted and denied desire. 8 3 It
180. See id.
181. See e.g., Sigmund Freud, Infantile Sexuality, in THE BASIC WRITINGS OF SIGMUND FREUD 580
(Random House, A.A. Brill ed., 1938).
182. See generally Friedrich Nietzsche, From The Dawn, in THE PORTABLE NIETZSCHE 76 (Walter
Kaufmann ed., Viking Press 1980); From Beyond Good and Evil, id.at 443; Friedrich Nietzsche, From
Toward a Genealogy of Morals, id. at 450.
183. Thus the hostility to sexual regulation of virtually all forms. The inspiration for this seems to
be Foucault and his now-famous insistence that all sexual behavior should be deregulated-including,
apparently, sex with very young children-in the absence of a strong showing of both expressed nonconsent and violence. Foucault writes:
There are children who throw themselves at an adult at the age of ten-so? There are
children who consent, who would be delighted, aren't there?...
I'd be tempted to say: from the moment that the child doesn't refuse, there is no reason to
punish any act....
Then there are cases involving an adult who is in a position of authority in relation to
the child-as parent, guardian, teacher, or doctor. There again one would be tempted to say:
it isn't true that one can get a child to do what it doesn't really want to, simply by exercising
authority.
MICHEL FOUCAULT, POLITICS, PHILOSOPHY CULTURE: INTERVIEWS AND OTHER WRITINGS, 1977-1984,
at 204-205 (1988).
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is a disastrously sublimated craving for control. 8 4 Expressive honest sex, by
contrast, in whatever and all forms, is pretty much good by definition, as is
power likewise. Accordingly, sex informed by a taste for hierarchy-either the
desire to dominate or submit, to be top or bottom, to inflict or receive pain, to
85
issue or obey command-is downright sublime.1
I would venture the following critical observations about these postmodern
critiques of sexual harassment law, although, as I will suggest below, I also find
much of value in their theoretical interventions. First, Halley's argument from
skepticism, and to a lesser extent Schultz's as well, seems to turn on a
peculiarly postmodern form of question-begging. Again, Halley's claim is that
if we recognize, as we should, the possibility that a self-loathing homophobic
plaintiff might be anxious to bring a law suit against a would-be same-sex
harasser so as to reassert his own heterosexuality, and if we dissolve, as we
should, the distinction between queer and straight, then what should follow is a
broad-based suspicion of all plaintiffs, on the grounds that a "sex panic" may so
motivate victims of opposite-sexual harassment. 18 6 But there is no evidence
offered to support this hypothesized extension and no reason that I can see to
presume that it's a sensible one. The existence of homophobia, and of the selfloathing it can induce on the part of many, is a widespread, recognized, and
recognizable phenomenon. By contrast, it is not at all obvious that this culture
is now in the midst of a general "sex panic" that might induce workers of either
sex to ward off sexual advances in the workplace through the torturous route of
filing specious law suits or by falsely claiming that a sexual advance made on
the job was assaultive, harassing, and the proper subject of a lawsuit, rather
than mutually desired. Where is the evidence of the panic that might support
this? To all appearances, this culture is sex-drenched, not sex-phobic. We still
seem more inclined to silence victims of sex assault than otherwise. It might be
hard to say, either hermeneutically or quantitatively, whether the wellpublicized alleged assaults of Michael Jackson, of the Colorado football team,
of who knows how many priests, of Kobe Bryant, of William Kennedy Smith,
and so on and so on and so on, represent a panic over sex or a panic over the
possibility that such sex might someday be actionable. But the question surely
should not be answered simply by definitional fiat.
Schultz's more general argument-that even when genuine, these
complaints are of largely trivial behavior, at least when the behavior occurs in
gender-integrated workplaces-is harder to assess, resting, as it clearly does, on
somewhat idiosyncratic interpretations of the facts of a large number of cases,
with all the room for interpretive difference that such arguments invariably
184.
64-80.
185.
note 152,
186.
Michael Warner expresses this conception of sex most clearly in WARNER, supra note 144, at
See id.; Foucault, supra note 183, at 200-206; Halley, supra note 15, at 196; Kennedy, supra
at 290-294.
Halley, supra note 15, at 194-97.
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invite. 187 It seems fair enough to assume that sexual harassment law may well
need policing for its excesses, as does any body of law, constitutional or
otherwise. Minimally, though, some comparative data would be helpful here.
People have been known to file trivial lawsuits out of greed or spite. We don't
think across the board that all civil law should therefore be scrapped. On the
other hand, particularly given our sorry historical tendency to proclaim
complaints disproportionately brought by women to be "trivial," we should be
wary of overkill here. Similarly, we should watch out for non-falsifiable claims
that these cases, or at least some very large but unspecified percentage of them,
are somehow polluted by a black cloud of "sexual panic," the consequence of
which is that not only are some of these women just lying, but even those who
aren't lying are in denial about their own pan-sexual desires. These claims all
echo an ugly and Freudian history of misogyny. Although it should be obvious,
it's worth remembering that there is no more prima facie reason to credit the
new-fashioned claim that women lie or are deluded when complaining of
sexual injury because they are in the grip of a "sex panic" than there was to
credit the old-fashioned claim that women lied when complaining of sexual
injury because women as a sex were just too obtuse to appreciate the moral
value of truth. It's imperative here that we avoid generality.
The stakes, furthermore, are fairly high. If the postmodem critique is
successful in weakening support for sexual harassment laws, and if it is
successful in doing so on the specific grounds that women, overly inclined to
be sex-averse, are also overly inclined to invent or exaggerate claims of sexual
injury, then the critique portends a huge setback for women's equality, not only
in the area of sexual harassment law and policy. Simply put, the attack on the
integrity of these women complainants puts us back, yet again, in the
familiar-but no-win-posture of debating women's trustworthiness, sense of
fairness, and basic integrity when they complain of sexual injury. Again, this
would hardly be modem or postmodem; indeed, there has never been a time
when women's allegations of sexual assault have not been refuted as either
contrived or trivial. 188 There is nothing postmodern about the suggestion that
we should trivialize them now, albeit in the name of sexual freedom rather than
patriarchal power. It's like a recurrent nightmare, not a pleasurable djt vu.
Let me turn now to the libertine strand. The libertine argument-that we
should affirm and celebrate all sexual desire, including hierarchic desire, and
that sexual harassment law that directly or at least indirectly targets hierarchic
sex is therefore overbroad-is at once both less and more powerful than the
187. Compare Schultz's careful recounting of the facts of sexual harassment cases in her first major
piece on sexual harassment law, Reconceptualizing Sexual Harassment, supra note 116, in which she
argues that sexual harassment law has developed to the detriment of complaints of non-sexual forms of
gender discrimination in the workplace, with MacKinnon's response in Afterword, supra note 94, at
696-97.
188. See generally Hasday, supra note 65; Siegel, supra note 48; Siegel, supra note 94, at 11-18.
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skeptical argument. It is less powerful simply because-and it bears
repeating-there is just no logical or doctrinal connection between the
affirmation of sexual desire and sexual practice, on the one hand, and the
conclusion that sexual harassment law as it is currently constituted cuts too
broad a swath, on the other. Sexual harassment law does not depend on a denial
of the value or benignity of traditional heterosexuality, of hierarchic sex, of
same-sex sex, of non-conventional sex, of sadomasochistic sex, of workplace
sex, of bathhouse sex, of casual sex, or of the desires of anyone for any of that.
The target of sexual harassment law is unwanted sex, not same-sex sex, not
heterosexuality, not sadomasochism, not hierarchic sex, and not wanted,
mutually desired relationships between persons on differing rungs of
employment hierarchies. To the contrary, an affirmation of the value of sexual
desire, or of mutually desired sexual relations regardless of the status of the
participants and no matter what the nature of their sexual toys, has no
implications, one way or the other, for sexual harassment law. The target of
sexual harassment law is unwanted sexual assaults at work, not
sadomasochistic pleasure or mutually desired relationships between
professionals and staff, or doctors and nurses, or students and teachers. There
may be reason to worry about sadomasochism and the apparently widespread
desire for it (although I don't think so), and there may be good pragmatic and
moral reasons to avoid intra-office or school hierarchic sexual affairs (I think
there are). But that they are definitional instances of sexual harassment is not
one of the reasons to worry, and no one, to my knowledge, has claimed
otherwise. One more time: harassing, actionable sex on the job, as a legal
matter, is not harassing because it is "hierarchic;" it is harassing because it is
unwelcome.
Nor does an affirmation of non-traditional hierarchic sexual desire or
behavior logically imply the wisdom of a skeptical stance toward the claims of
women (or men) who have suffered sexual assaults on the job. In other words,
the libertine and skeptical strands of the postmodern critique are logically
independent, not mutually supportive. The moral or political wrongness of
hierarchic sex (if it is wrong) does not imply a reason to be overly solicitous of
claims of sexual harassment on the job, but neither does the benignity of such
sex suggest a reason to be skeptical. Hierarchic sex (of either sortsadomasochistic or between persons on different rungs of a ladder in a
hierarchy) can be harassing or non-harassing, depending upon whether or not it
is welcome, while harassing sex can be either hierarchic or non-hierarchic. That
some women and some men may desire hierarchic sex with wanted others
suggests nothing---one way or the other-about the status of unwanted sexual
assaults.
Nor does classical feminism-the feminism relied upon by MacKinnon, at
least in her initial formulations of Feminism, Modified-suggest much of a link
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between these two claims. Political feminism counseled greater regard for
claims of sexual assault-meaning, primarily, non-consensual sex-in a host of
venues in which the existence of such non-consensual sex had been viewed, by
perpetrators, victims, and the larger public, as either trivial or oxymoronic:
acquaintance rape, date rape, and marital rape. MacKinnon and others
introduced the novel and radical idea that this attention should extend to those
complaining of unwanted and unwelcome-not just non-consensual-sex,
thereby picking up sexual harassment on the job as well. 189 By so doing, she
broadened widely our awareness of the ways women may formally consent to
unwanted sex and sexual advances at work, because employment demands it,
and at. home, because domestic peace requires it. Unwanted, as well as nonconsensual, sex thus became a target of political reform and legal action and
that, I think, is the radical impulse behind both sexual harassment theory and
doctrine. But neither classical feminism, nor the architects of the reconstruction
of sexual harassment law, ever suggested that such a heightened regard should
entail or lead to a skepticism regarding the genuineness of felt sexual desires of
any description.
So contrary to the apparent assumptions of both the law's critics and some
of its defenders, neither sexual harassment law nor at least one strand of its
theoretical underpinning requires any views one way or the other about the
status of welcome, wanted, fully-desired hierarchic sex. Both sides, I believe,
wrongly implicate hierarchic sex in the explication of the wrongs of sexual
harassment, on the one side, and the wrongs of sexual harassment law, on the
other. The libertine's endorsement of hierarchic sex and the desire for it is
simply irrelevant to the doctrine and logic of sexual harassment law.
III. QUEER THEORY, THE CRITIQUE OF DESIRE, AND FEMINISM, RE-MODIFIED
As was the case with earlier liberal-feminist critiques of pornography law,
the contemporary postmodern attack on sexual harassment is only partially
concerned with sexual harassment law per se. It is also (and for Halley,
primarily) concerned with the logic and breadth of Feminism, Modified. Here,
the argument between MacKinnon and her critics is more fully joined. Thus,
entirely aside from sexual harassment law, MacKinnon has argued quite
broadly and in any number of publications that sexual desire, particularly for
hierarchic sex, is inconsistent with equality and is both a consequence of
inequality as well as a manifestation of it. 190 Our desires are constructed by our
social milieu; our milieu, thus far, has been one of nearly unrelenting
189. See Siegel, supranote 94.
190. FEMINISM UNMODIFIED, supra note 13, at 54; FEMINIST THEORY OF STATE, supra note 1, at
138, 148.
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patriarchal sexual control. 19' Our desires, including our desires for hierarchic
sex, simply reflect that political position. We might call this part of
MacKinnon's Feminism, Modified the "critique of desire."
Halley and Schultz both, in response, argue not so much the illiberality of
these assumptions (as had anti-censorship liberal feminists during the
pornography debates) but rather, for a different understanding of the desires
themselves: The desires both represent and constitute a playfulness and an
exercise of power that should be commended, not simply left alone (as per
liberalism) or critiqued (as per Feminism, Modified). They are even a subtle
challenge to hierarchy, insofar as they evidence a willingness to depart from
traditional and patriarchal alignments of gender and power.' 92 More generally,
they evidence an erotic attraction to power and hierarchy that should leave us
dubious about an over-broad (and statist) insistence on the constitutive relation
93
between political, social, and sexual equality in intimate spheres of pleasure.
Pleasure, not equality, is what is to be affirmed. 94 Many people take physical
pleasure in sex, in power, and in the mingling of the two. There is no reason to
censor those pleasures, and very good reason not to. They evidence a relation to
power, its pleasures, its physicality, and its eroticism that is itself something to
celebrate, regardless of its gender alignment, particularly since (or perhaps
because) gender alignments are fluid.' 95 So long as these eroticized rolesbutch, femme, top, bottom, dominator/trix, submissive, master, slave, etc., etc.,
etc.-are subject to reversal, or are the product of free play, or are the product
of desire rather than social construct, they
are hardly something to worry over.
96
Rather, they are something to embrace.'
One way to characterize the dynamics of this debate, I don't think unfairly,
is as follows: MacKinnon uses the ubiquity (still), the invisibility (until
recently), and the (now) relatively unassailable wrongness of rape, sex
trafficking, sex abuse of children, sex slavery, and sexual harassment to cast
doubts on both the naturalness and the benignity of desires for sex generally
and for hierarchic sex in particular. Thus, both sex harms and desires for
hierarchic sex, she argues, are products of sex inequality. Both the harms and
191. This is deeply embedded in the theoretical structure. In the first chapter of Toward a Feminist
Theory of the State, MacKinnon states:
As work is to Marxism, sexuality to feminism is socially constructed yet constructing,
universal as activity yet historically specific, jointly comprised of matter and mind. As the
organized expropriation of the work of some for the benefit of others defines a class,
workers, the organized expropriation of the sexuality of some for the use of others defines the
sex, woman. Heterosexuality is its social structure, desire its internal dynamic, gender and
family its congealed forms, sex roles its qualities generalized to social persona, reproduction
a consequence, and control its issue.
Id. at 3-4.
192. Halley, supra note 15, at 196; Schultz, supra note 15, at 2150-52, 2191.
193. Halley, supra note 15, at 194-98.
194. See also Foucault's early remark that pleasure and bodies should be the rallying cry around the
resistance to discourses of sexuality. FOUCAULT, supra note 118, at 197.
195. Halley makes this contingency explicit. Halley, supra note 15, at 196.
196. Id. at 194-98; Schultz, supranote 15, at 2193.
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the desires are a product of hierarchy and are an obstacle to women's full quest
for social and economic equality. Halley and Schultz, by contrast, use the
intuitive wrongness of censorial stances toward something as seemingly
harmless, ubiquitous, victimless, and self-regarding as welcome hierarchic sex,
as a stepping stone toward skepticism of sexual harassment law and, by
inference, sex equality and Feminism, Modified quite generally. Hierarchic sex
shares with same-sex sex the quality of being the subject of societal
opprobrium-people generally don't approve of it. Yet, it involves, for the
most part, victimless behavior-it's largely no one's business, for wellunderstood, liberal-sounding, Millian reasons.1 97 If the entire equality edifice
rests on something as flimsy as a political, moral, or aesthetic distaste for a
non-conventional sexual desire, there is something wrong with the political
vision and not just with the legal reform that has been its most successful
product.
Both positions assert a dubious connection, criticized above, between
hierarchic sex, the desire for it, and the phenomenon of unwanted sex. But both
also assert a deeper connection, harder to assess, between hierarchic sex, the
desire for it, and the project of political and social sexual equality. For
MacKinnon, the connection is clear and suggests the problematic nature of
desire. For Halley, the connection is equally clear and suggests the problematic
nature of the project of sex equality. The contribution I want to offer to this
stand-off is simply to notice that there is a third possible position that, although
not free from doubt, might have a lot to commend it: There may be no
connection one way or the other between the desire for hierarchic sex and any
quest for equality no matter how defined. If that's right, perhaps the conclusion
to draw is that equality feminists could and should drop the critique of sexual
desire, and postmodernists could and should drop the celebration of it. Perhaps
neither the critique nor the celebration is warranted. Let me briefly elaborate.
Begin with the critique of desire that, at least on first blush, is so seemingly
central to Feminism, Modified, and to the project of sexual equality as defined
in the larger theory. Is it really? I think not. First, it clearly does not follow
from the analogical borrowing from Marx that women's felt desires for sex, or
for any particular type of sex, are false, or politically polluted, or the product of
subordination. The analogy of sex to work, and women to laborers, provides
grounds for skepticism regarding the authenticity, genuineness, and selfregarding nature of women's choices; women's consent to the sex they choose,
if MacKinnon is right, is very often grounded in something other than their
own desire, and, when it is, it can be injurious. What MacKinnon borrowed
from Marx, was the challenge to the line drawn, within liberalism, from the
worker's desires to the choice he makes and to the creation of value. Likewise,
and analogically, the liberal vector from a woman's desires to her preferences
197. MILL, supra note 30.
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and, ultimately, to her choice to engage in sex is and ought to be severed by
feminist skepticism.
But the object of skepticism in both is the connection between the worker's
or the woman's well-being and desires, on the one hand, and preferences and
choices on the other; the object of skepticism is not the substance of the desire.
The worker's preferred choice, under capitalism, "maximizes" the capitalist's
"value" rather than the worker's-the capitalist captures labor from the worker
and converts it into surplus value Likewise, the woman's choice, and
preference, maximizes the man's pleasure rather than her own-the man
captures sex from the woman and converts it into surplus pleasure-his
pleasure, at her expense If we take Marx seriously, then we should indeed be
skeptical of the claim that satiated choices necessarily increase value for the
subordinated party in each of these pairings, and we should do so for the simple
reason that workers choose to work, and women choose to have sex, for
reasons that do not entail an increase for them of value, well-being, or pleasure.
The "choice" may be free, but it rests on preferences grounded in necessity,
and, as such, it is aimed toward satisfying or increasing the well-being-in
terms of either value or pleasure-of the dominant, not the chooser. Yet, none
of this suggests the necessary inauthenticity of felt sexual desire on the one
hand, or the desire to work on the other.
To state this more directly and entirely apart from fidelity to Marx: The
radical core of Feminism, Modified remains, and is even clarified, if the
critique of desire is dropped. The target, from the outset, of the equality
understood by Feminism, Modified, in its strongest formulation, has been the
alienation, the appropriation, and the exploitation of women's sexuality.
Translated legally, such alienation, appropriation, and exploitation of sexuality
encompass far more sorts of sexual behavior than that targeted by (traditionally
understood) rape laws, and far less than the entire sphere of desired sexual
behavior that MacKinnon is so often (rightly or wrongly) understood to be
condemning. What is clearly targeted by MacKinnon's formulation of the issue
is precisely what, in a more limited way, is targeted by sexual harassment law
itself-that is, unwanted and unwelcome sex: sex that women engage in
because of institutional, economic, cultural, and coercive forces; sex that they
do not desire, but to which they do not necessarily withhold legally viable
"consent"-usually (but not always), because they lack the power to do so.
Such sex is not rape, because it is not necessarily non-consensual. But neither is
it desired, welcome, wanted, pleasurable, or benign. It is often injurious, and it
is a huge obstacle to full social equality. When it happens at work or at school,
it is called sexual harassment and it is sometimes actionable; when on the
street, its called sex hassling and almost never actionable. We don't have a
phrase for what to call it when it happens at home. That doesn't mean it doesn't
happen.
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What, descriptively and objectively is the "unwelcome sex" that I urge
should be not only the target of sexual harassment law when it occurs at work,
but also the target of Feminism, Modified more broadly? Let me define it by
reference to that which it is not: It is not desired, welcome sex, on the one hand,
nor is it rape, on the other. Take the latter first. Unwelcome sex is often,
perhaps even very often, non-consensual; when it is so, it is indeed rape. But
unwelcome sex is not always non-consensual; thus, it is not always rape. Far
more often, unwelcome, undesired sex is fully consensual-the product, that is,
of a consensual transaction between competent adults at work, at home, at
school, or elsewhere. But in both cases-the narrow category of sex that is
unwanted and violently expropriated, meaning rape, and the broader category
of sex that is unwelcome but expropriated with a woman's consent-the sex
that is appropriated from a women is appropriated in the absence of her desire.
What MacKinnon's radical modification of feminism uniquely and powerfully
revealed was the harms done to women, not so much by rape-the unwanted
sex to which we do not consent, and which is taken from us by violence
force-but, more insidiously, and certainly more pervasively, by the unwanted
sex to which we do consent. What Feminism, Modified exposes, in other
words, is the harms done to women by the sex that is taken from us, with our
complicit consent, by that overbearing and toxic brew of imperatives drawn
from moral duty, the need for physical survival, and brute necessity, which we
sometimes collectively call patriarchy.
How might such unwelcome and unwanted sex be described in terms of the
experiences of people? Sex that is neither rape, on the one hand, nor welcome
and desired, on the other, is that sex to which women consent, but which is
unwelcome, unwanted, undesired, and often both painful (rather than
pleasurable) and injurious (rather than beneficial). Why does that sex happen?
It happens because of expropriation, alienation, and exploitation-it happens
by dint of felt and real necessity. It might be procured through economic
leverage, through societal expectation, through marital institutions, through
internalized religious duty, through interpersonal duress, through peer pressure,
or just through that bland thing we call "role-definition." It might "happen,"
more concretely, because if it doesn't happen, he will be in an unbearable snit
the next day, or he will be abusive to the children, or he will not leave enough
money for the kids' lunches, or he will deny me a raise that I need and I
deserve or a grade that I've earned. I consent to the sex I don't want and don't
desire, because, if I don't, he will be physically abusive to me, or humiliate me,
or embarrass me. I consent because, if I don't, I'll lose status at the high school,
or I won't be liked, or I won't like myself. This kind of sex happens because
my friends expect it to and will think less of me if it doesn't. I consent because
God counsels me that when my Husband wants sex it is my duty to give it. And
so on, and so on, and so on. None of this sex is rape, but none of this sex is
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welcome, pleasurable, or beneficial to the woman who "gives" it. Nor is the sex
desired, or desirable. Whatever induces it, the fact that women so often consent
to sex they do not want and do not welcome is a manifestation of their
subordination. That is the radical, political, and novel insight of Feminism,
Modified.
Unwelcome sex, clearly, by definition, is not desired sex of any
description, regardless of content, regardless of hierarchy, regardless of its
flavor. There is no overlap between the two. Unwanted sex, and not mutually
desired sex, is the obstacle (or an obstacle) to women's equality, and it is an
obstacle, furthermore, that is at least partly amenable to legal redress. The
ubiquity of unwanted, undesired, and unwelcome sex and sexual behavior
constitutes, evidences, and promotes women's inequality to men, no less than
the ubiquity of unwanted, undesired, and unwelcome work-shit jobs, as we
used to call them--constitutes and evidences laborers inequality to capital. This
no more renders Feminism, Modified as liberalism redux than the parallel
insight reduces Marxism to liberal capitalism. Liberalism celebrates and
enforces and relies upon the choices, the acts of consent, and the manifest
preferences of extant individuals; Feminism, Modified, like Marxism, critiques
those choices, those consensual acts, and those preferences on the grounds that
and to the extent that they reflect the interests of the stronger, rather than the
interests, well-being, and the desires of the subordinated. The radicalism of
Feminism, Modified, in other words, stems from its critique of the social
institutions that generate our choices and our preferences, including the implicit
and explicit violence that fuels those institutions. A critique of sexual desire,
including the desire for hierarchic sex, is not a necessary part of critical theory
(of course, neither is it incompatible with critical theory). But a critical stance
toward our manifested choices and felt preferences is necessary, particularly
when those choices and preferences reflect not our own desires and interests,
but those of the stronger Other who subordinates us. Folding in a critique of
desire does little but obfuscate (or trivialize) that radical insight.
There are also substantial pragmatic costs to the critique of desire. The
claims in Feminism, Modified as it is presently and, I think, unfortunately
constituted-that hierarchic sex and the desire for it signify a subordinated
status, that we ought to forego those desires if it's possible to do so (even if not,
adopting instead ... what? Celibacy?), that we should purify all expressions of'
power from our sexual practices-prompt, among those who harbor these
desires and many who don't, guffaws and eye-rolling. Those guffaws and eyerolling went a long way toward sinking the anti-pornography campaign. We
really shouldn't want to go there-again. If we become mired-again-in a
debate over the content of our sexual desires, we stand to lose Feminism,
Modified's singular, path-breaking, and historical focus on the alienation and
expropriation of women's sexuality as the linchpin of women's subordination
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and inequality both. Catharine MacKinnon's statement that women's sexuality
is "that which is most one's own, yet most taken away"' 98 was a laser-like,
monumental, stomach-wrenching insight that changed the course of our
cultural, political, and legal history and that portends still greater revolutionary
and even evolutionary change. It would be an historical shame if the full
opportunity to reap the benefit of that insight were lost, if the light that it casts
were to be overshadowed by an overwrought set of claims and counter-claims
regarding the content of sexual desires, rather than shining on the practices,
institutions, and consciousness that perpetuate the continuing, and often violent,
expropriation of women's sexuality.
Some caveats are naturally in order. Consent to sex that maims, or kills, or
otherwise causes severe bodily harm should not be a barrier to the
criminalization of those acts, and it typically is not. Nor should the desire on
the part of the victim be a barrier to the criminalization of those acts. Thus, the
intentional, knowing, or reckless killing of a human being through strangulation
in the course of a sexual act, as well as the intentional or reckless transmission
of AIDS or HIV, whether or not the victim was desirous of the act, might
nevertheless be criminal; in my view it should be. Resolution of where to draw
the line between justified, paternalistic intervention into consensual and desired
sexual activity that is injurious or lethal is a concededly difficult question, but it
is by no means an unfamiliar one; the underlying issues are no different from
those that require resolution wherever paternalistic state intervention is required
to protect people from the harmful consequences of their own desires. Limiting
our ability to buy dangerous lawn mowers at low prices through non-waivable
warrantees might be justified paternalism; I think it is. It does not follow that
such a limit rests on or presupposes that our desires for consumer products are
corrupted by the power imbalance between manufacturers and consumers. In
other words, limited recognition of the justified scope of paternalism in private,
consensual, and welcome sexual behaviors that cause serious injury or death
hardly requires or rests upon a full-scale critique of all sexual desires that rest
on power imbalances, nor does it suggest the corruption of all desires for
hierarchic sex. The desire for hierarchic sex might be relatively benign and
inconsequential, even though hierarchic sex that turns lethal may be the target
of paternalistic state intervention, for familiar and well-rehearsed reasons. The
desire for it on the part of the victim should be no barrier.
But the rare and clearly self-destructive desire for death or injury is just not
the same thing as the apparently quite widespread desire for the pleasures that
come from non-traditional, sadomasochistic sex that is, aside from unproven
psychological harms, objectively and physically harmless. It is just not at all
clear that the latter, unlike the former, does traceable damage either to our
psyche or our political standing. By contrast, what is so vividly clear, I think,
198. FEMINIST THEORY OF STATE, supra note 1, at 3.
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and still such a fresh claim as to move hearts, bodies, and minds, is what
Feminism Unmodified and Toward a Feminist Theory of the State so
powerfully argued and what sexual harassment law as presently constituted
heroically assumes: The phenomenal degree to which women's actions,
"preferences," and "choices," in and out of the workplace, do not track our
interests, our pleasures, or our desires-or our self-understanding of any of
that. If we could focus on and repair the damaging institutions that so distort
our capacity to actually choose what we desire, what pleases us, and what is in
our interest, the content of our sexual desires, over time, may change--or it
may not. In a world in which women's sexuality is not that which is most our
own and most taken away, we may or may not find ourselves fiercely desirous
of "egalitarian sex." Either way, it wouldn't much matter.
Let me look critically now, and much more briefly, at the other side of the
coin. What of queer theory's celebration of desire? Leaving aside sexual
harassment law, is hierarchic sex, and the desire for it, something to valorize?
Let me break this down into the two types of hierarchy noted above: affairs
between persons on different rungs of various hierarchies and sadomasochistic
sex. I've written on hierarchic sexual affairs (Bill and Monica) at length
elsewhere, and won't repeat the arguments here-my conclusion in that writing
is that sexual harassment law does not and should not target such affairs, but
199
these affairs nevertheless are often, although certainly not always, injurious.
For various reasons, all pragmatic, it seems to me the injury they do, when they
do it, is not one particularly amenable to legal compensation. I've also written
on sadomasochism, apparently much to everyone's consternation. 200 All I want
to stress here is a very limited point: there is a sizeable conceptual space
between a censorial stance and a celebratory one with respect to
sadomasochistic sexual desires. Sadomasochistic desires, even if they are
entirely harmless and, when satiated, thoroughly pleasurable, have no positive
politicalvalance.
The insistence by pro-sex devotees of hierarchic sex that these sexual
desires signify a willingness or desire to abandon, reverse,, play with, or subvert
socially prescribed sex or gender roles 20 1 hardly fits the experience of these
sexual encounters: the absolute non-negotiable rigidity of role is very much a
part of the appeal. Indeed, the.counter-claim that sadomasochistic desires are
somehow anarchic or signify an admirably rebellious postmodem sensibility
tends to invoke as much eye-rolling as the claim that they signify
subordination. At the risk of belaboring the obvious, I think its worth pointing
out that people don't generally engage in sadomasochistic sex in order to
199. Robin L. West, Sex, Harm and Impeachment, in AFTERMATH, supra note 152, at 129; Robin
L. West, Unwelcome Sex: Toward a Harm-BasedAnalysis, in DIRECTIONS, supra note 15, at 138.
200. West, Feminist-Conservative Alliance, supra note 14; West, Fifteenth Anniversary
Celebration,supra note 14. For critique, see Coughlin, supranote 15.
201. Halley, supra note 15, at 196.
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subvert, mock, imitate, play with, or invert heterosexism, patriarchy, marriage,
or traditional gender roles. Postmodem and pro-sex and queer-theoretic
depictions of these sexual practices are at least as peculiar and certainly as
counter-experiential as feminist claims that, by foregoing them, we are striking
a blow for women's equality.
In short, both the skepticism toward sexual harassment plaintiffs and the
valorization of hierarchic sex by postmodernists, pro-sex feminists and queer
theorists way overshoot the mark. The postmodern critique of Feminism,
Modified, read generously, takes that theory to task for its undue condemnation
of the content of our sexual desires and the welcome and mutually wanted
"hierarchic" sexual practices of many. However, by coupling that critique with,
first, a denigration of the credibility of women who complain of harassment or
rape and, second, a valorization of the taste for hierarchic sex, the critique
courts, perversely, both disaster and triviality. There is no reason, based in
either spurious claims of "sex panics" or overly-broad depictions of sexual
harassment complaints as Victorian or prudish, to categorically doubt the
veracity of these complainants. This is the disaster courted by this critique. But
neither is there any reason to impute to those who enjoy hierarchic affairs or
harbor or act on sadomasochistic desires some set of revolutionary, anarchic,
(or
set
of
political
ambitions
playful-or-otherwise-postmodern
is
the
courting
of
triviality.
accomplishments). That
The damage wrought by this debate may be greater than any danger, any
debasement, any self-denigration, as well as any pleasure, any liberty, or any
anarchic equality that could possibly be either had or threatened from either
sadomasochistic sexual practices and desires, or from hierarchic but welcome
sexual affairs at work. Minimally, this side debate has wrought a debilitating
confusion both in the understanding and the reform of sexual harassment law. It
has also, though, damaged feminist theory, if only by excluding a possible
middle position. I want, now, to put that position on the table. It's a three-tiered
claim. First, when sex is coerced, through violence, force, or the threat of it, it
is rape and properly regarded as a serious crime. Second, when sex is unwanted
and unwelcome, it is harassment and evidence of institutional and personal
oppression-this is the basic, and radical, insight of Feminism, Modified.
Third: when sex is mutually desired and welcome, it is, at least much of the
time, pleasurable, companionate, expressive, rewarding to the participants, and
pretty much just ridiculous to everyone else. Some people have sexual tastes
that run to leather, whips, and chains. Some people have sexual tastes that run
to toothpaste spread all over the body. Sexual tastes run the gamut, and that fact
signifies nothing at all. Without some concrete showing otherwise, it just seems
foolish to critique political ideals on the basis of the content of sexual desires,
no less than to ground political vision on their critique.
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IV. SOME CONCLUSIONS
Catharine MacKinnon, who has never eschewed grand narratives, did
indeed invent a new plot-I've called it Feminism, Modified. Like many plots,
however, this one is a bit unfinished, and the larger narrative within which this
new plot is encased, like all narratives, requires interpretation. In my
interpretation, surely not the only possible one, the new plot MacKinnon
invented for the grand narrative of human existence concerns, largely, the role
of private violence and subordination in perpetuating women's submission to
male dominance. Moreover, it concerns women's increasing and still-surprising
witness to all of that, as they re-capture their voice; the state's obligation, upon
hearing women's testimony, to put an end to the violence that prompts it and to
do so as a matter of liberal principle; the law's duty, once the state has acted, to
insure the resulting peace and to do so as a matter of fundamental justice; and
the possibility of a liberatory and egalitarian denouement, if such an ultimately
happy story should ever come to unfold. That, at -least, is one possible
interpretation of the new plot that Catharine MacKinnon has invented, and that
I have called, correcting the clear misnomer in the title of her third book,
Feminism, Modified.
Even so interpreted, however, some of the subsidiary plot lines of this
invented story are left dangling. One such unfinished plot line-and I'm sure
there are others-revolves around the ambiguities of women's sexual desires,
the ambiguities in the consensual sexual practices in which women engage, and
the relation, or lack thereof, between the two. How we resolve those
ambiguities will determine whether and how we can make sense of the very
phenomenon of "unwanted" or unwelcome sex. So, leaving metaphor and
narrative aside: What, precisely, is the relation? Do we always desire the sex to
which we consent--do we do so, furthermore, "by definition"? If so, there is
little room for critique of, much less legal recourse for, unwanted sex. Or, at the
other extreme, do we never give meaningful consent to the sex we have, but do
not desire? Is all the undesired sex we have, by virtue of that lack of desire,
non-consensual and therefore rape?If so, then the scope of rape law has
exploded exponentially, as many critics of both MacKinnon and Dworkin fear
was their real intent all along. And furthermore, if so, "unwelcome sex" as
distinct from rape is a null set: if sex is undesired and unwelcome, it is always
non-consensual, and it is therefore rape. Let me suggest two not-so-promising,
but quite prevalent, resolutions of these questions--of this subsidiary plot-and
then opt for a third.
The first, less-than-promising unfolding of this story-suggested at various
points in her writing by MacKinnon herself-lies in a full-throttle distrust of
women's professed and felt sexual desires.20 2 From the discovery (or re202. MacKinnon writes:
Yale Journal of Law and Feminism
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discovery) of the violence and coercion in women's lives, particularly
surrounding sexuality, and, likewise, from the discovery that-accordinglywomen's sexual preferences and choices often tend toward the satisfaction of
the desires and interests of their stronger mates, surely it is not unreasonable to
infer that women's sexual appetites-women's felt desires-effectively bear
the polluted mark of this oppression. Not unreasonable, perhaps, but is it
accurate? Do women's sexual desires actually bear the polluted mark of this
oppression? Where is the evidence?
Perhaps-just perhaps-the broad-based distrust of sexual desire is not
warranted, even granted the case for a broad-based skepticism directed toward
women's sexual choices and preferences. The violence and coercion at the core
of the new plot MacKinnon has unearthed unquestionably force women into
sex that is non-consensual. Less visibly, violence and coercion constitute
background conditions-MacKinnon's Day One-that facilitate the
expropriation of undesired, unwanted sex from women in particular
transactions that may nevertheless be baldly consensual. There is no doubt in
my mind that all of that non-consensual, as well as consensual but unwanted
sex has undermined women's quest for equality, liberty, and human dignity.
That, I have argued, is the central and vital message of Feminism, Modified.
However, it does not logically follow from that central message, nor from any
of the actual sexual histories Catharine MacKinnon has uncovered, nor from
the activism or scholarship that her new plot has triggered, that all of that nonconsensual, undesired, and unwanted sex has in some deep way reconfigured
women's sexual desires or that the unwanted sex has paradoxically become an
object of desire for women. It certainly doesn't follow, nor is it evidenced by
those sexual histories, that some women's desire for non-conventional sex,
including for sadomasochistic sex, has in any way thwarted women's political
path toward full equality. There seem to be neither instrumental nor intrinsic
harms in sex that is consensual and desired, no matter how non-vanilla, and no
matter how "hierarchic."
The insistence that there is-the insistence, in other words, particularly
when put on purely theoretical rather than empirical grounds, that women's
sexual desires are themselves the root of the problem-is just a giant nonsequitur threatening to derail an incredibly worthy project. The sex prompted
by women's felt desires is not what harms women. What harms women is the
I think that sexual desire in women, at least in this culture, is socially constructed as that by
which we come to want our own self-annihilation. That is, our subordination is eroticized in
and as female; in fact, we get off on it to a degree, if nowhere near as much as men do. This
is our stake in this system that is not in our interest, our stake in this system that is killing us.
I'm saying femininity as we know it is how we come to want male dominance, which most
emphatically is not in our interest. Such a critique of complicity ... does not come from an
individualistic theory.
FEMINISM UNMODIFIED, supra note 13, at 54. See also FEMINIST THEORY OF STATE, supra note 1, at
129-131.
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sex that happens in the absence of desire: the stranger rapes, marital rapes, date
rapes, and violent rapes; but also the harassment, the assaults, the street
hassling, the trafficking, the teenage prostitution, the child prostitution, and so
on, and so on, and so on. The sex that is non-consensual and the sex that is
consensual but unwelcome, unwanted, and undesired are both harmful, hurtful,
oppressive, inegalitarian, self-alienating, and (not to be forgotten) painful. We
should be targeting the institutions, practices, and cultural beliefs that so
efficiently produce both protections around rape and all that consent to all of
that sex that envelops us but that we do not desire and that objectively harms
US.
At the core of the second, less-than-promising resolution-suggested by
MacKinnon's current postmodem critics-lies a full-throttle distrust of
women's testimony to their own violation. As discussed above, such a distrust
might have two different yet overlapping roots: first, a libertine embrace of
sexuality in all its guises, including when it is aggressive, domineering, and
enmeshed in plays for and of power, so long as it skirts laws against rape; and
second, a distrust of women's capacity for telling the truth, particularly
whenever allegations of sexual assault are made,20 3 on the grand and heroic
assumption that women have so internalized societal norms against nonsanctified sexuality that they willfully or unconsciously vilify all non-marital
sexual interactions as unwanted. This Halley-Schultzian story, like
MacKinnon's distrustful story, is not a completely unreasonable resolution of a
half-told plot. Yet, also like MacKinnon's story, it isn't warranted. Women
don't seem to have a particularly strong capacity to lie about their own
violation. We may impose and face greater sanction for false stories of sexual
abuse than for lying generally. And surely consensual sex-the sex that is not
rape-is not so demonstrably and invariably productive of so much
unadulterated pleasure for all participants that we should always blindly
applaud it, even when it is unwanted. Unwanted sex is not so harmless, nor
women so deceitful, as to warrant either blanket distrust or, perhaps more to the
point, a world-wide and world-weary dismissive shrug of the shoulders: "All of
this is just too damned trivial for me to care, particularly if it threatens the hot
pleasure of the expropriator."
A third possible unwinding of this narrative sub-plot would be truer to both
the feminist and the Marxist roots of Feminism, Modified than either story told
above: We should respect women's claims of unwanted sex, no matter how
trivial they may sound, and we should honor (as in, leave be) women's felt
203. Halley equivocates somewhat on whether she believes women are willfully lying, when
making claims of sexual assault, abuse, rape, or harassment, or whether she thinks women are
misconstruing facts to further their own falsely puritanical version of their own self-understanding of
their own sexuality. She is clear, though, that for whatever reason, we should from here on out be
skeptical of women's claims, whenever they claim sex abuse-thus, queer theory's deep departure from
feminism. Halley, supra note 15, at 197.
Yale Journal of Law and Feminism
[Vol. 17:385
sexual desires, no matter how non-vanilla. Thus, we should take very
seriously-far more seriously than do the postmodern critics-not only
women's allegations of rape, but also women's claims of unwanted,
unwelcome sexual harassment, on the job and otherwise. On the other hand, we
should quit taking so seriously-in fact, we should take with a sizable grain of
humor-the sexual forms, including sadomasochistic forms, in which women's
felt sexual desires are manifested. If you want it, desire it, and welcome it, well
then go for it, take it, or submit to it-or not-and enjoy. If you don't want it,
though, and you don't desire it, and you don't welcome it, but you suffer it
anyway, and if you do so out of the need to work, or survive, or eat, or raise
your children, or get along with your neighbors or your family or your peers or
your God, then you should change course radically and, if certain legal
conditions are met, you should also complain when you can-and loudly. And
what of the rest of us? It seems to me we should trust a woman's right to seek
the sex she desires, and we should honor her right to resist the sex that is
unwelcome, as well as the sex that is coerced.
This third plot, which tracks the law we now have, counsels the lawmaker
and theorist to avoid two (I believe twinned) pitfalls: first, the over-regulation
of desire-the risk at the heart of virtually all of the earlier liberal feminist
critiques of Feminism, Modified, as well as a good bit of the postmodem; and
second, the over-valorization of desire. There is nothing to be gained and much
to lose in holding desire to the critical lamp of political rectitude. There is even
more to lose, though, in holding politics to a critical lamp fueled by the content
of sexual desire. Reflection on the content of our sexual desires might fruitfully
inform our story-telling, our therapy, our memoirs, our fiction, perhaps our
self-understanding, and certainly our gossip. It is just not clear how it can
possibly inform or be reflected in our law.
By the same token, though, sex that is not desired ought to indeed be
criticized and, if objectively (and convincingly) harmful, should be the
predicate for legal recourse. The sexual practices and institutions within which
women consent to sex they do not desire, want, or welcome, as well as the
choices women make under conditions of inequality to partake in those
practices and institutions, should likewise be subject to critique. The new plot
MacKinnon invented, re-modified in this way, avoids both these pitfalls. It
subjects not only the heretofore unseen violent rape, but also the heretofore
unseen harms of unwelcome sex and the practices that produce it, to political
scrutiny and, if well-specified conditions are met, to legal compensationshould that sex happen to occur at work.
Let me finish by elaborating on the powerful analogy with which
MacKinnon opened Toward a Feminist Theory of the State. Wage labor, as
Marx helped us to see, can be extraordinarily harmful, alienating, and
subordinating, even though it is not slavery. Unwelcome, unwanted, and
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undesired work, even that which is consensual within the terms of labor
markets, can cause tremendous harm. That wage labor is consensual might
make it "not slavery," but it does not make it good. In a system that permits the
accumulation of capital and, hence, the exploitation of laborers, it is the
necessity of self-preservation, not the pleasure of productive engagement with
the world's resources, that prompts a worker's consent to arrangements
profoundly not in his own interest. Albeit consensual, the work is not
objectively "good" for the laborer or for the society that tolerates his
exploitation. That is the essential, radical message heard round the world,
which emanated from Volume One of Marx's Capital.
Likewise, consensual sex, when motivated by necessity and selfpreservation, rather than by pleasure, can objectively be tremendously harmful,
de-humanizing, self-alienating, and physically injurious. The institutions and
practices that structure our lives, our choices, and our sexual histories-the
conditions that engender unwelcome sex in all spheres, not just employmentought rightfully to be subject to feminist critique, no less than the institutions
and practices that engender wage labor ought to be subjected to Marxist
critique. That is the essential message of Feminism, Modified: The regime of
consensual sex, under the sexual system for which we have no name, should in
essence be subjected to the same sort of radical critique as the regime of
consensual labor under the economic system called capitalism. What Marx so
stunningly subjected to criticism was not slavery but, rather, the regime of
consensual labor traded as a commodity for a price in capitalist markets. The
new plot that Feminism, Modified introduces, likewise, focuses our critical
attention on the regime of consensual sex traded for security, or perseverance,
or survival, or peace of mind, in a patriarchal world. That the object of that
consensual trade is unwelcome, undesired, unwanted, undesirable, and
profoundly injurious is the radical insight at the heart of both Marx and
MacKinnon.
The "new plot" that Marxism interjected into western liberalism, however,
did not disdain the genuineness of the human being's desire to work; to impact
upon the world; to interact with and reshape the given; to provide for one's
dependents; to create shelter, clothing, and sustenance for oneself, to produce
and enjoy art, culture, industry, transportation, high literature, or popular
music; or to mix one's labor with the earth's resources. What Marx taught us to
hold at critical distance was not the desire to work, but the undesired,
unwelcome, and harmful work to which workers proffer their consent because
it is essential to their survival in a world of capital and labor. He counseled
skepticism of their free choices to engage in such labor, when the work is
sought out by the laborer not because it is desirable, but because of its
preservative promise.
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Likewise, the best interpretation of Feminism, Modified pushes us to hold
at critical distance the full panoply of sexual choices women make and the
sexual lives to which we consent, when those lives and those choices are
objectively harmful and injurious and subjectively without desire, without
welcome, without want. When we hold this firmly in the mind's eye, we can
see that the incentives, the demands, the threats, and the undermining of selfinterest and self-worth that prompts those sexual lives and choices are coercive
and unjust, that the lives which they create are unequal, that the "free choice"
they evidence is illusory, and that the pleasures that supposedly legitimate those
choices all are non-existent. The lesser quality of life, when such sex is at the
center of it, is what MacKinnon's new plot directs to the center-stage of our
attention. With critical inquiry thus honed, the institutions that create and
protect these paltry and inhuman choices might someday be thoroughly
discredited. With due help from law, the master's house may even be
dismantled as well. If so, it will be done with the tools of the legal trade that, in
large part due to Catharine MacKinnon's extraordinary labors, may yet belong
to us all.