15 December, 2006Issue 6.1North AmericaPolitics & SocietyWorld Politics

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International Grassroots Feminism?

Alix Rule

Catherine MacKinnon
Are Women Human?
Harvard University Press, 2006
432 pages
ISBN 0674021878

For three decades feminist theory has been used by American scholar Catherine MacKinnon as a ‘club’ for ‘smashing up hierarchy.’ The turn of phrase is characteristically her own. Having begun her career as a righteous critic of the male bias of the ‘neutral’ liberal state as a graduate student at Yale in the 1970s, she made her career on the intellectual front lines of North America’s second wave feminist movement. MacKinnon represents for many a generation of feminists who are not well loved these days. Fellow self-styled feminist Camille Paglia calls MacKinnon ‘a totalitarian,’ a ‘wet blanket sermoniser,’ and the ‘mad-hatter of feminism.’ Meanwhile, those on the Right continue despise her; male colleagues at the Center for Advanced Study at Stanford complain that she is ‘a bully.’

But at a moment when radical feminism is experiencing a serious crisis of popularity in North America, MacKinnon’s new book serves as reminder of all the work that feminist political theory has achieved in the past three decades. Are Women Human? presents MacKinnon’s theoretical legacy afresh, prompting us to assess the state of her ongoing project of winning justice for women through radical legal reform.

To misappropriate the Marxist adage, MacKinnon’s self-appointed task as a theorist has always been to change the world rather than remaining content describing it. She has certainly left her mark on Anglo-American law. Most notably, she has helped define what legal equality ought to mean for women as members of a socially subordinated group. Sexual harassment has been just one area in which MacKinnon and her colleagues and her colleagues began slowly to carve women’s experiences into the law of a state that was—as they argued—the property of men. With The Sexual Harassment of Working Women and the legal casework that it accompanied, MacKinnon argued that workplace harassment was a practice of discrimination against women as women—and hence a violation of their civil rights. In a retrospective assessment of her own work, MacKinnon notes that:

now when a woman is sexually harassed and speaks of it, she is not simply speaking in a different voice or narrating her subject experience of the situation. She is saying what happened to her. And what happened to her, when it happens, is now authoritatively recognized in law as inequality on the basis of sex …

Thus, critics on the Left and Right who blame MacKinnon for the moralistic hysteria around sexual harassment generally miss this point. The significance of sexual harassment laws lies less in what it has prevented men from doing, and more in what it has to enabled women to do: to speak about harassment—and to be taken seriously.

Understanding MacKinnon demands some attention to methodology. The distinctive perspective of feminist theorizing a la MacKinnon is that to make a difference to the reality of women’s lives, it also needs to be grounded in that reality. The terrifying prevalence of violence against women in their homes—the exploitation of women’s domestic work, the normality of abuse by colleagues, family and strangers—all needed to be ‘discovered,’ because existing conceptual and legal systems had protected and concealed them. And since notions of objectivity had been given from the perspective of men—in philosophy, law, political theory, etc—feminists’ controversial task was to draw on the experiences of women to construct new categories for bringing their women’s own ‘reality’ into public discourse.

In this, feminist theory and the grassroots women’s movement with its various practices of consciousness-raising were inseparable allies. ‘Our priority,’ as MacKinnon writes, ‘was gaining access to the reality of our collective experience in order to understand and change it for all of us in our own lifetimes.’

Are Women Human?, a collection of essays, law review articles and speeches written over the last decade, documents the extension of MacKinnon’s work to the international level. For women to be human under international law would mean that gender-specific violations (e.g. rape and sexual violence, human trafficking and female genital mutilation) be treated as equivalent to the human rights abuses currently encoded and enforced. Torture names a category of violation that is recognised as objectively defined, and sanctionable through international legal regimes. What would it take to make the types of violence that characterise women’s lives recognized in the same way? Again MacKinnon’s claims are controversial.

MacKinnon is confident that ‘Human rights in the real world are proving far less attached to their Enlightenment baggage’ of natural law ‘than are the intellectuals who guard its theory.’ (The baddies in this instance are conservative legal scholars and postmodern academic feminists alike.) Her case study is Kadic v. Karadzic, in which MacKinnon used the U.S. Alien Tort Claims Act successfully to win more than half billion dollars in damages on behalf of Muslim and Croatian women raped under the Bosnian regime during the early 1990s. For the first time, the rape perpetrated against the female survivors was recognised as an act of genocide.

MacKinnon sees international law as leading the way towards redefining rape as something that happens to women as a part of a subordinate group. Regarding rape as akin to torture would establish it as an act perpetrated against both an individual and an entire group—a ‘systemic and systematic’ act of hatred. Recognition of women’s fundamental equality—an equality not based on sameness but on status—must follow, worldwide. Incorporating other gender-specific abuses into international human rights law will, according to MacKinnon, begin to give human rights a woman’s face, making these rights ‘worth our having.’

Yet the optimistic view of human rights law is as vehicle for gender justice is surprising (MacKinnon’s Kadic victory notwithstanding). Indeed, MacKinnon fails to provide a solid argument for it. In the entire collection there are but a few gestures along the way. The introduction to Are Women Human?, the author indicates breezily that the problems for women today are international in scope; states are losing their power and credibility as enforcers of law even within their borders anyway, and that the women’s movement is a global one.

For one, the issues MacKinnon flags are not entirely new. Trafficking and rape in war were ripe for debate at the League of Nations. Likewise, globalization has not diminished the importance of the domestic realm in combating ’sex tourism,’ or ‘cheap female labour.’ It remains unclear why remedies at the level of international human rights law would be the most efficacious, given the absence of credible international authorities. Mysteriously, MacKinnon even implies that human rights law may be an effective route for tackling gender hierarchy because there are no enforcement mechanisms:

International law—like women largely lacking access to legitimate force to compel adherence to its will—has had to develop a wider range of means to be effective. Not to valorise lack of enforcement, but force is not all there is to effectiveness or even to power.

But MacKinnon is quite wrong to suggest that states’ apparent ‘illegitimacy’ should mean that it is increasingly irrelevant to women. Indeed, the claim that it is not worthwhile for women to fight for the reform of the modern state is a dangerous—especially since she does not explain the alternatives to force on the international level to which she alludes. At least democratic nation-states are accountable in principle to their populations. As American feminist philosopher Martha Nussbaum puts it, ‘the state is the largest unit we know of so far that is decently accountable to people’s voices.’

But this preference for the international realm presents a more fundamental problem for MacKinnon—it strains her ‘bottom up’ credentials and her professed commitment to grounding feminist critique in women’s shared experiences. The international women’s movement, such as it currently is, must faces two obstacles in playing the role MacKinnon envisages. First, how can the realm of international politics offer ways for ‘the grassroots’ to be heard—let alone headed? Second, and related to this, how far may we consider the collection of NGOs and UN agencies campaigning for women on the international level today ‘the grassroots’?

In the end, one cannot help feeling that MacKinnon’s recent turn to international law has more to do with frustration with what the feminist movement has achieved in the US than with the theoretical justifications she provides. Noticeably absent from Are Women Human? is news of legal or constitutional gains for women within the US since the 1980s (though the three essays on the progress of sex equality law in India, Canada and Sweden are more inspiring, and are interesting in their own right). It seems clear that MacKinnon has her home country in mind when she writes:

if [women’s equality law] depends on goodwill and political commitment to work, its secular tendency will be to fail exactly for those people and at those times when the egalitarian spirit is lacking, which is just when it is needed the most. And that, in fact, is what has arguably happened. Sex equality laws exist nearly everywhere, and sex equality exists virtually nowhere.

Perhaps this ought to be a wake-up call for the American women’s movement which taught MacKinnon ‘everything she knows.’ One thing is certain: we cannot rely on a international grassroots movement in the absence of one at home.

Alix Rule is a graduate in philosophy, politics and economics from Oxford. She lives in London.