Can the law be feminist?

Lorna Finlayson

  • Butterfly Politics by Catharine MacKinnon
    Harvard, 490 pp, £23.95, April 2017, ISBN 978 0 674 41660 4

Catharine MacKinnon believes that sexualised domination and violence, by men over and against women, are at the root of sex inequality. The conviction at the centre of everything she writes is that men’s domination and violence are pervasive in contemporary societies, and that their pervasiveness is intimately linked to the pornography industry, which exploded in the 1980s and has been growing ever since.

MacKinnon and her close collaborator Andrea Dworkin set out to take on the pornographers, and to do it on MacKinnon’s home ground: the field of law. As they saw it – Dworkin died in 2005 – they faced nearly insurmountable obstacles, including a widespread blindness to much of what they were urging us to see. In societies ‘saturated’ with pornography, we see domination as sexy, violence and torture as sex, coercion and abuse as ‘choice’ or ‘speech’; in prevailing liberal approaches to law and philosophy, inequality appears as ‘mere difference’, and what reflects and serves the interests of men appears as universal or ‘gender neutral’. MacKinnon’s mission ‘to change the world for women’ (as the title of one of her early essays puts it) must therefore include a project of ideology-critique or consciousness-raising, aimed at revealing what, in pornography, is taken as ‘sex’ or ‘speech’ for what it really is – the violent subordination of women – and at unmasking false neutrality (in, for example, employment law) as the theory and practice of patriarchy.

This explains – and from MacKinnon’s perspective, amply justifies – the repetitive quality of much of her work: the message must be hammered home, and hammered again, so powerful is the opponent, its grip on our minds and bodies alike (‘Try arguing with an orgasm’). It is also, I believe, what makes the best sense of MacKinnon’s refusal – frustrating to feminists of a more ‘normative’ inclination – to get mired in ‘moral’ arguments. Through case after devastating case of rape, violence, enslavement and torture, she confronts us instead with the real and the concrete. She isn’t here to tell us that the treatment of women is unjust or wrong. No such argument would be necessary if we could see the world as it is. Her aim is to make us see it.

Butterfly Politics spans MacKinnon’s career to date, bringing together decades’ worth of her interventions as a lawyer, legal scholar and feminist activist, and including a substantial amount of previously unpublished material, much of it transcripts of speeches or addresses delivered to law students or women’s organisations in the US and elsewhere. Alongside familiar analyses of topics including pornography, rape, prostitution, sexual harassment and the concept of ‘equality’, she also makes space for some reflections on the role of the feminist activist in political and social change. Her fundamental question, simply put, is: how can something small (like an individual) change something big (like patriarchy)? Metaphors suggest themselves: a domino topples, triggering others to fall one by one; a tiny spark starts a blazing fire; one thing is a ‘catalyst’ for something else. MacKinnon goes for the butterfly. According to chaos theory, a single beat of a butterfly’s wings can result in a tornado on the other side of the world. In the same way, MacKinnon believes, ‘the right small human intervention in an unstable political system can sooner or later have large complex reverberations.’ In her own case, she claims, forty years of ‘flights of activism’ have produced or are producing ‘storms, sometimes tornados, in gender relations through law’.

MacKinnon’s work has been sharply criticised, by fellow feminists as well as their traditional opponents. Many liberal feminists find her diagnosis too pessimistic and her solutions authoritarian. She is accused of treating women as victims, of ignoring the agency and voices of those who work in prostitution or pornography. (MacKinnon replies that, on the contrary, she is listening, as few are prepared to do, to the women harmed by and in these industries, who come to her for representation.) She is accused of advocating censorship. (She counters that this rests on a basic misrepresentation of her work: she and Dworkin advocated a civil, not criminal, ordinance aimed at empowering women harmed as a direct result of pornography to claim damages from those who produced and distributed the material that harmed them.) She has been accused of jumping into bed with the religious right, who oppose pornography on the non-feminist, moralistic basis that it is ‘obscene’. (MacKinnon replies that this is simply false: her and Dworkin’s anti-pornography ordinances received no significant support from the right.)

More troubling to my mind, but broached far less often, is the question of whether it makes sense for feminists to attempt to change the world by changing the law. The worry isn’t so much that strengthening the hand of a patriarchal state can only be bad for women; MacKinnon doesn’t want to strengthen the state exactly, but to adjust the law so that state power is exercised in a way that promotes sex equality instead of maintaining and entrenching male dominance. Rather, the concern is that it’s possible that no amount of adjustment could convert the law – or at least, the law in a liberal capitalist state – into a vehicle of genuine emancipation for women. To take that concern seriously isn’t necessarily to renounce all efforts at changing the law, though there may be some legal ends that are barely worth pursuing (this was Emma Goldman’s verdict on the ‘fetish’ for suffrage, as she saw it, in the women’s movement of the early 20th century). Law is not epiphenomenal: it is not without effects – not even the vulgarest of vulgar Marxists thinks that. Law both reflects and, typically, upholds the form of society in which it exists, and when social change occurs, legal change typically occurs too. But that doesn’t mean that legal reform is what propels societies in transformation. Accordingly, it isn’t clear that feminists should treat legal objectives as central, either as ends in themselves or as engines of social change.

At her best – in ‘To Change the World for Women’, for instance – MacKinnon makes explicit her recognition that the law is just one of the tools at the disposal of women who want to change the world, and that it is one with significant limitations. She also acknowledges that legal change often comes on the back of social movements. But in the end, she is a lawyer, and her political theory reflects this. It is as tightly focused on legal measures, above all against pornography and prostitution, as many of the ‘first wave’ feminists were on the issue of suffrage. And in one sense, there is nothing wrong in that. We do not all have to do the same thing. There are innumerable possible ‘butterfly effects’ we can hope to set in motion as proponents of feminist (and other forms of) social change. People set off such effects every day as a result of the ways they raise their children or treat their friends (and enemies, and strangers). Then there is the teacher who subverts the ways in which the education system props up power, making a difference to a few who may in turn make a difference to many more; and sometimes that teacher will also be someone who changes the way teaching is thought about and practised by others. A gynaecologist may help many women and save many lives over the course of a career; some gynaecologists may also improve the way the treatment of all women is conducted. And if the teacher or the gynaecologist also writes about what they do, we wouldn’t normally be justified in complaining about this on the grounds that teaching, or gynaecology, is not an important engine of social change. MacKinnon’s contribution, even if it were confined to what she has done for individual women in court, is not nothing. Far from it. And the effect of her work as a lawyer goes beyond this circle, as it must. To narrate and to promote that work seems fair enough, and is arguably an integral part of the contribution MacKinnon seeks to make.

It makes all the difference, then, whether we take MacKinnon’s butterfly to be merely a flamboyant illustration of the obvious truth that small actions can set in train bigger changes, or to emblematise a more general theory of history according to which small actions – legal innovations in particular – are the motor of historical development or somehow central to the process of social change. MacKinnon would, I believe, disown the second interpretation, but either way, it doesn’t seem to me that the butterfly effect is an especially useful analogy in understanding political cause and effect. An essentially chaotic phenomenon is a poor model for the kinds of strategic intervention she advocates. Edward Lorenz, the originator of the butterfly trope, wasn’t asking us to imagine a remarkably clever insect calculating exactly how and when to flap its wings in such a way as to produce a storm in, say, Ipswich. The butterfly neither controls nor knows the effects of its flapping. Moreover, the success rate of the average butterfly in producing tornadoes is very low indeed. Even the gloomiest political activist probably rates her odds of causing change higher.

It is unlikely that MacKinnon hasn’t noticed the imperfections of the metaphor. It is also unlikely that she cares. She sees herself first as a feminist activist: someone who does it rather than theorising (much) about doing it. Several of the pieces in Butterfly Politics are records of speeches she delivered to law students, urging them to face down obstacles and use their training for the pursuit of social change. The recognition that anything could in principle cause anything else – and that there is no way of predicting what will have what effect – would be pretty useless as a guide to activist practice, but is perhaps more helpful as a tonic against depression or paralysis in the face of apparently inevitable failure.

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In 2008, MacKinnon accepted an honorary doctorate from the Hebrew University of Jerusalem, ‘in deep recognition of her important and pioneering contribution to equality between the sexes and human rights, and in thanks for her warm friendship with the Hebrew University’. One of the people honoured alongside her was Bernard-Henri Lévy, the French philosopher and critic of ‘Islamic extremism’, who in an interview in 2006 distilled his objection to the wearing of the hijab: ‘The veil,’ because it conceals the all-important face, ‘is an invitation to rape.’ In 2008 there were two military assaults by Israeli forces against the inhabitants of Gaza, in one of which, Operation Cast Lead, more than 1400 Palestinians and 13 Israelis were killed. The outrage sparked by the violence prompted a wave of student occupations of university buildings in the UK, and contributed to the growth of the Boycott, Divestment and Sanctions movement among academics.

MacKinnon did not join the boycott. She returned to Israel in 2014 and delivered a speech at the Kiryat Ono Academic College in which she praised the Israeli Defence Force (IDF) as ‘the only army in the world that does not rape the women of its occupied people’. In fact, Israeli forces have raped and sexually abused women. The right-wing historian Benny Morris has documented the multiple incidents of rape and murder of Palestinian women and girls that occurred in 1948 (he suspects these attacks are just ‘the tip of the iceberg’). Although the prevalent view, which Morris shares, is that Israel has since then avoided using rape as a weapon of war, a report from 1991 by Amnesty International refers to testimony from Palestinian women that Israeli security guards groped them and threatened them with sexual violence, and it has been reported that in the conflict in Gaza in 2014 (Operation Protective Edge) prisoners were threatened with the rape of their wives.

It is hard to reconcile all this with the Catharine MacKinnon who prides herself on listening to women, on giving a voice to those who have been silenced, and who knows that speech is never ‘only words’ (the title of her book on pornography from 1993). What she said in Tel Aviv about the IDF wasn’t a mere utterance but an intervention in the world: one of the actions it performed was to contribute to the silencing of Palestinian victims of sexual violence.

That MacKinnon should choose this path makes sense only once it is grasped that she subscribes to a broadly pro-American narrative when it comes to global politics. In a paper from 2006 titled ‘Women’s September 11th’, not included in Butterfly Politics, she draws an extended parallel between terrorism and violence against women. The number of people killed in the 9/11 attacks was, she points out, similar to the number of women killed by men each year in the US. Moreover, both types of violence are perpetrated by non-state actors, and both issue from a ‘masculine ideology’. She then hints that something like the war on terror might appropriately be unleashed on patriarchal societies across the globe:

The post-September 11th paradigm shift, permitting potent response to massive non-state violence against civilians in some instances, exemplifies if not a model for emulation, a supple adaptation to a parallel challenge. It shows what they can do when they want to. If, in tension with the existing framework, the one problem can be confronted internationally, why not the other?

MacKinnon’s parallel generates some unintended consequences. For unless you believe that terrorist violence against the US has nothing to do with American foreign policy, then filling out the analogy between the terrorism and male violence against women requires us to claim something like the following: that just as certain forms of terrorist violence against Americans must be seen against the background of the damage done by American forces in other parts of the world, so when women are killed by their male partners, this must be seen in the context of some great injury or oppression that women have inflicted on men. Are we supposed to conclude that male violence against women is, like Islamist terrorists’ attacks on ‘our way of life’ (in MacKinnon’s conventional casting), a response to something far greater in scale – something comparable to the destruction of entire Middle Eastern societies and their ways of life? And if the attack on the World Trade Centre had its roots in a ‘masculine ideology’ (MacKinnon bases this on evidence that the Egyptian Mohamed Atta, one of the ringleaders of the attack, held misogynistic views), then presumably an analogy could just as appropriately be drawn between domestic violence against women and the American invasions of Afghanistan and Iraq. Or can America – and George W. Bush, who presided over the Republican ‘War on Women’ – somehow be dissociated from misogyny or a ‘masculine ideology’?

MacKinnon is vague as to what exactly should be done to ‘confront’ the problem of violence against women internationally. But any hope that she might distance herself from the wars that have already been waged partly in feminism’s name – including those in Afghanistan and Iraq, for example – is quickly dashed: ‘In the American war against the Taliban,’ she reflects, ‘for a brief moment women had a foreign policy, or briefly became part of a pretext for one.’ There is a sizeable difference between being part of a ‘pretext’, on the one hand, and being an agent, motivation or beneficiary of an intervention, on the other. But the distinction doesn’t seem especially important to MacKinnon, who waves at the idea of America waging a feminist war, but stops short of an explicit commitment on the matter. She does ask why the treatment of Afghan women wasn’t a reason for military intervention before 9/11. But while others who have asked that question have also spoken out against recent American wars, she says nothing about the documented consequences of the wars in Iraq and Afghanistan, which have had a disproportionate effect on women, killing and maiming them and their children or forcing them into poverty and prostitution. Nor does she mention that the wars have ended in the installation of regimes – such as the Karzai government in Afghanistan – that have restricted women’s freedoms in many of the same ways the Taliban did. The point MacKinnon wants to make in posing this question, we may infer, is not that the feminist pretext of these wars is bogus, an excuse for more violence against men and women alike (even as she does not rule this out), but that the treatment of women in countries such as Afghanistan is a just cause for ‘humanitarian intervention’ – and that an intervention should have been made sooner.

The difference between MacKinnon and a typical pro-war American feminist is that MacKinnon has a far bleaker view of the condition of women in Western countries. As she sees it, they need more than top-level representation – in the form of a female president, for example – to perfect their equality. They are systemically brutalised in a society that refuses even to recognise what is going on. This raises the question of whether America, too, might be a legitimate target of humanitarian intervention. But that doesn’t seem to be what MacKinnon has in mind when she asks: ‘Will the marines never land for them?’

MacKinnon’s general point here is that when the powerful see something as important enough and as a grave enough threat, they do something about it, but they don’t do anything about the normalised and endemic violence against women. When violence happens to a woman, it’s ‘just the way things are’, or it’s complicated, or she wanted it, or it didn’t happen at all. In a particularly powerful passage, MacKinnon describes the dignity and publicity accorded to the victims of the 9/11 attacks, and asks rhetorically whether pictures of the women among the dead would have been printed had they instead been the victims of lethal violence at the hands of male partners.

She might argue that her core point does not, in fact, rest on any particular narrative about America’s conduct in the world. But it isn’t up to MacKinnon alone to decide which of her points are central and which aren’t. In pointing out the double standards that normalise or erase violence against women while licensing action and outrage over comparable instances of violence, she also conforms to the framing of 9/11 as an attack on the American way of life (as opposed to a predictable consequence of US atrocities abroad); she contributes to the impression of the war on terror as a ‘potent response’ (presumably not referring to its potency in proliferating terror around the globe); and she entertains an expansion of ‘humanitarian intervention’ in the name of feminism. For the women on the receiving end of the American mission, these points may seem central.

There are those who insist that feminism can be kept apart from divisive issues such as race, war and colonialism. ‘Peace is not a feminist issue,’ the president of the National Organisation for Women, Eleanor Smeal, said in 1980. In the 19th century, leading white feminists warned against ‘mixing up’ the movement for women’s suffrage with the issue of the abolition of slavery, and in some cases expressed outrage at the prospect of black men being enfranchised while ‘more deserving’ white women were denied the vote. The inseparability of MacKinnon’s sexual and global politics is most vividly apparent in her discussion of the torture of Iraqi prisoners by American personnel at Abu Ghraib. Her response to the images of the abuse was to declare them ‘mild’ by ‘pornography’s standards’. She wasn’t alone. Rush Limbaugh couldn’t see what all the fuss was about: the photos looked like ‘standard good old American pornography’. The difference is that while Limbaugh was playing down the severity of what had happened by comparing it to something he sees as unobjectionable entertainment, MacKinnon was comparing what she sees as two kinds of torture, only one of which is recognised as such. When many of the same things that are routinely done to women and sold as entertainment are done instead to men, the world is shocked. When they are done to women, the assumption is that they have consented to it (which is very often false, according to MacKinnon), and that it is benign (which is deeply questionable, as the American feminist Susan Brison has argued, with or without the assumption of consent).

MacKinnon has a point. But something has gone badly wrong here. It isn’t, or isn’t just, that pornography and the images from Abu Ghraib are disanalogous. True, Abu Ghraib was a military prison, a place where the victims were almost totally powerless; consent would be virtually meaningless in such a setting even if it had been given. MacKinnon would agree, but insists that this is also true of many of the women used in pornography: if not currently underage, then they will usually have been abused and initiated into the use or production of pornography as children; if not literally imprisoned or held at gunpoint – as in several of the cases she describes – they will often be prisoners to poverty and drug addiction. If we can see torture in one case, MacKinnon demands, why can’t we see it in the other? She thinks the reason we often can’t see what is done to women as torture is that they are women. I believe she is right about that. She thinks one of the things 9/11 showed us was that some deaths are considered worthy of being mourned and avenged, whereas comparable numbers of deaths of women at the hands of men are not. She is right about that too. But her handling of the Abu Ghraib case makes a further statement. It says, in effect, that Arab and Muslim lives matter in the eyes of the world – that is, of the world’s dominant powers – as the lives of women (of all races) do not: if not always enough to avoid being tortured, then enough to have what is done to them recognised for what it is. Which is ironic, given that the American administration under George W. Bush redefined the category of ‘torture’ so that many ‘enhanced interrogation techniques’ would no longer qualify, an intervention which helped unleash the epidemic of abuse of which the Abu Ghraib images have become the most recognisable emblem. Abu Ghraib may have provoked outrage, albeit of a limited and largely ineffectual kind (a handful of low-ranking soldiers were given prison terms; only one senior figure received any significant penalty – a lowering of rank). But things can be done to men and women in the Middle East that would, if done to Americans – men or women – be seen as unspeakable violations: September 11th and its aftermath showed us that, too.