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through an analysis that reveals the arti¬ciality of the dominance of men over
women, and its re¬‚ection in the construction of the sexes as we know them.


B. The Dominance Approach
For MacKinnon, the inequality of men and women, properly understood as
the dominance of men over women,35 is the source of the difference between
the sexes rather than one of the possible consequences of that difference.36
Discrimination against women is not a matter of treating women arbitrarily or
irrationally, but of treating them as less.37 It is to be looked for not merely in
individual decisions that disfavour women but in the fabric of society as a whole
and the manner in which it constructs the concepts of maleness and femaleness,
for it is through the de¬nition of sex that the subordination of women is primarily
established and enforced.38 The pursuit of equality is thus a matter of probing
the social construction of sex, and demanding an end to hierarchy there.
In MacKinnon™s words, this is an approach that “tries to challenge and
change” the reality of sexual difference, rather than merely to map it:39
Here, on the ¬rst day that matters, dominance was achieved, probably by force. By
the second day, division along the same lines had to be relatively ¬rmly in place. On

35 To repeat, in Sexual Harassment of Working Women, supra n. 1, MacKinnon calls this approach
the inequality approach; in Feminism Unmodi¬ed, supra n. 1, she calls it the dominance approach.
“In this approach, an equality question is a question of the distribution of power” ( id. at 40).
36 Feminism Unmodi¬ed, supra n. 1, at 51.
37 Id. at 43.
38 Id. at 51.
39 Id. at 44; see also id. at 40.
II. Difference and Dominance 51

the third day, if not sooner, differences were demarcated, together with social sys-
tems to exaggerate them in perception and in fact, because the systematically differ-
ential delivery of bene¬ts and deprivations required making no mistake about who
was who.40

i. the social construction of gender. For MacKinnon, as I have em-
phasized, gender is a social rather than a biological condition. As she puts it,
“[g]ender has no basis in anything other than the social reality its hegemony
constructs”.41 People™s existence as men or as women is established by their
birth, but their existence as male or as female is established by society. “Masks
become personas become people, especially when they are enforced.”42 Being
a man, therefore, is not a necessary, nor always a suf¬cient condition for the
enjoyment of male power: some men lack access to that power; some women
can aspire to it:43

[T]he fundamental assumption of the inequality approach . . . is that the social mean-
ing given to the gender difference has little or no biological foundation, nor is biol-
ogy itself even particularly relevant. The issue is not that some differences are social
while others are biological, but which of the social disadvantages of sex courts will
prohibit.44

In the case of our society, the governing basis for the construction of sexual
identity is and always has been the dominance of men and the subordination
of women. What we perceive as the male sex, therefore, is the record of the
dominance of men, and what we perceive as the female is the record of the
subordination of women. In short, maleness describes the qualities associated
with the exercise of power; femaleness describes the qualities associated with
the condition of powerlessness. Those women who gain a degree of power
become male to that extent; those men who lose it correspondingly become


40 Id. at 40.
41 Id. at 173. MacKinnon™s argument here might be criticized for its reliance on the existence
of a natural dominance that her theory denies. If on the ¬rst day that matters men achieved
dominance by force (see note 40 and accompanying text), they then enjoyed some degree of
natural dominance: those who can achieve dominance by force by de¬nition possess the capacity
to dominate. Yet she denies that any dominant quality is natural to one sex and not the other: see
her discussion of physical strength, id. at 120. In my view, however, there is no con¬‚ict between
these two positions. MacKinnon acknowledges the existence of a limited number of biological
distinctions between men and women, centred on their different reproductive capacities. Those
distinctions could have enabled men to exercise at least temporary power over women, and so
institute a hierarchy within which all subsequent sexual differences have been drawn. The fact
that a biological feature enabled hierarchy to be established is not a refutation of her thesis.
It does not show that sexual hierarchy is natural, or is sustained by biology.
Id. at 119. “ . . . social conditions shape thought as well as life. Gender either is or is not such a
42
social condition. I™m claiming that it is” (id. at 54).
43 Id. at 52.
44 Sexual Harassment of Working Women, supra n. 1, at 121.
52 equality

female. In this way hierarchy constructs sexual difference as we know it.45
Addressing her audience, MacKinnon observes:
Me, for instance, standing up here talking to you “ socially this is an exercise of male
power. It™s hierarchical, it™s dominant, it™s authoritative. You™re listening, I™m talking;
I™m active, you™re passive. I™m expressing myself; you™re taking notes.46

As inequality of power constructs sex so it constructs sexuality. Sexuality,
MacKinnon argues, is simply the eroticization of the patterns of dominance
and submission found in sex, so that questions of desire can never be isolated
from questions of power.47 It follows that the erotic is inextricably connected
with the violent, that the violation of women by men that is dramatized in
pornography and enforced through rape constitutes sexuality as most men and
women understand it.48 All sexual relations are in this sense sadomasochistic:49
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. . . . I™m saying femininity as we know it is how we come to want male
dominance, which most emphatically is not in our interest.50

As sex informs sexuality so it informs the construction of those other features
of the social fabric within which men™s and women™s lives are led. In this way
the patterns of dominance identi¬ed as the male sex become norms for society,
endorsed and believed in by both men and women:
Man™s position of power does not only assure his relative superiority over the woman,
but it assures that his standards become generalized as generically human standards that
are to govern the behavior of men and women alike.51


“ . . . men are not socially supreme and women subordinate by nature; the fact that socially
45
they are, constructs the sex difference as we know it.” “The question of equality . . . is at root a
question of hierarchy, which “ as power succeeds in constructing social perception and social
reality “ derivatively becomes a categorical distinction, a difference” ( Feminism Unmodi¬ed,
supra n. 1, at 51, 40).
46 Id. at 52.
47 Id. at 50, 171“74.
Id. at 161“62: “ . . . sexuality is commonly violent without being any the less sexual. To deny this
48
sets up the situation so that when women are aroused by sexual violation, meaning we experience
it as our sexuality, the feminist analysis is seen to be contradicted. But it is not contradicted,
it is proved. The male supremacist de¬nition of female sexuality as lust for self-annihilation
has won. . . . To reject forced sex in the name of women™s point of view requires an account
of women™s experience of being violated by the same acts both sexes have learned as natural
and ful¬lling and erotic, since no critique, no alternatives, and few transgressions have been
permitted.” On this analysis, it is indeed the case, and ought not to be, that sexual display by
women is a display of submissiveness.
49 Id. at 161.
50 Id. at 54.
51 Sexual Harassment of Working Women, supra n. 1, at 3, quoting Georg Simmel, Philosophische
Kultur (Leipzig, 1911).
II. Difference and Dominance 53

It will be recalled that the difference approach, in its sameness branch, de¬nes
sex discrimination as the refusal to recognize women™s capacity to meet that
norm. Nevertheless, when women genuinely lack that capacity, so that a refusal
to recognize it in them is apparently nondiscriminatory, the difference branch
will in some situations authorize programmes to compensate them for their
inadequacy. Such programmes are often described as af¬rmative action for
women; men implicitly have no need of them. However, MacKinnon argues
in a famous passage, the reason why women appear to need such programmes
while men do not is that an af¬rmative action programme for men is already
built into the structure of society, and concealed there as a neutral norm:52
In reality . . . virtually every quality that distinguishes men from women is already af¬r-
matively compensated in this society. Men™s physiology de¬nes most sports, their needs
de¬ne auto and health insurance coverage, their socially de¬ned workplace biographies
de¬ne workplace expectations and successful career patterns, their perspectives and
concerns de¬ne quality in scholarship, their experiences and obsessions de¬ne merit,
their objecti¬cation of life de¬nes art, their military service de¬nes citizenship, their
presence de¬nes family, their inability to get along with each other “ their wars and
rulerships “ de¬nes history, their image de¬nes god, and their genitals de¬ne sex. For
each of their differences from women, what amounts to an af¬rmative action plan is in
effect, otherwise known as the structure and values of American society.53

It must be emphasized that MacKinnon™s inquiry into the nature and origins
of sex is not intended to be a criticism of the fact that sex has been socially
constructed. In her view, there is no basis other than social decision upon which
to construct sex, since biology has little or nothing to contribute to the roles
played by men and women in society. What she is critical of, and seeks to
expose, is, ¬rst, the goal of male dominance that has governed the construction
of sex as it now exists; second, the presentation of that social and political goal
as a natural or biological fact; and third, its subsequent endorsement as the social
norm against which the capacities of men and women, and their inequalities,
are to be assessed.

ii. ending hierarchy. For MacKinnon, equality means the equal distribu-
tion of power. Sexual inequality, therefore, “is at root a question of hierarchy”,54
a matter of “systematic dominance, of male supremacy”.55 In other words,
“gender is an inequality ¬rst”,56 and a difference second, not a difference ¬rst
and an inequality second. In MacKinnon™s view, sexual identity as it has been
formed in our society is to be condemned simply for the fact that it enshrines

52 Feminism Unmodi¬ed, supra n. 1, at 65, 71.
53 Id. at 36.
54 Id. at 40.
55 Id. at 42.
56 Id.
54 equality

a power relation, and thus sustains the ability of one group of people to obtain
and consolidate power over another. The sexual difference that hierarchy has
produced
describe[s] the systematic relegation of an entire group of people to a condition of
inferiority and attribute[s] it to their nature. If this differential were biological, maybe
biological intervention would have to be considered.57

What MacKinnon ¬nds objectionable in the present structure of sexual re-
lations, therefore, is not that men hold power rather than women, or that men
hold power exclusively rather than jointly with women, but that power, in the
sense of dominance, is held at all. She makes clear that she rejects any theory
of equality whose ambition is no greater than to admit women to a share in
the spoils of dominance:58 “To us [feminists] it is a male notion that power
means that someone must dominate. We seek a transformation in the terms and
conditions of power itself.”59
Nevertheless, it is not entirely clear what MacKinnon understands power to
mean here, that is, under what circumstances she believes that a group of people
can be said to be dominant in society. It is not that her argument suffers from
any shortage of examples of dominance and subordination; on the contrary,
it is sustained throughout by images of women™s social predicament. What
is unclear is what principle MacKinnon sees as uniting these examples and
explaining them as subordination.
MacKinnon argues that the mere existence of differences between people
does not in itself require the existence of a hierarchy among them.60 She fur-
ther maintains that any kind of dominance or hierarchy is illegitimate in an
egalitarian society.61 Yet she fails to articulate a coherent thesis of the rela-
tionship between difference and dominance. Dominance begets differences,
she makes clear.62 Differences need not beget dominance, she maintains.63 Yet
some differences must beget dominance or dominance would not need to beget
difference in order to sustain itself.64 The question is, which of the present and
potential differences between the sexes have this effect, that is, which of them

57 Id. at 41.
58 Id. at 4, 31.
59 Id. at 23.
60 Sexual Harassment of Working Women, supra n. 1, at 140. See also note 24.
61 Feminism Unmodi¬ed, supra n. 1, at 43.
62 Id. at 51.
63 See note 24 and accompanying text.
64 The differences that are assigned to men and to women in order to ensure the dominance of
men must do something more than distinguish those who are to be bene¬ted from those who
are to be burdened, in the way that the biology of reproduction distinguishes the sexes and skin
colour the races. Otherwise, the assignment of difference would be unnecessary, since it would
add nothing to the distinction that biology has already drawn. The differences in question must
be such as to generate a hierarchy by their nature, at least in the society in which they are called
into being.
II. Difference and Dominance 55

enshrine male dominance and which do not, and what principle describes the
distinction? There seem to be three possibilities present in MacKinnon™s work.
At the most concrete level, male dominance is presented by MacKinnon as
the sexual subjugation of women. Much of her work is concerned with, and
draws its power from, women™s account of their sexual harassment, battery,
rape, prostitution, and child sexual abuse, and the representation of all these in
pornography.65 It might plausibly be inferred that these practices constitute male
dominance, which could be ended, therefore, by their successful prohibition.
Yet it is clear that MacKinnon sees these violations of women, crucial though
they are to the understanding of subordination, as merely the most outrageous
and demeaning examples of male dominance, not as its de¬nition. The subor-
dination of women is also present in their poverty, in what MacKinnon calls
their “material desperation”.66 The ending of dominance, she argues, requires
not only the physical protection of women but the achievement of such goals
as full access to abortion,67 the sharing of child care responsibilities,68 and
the guarantee of equal pay, including wages for housework.69 The meaning of
dominance cannot be con¬ned, therefore, to sexual subjugation in the physical
sense, although MacKinnon would certainly call the subjugation it involves
sexual.70
At a broader, but still sex-based level, male dominance is frequently pre-
sented by MacKinnon as a matter of degradation, the consignment of the fe-
male sex to a status of acute and entrenched inferiority, a status akin to that of
blacks in the United States. As support for this view of women™s subordination,
she draws a number of parallels between the condition of women and that of
blacks,71 although she makes it clear that she regards the condition of women

65 Id. at 41, 171.
66 Id. at 41.
67 Id. at 99.
68 Id. at 37.
69 Id. at 24, 28, 41.
70 This follows from her thesis that sexuality is shaped by the patterns of dominance and subordi-
nation in which it is set. If men are in any sense dominant, that dominance will be eroticized as
sexuality.
71 See, for example, id. at 167. Feminists have often been vigorously criticized for their invocation
of a distinction between the condition of women and blacks as disadvantaged groups, a distinction
that is said to imply that women are not black and that blacks are not women. The effect of this
distinction, it is argued, is to render black women invisible to both feminist and race theory: see,
for example, bell hooks, Ain™t I a Woman: Black Women and Feminism (Boston, 1981). Similar
points have been made from the lesbian perspective. This line of criticism seems inapt with regard
to Catharine MacKinnon, however, whose understanding of disadvantage transcends the borders
of sex, race, and class: see notes 78“91 and accompanying text. In other words, paradoxically,
despite her clear and powerful personal commitment to the feminist cause, MacKinnon™s theory
is primarily concerned with disadvantage and only consequently concerned with women. Indeed,

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