<<

. 8
( 37 .)



>>

that may well be good for her. Of course, the daughter may simply decide to defy her father™s
attitude, whether or not it constitutes an act of discrimination against her.
38 the issues

what we might be good at, and we need to know what we might be good at in
order to know how we might ¬‚ourish. We sometimes make mistakes in this,
as I have already noted, but by and large we come to know ourselves well
enough to know whether we are philosophical or practical, artistic or scienti¬c,
passionate or even-tempered, romantic or down to earth, and so on. In this way
we develop a sense of what sort of friends and interests we might have and what
careers we might pursue. Such self-knowledge, when generalized across people
and sharpened through contrast, yields an understanding of what it means to
be a person of a certain kind, to be an American, a Brazilian, or an Egyptian;
a Catholic, a Muslim, or a Buddhist; an artist, a scholar, or an entrepreneur;
a homosexual or a heterosexual; black, white, or other; a woman or a man.
Sometimes, as I have indicated, it is necessary to draw on such collective self-
understanding in order to lead a successful life; more often it is not. So, whether
broadly or narrowly understood, there is nothing obscure or inaccessible about
what it means to be a woman; it is the stuff of everyday living.
Sometimes, however, often in the case of women and other victims of dis-
crimination, our self-knowledge contradicts the picture that others typically
have of us, a picture that our self-understanding has revealed to be a miscon-
ception. To put it in the conventional, comparative idiom, we know ourselves to
be the same as other people in respects in which we are thought to be different,
or to be different from other people in respects in which we are thought to be
the same. Insistence upon what we know ourselves to be, and a corresponding
rejection of what others have taken us to be, thus underpins and sustains claims
to recognition of equality and difference, in ways that are entirely familiar.
Women have historically sought equality with men because and to the extent
that they knew themselves to be no different from men, because they knew,
or at least strongly suspected, they possessed abilities they were said to lack,
and lacked disabilities they were said to have, so as to be capable of being
bankers, philosophers, carpenters, plumbers, and a host of other unexpected
things, contrary to what had long been pretended.
Underneath every sound claim to equality, then, lies an assertion of factual
equality. Women have not sought equality, in banking, philosophy, or anywhere
else, in a manner that is indifferent to factual equality, on the basis, let us
suppose, that whether or not created equal they must be treated as if they
were equal. On the contrary, women™s claims to equality have been founded
on the belief that women are not in fact in any sense inferior to men in any
of the respects in which equality has been sought. What this shows is that
an understanding of what it means to be a woman is implicit in every claim
to equality, and conversely of difference. It is true that the claims are almost
always expressed in comparative terms, perhaps because they are almost always
addressed to men, who, it might be thought, are most likely to appreciate such
claims to the extent that they can relate them to themselves. Yet the claims are
made possible only by an understanding of what it means to be a woman, and
VIII. Radical Inquiries 39

by an awareness of the importance of a general recognition and acceptance of
that fact to women™s ability to lead successful lives. So what it means to be a
woman is not only the stuff of everyday living, but the basis of our approach to
sex discrimination.
Accessible, even familiar, as the question of what it means to be a woman
may be, however, there are real limits, both personal and professional, to how
far I can address the substance of that question in this book. This may disappoint
some readers and frustrate others, given the signi¬cance of the idea to what I
have to say, though for my own part I see it as an impetus to further, more
practical, and perhaps more concrete inquiries, that will in turn re¬‚ect back on,
and permit a reexamination of, what I have said here. As I see it, the limits to
what I am able to say about what it means to be a woman are no more than a
necessary recognition of the limits to any person™s grasp of what all recognize
to be a complex, collective, and multi-disciplinary problem. I know something
about myself, and thus something about being a man, and correlatively, about
being a woman. My knowledge is suf¬cient for the purposes of living my life
(or at least so I hope), just as the knowledge of others, men and women, is
generally suf¬cient for the purposes of living their lives. Yet my knowledge is
by its nature no more than a local, limited perspective on an idea that can be fully
described only by reference to a collective, cumulative understanding on the part
of women and men generally. The development of such an understanding is a
challenge that feminism has long grappled with, and with a good deal of success.
We know much better than we once did what women are capable of, what their
needs are, what their ambitions look like. However, further development of
this understanding, in other than philosophical terms, is not a project to which
I have any special contribution to make. My task here is constrained not only
by the limits to my personal knowledge but by the nature of my professional
capacities. I can plausibly develop and build upon the understanding yielded
by my self-knowledge where I have the professional capacity to do so, and
no further. For that reason my project is philosophical, not sociological. As I
have said, it is designed to lay the groundwork for further enquiry by others, of
whatever kind.


VIII. Radical Inquiries
In the discussion so far I have approached the question of sex discrimination
from the perspective of its remedy, asking whether equality, or the recognition
of difference, or a suf¬cient degree of understanding, is what is required for
women to lead successful lives. Most accounts of sex discrimination, however,
including that embodied in the law, approach the question from the opposite
perspective. Their immediate concern is not so much with women™s well-being
as with the loss of that well-being, not with the achievement of a success-
ful life (which might depend on many things) but with the identi¬cation and
40 the issues

removal of a certain species of disadvantage that stands as a barrier to that
success. In what follows I revert to the conventional approach, so as to ask,
for example, whether inequality or the failure to value women™s difference are
adequate accounts of the disadvantage that women face in the form of sex
discrimination.
In considering this question I have focused on the work of Catharine MacKin-
non and Drucilla Cornell. I have done so for two reasons. First, both MacKinnon
and Cornell adopt radical approaches to the question of women™s disadvantage,
radical not so much in the sense of urging extravagant conclusions as in the sense
of going to the root of the problem. I know of no purer, more uncompromised
commitment to the equality of women than that exhibited by MacKinnon, no
purer, more uncompromised commitment to the recognition of difference than
that exhibited by Cornell. Both writers pursue the ideas to which they have
committed themselves to their ultimate conclusion. The consequence of this
is that any defect in their accounts is a defect in the very ideas to which they
have committed themselves, namely, the ideas of equality and difference, not
a defect in the quality of their commitment to those ideas. This means that, in
its most undiluted form at least, the work of MacKinnon and Cornell offers
an ideal setting for the examination of comparative approaches to the under-
standing of sex discrimination.31 If an examination of MacKinnon™s work, for
example, makes it clear (as I believe it does) that the pursuit of equality is in
itself antithetical to the well-being of women, then equality can form no part
of the recipe for ending women™s disadvantage, for a commitment to equality
cannot be rescued by being tempered or supplemented if the nature of its defect
is not its radicalism or its incompleteness but its egalitarian character. Not every
radical approach to equality would make this clear, but no less radical one could
do so.
My second reason for focusing on the work of MacKinnon and Cornell is
that both are self-avowed feminists and so see the problem of sex discrimination
as something more than the visitation of a general wrong upon women. Both
are prepared to contemplate the idea that the practice of sex discrimination is
deeply entwined with the prevailing understanding of what it means to be a
woman. If that is true, then sex discrimination can be understood only through
the work of writers such as them, whose analyses of discrimination are rooted
in the present circumstances of women. Even if that were not true, however, the
work of such writers would remain as good a place as any to begin an inquiry
into the meaning of sex discrimination.

31 For this reason, I have not attempted to give a representative account of either writer™s work;
my concern is primarily with issues of equality and difference, and only secondarily and con-
sequently with the substance of what MacKinnon and Cornell have had to say. Cornell, in
particular, has in recent work somewhat tempered the radicalism of her early writing. To the
extent that she has done so, however, she has removed the justi¬cation for my consideration of
her work, and for that reason I have deliberately chosen not to follow her in this regard.
VIII. Radical Inquiries 41

That said, it is only fair to acknowledge that radical views are often couched
in radical style, for many writers believe that fresh conclusions require fresh
ways of thinking. This is certainly true of Drucilla Cornell, whose earliest and
most radical work draws on postmodern Continental scholarship in an attempt
to explore the full implications of the pursuit of difference. In my view it is
not possible to assess fairly her account, and the radical promise of difference
it offers, other than by coming to terms, to some extent at least, with the method
of scholarship she employs. For that reason, as the reader will notice, the chapter
on difference represents something of a stylistic departure from the rest of the
book. How challenging this is depends upon how familiar the reader is with
postmodernist analysis; how inspiring it seems depends upon the reader™s sense
of the rewards of such analysis. Challenging though it may be, building bridges
between fundamentally different ways of thinking about feminism is necessary
both to feminism and to scholarship.
2
Equality




In four books published between 1979 and 1994,1 Catharine MacKinnon,
drawing on the record of women™s experience of sexual harassment, pornogra-
phy, and rape, has developed and articulated a trenchant critique of the under-
standing of sex discrimination prevalent in American law and social practice.
In its place she offers a feminism that is entirely unmodi¬ed, unquali¬ed by
a situation in any larger, more abstract politics of liberalism or socialism.2
MacKinnon™s feminism takes its factual inspiration from the experience of
women as told by women, and its analytic method from Marxism. On these
bases she constructs a theory of sex discrimination as the unequal distribution
of power between men and women, the comprehensive social process by means
of which sexuality and gender are de¬ned and constructed so as to maintain the
hegemony of men.3
MacKinnon™s uncompromising approach and powerful rhetoric have suc-
ceeded in establishing hers as the most prominent and perhaps most in¬‚u-
ential feminist voice in American law. Her writing and her advocacy have
played a signi¬cant part in winning judicial endorsement, not only in the
United States but in Canada as well, of the idea that sexual harassment con-
stitutes sex discrimination.4 More broadly, her general thesis that discrimina-
tion is a matter of the subordination and disadvantage5 of one social group
to another has been judicially endorsed as the correct interpretation of the

1 Catharine MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination
(New Haven, Conn., 1979), Feminism Unmodi¬ed: Discourses on Life and Law (Cambridge,
Mass., 1987), Toward a Feminist Theory of the State (Cambridge, Mass., 1989), Only Words
(London, 1994).
2 MacKinnon, Feminism Unmodi¬ed, 6.
3 Id. at 48“50.
4 Meritor Savings Bank v. Vinson, 106 S. Ct. 2399 (1986); Janzen v. Platy Enterprises, [1989]
1 S.C.R. 1219.
5 As MacKinnon herself acknowledges, this thesis draws upon the concept of group disadvantage
outlined by Owen Fiss in “Groups and the Equal Protection Clause”, 5 Phil. & Pub. Aff. 107
(1976): see Sexual Harassment of Working Women, supra n. 1, at 4, n. 9.
I. Introduction 43

constitutional guarantee of equality contained in Canada™s Charter of Rights and
Freedoms.6
Yet when pursued beyond the starkest examples of the degradation of women
through sexual harassment, rape, and pornography, MacKinnon™s analysis actu-
ally offers disappointingly weak support for her intuitive conclusions concern-
ing sex equality. The vocabulary and terms of her critique, the very features
that give it its rhetorical ¬erceness and edge, show themselves to be inade-
quate bases upon which to articulate a positive agenda for the achievement of
women™s well-being.7 The ideal of equality that underlies that critique8 is not
explored or challenged by MacKinnon with anything like the rigour that she
brings to the examination of her facts, the physical experience of lives lived
in the shadow of male dominance. Ultimately, this analytic failure undermines
not only MacKinnon™s capacity to move beyond critique but her critique itself,
premised as it is upon the inability of present antidiscrimination law to secure
the equality that she seeks to describe.

I. Introduction
According to MacKinnon, genuine feminist thought, feminism unmodi¬ed by
cowardice or compromise, is based upon two insights. First, it recognizes that
our concept of sex, our fundamental understanding of maleness and femaleness,
is not in any sense natural but is socially constructed.9 It is thus impossible
to speak of women™s present position in society as a deviation from what is
natural, from what women ought to be entitled to, given their nature. Attempts
to analyze discrimination in that way, to determine the respects in which women
are by nature the same as or different from men and to treat them accordingly,
MacKinnon dubs the difference approach. She contends that the reference point
of this approach, its idea of what is natural, is implicitly determined by the
existence of men. The difference approach thus neglects the extent to which

6 Law Society of British Columbia v. Andrews, [1989] 1 S.C.R. 143. But see Miron v. Trudel, [1995]
2 S.C.R. 418; Egan v. Canada, [1995] 2 S.C.R. 513; Thibaudeau v. Canada, [1995] 2 S.C.R.
627, in which the Court retreated to the very notions of stereotype and relevance rebutted by
MacKinnon, a position it endorsed in Law v. Canada [1999] 3 S.C.R. 497.
7 Drucilla Cornell has criticized MacKinnon™s work on this basis, arguing that its understanding
of women™s condition actually serves to perpetuate the forms of oppression that it seeks to
undermine. See Drucilla Cornell, “Sexual Difference, the Feminine, and Equivalency: A Critique
of MacKinnon™s Toward a Feminist Theory of the State”, 100 Yale Law Journal 2247 (1991);
Beyond Accommodation: Ethical Feminism, Deconstruction and the Law (New York, 1991).
8 MacKinnon has consistently characterized the prevailing interpretation of discrimination in
American law as the difference approach, while characterizing her own thesis initially as the
inequality approach and later as the dominance approach: cf. Sexual Harassment of Working
Women, supra n. 1, at 116, and Feminism Unmodi¬ed, supra n. 1, at 40. It is clear, however, that
the basis for her rejection of dominance is a commitment to equality: see Feminism Unmodi¬ed
at 8, 43.
9 See Sexual Harassment of Working Women, supra n. 1, at 127; Feminism Unmodi¬ed, supra
n. 1, at 25, 41, 54, 173.
44 equality

the very idea of what is natural in sex has been socially constructed so as to
privilege men and disadvantage women.
The second insight of feminism unmodi¬ed, then, is that the particular pattern
of sexual de¬nition in our society is one of the domination of men and the
subordination of women. Society might have constructed sex in equal terms,
but in fact it did not do so. The difference approach to sex discrimination
thus presents a false picture of symmetry in its suggestion that the differences
between men and women are merely reciprocal when in fact they constitute a
sexual hierarchy. MacKinnon argues that the dominance of men in our society
is not the consequence of sexual difference, but rather that what we know as
sexual difference is the result and the re¬‚ection of male dominance:
Differences between the sexes do descriptively exist; being a doormat is de¬nitely dif-
ferent from being a man. . . . One is not socially permitted to be a woman and neither
doormat nor man.10

To call men and women merely different from one another, then, obscures the
fact that the heart of that difference, and the reason for its existence, is the
dominance of men.
MacKinnon™s exposition of her thesis tends to fuse rather than distinguish
these two insights, so that she often equates the social construction of sex with
male dominance, and the recognition of sexual difference with biological deter-
minism. In part, this may simply be a matter of rhetorical emphasis, designed
to draw an audience™s attention to the most critical and contested elements of
her thesis, since she clearly contemplates the social reconstruction of sex in
egalitarian form. But whatever the reasons, MacKinnon™s argument focuses on
a global distinction between what she calls the difference and the dominance
approaches to the understanding of sex discrimination, rather than on the un-
derlying contrasts of the biological as opposed to the social construction of

<<

. 8
( 37 .)



>>