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Representative Women

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My second example concerns equality. Until the postwar era it was common in American law to think that equal treatment meant similar treatment, and that the "equal protection of the laws" could not possibly be violated by any symmetrical arrangement bearing on either race or sex. The principle of equal treatment was used by lower court judges, and some legal theorists, to defend laws against miscegenation: blacks can't marry whites, and whites can't marry blacks. How could such laws possibly involve a constitutional violation? The fact that African-Americans obviously bore the brunt of these laws, and that the laws were inspired by racial disgust, was left out of account. Similarly, laws that were symmetrical for women and men were also taken to be unproblematic, even when they imposed special burdens on women. If insurers denied coverage for pregnancy leave, they were not guilty of sex discrimination, so the argument went, because all "non-pregnant persons" were covered, and all pregnant ones were not covered—without regard to their sex! Sexual harassment, too, was taken to be an equal-opportunity matter, involving no illicit discrimination: after all, women could approach men for sexual favors, just as men could approach women. The hierarchy of power in the workplace was utterly ignored.

The Feminist Promise
1792 to the Present.
By Christine Stansell.
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About the Author

Martha C. Nussbaum
Martha C. Nussbaum, the Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago Law...

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With Sexual Harassment of Working Women, MacKinnon offered a new and more adequate theory. She powerfully argued that sexual harassment (and other denials of equal opportunity) should be viewed through the lens of what she called a "dominance theory" of equality rather than through the old "difference theory." That is, the right question to ask of a problematic policy is whether it creates or perpetuates a hierarchy of power that defines classes of people as higher or lower, dominant or subservient. The "equal protection of the laws" requires resisting such hierarchies. In effect, MacKinnon's is an antifeudal account of political equality. The Supreme Court had already drawn on the principle at the heart of MacKinnon's dominance theory in the area of race when, in the 1967 case Loving v. Virginia, it invalidated antimiscegenation laws on the grounds that they were "designed to maintain White Supremacy." The fact that the laws were symmetrical on their face was immaterial. (The earlier invalidation of "separate but equal" schools, in Brown v. Board of Education, in 1954, rested on a similar analysis.) MacKinnon, however, articulated the contrasting theories with unprecedented clarity and applied them to the area of gender, where it had not previously been acknowledged in the law that an illicit hierarchy of power existed. (In Sexual Harassment of Working Women, MacKinnon cannily demonstrates that you can arrive at her conclusion that sexual harassment is discrimination even if you don't accept her controversial dominance theory of equality; nevertheless, it was her theory that eventually entered the judicial mind and reshaped legal doctrine.)

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My final example concerns the family. For a long time in economics, the reigning concept of the family was that it was a unit held together by love and altruism, without cooperative conflicts that needed to be taken into account. Mill had long ago subjected that idea to withering criticism, arguing that the family as constituted in his time was a bastion of feudal privilege in the midst of the allegedly liberal state. But nobody took Mill's ideas seriously. In A Treatise on the Family, for which (among other contributions) he won the Nobel Prize in 1992, economist Gary Becker held that for analytical purposes we can assume that the "head of the household" is a beneficent altruist who always takes adequate account of the interests of all family members—an assumption that Becker, with his keen interest in reality, later criticized by acknowledging that motives such as envy and malice often shape the distribution of resources within the family.

Becker's determination, in his Treatise, to bring economic theory to the domain of family life was important and salutary. Nonetheless, the theory did some harm. Because development economists were highly swayed by Becker's theory, they assumed that the household can be treated as a single unit and so ignored internal distributional issues; consequently, it has been almost impossible until recently to get data about the resources and opportunities available to individual family members. Yet over the past thirty years, the dominant view of the family in economics has shifted to one in which ideas of competition and of a socially shaped bargaining position dominate. This change is due to the work of such feminist economists as Sen, Bina Agarwal and Robert Pollak; feminist political theorist Okin; and the important journal Feminist Economics, which provides a venue for the exploration of such ideas. The new ideas have reshaped data-gathering, as have, simultaneously, the ideas of Nancy Folbre and others about how to ascribe a monetary value to women's unpaid household labor (a very practical matter, as anyone will know who has sought compensation for the injury or death of a partner mainly occupied in domestic labor).

Such insights are gradually making their way into national policy, as demonstrated in the recent report on the measurement of a nation's quality of life commissioned by French President Nicolas Sarkozy and chaired by Sen and Joseph Stiglitz, with both Agarwal and Folbre as commission members. The key finding was that a nation's quality of life should not be measured by gross national product per capita but instead by assessing people's "capabilities," or substantial opportunities for choice. One sphere it emphasized was the family, where opportunities are often unequally distributed along lines of sex. The newer economic theories of the family have long been accepted working paradigms in India, a nation somewhat more progressive, in terms of economic theory, than the United States and even Europe, and that has a sophisticated economist, Manmohan Singh, as prime minister and, in Kaushik Basu, a chief economic adviser who is a strong feminist and the current president of the Human Development and Capability Association (founded by Sen and me). Maybe someday the ideas of the new feminist economics will even surface in the corridors of power in the United States, though I'm not making any bets on when.

These cases show that political history written with an aversion to theoretical ideas is incomplete even as history. Ideas matter for people, and they make things happen in the world. Feminism should not be wedded to a type of historical materialism that denies this insight. Many feminists have been historical materialists; Stansell is not. But she lacks interest in philosophy and economics, and she apparently believes that telling the story of feminist ideas is a job for another book. I believe, however, that the story she eloquently tells is woefully incomplete without them. If feminists today are to make good on the promises of their predecessors, mothers and daughters alike, they need to study the arguments, testing their cogency and tracing the ways they were linked to practical struggles to achieve justice and equality for women. Feminism has succeeded, to the extent that it has, partly by dint of its bold ideas; to overlook these ideas is to diminish feminism.

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