Legal Weapon | The Nation


Legal Weapon

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While advancing ambitious theoretical arguments, Are Women Human? also shows MacKinnon's wide range as a comparative legal scholar, as she discusses tensions between Canada's Charter, which guarantees substantive sex equality, and the Meech Lake Accord, a failed set of amendments that offered protections for regional group rights; as she addresses an audience in India about related tensions between India's religious systems of "personal law" and its constitutional guarantee of sex equality; as she investigates the role played by rape and forced prostitution in the Holocaust; and as she reflects on the role that rape played in the genocide in Bosnia, drawing upon her clients' wrenching narratives of violation. The book also contains valuable insights at the meta level, particularly on feminist theory and its relationship to political reality. In "Theory Is Not a Luxury," MacKinnon addresses critics who doubt that "theory" provides anything useful for marginalized people. Some are uncomprehending men, for whom calling something "only a theory" is a way of devaluing it in contrast to (their view of) "reality." Some are women, who see theory as a male tool and would urge feminists to eschew it. Feminism needs theory, argues MacKinnon, because theory shows the world in a new way, using method to make it "accessible to understanding and change." Theory is not an enemy but a necessary ally of the "reality of women's lives," because that reality is frequently invisible until theory brings its salient features into prominence.

About the Author

Martha Nussbaum
Martha Nussbaum, a professor of philosophy and law at the University of Chicago, is the author of numerous books, most...

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Unlike some types of theory, feminist theory, she argues, is bottom-up: It starts from the silenced reality of women's lives. Its "development as theory is impelled by the realities of women's situation." Its goal is to make that situation more visible, more comprehensible--not as a mere ideological construct but as what was, and is, happening. "As it turned out, once rescued from flagrant invisibility, women's realities could often be documented in other ways, and nearly anyone proved able to understand them with a little sympathetic application.... What we said was credible because it was real."

Because feminist theory, in her understanding, is committed to reality, MacKinnon is deeply troubled by some of the excesses of academic postmodernism. One of the gems in the collection is an essay called "Postmodernism and Human Rights," which ought to be required reading for all undergraduates and graduate students in the humanities. Here MacKinnon makes points that have also been made by other left-wing critics of postmodernism, notably Noam Chomsky and Tanika Sarkar, but she makes them with a devastating wit that is all her own. To say that gender is a social construct, she argues, is hardly to say that it is not there. "It means that it is there, in society, where we live." To say that feminists wrongly "essentialize" by ascribing common properties to women is to raise

an empirical rather than a conceptual question. Do characteristics exist that can be...found in the reality of...the status of women across time and place...? Women report the existence of such regularities: sex inequality, for one. It is either there or it is not.... Once it has been found to exist, to say it isn't there, show it isn't there--show, for example, that female genital mutilation is a collective delusion or harmless or a practice of equality.... What the postmodernists seem to be saying here is that they don't like the idea that women are unequal everywhere. Well, we don't like it either.

As for postmodernism's critique of universality and binary oppositions, she has this to say:

The postmodern attack on universality also proves a bit too much. Inconveniently, the fact of death is a universal--approaching 100 percent.... Much to the embarrassment of the antiessentialists, who prefer flights of fancy to gritty realities, life and death is even basically a binary distinction--and not a very nuanced one either, especially from the dead side of the line, at least when seen from the standpoint of the living, that is, as far as we know. And it is even biological at some point. So the idea that there is nothing essential, in the sense that there are no human universals, is dogma. Ask most anyone who is going to be shot at dawn.

MacKinnon's attack has no particular target or targets, although there are footnote references to several specific postmodern feminists. Instead, she issues a cheerful invitation: "Far from attempting to tar them all with this brush, I invite anyone to disidentify with what I describe and to stop doing it any time."

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