Legal Weapon | The Nation


Legal Weapon

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Are Women Human? is a major contribution both to feminism and to international law. About some of MacKinnon's specific claims, however, I have doubts. I wonder, for example, whether her expressed preference for civil over criminal law as a vehicle for pressing sex-equality claims is not unduly influenced by the particular success of her strategy in Kadic v. Karadzic. She is certainly right that criminal laws are frequently underenforced, and that when criminal prosecution is impossible, a civil suit may be a victim's only way of attaining justice. But that doesn't show that civil remedies ought in general to be "favored"; and surely women's lives will not improve much unless and until the criminal law in the place where they live has become both adequate in its content (defining rape appropriately, recognizing that it can take place in marriage, etc.) and adequately enforced.

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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I have a more serious worry about MacKinnon's expressed preference for the international realm, in contrast to the state realm, as a place where women should focus their energies. It is certainly true that the abuses suffered by women are depressingly similar from one nation to another, and that the international women's movement has therefore been able to identify similar problems in many nations and to jump-start the search for creative solutions. It is also true that when states are doing nothing, women can goad them into action by making a big noise internationally, and that this has happened, often helpfully. Finally, it is true that some specific problems require international solutions. Trafficking, for example, as MacKinnon points out, will not stop without international sanctions, because otherwise the traffickers will just keep moving on from states that have adopted strong laws to states that have weaker laws or that don't enforce the ones they have. Much the same is true of labor accords, as she mentions: Here, too, a solution has to be transnational because piecemeal solutions just make the problem move elsewhere.

None of this, however, adds up to saying that the state is not a crucially important place for sex equality to be enacted and realized. MacKinnon sometimes comes quite close to saying that the modern state is a sexist relic that has had its day. Surely, however, the state is the largest unit we know of so far that is decently accountable to people's voices, and thus it is bound to be of critical importance for women seeking to make their voices heard. I think there is also a moral argument for the state: It is a unit that expresses the human choice to live together under laws of one's own choosing. Once again, it is the largest unit we yet know that expresses this fundamental human aspiration. A world state, should it exist, would either be too dictatorial, imposing on Indians and South Africans and Canadians alike a Constitution that each group might like to determine and fine-tune separately, or else it would be little more than a charade, as some international agreements are today.

MacKinnon is a lawyer, and her imagination has always been galvanized by the experiences of women in specific legal situations, whether they are her formal clients or not: the plaintiffs in the landmark sexual harassment cases, the victims of abuse in the pornography industry whose testimony is gathered in her book In Harm's Way, the Bosnian women she recently represented. I think that this powerful empathy explains why she is impatient with the slow work of Constitution-making and Constitution-changing that is required for sex equality at the state level, and drawn to the more personal and informal encounters among women in the international women's movement. If the state has in many ways been deaf to women's voices, however, why should she believe that--without changing the nature of each liberal state, one by one--women can get good results at the international level? Surely the two levels need to work in tandem, informing each other. And both need to be informed by grassroots work at the most local level, as India's democracy has been powerfully influenced recently by the insights and achievements of women who now, by constitutional amendment, hold one-third of the seats in the panchayats, or local village councils.

MacKinnon is clearly correct, however, that change will not take place through state-based laws and institutions alone, and that all levels of civil society must be enlisted to play their part. "Opposing violence against women teaches," she concludes, "that peace-building is an active social process, not a mere lack of overt fighting, far less a document-signing ritual of contract or an arm-twisting exercise to get the parties in bed together in the silence of power having prevailed." By casting herself as a peace-builder, MacKinnon issues a pointed challenge to her adversaries, who boringly stereotype her as a fierce amazon on the warpath against male liberties. This book is indeed fierce, unrelenting in its naming of abuse and hypocrisy. In a world where women pervasively suffer violence, however, it takes the fierceness of good theory to move us a little closer to peace.

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