Application
This week’s readings (and last week’s much-discussed gendered punishment) are very interesting, but I wonder how we can and should use these insights in shaping law and institutions. When we learn that men and women are simply different, with different modes of communication and lenses through which to see the world, what should our response be?
Suppose we had only Tannen’s insights at our disposal. Women see connection; men see competition. What does it mean for law when all communication between men and women is cross-cultural? We could try to design a corrective legal framework, to the extent that we believe that difference is detrimental and remediable. Or we could take the accommodative extreme and have a set of rules for women and another for men, tailoring both the rule formulations and punishments to speak most directly to gendered views of the world. Even setting aside the objection that a bi-gendered legal system might fail to account for diverse gender types, I think many of us would oppose such accommodation on liberal grounds. People may be different, but the law ought to treat them as equals.
MacKinnon pushes back on this liberal objection: Yes, the law should be even-handed, but our default “neutral” laws happen to be 1) men’s laws and 2) imbued with a vision of sexuality that has been created by men for the subordination of women, who become men’s objects. MacKinnon’s views, unlike Tannen’s, readily lend themselves to application—whether it be changing the meaning of consent in rape law or drafting an Antipornography Civil Rights Ordinance. But difference alone does not provide the impetus for change, subordination does. Thus, again, one is left to wonder what to do about accounts like Tannen’s.
One obvious response is procedural: assuming that men and women are different in important ways, and given that the law will apply to both men and women, men and women should equally be part of the lawmaking process. Another response is more psychological, and it comes from MacKinnon’s account of feminism: we should participate in consciousness raising. Even if women are merely different from (rather than subordinated to) men, an appreciation for gender differences can only improve things.
Kahan (whom we read earlier in the semester) has suggested that cultural differences (including, perhaps, gendered differences) shape our views of the world, and that our moral views shape factual accounts. He perceives these differences to be a problem, at least insofar as we operate under an illusion of liberalism and cultural cognition undermines the liberal ideal—a phenomenon he calls “cognitive illiberalism.” His solution: dispose of the norm of “public reason” in favor of “expressive overdetermination” so as to multiply the available cultural readings of the law, thereby accommodating a variety of perspectives.
erinarcherd
February 26, 2008 @ 12:50 pm
However, the difficulty is that MacKinnon wants more than consciousness raising in the form of appreciating gender differences. What she seems to be arguing for is a complete paradigm shift in the way men and women are relationally perceived. Right now, under the guise of liberal, political objectivity, we could make all the observations that theorists like Gilligan and Tannen are making about differences in perspective and communication styles between men and women. That doesn’t change the fact that our society is, says MacKinnon, fundamentally premised on the subjugation of women to the sexual violence of men, whether that violence is actually physically expressed or expressed through vehicles that many would argue are not instances of violence against women (like pornography or the fetishization of lesbians).
I, personally, struggle with MacKinnon’s theories because I feel like her view of the objectification of women is overly harsh toward men. Yet I realize that it’s easier to think that as a well-educated, white female in 2008 America than it is as perhaps a woman who was brutally raped during the Bosnia conflict.
But, to go back to your question of application, the level of consciousness raising would have to amount to a paradigm shift and historical reparations or restructuring on a significant level to meet the rigors of much feminist thought. It’s not about about giving an equal place at the table, but about changing the nature of the process altogether.
I smiled when I read
>> we could take the accommodative extreme and have a set of rules for women and another for men, tailoring both the rule formulations and punishments to speak most directly to gendered views of the world.
Isn’t the legalistic, rule-based framework part of the observed differences in the preferred social construction? Will making different rules for women be productive?
NB
February 26, 2008 @ 4:14 pm
Well, I’ll just throw out a quick plug for using liberal bourgeois legislation such as the Family & Medical Leave Act (or something like it) to remedy some of the things MacKinnon sees as problematic with the way that domesticity has become a site for males to inscribe their sexual power. For instance, you can imagine expanding the FMLA and issuing child care credits to ensure proper work-life balance and a more egalitarian contribution by men and women to raising of children. If women came to be perceived less as progeny-raisers (and were no longer seen as “wait[ing] at home dressed in saran wrap”), this would at least eliminate one of the *sites* where women have traditionally been sexually subjugated, right?
steveh
February 26, 2008 @ 4:22 pm
I just wanted to clarify something: I think MacKinnon’s work easily lends itself to application. After all, when you say a system is broken, you can think about how to fix it. Tannen, on the other hand, is less easily applied.