Comparing Theories of Sex Discrimination: The Role of Comparison
* Faculty of Law, University of Toronto.
Academia these days, like politics, tends to be polarized into opposed camps, theoretical or substantive. In any given domain, members of each often conduct more and more rarefied discussions amongst themselves, seldom venturing into the territory of others. It is rare, therefore, to come across a book, like Timothy Macklem’s Beyond Comparison: Sex and Discrimination, that makes the effort to bridge the divide between the analytical tradition in political philosophy and feminist theory. Macklem takes on the issue of sex discrimination—what it is, and what it isn’t—an issue that has, in recent times, mostly been the preserve of feminist scholars. His effort is all the more commendable, and brave, because his main interlocutors are Catharine MacKinnon and Drucilla Cornell, both of whom, in their different ways, have made careers out of trashing analytical philosophy as ‘male’, or liberal, or both, and therefore not (sufficiently) feminist. As interlocutors go, this is a tough crowd.
While I applaud the bridge building effort, I doubt that many on the other side will be persuaded to cross over. It is simply too apparent which side of the river Macklem starts from, and somehow the structure never really meets alternative accounts half way. Nevertheless, there is much of value in the book that feminist scholars would do well to ponder. This value is likely to be overlooked because it is unfortunately all too easy to misread Macklem as more supportive of the status quo, or even critical of concrete feminist initiatives, than in fact I think he is. This is not only because of a generally turgid and often cryptic style of expression, but because he seems to have made little effort to grapple with the concrete legal and political struggles which have motivated and shaped feminist theorizing. As a result, Macklem’s criticism of much feminist scholarship is not altogether fair, and his own theory is too disengaged. So, in the spirit of bridge building, I argue that although Macklem’s central thesis is correct—what are conventionally understood as equality claims do not, properly understood, rely on comparison—his analysis would have been improved by taking more seriously some of the central insights of feminism.
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1. Analysing Discrimination Without Comparing |
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 Top 1. Analysing Discrimination... 2. MacKinnon’s Dominance...3. Connecting Theory and...Notes |
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As the title suggests, a major objective of the book is to show that sex discrimination is not essentially a matter of comparison between men and women to see if women are getting as much of some benefit as men. Along the way, Macklem criticizes feminist accounts of discrimination that identify it either with inequality or failure to respect difference (40). His account joins with the school of thought that denies that equality is an independent value in determinations of how goods and benefits are to be distributed, at least most of the time.1 If equality were an independent value, testing its satisfaction would be an essentially comparative exercise. The fact that some receive a given benefit would ground the claim to its receipt by others; conversely, to know whether members of group A have been improperly denied, one need only know that members of group B have benefited. If, however, other substantive principles ground entitlements to goods and benefits, any given person’s claim need only point to her satisfaction of the grounds of entitlement—it is unnecessary to know what others get. Her claim does not change whether everyone else who fulfils the criteria gets what they are supposed to or whether no one else does either. The former situation is an individual injustice, and the latter wide-scale injustice, but neither characterization affects the appropriate share of a particular individual.
Instead, Macklem argues that in order to know whether any given distribution of some benefit is discriminatory, we need to know whether it can be valuable for the possible recipients (29–31; ch 6), given their needs, interests, and capacities. Neither exercise involves comparing one would-be recipient to another, whether to make sure either that both get an equal share or that differences are respected. Sex discrimination is a matter of failing to give members of a particular sex enough of what they need to lead successful lives because of a misconception about what kind of people they are (36–37; ch 7). In other words, he postulates an abstract individual entitlement to the ingredients necessary to a successful life. Given this entitlement, each person’s claim to more concrete benefits is a matter of whether and how it will contribute to the success of that person’s life. That, in turn, is a function of what kind of person she (or he) is. To the extent that there are sex-specific ingredients of the successful life, women and men will end up with different goods. Difference means that men will end up with more of some goods than women, and presumably vice versa. The fact of that difference, or inequality, does not indicate discrimination. Nor does an equal distribution of goods guarantee that there is no discrimination.
Rather, sex discrimination is a matter of mistaking the true attributes of members of a particular sex so as to deprive them of either benefits that they are capable of sharing with members of the other sex and which are necessary to a successful life, or benefits that are particularly necessary to members of one sex in pursuit of a successful life because of sex-specific attributes (157–58). Although on this account sex discrimination is something that can befall either men or women, Macklem appreciates that women are the chief victims of such mistakes, which leads him throughout the book to speak of sex discrimination as grounded in a ‘misconception of what it means to be a woman’. For most readers this phrasing is likely to be more distracting than illuminating, sounding, as it does, like an appeal to an essence of womanhood. Macklem explicitly, but all too briefly, denies the essentialism charge (34–35); however, in the absence of a substantive account of what it means to be a woman, which he declines to offer (39), it is difficult to tell whether he falls into the essentialist trap. There is, however, reason to worry that this phrasing will give encouragement to those already attracted to essentialist thinking. For those who do find this language off-putting, I suggest reading in something like ‘misconception of women’s attributes, needs, or interests’. The essential point is that it is possible to determine what women’s attributes, etc. are and the extent to which specific benefits or opportunities are necessary to a successful life without first undertaking an analysis of what benefits or treatment men receive.
This non-comparative approach to discrimination is combined with a pluralistic account of value to argue that to the extent that men and women have different but incommensurable qualities put to use to lead differently valuable but also incommensurable lives, a search for equality between the sexes is literally incomprehensible (73). If two lives are incommensurable, there is no basis for ranking one above the other, but by the same token, there is no basis for declaring them equal either. At the same time, a life must be lead within the social forms that constitute a particular society, and this may constrain one’s ability to put to use qualities that would, in other circumstances, enable the achievement of a successful life using those qualities (175–77). Social forms make relevant some qualities, while others are irrelevant; rationality dictates that one not make the success of one’s life turn on the pursuit of activities that are not fostered by the social forms within which one lives.
Macklem is right, I think, that sex equality or sex discrimination claims are, properly understood, not essentially comparative in nature, not strictly egalitarian but rather only rhetorically egalitarian, to use Raz’s terminology. Such claims can be rephrased in terms of some underlying entitlement or basis for distribution which women satisfy and by virtue of which they claim their fair share. In such circumstances, the argument that men get the relevant benefit, therefore women should is an indirect way of pointing out that women share whatever the qualification is that men have that entitles them to the benefit. The comparison to men is a proxy for the comparison of women to, or more accurately, assessment of women according to, the criterion of entitlement for the benefit in issue. Strictly speaking, the language of comparison may be misleading here if it implies that women should get the benefit just because men do, but I doubt that anyone doing feminist theory is actually confused about the work that the language of comparison is doing here.2 Indeed, Macklem acknowledges that comparisons between men and women seem natural in the context of social practices and institutional rules characterized by the long-standing exclusion of women from pursuits that women are, in fact, just as capable of engaging in as men are. There is theoretical value in pointing out that such claims are not essentially comparative, but in the absence of evidence that speaking in terms of comparison between men and women leads us astray, the value is limited.
In fact, his critique of alternative feminist accounts of sex discrimination is based on the claim not that they merely redundantly employ comparison when the claim is really based on an accurate assessment of women’s capacities and needs and how that entitles them to some benefit in order to lead a successful life, but that they are essentially comparative and therefore mistaken (40). He sets up two competing accounts of sex discrimination, which he takes from two leading feminist scholars. The first explains sex discrimination as a matter of inequality between men and women, and this view is attributed to Catharine MacKinnon (ch 2). The second explains sex discrimination as the failure to value female-specific difference, and this view is attributed to Druscilla Cornell (ch 3). Both accounts are said to be comparative in nature.
I would dispute this reading of feminist accounts of discrimination generally. Given that strict egalitarianism was separated out as a specific account of the role of equality in political argument by contrasting it with the pervasive use of comparative language in arguments not essentially turning on comparison,3 Macklem would have been wise to read comparative language in feminist arguments about sex equality a bit more sceptically. One first has to determine whether the standard feminist arguments really are in the strict egalitarian vein before one can criticize them for having mistaken sex discrimination to be a comparative matter. Because he skips this step, Macklem tends to read the feminist theory he criticizes lopsidedly. I will focus on his treatment of Catharine MacKinnon to illustrate how this leads him astray.
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2. MacKinnon’s Dominance Approach: Essentially Comparative? |
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Top1. Analysing Discrimination...2. MacKinnon’s Dominance...3. Connecting Theory and...Notes |
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At first glance it is hard to see how MacKinnon’s theory could be regarded as comparative in nature. Indeed, MacKinnon’s work is full of indignation that, as things stand, women should have to be like men in order to get their needs and interests looked after.4 This would seem to be indicative of a view that women’s claims should not be dependent on a comparison with what men get. The effort to paint MacKinnon’s theory as comparative is flawed by a systematic tendency to selectively exaggerate parts of her account and ignore counterbalancing parts. This might be understandable—MacKinnon is a notoriously difficult writer and her polemicism often gets in the way of theoretical clarity. Nevertheless, a more sympathetic reading of MacKinnon would not only show her not to be promoting a comparative account of equality, but would have enabled Macklem to identify his real point of disagreement with MacKinnon and might have pushed him to better develop a crucial feature of his own approach. Where the two diverge most interestingly is in Macklem’s commitment to an objective and pluralistic account of morality, positions that MacKinnon purports to reject. To explore the implications of pluralism for a feminist analysis of discrimination is an eminently worthwhile enterprise. However, Macklem doesn’t take the exercise far enough to reveal how and whether it transforms existing debates.
Generally speaking, Macklem does a good job of outlining MacKinnon’s theory, and it would be unfair to say that his account leaves out any essential elements. Yet somehow what he does with the theory in order to read it as comparative does not do justice to the motivations underlying MacKinnon’s approach, nor to the complexity of—even contradictions within—the approach. To make MacKinnon’s theory seem comparative, Macklem boils it down to a choice between two central claims. First he interprets her analysis of the social construction of sex/gender5 in accordance with male dominance and female subordination as committing her to the reconstruction of men and women to be the same (59–60). This part of the argument treats the distribution of human attributes as part of a theory of sex equality. Second, he reduces her rejection of ‘male dominance’ to the slogan that equality means not treating women as less (50), and interprets this to mean that all forms of inferiority must be eliminated in every possible context of life (57). This move shifts focus from the attributes of men and women to how assessments of value are made. He is right that both claims would amount to achieving equality by eliminating sexual difference altogether, but I don’t think either claim is the most plausible interpretation of MacKinnon, and certainly not of feminism more generally.
To read MacKinnon this way, Macklem must read down or virtually ignore the ways in which she either explicitly or by implication tempers the radicalness of some of her more radical pronouncements. This ignores the polemical political point of her work. Indeed, Macklem perhaps signals his inattention to this dimension of MacKinnon’s work in his declaration that she exhibits a ‘pure’, ‘uncompromised’ commitment to the equality of women (40). But a theoretically pure MacKinnon is an incomplete representation of her account of women’s inequality. Judged from a pure theory standpoint, she can readily be criticized for inconsistency—I’ve done so myself.6 But seen from the perspective of her political objectives, there is no mystery about why she puts her emphasis where she does. Perhaps Macklem means only to argue that if we take her at her word with respect to some of her more radical claims, she would have to adopt a comparative account of equality. That might be right, but it doesn’t convey the full flavour of her theory, and at the same time fails to grapple with the political intricacies of the sex equality debate. More importantly, perhaps, ‘feminism’ as a whole should not be tarred with this brush, as Macklem tends to do. This lack of balance shows up in comparable ways in Macklem’s formulation of the two key claims he attributes to MacKinnon.
A. Purity and Polemics
Let’s start with the move from her critique of the treatment of sexual difference as natural to the claim that she looks for equality in the elimination of difference in attributes. Macklem describes MacKinnon’s critique of the established approach to equality analysis, which she labels the ‘difference approach’, as follows:
Overall, then, the failure of the difference approach in both its branches is the failure to probe the nature and origins of the differences between men and women, a failure to make those differences themselves the subject of political criticism. Instead of challenging sexual difference, the approach focuses on the consequences that can legitimately be attributed to it. In MacKinnon’s view, however, the fundamental inequality of men and women can be understood only through an analysis that reveals the artificiality of the dominance of men over women, and its reflection in the construction of the sexes as we know them (50).
This is accurate as far as it goes. Indeed this social construction thesis is crucial to MacKinnon’s critique of the standard analysis of sex equality issues as being a matter of accurately mapping the consequences of male and female differences as they currently stand, which differences are treated as natural. If the differences between men and women are not natural, we can have no confidence that we need only check to see if a legal rule or social practice maps onto existing similarity or difference in order to treat the similar similarly and the different differently. However, Macklem focuses on her claim that women have been denied the ability to meet male standards and combines it with her critique of Carol Gilligan’s ‘different voice’ as merely validating traditional female characteristics when these are actually the attributes of the subordinate, to convey the impression that MacKinnon is committed to making women like men in order to achieve equality.
In effect, her complaint that the standard approach does not ‘challenge sexual difference’ is taken to mean that because difference is not natural, it must be eliminated. This interpretation fuels Macklem’s treatment of MacKinnon’s theory as comparative: in order to know what qualities women should have, we need to know what qualities men have. Equality is achieved through reshaping men and women to be the same. But surely existing conceptions of sexual difference can be challenged without necessitating the elimination of all difference.
Macklem moves similarly quickly from outlining MacKinnon’s reformulation of equality as a matter of the elimination of male dominance or gender hierarchy to the conclusion that MacKinnon demands that women never be treated as inferior to men in any respect. He starts off on solid ground, pointing out that MacKinnon claims that sex inequality is a matter of unequal power, but provides no clear and comprehensive account of what power is, how to recognize instances of unequal distribution, and what would constitute its equal distribution:
it is not entirely clear what MacKinnon understands power to be..., that is, under what circumstances she believes that a group of people can be said to be dominant in society. It is not that her argument suffers from any shortage of examples of dominance and subordination; on the contrary, it is sustained throughout by images of women’s social predicament. What is unclear is what principle MacKinnon sees as uniting these examples and explaining them as subordination (54).
In an attempt to fill the gap, Macklem canvasses three possibilities based on her analysis of examples of dominance and subordination. He notes that she devotes a great deal of attention to women’s sexual subordination at the hands of men, but finds this too narrow a basis for a comprehensive account of unequal power.7
His second attempt to formulate a principle for her provides a pretty good rendition of MacKinnon’s account of dominance:
dominance means conferring the status of a norm upon the set of characteristics that describes white males as different from women and blacks, a status achieved by means of the social construction of sex and of race. Ending dominance, on that analysis, would be a matter of ending the present degradation of women and blacks by reconstructing the meaning of sex and race so as to ensure that in future social norms are no longer defined exclusively in terms of white male characteristics (56).
Dominance consists of the systematic construction of men and women to be different and the arbitrary elevation of those attributes associated with men as the definition of what counts as valuable.
But rather than explore this reading more fully to see if at least the beginnings of an account of power is present, Macklem immediately leaps to the following claim:
To appreciate her position fully, however, it is necessary to go one step further... MacKinnon emphasizes throughout her work that dominance and subordination, as she understands them, are present in any social practice that treats a group of people as inferior in any respect. That is true whether or not the practice is based on functional differences, whether or not the differences, if functional, are conditions of birth, and whether or not the treatment reaches the level of brutality. In short, dominance is present in any difference that implies the inferiority of those defined by it (56–57).
Just as MacKinnon’s criticism of treating existing sex differences as natural is said to require the elimination of difference, here the denunciation of an array of forms of mistreatment of women as ‘male dominance’ is treated as logically requiring the rejection of any form of assessment in which women might come out as inferior to men. In other words, ‘hierarchy’ is equated with the use of any standard according to which one person can be judged better than another. MacKinnon is presumed to presuppose a world of uni-dimensional standards (67–68), but admits only those according to which women are never judged inferior to men. If this is not accomplished by making the sexes identical, it can only be accomplished by remaking the standards. This simply amounts to another way of eliminating sex difference.
With respect to both of these characterizations of MacKinnon’s theory, only part of the story is told. MacKinnon does, as Macklem notes, lament the fact that women have been prevented from acquiring capacities associated with maleness, and she does criticize those who would seek simply to change the moral valence of existing attributes of femininity. Yet, it is also obvious that MacKinnon does not think that women should be recreated to be just like men across the board—she certainly does not think that all the constitutive elements of maleness are actually valuable, so that women should be enabled to emulate them, nor does she think women should be so enabled just in order to make them equal to men. She is just too critical of too many traditional male attributes and qualities to make it plausible to think that she locates equality in making women just like that. At the same time, MacKinnon’s critique of the implicit male norm—the fact that existing practices require women to be the same as men in order to get the benefit of whatever benefits are available—presupposes that some attributes associated with women should be recognized as valuable despite their difference from male attributes and ways of doing things. This is the only way to make sense of her acknowledgment that ‘quilts are art’, and women do ‘create culture’8 or her celebration of the different attitudes that women bring to athleticism and sport.9
The foundation for conflating MacKinnon’s rejection of hierarchy and the rejection of any ‘better and worse’ ranking is her warning against any so-called feminist account of equality that would seek merely to ensure that some women get an equal share of the bounty that is currently the preserve of the most privileged men, leaving all other forms of inequality untouched. This broadening of the boundaries of her theory of equality, especially as expressed by her stipulation that power is, by definition, ‘male’, exacerbates her failure to provide a clear account of power. This much is true. But someone who had been following the debates within which MacKinnon is situating herself would know that her main objective here is to set herself apart from those who would claim that as long as there are no explicit barriers to women’s participation in the full range of human enterprises and some women are admitted to the halls of power, women’s equality has been achieved. This was meant to blow the whistle on those privileged women who would climb the ladder and then kick it away. It therefore seems perverse to use it as a basis for attributing to MacKinnon an inflated theory of equality that would see all rankings of human beings against one another abolished.
There is no doubt that MacKinnon’s critique of the status quo is wide-ranging. It will take more than a little tweaking to eliminate the various forms of dominance that she sees. But more is needed to conclude that she seeks to eliminate all standards that allow any ranking amongst human beings. MacKinnon’s account is simply too underdeveloped on this question to be confident about how far it leads. On the other hand, it seems implausible, given the affirmative things she says about some female-associated characteristics, including the capacity to bear children, that she would want to argue that none of these should be valued unless they embody a standard of assessment that is equally flattering to men. In other words, her apparent validation of some forms of difference makes it impossible to see her as aspiring to a state of affairs in which there is never any respect in which one human being could be regarded as better than another.
There is a problem with MacKinnon’s account of the social construction of sex and sexuality, and with her theory of power, but it isn’t that they necessarily commit her to a comparative account of sex equality requiring making men and women identical. MacKinnon tends to present social construction as total and all encompassing, as though there is nothing whatsoever to appeal to outside of the existing construction to ground arguments for alternative constructions. This makes it rather hard to see how she can argue for any particular reconstruction of sex/gender, including a more egalitarian one. Similarly, her reconceptualization of sex inequality as inequality of social power requires a normative account of power—what forms of behaviour exemplify male power and which do not—and yet she denies that there are objective values that would ground such an account.
Yet MacKinnon’s very appeal to consciousness-raising to analyse the experience of women to uncover and begin to repair the damage that has been done implies that the construction of reality in accordance with male values and according to male interests is not complete. Similarly, despite her apparent rejection of morality, her work is simply dripping with normative judgments. Sexual violence is wrong, pornography is wrong, women should have control over their own reproductive capacities, they should be paid better and allowed more access to a wider range of jobs, and should not be subjected to sexual harassment as the price of access to the workplace, male competitiveness is destructive, and on and on. All these judgments assume that there are standards according to which behaviour and the quality of women’s lives can be assessed and we can conclude that women are being short-changed.
Indeed, MacKinnon acknowledges somewhat cryptically this space that allows for change in her quip that male dominance is ‘metaphysically nearly perfect’.10 It is this ‘nearly’ that allows women to glimpse the injustice of their condition. It is the same ‘crack in the wall’11 that makes possible a critical stance on maleness and male dominance. MacKinnon makes a great deal of use of this space while never providing a satisfactory account of its existence or its consistency with much of what she says about the social construction of sex and reality. Yet it will not do not to notice that she appears not to fully believe the very strong reading of the social construction thesis, notwithstanding that it is an available reading. To ignore this is to read too much out of her theory. She can, should be, and has been taken to task for the apparent contradictions in her account. Unfortunately, Macklem avoids grappling with the contradictions, and therefore ends up reading her too selectively.
B. A Non-Comparative Reading of the Dominance Approach
If we pay attention to this muted sub-text in MacKinnon’s analysis, another account of sex discrimination becomes available. I would not go so far as to ascribe this account to MacKinnon, herself, since she seems to revel in the contradictions in her account rather than welcome efforts to resolve them. But I would claim that it is implicit in her theory and consistent with much of it.
First, MacKinnon’s critique of the treatment of existing sex differences as natural can be embraced without committing one to the belief that all difference should be eliminated. For example, consider strength differences. Macklem infers from her complaint about the treatment of strength differences as natural that, for MacKinnon, equality must lie in somehow making men and women exactly equally strong. A much less dramatic interpretation is available, though. When situated in the context of the concrete conditions of women’s lives which motivate the argument, the insistence that strength differences are not natural is meant to open eyes to the fact that women’s current physical limitations are not natural but learned, and that the identification of women with physical weakness and enforcement of that standard works systematically to women’s disadvantage by making them vulnerable to male violence and therefore in need of male protection, which in turn puts each woman very substantially under the control of a particular man, leaving her no place to turn if he should decide to use his superior physical strength against her. It is not necessary to make women and men equally strong, whether on average or by eliminating all strength differentials amongst humans, in order to rectify this state of affairs. The fact is that if women were encouraged to develop their physical capacities to their full potential and take pride in them, they would be able to protect themselves from most acts of physical aggression, even if not able to guarantee themselves security. This level of self-reliance would be enough to break the hold of the image of woman as vulnerable and they would cease to be targets for male aggression in the way they are now. If women could fight back enough to make gendered violence not cost-free, it would cease to be a gendered phenomenon.
On this interpretation, identical attributes are not necessary, but perhaps more importantly, women should be enabled to become more like men, in this respect, not just for the sake of equality, but rather because in so far as strength provides the means of greater self-reliance, greater strength is a valuable attribute. Thus, the claim that women have been constructed to be inferior to men, is not a comparative claim that women should be made like men just because men are so, but rather implicitly validates the attribute of strength sufficient for self-protection as a good quality, which men are already encouraged to acquire because their security is valued and which women have been actively discouraged from acquiring in order that they may be more easily controlled by men. It is true that we do not, strictly speaking, need to know that strength is good for men in order to be able to see that it is good for women, but the comparison does help explain why this good has been denied to women. The comparison is part of the story about how this sex difference works to the systematic advantage of men and disadvantage of women.
Likewise, MacKinnon is severely critical of attempts to validate traditional feminine attributes, but this need not mean that no aspect of sex specific difference should survive, let alone that no new ones should be allowed to develop. She is critical not only of how women have been denied the chance to become all they can be, but also of what they have been forced to be. She is so hard on Gilligan because she wants women to think hard about how we have been warped by the roles we have been assigned, and to notice the seamlessness of the effects. The validation of the feminine voice risks reinforcing the damage that has been done to women already. Again, one could seek the elimination of these feminine attributes merely because they are different and equality requires simply that men and women be the same, but it seems clear to me that MacKinnon wants to eliminate the attributes of subordination because they are unworthy, because in so far as women are made into creatures who are weak, or silly, or cowardly they are less valuable human beings than they could be. At the same time, she clearly thinks that some sex-specific traits, either actual or potential, are valuable.
Similarly, there are ways of filling out an account of dominance that do not commit one to the belief that all judgments of better or worse are illegitimate. MacKinnon provides no theory of dominance distinct from her rich catalogue of the conditions that characterize women’s lives to a greater or lesser extent and her analysis of how they sell women short and compromise the quality of their lives. But the catalogue is clearly suggestive. Again, women are routinely targeted for sexual and other forms of violence; they are routinely denied opportunities they are perfectly capable of participating in; they are denied control over their reproductive capacities, paid inadequately for the work they do, their bodies are objectified in pornography for the amusement of men, helping to reproduce the cycle of violence against women, etc. Perhaps it makes more sense to say that, for her, ‘hierarchy’ or ‘treating women as less’ means this widespread and systemic practice of the violation and devaluing of women, rather than working from a dictionary definition of ‘less’ and interpreting her theory around it. It is the analysis of the systemic nature of the web of practices that characterize women’s condition that links more obvious forms of brutality with everyday minor slights so as to criticize what might otherwise seem trivial, rather than a commitment to eliminating differential evaluation altogether.
The flip side of this analysis is MacKinnon’s claim that women have been excluded from the definition of value. She says:
Feminism seeks to empower women on our own terms. To value what women have always done as well as to allow us to do everything else. We seek not only to be valued as who we are, but to have access to the process of the definition of value itself.12
This doesn’t sound consistent with the idea that value should be redefined so as to disallow any distinctions that recognize sex. It does mean that there is something fundamentally wrong with a value system that mostly treats bearing and caring for children, for example, as next to worthless, except in so far as it fosters male interests and is under male control. It is through connecting the dots between all these concrete forms of subordination—violence, disrespect, exclusion from valuable pursuits, refusal to acknowledge women’s valuable contributions to society—that a theory of male power must be constructed. The task may not be complete, but its contours are certainly discernable.
More importantly, it is unclear why one would assume that a fuller account would necessarily be comparative in nature. For example, if it is wrong that women should be routine targets of sexual violence it is certainly not simply because men are not. Rather it is because every human being should enjoy security from violence and adequate redress when prevention is impossible. A similarly non-comparative account could be provided of all the other examples of women’s subordination MacKinnon draws on. Indeed, MacKinnon acknowledges that she grounds her catalogue of grievances in the simple claim that women are human beings too.13 This seems to echo Macklem’s own claim that women should have access to the ingredients of a successful life just because every person should (18). At the same time, it is crucial to MacKinnon’s critique of the implicit male norm embedded in legal rules and social institutions that women should not be required to assimilate to male norms—sometimes because women’s needs and interests are different, sometimes because existing norms overlook some female attribute or quality which does in fact have value but has been treated as worthless as part of the subordination of women. This acknowledges that some human goods will take different form for women than for men because of some sex-related difference.
MacKinnon could have watered down her claims that sex/gender is socially constructed to the ground and that objectivity is a male plot, but this would have compromised her political objective. Her aim to change consciousness works, when it does, because she leaves her readers no place to hide. Her demand that everything be considered up for grabs—our conceptions of the natural and moral value—is meant to jar people out of their complacency, to get them to perform a thought experiment that could provide a glimpse of how different the world could be. It is a risky strategy—when it works it is revolutionary, even though it becomes immediately apparent where MacKinnon may be exaggerating for effect. But when a reader won’t go along for the ride, the exaggerations may overwhelm the kernel of truth that she is trying to expose.
In any event, even discounting for theoretical exaggeration, it is possible to argue for the wholesale reassessment of sex/gender differences and yet not advocate uniformity, just as it is possible to criticize a complex web or practices that together constitute serious inequality without advocating the elimination of all uni-dimensional standards of assessment. Even if we take MacKinnon at her word that reality is constructed as gendered to the ground, we might conclude that in a MacKinnonesque utopia ‘men’ and ‘women’ as they are currently constructed might cease to exist without it necessarily being the case that differences in attributes and capacities will be eliminated, provided that the different kinds of people in that utopia are equally valued as members of society, their respective talents and contributions taken into account in defining value. Unless human reproduction is entirely moved into the lab, there will continue to be reason to notice that there are at least two types of human beings, and no doubt labels will be attached to them. The feminist objective lies in ensuring that the ones who bear children are valued for it rather than systematically punished.
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3. Connecting Theory and Politics |
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Top1. Analysing Discrimination...2. MacKinnon’s Dominance...3. Connecting Theory and...Notes |
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At one level, this simply makes Macklem’s case. After all, the point of the book is to argue that sex discrimination is not a matter of comparing women and men. If the best interpretation of MacKinnon is a non-comparative one, that would bolster the argument. I have deliberately read MacKinnon so as to bring her closer to Macklem’s own account in order to show that the interpretation is available, and, I think, more plausible. This analysis shows that Macklem’s main disagreement with MacKinnon may be with her claim that sex/gender is socially constructed ‘to the ground’ and her denial of moral objectivity. I’ve already argued that I don’t think these positions dictate a comparative account of sex discrimination, although they are certainly controversial theses. Like Macklem, I disagree with MacKinnon on both these issues, but I see why she is driven to state her position this strongly in order to expose how women have been seriously and systemically harmed and deformed by patterns of gender socialization that serve male interests, and how a system of value that is equally biased toward the male perspective has systematically failed to acknowledge what female-specific value there is.
Macklem denies the social construction thesis and insists that morality is objective. However, in largely keeping his theory above the substantive political debates about what women’s talents and capacities are and which sex-specific traits are valuable, he fails to engage with feminist theory where it really lives. Given that political theory, when it has deigned to notice women at all, has traditionally assumed that women are a specific kind of creature and that the value judgments made about them are objective, I don’t think it is asking too much to expect Macklem to convincingly demonstrate that his theory doesn’t reinforce the confining and devaluing of women that feminism has been devoted to exposing and eliminating. A mere five pages is devoted to illustrating the concrete implications of his theory (197–202) and even this effort remains at a high level of abstraction. Such abstraction invites misunderstanding.
Let’s start again with the issue of whether sex differences are natural or constructed. Macklem’s theory is built around the idea that we need to determine what it means to be a woman before we can decide whether any particular practice disadvantages women seriously enough to constitute impairment of the ability to lead a successful life. Yet, as already noted, he declines to provide any substantive account of what it means to be a woman, acknowledging the frustration this is likely to cause, but deeming this not to be a philosophical question (39). On the other hand, he regularly assumes that what it means to be a woman is knowable, and is more or less a simple matter of careful reflection by women about themselves (37–38; 189–190). This assumes away rather than confronts the voluminous feminist literature about how gender norms and expectations cabin and confine women and how difficult it can be to shake off their constraining effects. Even if one does not go to the length MacKinnon does in claiming that reality is gendered to the ground, one must grapple with the extent to which gender norms are the product of society rather than the expression of an ‘authentic’ identity and the challenge that fact poses to achieving change.
When Macklem isn’t just avoiding this fray, he is constructing a theory that may be better capable of supporting the status quo than challenging it. For example, against MacKinnon’s critique of Gilligan he argues that it does not follow from the fact that certain female specific traits are the product of oppressive conditions that they must be abandoned. (31–32; 125; 138–139; 172–173) The relevant question, he says, is whether these qualities are valuable and can be put to use in pursuit of a successful life. Without examples to test the application and limits of this argument, it can easily be read as a recommendation that women should simply embrace their stunted existence and learn to live within the constraints it imposes.
This interpretation is reinforced by the argument that any given society consists of particular social forms that constitute the forms of life that can be successfully led in that society. These social forms make certain qualities or characteristics relevant and others not and thus constrain how a successful life may be pursued. Thus, if a society’s social forms are sexist—and which one’s aren’t?—failing to recognize female-specific qualities as valuable or as providing an alternative way of pursuing existing endeavours, it would be irrational, according to Macklem, for a woman to set her sights on the pursuit of activities that don’t fit the mold (175–78). She would be disadvantaging herself by pursuing a life that cannot be successful (164). At times it is a little bit difficult to shake the echo of the kind of popular self-help book on the market these days that advises us that an abusive boss, husband, colleague, etc. can only make one feel badly about oneself if one lets him, locating the solution to oppression in the attitudes of its victims rather than in the cessation of the abusive conduct. Macklem allows for change at the margins, gradual change in both individual psychology and social forms, but also offers a lot of comfort for supporters of the status quo. That’s fine if one thinks that there is not much wrong with women’s condition as things stand, but someone who does think society needs a serious shake-up is bound to be suspicious of these elements of Macklem’s theory. He does little to allay the suspicion.
It is not that Macklem’s theory is wrong on these points. It is probably right that some traits can be valuable even though developed under conditions of oppression. Human beings are amazingly resilient and creative, even in the face of adversity. And it is true that there are some paths in life the pursuit of which is self-defeating in some cultures or societies even though it could be a valuable way of life under different conditions. The problem is that without more effort to work out the concrete implications of these arguments, it is impossible to tell where Macklem stands. Worse still, it is easy to see how the theory can support fatalism about current conditions and complacency about their acceptability. It could also frame an ambitious agenda for change, but most of the substantive work still needs to be done for it to do so. I don’t mean to suggest that a philosophical account should be judged solely by its practical consequences and discarded if it does not fit a particular party line, but sometimes we need to work through the concrete consequences of a philosophical position in order to fully understand it, and sometimes that process informs the theory. Theory should not be merely a reflection of political commitment, but nor should it—at least a theory about something as political as sex discrimination—be completely disengaged from concerns on the ground.
A similar complaint can be registered concerning Macklem’s gestures toward a pluralistic account of morality. In response to what he characterizes as the relativism of feminism, (25–27) Macklem’s main contribution is the suggestion that one can respect sex-related differences without being a relativist, by adopting a theory of moral value that is pluralistic. This means acknowledging values that are incommensurate with one another. However, his description of how we can assess the qualities of men and women on their own terms without needing to compare them is maddeningly brief (69–70), given how much rides on it. He also does not reveal a sustained appreciation of the serious challenges of adopting such an approach in legal and social practice given our history of misconceiving what it means to be a woman, to use his terminology. This lends the account an air of abstraction that will likely cause many to misread him. Feminists will assume he supports many oppressive practices; many of those who are responsible for the continuation of those practices will think they find support for their actions in Macklem’s theory.
Macklem suggests that instead of comparing people by reference to standards that are ‘one-dimensional and authoritative’, we could use standards that are ‘complex and sensitive’ in order to ‘comprehend the character and capacities of human being in their own terms’ (69). He goes on to state:
If we want to appreciate and value the full significance of different lives, therefore, we must employ standards whose complexity and sensitivity mirror the complexity and variety of the qualities we hope to discover or create. It follows that if we hope to reconstruct sex in such a way as to establish what it means to be a man or a woman in all its possible richness and variety, we must employ complex standards of assessment that allow us to appreciate what men and women have to offer. This is not a matter of employing separate standards for men and women. It is a matter of employing a common standard of sufficient complexity to be capable of recognizing and appreciating what each sex is capable of becoming (70).
However, having first said this is not a matter of employing separate standards for men and women, he immediately goes on to say that there is ‘no common currency in terms of which men’s and women’s distinctive lives could ultimately be assessed and compared’ (70), For this reason, he describes men and women as having ‘different and ultimately incommensurable fates’, (70) neither inferior nor superior to the other, simply different, so that neither hierarchy nor equality between them is possible.
This idea of complex standards capable of appreciating different qualities on their own terms is intriguing, but underdeveloped. To begin with, it is unclear how there can be a ‘common standard’ underpinning a complex standard and at the same time be no ‘common currency’ according to which men’s and women’s distinctive lives can be compared. The insistence that there is a common standard seems designed to distinguish Macklem from the relativist views that he attributes to feminists throughout the book. In criticizing relativism, he says it would require relegating the sexes to separate worlds if what counted as valuable depended on the sex of the person to whom the judgment applied, a view he finds implausible and impractical (66). Yet he provides no full account of how a pluralistic account of value does not produce much the same problem. If there are two valuable but incommensurable ways of performing a certain task or organizing a certain enterprise, can we find room for both in the same enterprise? Should we require employers, for example, to make the effort to accommodate both? If not, how do we decide which talents will characterize which enterprises? How do we prevent the enterprises associated with one package of talents from being arbitrarily elevated in status over the other behind the camouflage of the slogan ‘neither equal nor inferior, just different?’ It is therefore all the more disturbing when he describes men and women as having ‘different and incommensurable fates’. Given the long history of separate spheres ideology in this and most other societies, based quite explicitly on the idea that men and women just have different roles in society, one awaits with baited breath the explanation of how Macklem’s account does not support such a world view, but is ultimately disappointed.
Against this backdrop, Macklem’s refusal to provide content for the abstract notion of what it means to be a woman is frustrating, since he must know that the main problem feminist advocates have faced with courts, legislatures, and policy-makers is that male decision-makers have commonly and systematically decided that women are not like men when they are, thereby denying them benefits of value in the pursuit of a successful life, and have failed to take account of female-specific traits, again in ways that constrain women’s pursuit of a successful life, all the while saying that they are merely treating like cases alike and difference differently. In other words, past legislative and judicial approaches have systematically misrepresented women, both with respect to our similarities to and differences from men. Indeed, he acknowledges as much. It is therefore difficult to see how it advances the debate to be told that what is needed is an account of what it means to be a woman, rather than either equality or respect for difference, without venturing an account of what it does mean to be a woman and how to diagnose and rectify the mistakes that continue to be made in that regard.
To tell a judge who thinks, for example, that women are too unreliable to take up combat positions in the military that he should decide a challenge to women’s exclusion from such positions by deciding what it means to be a woman gives him a convenient jargon in which to dress up his prejudices. Similarly, to tell a judge asked to decide whether a workplace requirement to work night shift every other week discriminates against single mothers that the answer lies in determining whether the requirement misrepresents what it means to be a woman invites the decision that caring for her children in the evenings might be part of women’s different fate, while working a job that requires working the night shift isn’t.
I appreciate that Macklem does not see his project as a political manifesto for change, but rather as a philosophical analysis of the nature of the issues. However, in this area whatever excesses in feminist theoretical rhetoric there may be are driven by an appreciation of the pervasive concrete failures of existing institutions to allow women to be the best they can be and make the best use of their sex-specific attributes. Some feminists might be more caught up in practical politics than is good for their theory, but Macklem is too disengaged from the real world to give one confidence that his theory has a firm grasp of the problem it sets out to analyse. A theory of sex discrimination as a matter of misconceiving what it means to be a woman without an account of what women are seems at least as inadequate as a theory of sex discrimination as unequal power without a full account of power. If it also stands to bolster existing misconceptions, it is doubly problematic.
This is not an argument that one should eschew theory for politics, but rather a claim that the real theoretical work that needs to be done is that of providing a substantive analysis of the misconceptions that inform current practices and rules. Feminists would have little trouble filling Macklem’s abstract concept with content that would show women’s needs sometimes to be the same as men’s and sometimes different, although there would not be unanimity on all the specific features of these accounts. Indeed, my reconstruction of MacKinnon’s work provides one sketch of the needed content. But there is also little doubt that, left to their own devices, courts and legislatures will colour in the concept quite differently, and indeed will systematically exploit whatever disagreement they deign to notice in the feminist debate in order to support an overall picture of what it means to be a woman that stays as close to the status quo with respect to women’s place in society as possible. Macklem’s account provides some cover for such obtuseness and manipulation rather than helping to expose and eliminate them. Abstract theorizing is an entirely worthwhile enterprise, but it should be alive to the concrete normative struggles falling under its rubric. Sometimes the proof of the pudding (theory) really is in the eating (application).
I am painfully aware that these remarks may make the bridge building enterprise that I applauded at the outset even more difficult. Some feminist readers may think they need not engage with Macklem’s theory; some theorists in the analytical tradition (male or female) may be more inclined to steer clear of feminist issues and scholarship. That would be a mistake on both sides. There is a fair amount of inflated rhetoric that passes for theoretical truth in feminist circles, and it does feminist theory good to have these claims subjected to rigorous analysis. But it is equally important for theory to be conversant with the lived experience of the struggle to achieve for women their rightful place in society and to be tested against the complexities of concrete political and social battles.
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Acknowledgement |
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I owe thanks to Les Green for listening to me try out ideas and angles, and providing helpful feedback.
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Notes |
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Top1. Analysing Discrimination...2. MacKinnon’s Dominance...3. Connecting Theory and...Notes |
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A review of Timothy Macklem, Beyond Comparison: Sex and Discrimination (Cambridge University Press, 2003). 
1 P. Westen ‘The Empty Idea of Equality’, 95 Harv L Rev 537 (1982); J. Raz, The Morality of Freedom (1986) at 217–44.
2 The courts, however, are another matter. It is somewhat ironic that the charge of adopting a comparative account of sex discrimination should be laid at the doorstep of feminist theory, when arguably it is the courts who have insisted that equality law is a matter of comparison. For example, the Supreme Court of Canada, in Law v Canada [1999] 1 SCR 497, opined that: ‘the equality guarantee is a comparative concept. Ultimately, a court must identify differential treatment as compared to one or more other persons or groups. Locating the appropriate comparator is necessary in identifying differential treatment and the grounds of the distinction. Identifying the appropriate comparator will be relevant when considering many of the contextual factors in the discrimination analysis’ (para 56). To the extent that feminist legal advocacy adopts the language of comparison, it is likely to be because its audience demands it.
4 For example: ‘Why should you have to be the same as a man to get what a man gets simply because he is one? Why does maleness provide an original entitlement, not questioned on the basis of its gender, so that it is women—women who want to make a case of unequal treatment in a world men have made in their image...—who have to show in effect that they are men in every relevant respect, unfortunately mistaken for women on the basis of an accident of birth?’. C. MacKinnon, Feminism Unmodified: Discourses on Life and Law (1987) at 37.
5 I propose to simply skate over the controversy over whether sex and gender are different things, given that MacKinnon treats the whole ball of wax as socially constructed and it is this view that Macklem spends a lot of time on. To make clear the scope of the claim about social construction, I therefore use the term ‘sex/gender’.
6 D. Réaume, ‘The Social Construction of Women and the Possibility of Change: Unmodified Feminism Revisited’ (1992) 5 Canadian Journal of Women and the Law 463.
7 This fails to notice the explanatory power that MacKinnon attributes to the definition of sexuality in accordance with male dominance and female subordination. For MacKinnon, sexuality is the lynchpin of inequality. Other forms of inequality can all be connected, she thinks, to male dominance through sexuality. Nevertheless, she does also acknowledge that women’s subordination extends beyond sexuality, so Macklem is right to search for a more comprehensive account of how to identify dominance.
8 Feminism Unmodified, above n 4, at 39.
10 C. MacKinnon, Toward a Feminist Theory of the State (1989) at 116, emphasis added.
12 Feminism Unmodified, above n 4 at 22.
13 Toward a Feminist Theory of the State, above n 9 at 247.
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