Scale and jurisdiction in feminist legal theory: a case study
Scale and jurisdiction in feminist legal theory
A case study
Introduction
This chapter pursues the same questions of spatiotemporality and jurisdiction explored throughout the book, but applies the analysis reflexively to critical legal thinkers’ own efforts, in recent decades, to change the world by changing the dominant ideas about it. The legal feminism that developed from the 1970s onward in the English-speaking world is the particular field chosen, mainly because I lived through the relevant debates and made a contribution to one subfield (sexuality and the law). While focusing on feminist scholarship, the analysis presented here has relevance for other forms of critical legal analysis, such as critical race theory or queer legal studies, since it focuses not so much on feminist theory’s specific content (theories of gender) but rather on theoretical and methodological issues shared by most if not all critical legal endeavours.
The chapter will argue that the evolution of feminist legal thought over the past three or four decades can be understood as a scale shift – a shift away from the ‘domestic’ realm (in both senses of the word) toward the transnational, and that this scale shift has worked with and through a variety of chronotopes. Each of these domains (which are domains of governance as much or more than they are actual spaces) have built-in temporal as well as spatial preferences – and each of them, I will show, also encourages or facilitates certain jurisdictional claims while discouraging others. While scale is the analytic idea at the forefront for most of the chapter, jurisdiction comes to the fore in the final section, where I take up the old question – going back to Antigone, some would say – of whether there can be any such thing as a women’s law, a feminine jurisdiction.
The postmodern challenge and the scale of theory
In the mid and late 1980s (a time that could plausibly be described as the golden age of feminist legal thought, in North America at any rate), critical theorists, including feminists, were virtually obliged to take sides in the cross-disciplinary debate – or, more accurately, the dialogue of the deaf – concerning ‘postmodernism’ (Nicholson 1990; Brown and Halley 2002). The intra-progressive fights, which especially in the US spilled over into heated public debates, pitted feminist legal thinkers who were largely in favour of postmodern approaches (e.g. Judith Butler, Drucilla Cornell, Janet Halley, Wendy Brown, Nicola Lacey, Carol Smart) against those who for a variety of reasons felt inclined to reject the new approaches. The ‘anti’ forces were more heterogeneous than the ‘pro’ camp, as happens when a radical new idea is opposed by a motley crew who dislike it for quite different reasons: opponents of ‘pomo’ ideas included mainstream liberals like Martha Nussbaum but also socialist feminists such as Nancy Fraser and radical feminists such as Catharine MacKinnon. The inordinate amount of attention devoted to the rather obscure theoretical issues associated with postmodernism had the effect of sweeping under the rug the scale shifts – discussed in this chapter – that have arguably had more lasting effects on progressive legal thought than any postmodern ideas. But since postmodernism is what in fact was at the forefront of intellectual debate when feminist legal thought was coming into its own, a preliminary discussion of the ‘pomo’ debates is in order.
The ‘pomo’ debates had both a theoretical dimension (turning on whether ‘Woman’ or ‘women’ can be taken as a stable and self-identical object of theory) and a political dimension. All radical and for that matter reformist intellectual movements share the same dual theoretical-practical character; but an implicit and yet constitutive feature of the particular debates that concerns us here was that participants often, indeed usually, assumed a very direct and highly stable connection between theory and practice. Thus, many feminists opposed postmodern theories of gender not because of internal theoretical objections but because they felt that to explore fragmented subjectivity in theoretical work necessarily meant fragmenting the women’s movement on the ground. On their part, postmodern advocates too sometimes wrote as if their (or I should say ‘our’) greater philosophical sophistication meant that they/we were sophisticated political strategists, a self-satisfied assumption that a survey of European intellectual life from the 1940s onward would have quickly refuted.
In hindsight it is clear that while the majority of us were not members of political parties (although Communist and Trotskyist parties played an important, now forgotten role in the development of feminist legal thought, in the UK and Canada at least), we were still working in a theory paradigm in which an almost unmediated and virtually univocal connection between theory and practice was assumed. In other words, even those of us who were not members or ex-members of any political party still tended to think of theory in a party-like manner. Hence, criticisms of someone’s theoretical views or tools often slid directly into denunciations of the (usually assumed rather than proven) nefarious political effects that were thought to flow directly from the theory. Liberal humanist feminist Martha Nussbaum’s vitriolic attack on postmodern feminist icon Judith Butler, ‘The Professor of Parody’, is a locus classicus in this respect. The polemic, published in the magazine New Republic in 1999, begins with the uncontroversial assertion that theoretical work is ‘not just fancy words on paper; theory is connected to proposals for social change’. As the article goes on, this bland comment about theory and practice is slowly ratcheted up. First one encounters the claim that Butler’s frankly philosophical publications are having a direct, and highly negative, effect on the women’s movement, namely encouraging or even causing ‘quietism’. A feminism without liberalism is for Nussbaum an apolitical, purely armchair and thus inherently dangerous feminism. But worse, the accusation of ivory-tower ‘quietism’ (so often hurled at thinkers who do not engage with mainstream law reform) is swiftly turned by Nussbaum into a much more serious attack. The conclusion of the article goes as far as to claim that Butler ‘collaborates with evil’. That a self-proclaimed pluralist and liberal humanist should accuse a noted feminist intellectual, in a public forum, of collaborating with (unspecified) evil, rather than of holding a different point of view, is to say the least remarkable. But from the mid–1980s to the end of the twentieth century such intemperate attacks were not uncommon among feminist legal scholars.
Nussbaum’s provocative comment about collaborationism was but an extreme example of an assumption common in the 1980s and 1990s: that feminist theoretical moves have immediate, predictable, and univocal practical consequences. This silent slippage from the scale of theory to the scale of practice helps to explain why a vast amount of energy was devoted to finding increasingly more sophisticated answers to two questions that on their face are theoretical but which at that particular time appeared to be burning political questions. These were: (1) whether ‘Woman’ or even ‘women’ is a stable self-identical entity (see, for example, Riley 1988; Scott 1988; Valverde 1990), and (2) whether law’s role in the oppression of women can be fixed through gender-sensitive law reform (e.g. Smart 1990; Lacey 1998). Answers to these questions differed greatly, even among thinkers located largely in the same ‘camp’; but for present purposes it is the questions, not the answers, that matter. And the way in which the questions were asked – which was, as mentioned, as if the women’s movement’s success or failure depended quite directly on the answers given by theorists – can in retrospect be seen as rooted in a failure to recognize the difference that scale makes. How so? Because the scales of political action, the scales employed by both grassroots social movements and law reform efforts, have never been the same as the scales of high theory. Theorists do not all work at precisely the same scale, of course; and today one sees certain site-specific historical inquiries (e.g. Foucaultian histories of madness and of sexuality) raised to the level of ‘theory’ under the fuzzy term ‘genealogy’, a move that however problematic (as discussed in Chapter 2), has the silver lining of destabilizing traditional assumptions about the proper scale of theory. But in general, the type of work most widely accepted as ‘theory’ is intellectual work that takes up the scale of the whole world – even if the resulting analyses are in fact limited to the West, or to Europe, and/or to the modern period.
As the now numerous critics of Eurocentric map-makers’ projections have pointed out, depictions of the whole world are never neutral (e.g. Jacob 2006). But what is less often remarked is that any effort to visualize the world at once, which is what grand social theory claims to do, uses not only particular spatial projections and symbolizations that are freighted with political effects but also particular temporalities. In the kind of world-scale theory that has been hegemonic since the mid-nineteenth century, ‘the world’ has been imagined as sufficiently stable, temporally, to allow theorists to generalize about such ill-defined entities as ‘modernity’. Change and dynamism has been tamed, with temporality appearing within theory only in highly domesticated forms. In the 1950s, a key idea used to tame temporality and contingency was ‘development’; in the 1960s and 1970s, among left-wing structuralists, notions such as ‘determination in the last instance’ had the same taming effect. Today, the content of theory is very different, both in the mainstream and among critical thinkers; but the scale of the whole world is still taken as the default scale for theorizing. This means that thinkers who focus on, say, postcolonial situations (or for that matter feminists who theorize women’s oppression) are classified as particular theorists of particular places and peoples, while white male metropolitan thinkers of the world in general, from Ulrich Beck to David Harvey, are read as ‘general’, all-purpose theorists.
A cautionary note is in order, however. Today, unlike in the 1950s and 1960s, theory elaborated at the ‘whole world’ scale is no longer thought of as auto-effective. Now that local knowledges and cultural sensitivity are common currency in all reform efforts, whether mainstream or radical, the relationship between theory and practice appears as more mediated than a few decades ago. How various multiculturalist ‘vernacularizations’ are helping to enable slight modifications of ‘whole-world’ theories will be addressed below, in the analysis of the shifts in feminist legal theory’s jurisdictional claims; for now the key point is simply that despite the popularity of notions about cultural specificity unknown in the 1950s and 1960s, the default scale of high-status theory is still worldwide. Local difference is acknowledged, but local knowledges are not regarded as equal interlocutors. Local (or minority-group) difference is managed by means of techniques of vernacularization and modification. World-scale theory is no longer thought of as auto-effective; but the ‘translators’ on the ground, while now seen as necessary, appear as lower-status intellectual workers than the metropolitan-based theorists. This issue will be taken up at the end of the chapter; for now let us return to the 1980s.
The second-wave feminist assumption that the scale of theory is not significantly different from that of political practice explains the often vociferous tone of the feminist debates that took place in the 1980s. But it is important to note that there was nothing specifically feminist or legal about this scalar assumption. Neo-Marxist debates about class-based vs. non-class-based social movements (the debates associated with Gramscian Marxists Ernesto Laclau and Chantal Mouffe), for example, shared the same scalar assumptions about the immediate practical importance of theoretical work. But while not unique to feminism, the assumptions made by feminists (such as Martha Nussbaum) about the easy and immediate slide from the scale of theory to that of practice can be said to be the first, the most basic of all of the spatiotemporal assumptions inherent in the theories to be discussed – assumptions which as we shall see shortly were and are connected to, but do not fully determine, the jurisdiction claimed by various intellectual projects.
The discussion of English-language feminist legal theory’s scalar story will begin with a consideration of the entity that was assumed to be the prime object of critical feminist analysis in the 1980s – which was not so much gender as gendered subjectivity. This entity was in turn imagined at a particular scale: the scale of ‘the domestic’, meaning both domestic, state law and domesticity as in household and family life. Over time feminist thought underwent a dual shift in scale, a shift that quietly came to background subjectivity in favour of a feminist ontology of ‘networks’ in flux and, not coincidentally, witnessed a feminist scalar preference for the transnational.
Subjectivity as the privileged object of theory and the domestic as the privileged scale
The key question asked by the feminist postmodern debates mentioned at the outset (is postmodern theory useful to feminism?) presupposed a notion that could only emerge as itself a question later on, in retrospect: namely, that theories, postmodern or otherwise, should be judged for their value for theorizing gendered subjectivity. The view that subjectivity was the ultimate object of theory was not unique to second-wave feminism; early queer theory was primarily concerned with sexual subjectivity too; and critical race theory, while often focusing on issues of violence and of material deprivation, was also concerned with subjectivity, initially the subjectivity of the subordinated (in keeping with Franz Fanon’s work) but later also the subjectivity of the privileged (cf. whiteness studies).
The scalar assumptions of the inquiries into subjectivity were in the air; they were part of the Zeitgeist, not the product of a particular author or school of thought. It is only with hindsight, therefore, that one can see that unquestioned scalar assumptions were the key building blocks of the taken-for-granted link between subjectivity – the privileged object of theoretical inquiry – and the scale of ‘the domestic’. This claim will be elaborated in the remainder of the section.
Focusing on subjectivity of course implies that ‘the subject’, that is, the individual as a psychic entity, is the – or at least a key – unit of analysis. The privileging of the scale of psychic individuality, resulting from the widespread dissemination of individualist psychology in the twentieth century (see Rose 1990), was perhaps most visible in liberal feminist complaints about the psychic alienation of middle-class housewives (Friedan 1963). But the psychic life of individual women as gendered subjects was also the privileged object of inquiry for left-wing and theoretically sophisticated feminists as well, especially those interested in psychoanalysis, who were far more numerous then than is the case now.
It is difficult to now, in 2014, give a sense of the excitement caused among feminist public intellectuals by rather obscure works in feminist film theory (e.g. de Lauretis 1987), work that theorized gendered subjectivity in sophisticated ways. Be that as it may, the key point here is that such feminism did not disappear in our own time because psychoanalysis was refuted, but simply because the key questions of theory shifted away from subjectivity altogether. For example, Judith Butler’s most famous work, Gender Trouble, showed (for many people, definitively) that humanist assumptions about subjectivity as either inborn or as a static product of socialization were both wrong. In her influential account, the modern self-aware subject with a complex but largely autonomous interiority is not universal or inborn but is actually the product of specifically Western juridical and disciplinary governance processes, with gender being one of the key vectors of subject formation (Butler 1990: 3–9).
Butler’s previous book, not coincidentally entitled Subjects of Desire (Butler 1987), which brilliantly traced different postwar French and German theories of subjectivity, also presupposes that subjectivity is that which is to be theorized. Indeed, Butler’s little-cited 1987 work could be used as ‘exhibit A’ to argue that while much was made of the break with structuralism carried out with much fanfare by the poststructuralist theorists in the mid and late 1980s (e.g. Scott 1988), what poststructuralist thought still shared with structuralism was a fixation with ‘subjectivity’ and its determinants. The difference was that by contrast with the rigidity and spatiotemporal stasis of the structuralist subject, for the poststructuralists subjectivity is not completely determined by the dominant ideologies; thus, actual people can occupy different subject positions, even at the same time. Butler and other poststructuralists emphasized contradictions and heterogeneities. But while emphasizing the instability of subjectivity, poststructuralists nevertheless assumed that the point of theory is to explain the production and the content of subjectivity.
In the feminist legal arena, the concern with finding more sophisticated tools for theorizing subjectivity, gendered subjectivity in particular, was precisely what undergirded Drucilla Cornell’s erudite and thoughtful explorations of what Lacanian psychoanalysis and deconstruction could do for feminist legal thought. Her important book Transformations begins by declaring that the task of critical sociolegal theory is to analyze the transformation of ‘the subject’ and the way in which transformation in turn becomes ‘the subject’, in the sense of the topic, of theory (Cornell 1993). This approach continued in her next book, The Imaginary Domain (Cornell 1995), which applied to feminist legal issues (pornography, abortion, etc.) the ‘fragmented subjectivity’ paradigm also pursued by such trans-disciplinary feminist theoretical icons as Gayatri Spivak.
The focus on the collective subjectivity of women was the feminist version of a theoretical project that had begun well before second-wave feminism. Even before Louis Althusser’s tremendously influential work on ‘Ideological Apparatus of the State’ (Althusser 1971), structuralist anthropology, especially the work of Levi-Strauss, had already pioneered ways of theorizing that explained the collective subjectivity of women in general by reference to such invisible, structural processes as the workings of kinship rules. That the subordination of women is a cross-cultural phenomenon was of course well known to mainstream theorists since the late nineteenth century; but it was only in a particular intellectual context (from the mid–1980s onward) that this observation gave rise to theories of gendered subjectivity as produced by kinship rules and/or by political-economic systems (Rubin 1975).
What was the spacetime of the subjectivity that different schools of feminist theory in the 1980s were attempting to theorize? Taking temporality first, the individualist subjectivity of the classic Betty Friedan alienated housewife was constituted in the largely ahistorical temporality of what was always called ‘the nuclear family’, and also in the equally ahistoricized temporality of what sociologists call ‘the life course’ – marriage, childbearing, domestic labour, etc. Historical change appeared in mainstream liberal feminism in the Enlightenment version of slow and gradual change in law and politics brought about by subpolitical factors (advancing capitalism, higher levels of education, etc.).
In turn, the relevant space for most early second-wave feminist thought was that of the family household: ‘the personal is the political’ was the key rallying cry, and ‘the personal’ meant primarily sexual relations and household organization. This kind of feminism was nevertheless multi-scalar in so far as the psychological empowerment that women were supposed to produce for themselves was to lead to a breaking down of the barriers keeping them subordinate in the economy and in the state. But the space of the household played a key role, since in many accounts, changing one’s marriage and reforming the rearing of one’s children were seen as preconditions of change at other scales.
Turning to spatialization, the space of the household of second-wave liberal feminist thought was not without temporality – but its temporality was strictly a cyclical one. The daily grind of housework, the weekly and seasonal cycles that make up family life, the generational cycles of marriage and childrearing, all were seen as embodying or operationalizing ‘the feminine mystique’.
Left-wing feminists had a different take than liberal feminists on the relations between the scale of the household and that of the economy, since they emphasized that the domestic work performed by women at home served the interests of capital as well as those of individual husbands, and worked hard to revise Marx’s analysis of the working day and the generational reproduction of labour-power (see, for example, Luxton 1980). But they generally shared the assumption that the ‘domestic’ realm was a crucial site or perhaps the crucial site for the making of gendered subjectivity. ‘Hidden in the Household’ was, symptomatically, the title of one of the numerous works of feminist political economy that attempted to theorize women’s unpaid work in the home from a more or less Marxist perspective (Fox 1980).
The nuclear family household – especially if spatially located in a owner-occupied single-family home – is one of the most powerful chronotopes of our time. Its legal roots and legal consequences go very deep, as has been mentioned in Chapter 3 and will be again discussed in Chapter 6. Thus, second-wave feminism deserves credit for critically questioning the way in which that hegemonic and ubiquitous chronotope came to be organized under conditions of male privilege and capitalist economic power; later in this chapter, we will have occasion to note some of the consequences of the relative invisibility of the family household and womens domestic labour in current feminist legal thought. For now, it is sufficient to note that the scale of the object of second-wave feminist theory – the gendered subjectivity seen as constituted mainly in the family and the household – became the default scale of its theorizations.
Of all of the feminist law reform efforts initiated at this time that used the temporally cyclical scales of the family household, the efforts to redefine wife abuse as a crime rather than a ‘domestic dispute’ were to have the most impact over time, because they could be aligned with the ‘tough on crime’ agendas that became popular from the 1970s onward, as Jonathan Simon has influentially argued (Simon 1997). The criminalization of wife abuse was by no means univocally conservative, since it seriously challenged the notion that the home was a private patriarchy; but the campaign to criminalize wife abuse did not necessarily undermine marriage, or challenge the hegemony of the nuclear family household. For most anti-domestic violence activists, the goal was to encourage more egalitarian marriages and families with two equal parental rulers. Collective living and collective child-raising were never more than marginal countercultural experiments.
But subjectivity, in the 1970s and 1980s, was also thought of as constituted not only in the household but also by the other ‘domestic’ realm, that is, the domain of state action and state law. Liberal feminists practiced consciousness-raising but also worked hard for equal pay laws and to decriminalize abortion. Socialist feminists too privileged ‘the state’, not surprisingly given the salience of ‘the state’ in both left-wing theory and left-wing practice, though of course they often dismissed efforts to increase the number of women politicians or judges as nothing but liberal cooptation. Legal studies scholars were also focused on state law, then as always. An intellectual innovation of the 1980s, ‘legal consciousness’, helped to de-centre the state, but it certainly did not de-centre subjectivity as the taken-for-granted object of feminist and other progressive sociolegal theorizing. In anthropological and sociological empirical studies of how people go about managing disputes and encounters with formal law, the term ‘consciousness’ covered much of the same ground as the ‘subjectivity’ favoured in more theoretical circles. Like subjectivity, the consciousness of ‘legal consciousness’ is not merely the sum of the conscious beliefs (about law, in this case) that people have: legal consciousness, it was said, exists also, perhaps primarily, at the level of habitus and disposition. It can be gleaned from people’s conduct more than from answers to direct questions about what one thinks about law (Silbey 2005). Sally Merry’s influential book Getting Justice and Getting Even (1990) was one of several key works in that line. Very much in keeping with the argument of this chapter, Merry’s influential book focused exclusively on ordinary, mainly white Americans, and, at the legal level, on domestic law; whereas in recent years Merry has been an important leader in the international women’s rights/human rights movement (Merry 2006; Merry and Levitt 2009). In keeping with the domestic scale – which, to reiterate, covers both the family household and the domestic state – the most famous radical feminist of the time, Catherine MacKinnon, cast her first major theoretical article as a feminist theory of ‘the state’ (MacKinnon 1983). MacKinnon was not interested in either the history and inner workings of particular states or on the general form of the liberal state; indeed, once ‘the state’ stopped being a key term for social and legal theory generally, roughly after the fall of the Soviet Union, MacKinnon’s work too rarely mentioned the word ‘state’.
But despite MacKinnon’s distancing herself from both liberal and socialist feminist efforts to reform and/or revolutionize the state, she did share some 1980s assumptions about the proper object of (feminist) theory. For her, the real object of analysis is gendered subjectivity, which she regards as not being constituted through domestic labour, through legal rules or through the psychodynamics of the nuclear family (the usual culprits in the feminism of the time), but rather through what she calls ‘sex’. ‘Sex’ encompasses much more than actual sexual relations: for MacKinnon, even women who have never had or no longer have sex with men are subordinated, in a rigidly systemic manner, to men as a group, through ‘sex’. And, famously, for MacKinnon, differences of class, race, nationality, personal sexual experiences, and even sexual orientation are always, by definition, trumped by the overwhelming weight of male domination: ‘sex’ is for MacKinnon the realm of what the Marxist structuralists of the day called ‘determination in the last instance’.
This theorization of gendered power relies a great deal, indeed almost completely, on the most rigid of structuralist Marxist theorists, namely, Louis Althusser. Althusser is quoted only once in Toward a Feminist Theory of the State (MacKinnon 1989) but it is significant that the book cited there, For Marx, contained the most thorough critique ever penned of any effort to create a historically grounded socialist theory of social change (Althusser [1969] 2005). For Althusser, there is no escaping the ‘interpellation’ of bourgeois society’s cultural systems; any worker who believes she or he has escaped alienation and fetishism is simply suffering from false consciousness. So too, for MacKinnon, any woman who believes that because she has a good marriage and a good job she is not personally oppressed is deluded: ‘female power is a contradiction in terms’, she responded in answer to a question after a lecture (though how this claim is compatible with her own subjectivity as a successful feminist theorist was never made clear [MacKinnon 1987: 53]).
A key target of MacKinnon’s work in the 1980s, pornography, also owes a great deal to Althusser – specifically, his innovative work on ideology. As contrasted with more materialist, labour-oriented forms of Marxism, Althusser famously argued that words are not mere words: when inscribed in and generated by the ideological ‘apparatuses’ of the bourgeois state – which for him cover everything from the nuclear family to the media, not just state organizations like schools – words have material effects. In his tremendously influential essay ‘Ideology and Ideological State Apparatus’, arguably one of the twentieth-century’s greatest theoretical hits, Althusser wrote that:
The reproduction of labour power requires not only a reproduction of its skills, but also, at the same time, a reproduction of its submission to the rules of the established order, i.e. a reproduction of submission to the ruling ideology for the workers, and a reproduction of the ability to manipulate the ruling ideology correctly for the agents of exploitation and repression, so that they too will provide for the domination of the ruling class ‘in words’.
(Althusser 1971: 132–133)
Replacing ‘workers’ with ‘women’ in this passage generates an excellent paraphrase of MacKinnon’s theory of gendered subjectivity. The Althusserian approach to theorizing subjectivity helps to explain why pornography was for her a key target (much more than, say, access to abortion); it also explains why she consistently favoured civil remedies against pornography, rather than heavier criminal sanctions, which would have had the effect of strengthening the (male) state.
MacKinnon openly acknowledged the intellectual debt to Marxism in the memorable opening paragraphs of the essay that made her famous:
Sexuality is to feminism what work is to marxism: that which is most one’s own, yet most taken away. Marxist theory argues that society is fundamentally constructed of the relations people form as they do and make things needed to survive humanly. Work is the social process of shaping and transforming the material and social worlds, creating people as social beings as they create value. It is that activity by which people become who they are. Class is its structure, production its consequence, capital its congealed form, and control its issue.
Implicit in feminist theory is a parallel argument: the molding, direction and expression of sexuality organizes society into two sexes – women and men – which division underlies the totality of social relations. Sexuality is that social process which creates, organizes, expresses, and directs desire, creating the social beings we know as women and men, as their relations create society. As work is to marxism, sexuality to feminism is socially constructed yet constructing, universal as activity yet historically specific … As the organized expropriation of the work of some for the benefit of others defines a class – workers – the organized expropriation of the sexuality of some for the use of others defines the sex, woman.
(MacKinnon 1983: 515–516)
The strict determinism of MacKinnon’s structuralist-feminist theory met with numerous objections. Other feminist theorists imagined a utopian matriarchal past or researched matrilineal aboriginal societies: MacKinnon, however, stuck to her structuralist and therefore near-timeless account, refusing the temptations of both past-oriented and future-oriented musings about matriarchy.
Even sexual orientation, which one might think would be significant in MacKinnon’s sex-centred analysis, turns out to be unimportant in her work. In the 1980s, it was customary to point to what the poet Adrienne Rich famously called ‘lesbian existence’ as a quasi-utopian social experiment, one that few women would personally pursue but which has great theoretical importance because it systematically undermines the heterosexual presumption that oppresses all women. By contrast with this perspective, this version of radical feminism, MacKinnon refused to give lesbian existence (and much less that of gay men) any status. Her most important work, Feminism Unmodified, has four index entries for ‘lesbian’: and all four of these refer to discussions of men’s myths about lesbians (MacKinnon 1987: 15, 86, 122, 199). And the only entry for ‘homosexuality’ is hardly flattering: homosexuality, she opines, ‘may be no less gendered’ than heterosexuality (ibid.: 60). Just as Althusserian Marxists ridiculed or ignored experiments in non-capitalist modes of production and consumption as silly exercises in futile utopianism, so too MacKinnon regally dismissed what would later come to be called LGBT desires and identities.
By the mid and late 1980s, Althusserian Marxism was no longer dominant even in those countries in which it had flourished (Italy, France, much of Latin America, and also, to a lesser extent, in the UK and Canada). The reasons for that decline need not concern us here. But it is relevant to note that it is not coincidental that MacKinnon’s approach failed to gain much if any ground among feminist legal scholars and activists in those countries with strong Marxist traditions.
It was only in the United States that MacKinnon gained a significant audience. At the time many feminists criticized MacKinnon for ignoring race and cultural difference, but in my view, her philosophy of gender was so much not Eurocentric in general as American in particular. It was only in the US that the absence of other feminist alternatives to liberalism (e.g. the largely humanist socialist feminism that flourished in both the UK and Canada in the 1980s and into the 1990s, in academic circles as in activist communities), MacKinnon found a ready audience among young feminist law students who had become skeptical about liberal legalism’s promise of equality but were unfamiliar with socialist critiques of liberal equality. Because of the weakness of Marxist theory in the US, few American feminists were in a position to spot the deeply Althusserian assumptions of MacKinnon’s theory, even when, in the case of MacKinnon’s work on pornography, the debt to the particularly Althusserian notion of ‘interpellation’ was obvious. From a Bakhtinian perspective, one can say that MacKinnon took the rigid chronotope of hard-line structuralism and simply filled it with her version of feminist content.
There were other, less well-known theorizations of gender that also focused on subjectivity and also, not coincidentally, privileged domestic arenas – but with different theoretical tools. In the UK, feminists influenced by Lacan, for example, explored the non-identity of the subject that in Lacan’s work is the inevitable fate of all forms of subjectivity, in the high-theory journal m/f, and later in some contributions to Law and Critique. On their part, feminist thinkers influenced by deconstruction – who were and remain a small and almost wholly academic group – proceeded to show how the opposition between feminine and masculine deconstructed itself, with Gayatri Spivak being arguably the leader in this regard, and Drucilla Cornell making the most sustained effort to use insights from Lacan as well as deconstruction in legal contexts. In the early 1990s, the ground began to shift significantly, however. In particular, Judith Butler’s extensive and diverse work did a great deal to popularize analyses of ‘fragmented’ and ‘contradictory’ subjectivity that combined Derrida, Lacan, Foucault, and linguistic theories of performativity for feminist purposes, with some of that work (especially the book Excitable Speech [Butler 1997]) being directly concerned with legal matters.
It is only in retrospect that we can identify the common ground that was taken for granted throughout these lively intellectual debates – by MacKinnon as much as by opponents like Drucilla Cornell and Judith Butler, by the liberal feminists as much as by their radical feminist and socialist feminist critics, and by psychoanalytically inclined feminist film theorists as well as those who instead stressed questions of political economy. The common ground consisted of a set of scalar assumptions. On all sides of these heated debates, gendered subjectivity – in both its oppressed and its liberated varieties – was thought as ‘domestic’, that is, as constituted both in the family household and in the space of domestic law and governance.