Critiquing The Law And Discomfort

This semester, in my philosophy of law class, my students and I have attempted to work our way through a collection of ‘critical legal studies‘ articles; these run the gamut from critical legal histories to feminist legal theory to critical race theory. The reactions of my students to these pieces, and in particular to the second and third members of the list just made note of–represented by the writings of Catharine MacKinnon and Alan Freeman respectively–has been instructive.

Feminism makes men uncomfortable; for different reasons, it also makes women uncomfortable. It induces discomfort in men by reminding them of their privileged position of power; it induces discomfort in women by reminding them of this imbalance, and sometimes, of their own complicity in maintaining it. Both these reactions were on display as we read and discussed MacKinnon in class, especially in her claim that the ‘legal point of view’ is just the ‘male point of view.’ Her discussion of rape law, and especially of how the law understands the crucial notion of ‘consent,’ brought vital aspects of her critique together; no other component of her writing, not even the infamous ‘in a patriarchal, sexist society structured by forces of masculine domination, all sex is rape’ claim, made the students as uncomfortable as this discussion; they might have realized their own implication in the critique they were reading. They might also have imagined, like most other legal subjects, that whatever the messiness and infinite complications and entanglements of human sexuality, those were all magically resolved by the cleansing antiseptic force of legal formulations, categories, and reasoning. Not so; instead, seeking refuge in law as a response to the ‘problem,’ the ‘crime,’ of rape had merely allowed for the further institutionalization and entrenchment of sexism and male prejudice, now disguised as societal reason.

Talk of racial discrimination too, especially in a society like the US, induces discomfort. It reminds some that their assumed positions of merit and power rest on shaky, morally suspect, foundations; it serves notice that a dishonorable history underwrites this supposedly glorious present. And as in feminist legal theory, it points to how a supposed dispenser of fairness and justice is instead, in point of fact, the repository and the engine of social prejudice. The rhetoric on display here is similar: a claim is made to the rational dispensation of justice, to only be guided by ‘logic’ and ‘evidence’; the results as in the case of rape law, are eerily similar: claims of racial discrimination disappear when subjected to the inspection of the legal lens; the perspective or point of view of a central actor, the ‘victim,’ is ignored. Here again, an uncomfortable silence descends over many in the classroom; a reminder has been served that the assumption of a calm working out of an impeccable meritocratic logic serves only to mask the violence done to those finding themselves stuck with the short end of the legal stick.

Sometimes my students are curious and ask about what happened to the ‘critical legal studies movement’; I respond that the discomfort they experienced as ‘mere’ legal subjects in attempting to tackle its claims would only have been a  fraction of that experienced by those on the inside: the practitioners and theoreticians of law themselves. They would have actively sought to assuage their discomfort; the institutional displacement of critical legal studies would have suggested itself as a possibly remedy.

Catharine MacKinnon’s Feminist Jurisprudence In The Classroom

Next week, students in my Philosophy of Law class will read and discuss Catharine MacKinnon‘s ‘Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence‘  (Signs, Vol. 8, No. 4 (Summer, 1983), pp. 635-658). MacKinnon’s writings have featured once before on my reading lists–for my graduate ‘Nature of Law’ seminar at the City University Graduate Center in 2015. She is always a teaching challenge: she is provocative, invariably evoking strong reactions from her readers, and often, a dense read. No matter what the class’ reaction to the assigned reading as students read it on their own, I’m reasonably hopeful that passages like the following will provoke discussion when we gather in the classroom:

Feminism does not begin with the premise that it is unpremised. It does not aspire to persuade an unpremised audience because there is no such audience. Its project is to uncover and claim as  valid the experience of women, the major content of which is the devalidation of women’s experience.

This defines our task not only because male dominance is perhaps the most pervasive and tenacious system of power in history, but because it is metaphysically nearly perfect. Its point of view is the standard for point-of-viewlessness, its particularity the meaning of universality. Its force is exercised as consent, its authority as participation, its supremacy as the paradigm of order, its  control as the definition of legitimacy. Feminism claims the voice of women’s silence, the sexuality of our eroticized desexualization, the fullness of “lack,” the centrality of our marginality and exclusion, the public nature of privacy, the presence of our absence. This approach is more complex than transgression, more transformative than transvaluation, deeper than mirror-imaged resistance, more affirmative than the negation of our negativity. It is neither materialist nor idealist; it is feminist. Neither the transcendence of liberalism nor the determination of materialism works for us. Idealism is too unreal; women’s inequality is enforced, so it cannot simply be thought out of existence, certainly not by us. Materialism is too real; women’s inequality has never not existed, so women’s equality never has. That is, the equality of women to men will not be scientifically provable until it is no longer necessary to do so. Women’s situation offers no outside to stand on or gaze at, no inside to escape to, too much urgency to wait, no place else to go, and nothing to use but the twisted tools that have been shoved down our throats. If feminism is revolutionary, this is why.

I hope to write here next week on the how the classroom discussion went.