An important and wide-ranging collection, Women's Lives, Men's Laws includes more than 20 years of MacKinnon's feminist enterprise. Part defense, part update, part preview, the compilation forcefully defends the notion of women as a group, examines feminism's successes and setbacks, offers visionary strategies to end women's inequality to men, and sets the stage for an upcoming companion volume on the international arena, Women's World, Men's States.
In earlier work, MacKinnon famously theorized law as a potent expression of the socially male state, tracing its power along the legal lines of public and private, coercion and consent, difference and dominance, and morality and politics. Much of Women's Lives, Men's Laws interrogates the many places these notions of male power can be found and have traveled since their original articulation. For example, MacKinnon provides a structural privacy analysis of the Violence Against Women Act's demise, analyzes the Equal Rights Amendment and liberal feminism in terms of difference and dominance, and further develops alternatives to existing laws against sexual violence grounded in material harms rather than ethical objections. But Women's Lives, Men's Laws does more than analyze new issues with existing (if widely unrealized) theory. The compilation elucidates two crucial aspects of MacKinnon's feminism that have been largely implicit in prior published work: her methodology and her equality theory.
Responding to the charge that her feminism is “essentialist,” MacKinnon details the origin of her theory in the experiences of women's lives in all their particularities. MacKinnon maintains that while gender is structural, discerning commonalities in experience is not the same as searching for an essence, that what others see as blanket assumptions about women are actually hard-won discoveries about the scope and prevalence of practices of sex inequality, and that the very term women, with its recognition of a people sharing a hierarchical status, is an empirical statement about a group's reality. The method of proceeding “from practice to theory” is apparent in MacKinnon's approach to the many practices and manifestations of male dominance. For example, MacKinnon's approach to prostitution as sexual slavery has an inextricability with race and class in part because of her accountability to the empirical evidence indicating that, far from prostitution being a free choice, most women found in prostitution suffered abuse as children and have the fewest choices in society.
In MacKinnon's analysis, much of the move to deny the reality of women as a group derives from the fact that woman is a stigmatized identity and, as such, the inclusion of men in any group raises its status and makes any harms done to it more real. However, MacKinnon maintains the importance of recognizing women's experience as women and the omnipresent but not exclusive importance of the hierarchy of gender. Put differently, in contrast to purely academic feminism, MacKinnon eschews theory built without practice and maintains her commitment to engagement with actual women's problems in the real world. As MacKinnon writes in response to those who obscure reality or retreat into abstraction and regress without engaging in the status and experiences of women that social science has helped document, this seems like a good time to reiterate the importance of “keeping it real.”
The other new key contribution of Women's Lives, Men's Laws is its explicit, sustained treatment of the deep flaws of mainstream equality theory and the potential for an alternative. Drawn from translations of Aristotle, the mainstream conception of equality widely embodied in law requires only like treatment for those found to be alike and allows different and potentially unequal (i.e., worse) treatment for those deemed unalike. MacKinnon exposes Aristotelian formal equality as entirely compatible with White supremacist and Nazi ideology, embodied in Plessy v. Ferguson and played out in the Holocaust. Against this theory, MacKinnon advocates a substantive, antihierarchical notion of equality that promotes equal status and treatment and realizes that “differences” not only fail to legitimize inequality, but that “difference” itself results from inequalities. In other words, for MacKinnon, inequality is never about sameness and difference; rather, imposed hierarchy and a new theory of equality must do more than reflect the status quo and support preexisting social classifications. Through the lens of her equality critique, MacKinnon explores inequality in topics often not seen to present equality questions, such as abortion, pornography, prostitution, and the First Amendment's twentieth-century shift from protecting the speech of the powerless to protecting the speech of the powerful.
Yet, even after Women's Lives, Men's Laws, an important element of MacKinnon's feminism remains elusive. MacKinnon engages law in her investigation of the relationship between epistemology and power because it is both central to the inequality of the sexes and ripe with potential for social change. However, while MacKinnon's theory refuses to cede law to male power, it never squarely confronts how to identify and exploit the fissures that exist in the legal expression of what she has described as a “near perfect” system of male dominance.
