Butterfly Politics, by Catharine A. MacKinnon

Book of the week: Mary Evans praises a life’s work addressing the inherent gender inequalities in the legal system

May 18, 2017
Abortion protest
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I should say straight away that I am not convinced that – as the cover of this book would have it – “small simple actions can produce large complex effects”. I can see that a thread can be traced from the death of an archduke or the unfortunate choice of grease for loading a rifle to much larger and more significant phenomena, but tiny natural events are another matter. So I am not at all sure that the title of Catharine MacKinnon’s latest book is a good match either for its subject matter or for the thesis she is advancing, as for me the changes brought about in the world through changes in the law are very much the results of human and social choices. It is we, after all, who decide to make or change or abandon laws.

But whatever the suitability of its title, this book does accomplish three valuable things. First of all, it provides a full account of the work that MacKinnon, the feminist activist and eminent legal scholar, has done in the past four decades to challenge not just the letter of the laws of the US but also our understanding of those laws. A lengthy and important legal and academic career is documented here, from her earliest papers published in the 1980s to interventions made in 2016. The second contribution this volume makes is to enlarge our understanding of the themes of MacKinnon’s work. Long known as an important participant in debates about law, she is arguably less widely known for her work on the meaning of academic freedom, an aspect of her scholarship that is increasingly important, both inside and outside the US. Third and finally, this collection, like all of MacKinnon’s work, makes us consider the part that law plays in the context of the making, and the interrupting, of state power.

It is perhaps that last point where there is much to discuss, not least in the year of the comment by Donald Trump about the temerity of a “so-called judge” who issued a ruling on the president’s travel ban. Trump’s remark, with all its chilling historical parallels, attracted a great deal of attention because it seemed emblematic of something found at both ends of the political spectrum: on the right and the left of politics, there has always been a suspicion about the law and the actual interests that it supports. There have been more than enough situations when the law has had very specific political sympathies for us all to be wary of assuming that there is such a thing as “neutral” law. There is a minefield to be navigated here; in her conclusion to this volume, MacKinnon underscores the importance of a legal process in which “content – the content of each situation, in context – is key to strategy”. In the same passage, she goes on to argue for the importance of making the reality of particular situations clear. I interpret this as the need to emphasise the meaning of the lived experience of abuse or exploitation or violence in a court of law, and a concentration on the violation of the individual rather than on the violation of a general law.

Throughout this volume, MacKinnon is writing more or less exclusively about the laws of the US, and so it is probably inappropriate to focus on the ways in which her account of law might differ from those relevant to other legal systems. However, one aspect of this issue is important, albeit less with regard to the actual operation of any one legal system compared with another than the extent to which the link between the law and politics can appear so much closer in the US than in the UK. With that comes the hopes that, like MacKinnon, we as citizens may have of the law, not the least of those being the possibility for social transformation through the law. On this point, I suggest that in the US, as in the UK, there is a good deal of resistance to all forms of law and that this is often mobilised for conservative rather than progressive or liberal ends.

Understandably, MacKinnon shares very little of this scepticism about the law. Indeed, she clearly believes in its transformatory powers and has engaged in a number of very important – and effective – battles to change aspects of the law. Notably, she has fought, and won, victories related to sex trafficking and other issues involving violence against women. The cases she details in the book’s final chapter, “Sex equality in global perspective”, inform a very powerful argument for the ways in which the law, and legal processes, have brought about change in important international institutions such as the United Nations. In these cases, the drama lies in the specifics of the particular instance – the individual woman with a name and an identity who is brought to the attention of the law. Such cases, and all others that depend upon the history of an individual, make us notice and often respect the law for what it can do.

But the other side to this, as both detractors of MacKinnon and those suspicious of the innate potential for confrontation and sensation in many court battles would point out, is that the binary division of guilty/not guilty fails to acknowledge not just a number of shades of grey but many forces of circumstance and individual biography. In instances where women and especially young women are almost always the victims and men the perpetrators, the question has to be how convictions or changes in the law would prevent further harm. Or to put it another way, we must ask how any law might prevent the vulnerability that allows abuse. The law can punish it, condemn it and seek redress in terms of various forms of damages, but all of this occurs after the event.

So yes, MacKinnon deserves recognition for addressing many of the gender inequalities inherent in law. Yet the essay in this collection that stands out most for me, in part because it is in many ways contentious, is her 2002 paper on academic freedom. What MacKinnon does here, in essence, is to ask why “freedom of speech” in higher education institutions – and in this case the essay is entirely about universities in the US – is so often interpreted in terms that permit material that is abusive of women. What is also woven into this article is a critique of what she regards as the excessive respect for the conventional among senior academics in the US. So what comes together here – and what is fascinating about all of MacKinnon’s work – is a deep respect for aspects of the conventional world (the law, the value of scholarship) and an equally profound fury at the way in which these aspects also uphold many of the assumptions about the world that she takes to task. In this, it could be said, she is not unlike many of us. All respect to her for trying to find a way through this maze.

Mary Evans is centennial professor in the Gender Institute, London School of Economics.

Butterfly Politics
By Catharine A. MacKinnon
Harvard University Press, 504pp, £23.95
ISBN 9780674416604 Published 27 April 2017

The author

Catherine MacKinnon

The eminent feminist legal scholar, author and educator Catharine MacKinnon is Elizabeth A. Long professor of law, University of Michigan, and the James Barr Ames visiting professor of law, Harvard Law School.

“I was born in Minnesota and raised in a rural area, attending school with other children from a large rural area, almost all children of farmers and tradespeople,” she recalls. 

As a child, MacKinnon says, “it never occurred to me to compare myself with anyone else, say, in terms of grades or otherwise. My father valued craft not intelligence, competence not brilliance. Social life – dances, sleepovers, driving around in cars, hanging out at the Dairy Queen, dates – felt pointless. I did each once and never again. I did a huge amount of reading (discovered the Dewey Decimal System in high school, would look up a name in a textbook we were reading, find the number, find the corresponding shelf of books, check out the entire shelf and read it), but spent most of my time outdoors with animals, who were my closest relationships, although I did have close human friends.”  

Her mother’s life, she says, made a tremendous impression on her. “She was stunningly smart and insightful as well as well-read (my father referred to her as ‘the brains in the family’, meaning it, to his startled friends), had a fabulous vocabulary, was a riveting speaker, could organise anyone or anything, had a magnetic personal presence, and spoke a couple of languages in addition to English. She really listened to people, cared about them, had a real feel for politics. She could have been anyone, done anything; she was instead a magnificent mother.”

MacKinnon says that her main activity outside school, “other than animals and piano study, was speaking and debate, which I loved. A teacher at my farm high school spotted this talent and nurtured it. Speaking is, roughly, how I have made my living. Almost all of the pieces in Butterfly Politics were first spoken, the others written by ear. I was also passionate about theatre (I designed and painted sets, and directed a one-act play), encouraged by the same teacher. One theory of everyone’s life is that they become who they were in high school drama.” 

She took her undergraduate degree at Smith College, following in the footsteps of her mother and grandmother. The institution, she says, “was a revelation – the library, the classes, the students. It welcomed and supported my mind and being on every level. 

“The real beginning of my work was the women’s liberation movement in New Haven, Connecticut, beginning in 1970. I was alternately in graduate school in political science (political theory) or in law school at Yale for the next seven years, and in New Haven practicing law and teaching as well as continuing to speak and write based there until 1980.” 

Nothing in Butterfly Politics, she emphasises, “prioritises litigation over legislation. If you get a chance to look through it, you will see a lot of both. The sexual harassment and rape as genocide work are litigation; the pornography and prostitution/trafficking work and proposed rape change are legislation. One thing I do notice is that litigation, in common law systems especially, gives individual victims of atrocities a chance at both relief and change that legislation, a far more elite process in any system, does not. But more importantly, nothing prioritises legal change over all other changes. Indeed, ground level grass-roots work, usually women (sometimes men) coming to me, asking for something to be done that usually has not ever been done, has included equal amounts of all kinds of interventions. Women’s politics happens at all levels. Education, for example, is neither legislation nor litigation.” 

On the subject of scholars whose work in recent years she finds particularly valuable, MacKinnon mentions political scientist Ross E. Cheit’s 2014 study The Witch-Hunt Narrative: Politics, Psychology and the Sexual Abuse of Children, for its focus on “child sexual abuse cases, how they have been publicly defamed to persuade the world that the charges were essentially made up, the children manipulated”. She also commends Rachel Moran’s Paid For: My Journey Through Prostitution (2013) as “the best thing ever written on prostitution”.

MacKinnon, asked what work she is proudest of and what gives her hope, replies: “I don’t do pride in the past or hope for the future. I do relentless determination: over our dead bodies will anyone continue to be sexually violated as especially women and girls are now. It is, in other words, a lifetime commitment. Survivors make this work possible.

“You will find more of what you need on this in [her 2013 essay] ‘Intervening for Sex Equality’, starting on page 47 in Butterfly Politics. It is a very personal book in a lot of ways that my previous (12) books have not been.”

Karen Shook


Print headline: Changing the world law by law

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