Morrison on MacKinnon
As with Marx, we cannot look at the behaviour of the oppressed, of the hungry, as the behaviour of natural man, with MacKinnon, we cannot look at the behaviour of women under contemporary conditions as the truth of their gender. Women supported set of gender roles does not correspond to any extra-social natural division but has its truth only at the creation of social processes.
Wendy Williams-equality
feminists have only two choices: either equality on the basis of similarities between the sexes or special treatment on the basis of sexual differences. She favoured the former, equality since difference always means women's difference, and this provides the basis for treating women worse as well as better than men. Freeman-But an equal treatment approach only benefits women who meet male norms and not those who engage in female activities, childbearing and rearing most notably.
Critic-Dworkin's description of abortion
Morrison-transformation of debate into an aura of principles cannot acknowledge the extent that the positions of writers such as MacKinnon relate to the existential features of a woman's life
Valverde-1986
Western-based notions of patriarchy have obscured the conflicts of interest between the women who pick coffee beans for fifty cents/day in Brazil & the white American feminists who sips coffee as she writes about women in general.
John Stuart Mill on marriage
not all slavery was abolished-that of marriage continued to exist. He stated, "From the earliest time women were subjugated by men on the basis of their physical inferiority, and that state simply continued and became translated into the rules of law.
Patrica J. Williams-Woman of ethnic minorities:
I am interested in the way in which legal language flattens and confines in absolutes the complexity of meaning inherent in any given problem; I am trying to challenge the usual limits of commercial discourse by using an intentionally double-voiced and relational, rather than a traditionally black-letter, vocabulary.
Roe V. Wade
it was held by the Supreme Court, that Texas law improperly invaded a right, possessed by the pregnant woman, to choose to terminate her pregnancy. She could now terminate her pregnancy early without issue, and later upon permission.
Equality defined by MacKinnon
the test in any challenge should be whether the policy or practice in question integrally contributes to the maintenance of an underclass or a deprived position because of gender status. McKinney and contrast this to the differences approach calling it the inequality approach.
MacKinnon compared feminism with Marxism...
.....in that sexuality in its relation to feminism is analogous to the relations between work and Marxism i.e. that which is most one?s own, is that most taken away (alienated) by the social construction of a false identity.
Barnett, on Thomas Hobbes and patriarchy
Introduction to Feminist Jurisprudence-was ambivalent towards patriarchy, while acknowledging the woman is sovereign of the home, he later embraced patriarchy. At that time women were men's property-they could not vote, lost the right to administer estates upon marriage where they were a slave to their husbands every sexual whim.
Scales-problems of 2 legal choices appear to resolve claims of social injustice
law could either ignore differences, thereby risking needless conformity, or it could freeze differences, thereby creating a menu of justification for inequality. Concrete universality eliminates the need for such a choice. When our priority is to understand differences and to value multiplicities, we need only to discern between occasions of respect and occasions of oppression. Those are judgments we know how to make, even without a four-part test to tell us, for every future circumstance, what constitutes domination. If we are serious about survival, we need a radically more serious approach to equality. Law must embrace a version of equality that focuses on the real issues-domination, disadvantage and disempowerment-instead of on the interminable and diseased issue of differences between the sexes.
Reed v Reed [1971]
1st equal protection case decided favourably in the supreme court for women-right to administer estates. HELD: men and women are similarly situated ie no demonstrable differences between the sexes justified treating them differently.
Finley-women and law
the claim that law is patriarchal does not mean that women have been ignored by law, but the laws? cognition of women is refracted through the male eye rather than to women's experiences and definitions
Liberal view
sameness approach (i.e. treat men and women the same)- However, cracks appeared: many saw it as women having to become like men becoming equal meant movement in a one-way direction towards the male standard, trying to live up to public standards and systems and laws already created by men for men.
MacKinnon, Gender is ......
what gender means. It has no basis in anything other than the social reality its hegemony constructs.
MORRISON on MacKinnon-behaviour
As with Marx, we cannot look at the behaviour of the oppressed, of the hungry, as the behaviour of natural man, with MacKinnon, we cannot look at the behaviour of women under contemporary conditions as the truth of their gender. Women supported set of gender roles does not correspond to any extra-social natural division but has its truth only at the creation of social processes.
intercourse-for radical feminists by West
intercourse, including voluntary intercourse, is a harm since it divides a woman in turn only-it pre-empts, challenges, negates, and renders impossible the maintenance of physical integrity and the formation of a unified self.
MacKinnon on sameness approach
Why does maleness provide an original entitlement, not questioned on the basis of its gender, so that it is women 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?
Radical feminism
such differences between men and women are hierarchically socially constructed to best suit men and to keep women oppressed
Bartlett-The woman question-in law
asking the woman question means examining how the law fails to take into account the experiences and values that seem more typical of women than men, for whatever reason, or how existing legal standards and concepts might disadvantage women.
MacKinnon-difference definition
difference is the velvet glove on the iron fist of domination-out of this difference, out of the structure of interaction in the mode of activity of sexuality, comes domination through difference.The problem then is not that differences are not valued; the problem is that they are defined by power. This is as true when difference is affirmed as when it is denied, when its substance is applauded or disparaged, when women are punished or protected in its name.
Abortion-Novkov on MacKinnon
MacKinnon is not making an argument about the intrinsic value of the foetus but rather about the material relationship between the woman and the foetus she carries. The relationship is deeply contextual and carries with it the history of its formation. She seeks to focus upon the contextualize history of the foetuses origin and the affect that these origins have upon the woman who carries it.
Scales-solution to choices to difference problem
Concrete universality eliminates the need for such a choice. When our priority is to understand differences and to value multiplicities, we need only to discern between occasions of respect and occasions of oppression. Those are judgments we know how to make, even without a four-part test to tell us, for every future circumstance, what constitutes domination. If we are serious about survival, we need a radically more serious approach to equality. Law must embrace a version of equality that focuses on the real issues-domination, disadvantage and disempowerment-instead of on the interminable and diseased issue of differences between the sexes.
Olsen, 1990-Forms of Dualism Question by Feminism:
Woman have seen as the irrational, the emotional and the unreliable and confined to the private sphere of the family while the male "the rational" enters the world of politics and law.
R. Dworkin on abortion
women have an abstract, privacy-based constitutional right to pro-creative autonomy, and the state lacks a compelling interest in protecting the attached sacred value represented by the foetus when this would seriously curtail the mother's liberty interest and where the community is divided about what respect for this value requires.
William Thompson 1825
As women's bondage has chained down men to the ignorance and vices of despotism, so will their liberation reward him with knowledge, freedom and happiness.
Morrison on feminist unification
the postmodern condition demands that women abandon any supposed unity and homogeneity in answering the woman question and look to analyze and intervene in a multiplicity of relations of subordination, transforming oppression into an affirmation of life's possibilities and opportunities.
MacKinnon-imposition upon women..
have had imposed upon them a system of affirmative action in favour of men e.g.disadvantages and discrimination that women have had to fight against-over inheritance and the holding of property, over entry to universities, over entry to professions in judicial office, over jury service, admission to ordination to the priesthood, overrate within the marriage, and most fundamental of all, the vote.
Capabilities approach-guidance-
dignity- consider that certain ways of life that human beings are forced to lead are not fully human, in the sense of their not being worthy of the dignity of the human being~Marx's vivid descriptions of forms of labor that allow continued life, but not a fully human life, resonate the world over. The notion of a life in accordance with human dignity is one of the most fertile ideas used in worldwide constitutional jurisprudence
capabilities approach
1 species of a human rts view, which takes definite positions on duty responsibility/basis of rts claim etc, insisting, in particular, that all rts have a material basis, & that securing rights to people requires affirmative state action, rather than simply the absence of state interference-Nussbaum
similar concerns
5-SAPSC _ Show how law defines what is male/female/masculine and feminine, reinforcing the position of men and women in society to men�s advantage _ Analyse how the differences between women and men should or should not be reflected in legal rules, institutions and structures _ Place the lives of real women at the centre of their scholarship _ Stress often ideals of women�s self-determination and freedom: for women to be treated as fully human~liberalism _ are usually eager to bring Change and transformation to society, including the legal system, to improve people�s lives.