In her most recent collection of
speeches, articles, and essays, Catharine MacKinnon addresses the question: Are
women human?  Put less ambiguously, the question is: Do national and
international laws protect women‘s human rights?  The answer that
MacKinnon argues for is ‘No’.  According to her, ”no state effectively
guarantees women’s human rights within its borders” (148) and ”international
law still fails to grasp the reality that [men] are dominating [women] in often
violent ways all of the time” (266).  Women’s human rights, MacKinnon
believes, have been ”systemically and systematically” violated for millennia,
i.e., women’s human rights have been violated both in a ”socially patterned”
and ”intentionally organized” ways (29).  MacKinnon’s main concern in Are
Women Human? is twofold:  first, it is to provide evidence supporting the
claim that both legally and socially women have been treated as less than human
in that the protection of their human rights has been denied to them.  Second,
MacKinnon aims to diagnose why this has been the case and what ought to be done,
both domestically and internationally, in order to improve women’s legal status
and social condition.

The task of providing the
evidential support for the claim that women’s human rights are violated
requires a two-pronged approach.  Numerous empirical facts concerning harms
inflicted upon women all over the world would not suffice for supporting this
claim.  Thus, in addition to citing such facts, MacKinnon provides an interpretation
of them.  That is, she argues that rape in general and rape as genocide, sexual
abuse, pornography, prostitution, etc. indeed ought to be regarded as
violations of women’s human rights, and insofar as these harms are not
regarded as such violations, what the law does is use a ”simple double
standard” (21) in its protection of men vs. its (lack of) protection of
women.  In fact, one of the leitmotifs of Are Women Human? is MacKinnon’s
argument for the claim that philosophers traditionally have been unable to
provide the right interpretation of women’s real condition.  What
Western philosophy has been interested in, MacKinnon points out, is ”general
and abstract thought”, thought that is ”free from substantive social content”
(46).  Feminism (among some other modern philosophical movements), contrary to
this tradition, pays close attention to the social reality (of women)
and aims to provide a theory that does justice to this reality.  As
MacKinnon herself puts it, women’s social condition is ”a specific reality
that, collectively conscious, calls for a new way of thinking about knowing”
(45).  That is, taking social reality seriously leads feminist thinkers to
adjust ‘knowledge’ to ‘reality’, and theory to life.

But what is the ‘social reality’
that we must consider (according to MacKinnon) in order to grasp the force
of this argument?  MacKinnon invites us to reflect on the following examples.  ”The
number of people who died on September 11^th, from 2800 to 3000, is
almost identical to the number of women who die at the hands of men
every year in just one country, the same one in which September 11^th
happened” (261).  Or, ”when the photographs of American soldiers sexually
humiliating Iraqi detainees at Abu Ghraib prison surfaced, the fact that
identical acts are routinely committed against women in pornography” was
seldom brought up (273).  What emerges from these comparisons is the
following:  while September 11^th and Abu Ghraib get interpreted as politically
significant events that violate human rights, women’s condition
(e.g., domestic abuse and murder, prostitution and pornography) is seen as
neither.  Instead, ” violence against women is [considered] to be [the] non-state,
culturally specific, expressive acts of bad apple individuals” (269).  As it
is, this violence has no political significance, warrants no state acts (cf.
the reaction to September 11^th in particular), and in fact is ”on
no public agenda — journalistic or legislative, domestic or international”
(273).

The problem of recognizing harms
against women as violations of women’s human rights, MacKinnon argues,
is based on the fact that the issue is obscured in two ways at once:  ”what
happens to women is either too particular to be universal or too universal to
be particular” (142).  In the first case (of being ”too particular to be
universal”), the violation of women’s rights (such as sexual abuse or rape) is
considered to be a set of private criminal acts of men against women,
acts that have no political significance and that do not warrant being
addressed by international law (to make the contrast clearer, compare acts done
by the Germans to the Jews in the 1930s and 1940s:  these have not been considered
to be merely the criminal acts of some — albeit many — private German
citizens against private Jewish persons.)  Thus, e.g., sexual abuse, rape, and
prostitution are considered to be ”too particular” to constitute violations
of women’s human rights.  But the issue of women’s rights is obscured in
yet another way:  violations of women’s rights are considered to be ”too
universal to be particular”.  That is, when women are violated like men (e.g.,
when women are raped, murdered, or executed at death-camps), the atrocities
against them ”are not marked in the history as violations of women‘s
human rights” (180).  These, we say, are crimes against humanity,
i.e., women and men alike.  As a social group, women, therefore, slip through
the legal grid and do not have their rights protected as members of this
social group.

The fact that the violations of women’s
human rights are not on our ”legislative (domestic or international)” agenda,
MacKinnon argues, is reflected, for instance, in the fact that that it is only states
that are taken to violate or protect human rights.  As a result, the
violations of women’s rights are typically not recognized as cases of
violations of human rights at all; the ”systemic and systematic”
violations such as rape, domestic abuse, pornography, etc. are regarded legally
not as state oppression of women but as private acts addressed by
the criminal court domestically and not at all internationally.  However, what
sets the domestic and international legal agenda, MacKinnon points out, is ”male
reality”:  ”the violations of human rights of men better fit the paradigm of
human rights violations because that paradigm has been based on the experience
of men” (147).  That is, historically, the relevant ”experience of men” has
been the oppression of men by the government (e.g., slavery and
segregation) and not the oppression of women by men.  As the
result, ”when men use their liberties socially to deprive women of theirs,”
MacKinnon says, ”it does not look like a human rights violation” (147).

More generally, the challenge of setting
the legal, political, and social agenda in any society is to provide a correct
interpretation of social reality, its features and its problems.  Social
reality, feminism argues, is inevitably interpreted as male reality,
i.e., as a framework of interactions and relations between men.  ”Reality is a
social status”, MacKinnon says, and as long as it is men who have the social
status of power, what is considered to be ‘social reality’ reflects the male
perspective only.  What, on the other hand, gets ignored is the perspective and
the status of the powerless in the society:  their conditions and
problems are seen as merely private and in no need of being addressed publicly
(or politically).  What gets ignored, furthermore, is that society (every society
in history) is a society with a rigid hierarchy, in which women are always the
lower stratum while men are the higher one.

One of the philosophical theories
at fault here and a theory that Are Women Human? challenges on several
occasions is Aristotle’s account of equality.  This account, MacKinnon claims,
misinterprets social reality and leads us to unjust treatment of the underprivileged
social groups.  It is this conception of equality that obscures the fact that
the structure of social reality is fundamentally hierarchical together with the
normative implications of this fact — the call to move toward a society that
is not based on the subordination of any one group to another.  Following Aristotle,
we still largely take equality to be about treating likes alike and unlikes
unlike.  This principle aims to bring the normative aims of justice closer
to empirical reality:  normative categories, according to this principle, must ”carve
the social world at a natural joint” (72).  This approach to equality and
justice results in the following.  Insofar as women and men are considered to
be ‘likes’, they are treated alike both legally and socially.  This means that
legally and socially some women’s rights are not considered specifically women‘s
rights at all, which, as MacKinnon argued earlier, often makes women’s social
status ”too universal to be particular”.  But, insofar as men and women are considered
to be ‘unlikes’ — most of the harms done to women being of a sexual in nature —
women seem to deserve a different treatment.  More specifically, MacKinnon
argues, this principle translates into the following:  ”if men don’t need it,
women don’t get it” (26).  For instance, since men (as a social group) do not need
effective laws against pornography, rape, prostitution, etc., women do not get
such laws either.  Naturally, this claim ought not to be interpreted
crudely.  What MacKinnon argues, rather, is that our (or any) legal
paradigm do not recognize pornography, rape, and prostitution as violations of human
rights since pornography, rape, and prostitution are considered to be (legally
and socially speaking) ‘special cases’ that are based on the difference between
men and women.  What this approach equally fails to recognize is that instead
of focusing on ‘same’ and ‘different’ when it comes to men and women, we ought
to focus on the hierarchical structure of society, a structure that has been based
on the oppression of one social group by the other.

Are Women Human? is bound to
challenge those who are interested in law or philosophy.  Due to the scope and
the general purpose of MacKinnon’s project, some of her speeches, essays, and
articles contain controversial claims that are left undefended (e.g., she
claims that all pornography and prostitution are forced and are due to
the ”lack of choices” that women have (248)).  The challenge of the book,
however, lies elsewhere.  The question that Are Women Human? encourages
us to ask is whether the domestic and international legal standards applied to
crimes against women are consistent with our commitment to defending human
rights in general.  That is, whether our legal, social, and philosophical
theories are adequate to reality as women experience it.  The evidence
that MacKinnon carefully collects and interprets strongly suggests a negative
answer to questions such as these.  Whether we agree or not with her diagnosis
of the problem and with her proposed solutions to it, Are Women Human? confronts
us with the task of providing a diagnosis and a solution to the
problems in our legal and social approach to women’s rights.

© 2006 Tatiana
Patrone

Tatiana
Patrone will take a position this fall as Assistant Professor of Philosophy at Montclair State University, New Jersey.

Categories: Ethics, Philosophical