BY PAMELA FOOHEY
The Friday before Thanksgiving, law students and others from all over the Harvard campus spilled out of Hark South to see Visiting Professor Catharine A. MacKinnon discuss her latest book, Are Women Human?: And Other International Dialogues. Her presentation was hosted by HL Central and the Harvard Women’s Law Association.
MacKinnon began by commenting that the title of her book is “a bit of a strange question.” Rather than treating the term “human” as a simple existential fact, MacKinnon explained that she regards “human” as a social and legal status that can be explored to answer whether women in reality have full and equal status as human beings. She described her book in general as addressing the use of international human rights law and law overall to gain full human status for women globally.
To provide context for her question, MacKinnon read from the title piece: “If women were human, would we be a cash crop shipped from Thailand in containers into New York’s brothels? Would we be sexual and reproductive slaves? . . . Would we be beaten nearly to death, and to death, by men with whom we are close? Would we be sexually molested in our families? . . . If women were human, would our violation be enjoyed by our violators? And, if we were human, when these things happened, would virtually nothing be done about it? . . . When will women be human? When?”
So, are women human yet? Not quite, according to MacKinnon (if that was not already evident from her quote). After writing this book, MacKinnon believes that women globally are at a precise midpoint in the process of becoming full human beings. Women may have rights, the established system of male dominance may be threatened at present, but women’s status is not yet secure because women’s rights remain “on the terms of a system that is unchanged.”
How did she come to this conclusion? MacKinnon explained that her international focus originated with her clients, Bosnian and Croatian women who came to her in 1991 and 1992 to help address the staggering amount of rape that was occurring amidst the genocide they had survived. MacKinnon brought credibility to these women and their experiences of rape during genocide, as well as a claim under the Alien Tort Statute, winning a jury verdict of $745 million in 2000.
MacKinnon noted that she didn’t nominate herself to do this work; it was her clients that asked her to do this for them and for other women. And because it was her clients who conceived of and initiated the case, the result was much more organic that the usual method of social change through law, which MacKinnon described as finding a law to change and then selecting the perfect test case. Further, as MacKinnon stated, it is these women’s actions that have produced much of the change in international human rights in the past fifteen years.
Drawing from her clients’ experiences and her work to develop a legal claim to address their situation, MacKinnon produced the writings that comprise her book. She explained that the process of representing these women and writing about their reality exposed broad dynamics of the gender dominance that operate not only statewide, as she has witnessed for decades, but also internationally. Beginning with the assumption that the state is fundamentally a male institution (both in terms of its “sex,” that is, the sex of the people who make up the vast majority of state actors, and in terms of its “gender,” that is, how it behaves), MacKinnon sought to determine whether the international order provides a counterbalance to the “maleness” of states, or whether the international order is “metamale,” which MacKinnon defines as exhibiting the same “maleness,” just on a higher level.
MacKinnon noted that she found much of the same “maleness” internationally, which she groups into four broad dynamics. First, internationally, sovereignty replicates the public-private line, separating public from private, providing men with a sphere of power that is respected from nation to nation. Second, dominance is masked under the purportedly neutral sameness/difference “formal equality” model (as opposed to the “substantive equality” model, which equalizes against an unequal social reality). Third, coercion is construed as consent. Finally, issues of politics are turned into issues of morality and cultural particularity, thereby obscuring the true debate about the fact that gender inequality is a global system.
Nevertheless, though the international order may be “metamale” in some instances, MacKinnon concluded by noting that the scale of the international order benefits women in other instances. According to MacKinnon, the “distance” of the international scale attenuates male bonds and enhances objectivity. The farther an actor in the international legal system is from an act that violates a woman, such as rape during genocide, the more likely the act will be recognized as a violation of a woman as a human being. It is this recognition that protects women’s rights as human rights.
Hence, it is the international system that illustrates the midpoint MacKinnon referenced in response to the question of whether women are human yet. Though it is on the international front that change is occurring and women are gaining rights, the international system is still comprised of entities that are seen as essentially sovereign and accordingly are not sufficiently distanced to protect women’s human rights. And, thus, though achieving breakthroughs, women are not yet full human beings, socially or legally.