REFLECTIONS ON OUR “WOUNDED” IDENTITIES IN LAW

(This short critical paper was prepared for Women’s Studies 225 Contemporary Feminist Theory in Summer 2000)

Inspired strongly by Nietzsche’s thesis of the thwarted will to power and ressentiment, Wendy Brown claims in her book, States of Injury, that a variety of feminist projects, despite their good intention, reflect and reinforce inadvertently the sexualized and masculinist character of the states, politics, and cultures. The inscription of the gendered identities in legal and political discourses reaffirms the historical injuries constitutive of those identities. Influenced by postmodern feminism, Brown seeks a non-binary, non-oppositional alternative discourse for sharing power instead of being protected from the power or seeking revenge and punishment. The author’s suggestion to stay away from the identity politics and self-victimization seems timely and well-addressed especially when social conservatives sharply capture this aspect and label it as “victim feminism.” Then the question is, how should we translate the author’s recognition into legal reforms for gender equality? How do we at the same time avoid undermining the previous achievements in gender equality made by the efforts of liberal, radical, and socialist feminists? To discuss this issue, we may start by examining the area of feminist jurisprudence and looking into several Supreme Court cases, in which we can find the unfortunate side effects of relying on the state.

Law has been one of the most critical fields to which feminist theorists have paid a great deal of attention. Law’s relation to women and its role in advancing feminist agenda have been fiercely discussed and debated by many prominent feminists. Among them, Catharine MacKinnon is well known for her radical perspectives on the law. Assuming inequality rather than equality between individuals, MacKinnon argues that women are not equal to men due to the unequal power distribution. According to MacKinnon, since “law is male,” it will reinforce existing distributions of power “when it most closely adheres to its own highest ideal of fairness.”[1] Her critics, however, point out that her radical theories tend to over-privilege the power of law and such power would be reinforced “when it is targeted as the main site for feminist politics to raise women to the male standard.”[2] This criticism seems precisely in line with Brown’s theme in States of Injury. It is the male position that MacKinnon desires. The desire is the thwarted will to power, or ressentiment, in the words of Nietzsche. By articulating their grievances in terms of equal rights and confining their struggle to litigation and lobbying, according to Diane Polan, women are giving an approval to the basic social order and giving up the battle for more radical challenges to society.[3] Janet Rifkin goes further by claiming that litigation and lawmaking “cannot lead to social changes because in upholding and relying on the paradigm of law, the paradigm of patriarchy is upheld and reinforced.”[4]

Postmodern feminism supports the ideals of personhood, as opposed to a strong, exclusive sense of identity as “women,” which they consider a socially, culturally constructed category.[5] Many postmodern feminists are cautious about such categorization because it could be a part of the process of fixing gender and sex. Particularly, law is seen as a practice that makes women, as a category, feminine and biologically female. Currently, in fact, the notion of womanhood in the legal system is described as rapable and easily victimizable, which legitimizes regulations and control. The Supreme Court has found differential treatment justified by women’s special circumstances, even when those circumstances reflect legislatively or socially imposed burdens. In Parham v. Hughes, for example, a plurality of the Court upheld a Georgia statute that allowed an unwed mother to sue for the wrongful death of her child, but disallowed such suits by an unwed father unless he had procured a court order legitimating the child.[6] The Court found that treating men and women differently in this case did not violate equal protection guarantees because the two parents are not “similarly situated.” More recently, in a 1998 Supreme Court Case, Miller v. Albright, a question was presented whether or not the Immigration and Nationality Act, which allows an out-of-wedlock child of an American mother to automatically gain U.S citizenship at birth but denies citizenship to an out-of-wedlock child born to an U.S. citizen father unless the father established paternity and supported the child while the child was a minor, violated the Fifth Amendment’s equal protection guarantees.[7] Again, a plurality of the Court upheld the statute, reasoning that different treatment of mothers and fathers of out-of-wedlock children was justified since the two parents are not “similarly situated.” The child’s relationship with its father may be undisclosed for several years whereas its blood relationship to its mother is usually apparent through hospital records and the mother’s immediate recognition of her child’s existence. However, these provisions make unconstitutional gender classifications in determining the capacity of a parent to file a suit for the wrongful death of a child or to qualify a child for citizenship. These cases involve gender discrimination, which treats men and women differently based on the questionable stereotype that only women have a natural connection to their children. There is little reason to put more faith in a woman’s claim to be a particular child’s parent than in a man’s claim to be that child’s parent. The Court’s reliance on these socially imposed differences is unfair to individuals and likely to perpetuate existing sex roles.

In 1981, another Supreme Court case, Michael M. v. Sonoma County, upheld California’s statutory rape law, challenged by a seventeen-year-old male which punished males having sex with a female under eighteen.[8] Historically, statutory rape laws have rested on the assumption about young women’s incapability of consent and the male initiative in sexual relations. The Court found no violation of equal protection guarantees and related the reason for such sex-based classifications to the elimination of teenage pregnancy despite its little relation to the goal of the statute. The statute instead embodies and reinforces the assumption that men are always responsible for initiating sexual intercourse and females must always be protected against their aggression. As Drucilla Cornell points out, at the end of the stick, there exists a carrot.[9] The Court is accepting the view that, unlike women, men possess dangerous nature driven by violent aggression, which needs to be tamed by the regulations. By rejecting androgyny, the Court refuses to examine the role that the challenged statutes are playing in reinforcing the values that cause injuries to women. If both physical differences and socially imposed differences in role always keep men and women from being “similarly situated,” then sex-based differences will be always excluded from the application of the Fifth Amendment and women, as well as men, will be removed from the reach of equal protection. This issue is also closely related with Cornell’s assertion that paternity proceedings should be optional for women, not enforced.[10] Law should not assume that men’s nature is so wild that it needs to be regulated (or tamed). The state should not initiate paternity proceedings in the name of the heterosexual families, thereby restricting the freedoms of individuals and reinforcing traditional values. Women who endorse such enforcement mistakenly help the legal system perpetuate patriarchy.

Postmodern feminists generally assert that, instead of expecting a utopian reversal of the socially constructed hierarchy, women should take part in the ongoing process of negotiating human and sexual relations. Many of them recognize, however, that there exist barriers that exclude women from participating in such crucial negotiating processes. Until the moment we completely break down such barriers, according to Cornell, the ideals of personhood should be constrained for the moment to make a coherent claim to law.[11] Cornell claims that, in doing so, the law should guarantee minimum conditions, which I find agreeable. The injuries suffered by women, for example, by pornography and sexual violence, should be addressed, but not further victimize women or turn into a project of revenge. This is also, I believe, a good illustration of how postmodernism and feminism can compromise and embrace each other for the ideals of personhood. It is true that the “strong” versions of postmodernism suggest complete abandonment of the discourse of modernity and no objective ground for truth.[12] Yet, many postmodern feminists such as Seyla Benhabib agree that such extreme postmodernism threatens the entire identity of feminism as a politics and tries to discredit the emancipatory ideals that have guided the past.[13] Her argument for the need to sustain a commitment to Enlightenment models of rationality as a guiding principle for our beliefs seems very much in line with Cornell’s argument for a “coherent claim to law.”

Certainly, Brown’s warning against the danger of asking for protection from the state has not been unnoticed by other fellow feminists. The message that Brown and all other feminist theorists mentioned above attempt to get across to us seems identical. They caution us for the undesirable consequence of myopic over-reliance on law, or the state. I sense at the same time that all these discussions are a part of the serious effort by feminists to have feminism benefit from postmodernism.

Bibliography

Cornell, Drucilla, At the Heart of Freedom: Feminist, Sex, and Equality, Princeton: Princeton University Press, 1998.

Jackson, Stevi and Jackie Jones, Editors, Contemporary Feminist Theories, New York: New York University Press, 1998.

Olsen, Frances, “The Sex of Law,” in The Politics of Law: A Progressive Critique,3rd Ed. ed. David Kairys, New York: Basic Books, 1998.

Polan, Diane, “Toward a Theory of Law and Patriarchy,” in The Politics of Law, 1^st Ed., ed. David Kairys, New York: Pantheon, 1982.

Tong, Rosemarie P., Feminist Thought: A More Comprehensive Introduction, Boulder: Westview Press, 1998.

[1] Olsen, Frances, “The Sex of Law,” in The Politics of Law: A Progressive Critique,3^rd Ed. ed. David Kairys (New York: Basic Books, 1998), 700.

[2] Stevi Jackson and Jackie Jones, Contemporary Feminist Theories (New York: New York University Press, 1998), 66.

[3] Diane Polan, “Toward a Theory of Law and Patriarchy,” in The Politics of Law, 1^st Ed., ed. David Kairys (New York: Pantheon 1982), 294-302.

[4] Olsen, 700.

[5] Jackson, 69.

[6] 441 U.S. 347 (1979)

[7] 523 U.S. 420 (1998)

[8] 450 U.S. 464 (1981)

[9] Drucilla Cornell, At the Heart of Freedom: Feminist, Sex, and Equality (Princeton: Princeton University Press, 1998), 131-150.

[10] Ibid.

[11] Jackson, 69.

[12] Ibid., 182-188.

[13] Ibid., 190-191.