Marx and Mackinnon: The Promise and Perils of Marxism for Feminist Legal Theory

Catherine MacKinnon, perhaps the dominant voice of North American feminist legal theory over the last two decades, developed her feminist theory of law through an extended metaphor with Marxism. Marxist thought thus became thoroughly intertwined with MacKinnon’s particular brand of radical feminism in the minds of many feminist legal scholars and activists. As MacKinnon’s work has fallen out of favor in recent years, largely as a result of criticisms leveled against it from postmodern and critical race feminist perspectives, so too has the work of Marx. Setting MacKinnon’s Towards a Feminist Theory of the State side by side with Volume I of Capital, and offering a critique of the use she made of Marx’s work, reveals the continued relevance of Marxism to feminist legal scholarship and activism. CATHERINE MACKINNON, ONCE THE DOMINANT VOICE of North American legal feminism, developed her feminist theory of law through an extended metaphor with Marxism. She first laid out her theory in two highly influential articles in 1982 and 1983, and later expanded it in her 1989 book, Towards a Feminist Theory of the State. In the wake of these publications, Marxist thought became thoroughly intertwined with MacKinnon’s particular brand of radical feminism in the minds of many feminist legal scholars and activists. As MacKinnon’s work has fallen out of favor in recent years, largely as a result of criticism leveled from postmodern and critical race feminist perspectives, so too has that of Marx. By setting 114 SCIENCE & SOCIETY MacKinnon’s Towards a Feminist Theory of the State side by side with Volume I of Capital and critiquing the use she made of Marx’s work, I endeavor in this article to disentangle the two. My purpose is to free Marxist theory from this association and thereby reclaim it as a resource for feminists who have rejected MacKinnon’s radical feminist legal theory. MacKinnon builds her theory of women’s subordination by pairing key components of Marxist theory with feminist analogues: work–sex; worker–woman; capitalist–man; commodity–sex/woman; value–female sexual desirability; capitalist accumulation–male sexual desire; class– heterosexuality; capital–gender & family; production–reproduction, and so on. In the first half of this article, I interrogate the pairs that play a central role in MacKinnon’s theory. In the second, I critique her consequent deployment of Marxist ideas about consent, legitimation, ideology, consciousness, law and the state. I do not propose to evaluate how accurately MacKinnon uses Marxist concepts. She is critical of Marxism and uses its structure and component parts only insofar as they serve her purposes. Rather, I stand her readings of Marx alongside my own in order to crystallize my critique of her work and, in the process, to make a case for the continued relevance of Marxism to feminist legal scholarship and activism. My analysis of MacKinnon owes a great deal to her postmodern critics. But I have serious concerns about much postmodern feminist work as well, particularly in relation to theorization of the state and law. When pursuing change through law, both radical feminists and postmodern feminists are highly vulnerable to liberal co-optation, though for very different reasons. A re-engagement with Marxist theory offers alternate possibilities for feminist praxis in the legal arena. Revisiting MacKinnon’s work is of crucial importance at this juncture. For even as MacKinnon’s influence has waned among feminists, it has increased among legislators and judges. For example, in recent years she has had an enormous impact on the crafting of U. S. sexual harassment laws and of Canadian obscenity laws. While such legal developments may have produced victories for individual women, they have done little to counter systemic inequality. Indeed, they have often exacerbated systemic inequality, particularly where gender inequality intertwines with discrimination based on class, race, sexual orientation, or disability. For feminists who seek to engage with law MARX AND MACKINNON 115 without similarly falling prey to liberal co-optation, a re-evaluation of MacKinnon’s work is imperative. 1. INTERROGATING THE PARALLELS