Wednesday, February 9, 2011

From Toward a Feminist Theory of the State: Chapter 8: "The Liberal State" by Catharine A. MacKinnon

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8. The Liberal State

The difference between the judges and Sir Isaac [Newton] is that a mistake by Sir Isaac in calculating the orbit of the earth would not send it spinning around the sun with an increased velocity … while if the judges … come to a wrong result, it is none the less law.
—John Chipman Gray (1909) 
Political revolutions aim to change political institutions in ways that those institutions themselves prohibit.
—Thomas Kuhn (1962)
Feminism has no theory of the state. Just as feminism has a theory of power but lacks a specific theory of its state form, marxism has a theory of value which (through the organization of work in production) becomes class analysis, but also a problematic theory of the state. Marx himself did not address the state much more explicitly than he addressed women. Women were substratum, the state epiphenomenon. He termed the state a concentrated expression of economics, a reflection of the real action, which occurred elsewhere; it was the official résumé of society, a unity of ruptures; it, or its executive, was but a committee for managing the common affairs of the whole bourgeoisie. Engels frontally analyzed women and the state, and together. But just as he presumed the subordination of women in every attempt to reveal its roots, he presupposed something like the state, or statelike society, in every attempt to find its origins.

Marx tended to use the term political narrowly to refer to the state or its laws, criticizing as exclusively political interpretations of the state’s organization or behavior which took them as sui generis, as if they were to be analyzed apart from economic conditions. He termed political power as embodied in the modern state the official expression of antagonism in civil society. Changes on this level could, therefore, emancipate the individual only within the framework of the existing social order, termed civil society. Revolution on this level was partial, merely political revolution. Accordingly, until recently, most marxist theory has tended to consider as political that which occurs between classes and the state as the instrument of the economically dominant class. That is, it has interpreted the political in terms of the marxist view of social inequality and the state in terms of the class that controls it. The marxist theory of social inequality has been its theory of politics. The state as such was not seen as furthering particular interests through its form. This theory does not so much collapse the state into society (although it goes far in that direction) as conceive the state as determined by the totality of social relations of which the state is one determined and determining part—without specifying which, or how much, is which.

After 1848, having seen the bourgeoisie win revolutions but then not exercise state power directly, Marx tried to understand how states could plainly serve the bourgeoisie’s interest yet not represent it as a class. His attempts form the basis for much contemporary marxist work that has tried to grasp the specificity of the institutional state: how it wields class power or operates within class strictures or supplements or moderates class rule or transforms class society or responds to approach by a left aspiring to rulership or other changes. While much liberal theory has seen the state as emanating power, and traditional marxism has seen the state as expressing power constituted elsewhere, recent marxism, much of it structuralist, has tried to analyze state power as specific to the state as a form, yet integral to a determinate social whole understood in class terms.

Politics becomes an autonomous phenomenon that is constrained by economics but not reducible to it. This state is found relatively autonomous; that is, the state, expressed through its functionaries, has a definite class character, is definitely capitalist or socialist, but also has its own interests, which are to some degree independent of those of the ruling class and even of the class structure. The state as such, in this view, has a specific power and interest, termed the political, such that class power, class interest expressed by and in the state, and state behavior, though inconceivable in isolation from one another, are nevertheless not linearly linked or strictly coextensive. Thus Jon Elster argues that Marx saw that the bourgeoisie perceived their interests best furthered if they remain outside politics.Much of this work locates the specificity of the political in a mediate region between the state and its own ground of power (which alone, as in the liberal conception, would set the state above or apart from class) and the state as possessing no special supremacy or priority in terms of power, as in the orthodox marxist view. For Nicos Poulantzas, for example, the specific autonomy which is characteristic of the function of the State … is the basis of the specificity of the political—whatever that means.

The idea that the state is relatively autonomous, a kind of first among equals of social institutions, has the genius of appearing to take a stand on the issue of reciprocal constitution of state and society while straddling it. Is the state essentially autonomous of class but partly determined by it, or is it essentially determined by class but not exclusively so? Is it relatively constrained within a context of freedom or relatively free within a context of constraint? As to who or what fundamentally moves and shapes the realities and instrumentalities of domination, and where to go to do something about it, what qualifies what is as ambiguous as it is crucial. When this work has investigated law as a particular form of state expression, it has served to relieve the compulsion to find all law—directly or convolutedly, nakedly or clothed in unconscious or devious rationalia—to be simply bourgeois, without undercutting the notion that it, with all state emanations, is determinately driven by interest.

Feminism has not confronted, on its own terms, the relation between state and society within a theory of social determination specific to sex. As a result, it lacks a jurisprudence, that is, a theory of the substance of law, its relation to society, and the relationship between the two. Such a theory would comprehend how law works as a form of state power in a social context in which power is gendered. It would answer the questions: What is state power? Where, socially, does it come from? How do women encounter it? What is the law for women? How does law work to legitimate the state, male power, itself? Can law do anything for women? Can it do anything about women’s status? Does how the law is used matter?

In the absence of answers, feminist practice has oscillated between a liberal theory of the state on the one hand and a left theory of the state on the other. Both theories treat law as the mind of society: disembodied reason in liberal theory, reflection of material interest in left theory. In liberal moments, the state is accepted on its own terms as a neutral arbiter among conflicting interests. The law is actually or potentially principled, meaning predisposed to no substantive outcome, or manipulable to any ends, thus available as a tool that is not fatally twisted. Women implicitly become an interest group within pluralism, with specific problems of mobilization and representation, exit and voice, sustaining incremental gains or losses. In left moments, the state becomes a tool of dominance and repression, the law legitimating ideology, use of the legal system a form of utopian idealism or gradualist reform, each apparent gain deceptive or cooptive, and each loss inevitable.

Liberalism applied to women has supported state intervention on behalf of women as abstract persons with abstract rights, without scrutinizing the content and limitations of these notions in terms of gender. Marxism applied to women is always on the edge of counseling abdication of the state as an arena altogether—and with it those women whom the state does not ignore or who are in no position to ignore it. As a result, feminism has been left with these tacit alternatives: either the state is a primary tool of women’s betterment and status transformation, without analysis (hence strategy) of it as male; or women are left to civil society, which for women has more closely resembled a state of nature. The state, and with it the law, have been either omnipotent or impotent: everything or nothing. The feminist posture toward the state has therefore been schizoid on issues central to women’s status. Rape, abortion, pornography, and sex discrimination are examples.. To grasp the inadequacies for women of liberalism on the one hand and marxism on the other is to begin to comprehend the role of the liberal state and liberal legislation within a post-marxist feminism of social transformation.

Gender is a social system that divides power. It is therefore a political system. That is, over time, women have been economically exploited, relegated to domestic slavery, forced into motherhood, sexually objectified, physically abused, used in denigrating entertainment, deprived of a voice and authentic culture, and disenfranchised and excluded from public life. Women, by contrast with comparable men, have systematically been subjected to physical insecurity, targeted for sexual denigration and violation; depersonalized and denigrated; deprived of respect, credibility, and resources; and silenced—and denied public presence, voice, and representation of their interests. Men as men have generally not had these things done to them; that is, men have had to be Black or gay (for instance) to have these things done to them as men. Men have done these things to women. Even conventional theories of power—the more individuated, atomistic, and decisional approaches of the pluralists, as well as the more radical theories, which stress structural, tacit, contextual, and relational aspects of power—recognize such conditions as defining positions of power and powerlessness. If one defines politics with Harold Lasswell, who defines a political act as one performed in power perspectives, and with Robert Dahl, who defines a political system as any persistent pattern of human relationships that involves, to a significant extent, power, rule, or authority, and with Kate Millett, who defines political relationships as power structured relationships, the relationship between women and men is political.

Unlike the ways in which men systematically enslave, violate, dehumanize, and exterminate other men, expressing political inequalities among men, men’s forms of dominance over women have been accomplished socially as well as economically, prior to the operation of the law, without express state acts, often in intimate contexts, as everyday life. So what is the role of the state in sexual politics? Neither liberalism nor marxism grants women, as such, a specific relation to the state. Feminism has described some of the state’s treatment of the gender difference but has not analyzed the state’s role in gender hierarchy. What, in gender terms, are the state’s norms of accountability, sources of power, real constituency? Is the state to some degree autonomous of the interests of men or an integral expression of them? Does the state embody and serve male interests in its form, dynamics, relation to society, and specific policies? Is the state constructed upon the subordination of women? If so, how does male power become state power? Can such a state be made to serve the interests of those upon whose powerlessness its power is erected? Would a different relation between state and society, such as may exist under socialism, make a difference? If not, is masculinity inherent in the state form as such, or is some other form of state, or some other way of governing, distinguishable or imaginable? In the absence of answers to these questions, feminism has been caught between giving more power to the state in each attempt to claim it for women and leaving unchecked power in the society to men. Undisturbed, meanwhile, like the assumption that women generally consent to sex, is the assumption that women consent to this government. The question for feminism is: what is this state, from women’s point of view?

The state is male in the feminist sense: the law sees and treats women the way men see and treat women. The liberal state coercively and authoritatively constitutes the social order in the interests of men as a gender—through its legitimating norms, forms, relation to society, and substantive policies. The state’s formal norms recapitulate the male point of view on the level of design. In Anglo-American jurisprudence, morals (value judgments) are deemed separable and separated from politics (power contests), and both from adjudication (interpretation). Neutrality, including judicial decision making that is dispassionate, impersonal, disinterested, and precedential, is considered desirable and descriptive. Courts, forums without predisposition among parties and with no interest of their own, reflect society back to itself resolved. Government of laws, not of men, limits partiality with written constraints and tempers force with reasonable rule-following.

At least since Langdell’s first case-book in 1871, this law has aspired to be a science of rules and a science with rules, a science of the immanent generalization subsuming the emergent particularity, of predication and control of social regularities and regulations, preferably codified. The formulaic tests of doctrine aspire to mechanism, classification to taxonomy, legislators to Linneaus. Courts intervene only in properly factualized disputes, cognizing social conflicts as if collecting empirical data; right conduct becomes rule-following. But these demarcations between morals and politics, science and politics, the personality of the judge and the judicial role, bare coercion and the rule of law, tend to merge in women’s experience. Relatively seamlessly they promote the dominance of men as a social group through privileging the form of power—the perspective on social life—which feminist consciousness reveals as socially male. The separation of form from substance, process from policy, adjudication from legislation, judicial role from theory or practice, echoes and reechoes at each level of the regime its basic norm: objectivity.

Formally, the state is male in that objectivity is its norm. Objectivity is liberal legalism’s conception of itself. It legitimates itself by reflecting its view of society, a society it helps make by so seeing it, and calling that view, and that relation, rationality. Since rationality is measured by point-of-viewlessness, what counts as reason is that which corresponds to the way things are. Practical rationality, in this approach, means that which can be done without changing anything. In this framework, the task of legal interpretation becomes to perfect the state as mirror of the society. Objectivist epistemology is the law of law. It ensures that the law will most reinforce existing distributions of power when it most closely adheres to its ideal of fairness. Like the science it emulates, this epistemological stance cannot see the social specificity of reflexion as method or its choice to embrace that which it reflects. Such law not only reflects a society in which men rule women; it rules in a male way insofar as the phallus means everything that sets itself up as a mirror. Law, as words in power, writes society in state form and writes the state onto society. The rule form, which unites scientific knowledge with state control in its conception of what law is, institutionalizes the objective stance as jurisprudence.

The state is male jurisprudentially, meaning that it adopts the standpoint of male power on the relation between law and society. This stance is especially vivid in constitutional adjudication, thought legitimate to the degree it is neutral on the policy content of legislation. The foundation for its neutrality is the pervasive assumption that conditions that pertain among men on the basis of gender apply to women as well—that is, the assumption that sex inequality does not really exist in society. The Constitution—the constituting document of this state society—with its interpretations assumes that society, absent government intervention, is free and equal; that its laws, in general, reflect that; and that government need and should right only what government has previously wronged. This posture is structural to a constitution of abstinence: for example, Congress shall make no law abridging the freedom of … speech. Those who have freedoms like equality, liberty, privacy, and speech socially keep them legally, free of governmental intrusion. No one who does not already have them socially is granted them legally.

In this light, once gender is grasped as a means of social stratification, the status categories basic to medieval law, thought to have been superseded by liberal regimes in aspirational nonhierarchical constructs of abstract personhood, are revealed deeply unchanged. Gender as a status category was simply assumed out of legal existence, suppressed into a presumptively pre-constitutional social order through a constitutional structure designed not to reach it. Speaking descriptively rather than functionally or motivationally, this strategy is first to constitute society unequally prior to the law; then to design the constitution, including the law of equality, so that all its guarantees apply only to those values that are taken away by law; then to construct legitimating norms so that the state legitimates itself through noninterference with the status quo. Then, so long as male dominance is so effective in society that it is unnecessary to impose sex inequality through law, such that only the most superficial sex inequalities become de jure, not even a legal guarantee of sex equality will produce social equality.

The posture and presumptions of the negative state, the view that government best promotes freedom when it stays out of existing social arrangements, reverberates throughout constitutional law. Doctrinally, it is embodied in rubrics like the state action requirement of equal protection law, in the law of freedom of speech, and in the law of privacy. The state action requirement restricts the Constitution to securing citizens’ equality rights only from violations by governments, not by other citizens. The law of the First Amendment secures freedom of speech only from governmental deprivation.In the law of privacy, governmental intervention itself is unconstitutional.

In terms of judicial role, these notions are defended as the passive virtues: courts should not (and say they do not) impose their own substantive views on constitutional questions. Judges best vindicate the Constitution when they proceed as if they have no views, when they reflect society back to itself from the angle of vision at which society is refracted to them. In this hall of mirrors, only in extremis shall any man alter what any other man has wrought. The offspring of proper passivity is substancelessness. Law produces its progeny immaculately, without messy political intercourse.

Philosophically, this posture is expressed in the repeated constitutional invocation of the superiority of negative freedom—staying out, letting be—over positive legal affirmations. Negative liberty gives on the right to be left to do or be what [he] is able to do or be, without interference from other persons. The state that pursues this value promotes freedom when it does not intervene in the social status quo. Positive freedom, freedom to do rather than to keep from being done to, by distinction, gives one the right to control or … determine someone to do, or be, this rather than that. If one group is socially granted the positive freedom to do whatever it wants to another group, to determine that the second group will be and do this rather than that, no amount of negative freedom legally guaranteed to the second group will make it the equal of the first. For women, this has meant that civil society, the domain in which women are distinctively subordinated and deprived of power, has been placed beyond reach of legal guarantees. Women are oppressed socially, prior to law, without express state acts, often in intimate contexts. The negative state cannot address their situation in any but an equal society—the one in which it is needed least.

This posture is enforced through judicial methodology, the formative legal experience for which is Lochner v. New York, a case that arose out of the struggle of the working class to extract livable working conditions from a capitalist state through legislated reform. Invalidating legislation that would have restricted the number of hours bakers could work on grounds of freedom of contract, the Supreme Court sided with capitalism over workers. The dissenters’ view, ultimately vindicated, was that the majority had superimposed its own views on the Constitution; they, by contrast, would passively reflect the Constitution by upholding the legislation. Soon after, in Muller v. Oregon, the Supreme Court upheld restrictive hours legislation for women only. The opinion distinguished Lochner on the basis that women’s unique frailty, dependency, and breeding capacity placed her at a disadvantage in the struggle for subsistence. A later ruling, West Coast Hotel v. Parrish, generally regarded as ending theLochner era, also used women as a lever against capitalism. Minimum-wage laws were upheld for women because the exploitation of a class of workers who are in an unequal position with respect to bargaining power and are thus relatively defenseless against the denial of a living wage … casts a direct burden for their support upon the community.

Concretely, it is unclear whether these special protections, as they came to be called, helped or hurt women. These cases did do something for some workers (female) concretely; they also demeaned all women ideologically.

They did assume that women were marginal and second-class members of the workforce; they probably contributed to keeping women marginal and second-class workers by keeping some women from competing with men at the male standard of exploitation. This benefited both male workers and capitalists. These rulings supported one sector of workers against all capitalists by benefiting male workers at the expense of female workers. They did help the working class by setting precedents that eventually supported minimum-wage and maximum-hours laws for all workers. They were a victory against capitalism and for sexism, for some women perhaps at the expense of all women (maybe including those they helped), for the working class perhaps at women’s expense, at least so long as they were women only.

The view of women in Muller and West Coast Hotel was that of existing society: demeaning, paternalistic, and largely unrealistic; as with most pedestalization, its concrete benefits were equivocal at best. The view of workers in Lochner left capitalism unchecked and would have precluded most New Deal social reforms men wanted. (Protecting all workers was not considered demeaning by anyone.) For these reasons, these cases have come to stand for a critique of substantivity in adjudication as such. But their methodological solution—judicial neutrality—precludes from constitutional relief groups who are socially abject and systematically excluded from the usual political process. Despite universal rejections of Lochnering, this substantive approach in neutral posture has continued to be incorporated in constitutional method, including in the law of equality. If over half the population has no voice in the Constitution, why is upholding legislation to give them a voice impermissibly substantive and activist, while striking down such legislation is properly substanceless and passive? Is permitting such an interpretation of, for example, the equality principle in a proper case activism, while not permitting it is properly nonsubstantive? Overruling Lochner was at least as judicially active as Lochner itself was. Further, why are legislation and adjudication regarded as exercises of state power, but passivity in the face of social inequality—even under a constitutional equality principle—is not? The result is, substantivity and activism are hunted down, flailed, and confined, while their twins, neutrality and passivity, roam at large.

To consider the passive virtues of judicial restraint as a tool for social change suggests that change for workers was constitutional only because workers were able to get power in legislatures. To achieve such changes by constitutional principle before achieving them socially and politically would be to engage in exactly the kind of substantive judicial activism that those who supported the changes said they opposed. The reasoning was: if courts make substantive decisions, they will express their prejudices, here, exploititive of workers, demeaning and unhelpful of women. The alternatives have been framed, then, as substantive adjudication that demeans and deprives on the one hand, or as substanceless adjudication that, passively virtuous, upholds whatever power can get out of the political process as it is.

The underlying assumption of judicial neutrality is that a status quo exists which is preferable to judicial intervention—a common law status quo, a legislative status quo, an economic status quo, or a gender status quo. For women, it also tends to assume that access to the conventional political realm might be available in the absence of legal rights. At the same time it obscures the possibility that a substantive approach to women’s situation could be adequate to women’s distinctive social exploitation—ground a claim to civil equality, for example—and do no more to license judicial arbitrariness than current standards do. From women’s point of view, adjudications are already substantive; the view from nowhere already has content. Lochner saw workers legally the way capitalists see workers socially: as free agents, bargaining at arm’s length. Muller saw women legally the way men see women socially: as breeders, marginal workers, excludable. If one wants to claim no more for a powerless group than what can be extracted under an established system of power, one can try to abstract them into entitlement by blurring the lines between them and everyone else. Neutrality as pure means makes some sense. If, however, the claim is against the definition and distribution of power itself, one needs a critique not so much of the substantivity of cases like Lochner and Muller, but of their substance. .Such a critique must also include that aspect of the liberal tradition in which one strategy for dominance has been substancelessness.

If the content of positive law is surveyed more broadly from women’s point of view, a pattern emerges. The way the male point of view frames an experience is the way it is framed by state policy. Over and over again, the state protects male power through embodying and ensuring existing male control over women at every level—cushioning, qualifying, or de jure appearing to prohibit its excesses when necessary to its normalization. De jure relations stabilize de facto relations. Laws that touch on sexuality provide illustrations of this argument. As in society, to the extent possession is the point of sex, rape in law is sex with a woman who is not yours, unless the act is so as to make her yours. Social and legal realities are consistent and mutually determinate: since law has never effectively interfered with men’s ability to rape women on these terms, it has been unnecessary to make this an express rule of law. Because part of the kick of pornography involves eroticizing the putatively prohibited, obscenity law putatively prohibits pornography enough to maintain its desirability without ever making it unavailable or truly illegitimate. Because the stigma of prostitution is the stigma of sexuality is the stigma of the female gender, prostitution may be legal or illegal, but so long as women are unequal to men and that inequality is sexualized, women will be bought and sold as prostitutes, and law will do nothing about it.

Women as a whole are kept poor, hence socially dependent on men, available for sexual or reproductive use. To the extent that abortion exists to control the reproductive consequences of intercourse, hence to facilitate male sexual access to women, access to abortion will be controlled by a man or The Man. So long as this is effectively done socially, it is unnecessary to do it by law. Law need merely stand passively by, reflecting the passing scene. The law of sex equality stays as far away as possible from issues of sexuality. Rape, pornography, prostitution, incest, battery, abortion, gay and lesbian rights: none have been sex equality issues under the law. In the issues the law of sex discrimination does treat, male is the implicit reference for human, maleness the measure of entitlement to equality. In its mainstream interpretation, this law is neutral: it gives little to women that it cannot also give to men, maintaining sex inequality while appearing to address it. Gender, thus elaborated and sustained by law, is maintained as a division of power. The negative state views gender and sexual relations as neutrally as Lochner viewed class relations.

The law on women’s situation produced in this way views women’s situation from the standpoint of male dominance. It assumes that the conditions that pertain among men on the basis of sex—consent to sex, comparative privacy, voice in moral discourse, and political equality on the basis of gender—apply to women. It assumes on the epistemic level that sex inequality in society is not real. Rape law takes women’s usual response to coercion—acquiescence, the despairing response of hopelessness to unequal odds—and calls that consent. Men coerce women; women consent. The law of privacy treats the private sphere as a sphere of personal freedom. For men, it is. For women, the private is the distinctive sphere of intimate violation and abuse, neither free nor particularly personal. Men’s realm of private freedom is women’s realm of collective subordination. The law of obscenity treats pornography as ideas. Whether or not ideas are sex for men, pornography certainly is sex for men. From the standpoint of women, who live the sexual abuse in pornography as everyday life, pornography is reality.

The law of obscenity treats regulation of pornography from the standpoint of what is necessary to protect it: asregulation of morals, as some men telling other men what they may not see and do and think and say about sex. From the standpoint of women, whose torture pornography makes entertainment, pornography is the essence of a powerless condition, its effective protection by the state the essence of sexual politics. Obscenity law’s moral ideas are a political reality of women’s subordination. Just as, in male law, public oppression masquerades as private freedom and coercion is guised as consent, in obscenity law real political domination is presented as a discourse in ideas about virtue and vice.

Rape law assumes that consent to sex is as real for women as it is for men. Privacy law assumes that women in private have the same privacy men do. Obscenity law assumes that women have the access to speech men have. Equality law assumes that women are already socially equal to men. Only to the extent women have already achieved social equality does the mainstream law of equality support their inequality claims. The laws of rape, abortion, obscenity, and sex discrimination show how the relation between objectification, understood as the primary process of the subordination of women, and the power of the state is the relation between the personal and the political at the level of government. These laws are not political because the state is presumptively the sphere of politics. They are integral to sexual politics because the state, through law, institutionalizes male power over women through institutionalizing the male point of view in law. Its first state act is to see women from the standpoint of male dominance; its next act is to treat them that way. This power, this state, is not a discrete location, but a web of sanctions throughout society which controls the principal means of coercion that structures women’s everyday lives. The Weberian monopoly on the means of legitimate coercion, thought to distinguish the state as an entity, actually describes the power of men over women in the home, in the bedroom, on the job, in the street, throughout social life. It is difficult, actually, to find a place it does not circumscribe and describe.

Men are sovereign in society in the way Austin describes law as sovereign: a person or group whose commands are habitually obeyed and who is not in the habit of obeying anyone else. Men are the group that has had the authority to make law, embodying H. L. A. Hart’s rule of recognition that, in his conception, makes law authoritative. Distinctively male values (and men) constitute the authoritative interpretive community that makes law distinctively lawlike to the likes of Ronald Dworkin. If one combines a realistic conception of the state with a revolutionary theory of society, the place of gender in state power is not limited to government, nor is the rule of law limited to police and courts. The rule of law and the rule of men are one thing, indivisible, at once official and unofficial—officially circumscribed, unofficially not. State power, embodied in law, exists throughout society as male power at the same time as the power of men over women throughout society is organized as the power of the state.

Perhaps the failure to consider gender as a determinant of state behavior has made the state’s behavior appear indeterminate. Perhaps the objectivity of the liberal state has made it appear autonomous of class. Including, but beyond, the bourgeois in liberal legalism, lies what is male about it. However autonomous of class the liberal state may appear, it is not autonomous of sex. Male power is systemic. Coercive, legitimated, and epistemic, it is the regime.

Notes to Chapter 8

  1. Illustrative examples can be found in Karl Marx, The German Ideology (New York: International Publishers, 1972), pp. 48-52 idem, Critique of Hegel’s Philosophy of Right, ed. Joseph O’Malley, trans. Annette Jolin (Cambridge: Cambridge University Press, 1970), p. 139 (substratum); idem, Introduction to Critique of Political Economy in German Ideology, ed. C.J. Arthur (New York: International Publishers, 1972), p. 142; idem, Eighteenth Brumaire of Louis Bonaparte, in Selected Works, ed. V. Adoratsky, vol. 2 (New York: International Publishers, 1936), 344 (superstructure); letter from Marx to P. V. Annenkov, December 28, 1846, in The Poverty of Philosophy (New York: International Publishers, 1963), p. 181. The concept also occurs pervasively if mostly implicitly throughout Capital
  2. In Selected Works, 3: 527. 
  3. Marx, Poverty of Philosophy, p. 156. 
  4. Karl Marx and Friedrich Engels, The Communist Manifesto, in Collected Works (London: Lawrence & Wishart, 1900), p. 486. 
  5. See Chapter 2 and Origin, pp. 125-146. 
  6. Origin, p. 174. 
  7. See also Karl Marx, Early Writings, ed. and trans. T. B. Bottomore (New York: McGraw-Hill, 1964), p. 20. 
  8. Marx, Critique of Hegel’s Philosophy of Right, p. 139. See also Max Adler, Die Staatsauffassung des Marxismus (Darmstadt, 1964), p. 49. 
  9. Lenin urged taking over the state mechanism for the proletariat, but not changing its form. For a discussion of Lenin’s The State and Revolution, see L. Kolakowski, Main Currents of Marxism, vol. 2: The Golden Age, trans. P. S. Falla (Oxford: Clarendon Press, 1978), 498-509. 
  10. This analysis of the political manuscripts is indebted to Eric Hobsbawm, Marx, Engels, and Politics, in The History of Marxism, ed. E. Hobsbawm, vol. 1 (Brighton: Harvester Press, 1982), 498-509. 
  11. Jon Elster, Making Sense of Marx (Cambridge: Cambridge University Press, 1985), p. 57. Elster attributes this insight to post-1850 Marx. 
  12. Representative works include Fred Block, The Ruling Class Does Not Rule: Notes on the Marxist Theory of the State, Socialist Revolution 7 (May-June 1977): 6-28; Ralph Miliband, The State in Capitalist Society (New york: Basic Books, 1969); Nicos Poulantzas, Classes in Contemporary Capitalism (London: New Left Books, 1975) and Political Power and Social Classes, trans. Timothy O’Hagan (London: Verso, 1978); Perry Anderson, Lineages of the Absolutist State (London, New Left Books, 1975); Goran Therborn, What Does the Ruling Class Do When It Rules? (London: New Left Books, 1978); Claus Offe and Volker Ronge, Theses on the Theory of the StateNew German Critique 6 (1975): 137-147; David A. Gold, Clarence Y. H. Lo, and Erik Olin Wright, Recent Developments in Marxist Theories of the Capitalist State, Monthly Review 27 (October 1975): 29-43 and (November 1975): 36-51; Norberto Bobbio,Is There a Marxist Theory of the state? Telos 35 (Spring 1978): 5-16. Theda Skocpol, States and Social Revolution: A Comparative Analysis of France, Russia and China (Cambridge: Cambridge University Press, 1979), pp. 24-33, ably reviews much of this literature. Applications to law include Isaac Balbus, Commodity Form and Legal Form: An Essay on the ‘Relative Autonomy’ of the Law, Law and Society Review 11 (Winter 1977): 571-588; Mark Tushner, A Marxist Analysis of American Law, Marxist Perspectives 1, no. 1 (Spring 1978): 96-116; and Karl Klare, Law-Making as Praxis, Telos 40 (Summer 1979): 123-135. 
  13. Elster, Making Sense of Marx, p. 411. 
  14. Poulantzas’ formulation follows Althusser; Louis Althusser and Etienne Balibar, Reading Capital, trans. Ben Brewster (London: New Left Books 1970). 
  15. Poulantzas, Political Power and Social Classes, pp. 14, 16. 
  16. This discussion usually terms economic realities the base and the state and its laws parts of the superstructure. Base determines superstructure. An interesting reworking of these relations is Gerald A. Cohen, Karl Marx’s Theory of History: A Defense (Oxford: Oxford University Press, 1978), p. 216. 
  17. Ernesto Laclau makes a similar point. Criticizing Ralph Miliband: It would seem that Miliband is working with a simplistic contraposition, in which the adjective ‘relative’ constitutes a simple restriction to an autonomy conceived in terms of freedom. Clarifying Poulantzas: For Poulantzas, on the contrary, the ‘relative’ character of an autonomy indicates that it belongs to a world of structural determinations, and it is only within this, as a particular moment of it, that the concept of autonomy must be elaborated; Ernesto Laclau, Politics and Ideology in Marxist Theory(London: New Left Books, 1977), p. 65. 
  18. The Critical Legal Studies movement has worked with these issues without getting much further on this question than this paragraph discloses. See Mark Kelman’s able synthesis, A Guide to Critical Legal Studies (Cambridge, Mass.: Harvard University Press, 1987), summarizing the criticisms of standard legal discourse by these left scholars. See also David Kairys, ed., The Politics of Law (New York: Pantheon, 1982); Duncan Kennedy and Karl Klare, A Bibliography of Critical Legal Studies, 94 Yale Law Journal 461 (1984); Critical Legal Studies Symposium, 36Stanford Law Review 1 (1984). The lack of centrality of a critique of gender to this group’s critique of law and society (indeed its lack of encounter with the real world in general) makes this school less useful to theory than it might otherwise be. The olympian conceptual discourse of Roberto Unger, The Critical Legal Studies Movement (Cambridge, Mass.: Harvard University Press, 1986), for example, does not advance any substantive theory of power (class or gender) as a basis for his criticisms of the formalism and objectivism of mainstream legal discourse. It is entirely unclear, as a result, just what is at stake in social hierarchy; that is, how and in what way some are concretely benefited, hence enforce and hold onto their position, while others are concretely deprived, hence have an interest in change but may be systematically terrorized and despairing—all in ways that are fundamental to the relation between law and society, the social nature of the state, and legal thinking. Some of the concepts and comments of Critical Legal Studies, such as the interpenetrated nature of state and society, are useful. See Kelman, pp. 258-262. Others, such as the indeterminacy of law, are less useful for those for whom law is all too determinate. For one attempt within this tradition, see Clare Dalton, An Essay in the Deconstruction of Contract Law, 94 Yale Law Journal 997 (1985). 
  19. Each of these issues is discussed in detail in later chapters in this section. 
  20. Recent work attempting to criticize and yet rehabilitate the liberal state, such as Bruce Ackerman, Social Justice in the Liberal State (New Haven: Yale University Press, 1980), does not solve these problems. Ackerman, for example, does not question the social sources and sites of power, but only its distribution. 
  21. Klare, Law-Making as Praxis; Judith Shklar, Legalism (Cambridge, Mass.: Harvard University Press, 1964). 
  22. Scholars of power in its political aspect traditionally analyze legitimated physical force. Thus, the organization called government, science of which is political science, after Weber became that which successfully upholds its claim to regulate exclusively the legitimate use of physical force in a physical territory; Robert A. Dahl, Modern Political Analysis (Englewood Cliffs, N.J.: Prentice-Hall, 1976), p. 3. (See Max Weber, Theory of Social and Economic Organization [New York: Free Press of Glencoe, 1957], p. 154.) Dahl and C. E. Lindblom use control in a similar way:In loose language, A controls the responses of B if A’s acts cause B to respond in a definite wayPolitics, Economics, and Welfare (New York: Harper & Brothers, 1953), p. 94. Pluralist theorists of power have been critical of treating power as a lump in a zero-sum game; you either have it or you don’t. Still, for them, it has to do with getting what one wants, with rewards and deprivations, with A getting B to do something A wants independent of what B wants, either from A telling B or from B anticipating what A wants. A power relation, actual or potential, is an actual or potential causal relation between the preferences of an actor regarding an outcome and the outcome itself; Jack H. Nagel, A Descriptive Analysis of Power (New Haven: Yale University Press, 1975), p. 29. Because he wants it, it happens. On other causal aspects, see Herbert A. Simon, Notes on the Observation and Measurement of Political PowerJournal of Politics 15 (1953): 500-516. Carl J. Friedrich similarly formulates a rule of anticipated reactionsif A’s desire for X causes B to attempt to bring about XConstitutional Government and Democracy(New York: Harper & Brothers, 1937), pp. 16-18. According to Dahl, A has power over B to the extent that he can get B to do something that B would not otherwise do; Robert A. Dahl, A Critique of the Ruling Elite Model, in Political Power, ed. Roderick Bell, David Edwards, and Harrison Wagner (New York: Free Press, 1969), p. 80. See also Nelson Polsby, Community Power and Political Theory (New Haven: Yale University Press, 1962), and R. Dahl, Power, International Encyclopedia of the Social Sciences, vol. 12 (New York: Macmillan, 1968), 405-415. These formulations, while envisioning a somewhat atomistic and individuated social world and a discrete set of decisional interactions, nevertheless do characterize many of the behaviors claimed by feminists as exhibiting power relations between women and men.
    Other concepts of power urged by critics of the traditional approaches capture further dimensions of male power as a political system, emphasizing the more structural, contextual, tacit, and relational dimensions of power. See, e.g., Peter Bachrach and Morton Baratz, Two Faces of Power, in Bell, Edwards, and Wagner, Political Power, p. 94. To these facets, Steven Lukes adds control over agenda, latent as well as observable conflict, and objective as well as subjective interests, emphasizing the sheer weight of institutions over explicit decisions; Power: A Radical Analysis (London: Macmillan, 1974), p. 18. These concepts also characterize gender relations as power, hence political, relations.
    Given the heated disagreements among these men, it is remarkable the extent to which Robert Dahl is correct in characterizing them all when he observes that political science (which is the study of politics, which is, inter alia, about power) has defined the man/woman division outside its confines, because it is seen to relate to ancient and persistent biological and physiological drives, needs and wants … to satisfy drives for sexual gratification, love, security, and respect are insistent and primordial needs. The means of satisfying them quickly and concretely generally lie outside political life.;Modern Political Analysis, pp. 103-104. In other words, because the subordination of women is seen as universal and natural, it is not seen as a system of domination, hence a system of power, hence as political at all. 
  23. Harold D. Lasswell and Abraham Kaplan, Power and Society (New Haven: Yale University Press, 1950), pp. xiv, 240. 
  24. Dahl, Modern Political Analysis, p. 3. See also Dahl and Lindblom, Politics, Economics, and Welfare. Of course, this is not to say that power is all there is to politics. 
  25. Kate Millett, Sexual Politics (Garden City, N.Y.: Doubleday, 1970), p. 31. 
  26. See Susan Rae Peterson, Coercion and Rape: The State as a Male Protection Racket, in Feminism and Philosophy, ed. Mary Vetterling-Braggin, Frederick A. Elliston, and Jane English (Totowa, N.J.: Littlefield, Adams, 1977), pp. 360-371; Janet Rifkin, Toward a Theory of Law and Patriarchy, 3 Harvard Women’s Law Journal 83-96 (Spring 1980). Additional work of interest on this subject includes Sherry B. Ortner, The Virgin and the State, Feminist Studies 4 (October 1978): 19-36; Viana Muller The Formation of the State and the Oppression of Women: Some Theoretical Considerations and a Case Study in England and Wales, Review of Radical Political Economics 9 (Fall 1977): 7-21; Irene Silverblatt, Andean Women in the Inca Empire,Feminist Studies 4 (October 1978): 37-61; Karen Sacks, State Bias and Women’s Status, American Anthropologist 78 (September 1976): 565-569. 
  27. Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harvard Law Review 1 (1959), though a defense of legalized racism, is taken as axiomatic. 
  28. Peter Gabel, Reification in Legal Reasoning (Mimeograph, New College Law School, San Francisco, 1980), p. 3. 
  29. Shklar, Legalism, p. 1. 
  30. Rawls’s original position, for instance, is a version of my objective standpoint; John Rawls, A Theory of Justice (Cambridge, Mass.: The Belknap Press of Harvard University Press, 1971). Not only apologists for the liberal state, but also some of its most trenchant critics see a real distinction between the rule of law and absolute arbitrary force; E. P. Thompson, Whigs and Hunters: The Origin of the Black Act (New York: Pantheon Book, 1975), pp. 258-269. Douglas Hay argues that making and enforcing certain acts as illegal reinforces a structure of subordination; D. Hay et al., eds., Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England (New York: Pantheon, 1975), pp. 17-31. This seems particularly apparent for criminal law. Michael D. A. Freeman applies this argument to domestic battery of women; Violence against Women: Does the Legal System Provide Solutions or Itself Constitute the Problem? (Mimeograph, Madison, Wis., 1980), p. 12 n. 161. 
  31. Laurence Tribe, Constitution as Point of View (Mimeograph, Harvard Law School, 1982), p. 13. 
  32. Madeleine Gagnon, Body I, in New French Feminisms, ed. Elaine Marks and Isabelle de Courtivron (Amherst: University of Massachussetts Press, 1980), p. 180. The mirror trope has served as metaphor for the epistemological/political reality of objectification in feminist work. Into the room of the dressing where the walls are covered with mirrors. Where mirrors are like the eyes of men, and the women reflect the judgments of the mirrors; Susan Griffin, Woman and Nature: The Roaring inside Her (New York, Harper & Row, 1978), p. 155. She did suffer, the witch / trying to peer round the looking / glass, she forgot / someone was in the way; Michelène, Réflexion, quoted in Sheila Rowbotham, Woman’s Consciousness, Man’s World (Harmondsworth: Penguin, 1973), p. 2; see also ibid., pp. 26-29, and Mary Daly, Beyond God the Father: Toward a Philosophy of Women’s Liberation (Boston: Beacon Press, 1973), pp. 195, 197. Virginia Woolf wrote the figure around (So I reflected …), remarking the necessity that women so often are to men of serving as a looking glass in which a man can see himself at breakfast and at dinner at least twice the size he really is. Notice the doubled sexual/gender meaning: Whatever may be their use in civilized societies, mirrors are essential to all violent and heroic action. That is why Napoleon and Mussolini both insist so emphatically upon the inferiority of women, for if they were not inferior, they would cease to enlargeA Room of One’s Own (New York: Harcourt, Brace & World, 1969), p. 36. 
  33. Olmstead v. U.S., 277 U.S. 438, 478 (1928) (Breindeis, J. dissenting). 
  34. Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (New Haven: Yale University Press, 1986). 
  35. Isaiah Berlin, Two Concepts of Liberty, in Four Essays on Liberty (London: Oxford University Press, 1969), pp. 121-122. 
  36. Lochner v. New York, 198 U.S. 45 (1905). Bickel, The Least Dangerous Branch, and others have argued for judicial restraint on many grounds. This is my interpretation of the reality that gave this view the preeminence that it has attained. 
  37. Muller v. Oregon, 208 U.S. 412 (1908). 
  38. West Coast Hotel v. Parrish, 300 U.S. 379, 399 (1937). Cass Sunstein’s insightful analysis of Lochner is extremely helpful. See Lochner’s Legacy, 87 Columbia Law Review 873 (1987). A similar set of perceptions underlies Owen Fiss, Why the State? 100 Harvard Law Review 781 (1987). 
  39. Judith A. Baer, The Chains of Protection: The Judicial Response to Women’s Labor Legislation (Westport, Conn.: Greenwood Press, 1978); Clara M. Beyer, History of Labor Legislation for Women in Three States, U.S. Department of Labor, Women’s Bureau, Bulletin no. 66 (Washington, D.C. 1929). See J. Landes, The Effect of State Maximum-Hours Laws on the Employment of Women in 1920, Journal of Political Economy 88 (1980): 476. In international perspective, see Tove Stang Dahl, Women’s Law (Oslo: Norwegian University Press, 1987), p. 94. 
  40. West Coast Hotel v. Parrish, 300 U.S. 379 (1937), overruled the previous rejection of minimum wage laws for women (Adkins v. Children’s Hospital, 261 U.S. 525 [1923]), finding a minimum wage for women reasonable because the state has a special interest in protecting women from exploitive work contracts because the health of women becomes an object of public interest and care in order to preserve the strength and vigor of the race (p. 394). It is thought that this opened the door for later upholding of the Fair Labor Standards Act under constitutional attack in U.S. v. Darby, 312 U.S. 100 (1940). West Coast Hotel was also used to uphold state constitutional amendments that make it unlawful to deny employment on the basis of union membership. American Federation of Labor v. American Sash and Door Co., 335 U.S. 538 (1949). See also Lincoln Federal Labor Union v. Northwestern Iron and Metal Co., 335 U.S. 525, 536 (1948) (that wages and hours can be fixed by law is no longer doubted since West Coast Hotel). 
  41. For an excellent discussion of this history, see Mary E. Becker, From Muller v. Oregon to Fetal Vulnerability Policies, 63 University of Chicago Law Review 1219 (1986). 
  42. See, in a different key, Michael Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982): The idealist metaphysic, for all its moral and political advantage, cedes too much to the transcendent, and in positing a noumenal realm wins for justice its primacy at the cost of denying it its human situation (p. 13). 
  43. Johnnie Tillmon, Welfare Is a Women’s Issue, Liberation News Service, February 26, 1972; reprinted in Rosalyn Baxandall, Linda Gordon, and Susan Reverby, eds., America’s Working Women (New York: Random House, 1976), pp. 355-358. 
  44. Sexual harassment, designed in pursuit of the jurisprudential approach argued here, is an exception. So is a recent decision by the Ninth Circuit, Watkins v. Army, 837 F.2d 1429 (9th Cir. 1988), which holds that to deprive gays of military employment on the basis of homosexual status is a violation of the Equal Protection Clause. 
  45. Chapter 12 provides citations and a fuller discussion of this argument. 
  46. Charles Tilly, ed. Western State-Making and Theories of Political Transformation, in The Formation of National States in Western Europe (Princeton: Princeton University Press, 1975), p. 638. 
  47. John L. Austin, The Province of Jurisprudence Determined (New York: Noonday Press, 1954). 
  48. H. L. A. Hart, The Concept of Law (London: Oxford University Press, 1961). 
  49. Ronald Dworkin, Law’s Empire (Cambridge, Mass.: Harvard University Press, 1986). The task of this work is to justify the coercive power of the state through an account of authoritative interpretation which disposes of disagreements on the meaning of laws. The proposed solution is law as integrity, which is about principle (p. 221). 
  50. This is how Bobbio describes Marx’s particular originality; Is There a Marxist Theory of the State? p. 15. 

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