MacKinnon and Cornell on Equality and Rule of Law

by Jinryu

This is a copy paste of my final essay for a class on Law and Social Theory.  This paper scored a “Distinction” grade, so I guess that means I know what I’m talking about– it’s not a perfect paper and there are errors, but I think it’s written in such a way that if you read it, you’ll understand a bit more about what contemporary radical feminism is all about.

Hint: it’s not just about burning bras and telling dudes to fuck off, it’s a bit more complicated than that!


In all seriousness, feminism is a lot more important than just the idea of equal opportunities for women.  I wouldn’t say I’m a feminist, because that characterisation comes with a ton of baggage and responsibility, but I would say that in everyday life, a high percentage of my thought process would likely align with that of contemporary feminist theory.



I should point out that this paper was electronically submitted through a plagarism registry, so don’t even think about ripping me off, because you’ll get caught.



Date: February 10th, 2012


It is difficult to speak of feminism as if it were a united voice capable of saying anything more than that feminism seeks equality, because there are a large range of doctrines with different approaches and focuses. What does equality mean, and for whom? Can we integrate equality into society? Are feminism and rule of law even compatible? This essay aims to shed some light on how the ideas of two feminists, Catherine MacKinnon and Drucilla Cornell, help answer these questions about the contemporary feminist movement. Their respective visions of “equality” will be examined theoretically and practically, in order to demonstrate some of the key tensions within feminism that inform its progress.

Difference Doctrine


The first significance of MacKinnon’s work is that before we can consider the state of equality, we are lead to first re-conceptualise our understanding of it. She identifies what she sees as the most common approach to sex equality, which she calls the difference doctrine.1 This doctrine is divided into two approaches, both of which make use of the purported differences between men and women. The first approach is one that philosophically, socially, and legally suggests that women should be the same as men.2 Equality by this route is measured by the existence of equal rights of women to men. The second approach is to “be different from men,”3 and celebrates the differences between women from men. This approach in part aims to secure special benefits to women beyond equality.


MacKinnon’s major statement though is that it is impossible to seek equality in current institutions because they are, at their root, patriarchal.4Because of this, she argues, difference based doctrines are missing the point entirely. For example, attempting to build equality into the the law is an impoverished goal–her Marxist analogy places the law as merely the trailer, not the driver, of patriarchal dominion.5 Just as Marx felt that seeking rights for Jews was the wrong way of seeking emancipation, seeking equal legal rights of women is counter productive. Doing so within current institutions would be to acknowledge their authority by admitting the need for their approval, where approval is earned through a prescribed manner and form of the dominion’s language. Thus, seeking feminist goals within patriarchal law is, to some degree, helping to perpetuate the continued subordination of women.


MacKinnon’s Substantive Equality


Yes, MacKinnon is in favour of equality. However, she sees her version of equality as being more substantive than just rights, which accomplish little for women.6 From her work, we find equality is defined by what it is not: that is to say, it is not a state of socially constructed hierarchy, specifically, patriarchy. Her equality attempts to sidestep the sameness/difference approach, altogether. Instead of theoretical rights, she instead advocates seeking the power to redress.7


The Patriarchal “Feminine”


The shortcoming of her theory is that, while it reasons that equality cannot be found in patriarchy, it does little to identify what is equality, or how we can find it. Attempting to apply a MacKinnon reading of contemporary feminist activity highlights this paradoxical problem: if the current legal system is patriarchal as she says, how can the results of feminism ever produce anything aside from more patriarchal derivatives? How does feminism achieve reconciliation or legitimacy within the rule of law, if the law itself is patriarchal? MacKinnon’s problem is that she expects a certain level of purity to the feminist. She goes as far as to frame the conventional femininity as a patriarchal construct. How then can a woman legitimise herself, if patriarchy taints every step of feminist thought?


Cornell’s Assumed Woman


Cornell, in contrast, has a more affirmative approach which attempts to avoid this difficulty. In some ways, Cornell is building on MacKinnon’s theories.8 While MacKinnon identifies what is not equality for women, Cornell attempts to posit what is. While MacKinnon sees the concept of the feminine as nothing but a patriarchal construct, Cornell sees it as one possible source that informs a new feminine voice– further, in contrast to MacKinnon, she posits that it is possible to give birth to a new feminine voice independent from patriarchy altogether. While MacKinnon pits the feminist against the feminine,9 Cornell tries to reconcile the two, by pushing for the redefinition of both.


Yes, Cornell agrees, patriarchy will not provide the equality that women seek. However, she disagrees that patriarchy’s definition of femininity is irrelevant; that it continues to be insurmountably limited by patriarchy; and that it is impossible to come up with a completely new and independent definition of the feminine. Rather, she takes MacKinnon’s observations of patriarchal dominance as merely the starting point to work from.10

MacKinnon Applied


In order to examine the differences between the two visions of equality, it helps to contrast their applications in law. The reason why Cornell’s usage of MacKinnon is limited to being a starting point is because the theory makes a logical case for identifying the source of women’s subordination, but she doesn’t offer much in practical terms as to how a feminist can speak or act outside of patriarchy in order to exercise true femininity or feminism. As a result, usage of her ideas is extremely limited in terms of compatibility with existing rule of law.


MacKinnon is consistently at odds with patriarchy throughout her writing,11 and in interview even exalts, “everybody, everything, now, immediately.”12 This sounds like a battle cry at the front of a popular uprising. The peculiar irony, though, is that she actually tends to work extensively within the law.

Working within Patriarchy?


For several years in the early 80s, MacKinnon was in the employ of the government of Minnesota (United States) to help with the drafting of anti-pornography legislation.13 MacKinnon, during that time, developed a strict sense (including a proposed legal definition) of what constitutes pornography, and a line of reasoning as to why it is wrong.14 We can definitely see how the new direction of this definition swings the situation in favour of women– her redefinition of pornography has women, as victims, as the focus of the ordinance, suggesting that this victimisation is more important than any claims to free speech.15Prima facie, this discussion is of benefit to the feminist movement on the whole.


This does, however, highlight the contradictions involved in subscribing to MacKinnon’s purist feminism though. While she no doubt makes a well reasoned case against pornography, one might interpret MacKinnon’s methodology as using patriarchal tools and techniques to seek patriarchal approval and legitimacy of a feminine concern. This raises several questions about the applicability of her feminism to other issues of rule of law in society.


If MacKinnon is of the opinion that anything out of patriarchy could only perpetuate further subordination for women, then by her own standards, aren’t her efforts in anti-pornography legislation liable to fail her own criticisms? Isn’t her appeal to legal protection of women from the harms of pornography in large part further reinforcing the legitimacy of patriarchal dominance over the law?


MacKinnon has also done a fair amount of work as an amicus curiae for American court proceedings.16 For someone who sees the legal system as simply an extension of patriarchy, and who feels that change should be driven socially before legally,17 it seems somewhat troublesome for MacKinnon’s ideals of equality if she herself spends so much time working within the patriarchy that she denounces.


If we interpret her actions according to her theory, they would seem to suggest that the conclusion that patriarchy is inescapable– the best we can do is fight for impoverished, conventional equality. Despite her philosophy, her actions seem to align with the difference doctrine strategy to “be as men.” In her case, we would interpret her attempts to rally and use power as the traditional masculine methods, although for the benefit of women. Thus, even within a single feminist, there is already a marked lack of cohesion.

Patriarchal Nihilism


Broadly, MacKinnon’s objective is to expose and, in some sense, destroy the root of female subordination. Her focus is on the biggest available target– patriarchy itself.18


But in so doing, MacKinnon “effectively closes us off from the utopian possibilities of justice and of ethical relations between the sexes,” and suggests that “any effort to imagine such a female desire and subjectivity is complicitous with masculine definitions of female reality.”19 In a sense, MacKinnon’s feminist equality is fundamentally incompatible with everything about contemporary rule of law, because by her accord, the current rule of law is a mechanism for perpetuating patriarchy. Overall, MacKinnon offers little in the way of solutions to joining feminism with the rule of law.


Cornell’s Reconstructive Equality

Cornell is less of an absolutist. In her own words, equality for Cornell is about eventually seeing beyond the binary of opposition between feminine and masculine.20From the start, this places her vision of equality in a different realm from MacKinnon’s, which is driven by a stronger sense of antagonism. She is not attempting to create a feminism that would satisfy MacKinnon’s strict standards (indeed, it seems nothing is sufficient within MacKinnon’s standards). Instead, she seems to be trying to establish feminism that comes either after or simultaneously with MacKinnon’s patriarchal nihilism. Yes, Cornell agrees that there is an undeniable patriarchal influence on social institutions– but she does not feel that women are incapable of redefining themselves beyond the limitations of this patriarchy.21

Cornell Applied to Pornography


For example, Cornell has a pragmatic approach to pornography.22 Rather than address the negative effects of pornography by attempting to have it banned, Cornell goes on to create a distinction between what she calls “patriarchal pornography” and “progressive pornography.” While it is a given that patriarchal pornography is damaging to women,(quote) not all pornography need be patriarchal.23 She advocates the reinvention of pornography, so that it is useful and relevant to women, rather than harmful.


The concepts of reinvention, recreation, redefinition, and restructuring are central to Cornell’s ideas of feminism and equality. Through reimagination of the feminine myth, it has been possible to “involve [women] in aesthetic re-creation of [women’s] sexuality.”24 On the subject of pornography, application of such methodologies results in erotica. Such progressive pornography, instead of being damaging to women, instead helps redefine their femininity in new ways.25


To Cornell, the path to equality is not to win an adversarial debate in which men and women stand at opposition– but to create a new solution, that deconstructs the adversity rather than eliminating the adversary.


The Importance of Reading as MacKinnon


Despite that Cornell’s theory seems easier to apply practically, MacKinnon’s reading of social institutions is not without its uses. It’s critical nature helps inform feminism at the foundational level, for example, on the subject of sexuality. In general, MacKinnon sees sexuality as a cheap commodity of sorts, in the Marxist language. Of sexuality, she says: “women never own it, and men never treat it, in law or in life, with the solicitude with which they treat property.”26 MacKinnon also suggests that women’s sexuality “is a thing to be stolen, sold, bought, bartered or exchanged by others.”27 Marx predicted not only work, but the worker himself would be comodified. In this vein, parallels drawn to women further emphasise that women have no agency in setting the definitions of society.28 Women’s sexuality becomes a product that they are obliged to produce, not even for their own enjoyment. Pornography has already been mentioned, but the model informs the starting points of many other areas of discourse, including those that Cornell engages in.


Certainly, MacKinnon’s patriarchal reading of the law seems quite convincing when used to interpret the history of American and European rape trials.29 Trials tend to focus on men. For example, the severity of sentencing takes into account factors about the circumstances of the rapist: if found guilty, a minor is likely to get a shorter sentence, usually because of immaturity, and a public official is likely to get a longer sentence, because of having betrayed a public trust; the court takes into account whether the man misunderstood consent, instead of what the woman knew she was refusing; the woman’s sexual history is taken into account, as if history would somehow curtail a woman’s right to refuse sexual relations.30 Where is the agency of the woman regarding her sexuality here? MacKinnon’s theory effectively unmasks a strong correlation between laws and male bias. It provides a convincing case against relying on patriarchal law to help women’s interests.31


Theoretical and Applied Relationship with Rule of Law


But that is where the direct usefulness of MacKinnon’s theory of patriarchal energies ends. It has, indeed, identified the reason why the result of applying law frequently disfavours women. Says MacKinnon, “I don’t know if it’s going to be possible to use law to make any difference in the situation of all women without a fairly broad and deep political attack on the meaning of it’s central concepts, including objectivity and rules, neutrality and the entire apparatus of liberalism.”32 But then, where does this leave us?


MacKinnon’s theory has provided mostly an observation and critique of the rule of law– not a means by which to reconcile equality, whatever a virgin form of it may be, with it. By her own example, MacKinnon fights these laws by playing their game, and provides no alternatives. In this way, MacKinnon’s interaction with the rule of law is to denounce it on the surface, but, either due to resignation or some unexplained tactic, to accept the rule of law’s definition of women, femininity and feminism, and to resort a power struggle within the established hierarchy.33 The majority of it’s usefulness is as a starting point.


The Origins of A New Feminine Myth


The strength of Cornell’s interaction with rule of law lies in how it builds upon that which can be identified through a MacKinnon reading of it. It provides the basis of definitions that will be focused upon during the reconstruction. The difference is that unlike MacKinnon, Cornell gives more credit and agency to women as a starting point from which they can create a new myth. This is regardless of how any such myth may be historically informed by patriarchal genesis.


The importance of the “myth” analogy is that there is a certain amount of flexibility to it, which allows for it to adapt gradually and go beyond its roots.34 Thus, Cornell’s method towards approaching the rule of law is double edged. Though it does seek to bring down patriarchal laws to some extent, it is simultaneously concerned with founding new alternative definitions which are legitimate to women.35 This creation of new definitions that have popular legitimacy is Cornell’s way of eventually changing the very nature of rule of law.


Summarily, Cornell avoids the recursive problems of MacKinnon by stating, simply, that woman must begin somewhere: “Feminism allows us to ‘see’ the doubly prized world which might be ours.”36 True, patriarchy is likely to produce more patriarchy– but it is not true that patriarchy is the only place to attempt to find this new feminine voice. For example, Cornell isn’t concerning herself with the traditional masculine debates on the legality of pornography– she is trying to define a pornography beyond current pornography. Similarly, Cornell isn’t as concerned with the “war on terror” so much as she is the removal of reasons to create terror. In a sense, the broadness of Cornell’s sources of feminine voices is what allows for negotiable compatibility with rule of law. The mythos, which women must recreate of women, is one that must be flexible and concerned with the details. Cornell feels “we are responsible for an ideal that can never be realised and yet that is always being configured and contested.”37


Approaches to Prostitution


An additional comparison would help highlight the differences between MacKinnon and Cornell. A domain in which the two have different approaches is on the subject of prostitution. Throughout most of USA, prostitution is illegal, resulting in the arrest of women who arguably have been forced into their situations due to socio-economic realities out of their control.


MacKinnon’s take on the subject is very similar to her take on sexuality, rape, and feminism in general– it is defined by a constant awareness of unshakable patriarchal influence. To MacKinnon, prostitution is female sexual slavery.38 Women are placed in a position where they and their sexuality have become commodities. But this goes beyond being a Marxian analogy to alienation of the goods from the worker; to MacKinnon, it is a compounded evil, characterised by repeated torture, through repeated rape.39 She takes a black and white approach to it: “in rape, the security of women’s person is stolen; in prostitution, it is stolen and sold.”40


How does MacKinnon see the feminist working in relation to rule of law on this subject? Her approach is to expose the legal contradictions of that arise from patriarchy purporting to defend women. She frames the prostitution problem in terms of opposing rights: the woman’s supposed right to life, the right to be free from slavery, and right to be a person recognised before the law;41 versus the rights of men to privacy, to own property, and to contract.42


Cornell on the other hand leaves this technical debate to go on in the background, and seeks more direct means of affecting policy. Though she no doubt feels that it is exploitative, she takes her discourse with the law beyond what the law is doing to contradict itself. As a union organiser in the 70s, Cornell worked to try and organise prostitutes in New York City. The goal was pragmatic, to say the least: it aimed to decriminalise prostitution, so that a union could be formed. This union would in theory be best placed to advocate for its own interests and bring informed, new voices, previously ignored, to the equality discourse.43


Cornell retells the story of prostitutes in New York City who had set up a co-operative of prostitutes without pimps. They organised their own protection, education, and health. As far as empowering women, Cornell’s campaign couldn’t have been more literal– part of the campaign was to have the prostitutes armed for their own physical defence. Though they remained prostitutes, the collective was collectively owned and collectively run.44 While the traditional view of prostitution is more akin to MacKinnon’s viewpoint, which in a sense attempts to theoretically vilify men and prostitution without having much to say about what to do with the prostitutes, Cornell looks to the prostitutes as sources of the female myth.

Cornell’s Feminist Utopia


The general differentiating pattern between MacKinnon and Cornell is that the former tends to expose the problems of the law, all the while wrestling with the weight and immobility of these institutions; the latter attempts to make the most of these realisations, but does not admit to any permanent limitations. In a sense, Cornell’s philosophy takes feminism to the next step after MacKinnon’s patriarchal nihilism. While MacKinnon says she has no idea what autonomy means,45 in the sense that women to her have no substantive agency or independence from patriarchy, Cornell assumes the importance of any female voice and uses this to immediately begin the reconstruction. Again, the retelling and revamping of the feminine myth is a consistent theme. Says Cornell, “the idea of the imaginary domain is that each one of us needs to have space to contest and to re-imagine ourselves.”46 This imaginary domain is the key ingredient that makes Cornell’s vision of equality more compatible with rule of law than MacKinnon’s.


The main limitation on MacKinnon’s theory, according to Cornell, is that it ignores the possibility of a feminist utopia: “[…] MacKinnon thus privileges masculinist power because it has no vision of a female experience outside of his gaze.”47 Cornell, in contrast, suggests being utopic, synergistic and inclusive, while still avoiding the pitfalls of traditional difference doctrine. “The idea that men, too, have to struggle to imagine themselves differently is part of the very idea of my feminism.”48 Thus, seeking equality for Cornell entails reconstruction, not just on the part of women, but on the part of men, to benefit humanity collectively.49


Summarily, MacKinnon seems to be about destroying patriarchy– whereas Cornell seems more focused on building the alternative. “Feminists can proceed by metonomy, Cornell suggests– reconstructing social and legal relationships with new configurations that rename women’s experience for particular contexts.”50


MacKinnon Objectively


Although the current analysis makes it convenient to characterise MacKinnon as a purist who isn’t as practically beneficial to equality as Cornell is, we must bear in mind that to say this assumes the measurement of progress according to their different definitions of equality.


Indeed, despite the paradox of her own standards, the fact is that MacKinnon’s actions might be positively interpreted within the theory of Cornell. For example, what is MacKinnon’s work on pornography, if not an attempt to find new definitions that would be legitimate to women? Even though MacKinnon’s concern is with “substantive equality,” she too identifies that the need for equality must be “defined on women’s own terms and in terms of women’s concrete experience.”51 Despite what her theory says about the immutability of patriarchy, she can be interpreted as still working largely towards an equality outside of her own theory. This brings us back to the original proposition of this essay– that it is difficult to speak of feminism as if it were a unified voice. Even if it agreed that equality was a focus, the definitions of equality are not agreed upon. Despite their differences though, the importance of MacKinnon and Cornell both continue to the way in which they prompt the continued intensity and urgency of feminist discourse, which may yet yield solutions that neither of them envisioned. As Cornell puts it, “it is up to us to take on the task of bringing into existence a timeliness still in the making, and if we do not take up such a task , there is no alibi excusing our not doing so.”52


Concluding Statements


As we have seen, the path towards equality is fraught with philosophical and practical obstacles. Furthermore, many of these obstacles arise out of the disagreement among feminists themselves.


We can take MacKinnon’s approach towards the rule of law, which is to keep it close as one does the enemy.53 Or if we take Cornell’s approach, which is to produce high level theory in progressive domains that the law hasn’t yet rooted itself. We can also turn to any number of other feminist theories not covered by this paper. The end result by any route is a growing body of feminist work, which attempts to establish equality of various interpretations, all the way attempting legitimise women’s voices. Inevitably, these voices seek increasing recognition within, and changes to, the rule of law.



Cornell, Drucilla, ‘Derrida: The Gift of the Future.’(2005) 16(3) Differences: A Journal of Feminist Cultural Studies.

Cornell, Drucilla, and bell hooks, ‘Dialogue: The Imaginary Domain: A Discussion Between Drucilla Cornell and bell brooks.’ (1998) 19 (Spring) Women’s Rights Law Reporter.

Cornell, Drucilla, ‘Facing our Humanity.’ (2003) 18 (Winter) (1) Hypathia Journal.

Cornell, Drucilla, ‘Transformations: Recollective Imagination and Sexual Difference.’New York, Rothledge.

Carol, Douglas, ‘Interview: MacKinnon on Feminist Theory.’(1983) 13.5 Washington, Off Our Backs Journal 13.5.

MacKinnon, Catherine, Feminism Unmodified: Discourses on Life and Law. (Harvard University, 1987).

MacKinnon, Catherine, and Andrea Dworkin, In harm’s way: The pornography civil rights hearings. (Harvard University Press, 1997)

MacKinnon, Catherine, Prostitution and Civil Rights, (1993) 1 Michigan Journal of Gender & Law.

MacKinnon, Catherine, Towards a Feminist Theory of the State. (Harvard University Press, 1989).

McGlynn, Clare, ‘Rape as ‘Torture’? Catherine MacKinnon and Questions of Feminist Strategy.’16 Feminist Legal Studies (2008).

McGowan, Mary Kate, ‘On Pornography: MacKinnon, Speech Acts, and “False” Construction.’ (2005) 20 (Summer) (3) Hypathia Journal.

Sutherland, Kate, ‘Marx and MacKinnon: The Promises and Perils of Marxism for Feminist Legal Theory.’(2005) 69(1) Science and Society.

1Difference and Dominance: On Sex Discrimination, 83.

2Ibid, 84.

3Ibid, 84.

4Ibid, 98.

5See generally, Interview: MacKinnon on Feminist Theory.

6Difference and Dominance: On Sex Discrimination, 83

7Difference and Dominance: On Sex Discrimination, 90.

8For example, Cornell states “I agree with MacKinnon that we should fight for equal protection under the law, but I would not settle for it.” Recollective Imagination and Sexual Difference, 107.

9Difference and Dominance: On Sex Discrimination, 90.

10Recollective Imagination and Sexual Difference, 108.

11The introductory paragraph of Interview with MacKinnon on Feminist Theory, 4. is one of her most explicit affronts on the law.

12Ibid, 12.

13See generally, Mary Kate McGowan, On Pornography: MacKinnon, Speech Acts, and “False Construction,” 25.

14Ibid, 25-26; Towards a Feminist Jurisprudence, 99-100.

15Says MacKinnon, of pornography, “being the medium for men’s speech supersedes any rights women have.” Towards Feminist Jurisprudence, 99.

16For example, MacKinnon has filed amicus briefs for the American cases R.A.V. v City of St. Paul 505 US 377 (1992) and Joseph Oncale v Sundowner Offshore Services 523 US 75 (1998).

17Says MacKinnon, “I think the struggle to change a law has everything to do with the struggle that goes on in society; but that seeing that the law being changed is what is going to make the social change is, I think, wrong.” (MacKinnon, On Injury in Sex)

18See generally, Towards Feminist Jurisprudence.

19Iris Young, Signs: Book Reviews, 20(2) Winter 1995, 491

20Ibid, 112; The Imaginary Domain: A Discussion Between Drucilla Cornell and bell hooks, 265.

21Transformations: Recollective Imagination and Sexual Difference, 112.

22Generally, see The Imaginary Domain: A Discussion Between Drucilla Cornell and bell hooks.

23Ibid, 262; ibid 265.

24Ibid, 264.

25Ibid, 265.

26Towards a Feminist Theory of State, 1989, 172.

27Ibid, 172.

28Marx and MacKinnon: The Promise and Perils of Feminist Legal Theory, 119.

29See generally, Rape as ‘Torture’? Catherine MacKinnon and Questions of Feminist Strategy.

30Rape as ‘Torture’? Catherine MacKinnon and Questions of Feminist Strategy, 78

31Ibid, 80.

32See generally, Injury of the self.

33Transformations: Recollective Imagination and Sexual Difference, 107.

34See passage quoted from Hans Blumenburg in Transformations: Recollective Imagination and Sexual Difference, 111.

35Says Cornell, “The goal of ethical feminism […] is not just power for women, but the redefinition of all of our fundamental concepts, including power.” Transformations: Recollective Imagination and Sexual Difference, 107.

36Transformations: Recollective Imagination and Sexual Difference,112.

37Facing Our Humanity, 172.

38See also the work of Kathleen Berry regarding prostitution as female sexual slavery; Prostituion and Civil Rights, 13.

39Prostitution and Civil Rights, 13.

40Ibid, 13

41Ibid, 14.

42Ibid, 14.

43The Imaginary Domain: A Discussion Between Drucilla Cornell and bell hooks, 261.

44Ibid, 261.

45See generally, Injury in Sex.

46The Imaginary Domain: A Discussion Between Drucilla Cornell and bell hooks, 263.

47Signs: Book Reviews, 491.

48The Imaginary Domain: A Discussion Between Drucilla Cornell and bell hooks, 263.

49Facing Our Humanity, 174.

50Signs: Book Reviews, 491.

51Towards Feminist Jurisprudence, 98.

52Derrida: The Gift of the Future, 71.

53Referring to the proverb, “keep your friends close, and keep your enemies closer.”