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Published online by Cambridge University Press: 09 June 2015
We cannot ask reason to take us across the gulfs of the absurd. Only the imagination can get us out of the eternal present.
—Ursula Le Guin
Law controls sexuality not only by its coercive powers, but also through its discursive constructions. While there are other social forces and influences in play, sexual identities and sexual practices are framed within the ample reach of law’s linguistic domain. As well as enforcing prevailing moral norms and deciding the scope of socially-validated sexual behaviour, law also determines what counts as sex in the tableau of human behaviour. Although the relationship of law, sexuality and sex is always ideologically fraught, it is particularly so in regard to graphic representations of sex and sexuality. The debate around this so-called pornography hits a very sensitive nerve in the body politic. Indeed, in recent years, few social practices have managed to arouse as much intellectual angst and political anger as pornography. In part, this is because the debate seems to cut across traditional political lines; it sets traditional enemies against each other and fosters strange alliances among them. None of this should be too surprising as pornography touches profound issues which strike at the very heart of those dilemmas, difficulties and denials that comprise the human condition.
I am very grateful to Harry Arthurs, Adam Bernstein, Brenda Cossman, Les Green, Robert Maisey, Jim Smith and Wendy Rambo for their encouragement and help. Special thanks to Pam Marshallwho showed me, as she put it, that “it is possible for a feminist to have sex as well as gender.” A revised version of this essay will appear as a chapter in a forthcoming book, entitled Swimming With Turtles: Law, Politics and Postmodernism.
1. Le Guin, U., Dancing at the Edge of the World (New York: Grove Press, 1989) at 45.Google Scholar
2. Arnold, M., “Dover Beach” in Arnold: Poetical Works (London: Oxford University Press, 1950) at 212.Google Scholar
3. See Feminism Unmodified: Discourses on Life and Law (Cambridge, MA: Harvard University Press, 1987) [hereinafter Feminism] and Toward a Feminist Theory of the State (Cambridge, MA: Harvard University Press, 1989) [hereinafter State].
4. MacKinnon, C., Only Words (Cambridge, MA: Harvard University Press, 1993)Google Scholar [hereinafter parenthetically referred to by page number in the text].
5. Rorty, R., Consequences of Pragmatism (Minneapolis: University of Minnesota Press, 1982) at 19.Google Scholar At this point, it seems important to state the position from which I enter the debate. I am, among other things, a white, heterosexual, middle-class father of three daughters. For further details on my identity and how and why it might matter, see Hutchinson, A., “Identity Crisis: The Politics of Interpretation” (1992) 26 New Eng. L. Rev. 1173.Google Scholar Although I want to challenge the existence of sexism, racism and homophobia in society, this no more entitles me to call myself a feminist than being against anti-semitism entitles me to call myself Jewish. A similar argument is made in Peller, G., “Race Consciousness” (1990) Duke L.J. 758.Google Scholar
Also, I do not claim any privileged status in my own efforts to confront sexism, racism and homophobia. Being brought up and living in a sexist, racist and homophobic society means that my own identity is tied in with sexist, racist and homophobic practices and beliefs. However, as I try to show in the essay, this does not mean that I am forever condemned to be sexist, racist and homophobic or that I can miraculously reach a state of mind or modus vivendi that is purged of all sexist, racist and homophobic traces. The challenge is to recognise those constraints and work to confront them transformatively.
6. Whereas MacKinnon insists that “[postmodernism… is predicated on obscuring… thisfunction of language in social hierarchy” (123), I maintain that this function is a mainstay of a postmodernist appreciation of discourse. However, less hangs onwhether MacKinnon and I disagreeover what to call this view of discourse than on the more significantdifferences over what it means to adopt such a discursive understanding of social reality.
7. For a good account of the failure of the classical paradigm of truth, see Allen, B., Truth in Philosophy (Cambridge, MA: Harvard University Press, 1993).Google Scholar
8. Shakespeare, Romeo and Juliet, Act 1, Sc. iv. I agree with Dr Johnson that only mental experiences are real. Kicking a stone with great force, he recoiled and declared “I refute it thus.”
9. Lyotard, J-F., The Postmodern Condition, trans. Bennington, G. & Massumi, B. (Minneapolis: University of Minnesota Press, 1984) at 24.Google Scholar
10. See Rorty, R., “Solidarity or Objectivity?” in Rajchman, J. & West, C., eds, Post-Analytic Philosophy (New York: Columbia UniversityPress, 1985) 3 at 5–7 Google Scholar and Rorty, R., Philosophy and the Mirror of Nature (Princeton: Princeton University Press,1979) at 357–94.Google Scholar
11. Marcus, S., “Fighting Bodies, Fighting Words: A Theory and Politics of Rape Prevention” in Butler, J. & Scott, J., eds, Feminists Theorize the Political (New York: Routledge, 1992) 385 at 388.Google Scholar While I have used the term ‘pornography’ for the sake of convenience, there is something very essentialist and judgmental about it: it connotes whatis already considered to be harmful and deviant. It would be more useful and effective to talk about sexually-explicit representations which, like any other kind of representations, is neither intrinsically good or bad. What is and is not a pornographic representation (as opposed to, say, erotica) is acontext-specific and constantly contestable political assessment; it does not have the universalized and incontestable thereness of traditional assertions. See Frug, M.J., Postmodern Legal Feminism (New York: Routledge, 1992).Google Scholar
12. Romano, Carlin, “Between the Motion and the Act” The Nation (15 Nov. 1993) 563.Google Scholar
13. Presumably, this is a veiled reference to Ronald Dworkin and Nat Hentoff, both regular contributors to the New York Review of Books and both committed to a position that is opposed to censorship. See Ronald Dworkin, “Women and Pornography“ New York Review of Books (21 Oct. 1993) 36. If this is intended to be funny, one can only assume that Dworkin and Hentoff were not amused. Indeed, Hentoff published a condemnation of Romano’s tactics.
14. As quoted in Lacayo, R., “Assault by Paragraph” Time (17 Jan. 1994) 37.Google Scholar A sampling of the letters, along with Romano's response, can be found in The Nation (27 Dec. 1993) at 786 and 816. Stanley Fish is the primary proponent of the view that “[f]ree speech … is not an independent value but a political prize” and that “free-speech principles don't exist except as a component in a bad argument in which such principles are invoked to mask motives that would not withstand close scrutiny.” Fish, S., There’s No Such Thing as Free Speech (New York: Oxford University Press, 1994) at 102 and 111–12.Google Scholar
15. As quoted in Lacayo, supra note 14.
16. Supra note 12 at 568.
17. Ibid. This belief in a cerebral life that is lived only internally, with no effects or consequences for the outside world, is the stuff of “Cartesian fantasy.“ See Fish, supra note 14 at 132.
18. See Hobbes, T., Leviathan, MacPherson, C.B., ed. (London: Penguin, 1985, c. 1968) at 101 Google Scholar and Locke, J., An Essay Concerning Human Understanding, Pringle-Pattison, A., ed. (Oxford: Clarendon Press, 1924)Google Scholar Bk.3, ch.2. For a more modern and sophisticated account of liberal discourse, see Dworkin, R., A Matter of Principle (Cambridge, MA: Harvard University Press, 1985) at 181–204.Google Scholar
19. Pocock, J.G.A., Politics, Language and Time (New York: Atheneum, 1973) at 15.Google Scholar See, also, Peller, G., “The Metaphysics of American Law” (1985) 73 Cal. L. Rev. 1151.Google Scholar This insight is not new, but the older view did not pursue the political implications of social construction through discourse. See Whorf, B.L., Language, Thought and Reality, Carroll, J., ed. (Cambridge: Technology Press of Massachusetts Institute of Technology, 1956).Google Scholar
20. See, for example, Spender, D., Man Made Language, 2nd ed. (London: Routledge & Kegan Paul, 1985).Google Scholar
21. There is a reading of this statement that interprets it to mean that pornography, like rape, is a sex act, but that it is not the same kind of sex act as rape. However, in the context of Only Words generally and MacKinnon’s overall argument, it is difficult to sustain this reading with any confidence.
22. The issue of what the statement that ‘all men are potentialrapists’ means and implies is of greater significance in any broader evaluation of MacKinnon’s work. See below in text at pages 119–121.
23. See Delgado, R., “Words That Wound: A Tort Action For Racial Insults, Epithets, and Name Calling” (1982) 17 Harv. C.R-C.L. L. Rev. 133 Google Scholar and Matsuda, M., “Public Response To Racist Speech: Considering The Victim’s Story” (1989) 87 Mich. L. Rev. 2320.CrossRefGoogle Scholar
24. Nietzsche, F., The Will to Power, trans. Kaufman, W. & Hollingdale, R.J (London: Wiedenfeld & Nicolson, c. 1967)Google Scholar
25. Ibid.
26. MacKinnon, State, supra note 3 at 151. See, also, Dworkin, A., Intercourse (New York: Free Press, 1987)Google Scholar and Littleton, C., “Feminist Jurisprudence: The Difference Method Makes” (1989) 41 Stan. L. Rev. 751.CrossRefGoogle Scholar
27. Feminism, supra, note 3 at 3. On the whole idea of sex as violence, see MacKinnon, State, supra note 3 at 172–83. Her account is almost completely heterosexual in focus and implication. Gay, lesbian or bisexual relations are some secondary and derivative other. In condemning the barbarity of heterosexuality, she manages to privilege it as the essence of sexual relations and the hallmark of human identity.
28. Feminism, supra note 3 at 12.
29. For a different account of this claim from a heterosexual maleperspective, see Kennedy, D., Sexy Dressing Etc. (Cambridge, MA: Harvard University Press, 1993)at 137.Google Scholar
30. Butler, J., Gender Trouble: Feminism and the Subversion of Identity (New York: Routledge, 1990) at 28.Google Scholar
31. Reaume, D., “The Social Construction of Women and the Possibility of Change: Unmodified Feminism Revisited” (1992) 5 Can. J. of Women and Law 463 at 472.Google Scholar
32. See Feminism, supra note 3 at 205. A similar view is offered in Dworkin, A., Right-Wing Women (New York: G.P. Putnam, 1982) at 227–31Google Scholar and Intercourse, supra note 26 at 143. For a defence of a ‘weak‘ version of MacKinnon’s essentialism, see Rapaport, E., “Generalizing Gender: Reason and Essence in the Legal Thought of Catharine MacKinnon” in Antony, L. & Witt, C., eds, A Mind of One’s Own: Feminist Essays on Reason & Objectivity (Boulder: Westview Press, Inc., 1993) 127.Google Scholar
33. See Jackson, K., “Catharine MacKinnon and Feminist Jurisprudence: A Critical Appraisal” (1992) 19 J. Law & Soc’y 195 at 202.CrossRefGoogle Scholar
34. I deliberately use ‘sex trade workers’ instead of ‘prostitution’ as the latter carries too much moral baggage. On the debate generally, see Pateman, C., The Sexual Contract (Stanford, CA: Stanford University Press, 1988);Google Scholar Pateman, C., “Defending Prostitution: Charges against Ericsson” in Sunstein, C., ed., Feminism & Political Theory (Chicago: University of Chicago Press, 1990) 201;Google Scholar Shrage, L., “Should Feminists Oppose Prostitution?” in Sunstein, , ed., ibid, at 185;Google Scholar Giobbe, E., “Confronting the Liberal Lies About Prostitution”; in Leidholt, D. & Raymond, J., eds, The Sexual Liberals and the Attack on Feminism (New York: Pergamon Press, 1990) 67;Google Scholar and Baldwin, M., “Split at the Root: Prostitution And Feminist Discourses Of Law Reform” (1992) 5 Yale J. of L. and Feminism 47.Google Scholar
35. Radin, M., “Market-Inalienability” (1987) 100 Harv. L. Rev. 1849 at 1916.CrossRefGoogle Scholar
36. Freeman, J., “The Feminist Debate Over Prostitution Reform: Prostitutes’ Rights Groups, Radical Feminists, and the (Im)possibility of Consent” (1990) 5 Berk. Women’s L.J. 75 at 76.Google Scholar
37. See Smart, C., “Law’s Power, The Sexed Body, and Feminist Discourse” (1990) 17 J. Law & Soc’y 194 at 208.CrossRefGoogle Scholar
38. See MacKinnon, , Feminism, supra note 3 at 88, 91, 160, 195, 83 and 22.Google Scholar See, also, Colker, R., “Feminism, Sexuality and Self: A Preliminary Inquiry into the Politics of Authenticity” (1988) 68 Boston U. L. Rev. 217 (1988).Google Scholar
39. Ibid, at 74 and 75.
40. Rorty, R., “Feminism And Pragmatism” (1990) 30 (2) Mich. Q. Rev. 231 at 249.Google Scholar
41. Feminism, supra note 3 at 218.
42. Frug, supra note 11 at 107. For a powerful and eloquent, if a little naive, antidote to MacKinnon’s pessimism, see Tisdale, S., Talk Dirty to Me: A Personal Philosophy of Sex (New York: Doubleday, 1994).Google Scholar
43. It is with some obvious hesitation that I approach the personal aspects of MacKinnon’s life. However, I refer only to facts and circumstances that she herself has put into the public forum through interviews and statements that she has made. After all, MacKinnon has done much to popularise the feminist credo that “the personal is political.” On the relation between the lives of writers and their writings, see Hutchinson, supra note 5.
44. Masson, as quoted in Smith, , “Love Is Strange: The Crusading Feminist and The Repentant Womanizer” New York (22 March 1993).Google Scholar
45. MacKinnon, as quoted in Smith, ibid.
46. For an account of MacKinnon’s efforts to introduce a law against pornography, see Dworkin, A. & MacKinnon, C. Pornography and Civil Rights: A New Day for Women’s Equality (Minneapolis, MN: Organizing Against Pornography, 1988).Google Scholar
47. For a general critique of such causal claims about pornography, see Burstyn, V., ed., Women Against Censorship (Vancouver: Douglas & Mclntyre, 1985);Google Scholar Segal, L. & Macintosh, M., eds, Sex Exposed: Sexuality and the Pornography Debate (London: Virago Press, 1992)Google Scholar and Gibson, P. & Gibson, R., eds, Dirty Looks: Women, Pornography, Power (London: BFI Publishing, 1993).Google Scholar
48. See Gillan, P., “Therapeutic Uses of Obscenity” in Dhavan, R. & Davies, C., eds, Censorship and Obscenity (London: M. Robertson, 1978).Google Scholar
49. See McCormack, Thelma, “If Pornography is the Theory, Is Inequality the Practice?” (1993) 23 Phil, of Soc. Sc. 298.CrossRefGoogle Scholar
50. See Quistgaard, Bettina, “Pornography, Harm and Censorship: A Feminist (Re)Vision of the Right to Freedom of Expression” (1993) 52 U. Tor. L.J. 132.Google Scholar
51. See Itzin, C., ed., Pornography: Women, Violence and Civil liberties (Oxford: Oxford University Press, 1992) at 201–398.Google Scholar
52. West, R., “The Feminist-Conservative Anti-Pornography Alliance and the 1986 Attorney General’s Commission on Pornography Report” [1987] A.B.F. Res. J. 681 at 696Google Scholar. See, also, Munt, S., ed., New Lesbian Criticism: Literary and Cultural Readings (New York: Harvester Wheatsheaf, 1992).Google Scholar
53. Above in text at pages 120–124.
54. See Fish, supra note 14 at 31–50 and Hutchinson, supra note 5 at 1195–1202.
55. State, supra note 3 at xiii. See, also, Feminism, supra note 3 at 26.
56. See Downs, D., The New Politics of Pornography (Chicago: University of Chicago Press, 1989).Google Scholar
57. R. v. Butler, [1992] 1 S.C.R. 452.
58. R. v. Keegstra, [1990] 3 S.C.R. 697. In both thiscase and Butler, MacKinnon contributed to the brief of the Women’s Legal Education and ActionFund (LEAF) which took a line that was almost pure MacKinnon in its general structure and intellectualthrust.
59. I do not want to be read as saying that Canada is no different from the United States. I think that MacKinnon is probably right in thinking that things are not as bad in Canada, but this is more a matter of degree than kind. It is entirely too romantic to suggest that Canadians are not in thrall to ‘the marketplace of ideas’ and its attendant ideology. See Hutchinson, A., Waiting for CORAF: A Critique of Law and Rights (forthcoming, 1995).Google Scholar
60. Keegstra, supra note 58 at 733–34 and 755–57 per Dickson C.J. and Butler, supra note 57 at 490–93 per Sopinka J. However, the court did accept mat there was a causal connection between pornography and harm to women. See Hogg, P., Constitutional Law of Canada, 3rd ed. (Toronto: Carswell, 1992) at 977–79.Google Scholar In Keegstra, the minority was even more dismissive of equality concerns and held that the Charter’s equality provision was not applicable at all to speech matters. Ibid, at 804 per McLachlin J. For a different reading of Keegstra, see Fish, supra note 14 at 104–05.
61. Cossman, Brenda, “Feminist Fashion or Morality in Drag?: The Sexual Subtext of The Butler Decision” (Feb. 1994). Unpublished.Google Scholar
62. Ibid, at 2.
63. Bell, D.,And We are Not Saved: The Elusive Quest for Racial Justice (New York: Basic Books, 1987) at 25–74, 140–61 and 215–35.Google Scholar
64. See Glad Day Bookshop Inc. v. Deputy Minister of National Revenue (Customs & Excise) (July 14,1992), Doc. 619/90 (Ont. Gen. Div.) and R. v. Scythes (January 16,1993), Paris J. (Ont. Prov. Div.). For a general discussion, see Cossman, supra note 61 and D. Barclay, “Obscenity Chill—Artists In A Post-Butler Era” (1993) 16 Fuse 2. The main action has been through customs seizures rather than criminal prosecutions. See S. Chernos, “Little Sister’s Still Up Against Big Brother”(Dec 1993) This Magazine 6 and R. Hough, “Degrading Customs” Globe and Mail (12 Feb. 1994) D-l and 5.
65. Rorty, supra note 10 at 392. Like law and legal theory, philosophyis an authoritarian business. See Walzer, M., “Philosophy and Democracy” (1981) 9 Pol. Theory 379.Google Scholar
66. This is a reference to the familiar story about the universe being“turtles all the way down” which has become something of a chestnut in jurisprudential contexts. See Singer, J., “Radical Moderation” [1985] A.B.F. Res. J. 329 at 329–30.Google Scholar For a more extended account of the attitudes and beliefs that comprise postmodernism, see A. Hutchinson, Swimming With Turtles: Law, Politics and Postmodernism (forthcoming).
67. Vance, C., “Feminist Fundamentalism—Women Against Images” (1993) 29 Art In America 36.Google Scholar
68. See, for example, Goodrich, P., “Sleeping With The Enemy: An Essay on the Politics of Critical Legal Studies in America” (1993) 68 N. Y. U. L. Rev. 389 at 396.Google Scholar But what would amount to a truly radical politics that did not slide into the safety of pipe-dreaming or the terror of armed struggle? For an outline of how politics can be both visionary and postmodern, see Hutchinson, A., “Doing The Right Thing? Toward A Postmodern Politics” (1992) 26 L. & Soc’y Rev. 773.CrossRefGoogle Scholar
69. See Hunt, Lynn, ed., The Invention of Pornography: Obscenity and the Origins of Modernity 1500–1800 (New York: Zone Books, 1993).Google Scholar
70. Cossman, supra note 61 at 35.
71. Salinger, J.D., The Catcher in the Rye (New York: Modern Library, 1945).Google Scholar
72. Feminism, supra note 3 at 218.
73. Kennedy, supra note 29 at 184.
74. While humour can be socially disruptive and politically liberating, it is too often the chosen medium for cowards and bigots to make slurs that are not as convenientlyor acceptably expressed in other modes of speech. It is a disciplinary code and any failure to laugh is often met by the derisory—“don’t you have a sense of humour?” See Cottom, D., Text and Culture: The Politics of Interpretation (Minneapolis: University of Minnesota Press, 1989) at 3–48.Google Scholar