No CrossRef data available.
Article contents
Postmodern Pride: Mary Joe Frug's Manifesto
Published online by Cambridge University Press: 27 December 2018
Abstract
An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.
- Type
- Review Essay
- Information
- Copyright
- Copyright © American Bar Foundation, 1994
References
1 My choice of words here is a play on the title of a book 1 discuss later in some detail, Judith Butler's Gender Trouble: Feminism and the Subversion of Identity (New York: Routledge, 1990) (“Butler, Gender Trouble”). Google Scholar
2 I am appropriating the metaphor “constellation” from the title of Richard Bernstein's very helpful book on major debates in contemporary philosophy, The New Constellation 8 (Cambridge, U.K.: Polity Press, 1991), which he in turn appropriates from the writings of Walter Benjamin and Theodor Adorno, as explained by Martin Jay in Adorno 14–15 (Cambridge, Mass.: Harvard University Press, 1984). Jay states that Adorno and Benjamin used this term to refer to a “juxtaposed rather than integrated cluster of changing elements that resist reduction to a common denominator, essential core, or generative first principle.”Google Scholar
3 See infra p. 323 where I refer to Mary Joe's device of constructing possible “readers” of contract law texts.Google Scholar
4 Frug defined irony as “a stylistic method of acknowledging and challenging a dominant meaning, of saying something and simultaneously denying it” (at 127).Google Scholar
5 Michel Foucault, a thinker whose influence on contemporary philosophy and law has been extraordinary, stated in the context of an interview about his work: “My point is not that everything is bad, but that everything is dangerous, which is not exactly the same thing as bad. If everything is dangerous, then we always have something to do.” See Foucault, “On the Genealogy of Ethics: An Overview of Work in Progress,” in Paul Rabinow ed. The You.-cault Reader 340, 343 (London: Penguin Books, 1986).Google Scholar
6 I am thinking here of some of the language Mary Joe employed in the incomplete essay in chapter 8, “A Postmodern Legal Manifesto,” at, e.g., 151. The essay in chapter 7, “Rescuing Impossibility Doctrine: A Postmodern Feminist Analysis of Contract Law,” is an extremely original work which provokes the disturbing thought that legal education and writing are profoundly implicated in the reinforcement of strict gender boundaries. At the same time, it is a hilarious and sexually tantalizing text, as, for example, she writes: “The tone of the Posner/Rosenfield article strikes me as markedly masculine. The article bristles with such cockiness that some of the authors' relatively commonplace law review language takes on the overtones of locker-room swagger as I read it” (at 117).Google Scholar
7 See Alison Jagger, Feminist Politics and Human Nature (Sussex, Eng.: Rowman & Allenheld, 1983).Google Scholar
8 The first three essays, grouped under the heading “Feminist Doctrine,” are concise, informative, and lively interpretations of the debates that have been dominant in feminist legal circles for the past decade or so.Google Scholar
9 Some of these are rights that black women married under customary law in South Africa do not enjoy. See Thandabantu Nhlapo, “Women's Rights and the Family in Traditional and Customary Law” m Susan Bazilli, ed.,Putting Women on the Agenda 111 (Johannesburg: Raven Press, 1991).Google Scholar
10 For a discussion of this in the American context, see Eleanor Maccoby & Robert Mnookin, with Charlene Depner & H. Elizabeth Peters, Dividing the Child: Social and Legal Dilemmas of Custody (Cambridge, Mass.: Harvard University Press, 1992). In the Canadian context, where this standard is also employed, see Susan Boyd, “Child Custody and Working Mothers,” and Jean McBean, “The Myth of Maternal Preference in Child Custody Cases,” both in Sheilah Martin & Kathleen Mahoney, eds., Equality and Judicial Neutrality (Toronto: Carswells, 1987).Google Scholar
11 The classic article articulating this view is by Wendy Williams, “The Equality Crisis: Some Reflections on Culture, Courts and Feminism,” 7 Women's Rts. L. Rev. 175 (1982).Google Scholar
12 One of the most powerful and evocative essays on this issue is Robin West's controversial and complex “The Difference in Women's Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory,” 3 Wis. Women's Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory,” 3 Wis Women's LJ 81 (1987).Google Scholar
13 For an argument based on women's difference regarding the practice of law, see Carrie Menkel-Meadow, “Portia in a Different Voice: Speculations on a Women's Lawyering Process,” 1 Berkeley Women's L.J. 39 (1985).Google Scholar
14 See, e.g., Christine Littleton's advocacy of limited accommodation of women's reproduction-related differences in “Reconstructing Sexual Equality,” 75 Col. L. Rev. 1279 (1987).CrossRefGoogle Scholar
15 Carol Gilligan, In A Different Voice (Cambridge, Mass.: Harvard University Press, 1982) (“Gilligan, Different Voice”). Google Scholar
16 This phenomenon is discussed in detail by Joan Williams in “Deconstructing Gender,” 87 Mich. L. Rev. 797, 802–13 (1989).CrossRefGoogle Scholar
17 Catharine A. MacKinnon, “Difference and Dominance: On Sex Discrimination,”in Catharine A. MacKinnon, Feminism Unmodified 32, 34 (Cambridge, Mass.: Harvard University Press, 1987) (“MacKinnon, Feminism Unmodified”). Google Scholar
18 Id. at 40.Google Scholar
19 For reasons that follow, I believe Mary Joe Frug's approach reveals that MacKinnon does in fact depend on a rigid set of differences between men and women, they are now just located in the concept of disadvantage.Google Scholar
20 This is discussed in more detail in Ruth Colker, “Anti-Subordination Above All: Sex, Race, and Equal Protection,” 61 N.Y.U.L. Rev. 1003 (1986).Google Scholar
21 This may sound harsh but that is how I read MacKinnon's reaction to theories like Gilligan's; see MacKinnon, Feminism Unmodified 38–39. Mary Joe Frug, in a footnote to a discussion of “cultural feminism”—the label used to signify Gilligan-inspired advocacy of difference theory—shares MacKinnon's concerns:Google Scholar
Read and cited as an exaltation of relationships, of the relational self, of the self in relationship, a conservative interpretation of [In a Different Voice] … has not only validated humanistic skills and values often linked with women but it has also promoted, as if she were a new invention, a model of female subject which has been the traditional excuse for the oppression women have suffered. (At 10 n.24)Google Scholar
22 But see Clare Dalton's excellent “An Essay in the Deconstruction on Contract Doctrine,” 94 Yale L.J. 997 (1985).CrossRefGoogle Scholar
23 Jacques Derrida, “Structure, Sign and Play in the Discourse of the Human Sciences,” m Derrida, Writing and Difference, trans. Alan Bass, 278 (Chicago: University of Chicago Press, 1978).Google Scholar
24 Fredric Jameson, “Postmodernism, Or the Cultural Logic of Late Capitalism,” 146 New Left Rev. 53 (1984); see also id., “Postmodernism and Consumer Society,”in Hal Foster, ed., The Anti'Aesthetic 111,112–13 (Port Townsend, Wash.: Bay Press, 1983), where Jameson states:Google Scholar
[I]t is not just another word for the description of a particular style. It is also, at least in my use, a periodising concept whose function is to correlate the emergence of new formal features in culture with the emergence of a new type of social life and a new economic order—what is often euphemistically called modernization, postindustrial or consumer society, the society of the media or the spectacle, or multinational capitalism …. [T]he new postmodernism expresses the inner truth of that newly emergent social order of late capitalism.Google Scholar
25 Jean Baudrillard, Simulations, trans. Paul Foss, Paul Patton, & Philip Beitchman (New York: Semilotext(e), 1983). See also id., “Simulacra and Simulations,” in Mark Poster, ed., Jean Baudrillard: Selected Writings 166 (Stanford, Cal.: Stanford University Press, 1988).Google Scholar
26 Andreas Huyssen, After The Great Divide: Modernism, Mass Culture, Postmodernism 182–83 (Bloomington: Indiana University Press, 1986):CrossRefGoogle Scholar
[T]he question of historical continuity or discontinuity simply cannot be adequately discussed in terms of such an either/or dichotomy. To have questioned the validity of such dichotomous thought patterns is of course one of the major achievements of Derridian deconstruction. But the poststructuralist notion of endless textuality ultimately cripples any meaningful historical reflection on temporal units shorter then, say, the long wave of metaphysics from Plato to Heidegger or the spread of modernity from the mid-19th century to the present. The problem with such historical macro-schemes, in relation to postmodernism, is that they prevent the phenomenon from even coming into focus.Google Scholar
27 Id., generally ch. 10, “Mapping the Postmodern” at 178 (arguing that deconstruction, properly understood, is an aspect of the modem project and not the postmodern one).Google Scholar
28 Id. at 186.Google Scholar
29 Jean-Francois Lyotard, The Postmodern Condition: A Report on Knowledge, trans. Geoff Bennington & Brian Massumi, 81–82 (Minneapolis: University of Minnesota Press, 1984) (“Lyotard, Postmodern Condition”). In more concrete terms, Lyotard has stated:CrossRefGoogle Scholar
One can note a sort of decay in the confidence placed by the last two centuries in the idea of progress. This idea of progress as possible, probable or necessary was rooted in the certainty that the development of the arts, technology, knowledge and liberty would be profitable to mankind as a whole.Google Scholar
After two centuries, we are more sensitive to signs that signify the contrary. Neither economic nor political liberalism, nor the various Marxisms, emerge from the sanguinary free from the suspicion of crimes against mankind. I use the name Auschwitz to point out the irrelevance of empirical matter, the stuff of recent past history, in terms of the modem claim to help mankind to emancipate itself. What kind of thought is able to sublate (Aufheben) Auschwitz in a general (either empirical or speculative) process towards a universal emancipation?Google Scholar
See his essay “Defining the Postmodern,” in Lisa Appignanesi, ed., Postmodernism 7, 8–9 (London: Free Association Books, 1989).Google Scholar
30 While the same writers often make both arguments, there is no necessary relationship between the two. Feminists, for example, have long been critical of the privileging of rationality and industrialization in the Enlightenment but have been less involved in the production of what I have called the external critique strand of postmodernism.Google Scholar
31 Ironically, given the alleged postmodern hostility to claims about truth.Google Scholar
32 See generally Steven Best & Douglas Kellner, Postmodern Theory: Critical Interrogations 1–33 (New York: Guilford Press, 1991).Google Scholar
33 Charles Jencks, What h Postmodernism? 48 (New York; St. Martin's Press, 1987); “If there is any ultimate control in this situation it is not achieved through ownership, but through the ability to manipulate knowledge.”Google Scholar
34 Id. at 43–44:Google Scholar
In 1956 for the first time in the USA the number of white collar workers outnumbered blue collar workers, and by the late 1970s America had made the shift to an information society with relatively few people—13 percent—involved in the manufacture of goods. Most workers—60 percent—were engaged in what could be termed the manufacture of information. Whereas a Modem, industrialized, society depended on the mass-production of objects in a factory, the Post-Modem society, to exaggerate the contrast, depends on the segmented production of ideas and images in an office. … In a Post-Modern world, the fundamental social fact is the revolutionary growth of those who create and pass on information; or put another way, the sudden emergence of what looks like a new class, the replacement of the proletariat by the cognitariat.Google Scholar
35 Id. at 43. Jencks later elaborates on the social change that supports his reference to “taste cultures” (at 49):Google Scholar
In the United States there were seven hundred radio stations in 1950; now with only a moderate population increase there are more than nine thousand, and many of them are oriented toward specific city cultures. ABC, CBS and NBC still control the mass-market, but they are being supplemented by five thousand cable systems, more than one hundredGoogle Scholar
television channels and now, with satellite transmission, the well-equipped consumer can tune into over one hundred different stations …. Much of this is rubbish, but enough is creative and thoughtful for tastes to be genuinely deepened.Google Scholar
36 For an insightful analysis of this second issue, see Alan Hunt, “The Big Fear: Law Confronts Postmodernism,” 35 McGill L.J. 507, 517–19 (1990). While, of course, postmodernism offers specific and new challenges to law, I agree with Hunt that the critique of legal centralism is not a novel one (referring to American legal realism, Marxism, the law and society movement, and early critical legal studies as progenitors (at 519)).Google Scholar
37 Michel Foucault, “Nietzche, Genealogy, History” in Donald F. Bouchard, ed., Language, Counter-Memory, Practice, trans. Donald F. Bouchard & Sherry Simon, 139 (Ithaca, N.Y.: Cornell University Press, 1977).Google Scholar
38 Id. at 142.Google Scholar
39 Id. at 154.Google Scholar
40 This is defined as “a kind of attempt to emancipate historical knowledges from that subjection, to render them, that is, capable of opposition and of struggle against the coercion of a theoretical, unitary, formal and scientific discourse.” See Michel Foucault, “Two Lectures,” in Colin Gordon, ed., Power/Knowledge, trans. Colin Gordon, Leo Marshall, John Mephan, & Kate Soper, at 78, 85 (New York: Pantheon Books, 1980).Google Scholar
41 See Michel Foucault, The History of Sexuality, Vol. 1: An Introduction, trans. Robert Hurley (New York: Vintage Books, 1980) (“Foucault, History of Sexuality”); id., Discipline and Punish, trans. Alan Sheridan (New York: Vintage Books, 1979) (“Foucault, Discipline and Punish”) and id., Madness & Civilization trans. Richard Howard (New York: Vintage Books, 1990).Google Scholar
42 Foucault, Power/Knowledge 81–83.Google Scholar
43 Lyotard, Postmodern Condition xxiv (cited in note 29). At 37 he states: “The grand narrative has lost its credibility, regardless of what mode of unification it uses, regardless of whether it is a speculative narrative or a narrative of emancipation.”Google Scholar
44 The two narratives he focuses on are that of emancipation (knowledge in service of freedom and liberty of the people) and that of speculation (knowledge as source of truth).Google Scholar
45 Cited in note 41.Google Scholar
46 For a brilliant application of this theory to the issue of the history of “women,” see Joan Wallach Scott, Gender and the Politics of History (New York: Columbia University Press, 1988).Google Scholar
47 Foucault, History of Sexuality 10–13.Google Scholar
48 Id at 10.Google Scholar
49 Id. at 82.Google Scholar
50 Thus he states: “In political thought and analysis, we still have not cut off the head of the king.”Id. at 88–89.Google Scholar
51 Id. at 89.Google Scholar
52 Id. at 92. In Foucault's discussion of power, his rich and elaborate language generates an image of an endlessly spun web (id. at 92–93): [P]ower must be understood in the first instance as the multiplicity of force relations immanent in the sphere in which they operate and which constitute their own organization; as the process which through ceaseless struggles and confrontations, transforms, strengthens, or reverses them; as the support which these force relations find in one another, thus forming a chain or a system, or on the contrary, the disjunctions and contradictions which isolate them from one another; and lastly, as the strategies in which they take effect, whose general design or institutional crystallization is embodied in the state apparatus, in the formulation of the law, in the various social hegemonies.Google Scholar
53 Disciplining takes many forms and is discussed id. at 140–44 (referring to the structures and practices in military institutions, secondary schools, etc.).Google Scholar
54 As, e.g., in the eugenics movement. See id. at 145–46, wherein Foucault argues that these new modalities of power in relation to sex created “infinitesimal surveillances, permanent controls, extremely meticulous orderings of space, indeterminate medical or psychological examinations, to an entire micropower concerned with the body. But it gave rise as well to comprehensive measures, statistical assessments, and interventions aimed at the entire social body or at groups taken as a whole.” Another example is the structuring of space so as to allow “viewing” of the subject by others—as in prisons (explored in detail in Foucault, Discipline and Punish (cited in note 41)).Google Scholar
55 Id. at 144.Google Scholar
56 In “Two Lectures,”Power/Knowledge 93 (cited in note 40), Foucault explains this relationship in detail (emphasis in original): [I)n a society such as ours, but basically in any society, there are manifold relations of power which permeate, characterize and constitute the social body, and these relations of power cannot themselves be established, consolidated nor implemented without the production, accumulation, circulation and functioning of a discourse. There can be no possible exercise of power without a certain economy of discourses of truth which operates through and on the basis of this association. We are subjected to the production of truth through power and we cannot exercise power except through the production of truth …. [W]e are forced to produce the truth of power that our society demands, ofGoogle Scholar
which it has need, in order to function: we must speak the truth; we are constrained or condemned to confess or to discover the truth. Power never ceases its interrogation, its inquisition, its registration of truth: it institutionalizes, professionalizes and rewards its pursuit.Google Scholar
57 Id. at 106–7 (emphasis in original).Google Scholar
58 Lyotard, Postmodern Condition 15 (cited in note 29).Google Scholar
59 Foucault states in The History of Sexuality (at 96):Google Scholar
[T]here is a plurality of resistances, each of them a special case: resistances that are possible, necessary, improbable; others that are spontaneous, savage, solitary, concerted, rampant, or violent; still others that are quick to compromise, interested, or sacrificial; by definition, they can only exist in the strategic field of power relations …. [They] are distributed in irregular fashion: the points, knots, or focuses of resistance are spread over time and space at varying densities, at time mobilizing groups or individuals in a definitive way, inflaming certain points of the body, certain moments in life, certain types of behavior.Google Scholar
60 Foucault, Power/Knowledge 98.Google Scholar
61 In “Truth and Power,”id. at 109, 117, Foucault explains: “One has to dispense with the constituent subject, to get rid of the subject itself, that's to say, to arrive at an analysis which can account for the constitution of the subject within a historical framework.”Google Scholar
62 Butler, Gender Trouble 38 (cited in note 1): “Only when the mechanism of gender construction implies the contingency of that construction does ‘constructedness’per se prove useful to the political project to enlarge the scope of possible gender configurations.”Google Scholar
63 Id. at x-xi.Google Scholar
64 Id. at 1. Although she does not deal with this point, the logic of Butler's critique leads to a rejection of modern democratic theory, and not just identity politics. At 5–6 she asks whether we ever should extend representation to subjects constituted through the exclusion of other subjects and what relations of domination and exclusion are inadvertently sustained when representation becomes the sole focus of politics. She then adds that representation politics only makes sense when the subject woman is nowhere presumed. The lingering question however remains: Is that possible? Can we think instability and incoherence? Do we not reinscribe coherence in the attempt to deconstruct it? Do we not need to radically rethink what thought is to achieve this thought?Google Scholar
65 Id. at 4.Google Scholar
66 Id.Google Scholar
67 Id. at 8–9. She is critical of Foucault for “maintaining a body prior to its cultural inscription” which assumes a “materiality prior to signification and form”id at 130).Google Scholar
68 Id. at 24–25.Google Scholar
69 Id. at 132–33.Google Scholar
70 Butler discusses this example in her new book. Bodies That Matter 7–8 (New York: Routledge, 1993) (“Butler, Bodies That Matter”):Google Scholar
Consider the medical interpellation which … shifts an infant from an “it” to a “she” or a “he,” and in that naming, the girl is “girled,” brought into the domain of language and kinship through the interpellation of gender. But that “girling” of the girl does not end there, on the contrary, that founding interpellation is reiterated by various authorities and throughout various intervals of time to reenforce or contest this naturalized effect. The naming is at once the setting of a boundary, and also the repeated inculcation of a norm.Google Scholar
71 Butler, Gender Trouble 139–40.Google Scholar
72 A recent letter to “Ask Beth; Sense about Sex,” an advice column in the Boston Globe, makes this point starkly (“Teen Worries about His Sexuality,”Boston Globe, 17 March 1994, at 67):Google Scholar
Dear Beth:Google Scholar
I'm a male, 14 years old. Ever since 1 was little kids have teased me about acting like a girl. I never was very muscular or good at sports. I'm good at and 1 like bright clothes and the other kids say 1 dress “girlish.” 1 like girls a lot, but kids call me gay. Am 1?Google Scholar
73 In Gender Trouble Butler appeared to have faith in this (at 32): “The very complexity of the discursive map that constructs gender appears to hold out the promise of an inadvertent and generative convergence of these discursive and regulatory structures. If the regulatory fictions of sex and gender are themselves multiply contested sites of meaning, then the very multiplicity of their construction holds out the possibility of a disruption of their univocal posturing” (emphasis added). In her more recent Bodies That Matter, Butler takes the position that this would not be sufficient for two reasons. First, recognition of the multiplicity of sex does not inevitably lead to the conclusion that there is no such thing as a “naturally sexed body” in the beginning. Second, recognition might be a function of an identity claim (such as “queer”) andGoogle Scholar
all claims to identity (however previously suppressed) are ultimately claims that depend on exclusion of others. Mere recognition of self-defined difference does not aid in the politically essential work of negotiating among differences (at 114).Google Scholar
74 In Bodies That Matter, Butler qualifies the enthusiasm she articulated in Gender Trouble for the subversive effects of drag performances. The occasion for the retreat was the fascinating and controversial film, Paris Is Burning, by Jennie Livingstone, which was about New York city's drag balls with gay African Americans or Latino males as the contestants. Butler states (Bodies That Matter 125):Google Scholar
I want to underscore that there is no necessary relation between drag and subversion, and that drag may well be used in the service of both the denaturalization and reidealization of hyperbolic heterosexual gender norms ….Google Scholar
… [D]rag is subversive to the extent that it reflects on the imitative structure by which hegemonic gender is produced and disputes heterosexuality's claim on naturalness and originality.Google Scholar
75 Butler, Gender Trouble 137 (emphasis in original).Google Scholar
76 Id. at 136.Google Scholar
77 Id. at 30–31.Google Scholar
78 Butler stresses in Bodies That Matter that subjects do not choose, in the voluntarist sense, to resist the normalization of sex/gender. The resistances that occur are not, therefore, analogous to civil disobedience—the refusal to recognize the legitimacy of the governing system and thus to stand outside of it. She explains (at 15): [T]he agency denoted by the performativity of “sex” will be directly counter to any notion of a voluntarist subject who exists quite apart from the regulatory norms which she/he opposes. The paradox of subjectification … is precisely that the subject who wouldGoogle Scholar
resist such norms itself enabled, if not produced, by such norms. Although this constitutive constraint does not foreclose the possibility of agency, it does locate agency as a reiterative or rearticulatory practice, immanent to power, and not a relation of external opposition to power.Google Scholar
79 Butler, Gender Trouble 145.Google Scholar
80 Mary Joe Frug appears to anticipate her reader's possible concern over the deconstruction of the category “women” and responds with characteristic humor and sophistication (at 131):Google Scholar
Skeptics tend to think, I believe, that the legal deconstruction of “woman”—in one paper or in many papers, say, written over the next decade—will entail the immediate destruction of “women” as identifiable subjects who are affected by law reform projects. Despite the healthy, self-serving respect I have for the influence of legal scholarship and for the role of law as a significant cultural factor (among many) that contributes to the production of femininity, I think “women” cannot be eliminated from our lexicon very quickly.Google Scholar
81 Frug's openness to virtually any interpretation of “women” reflects her refusal to dismiss some accounts on the basis of nonconformity with prevailing views in the feminist community. For example, in her essay in chapter 6, “Re-reading Cases: Challenging the Gender of Two Contract Decisions,” she posits a number of takes on the picture of Shirley MacLaine in Dawson, Harvey, and Henderson's contract casebook (at 91–95).Google Scholar
82 Butler, Bodies That Matter 2 (cited in note 70). In this book Butler asks questions that are similar to those posed by Mary Joe Frug in “A Postmodern Feminist Legal Manifesto” (at 125). For example, Butler writes in Bodies That Matter (at 95):Google Scholar
Specifically, how does the capacity of law to produce and constrain at once play itself out in the securing for every body a sex, a sexed position within language, a sexed position which is in some sense presumed by any body who comes to speak as a subject, an “1,” one who is constituted through the act of taking its sexed place within a language that insistently forces the question of sex?Google Scholar
83 It is useful to keep in mind that for Frug, even “webs” carry multiple meanings. In her essay on Gilligan's In In a Different Voice, in which the metaphor of the web is dominant and usually interpreted as “progressive,” Frug comments: “The web imagery … sentimentalizes the ethic of care, in that the modifying words ‘of connection’ euphemistically transform the sticky, trapping character of a spider's web into a more agreeable landing place” (at 45).Google Scholar
84 All the more extraordinary given that this was a draft and not a completed text.Google Scholar
85 In keeping with the humility that surfaces throughout the text, Frug worried about not having enough “style” to do the postmodern thing: “I confess to having considerable performance anxiety about the postmodern style myself. It may require more art, more creativity, and inspiration than I can manage.” She notes that in postmodern writing the way in which people write is understood to be as significant as what they say, and that earnest intensity need not be the only “voice” of law writing (at 127). Her text proves that humor, brazen boldness, and intellectual rigor can coexist in law as in life.Google Scholar
86 She states the dilemma and her response in characteristically direct language (at 48–49): “[T]o the extent sex differences are deployed at all, they are likely to have some effect on the construction and protection of gender. And a progressive reading does not avoid the danger of the difference strategy. But I am unable to imagine how we can advance the position of women in law without thinking of what the position of women is. The best we can do, I think, is rephrase what I have just said: we must try to think of what the positions of women are.”Google Scholar
87 Two other recent articles also chart this type of course, both in the context of rape. See Sharon Marcus, “Fighting Bodies, Fighting Words: A Theory and Politics of Rape Prevention,”in Judith Butler & Joan W. Scott, eds., Feminists Theorize the Political 385 (New York: Routledge, 1992); and Carol Smart, “Law's Power, the Sexed Body, and Feminist Discourse,” 17 J. L. & Soc'y 194 (1990).CrossRefGoogle Scholar
88 See Catharine A. MacKinnon, “Feminism, Marxism, Method, and the State: An Agenda for Theory,” in N. Keohane at al., eds., Feminist Theory: A Critique of Ideology 1, 15 (Chicago: University of Chicago Press, 1982) (citation omitted): “I think that feminism fundamentally identifies sexuality as the primary social sphere of male power.”Google Scholar