Equality vs. Freedom

"In societies governed by the rule of law, law is typically a status quo instrument; it does not usually guarantee rights that society is predicated on denying. In this context equality law is unusual: social equality does not exist, yet a legal guarantee of equality does."

So writes Catharine MacKinnon, as cited by Thomas Nagel in a TLS review of her collection of writings, "Women's Lives, Men's Laws." Nagel describes her as "an emblematic figure in American life and law."

For many years she and her late collaborator Andrea Dworkin were the standard-bearers of anti-liberal feminism, and as a lawyer, writer and teacher she has had an explosive impact. She comes from the Left, and her anti-liberalism, like the anti-liberalism of Marx, derides individual rights as an ideological mask for the protection of existing structures of domination. In Marx’s case, the targets were rights of private property and due process, instruments of class domination. In MacKinnon’s case, they are freedom of speech and the right to privacy, and the domination they uphold is sexual. Her career has been dedicated to attacking male dominance, not as a denial of individual rights to women, but as a deep systemic inequality that defines the difference between the sexes and the meaning of sex.

And, as he makes clear, she is not entirely a peripheral figure, though she certainly is on the periphery. Her work has shifted U.S. antidiscrimination laws in certain directions she approves. And, Nagel says, it raises important questions that the author herself has not given answers for.

MacKinnon’s anti-liberal credo needs to be addressed seriously. It seems to me to require a moral justification that she does not even attempt to provide. It is not enough, in arguing for the deployment of state power, to point to deep social inequalities and say that this is a way to attack them. Not only do the means have to be effective, but they have to respect limits on legitimate invasion by the state of the personal autonomy of each individual within it. This too is a requirement of equal treatment, though it is individualistically defined. If it is given no weight and automatically overridden by claims of group inequality and group subordination, we will get tyranny in the name of equality – a familiar result. Catharine MacKinnon should either explain why her contempt for rights of privacy, autonomy and freedom of expression does not have this consequence, or else explain why it is acceptable.