The flawed laws of inequality

Catharine MacKinnon deserves praise for her work, both in bringing to attention the still distressing level of the failure of legal systems worldwide to recognise adequately that numerous forms of violence against women are crimes, rather than domestic issues or business as usual, and for her work with Bosnian and Croatian women to receive justice for crimes committed against them in the name of "ethnic cleansing".

There are many penetrating insights in Are Women Human? MacKinnon reminds her readers of the systemic factors that work against the recognition of women as equally human and entitled to the protection of the law. For example, laws may make "an unusual or extreme form of a common violation illegal, so that what is illegal almost never happens, yet the law appears to stand against the violation".

Women's best hope under the rule of men's laws has often been to "appeal up the jurisdictional hierarchy", to find men and laws sufficiently distant from the men and laws immediately responsible for their violation. Given the glaring inadequacy of effective action against violence towards women by individual states, MacKinnon places a good deal of hope in the area of international law.

However, it is questionable whether the very real strengths of MacKinnon's position on the issues she discusses and the arguments she advances are altogether well served by this volume. It suffers from the defect of collections of papers and articles, in that there tends to be a significant amount of repetition and reiteration. Several passages do not merely cover in essence the same material and arguments as found on earlier pages, but do so in exactly the same words. The articles were originally directed at a variety of audiences, or closely linked to specific occasions or events.

Although the "dispatches from the frontline" element of some of these pieces does give them a powerful urgency, it also tends to tie them into a particular historical moment or situation. It is a pity that the material has not been further edited into a more linear form.

While it would be going too far to suggest that MacKinnon is among those who ignore history and are condemned to repeat it, there are a number of places where at the very least she omits giving even passing mention to campaigns by women from the late 19th century against sexual exploitation of women. Possibly the earliest international non-governmental organisations established and run by women were the abolitionist movements of the late 19th century, which aimed to eradicate state regulation of prostitution and to penalise the entrepreneurs profiting from the "vice trade", rather than the women themselves. Josephine Butler and other late Victorian campaigners stressed abolition rather than prohibition for exactly the reasons MacKinnon herself delineates. They also argued, unlike MacKinnon, who sees it as "demand-driven", that prostitution itself was a site where commercial interests were involved in creating a demand rather than satisfying a pre-existing one.

Might the unsatisfactory nature of the laws against sexual crimes of violence - most of them, as MacKinnon points out, formulated well before women even had a vote - owe something to their origins in laws that were about protecting and enforcing male property rights rather than protecting women as such?

As late as the 1930s, Helena Normanton, the first British woman to practise at the Bar, pointed out that actions for "seduction" under English law could not be brought by the woman herself, but only by a male relative or other party who had lost some benefit as a consequence. Given how extremely recently rape within marriage has been recognised as a crime, do such attitudes still inflect understanding of these crimes and implementation of laws against them?

While it is undoubtedly true that there is a huge industry engaged in the commercial exploitation of sexuality, not merely through the direct sale of sexual acts by women but through the marketing of representations of those acts, and that this industry is heavily implicated in the exploitation of and violence against women, MacKinnon's assumption that the category "pornography" is self-evident and non-problematic is itself problematic. There is a sufficiently long history of seriously intended scientific research and works of art being treated as pornography under the law by authorities who "knew it when they saw it" to make one a little cautious. Nowhere does MacKinnon precisely define what it is that could be categorised as pornography.

She makes an intriguing statement that much of the pornography being distributed today throughout the world by organised crime originates in the US. Thus "qualities characteristic of but not unique to the United States - including common and casual sexual violence and racism - are promoted throughout the world as sex" and "misogyny American-style colonises the world". This has resonance with other US cultural phenomena that appear to be taking over the world, along a similar model of how business is done under global late capitalism. While in some places MacKinnon's arguments and examples seem rather too US-centric (for example, when discussing the respective roles of courts and the state), they seem an avenue worth exploring further.

This potential line of argument, which gives a valuably contextualised specificity to pornography in the world today, is, however, undercut by her assumption that pornography is somehow also universal and omnipresent (many of these articles predate the explosion in internet dissemination). It may be conceded that contemporary pornographic representations influence the forms that violence against women takes, but do they not originate as one manifestation of misogyny and objectification of women, rather than being the underlying cause of them?

Major forms of violence and abusive practices towards women have been and are to be found in societies where the consumption of pornography, if it existed or exists at all, is probably confined to a small and privileged group.

MacKinnon's work raises provocative and troubling questions, and her arguments merit a hearing. This volume, however, may not be the most effective way of gaining this.

Lesley Hall is senior archivist, Wellcome Library for the History and Understanding of Medicine, London.