When two women ascended to the Supreme Court of Minnesota, Catherine MacKinnon asked: ‘Will they use the tools of law as women, for all women?’ She continued as follows:

I think that the real feminist issue is not whether biological males or biological females hold positions of power, although it is utterly essential that women be there. And I am not saying that viewpoints have genitals. My issue is what our identifications are, what our loyalties are, who our community is, to whom we are accountable. If it seems as if this is not very concrete, I think it is because we have no idea what women as women would have to say. I’m evoking for women a role that we have yet to make, in the name of a voice that, unsilenced, might say something that has never been heard…

Urging judges to ‘use the tools oflaw as women, for all women’ alarms universalist philosophers. These are the philosophers who think that moral theory should come up with principles which mention no group smaller than ‘persons’ or ‘human beings’ or ‘rational agents’. Such philosophers would be happier if MacKinnon talked less about accountability to women as women and more about an ideal Minnesota, or an ideal America, one in which all human beings would be treated impartially. Universalists would prefer to think of feminism as Mary Wollstonecraft and Olympe de Gouges did, as a matter of rights which are already recognizable and describable, although not yet granted. This describability, they feel, makes MacKinnon’ s hope for a voice saying something never heard before unnecessary, overly dramatic, hyperbolic.

Universalist philosophers assume, with Kant, that all the logical space necessary for moral deliberation is now available – that all important truths about right and wrong can only be stated, but be made plausible, in language already to hand. I take MacKinnon to be siding with historicists like Hegel and Dewey, and to be saying that moral progress depends upon expanding this space. She illustrates the need for such expansion when she notes that present sex-discrimination law assumes that women ‘have to meet either the male standard for males or the male standard for females … For purposes of sex discrimination law, to be a woman means either to be like a man or to be like a lady’ . In my terms, MacKinnon is saying that unless women fit into the logical space prepared for them by current linguistic and other practices, the law does not know how to deal with them. MacKinnon cites the example of a judicial decision that permitted women to be excluded from employment as prison guards, because they are so susceptible to rape. The court, she continues, ‘took the viewpoint of the reasonable rapist on women’s employment opportunities’ . ‘The conditions that create women’s rapeability as the definition of womanhood were not even seen as susceptible to change.’

MacKinnon thinks that such assumptions of unchangeability will only be overcome once we can hear ‘what women as women would have to say’. I take her point to be that assumptions become visible as assumptions only if we can make the contradictories of those assumptions sound plausible. So injustices may not be perceived as injustices, even by those who suffer them, until somebody invents a previously unplayed role. Only if somebody has a dream, and a voice to describe that dream, does what looked like nature begin to look like culture, what looked like fate begin to look like a moral abomination. For until then only the language of the oppressor is available, and most oppressors have had the wit to teach the oppressed a language in which the oppressed will sound crazy – even to themselves – if they describe themselves as oppressed.

MacKinnon’s point that logical space may need to be expanded before justice can be envisaged, much less done, can be restated in terms of John Rawls’s claim that moral theorizing is a matter of attaining reflective equilibrium between general principles and particular intuitions – particular reactions of revulsion, horror, satisfaction, or delight to real or imagined situations or actions. MacKinnon sees moral and legal principles, particularly those phrased in terms of equal rights, as impotent to change these reactions. So she sees feminists as needing to alter the data of moral theory rather than needing to formulate principles which fit pre-existent data better. Feminists are trying to get people to feel indifference or satisfaction where they once recoiled, and revulsion and rage where they once felt indifference or resignation.

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