Question: One of the insights of feminist theory of the last decade has been that women are “essentially connected”, not “essentially separate”, from the rest of human life. How has this insight been supported and what are the implications in law?
According to radical feminism, women’s connection to others -experienced materially in intercourse and pregnancy but experienced existentially in all spheres of life. This is the source of women’s debasement, powerlessness, subjugation and misery, not a source of value worth celebrating. It is the cause of women’s pain, and the reason for their stunted lives. Invasion and intrusion, rather than intimacy, nurturance and care, is the ‘unofficial’ story of women’s subjective experience of connection. Furthermore, radical feminists from a mainstream perspective, appear more separatist, and, in contrast with standard political debate, more alarming. Radical feminists appear to be more attuned to power disparities between men and women than are cultural feminists.
West’s arguments on the radical feminism is that modern radical feminism is unified among other things by its insistence on the invasive, oppressive, destructive implications of women’s material and existential connection to the other. According to that description, women dread intrusion and invasion, and long for an independent, individualized, separate identity. While women may indeed “officially” value intimacy, what women unofficially crave is physical privacy, physical integrity, and sexual celibacy-in a word, physical exclusivity. In the moral realm, women officially value contextual, relational, caring, moral thinking, but secretly wish that everyone would get the hell out of their lives so that they could pursue their own projects. Women loathe the intrusion that intimacy entails. In the epistemological and moral realms, while women officially value community, the web, the spinning wheel, and the weave, they privately crave solitude, self-regard, self-esteem, linear thinking, legal rights, and principled thought.
She further noted that radical feminism (of modern times) begins not with the eighties critique of heterosexuality, but rather in the late sixties, with Shulamith Firestone’s denunciation of the oppressive consequences for women of the physical condition of pregnancy. Nevertheless, radical feminism of the eighties has focused more on intercourse than on pregnancy. From the point of view of the “connection thesis,” what the radical feminists of the eighties find objectionable, invasive, and oppressive about heterosexual intercourse, is precisely what the radical feminists of the sixties found objectionable, invasive, and oppressive about pregnancy and motherhood. So, I will start with heterosexual intercourse, for it is intercourse, rather than pregnancy, which consumes the attention of the modern radical feminism of our decade.
Connection through both intercourse and pregnancy:
Women’s potential for material connection with the other, whether through intercourse or pregnancy, constitutes an invasion upon women’s physical bodies, an intrusion upon their lives, and consequently an assault upon their existential freedom, whether or not it is also the root of their moral distinctiveness (the claim cultural feminism makes on behalf of pregnancy), or the hope of their liberation (the claim sexual liberationists make on behalf of sex) 48. Both intercourse and pregnancy are literal, physical, material invasions and occupations of the body 49. The fetus, like the penis, literally occupies a woman body. In their extremes both unwanted heterosexual intercourse and unwanted pregnancy can be life threatening experiences of physical invasion. An unwanted fetus, no less than an unwanted penis, invades a woman body, violates her physical boundaries, occupies her body and can potentially destroy her sense of self. Although the culture does not recognize them as such, the physical and existential invasions occasioned by unwanted pregnancy and intercourse are real harms. They are events women should fear. They are events which any sane person should protect herself against 50.
Connection through intercourse:
Heterosexual intercourse, according to the eighties radical critique, blurs the physical boundary between self and other, and that blurring of boundaries between self and other constitutes a profound invasion of the self’s physical integrity. That invasion of the dissolving of boundaries is something to condemn, not celebrate. Andrea Dworkin views on sexual intercourse 40:
Sexual intercourse is not intrinsically banal, though pop-culturemagazines41 like Esquire and Cosmopolitan would suggest that it is. It is intense, often desperate. The internal landscape is violent upheaval, a wild and ultimately cruel disregard of human individuality, . . . no respecter of boundaries. . . .
Sometimes, the skin comes off in sex. The people merge, skinless. The body loses its boundaries. . . . There is no physical distance, no self-consciousness, nothing withdrawn or private or alienated, no existence outside physical touch. The skin collapses as a boundary–it has no meaning . . . . Instead, there is necessity, nothing else–being driven, physical immersion in “each other” but with no experience of “each other” as separate entities coming together. . . .
The skin is a line of demarcation, a periphery, the fence, the form, the shape, the first clue to identity in a society . . . , and, in purely physical terms, the formal precondition for being human. It is a thin veil of matter separating the outside from the inside. . . . The skin is separation, individuality, the basis for corporeal privacy, . . . .36
West noted in her latest article ‘Jurisprudence and Gender’ that women lose this formal precondition for being human and they lose it in intercourse. A human being has a body that is inviolate; and when it is violated, it is abused. A woman has a body that is penetrated in intercourse: permeable, its corporeal solidness a lie. The discourse of male truth-literature, science, philosophy, pornography-calls that penetration violation. This it does with some consistency and some confidence. Violation is a synonym for intercourse. At the same time, the penetration is taken to be a use, not an abuse; a normal use; it is appropriate to enter her, to push into violate the boundaries of her body. She is human but by a standard that does not include physical privacy. She is, in fact, human by a standard that precludes physical privacy, since to keep a man out altogether and for a lifetime is deviant in the extreme, a psychopathology, a repudiation of the way in which she is expected to manifest her humanity 37.
Following, both wanted and unwanted heterosexual intercourse is invasive, intrusive and violative, and like pregnancy it is therefore the cause of women’s oppressed, invaded, intruded, violated, and debased lives. By using West’s language that the penis occupies the body and “divides the woman” internally in consensual intercourse no less than in rape. It pre-empts, challenges, negates, and renders impossible the maintenance of physical integrity and the formation of a unified self. The deepest unofficial story of radical feminism may be that intimacy-the official value of cultural feminism-is itself oppressive. Women secretly, unofficially, and surreptitiously long for the very individuation that cultural feminism insists women fear: the freedom, the independence, the individuality, the sense of wholeness, the confidence, the self-esteem, and the security of identity which can only come from a life, a history, a path, a voice, a sexuality, a womb, and a body of one’s own. Dworkin explains:
In the experience of intercourse, she loses the capacity for integrity because her body-the basis of privacy and freedom 42 in the material world for all human beings-is entered and occupied; the boundaries of her physical body are-neutrally speaking-violated. What is taken from her in that act is not recoverable, and she spends her life-wanting, after all to have something-pretending that pleasure is in being reduced through intercourse to insignificance . . . . She learns to eroticize powerlessness and self-annihilation. The very boundaries of her own body become meaningless to her, and even worse, useless to her. The transgression of those boundaries comes to signify a sexually charged degradation into which she throws herself, having been told, convinced, that identity, for a female, is there- somewhere beyond privacy and self-respect. 43
Connection through pregnancy:
The original feminist argument 44 for reproductive freedom centered on the definitive radical feminist insight that pregnancy, the invasion of the body by the other to which women are distinctively vulnerable, is an injury and ought to be treated as such. Pregnancy connects women with life, as the cultural feminist insists, but that connection is not something to celebrate; it is that very connection that hurts women. On this point French had drawn a view that women’s reproductive role-the paradigmatic experience of physical connection to nature, to life and to the other, and thus the core of women’s moral difference-is also the cause of patriarchy, primarily because of men’s fear of and contempt for nature. But her analysis sharply contrasts with Firestone’s assessment of the importance and distinctiveness of women’s reproductive role. Firestone has a radically different view. Pregnancy is indeed the paradigmatic experience of physical connection, and it is indeed the core of women’s difference, but according to Firestone, it is for that reason alone the cause of women’s oppression. Male contempt has nothing (at first) to do with it. Pregnancy itself, independent of male contempt, is invasive, dangerous and oppressive; it is an assault on the physical integrity and privacy of the body. For Firestone 45, the strategic implication of this is both clear and clearly material. The technological separation of reproduction from the female body is the necessary condition for women’s liberation 46. However, Firestone’s assessment of the women’s reproductive role parallels Marilyn French’s. Both view women’s physical connection with nature and with the other as in some sense the cause of patriarchy.
Furthermore, West’s argument-that pregnancy is a dangerous, psychically consuming, existentially intrusive, and physically invasive assault upon the body which in turn leads to a dangerous, consuming, intrusive, invasive assault on the mother’s self-identity-that best captures women’s own sense of the injury and danger of pregnancy, whether or not it captures the law’s sense of what an unwanted pregnancy involves, or why women should have the right to terminate it. She continues that the radical feminist argument for reproductive freedom appears in legal argument only inadvertently or surreptitiously, but it does on occasion appear. It appeared most recently in the phenomenological descriptions of unwanted pregnancies collated in the Thorn burgh amicus brief filed by the National Abortion Rights Action League (NARAL) 47. The descriptions of pregnancy collated in that peculiarly non-legal document are filled with metaphors of invasion-metaphors because women lack the vocabulary to name these harms precisely. Those descriptions contrast sharply with the joy that cultural feminists celebrate in pregnancy, childbirth and child-raising. The invasion of the self by the other emerges as a source of oppression, not a source of moral value.
CONNECTION AND LAW:
By the claim that modern jurisprudence is ‘masculine’, it means, firstly, that the values that flow from women’s connection both existential and material are not recognized as values by the law and the dangers attendant to that state are not recognized as dangers by the law. Therefore, the fundamental contradictions that characterize women’s lives are not reflected at any level whatsoever in contracts, torts, constitutional law, or any other field of legal doctrine. Secondly, it means to imply by the phrase ‘masculine jurisprudence’ is that both liberal and critical legal theory, which is about the relation between law and life, is about men and not women.
Recognition of women’s connection in law:
Law does not value connection thesis-its official value is autonomy. The material consequence of this theoretical undervaluation of women’s values in the material world is that women are economically impoverished. The value women place through connection thesis reflects their existential and material circumstance; women will act on that value whether it is compensated or not. But it is not. Nurturant, intimate labour is neither valued by liberal legalism nor compensated by the market economy. It is not compensated in the home and it is not compensated in the workplace-wherever women connection is, there is no compensation. Similarly, separation of the individual from her family, community, or children is not understood to be harm, and women are not protected against it. The law generally and legal doctrines in its particularity are coherent reactions to the existential dilemma that follows from the liberal’s description of the male experience of material separation from the other: the law acknowledges the danger of annihilation and the law protects the value of autonomy. Just as assuredly, the law is not a coherent reaction to the existential dilemma that follows from the material state of being connected to others, and the values and dangers attendant to that condition. It neither recognizes nor values women’s connection to others, and neither recognizes nor protects against separation.
On the other hand, it is increasingly claimed by some of the feminist legal theorists that one of the Gilligan’s insights about women’s connection to others ‘In a Different Voice’ was highly influential in early feminist critiques of law. Many legal scholars have attempted to incorporate Gilligan’s insights into legal scholarship. But gilligan’s insights have not been uncritically adopted, either within the legal community or, for that matter, elsewhere. For example, MacKinnon has suggested that Gilligan’s insights achieve ‘what the special protection rule achieves in law: the affirmative rather than the negative valuation of that which has accurately distinguished women from men, by making it seem as though those attributes, with their consequences, really are somehow women’s, rather than what male supremacy has attributed to women for its own use’.
Furthermore, law does not recognize, in any way whatsoever, muted or unmated, occasionally or persistently, overtly or covertly, the contradiction which characterizes women’s, but not men’s lives: while women value the connection to others they find so natural, they are endangered by the invasion and dread the intrusion in their lives which connection thesis entails, and they long for individuation and independence. Neither sexual nor fetal invasion of the self by the other is recognized as harm worth bothering with. Sexual invasion through rape is understood to be a harm, and is criminalized as such, only when it involves some other harm: today, when it is accompanied by violence that appears in a form men understand (meaning a plausible threat of annihilation); in earlier times, when it was understood as theft of another man’s property. But marital rape, date rape, acquaintance rape, simple rape, unaggravated rape, or as Susan Estrich wants to say ‘real rape’ are either not criminalized, or if they are, they are not punished-to do so would force a recognition of the concrete, experiential harm to identity formation that sexual invasion accomplishes.
Similarly, fetal invasion is not understood to be harmful. The argument that the right to abortion mirrors the right of self defense falls on deaf ears for a reason: the analogy is indeed flawed. The right of self defense is the right to protect the body’s security against annihilation liberally understood, not invasion. But the danger an unwanted fetus poses is not to the body’s security at all, but rather to the body’s integrity. Similarly, the woman’s fear is not that she will die, but that she will cease to be or never become a self. The danger of unwanted pregnancy is the danger of invasion by the other, not of annihilation by the other. In sum, the law does not recognize the danger on invasion, nor does it recognize the individual’s need for, much less entitlement to, individuation and independence from the intrusion which heterosexual penetration and fetal invasion entails. The material consequence of this lack of recognition in the real world is that women are objectified-regarded as creatures who can’t be harmed.
Women position in Jurisprudence and law:
Masculine jurisprudence is about the relation between law and life, is about men and not women 52. The reason for this lack of parallelism, of course, is hardly benign neglect. Rather, the distinctive values women hold, the distinctive dangers from which women suffer, and the distinctive contradictions that characterize women’s inner lives are not reflected in legal theory because legal theory is about actual, real life, enacted, legislated, adjudicated law, and women have, from law’s inception, lacked the power to make law protect, value, or seriously regard women’s experience. Jurisprudence is masculine because jurisprudence is about the relationship between human beings and the laws, and the laws are masculine both in terms of their intended beneficiary and in authorship. Women are absent from jurisprudence because women as human beings are absent from the law’s protection: jurisprudence does not recognize women because law does not protect them 51. The implication for this should be obvious. It is not possible to have a genuinely ungendered jurisprudence until there is a legal doctrine that takes women’s lives as seriously as it takes men’s. There is no such legal doctrine exist. The virtual abolition of patriarchy is the necessary political condition for the creation of non-masculine feminist jurisprudence.
It does not follow, however, that there is no such thing as feminist legal theory. Rather, I believe what is now inaccurately called ‘feminist jurisprudence’ consists of two discrete projects 54. The first project is the unmasking and critiquing of the patriarchy behind purportedly ungendered law and theory, or, put differently, the uncovering of what might call ‘patriarchal jurisprudence’ from under the protective covering of ‘jurisprudence’. The primary purpose of the critique of patriarchal jurisprudence is to show that jurisprudence and legal doctrine protect and define men, not women. Its second purpose is to show how women-that is, people who value connection to others, fear separation, dread invasion, and crave individuation-have fared under a legal system which fails to value women’s connection to others, fails to protect against separation, refuses to define invasion as a harm, and refuses to acknowledge the aspirations of women for individuation and physical privacy.
Furthermore, West advocates a ‘reconstructive feminist jurisprudence’ or theory of law whose goal should be ‘to provide descriptions of the ‘human being’ underlying feminist legal reforms that will be true to the conditions of women’s lives’. This demands that law recognise the experiences of women. Of course, life experiences can be widely different between women. However, women’s experiences, particularly those connected to their bodies and sexuality, are recognised by other feminists too as being crucial to the task of developing a feminist legal theory freed from masculine interpretations of women’s situation. It is to the construction of a feminist jurisprudence, grounded in female (sexual) experience(s) 53.
At the end, connection thesis in general reveals that women’s potential for a material and existential connection to life entails an experiential and psychological sense of connection with other human life, which in turn entails both women’s concept of value, and women’s concept of harm. Women’s concept of value revolves around the axis of intimacy, nurturance, community, responsibility and care. For women, the creation of value, and the living of a good life, depends upon relational, contextual, nurturant and affective responses to the needs of those who are dependent and weak. Furthermore, women’s sense of connection with others determines special competencies and special vulnerabilities. Women value and have a special competency for intimacy, nurturance, and relational thinking, and a special vulnerability to and fear of isolation, separation from the other, and abandonment. Women’s concept of harm revolves around a fear of separation and isolation from the human community on which she depends, and which is dependent upon her.
On the flip side, the connection thesis is also not entirely true of women, either materially or existentially. Not all women become pregnant, and not all women are sexually penetrated. Women can go through life unconnected to other human life. Women can also go through life fundamentally unconcerned with other human life. Obviously, as the liberal feminist movement firmly established, many women can and do individuate, speak the truth, develop integrity, pursue personal projects, embody freedom, and attain an atomistic liberal individuality. Just as obviously, most women don’t. Most women are indeed forced into motherhood and heterosexuality. One reason for this is utopian blinders: women’s lack of awareness of existential choice in the face of what are felt to be biological imperatives. But that is surely not the main reason. The primary reason for the stunted nature of women’s lives is male power.