Feminist Discourse Moral Values and The Law - A Conversation MACKINNON PDF

Buffalo Law Review
Volume 34 Number 1 Article 4
1-1-1985
Feminist Discourse, Moral Values, and the Law—A Conversation

Ellen C. Dubois
University at Buffalo
Mary C. Dunlap
Equal Rights Advocates
Carol J. Gilligan
Harvard University
Catharine A. MacKinnon
University of Minnesota
Carrie J. Menkel-Meadow
University of California at Los Angeles
See next page for additional authors
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Recommended Citation
Ellen C. Dubois, Mary C. Dunlap, Carol J. Gilligan, Catharine A. MacKinnon, Carrie J. Menkel-Meadow,
Isabel Marcus & Paul J. Spiegelman, Feminist Discourse, Moral Values, and the Law—A Conversation, 34
Buff. L. Rev. 11 (1985).
Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol34/iss1/4
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Feminist Discourse, Moral Values, and the Law—A Conversation
Authors
Ellen C. Dubois, Mary C. Dunlap, Carol J. Gilligan, Catharine A. MacKinnon, Carrie J. Menkel-Meadow,
Isabel Marcus, and Paul J. Spiegelman
This article is available in Buffalo Law Review: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol34/iss1/

4
THE 1984 JAMES MCCORMICK MITCHELL LECTURE
Feminist Discourse, Moral Values, and the

Law-A Conversation*
ISABEL MARCUS, 1 PAUL J. SPIEGELMAN 2-MODERATORS
ELLEN C. DuBois,3 MARY C. DUNLAP, 4 CAROL J. GILLIGAN,'

CATHARINE A. MACKINNON, 6 CARRIE J. MENKEL-
MEADOWT-CONVERSANTS
Spiegelman: In my two years as chairperson of the lecture commit-

tee, I have tried to open the law school community to new voices.
I am particularly excited about today's program because we have
never had a woman before as a James McCormick Mitchell lec-
turer. Today, five women share that honor. I firmly believe a pro-
gram of this sort is not a women's program in the sense that it is
"for women only." I think feminism is at the cutting edge of posi-
tive social change in this country. Accordingly, this is to be a pro-
gram in which we all will be challenged by new ideas and pro-
voked to reevaluate old ones.
Marcus: I want to'tell you a very small story about the origin
of this whole enterprise. Two years ago, Carol Gilligan came to
this campus during the summer and gave a community lecture.
Marjorie Girth and I were sitting next to each other. As Carol
began to talk, I turned to Marjorie and said: "Now I understand
at a new level why I felt so uncomfortable in law school." At that
point, I had the strong impulse to run up to Carol Gilligan and
* This Article is an edited transcript of the discussion held on October 19, 1984 at the
law school of the State University of New York in Buffalo as part of the James McCormick
Mitchell Lecture Series.
1. Associate Professor of Law, State University of New York at Buffalo. Visiting Pro-
fessor, 1984-1985, City University of New York Law School.
2. Associate Professor of Law, State University of New York at Buffalo.
3. Associate Professor of History, State University of New York at Buffalo. Visiting
Professor, 1984-1985, Department of History, University of Wisconsin.
4. Member, California Bar. Founder, Equal Rights Advocates.
5. Associate Professor of Education, Harvard University.
6. Associate Professor of Law, University of Minnesota.
7. Professor of Law, University of California at Los Angeles.
BUFFALO LAW REVIEW [Vol. 34
say: "Please come back, please come back during the academic
year to talk in the law school. Your work demonstrates that you
have something terribly important to say about legal education."
As I began to think about a discussion concerning the law, and
feminism, and politics, and moral values, and consulted with Paul,
our horizons expanded. Paul and I began to think that rather
than simply have one lecturer in a formal mode, and in a very
traditional format, that it would be appropriate to have a series of
conversations. Feminist discourse has moved away from the sim-
ple, formal presentation of papers. There are very complicated
and sophisticated and explosive issues that need to be discussed.
There are people who feel very strongly, and are very brave and
courageous, on all sides of the issues that feminism has raised.
Rather than have a single presentation, it would be more appro-
priate at this time to have a conversation which would raise some
of the complicated issues of equality and difference and would ex-
plore the connection between theory and practice.
One of the reasons I have great hopes for this morning's con-
versation is that we have two people who have been engaged both
as theoreticians and in the world of practice. We have Mary Dun-
lap, coming in from California, who has taught in law schools, and
who, as a practitioner, is a founder of one of the first feminist
public interest law firms in the United States: Equal Rights Advo-
cates. And we have Catharine MacKinnon, whose official affilia-
tion is with the University of Minnesota Law School. Not only has
she written significant pieces of feminist jurisprudential theory,
she also has been involved in the drafting of legislation and
litigation.
Dunlap: I am delighted to go first. I am delighted to be here
at all. I am thrilled by the energy that Paul, Isabel, and others
have put into coming together today, and by the devotion of this
lecture series to feminist issues. It's exciting. It's exciting to be
able to address these issues, and to differ openly about
them-which we will be doing today-to air our disagreements,
to learn from them, to move on from them, and to work together
from them.
The title of this morning's conversation, "Feminist Discourse,
Moral Values, and the Law," raises a sundry set of definitional
problems which I am going to completely skip over. You have to
watch out for that-that's the prerogative of the self-proclaimed
1985] MITCHELL LECTURE
practitioner; when things get really tough in this type of forum

they say, "Well, I'm a practitioner." That's one way of standing
the heat. The fact of the matter is that while I am a practitioner, I
am just absolutely opposed to the distinction between theory and
practice that historically has enabled practitioners and theoreti-
cians to hide from each other. I hope that my theories (to the
extent that I have them) and my themes will have some integrity
in terms of the theoretical models that we will try to work with.
But I am not going to spend a lot of time defining them. It raises
a question for me: Are there moral values that emerge from or
can be defined in the confluence of feminism and law? Are there
ways of analyzing the feminist contribution to justice that define
themselves morally? And in order to figure out whether there are,
I tried to break up or describe the areas in which feminists have
been most active in law as a means of trying to determine what is
behind that activism, what is beneath it, what is within it, and
what part of it is distinctively or even tangentially moral in its con-
tent or in its resolve. It seems as if (this is my impression based on
about fifteen years of watching and being involved in it) feminist
legal activity clusters around certain issues. I'm going to propose
four clusters. You will immediately see that these are very fluid
walls and that any of the things I put into one of these clusters
could readily be attached to another. I offer them not because
they are some kind of hard and fast way of analyzing the contribu-
tion of feminism in law or of pulling out moral values, but rather
as a convenient and descriptive way of (1) taking into account
what we have done, and (2) seeing what our priorities are-moral,
political, ethical, and personal priorities.
The first cluster I identify is a "physical health" cluster. That
cluster would include all of the work that feminists have done and
are doing in relation to bodily choices-choices about sexuality
and sexual orientation and family and personal partnerships. I did
not have to put all that under physical health; I could have as
readily put it in one of the following clusters.
Next is the "money" cluster. The money cluster involves fem-
inists' work in matters of equal pay, comparable worth, property,
benefits of employment, ownership, and control of the material
means to equal opportunity.
Still, that is not enough. These clusters, as sloppy as they are,
as capacious as they are, are not yet sufficient; they do not yet take
into account everything we have done. So we add the "violence-

empowerment" cluster. I would suggest that to the extent this
cluster overlaps with the physical health cluster, it also includes
domestic battery, rape, sexual harassment, incest, homicide, and
self defense.
Still, we cannot stop there. That is not yet descriptive of all
the work the feminists in theory and practice have been doing and
are doing and are continuing to do in the name of feminist values,
moral and otherwise. So I have a fourth cluster, a "creativity"
cluster. (Any resemblance to the miscellaneous docket of the Su-
preme Court should be set aside because inclusion in that category
has always been kind of a "put-down"; if you're in the miscellane-
ous docket, you do not "fit anywhere else.") This fourth category
is as difficult to define as it is because I think all of these issues
that I am about to identify sometimes get neglected for one rea-
son or another-issues of educational opportunity, athletics,
women in art, women in religion, women in philosophy. Lawyers
have to do a little with everything and do everything with a little
knowledge, we are told. As one reads, or as one perceives, femi-
nist involvement in law as an agenda, it is plain that such an
agenda encompasses every realm of our lives, every aspect of who
we are, who we are becoming, and what our experiences are.
Having offered that description, I pondered: "Well, have I
helped myself at all in trying to isolate or express or define the
moral values that operate in relation to feminist work?" I think I
have, but there are some problems, so I want to offer those. Then
we are going to come back to what these categories seem to sug-
gest or in some cases spell out about the operating world values.
If you pose the question as, "What have feminists done with,
or in, or through law?," right away a tremendous relativity at-
taches. There are those whose answer is: "Well, isn't Sandra Day
O'Connor on the U.S. Supreme Court?" That is their full and suf-
ficient answer. I think such an answer is founded on two errone-
ous premises-maybe more, but let me offer two. One error is
that all women are feminists. Although one would love for that to
be true, regrettably it is not. The second error is that to measure
the progress of feminists in law one should count how many
women rise to the top. I suggest that some of the more popular
measures of what feminists have done with and through law are
not going to be very useful to us. Some (including people with a
19851 MITCHELL LECTURE
more informed position on the "feminism" of Sandra Day

O'Connor) have gone so far as to measure the progress of femi-
nism by the number of women enrolled in law school. I submit
that the most telling measure of how feminists have done in law
and what we have done in law is how women are treated in the
legal system. What happens to the woman client, plaintiff, or crim-
inal defendant? What is the experience of a woman in the court,
in the legislature, in those political functions that are related to
the creation and perpetuation of law? When I offer that definition
of law I think of Aaron Burr. Aaron Burr offered a definition of
law that is very hard to get around. He said that law is that which
is boldly asserted and plausibly maintained. So with that definition
of law in mind, it seems to me that the most satisfactory question
for measuring the progress of feminists, and feminism, and femi-
nist values in law is: "What is happening to women in law?"
Now, let us go back to these "clusters." I cannot possibly pre-
tend, in the time that I have, to assess, to describe, or for that
matter to evaluate, morally or otherwise, all of the changes, pro-
gress, regression, and differences between then and now. I cannot
pretend to say everything that feminists have done in each of
these areas and then say how we have done. Instead, I am going to
offer some observations about what I believe the operating moral
themes are. Then I am going to come back to a few specifics that
I think will be illustrative, although not necessarily fully
descriptive.
There are moral themes in the physical-health cluster that ap-
pear again in the violence-empowerment cluster. It seems to me
that at the heart or at least part of the heart of those clusters is
the idea that harm and pain and hurt that are gender-correlated
must end, must be prevented, must be remedied. For a woman to
live in this society is for her to be in danger on account of her sex,
in danger from deprivation of procreative choice, in danger from
rape, in danger from those environmental hazards that are sex-
correlated, whether they be lead battery plants or any other thing.
Those kinds of sex-correlated violence, thoughtful and thought-
less alike, must end. That is a moral value. That, I would also
suggest, is a moral imperative and it characterizes much of the
work that has been done in some of these areas. And another
moral value is the idea or notion of equalizing opportunity. (I pro-
pose it as a moral value although it is many other things as well.)
It is bitter but it is not embittering that the term "equality" shall

have been misused so much and so often in such a way as to mis-
lead and to suggest that a woman who is not being treated equally
at work ought to think she is being treated equally at work and
that happens-and it happens a lot. Nevertheless, I do not think it
is sensible to abandon the equality principle. I want to talk about
the equality principle as a source of moral directions, if not of
moral values, a little bit later on.
Let me go back and say something about numbers. I said
rather harshly before that counting heads seemed to be a rather
inadequate measure of the progress of feminism and the effects of
feminism in law and in life. At the same time, it's clear that our
ambitions as feminists in law are very much affected by the reali-
zation that a little bit less than ten years ago the enrollment of
women in law schools began to increase in a measurable way. In
the 1960s, less than two percent of the licensed legal profession
was female. When it came to judges, you could divide that per-
centage in half; when it came to the law professors and legal
scholars, you could divide it in thirds. You would find two or
three people out there, and you would attach yourself to them;
they would be mentors (or womentors). But again, the measure of
the progress of feminism is not the number of women in tradition-
ally male fields. However, although not every woman is necessarily
a feminist, there is a substantial correlation; similarly, and further-
more (and this is more painful), although not every man is a sex-
ist, there is an overwhelming correlation. And, in another way,
every man is a sexist-in the same way every white person, every
Caucasian is a racist. And in that respect I think we have to stay
tuned to the proposition that there is going to be another layer of
evaluation here. We must not look to the experiences of women
in the courts-rather, we must look to the legal system in general
(a hang-up of mine is to overlook the fact that the legal system
extends far beyond the courts)-to have them describe for us
what they have experienced and how they have not been treated
equally, and how their suffering with sex related violence has not
been prevented, remedied, or otherwise treated. Along with that,
we have to do something a little different in evaluation. I propose
that we have to suspend the idea that the woman's account of her
experiences must be corroborated. If I stand up in any group that
is trained in Western objectivity and discuss a woman who has de-
scribed to me that she got "fucked over" in court, the reaction

will be: "Well, what do you think?" or "Well, what does so-and-so
think?" or "Well, what did the judge think?" But let us put all that
aside for a moment (although it is important); let us just listen to
her. When we do that, we discover that in the last fifteen years, in
all these areas or clusters that I have described, we have both suc-
ceeded and failed-succeeded and failed, that is, by the measure
of the voices of the women who have gone through it, who are
going through it, and who are subject to it. In every one of these
realms, for every glowing account of a positive experience in the
use of the legal system, we certainly (if we are honest) can array
many descriptions by women of negative experiences.
If the measure is not equal opportunity, to prevent and rem-
edy the sex-correlated harms, then what have we accomplished?
Can we be proud of attaching our sense of our life-worth, our
definitions of ourselves to feminism in law? Or is it a contradiction
in terms as some propose? Well, I do not accept that, because it
would make me so sad to accept it, and I will say that honestly.
There is another reason that I don't accept it. I teach a class
at Golden Gate in San Francisco in gay and lesbian rights. We are
in about the seventh week of it, and I find that I have brought in
all this material and immersed my students in one truly indescrib-
ably depressing result after another: criminalization as a norm,
the deprivation of every right from thought to breathing. I
looked up at them and I said: "I'm doing a lousy job of teaching.
You know why? Because I'm telling you everything that is happen-
ing out there and I'm conveying it all to you, but there are two
things I am not doing. One is I am not pointing out any reason
why you should not stay depressed and give up-and there are
some. The other is that we are not together trying to figure out
how to do something about this. This course is not sufficiently
practical."
In the same way, I am going to be dealing with some of that
frustration here. I do intend to give and not to mitigate all the
bad news. At the same time, I think we have to look, if only to
maintain momentum, at the parts of what we have done with fem-
inism in law that have moved us forward. One is that we are here.
This is a first that I am really glad to be a part of. I am only sorry
that it did not happen a whole lot earlier. That is the bitter side of
firsts.
Just the fact that we have prioritized and gotten as far as we

have, just the fact that there is so much vital activity in each of
these clusters, just the fact that women are in court and are being
heard-sometimes, at least-in a different voice makes a differ-
ence. It makes a difference in the same way that I told the stu-
dents in my gay rights class: "Just the fact that we are here mat-
ters." The fight to get that course in that, or any other, law school
was phenomenal. Along with being ruthlessly critical of ourselves
(as I think we must be), I think we also have to step back and say
we are here and we are asking these questions and we are unlikely
to treat the issues that we are raising in the same callous, disre-
garding way that the system historically, and most men histori-
cally, have treated issues of sex and sexuality.
Now, I want to take a position here, clear the air, get the
morning going-"jump in." All the rest of this may be seen as
very soft, but now it's going to get hard. Here is my position. I
have to find it in my notes. [Laughter.] No matter how strongly
held it is, I want to say it right. It has to do with these clusters,
and with enjoying equality in opportunity, ending sexist violence,
healing, being freer, and having opportunities that are sometimes
not even imagined. Like the Olympics. When you watched the
men's events, did you, from time to time, think that women could
be doing that, too? And you sort of said: "Hey, it's neat watching
the Olympics, but what's this?" Or maybe you even had a World
Series wrecked for you by thinking that thought. Maybe some-
body sat next to you in front of the television and said: "Well,
that's very fine, a World Series-but where are the women?"
What I want to say is that when we consider redistributing
the power and the resources and the strength (materially, physi-
cally, spiritually, and every other way you can redistribute re-
sources), there are several options. One is the option of erring in
favor of equality over other approaches. One (and a very common
option it is) is keeping the status quo, because changing it seems
all too hard. Underlying that is the belief which is, if not wide-
spread, at least common enough that it rears its ugly head with
some regularity: the belief that men are better. "Tough luck,
honey. That's the way it is, because men are better. Men are
stronger, men are smarter, men are this, men are that. Yes,
women are this, and let's say some nice compensatory things
about the girls, but society is the way it is because men are bet-
ter." That is another response to the question of redistribution of

resources. It is very real, and I suggest to you that, although we
do not like to think so, it has a lot of adherents, both casual and
die-hard.
So there is the equality approach to redistribution and there
is the "men-are-better" approach. Let me suggest to you that
there is the "women-are-better" approach. The "women-are-bet-
ter" approach commends itself to those of us who want to believe
that we are better. This is something we want to think when we
look at the stuff that we identify as being correlated with
men-and I can talk from cruise missiles on up and down. But
people tune us out if we say: "Everything we see tells us women
are better. We do not want equal distribution of the resources, we
want to be in charge. We merely want our turf. O.K.?"
Now, it's crucial to remember that whether or not one is loyal
to the principle of equality does not necessarily depend on one's
beliefs. Lots of men buy the status quo because they believe
they're better. Other men say in the backs or fronts of their
minds: "Well, she is really not going to do that well, but we will
give her a chance." What I am saying is that when all else fails, we
should try at least to equalize opportunity. Let us see if we can
reduce those instances of wrong that are correlated with gender.
This, I suggest, is an integral part of the equality model. And that
process is not necessarily precluded by one's belief that one gen-
der or another is "better."
I want to offer an illustration. A very popular stereotype is
that women are compassionate healers, that we are the ones to fix
things and nurture. Now the temptation is to discard the stereo-
types. How sad. Some of those very same values-nurturing and
compassion and healing-are precisely what is making feminism
have its best and greatest impact in a long time. We cannot afford
to defy the patriarchy in the same way that one defies an abusive
parent-"everything you say or do is wrong," and "everything we
have said and done that makes you think we are a certain way is
wrong." We cannot permit this. As to the operation of moral val-
ues through feminism, I suggest that we, those of us who are femi-
nists, men and women alike, are challenged to choose, from all of
the imagery, that which is closest to what we believe, care about,
and can move forward through our minds and hearts and every-
thing we have to offer. It is terribly important not to get caught in
the categorizations in either direction. Categorizations are whip-

saws. "Oh, women are more emotional than men." This one I al-
ways love. The last time I heard somebody say that seriously, the
person was a male law professor ripping the microphone cord out
of the wall while it was malfunctioning. The problem with that is,
if you get offended by it, you are getting offended by emotions.
Do not get offended by emotions-we need them all. We need the
full range of emotion. In court we need anger (wow, do we need
it). We need compassion. We need tenderness. We need all the
things that make the legal system, or could make the legal system,
more of a healer and less of a slayer. And those values I suggest
are feminist. They are not necessarily female, but they are femi-
nist-and I think that the challenge is not to live up or down to
anybody's stereotypes. That is a very real challenge.
So I have taken my position on that. I am in favor of equality;
I do not favor supremacy even as sweet as the vengeance would
seem. No! I confess that. I favor equality because I think it's going
to move us all toward a better place for people-for women, who
are my first priority, and for men, who are my other priority.
MacKinnon: I am really glad to be here to have what is openly
billed as a dialogue within feminism, particularly as it is clearly
premised on a rather unusual assumption: All women are not the
same.
I want to talk about the terrain of feminism, which has to do
with relations between the sexes. I want to speak in particular
about this principle of equality that Mary alluded to, and make
reference to some particular legal applications in the doctrinal
area of sex discrimination, which is (supposedly, at least) one area
of law where the equality principle is fielded.
One question that feminism poses is: "What is the gender
question a question of?" I see two answers. The first answer has
historically been the politically dominant, legally and conceptually:
The gender question is a question of difference. There are two
options under it. The first option I call the "male standard":
Women can be the same as men. In law, it is called gender neutral-
ity. The other option I call the "female standard": You can be
different from men. In law, it is called special protection. These
bear a remarkable parallel resemblance to the masculine and the
feminine.
The other answer to the question, a dissident view from the
MITCHELL LECTURE
dominant mainstream legal and political position and discourse, is

that gender is a question of dominance. In this answer, the issue
of discrimination or inequality is not centrally one of accurate cat-
egorization, as it is in the first. It is one of hierarchy, the top and
the bottom of a hierarchy are different all right, but that is hardly
all. One part of the distinction is dominant, and the other part of
the distinction is subordinate.
From this second standpoint-which is my answer to the gen-
der question-we see that the two standards in the first answer.
are two different versions of the male standard. If you see gender
as a hierarchy-in which some people have power and some peo-
ple are powerless, relatively speaking-you realize that the op-
tions of either being the same as men or being different from men
are just two ways of having men as your standard. Men are set up
as a standard for women by saying either: "You can be the same
as men, and then you will be equal," or, "You can be different
from men, and then you will be women."
This runs right through sex discrimination law, with a paral-
lel in race discrimination. Just as men set both of those standards
according to a standard of masculinity, and just as that standard is
the standard of power and the standard of human, as well as the
ruling definition of equal treatment (which is to say, "sameness,"
''same as," suppresses the fact that the referent for the "same as"
is men), white culture sets the standard of racial equality according
to a standard of whiteness. That standard too, supresses its refer-
ent; to define racial equality as based on "sameness" is, in a white
supremacist society, to establish white as the standard by which
one is assessed the "same" or not. Due to the political struggle of
Black Americans in this country, people are more used to thinking
about equality in terms of race. With race you also either have an
implicit sameness standard or you understand that what you are
dealing with is white supremacy. Similarly, with sex we either
have a difference/sameness approach or we understand that what
we are dealing with is male supremacy.
In my opinion, to take the differences approach is to take a
moral approach, whereas to criticize hierarchy is to take a political
approach. To take a differences view is also to take a liberal view
(although that view, of course, includes conservatism as well), and
to take the view that we are dealing with a hierarchy is to take a
radical approach. I also think that to make issues of gender turn
on the so-called gender difference is, ultimately, to take a male

perspective. I therefore call the differences approach masculinist.
The position that gender is first a political hierarchy of power is,
in my opinion, a feminist position.
Now I am going to talk in some detail about the differences
approach: the question of gender as a question of difference. The
problem it targets is actually very important-having been en-
tirely hard on it so far. I think its problem is how to value what
women are, have been, have achieved, have become-while also
demanding that we should get access to everything that we have
been excluded from becoming, being, and having. The way this
approach works in law is by conforming normative rules to empir-
ical reality. In other words, you try to make your rules track a
gender line which is accurate and real in the world. When it asks
that we make categorizations that are fair, it means that we should
treat likes alike and unlikes unlike. You will hear echoes of Aris-
totle in both the mainstream Supreme Court sex discrimination
doctrines and in the work of most feminists. (In this I include, for
instance, Wendy Williams' work. I also think it is a perspective
implicit in some of the things Mary has said, although I do not
mean to imply that she is necessarily going to want to defend it
when I am done.) Legally, this standard runs under the rubric of
gender neutrality. The real impulse behind it is: We're as good as
you. Whatever you can do, we can do. Just let us do it. I have to
say I really feel a lot of affection for this, the impulse behind the
single standard. Set your standard; let us meet it. This view ex-
presses a fundamental motive force behind most feminism, partic-
ularly in law: Just let us be persons. In athletics, it's: just let us
compete. In academic and professional areas, it's: you define what
merit is, we will meet it. In non-traditional jobs, in which I include
lawyers and blue-collar workers, it's: you want thirty pounds
lifted; watch us do it. You see it in the firefighting cases, the police
cases, and so on.
This approach also underlies one side of the debate about the
draft. Implicit in, "We can fight too," is, "What's the mat-
ter-don't you want us to learn to kill?" You see how much
women just want to be members of this society when you try these
cases. In my practice it really is moving to realize how much
women just want to do the work. The draft issue is similar: want-
ing to pay the full price of citizenship. Imagine having to fight for
that. To be against the draft means going to jail, too; why

shouldn't the consequences of my choices count like yours count?
The first drawback of this view has been that it does not deal
with what are taken to be real differences. There are some. For
instance, pregnancy, an ability which some women have and all
men do not. They lack it. What this means is that if one enters a
world in which the standard is already constructed according to
an implicit but suppressed male referent, you have a marketplace
structured according to a male biography, a male-based series of
social expectations, wherein only those women who are the most
like that are the same as that, and therefore have a right to be
treated equally by this definition of equality. There is no critique
of the standard itself as gender based. Only women who are most
like the male norm are advanced or advantaged by this notion of
equality-as women of the right have tried to point out to those
who have been willing to listen. Another disadvantage of the
sameness approach, which I will articulate in expressly feminist
terms, is that what we get in these cases-the athletic cases, the
academic cases, and so on-is the right to pay the price of admis-
sion that men are supposed to pay but often do not, simply be-
cause they are benefited by that affirmative action plan for white
men otherwise known as American society.
There is, however, a deeper critique of this standard: we can
play with the boys but we cannot question competition as a mea-
sure of merit. We can think but we are not allowed to question
objectivity as the measure of what we know. We are allowed to
compete but we are not allowed to question competition as the
test of accomplishment. Nor do we get to criticize conflict as a
peculiarly ejaculatory means of conflict resolution.
I have talked about the sameness standard-what it gets us,
what it does not, what we (or I, anyway) feel moved by in it, where
it lets us down. When I read women's accounts of struggling with
the decision of whether or not to have an abortion, I see how the
sameness standard has let women down because there is no moral
equivalent to abortion in the life of a man. The sameness standard
has also let women down with regard to comparable worth. That
is why we are having such trouble with it: There are no men
around to compare with. They have other alternatives. How do
we determine what equal treatment is if there are no men around
to be made equal with? In the comparable worth cases, the strug-
gle is to find men to be comparable with, when, because of sex

segregation, men do other things, better things.
The other alternative the differences approach gives you is to
ground equality claims in difference: "We are different from
you." We want this difference equally accommodated.- Legally,
this has been codified as the special protection rule in sex discrimi-
nation law. It does not have to be limited to that. That is what it
has meant, however, in men's hands. Women say: "We want to be
taken on our own terms." Male-supremacist logic transforms that
to: "You want to be treated as a woman," and men define what a
woman is.
Having said what the single standard does for us, I would like
to say a couple of things about what the double standard has done
for us. Well, there were those protective laws that said all those
things we could not do and all those stools we had to have to sit
on, and how our reproductive organs would be abused if we were
to work X number of hours.
Dunlap: Much less, if we were to run free.
MacKinnon: Yes, much less to actually run. But not cor-
sets-not to mention what those did to our reproductive or-
gans-or those shoes. The double standard, however, has ob-
tained three more years for us to work for advancement in the
military hierarchy before we had to be booted out or advanced
up. It obtained for those women who were able to inherit money
from men, in the state of Georgia, a certain percentage tax break
to the tune of Justice Douglas waxing eloquent about economic
discrimination against all women. In the past it has gotten us the
maternal preference in custody of children-no small thing, chil-
dren being one of the few "things" women have ever taken away
from men, from the time when children, with women, were re-
garded as male property. It got us exclusion from contact prison
guard jobs in male-only prisons because we might be raped. I call
that looking at women from the standpoint of the reasonable rap-
ist-adopting that as the standard for women's employment, as
equal protection of the laws.
"Slippery slopes" work if you are liberals and you are in the
position of being able to push people down them, right? When
something would help us, they say, "You can't have that; that's
the start of a slide down the slippery slope." I think women have
already slid all the way to the bottom and are trying to crawl up.
MITCHELL LECTURE
The fertility protection gambit is a way to protect women out of

jobs by making the potential interest of a possible fetus and the
fact that that fetus might be legally real enough to sue them,
might have some legal rights later, a reason for recognizing no
legal rights to jobs for women now. This is the kind of thing that
the double standard has gotten us. It has helped us, essentially,
either to protection or to exclusion, which have amounted to the
same thing. We've found out that this protection is a protection
racket in which the "protectors" can violate us at will. And exclu-
sion means that the minute you say, "I would appreciate it if you
would take my particularities into account," they are very happy
to take them into account by making sure that your particularities
are nowhere around them.
The double standard is rather beautifully articulated in Carol
Gilligan's book, In a Different Voice. Again, I do not mean that the
only way one can accommodate the perspective that women have
something distinctive to offer social life is by a double standard
under discrimination law. The importance of the recognition that
women are different has had to do with valuing women's experi-
ence-not only the experience of relatedness, responsibility, and
care virtues, but also the experience reflected in the following in-
sight, which is the impulse behind the discipline of women's his-
tory in many respects: "Wait a second. You may have defined his-
tory as wars, empires, governments, and so on, but we were there,
too." This insight is effective only if you count what we were
there for and what we were doing there, and only if you can see
that other things are going on in society besides those things that
men have measured as valuable. Women make history. Quilts are
art. Those gardens are expression and creativity. A shorthand way
of saying this is that, men notwithstanding, man is not "the mea-
sure of all things."
Up to now I've been talking about one answer to the equality
question-the "difference" answer. I have not talked about who
has power over whom, although there has been a sensitivity as to
who sets the standards. In the view I have just characterized, we
saw gender as a difference first and as an inequality second. In this
second view I am suggesting, gender is a question of inequality
first. The question is not so much how to make rules fit reality,
but rather how to change reality. This perspective, this dissident
view, criticizes the empirical world and the standards that are part
of it. It criticizes the standards that set us up to be either the same

as men or different from men; it criticizes the requirement that
we have to define ourselves in terms of men. Its agenda is one of
explaining and criticizing what women have had little choice to
become, in order to change it.
Here I should quickly supply some facts. Consider that thirty-
eight percent of young girls are sexually abused as children by
older men in their dominant family unit with whom they are
close. That is true for ten percent of boys. (Gender comparisons
of little kids are about the only ones that make sense.) About forty
to forty-four percent of women are either raped-in the usual le-
gal sense of the word, not including marital rape-or are victims
of an attempted rape. Around eighty-five percent of all women
are, or have been, sexually harassed in the workforce at some
point.
DuBois: Could you please cite your source?
MacKinnon: The bibliography appears in volume one of Law
and Inequality: A Journal of Theory and Practice,8 my debate with
Phyllis Schlafly. One source that does not appear there is Diana
Russell's latest article on child sexual abuse, in which she found
that thirty-eight percent of all girls are victims of child sexual
abuse.' The battery figure for women is between one-fourth and
one-third. As for prostitution-as far as we can tell (statistics are
hard to get a hold of, for reasons that are obvious)-apparently
about twelve to fifteen percent of all American women are, or
have been, prostitutes, by which is meant they make or have made
their living more-or-less exclusively through the sale of their sexu-
ality. The data on economics is also well known: a woman makes
fifty-nine cents for every dollar a man makes, and that gap is
widening. The segregation on jobs, too, is well known. And, the
pornography industry, an excellent example of the dominance
model, makes the sex difference sexy to the tune of $8 billion a
year in entertainment. One manifestation of being a member of a
degraded group must be that people call your torture and humili-
ation entertainment and pay a lot of money to enjoy it.
Few people, I have found, even Phyllis Schlafly, are interested
8. MacKinnon, Excerptsfrom MacKinnonlSchlafly Debate, L. & INEQUALITY: J. OF THEORY

& PRAC. 341, 351-53 (1983).
9. Russell, The Incidence and Prevalence of Intrafamilialand ExtrafamilialSexual Abuse of
Female Children, 7 CHILD ABUSE & NEGLEcT 137 (1983).
in calling this picture the sex difference. Is it the sex difference to

be targeted for rape, to be sexually molested, to be set up to be
bought and sold, and then to be trivialized and humiliated, passed
around, patted, put in place, and told to smile about it? None of
these issues are traditionally seen as equality issues. Isn't that in-
teresting? I think that is partly because, when these issues are seen
at all, they are seen as issues of force, and sex inequality is not seen
as an issue of force. Racial inequality, by contrast, is seen as a
question of force, not just as a question of racial differences.
What this all means is that women are a subordinate group.
And nothing is being done about it. Really, nothing. This abuse is
passing unacknowledged as the sex difference, while the issues
that are litigated as sex discrimination issues are seen as differenti-
ation problems against a reality which is fundamentally equal. The
practices I just described are that reality. Dominance and submis-
sion made into sex, made into the gender difference, constitute
the suppressed social content of the gender definitions of men and
women.
When you look at that, it makes a lot of sense that women
might have a somewhat distinctive perspective on social life. We
may or may not speak in a different voice-I think that the voice
that we have been said to speak in is in fact in large part the "fem-
inine" voice, the voice of the victim speaking without conscious-
ness. But when we understand that women are forced into this
situation of inequality, it makes a lot of sense that we should want
to negotiate, since we lose conflicts. It makes a lot of sense that we
should want to urge values of care, because it is what we have
been valued for. We have had little choice but to be valued this
way. It sure would be nice if somebody would care for us. Women
of the right speak particularly strongly about values of responsibil-
ity. They are responsible; it would be nice if men would live up to
their end of the bargain. It makes a lot of sense that women
should claim our identity in relationships because we have not
been allowed to have a social identity on our own terms. As to
whether these values are women's, possessive, voice, I think that
women's silence-and, for the same reasons, the damage to
women's sexuality-goes deeper than the absence of words; it is
the absence of life, of the ability to live in security or whole-
ness-hence, the inability to articulate or to express. This prior
absence does affect questions of morality. If the first problem of
inequality is the problem of the subordination of women and not

the inaccurate differentiation between people on the basis of sex,
it is inappropriate to discuss the reality or proposition of treating
women as sub-human as a matter of good versus evil. Appropri-
ate, instead, is an argument and a discussion about empowerment,
about power. Gender then becomes a question of how people who
do not have power are going to get some, and how people who do
not have a voice are going to be able to speak in anything other
than a male voice in a higher register. It is about how this ro-
mance with gender, elaborately played out as either sameness or
difference, is going to be turned into something that is not going
to look like our freedom to be feminine, which keeps us where we
have been placed, but rather like something which values us for
what we are without keeping us there; not our freedom to be mas-
culine, but our right to have access to everything men have always
kept for themselves whether we do with it what they have done
with it, or not.
The freedom we have is so small compared to the kind of
freedom that we could have if we transformed this society, if we
were able to get this foot off our necks. If somebody has got their
foot on your neck, what do you do? I don't think you negotiate. I
don't think you compromise. I don't think you even address the
foot on your neck in your own voice, such as it is, and attempt to
persuade it to move off. You try to figure out how to get it up off
of you so that you can, among other things, have something to
say.
Marcus: We have two choices here: We can have the present
conversation continue or we can bring in new people. I would like
to be able to carry on a conversation among all of us. Now, in
doing that, what I am going to ask is that we talk with each other,
rather than ask questions simply to expand, increase, or create po-
larities. I'm not suggesting that we can't debate, but I am asking
that questions be asked to expand the discourse.
Question from audience: I was really thrilled by the focus of
looking at gender as hierarchy. It struck me that there might be a
difference between lawyers and other people. What feminism dis-
covered was a way to discuss hierarchy. If we looked at hierarchy
in the past, we had to first make analysis between social classes,
and then we had to make analysis of minority groups, then na-
tions. Only after we analyzed all the other forms of hierarchy did
we get to talk about gender hierarchy. I felt it was very clearly

stated. It put us where we should be. But then I was surprised at
the narrowing down of the focus to primarily issues of sex. It
seems to me that sexuality is an area of both power for, as well as
victimization of, women. I feel also that, at least for many women,
the experience of hierarchy is not simply an issue of violence.
There are other areas-look at Good Housekeeping or Vogue-that
are as violent to me as the issues that are discussed in the areas of
pornography and rape. Every time we deal with hierarchy, must
we deal with violence and then right away tie that violence to sex-
ual expression? In my mind, there are problems doing this be-
cause I think sexuality can be power for women, though I also
think it gets us into trouble. I wondered whether you-since
you've narrowed it down so simply-can help us redirect the fo-
cus. I'm concerned about this because I think in the long run it
represents a very conservative element for the women's
movement.
MacKinnon: I don't think that I did exactly the narrowing that
you said I did, although in the data that I cited, which is about
reality, I did select indications of sexual violence. I think that
those indications are not episodic. They are data that structure a
world in which women live with the constant possibilities of sexual
violence. By violence I mean both the narrow form and the
broader form of violation involved in essentially being defined in
terms of sex all the time. And so, yes, I did mean to narrow the
focus, but I did not mean to make it seem as though the only
events that are relevant to the construction of a subordinated gen-
der status have to do with those particular moments in which we
can see that delivered in its most forcible form. Consider the data
on lynching. The percentages are one thing, but the fact that
Black people walk through life knowing that at any point that can
happen to them-and that nothing will be done about it-is as
crucial and as central a point. It is how racism works as terrorism.
All women are also targeted as women. Women deal with this in a
lot of different ways. Among the ways that women deal with this is
denial-just in order to get through the day. Another way women
deal with it is to eroticize it. In fact, one not very pleasant way of
looking at what is often described as women's sexuality or female
sexuality all the way through the masochism tradition is to suggest
that it is the eroticized response to our subordinate status. In
other words, it suggests that part of women's stake in gender is

our own sexual pleasure, as that has been socially constructed in
us. What if sexually oppressed people sexualize our oppression? I
mean to say it that way in order to extend it into its softer forms.
And I do think of myself as a feminist first and a lawyer second.
Dunlap: A couple of things. I appreciated your observations,
particularly about gender as a hierarchy. The last time that some-
one attributed the sameness position to me was in a debate with
Phyllis Schlafly. Ironically, I have never taken the position, and I
believe Wendy Williams has not either, although she can defend
herself. (Can she everl) I have never taken the position that men
should define merit and that we then should equal it. Pardon me,
but that's crap. I take the position that the values that we are con-
veying and pursuing are related to gender and at the same time
deeper than gender.
Let me see if I can give you an example. One that comes to
mind is our relationships with children. Kitty MacKinnon's statis-
tics on child abuse are interesting. Thirty-eight percent of female
children are abused and ten percent of males. That by itself ought
to tell us that sexist violence does not necessarily focus upon
women. Men are raped (I can speak to this, coming from San
Francisco and being close to a gay male community that has a
facet of violence that goes well beyond rape), men are beaten in
the street, called "fags," and killed. This is frequent all over the
country. If that is not sexist violence, then I am not quite sure
what it is. If the bond among women is based primarily upon op-
position to men and a belief that it is only women who can be
raped, then, I think, we have missed the boat.
I want to read a couple of quotes that crystallized for me my
position with relation to this question about sexuality and the er-
oticization of exploitive sexuality. The first is from a book called
Understanding Women: A Feminist Psychoanalytic Approach by Susie
Orbach and Luise Eichenbaum. The authors are talking about
seeing the future in terms of women and men in relationships:
gay, lesbian, heterosexual, bisexual, and friendships. They say
about friendships between women: "In friendship perhaps all
women will be able to achieve what has begun to be achieved as a
result of the women's movement: honest, loving relationships,
built not on fear, betrayal, competition, or envy, and not on soli-
darity in opposition to men, but on sharing contact between
equals, and support for autonomy."'

On the specific question of the eroticization of exploitive sex-
uality or exploitive sexual behavior, I offer a little piece of an in-
troduction to a book that I found tremendously inspiring and well
written: Powers of Desire: The Politics of Sexuality, edited by Snitow,
Stansell, and Thompson. The introduction is I think apropos of
not just the pornography issue, but, more broadly, the issue of
whether we posit narrowly or broadly our reactions to this tre-
mendous factual reality of assault. Do we take care of women as a
response? Do we fight back and defend ourselves as a response?
Do we make law that affords remedies and options and voices, for
example, to victims of incest now seeking restitution and compen-
sation? Do we legislate about pornography? On that subject, or at
least anticipating that subject, about a year and a half ago, the
editors of this book wrote:
Those who created the modern women's movement could choose sex
because it did not carry the same punitive consequences that it carried for
previous generations of women, and we have, by and large, chosen sex. This
is a victory, one both furthered and truncated by historical circumstance but
one, certainly, that we grasped for ourselves, not out of false consciousness
but out of desire and the impulse for freedom. This is not to imply that
sexual violence does not continue to limit and shape our possibilities. But it
is to affirm, at the same time, women's potential for autonomy and power.
We need to do this at every level of feminism, in grassroots organizing as
well as in intellectual work. We are on a long march... elevating one set of
sexual practices over others-from whatever position on the feminist spec-
trum-as more correct, more fulfilling, or even more sexy only retards this
process."1
Here is where I had a concrete problem with Kitty's position

on rape and its relationship to heterosexual sexuality. As I read
the articles, and I may have misread them, they take the position
(and I see in the pornography ordinances a position close to this)
that heterosexual sexuality is most of the time rape, that rape is
male, that being raped is female, that women do not rape, men
do, and that women are raped and men are not.
The position is then taken (paraphrasing from the "View-
10. S. ORBACH & L. EICHENBAUM, UNDERSTANDING WoMEN: A FEMINIST PSYCHOANALYTIC

APPROACH 197 (1983).
11. POWERS OF DESIRF THE POLITICS OF SEXUALrrY 41-42 (A. Snitow, C. Stansell & S.
rhompson eds. 1983).
point" article 2) that, like heterosexuality, in relation to the crime

of rape, penetration is not what is wrong with rape. It is not pene-
tration that makes it rape. It is the inequality that goes with the
situation that precludes consent that makes it rape. Thus, penetra-
tion is not definitive. I then look in the pornography ordinance at
the operating definition of pornography and I discover that pene-
tration is at the heart of the definition. Again we may be misat-
tributing views to one another.
Andrea Dworkin has taken the position that the penis is the
problem. I want to say something about The Politics of Desire, be-
cause I don't believe the penis is the problem. I believe that it is
very often the source of many problems, but I do not believe the
penis is the problem. The phrasing is more than just a semantical
problem. Here is an essay entitled "My Mother Liked to Fuck" by
Joan Nesley, an activist lesbian. Nesley found herself one after-
noon at a workshop on pornography and was thinking of her de-
ceased mother, who loved to fuck:
As Andrea Dworkin's litany against the penis rang out that afternoon, I saw
my mother's small figure with her ink-stained calloused hands never without
a cigarette held out towards me, I saw her face with a slight smile, so Joan, is
this the world you wanted for me, the world you wanted me to have where I
should feel shame and guilt for what I like, and what I did for all the years
of my life? I fought the rapist and the batterer and I did not give up my
knowledge of what I liked. Do not scream penis at me, but help to change
the world so no woman feels shame or fear because she likes to fuck, because
she likes to fuck men, women, herself, in private, as an adult, (with consent,
those are my restrictions). 3
I agree emphatically with the latter part of what you said.

When we narrow our response to these horrendous, hair-raising,
important factual descriptions of reality (I will not even contest
the percentages-I think, if anything, they are low) to a symbolic
attack upon a body of literature and media (some of which is just
as sickening as anything can be, some of which is erotic, and not
all of which is either), what we do is take on a symbolic situation
in which we are by definition not directly, taking care of the men
and the women who are victims of these phenomena.
Comment from audience: It seems to me that the men that you
12. MacKinnon, Feminism, Marxism, Method, and the State: An Agenda For Theory (pts. 1
& 2), 7 SIGNS 515 (1982), 8 SIGNS 635, 647 (1983).
13. J. Nesley, My Mother Liked to Fuck, in PowERs or DESIRE, supra note 11, at 468-70.
refer to, that were getting raped, were mostly gay men. It seems
to me that the issue there is power again-force violence-and
that the basis of the inequality in that case may not be gender, but
sexual orientation. And, furthermore I suppose that there is a
small percentage of straight men that are raped, but then I think
we have to ask ourselves who is raping them. If you were to cite
statistics that say that the majority of straight men that are raped
are raped by women, then I would think we have a problem; but
if we can identify that it is straight men that are doing the raping,
then I think that the crux of the problem is still the same.
Another comment from audience: More often than not I find my-
self in a position, at least emotionally, of thinking: "What could be
so wrong with female supremacy?" If we are all interested in
equality, it seems to me to be really equal, given that men have
had power for so many hundreds of thousands of years, that it
should be our turn now-let us have our shot at the helm, and
then we can talk about equality. For a second "academic" ques-
tion, which is a little more attuned to the passion that I feel about
this issue, I would like to ask Catharine MacKinnon: What do you
espouse or what would you advocate in terms of a feminist stan-
dard for addressing these inequalities in the law? Are you advocat-
ing one standard, granting that we have different values, that we
have different measures that would obviously characterize the
problems at this point? And if you are, are we not going to run
into the same sort of problems?
MacKinnon: Some women talk about female supremacy. It is
not my position. One of the things you learn by being on the bot-
tom is something that you do not forget: what it feels like to be
kicked. So long as your alternatives are only kicking or getting
kicked, if you remember what getting kicked was like, kicking may
make you sick or it may make you turned on, or you may choose
it over the alternative.
I will answer your question, the last one, and I will also talk a
little bit about the pornography ordinance which Andrea Dworkin
and I wrote and which Mary has taken the occasion to attack. I do
urge-as a litigation strategy, as a way of doing briefs, and as a
deep implicit as well as explicit argument-that the equality prin-
ciple can mean that no group should be subordinated to another
group on the basis of sex. We-could use the term "subordination"
that way, leaving the gender neutrality glossed the way I just did.
The other possibility is to say straightforwardly (in a sort of "thir-

teenth amendment" version of what an ERA coul& look like):
"The subordination of women is hereby abolished." In other
words, here we are in this legal system that, essentially, makes dif-
ferences out of everything, abstract rules out of every substantive
thing that it is given. It is an abstraction machine; it splits up and
fractures anything. So, for instance, you say to it: "The subordina-
tion of women is hereby abolished." You put it in such affirmative
terms that it means whenever and wherever such subordination is
encountered, something should be done about it; you use the
truly forbidden word, the truly obscene word, "women," in your
law. This is not gender-neutral in the abstract sense, for it says the
gender-specific word "women." The initial danger is that it will be
interpreted in a way that applies to everything else that looks ab-
stractly like it, raising the question: "If you do anything substan-
tive, how do you keep control?" But we haven't kept control of
the abstract strategies either, and all women have gotten very lit-
tle out of them.
I want to talk now about our pornography ordinance. We
made the choice to write a law to give women the ability to take
legal action against pornography. It does not empower the state in
the direct way that an obscenity law does. In that sense our law
does not pose an issue of the state against the people, the way the
ACLU would have you believe. It instead concerns people against
other people. It attempts to give some people-women in particu-
lar, but men, too, who are hurt by pornography on the basis of
their sex-a cause of action against the people whom they can
prove hurt them. An amazing notion: if there is an injury, there
should be a remedy. We decided to define pornography for what
it is: something which subordinates women. Penetration is not at
the heart of the definition, nor is the penis. Pornography is de-
fined as the sexually explicit subordination of women through pic-
tures or words. One of a list of concrete things also has to be
there: women finding pleasure in rape, in pain, being humiliated,
in postures of submission or display, being tortured or hurt-a
long list of particulars. The only reference to penetration actually
in there is that of being penetrated by objects or animals. One
must also add, however, sexually explicit subordination. This is
the pornographers' definition of pornography. They know what
has to be there for it to work. We just described it.
The second part of the definition spells out that men, chil-
dren, or transsexuals who are used in the place of women also
have a cause of action, so that what is made through their use is
pornography. This design is actually a new legal approach to the
question of inequality in general, and of sexual inequality in par-
ticular. It is both sex-specific and gender-neutral. It is sex-specific
because it defines pornography as pornography is. It defines por-
nography in terms of what it does to women, but it acknowledges
that what pornography does is make inequality sexy-it reflects
an understanding that whoever is on the bottom is the girl, regard-
less of whether that person be a woman, a man, a transsexual, or a
child. If you look at what happens in gay male rape and talk to
those male victims, they know that they have been treated like
women. It is part of the insult. If you look at what happens with
rape in prison, you know that the one who gets repeatedly raped
is the girl. You understand that what it is to be female is to be
targeted and stigmatized on the basis of your sexuality; you can
tell it is a stigma and not just your identity by the fact that when it
is transferred to somebody who does not share your biology eve-
rybody knows it is an insult. So, the law we drafted defines the
harm sex specifically and then says: "If you treat other people that
way, that is also an injury."
I think that anything that functions socially, on an on-going
basis, to make inequality sexy can not be dismissed as mere sym-
bolism. To say that this is merely a symbolic attack is to ignore the
abuse of women that is directly tied to it. There is nothing sym-
bolic about this abuse or our law's confrontation of it. People are
coerced into pornography and assaulted because of it. Pornogra-
phy is directly forced on people. If the people are children, they
develop the same symptoms in later life as if they had had the sex
forced on them. To reduce pornography to symbol ignores the
documented facts that connect pornography with rape, battery,
forced prostitution, child sexual abuse, and sexual harassment.
This is not to say that all those things would automatically go
away if pornography were eliminated. It is clear we are in a sys-
tem that needs all of those things and that they are all mutually
supportive. But few argue that we should do nothing about rape
because it is just symbolic of women's status, and besides it is too
hard to distinguish from intercourse, just as pornography is too
hard to distinguish from erotica. That is, by the way, the same
line, except with pornography it is easier because you have the

real stuff in front of you. With rape, women have to be believed
and nobody believes our story about rape because it looks like a
story about intercourse. And that is partly because people have
been looking at pornography.
Spiegelman: We are now going to have a second conversation
between Carol Gilligan and Carrie Menkel-Meadow. It is a great
personal pleasure for me to moderate this panel because Carol's
research has informed my own work as well as Carrie's. I believe
Carol's careful documentation of a different moral voice in the
decision-making processes of the individual has profound implica-
tions for all of us concerned with the way people relate to each
other, to the law, and to society. It gives new meaning to the femi-
nist slogan "the personal is political" because it locates in women's
personal experience a morality of care and concern for others
which has the potential to transform our polity and its underlying
assumptions from the alienated world of atomistic competition to
an interconnected world of mutual cooperation.
As the conversation between Carol and Carrie will illustrate,
that transformation can begin with a style of discourse different
from the adversarial mode which seems to dominate much of our
academic and political communication. One of the most illuminat-
ing aspects of the interaction between Carol and Carrie is the con-
trast between its cooperative mode and the more common com-
bative one. Often lost in the heat of conflict and hostile analysis
are the opportunities for synthesis generated by the kind of sup-
portive, responsive interchange which characterizes the conversa-
tion which follows.
Gilligan: Carrie and I talked about how we wanted to proceed
this afternoon, and we thought that we really wanted to have a
conversation about the legal implications of different ways of con-
structing and thinking about resolving conflict situations, moral
problems, and so forth. There is a real advantage here for me: My
work was not done from a legal perspective, although the law was
very present at the beginning stages of my work and raised a ques-
tion for me which has persisted throughout it. We thought it
would be a good idea if I began by presenting a summary of the
work that I have done as a psychologist, including recent work
which has not been published. We will then have a discussion, in
which Carrie (since she is a lawyer) will be centrally involved,
about some of the legal implications of the issues on which I have

worked.
I wanted to say at the outset that all of my research in a sense
was indebted to the Supreme Court and its 1973 abortion deci-
sion. I was a psychologist interested initially in the question of the
relationship between judgment and action. I thought that a field
that studied conflict-and, specifically, moral conflict-by looking
at how people resolve hypothetical dilemmas was fooling itself and
that we had to look at how people dealt with real situations of
conflict and choice, where people had to live with the conse-
quences of their decisions. It is easy to say what someone should
do in some hypothetical place; it is very different if you are in the
place at the time. I was looking for a situation where people were
faced with a decision which could have moral implications.
I began by studying Harvard students in the early 1970s who
were going to face the Vietnam draft. Then-this should give you
an idea of how research goes-Nixon ended the draft. There
went my study. I was back at square one waiting for another set-
ting in which to do a study of judgment and action. Then, in
1973, the Supreme Court legalized abortion. The last thing on my
mind at the time was the fact that this would bring me into con-
tact with a population of women. Though that question was not at
the center of my work at the time, I am certain that my own
thinking was very influenced by the resurgence of the women's
movement. I began to interview women who were pregnant and
for one reason or another were deciding whether or not to have
abortions. I did not make any assumptions about whether this was
a moral problem or about what the moral problem was, and this
was absolutely key to the findings of my work. I did not say,
"Well, here you are facing a decision between liberty and
life-how do you resolve it?" or, "When do you think life begins
and how does that affect your thinking about the morality of your
decision?" I simply asked the women: "How did you get pregnant
and how have you been thinking about it so far?" As women be-
gan to talk about their decision, I picked up moral language.
Spontaneously, words appeared like "should, .... ought," "right,"
''wrong,.... good," and "bad." And I asked: "When you say, 'This
would be the better thing to do,' or when you say, 'This would be
wrong,' what do you mean?" As I began to follow the moral lan-
guage which spontaneously appeared in women's narratives about
decisions that they were actually making, I began to trace the con-
struction of morality implied in this use of moral language. I en-
ded up (I'm shortcutting several steps) calling this "a different
voice." I deliberately called it a different voice; I did not call it a
woman's voice. I am going to talk later about the whole issue of
gender difference as it came into my work and as it appears in the
current analysis of findings that my research group has done.
I called the construction of morality I heard a different voice
because I was not comparing women with men. Rather, as indi-
cated by my book's1 4 subtitle-"Psychological Theory and
Women's Development"-I was comparing women with theory. I
said this voice is different from the voice that has been described
in the psychology of moral development, in moral philosophy, and
in the legal and political system which was sitting all around my
work. The way in which women were talking about the moral
problem in abortion did not fit the public discussion of abortion in
this country. In other words, it was not construed as an adversary
fight between the mother and the fetus. In fact, the whole di-
lemma arose from the very connection between them. Women
perceived that there were two lives that were in fact intercon-
nected. Women who were pregnant talked about the fact that if
they took drugs they would hurt the fetus. Here, therefore, were
two lives which were by definition interdependent, and connected
physically for about nine months. You might ask how long the
lives were connected psychically. The women sometimes said eigh-
teen years, sometimes twenty years, sometimes forever. They
asked, in effect, whether it is responsible or irresponsible, moral
or immoral, to sustain and deepen an attachment under circum-
stances in which you cannot be, for whatever reason, responsible,
and in which you cannot exercise care? Where they decided it was
not, they sometimes then concluded that abortion might be the
better thing to do-it would not necessarily be a good thing to
do, nor the right thing to do. There was seen no "right" thing to
do in this situation. It might be, however-and I quote from
women just picked at random-"the lesser of two evils," "the bet-
ter of two things," "the more responsible thing." If you are inter-
ested in all the kinds of ways in which that has meaning, I provide
14. C. GILLIGAN, IN A DIFFERENT VOICE-PSYCHOLOGICAL THEORY AND WOMEN'S DEVEL-

OPMENT (1982).
a lot of examples in my book of how that construction was worked

out and how it changed over time, and of the various things that
women meant when they said "care" and "responsibility." But the
main point was that the assumptions that underlie the "justice"
approach or the "rights" approach were not being made, and in
fact were being seen as a distortion and a deformation of the situ-
ation. Women realized that to say that they thought pregnancy
meant a life, developing through time-if nothing intervened, ac-
cident or biology-into a child, meant that you could not bring
the issue into the legal system. To enter the legal system, there-
fore, women had to act as though they did not know things that
they felt they knew, and that they did not in a sense understand
issues of connection which could not be represented within the
adversarial-rights model which pitted one life against the other. I
was therefore talking about a voice literally different from the
voice represented in psychology, from the voice represented in
moral philosophy (that psychology was wedding itself to), and
from the voice that was represented in the legal system. I began to
say: "Let us explore this difference." At this point I noticed that
women had been left out of the psychology research samples; the
interesting thing is not just the absence but also the fact that
neither I nor so many others had noticed it before. It is such an
enormous design flaw. How can organizations such as the Na-
tional Institute of Mental Health and the National Institute of
Child Health that pride themselves on reviewing research, have
funded, year after year and for incredible amounts of money,
studies that had all-male samples and never have seen this as a
design problem? While we might not be able to say whether a
study concept is good or bad, we certainly can identify a bad study
design. Since I was in the middle of this, I became very interested.
I wondered whether the representation of human development
within psychology as well as in philosophy and law (since these dis-
ciplines are closely related to psychology) was not a distortion of
female experience. I wondered further whether it was a distortion
of male experience as well; was it a distortion of human experi-
ence-a very destructive distortion? When women wanted to
speak about what they thought of as the dilemmas presented by a
problematic pregnancy, they could not even represent what they
wanted to say within these systems. It was negated. Its validity was
negated and the system began to shake the reality.
I therefore began to look and notice instances of anom-

aly-where familiar stories were told with a new slant, or where
words were being used in ways that were at odds with their usual
meanings. Examples of this are taken from a study of high school
kids. In 1980, the Handbook of Adolescent Psychology came out. The
editor, Joseph Adelson, reported that he had asked a leading
scholar to write a chapter on female adolescent development. But
when she surveyed the literature, she concluded that there was
not enough material available to write a chapter. 5 I came to tell
you about my field, to warn you about its measures, its methods of
assessment. I came to tell you that the standards of identity, stan-
dards of morality, notions about what is a "healthy" life are de-
rived from research that has not looked at women's experience. It
has just simply not looked. I thought I would like to look at ado-
lescents to see what had been missed. I was particularly interested
in adolescents because I had noticed that while girls at about ten
or eleven years of age seemed to be quite outspoken and fairly
sure of themselves, by nineteen they had developed an acute ten-
dency toward self-doubt and self-questioning. There was a kind of
hesitation among women, and even a kind of disbelief in their
own ability to talk about reality, that was very troubling. I once
interviewed a woman in her early twenties about a moral di-
lemma. She said: "Would you like to know what I think, or would
you like to know what I really think?" I thought that this was very
interesting; she had learned to "think" in a way that was very dif-
ferent from the way that she "really thought." I thought about
that when I talked about secondary education and the failure of
interpretive schemes to reflect women's experiences. I thought I
would tell you about Amy and Jake, whom I wrote about in my
book when they were eleven.' 6 When they were interviewed again
at the age of fifteen, the interview caught Amy at the moment
where you could see the erosion of self-confidence starting to hap-
pen. During the re-interview, she was again asked about the Heinz
dilemma, which is one of Kohlberg's standard dilemmas and one
of the most frequently used instruments for assessing moral
maturity.
In the Heinz dilemma there is a man, Heinz, who cannot af-
15. HANDBOOK OF ADOLESCENT PYSCHOLOGY 114 (J. Adelson ed. 1980).

16. See C. GiLLIGAN, supra note 14, at 24-39.
ford to buy a drug that will save the life of his wife. The question
is: Should he steal the drug? Amy said, "I hated these dilemmas
last time as much as I do now," and she elaborated the same rea-
soning that she had given at eleven: "It all depends. What if the
husband got caught? It would not help his wife. And anyway, from
everything I know about cancer, it cannot be cured by a single
treatment. And, where would this drug be, sitting out on the shelf
of a drugstore? The whole situation is unreal. ' 17 She then said:
"Like I had said last time [actually she had not], life comes before
property. He should steal the drug."
That, by the way, is the "right" answer. She jumps a full
stage in moral development, as measured by Kohlberg's
scale-from eleven to fifteen years. But look what she has done
now: She is learning that if she enters into a construction of real-
ity which she has identified as unreal and problematic, she will
advance in "moral development." In other words, if you equate
moral development with justice reasoning, then, in a sense you
render her more deeply uncertain, more susceptible to the tension
between what she thinks and what she really thinks, less convinced
that her voice will be heard.
I wanted to tell you about the re-interview of Jake at fifteen
because that is very interesting, too. It tells us how psychological
systems of assessment distort male as well as female thinking. Jake
is the one who said at age eleven, that moral dilemmas are like
"math problems with humans." Anyone who can do math can
solve these problems and agree on what the right answer is: that
is, that life comes before property. At fifteen, he says (beginning
the same way he did at eleven): "Money comes and goes but
human life only comes once, so therefore the wife's claim to her
life takes precedence over the druggist's claim to his property."
But then Jake is asked to comment about the fact that the drug-
gist feels strongly about his profit. Jake responds: "He's got the
wrong set of priorities." That's the approach that says there is one
logical way to answer and that if you disagree it is because you do
not understand or because you have the wrong set of priorities.
We say in psychology that it is because you are at a lower stage.
But then Jake says something else which is extremely interesting.
17. The comments of Jake and Amy are not direct quotations, but are a summary of
the argument presented using the language of the transcribed interview.
He starts to consider the situation and the feelings that would be

evoked both by theft and by death and he says: "I think that what
the druggist is going to experience is some sorrow and some an-
ger over losing his money, and it is a shame that he has to feel
that." Look what Jake is doing now: he is not detaching himself
from the druggist. Instead he is moving very close to the druggist
to consider how a druggist would feel in that situation. But, he
says: "It is not as deplorable a thing as the idea of Heinz-with his
wife dying and him having to deal with his wife's dying."
The point I want to make is that, when measured by
Kohlberg's scale of moral development, Jake does not show any
evidence of moral development between eleven and fifteen be-
cause his justice reasoning has not changed. Thus, these interpre-
tative schemes encourage Amy to become more deeply uncertain
and Jake to become more simply dogmatic-to take the position
that anyone who does not agree with him has "the wrong set of
priorities." I want, for the sake of time, simply to talk about the
implications of this. Three anomalies can be described very
quickly: a new way of looking at an old story; a different way of
looking at a familiar word; and two ways of using the word "re-
sponsibility" that have very different implications and that create
a systematic process of misunderstanding and mistranslation.
A new way of looking at an old story: I am doing research at a
girls high school. Because of the study, one of the teachers who
was teaching a course called "From Innocence to Experience" no-
ticed that the four books in this class-Billy Budd, Lord of The
Flies, A Separate Peace, and Othello-had almost no female charac-
ters. She raised this issue with the class. First they read Member of
the Wedding, but the students did not like it. So the next year she
started to have them write essays entitled: "If I were Captain Vere
(in Billy Budd)," or "If I were Abraham in the Abraham and Isaac
story." This is an in-class example of these essays. One girl wrote:
Were I in Abraham's position, in a position of choosing between disobedience to God
and sacrificingmy son, my choice would clearly be disobedience to God. The reason
for this is that if God is said to represent such things as love, and life, and truth,
[and if God] were to give a command involving killing and making necessary lying
...as Abraham does to his son, I would not wish to obey him and defy the qualities
that I hold as important.
In other words, it is not simply the command involving killing
that is problematic; it is also the necessity for lying, meaning the
necessity for Abraham's detachment from Isaac. The moral prob-

lem identified in this story is one of detachment, and the lying, as
the sign of detachment, becomes the harbinger of violence. Em-
phasis on detachment as morally problematic rather than the
moral ideal also appears at the end of the essay as the student does
not detach herself from Abraham. Note also the vulnerability of
this position. Its strength becomes its vulnerability. Look at the
final move she makes:
This answer, however, isfrom a person who probably cannot even understand 'fear
of God" and who is treating it, the question, symbolically instead of literally. Per-
haps if I had lived at the time and felt God's actual power and wrath my decision
would be one of obedience.
She locates herself in time, she defines herself as having a per-

spective, she says there are limits on how much she can under-
stand, and so forth. You see the point.
A different way of looking at a familiar word: A girl is asked how
she wants to improve herself, change in the future, and what she
might like to change about herself. She says: "I'd like to improve
or expand on my compassion." She continues: "I'm sometimes not
very understanding. I have a habit of putting myself in another
person's place which I have found is not fair." When I talk about
anomaly, I talk about saying that what is defined as the essence of
fairness is not fair. The girl writes that putting herself in other
persons' shoes is not fair. Watch her reasoning. This is the kind of
place where girls learn that their answers are "wrong": "That is
not what we mean by 'fairness' "; "This is not what we call a
'moral problem' "-that kind of thing.
I have been looking at specifically discrepant data, data that
are discrepant with the interpretive schemes. People use these
words in ways that seem "wrong", and I ask from what perspec-
tive the usage is "right." For example, they feel that things are
not "fair" when they would do things differently and think in a
different way:
If they get angry I would say: "All right, how can I understand that?" I will put
myself in her place, and I will say: "I would not become angry at that; that does not
help very much."
Look at the criteria-it is unfair because it does not really help

very much. Help with what? Help with compassion? Help with un-
derstanding? Thus you see that detachment and objectivity, which
are usually valued as ways of solving dilemmas, are now identified

as the problem, the impediment to working out the problem. You
see two modes of thinking that are not just "different," that are
not just alternative, but are in fundamental tension. What is val-
ued by one-detachment, impartiality, the ability to stand back,
the figure of blind justice-is defined by the other perspective as
"the problem."
So you have two ways of "looking" that are in essential ten-
sion with each other, a tension that does not resolve itself. Where
does this tension come from developmentally in the life cycle? Let
me tell you about what happens when you then go back and look
at many women trying to see through this double set of lenses.
When you have these two ways of seeing, focusing, and highlight-
ing, in a sense revealing the same thing in a different light, you
experience a constant blur-almost like astigmatism.
Two ways of using the word "responsibility": One high school girl
says: "Responsibility means making a commitment and sticking to
it." This is what we usually mean by responsibility: personal com-
mitment and contractual obligation.
Another girl's answer to the same question:
Responsibility is when you are aware of others and you are aware of theirfeelings.
Responsibility is taking charge of yourself by looking at others around you and see-
ing what they need and seeing what you need, and taking the "initiative," taking the
initiative to respond to your perceptions of your own and their needs.
Responsibility in this context means response. The concept of
autonomy remains, but it is conveyed by the seemingly paradoxi-
cal conjunction of "taking charge of yourself by looking at others
around you." It does not mean taking charge of yourself by sepa-
rating yourself. Rather, it means taking charge of yourself by
looking at others around you, seeing what you need, seeing what
they need, and taking the initiative to respond. Doing something
once you have seen it.
This is what I mean by two voices, two ways of speaking. One
voice speaks about equality, reciprocity, fairness, rights; one voice
speaks about connection, not hurting, care, and response. My
point is that these voices are in tension with each other. In my
work I have attempted to ask, "What does it mean to include both
voices in defining the domain of morality, of humanity, and so
forth?" I want to give one example that illustrates well what I
think it means, and what this inclusion implies. I do not think it
implies a simple addition, a kind of separate-but-equal thing or an

androgynous solution. I think it implies a transformation in
thinking.
The best way I can illustrate this is through an example pro-
vided by two four-year-olds who were playing together and
wanted to play different games. The girl said: "Let's play next-
door neighbors." The boy said: "I want to play pirates." "Okay,"
said the girl, "then you can be the pirate who lives next door."
She has reached what I would call an inclusive solution rather than
a fair solution-the fair solution would be to take turns and play
each game for an equal period. "First we will play pirates for ten
minutes and then we will play neighbors for ten minutes." Each
child would enter the other's imaginative world. The girl would
learn about the world of pirates and the boy would learn about
the world of neighbors. It is a kind of tourism on a four-year-old's
level. Really, it's simple. But the interesting thing is that neither
game would change-the pirate game would stay the pirate game,
and the neighbor game would stay the neighbor game. Both chil-
dren would learn both games, hopefully for an equal period of
time. It is what is called "androgyny."
Now look what happens in the other solution, what I would
call the inclusive solution. By bringing a pirate into the neighbor-
hood, both the pirate game and the neighbor game change. In
addition, the pirate-neighbor game, the combined game, is a game
that neither child had separately imagined. In other words, a new
game arises through the relationship. I
That is basically my point: The inclusion of two voices in
moral discourse, in thinking about conflicts, and in making
choices, transforms the discourse. It is no longer either simply
about justice or simply about caring; rather, it is about bringing
them together to transform the domain. We are into a new game
whose parameters have not been spelled out, whose values are not
very well known. We are at the beginning of a process of inquiry,
in which the methods themselves will have to be re-examined be-
cause the old methods are from the old game.
I want now to tell you very quickly what you see when you
look at both male and female thinking through these lenses. Im-
mediately two things change-two equations that have prevailed
and have formed a self-enclosed system.
The first is the equation of human with male. No longer can
we know about human development by studying men. All our def-

initions of identity, morality, power, and health that have been
derived from studies of men's lives are suddenly held in ques-
tion-they seem to be highly tentative and possibly problematic.
We can not even know how problematic they are. We now begin
to take the time to look at those lives we have never looked at in
defining "power," "identity," "morality," "health," "well-be-
ing,"-you name it. There is a sense that once you see and take
seriously this problem, everything else becomes provisional-all
the categories of judgment and assessment.
The second equation, which has sustained the first, is the
equation of virtue for women, or caring by women, with self-sacri-
fice. Look at how neatly that perpetuates the system. "Human" is
male and female virtue or "care" is self-sacrifice. So the good wo-
man who values care would sacrifice herself rather than challenge
the equation of human with male. In a sense it is brilliant. That is
why women in the name of morality have cooperated with these
all-male systems. In psychology women have said: "Let us help
you, in the name of care, to build this portrait, of human develop-
ment"-a portrait, which I will now demonstrate, distorts male
experience as well as female experience.
Now to the last part of this presentation: findings. We asked:
"What do we learn from looking at women?" What did we learn?
The abortion study was the first study that drew moral categories
from the analysis of women's language and thought. The first
study ever. So we said: "Let's take the categories that we have
drawn from this-how women in fact empirically define the moral
domain, by looking at women's use of moral language." And eve-
rybody said: "That's not a moral problem." We said: "Well, we
don't know. How can you have a definition of moral problem that
excludes this language?" In essence, this language contained a re-
alization that people's lives are interdependent. Therefore, the
notion that life is a zero-sum game, that one is egoistic or altruis-
tic, is based on a false premise. It denies the reality of interdepen-
dence. If one asks instead, "How does one act with responsibility
and care toward oneself and toward others,?" the moral problem
changes.
Now I will go back to the question of gender differences. A
student working with me found that you could systematically dif-
ferentiate the two voices and the way in which people-(this is
absolutely crucial)-defined a "moral" problem. In other words,

the voices were manifest in the very definition of the problem,
because the definition of the problem sets the answer. (We all say
that, but we do not actually think about what it means.) We asked
people to describe an experience of moral conflict, a situation in
which they had to make a decision when they were not sure what
was the "right" thing to do. They would describe the situation
and then we asked: "What was the conflict for you in that situa-
tion?" We could thus see how the person constructed the conflict.
Finally, we asked: "In thinking about what to do, what did you
consider? What did you do? Do you think it was the right thing to
do? Right just for you, or for anyone?"
You can identify the presence of justice reasoning and care
reasoning in the construction, resolution, and evaluation of the
problem. What did we find from this analysis? Across six studies,
most people, male and female, represent both voices in defining
and resolving moral problems. This was true with regard to an
average of sixty-five percent, and in no sample less than fifty per-
cent, of the approximately two hundred people in the study, in-
cluding medical students, college students, high school students,
and adults across the life cycle. Of the two hundred people, sev-
enty percent were women, a percentage we thought to be appro-
priate, given our focus on women's experience. Nevertheless,
most people, both men and women (the percentages were not dif-
ferent) represent both voices in defining moral problems.
The unexpected finding of the study was that there is a very
strong tendency to focus on one voice or the other. Let me make
this very clear. The presence of both voices suggests that most
people know about both inequality and detachment as moral
problems. Most people use both voices. As a developmental psy-
chologist, I would argue that this results from the fact that ine-
quality is not just a social event but rather is a life cycle phenome-
non. Everyone has been a child, everyone has experienced
inequality, everyone knows what it's like to be less powerful than
someone who is more powerful. Since inequality is a fact in the
human life cycle, the idea of justice will recur over and over again
across every generation. But there is another fact in the human
life cycle: that no human child survives unless an adult attaches to
that child. What characterizes the human species is its long period
of dependence. And attachment has a different dynamic and a dif-
ferent set of moral implications. By virtue of making an attach-

ment to someone, we become vulnerable to him or her. And not
only the parent but also the child is powerful: she or he is able to
have an effect on others through the attachment. One is not pow-
erless in a situation of attachment, but the nature of the power is
different from the power one holds by virtue of inequality. It has
nothing to do with domination. Rather, it has to do with efficacy,
the ability to move, to have an effect on another person, to elicit a
response from others and to respond to them.
Everybody knows about attachment and everybody knows
about inequality; my findings basically represent that fact. Every-
body thinks that inequality and detachment are moral problems.
That notion is built into the life cycle and then of course is con-
structed in the social context.
The next finding is that most people who use both orienta-
tions focus on one orientation and minimally represent the other.
About seventy percent of people who use both orientations focus
on one, and this finding holds across orientation and gender. This
is very key for people in the law. The adversarial system can not
easily accommodate two perspectives which are in a fundamental
tension with each other. There is a wish to resolve or reduce am-
biguity, to arrive at certainty, and that is done by eliminating one
perspective or the other.
What is the nature of the focus phenomenon? There is in
these samples of advantaged Americans an overwhelming ten-
dency in men to focus on justice and only minimally to represent
caring. Only three men from a total of sixty demonstrated a care
focus. Among these advantaged American women, some focused
on justice, and some on care (about sixty percent). Look at what
happens if you start, as psychology did, with samples of men. You
will come empirically to the position that moral reasoning is jus-
tice reasoning. In a sense you can now hear through these findings
the empirical basis for such statements of psychologists as Freud's
observations that women have less sense of justice than men and
that women have less tendency to focus on justice issues in resolv-
ing moral problems or Piaget's observation that girls are less con-
cerned with the elaboration of rules and are "deficient in the legal
sense." If you start with all male samples, the inclusion of women
becomes problematic because it challenges the very definition of
the problem. You have this group that focuses on care and cannot
be accounted for by a theory that equates morality with justice

reasoning. The question shifts by virtue of the observation that
both men and women in fact represent both justice and care con-
siderations in defining moral problems. The question shifts from,
"Why are women confusing morality with care or interpersonal
relationships?" to, "Why are men not representing in their formal
decision-making procedures what in fact is present in their think-
ing-the realization that there is another dimension to moral
problems, a dimension which has to do with issues of care, respon-
sibility, and interdependence?" The question thus really shifts in
some ways away from women and toward men, toward a
phenemenon within male psychology which permits what is
known, seen, and present to be lost or unrepresented. This work
(which initially started with taking seriously the discrepant data on
women) thus leads to a change in the question.
I want to say one final thing. If you want to support what has
been in the Western tradition since Plato-that is, the notion of a
unitary truth, that virtue is one, that its name is justice, that it is
part of the sense of one right answer upon which we all, in the
end, can agree-then you will select an all-male sample. It is a
very interesting thing. The inclusion of women will challenge this
tradition and make it impossible to sustain a unitary view. In that
sense this inclusion brings in the question of difference, of two
perspectives. It offers the possibility of a more adequate represen-
tation of human experience by including what formerly was ruled
out by definition and then sustained by a major flaw in research.
Menkel-Meadow: Let me start by telling you a little bit about
how Carol's work related to work that I was doing as a lawyer. As
feminists have said, the personal is the political. So let me start
with my personal story so that you can see how it has been af-
fected on many different levels by some of the things that Carol
has just been speaking to us about. As a practicing lawyer, for
some years engaged in quite difficult battles, I was struck by a
number of ways in which I felt that I didn't belong in that particu-
lar structure or system. There were disturbing things about it. I
was unable to explain to myself and to others what in particular
caused me to have some difficulty with it.
The first level from which I approach this is my individual,
personalistic, experiential level. This level, I think, represents an-
other element of the feminist contribution to law. Our individual
experience has something to tell us about the way in which we

know the world and the way in which we know the law. When I
came to be a law teacher, I had to begin to explain this world with
which I had some difficulties to other people. I had increasing dif-
ficulty describing the structure of what I saw in a way in which I
felt comfortable. I increasingly wanted to bring people into it as I
started to talk about what I did not like about it. So as a teacher, I
was struck by the fact that I was speaking in two voices: the voice
that I had to speak in, in order to be a teacher in a predominantly
male institution, and the voice which attempted to tell my stu-
dents what I really thought. This latter voice attempted to convey
that there were a number of values or possibilities in the legal sys-
tem that were not expressed in the world as I knew it, both in
practice and in law school. On a third level, I began as a scholar to
look at what it is that creates the legal structure in which I had
this difficulty. Just as I finished a major piece of work on what is
problematic about legal negotiations as I perceived it, I read
about Amy and Jake.
I would like to do a speculative meditation on Amy and Jake,
if I might, and use Carol's example to tell you what Amy and Jake
said to me about the legal system. I'd like to use that example to
explore further how we might look at the legal system with that
double lens or double vision Carol describes. First, let's look at
Amy and Jake when they were originally studied, at eleven years
of age, and then maybe we'll have a few words to say about them
at fifteen. One of the interesting things about the Amy and Jake
description is the different way in which they approach the prob-
lem. As Carol says, the way in which the problem is defined fre-
quently suggests the solution.
One of the things that Amy does that might be of interest to
law students is typical of a "bad" law student: Amy "fought the
hypo." When asked whether or not Heinz should steal the drug,
Amy asked a lot of questions about the situation. At fifteen, she is
still fighting the hypo. "Look," she says to the researchers, "you
have given me a totally silly situation that I do not think really
exists in the world. Or if it did, I would know a whole lot more
about it." She asks for what has come to be known in academic
circles as "a greater feeling for the context." Law students, when
faced with hypotheticals that seem to be missing something (per-
haps facts about the particular people in the situation, or about
MITCHELL LECTURE
the political context in which the case is found, or-to use the
legal realist phrase-about what the judge had for breakfast that
morning), usually behave the same way Amy did. They feel that
the problems are disembodied and disemboweled from the way in
which they occur in the world.
When I thought about Amy's response, I thought that we in
the legal system may be focusing our problems too narrowly.
Through her use of a different voice, Amy tells us that we may
need to know a great deal more about facts and about situations
before we can make decisions about them. What would those
other facts be? What else would we want to know about the Heinz
dilemma before we would be satisfied, as law students and lawyers,
that we could solve the problem? Take that a step further. Amy
not only fights the hypo, she approaches it in a different way. As
Carol has pointed out in her book and this afternoon, Jake saw
the problem as an algebraic equation with people; there is the
druggist, and there is Heinz with Heinz's wife. How do we balance
those equities? How do we decide between those two people? Jake
"gets it right." He says: "Life is more important than property, so
life wins." Amy says: "I see two people with a problem here: the
druggist, whose goal in life is to make a profit; and Heinz, who
would like to save his wife's life. Is there not some way of holding
the needs of both of those parties constant, and trying to work out
another solution?" Like the "pirate-next-door game," Amy begins
to think about other sorts of solutions to the problem. She does
not say (at least in that earlier part of the study): "I think Heinz
should or should not necessarily steal the drug." Have Heinz and
the druggist talked about some other ways to solve this problem?
How about an installment contract? How about payments over
time? Has Heinz explored other ways to raise the money? Has the
druggist thought about ways of providing a drug and perhaps get-
ting payment in some other way?
Amy doesn't see the problem as presenting, by necessity, a
bipolar choice. Amy's approach to the problem is in direct contra-
diction, I think, to the way we typically solve problems in the legal
system: in a bipolar, win-lose way. The drug is either stolen or it is
not, and it is either right or wrong to steal. Thus, if Heinz steals
the drug, and is later prosecuted for it, he will be exonerated if he
can come up with a series of legally recognized justifications for
stealing it. Amy tells us that if we learn more facts and we take the
needs of the parties and hold them constant, perhaps we can come
up with some other solutions-solutions, as Carol pointed out,
which might not have been thought about if we looked at the
problem from the perspective of only one party in the problem,
either Heinz or the druggist. Amy is trying to remember every-
body as she tries to solve the problem.
Amy then does another thing with the problem. She asks, as
Carol reports in her book,"' whether Heinz and the druggist ever
sit down and talk about this. She wants to know why she has to
solve the problem. She uses "I" as a third person looking at this
problem from the outside. Maybe, she muses, if they sat down and
talked to each other, they would come up with yet a whole bunch
of other solutions that I, sitting here as a third person, could not
think about. Perhaps the act of dialogue itself might produce
some other solutions. Amy thus suggests not only different kinds
of substantive solutions, she also thinks of a whole different sort of
process: dialogue between the parties. Now, I think that has obvi-
ous implications for our adversary culture and our adversary sys-
tem. Our Anglo-American culture and adversary system require,
for the most part, that two parties talk to a judge. Amy and Jake
are asked to play judge for Heinz and the druggist; they are asked
to decide whether Heinz is right to steal the drug or not. Perhaps
there are other forms that might encourage the parties to come
up with other solutions.
I want to come back to yet another dimension of how Amy
and Jake reform the way in which we might look at legal decision
making and problem solving. This is something that is evident
during both of Amy's interviews. She says: "Well, suppose Heinz
steals the drug and then he goes to jail. That is not going to do his
wife any good because in addition to the drug she also needs the
relationship with her husband to get her through this difficult
time of what may turn out to be terminal cancer." Amy is thus
concerned with preserving the relationship of the parties and
looking at the situation in which they are imbedded. She looks
both at the past and at the future, considering the effect on the
parties of a certain decision.
Maybe I have taken too much out of the Amy and Jake prob-
lem. It is, nevertheless, an interesting meditation on the legal sys-
18. See C. GILLIGAN, supra note 14, at 29.

tem because what we see in Jake's description is pretty much how

the Heinz dilemma would get solved if it wound up either in court
or if the parties attempted to negotiate something between them-
selves. It was from that work, in looking at how to be a practicing
lawyer-in a courtroom, as a negotiator, or as a legal problem
solver-that I began to rethink the theory of legal structure. My
re-examination could well have been inspired by how Amy looked
at the problem.
I should add here that I have noticed, as did Carol in psychol-
ogy, how many of our conceptions of what the legal system ought
to be and ought to do were derived exclusively from male practi-
tioners and male scholars. The law may thus represent an embodi-
ment of Jake's voice, the male voice. As a double footnote, 19 I,
like Carol, want to say that although I am speaking of male and
female voices, I am simply using those terms as a code for what
she observed to exist empirically in those two genders. All of us
have elements of both of those voices. Those men who see them-
selves fitting the description of the female voice should know that
that is probably who they are, and vice versa for women. I use
that as an easy way to talk about this material, but one that is not
necessarily accurate for each one of you individually.
What would the legal system look like if Amy had devised it,
either alone or with Jake's help? As I said, Amy might use differ-
ent forms or different processes. To do this, let's look at the way
the Anglo-American court system is in fact structured. We have
basically a one-way communication, adverse parties talking to a
judge. There may be a witness or, in more complicated form, a
jury. But all of this communication is directed at somebody else.
There is very little direct communication between the parties.
Picking up on Amy's process notion that the parties might talk to
each other, we can imagine a structure in which the parties might
be asked to sit down and talk about whether the drug should be
stolen or financed in some other way. One form that is beginning
to emerge, which in some sense is a reaction to this adversary
structure, is alternative dispute resolution or mediation.
I do not have time today to talk about a number of other
important problems which may arise out of that alternative form,
which attempts to get parties talking to one another. I think, how-
19. See supra p.27.

ever, that it is no accident that that particular form of dispute res-

olution is arising in the legal culture at this time. It comes with
the kind of dissatisfaction that we see with that one-way communi-
cation and with the requirement that somebody outside of the
problem must make the decision for the people who are in it.
If the parties are not in accord, they will do what most parties
do when they are in dispute-they will probably arrive at a solu-
tion by negotiation. Typically, a plaintiff and a defendant-Heinz
and the druggist-will start arguing with each other. Heinz might
say: "I can't pay you anything." The druggist would respond: "I
want one hundred dollars." At some point, they will split the dif-
ference, settling on paying perhaps half of what the druggist
wanted.
What's wrong with that? What's wrong, according to some
people, is that it reflects one form of the female voice-it is com-
promise, it is a combination, it is meeting somewhere in the mid-
dle, and it may leave both parties unhappy. What Amy was trying
to do was to hold both parties' needs constant and to meet both
sets of needs at the same time. Having the parties meet each
other's needs does not necessarily result in compromise or accom-
modation, which is the way in which the female voice is frequently
and inaccurately seen-as conciliatory, accommodating, giving up.
As Carol's example of the "pirate-neighbor" game illustrates, by
searching for other solutions we might meet both parties' needs
without having to compromise. A new synergistic solution might
emerge simply from having them talk to each other directly about
their needs. If we learn to listen to the "Amys" of the world, we
might begin to imagine different kinds of constructions and differ-
ent ways of looking at our legal system in solving our legal
problems.
That is just a very brief introduction to the kinds of things
that you can do with this. One thing I always like to tell my
"Jake" students is to try to think of themselves as "Amys." Simi-
larly, "Amys" ought to look at the world from a "Jake" perspec-
tive; there is, after all, great value in the current system. The key,
as Carol has indicated, is to try to imagine a legal system that
might include both.
What are some other implications of this? I liked another
MITCHELL LECTURE
character in Carol's book, Hilary,2 ° very much. Hilary was a sub-

ject of one of the studies, and, interestingly for our purposes, Hil-
ary was a lawyer. Hilary talked about one of the dilemmas of the
courtroom which most trial lawyers occasionally encounter. She
perceived that the opposing lawyer had failed to make use of a
document that would have been helpful to that lawyer's case. Hil-
ary sat there and thought: "What should I do? The lawyer is do-
ing a lousy job." Hilary is faced with the dilemma of the two
voices, of the two ways in which she has been trained. That ethic
of care which is within her prompts her to see the needs of the
other lawyer's client, and some part of her wants to reach out and
help. The more traditional critique of that problem is to point out
that our legal system suppresses the truth and that Hilary wants
the truth to come out so that a better decision can be reached.
But I think that Hilary takes it a step further. It is not just the
truth that matters to her. It is the fact that she experiences some
care for the plight of the party on the other side. She is impris-
oned in the role of an advocate who has been told that her role is
to be a zealous advocate for her client and that she would be step-
ping beyond that role if she were to reach out and help the party
on the other side by either telling the lawyer about that document
or herself submitting the document. Hilary, if I remember cor-
rectly, decides to listen to the lawyer's voice. She says nothing
about the document.
Hilary's account led me to speculate on what our code of eth-
ics as lawyers might look like if Hilary herself had created it.
Would Hilary have something to say about the way in which we
construct our ethical rules, which represent the lawyer's effort to
cope with moral problems by embodying principles for their reso-
lution in an increasingly conflicting and confusing set of rules?
Here's where we might begin to see the kind of things that Carol
talked about: response with a sense of autonomy, concern, care
for the other side, coupled with some appreciation of the fact that
the parties may have different interests and that there might be a
need for some rules. But I wonder whether the rules would be as
protective of the profession as they currently are, or whether they
might pay a little bit more attention to the relationship, not of
lawyer-to-client or lawyer-to-lawyer, but rather client-to-client and
20. See C. GILLIGAN, supra note 14, at 134-35.

perhaps lawyer-to-other-client.
These are some of the kinds of questions that you can think
about as you speculate-those of you who are going to be Amys
and Hilarys in our legislature someday-as to how you might
build a legal system with that voice. It is very clear to me that
certain ethics or rules of behavior or notions of what is morally
and ethically correct behavior are derived from a male image of
what is appropriate within the legal system.
It is no accident, it seems to me, that that little drawing I put
up there to illustrate the structure of legal negotiation looks like a
football field. It is no accident, I think, that our court imagery is
frequently described in battle terms. "Well, on this motion we
won the battle, but who knows how the war will go?" We have a
conception, as we frequently do in war, that one party must win
and the other party must lose. The court is very limited in the
remedies that it can award, and people begin to think in those
kinds of limited, winless ways.
What would the practice of law look like if Amy and Hilary
had a greater voice?21 On this question, I think it is important to
take note of at least one of the issues that Mary alluded to this
morning: the numbers of women in a profession. As a lot of socio-
logical research tells us, to the extent that women are tokens in a
profession, and to the extent to which Amy and Hilary live in a
world in which they are surrounded by people speaking in differ-
ent voices and looking through different lenses, they may not feel
free to express alternative ways of practicing law or looking at the
legal system. It is, therefore, important to look at the numbers of
both men and women who have this different voice and have be-
gun to develop some support for expressing it and different ways
of being able to practice law.
When I was speaking to a group of practicing lawyers about
some of these subjects a few months ago in Los Angeles, a very
experienced district attorney began to talk to the audience about
how she viewed the trial process as one of creating a relationship
with the other participants in the courtroom. She had been
trained, as most of us are, in the ethic of persuasion and argument
and intimidation of the decisionmaker (especially if the deci-
21. See Menkel-Meadow, Portiain a Different Voice: Speculations On A Women's Lawyering

Process, to be published in 1 BERaKEY W.LJ. (1985).
MITCHELL LECTURE
sionmaker is a jury of lay people as opposed to a judge). Like me,

when she began to operate in that mode, it did not feel comforta-
ble to her; it did not feel like "who she was" or "what she wanted
to express." Over time she began to express herself as who she
really was in the trial court. She realized that she set a completely
different tone in the courtroom. Her goal was not to persuade the
jurors or judge to see it her way, but to have a quiet conversation
with them that created an intimate relationship in which she
would ask them to examine their own views and values and sense
of the facts in a way that she thought attempted to appreciate
their reality as well as her own. At least from her reports, she has
been no more or less successful than anybody using the other
mode. One might take heart from Carol's work, realizing that the
different voice might inform the way in which one both thinks
about solving legal problems and practicing law.
One final thing before I close. Kitty made reference this
morning to the fact that much of this notion of "how we see our-
selves in gender terms" is socially and politically constructed for
us. One view that someone might have of all this is that all I have
just described as "the woman's way of being" is not indigenous to
women. This has occurred because it has developed in the shadow
of the man's world. We have needed to develop our sense of rela-
tionship because historically the only way a woman has amounted
to anything in this world has been through her relationship to
some man. My own view on that topic is that while others look at
the origins of these differences and begin to unpack the social and
political constructs in which they originated, the differences re-
flect reality at the present time. Furthermore, I think it is useful
to ask-even if one's sense of care and of relationship has devel-
oped out of the necessity for survival in the world in which one
has been powerless-if those values are intrinsically important
and have something to say about the way in which we look at our-
selves. I think it is important to use them as a way of reconstruct-
ing all the institutions in which we live at the same time that we
reconstruct ourselves. It seems to me that one of the wonderful
things that feminist discourse has done to the law has been to
make us look at the method by which we make a new world at the
same time that we argue about the substance of what that new
world should be. I hope that some day there will be unity between
the substance and the method.
Gilligan: I would like to take a couple of the things that Car-

rie just said a step further. What really is so interesting to me is
that the concept of gender has three dimensions: a biological, a
psychological, and a cultural dimension. Also, the concept of gen-
der does not fit the assumption that the opposite of the one is the
many, since there is neither one nor many genders, but rather
two.
Gender is a dimension of physiology, but it is also a dimension
of identity-a psychological construct. We define ourselves as
gendered. We cannot speak this language and use its pronouns
without identifying ourselves as either male or female. Children,
by the age of three, identify themselves as either male or female.
With very few exceptions, gender identity remains constant across
the life cycle. It's one of the few things that do. Identity can
change in all kinds of other ways, but gender tends to remain con-
stant. Gender is thus a component of biology and it is a compo-
nent of identity; it has a physiological and it has a psychological
dimension.
But gender also has a cultural dimension. It is socially con-
structed. We have gender-based norms and gender values. My
sense is that it is like the nature-nurture argument-it is absurd to
reduce it in either direction. Human personality and experiences
are shaped neither simply by nature nor simply by nurture. In
fact, that dichotomy ignores completely the psychological dimen-
sion-the dimension of identity and interpretation.
Gender, obviously, is a dimension of biology. It is also a di-
mension of identity and a dimension of social roles and values. But
the experiences of inequality and attachment are not cultural con-
structions, although in different cultures they may take on differ-
ent meanings. Inequality and attachment are facts of the human
life cycle. Every person in this room has experienced inequality by
virtue of having been a small child. Everyone has experienced at-
tachment; if someone had not taken care of you, you would not be
here. As I indicated before, there have been social deformations
of both equality and attachment. The deformation of equality ap-
pears in the equation of human with male, and the deformation of
attachment in the equation of care with self-sacrifice. And this
equation leads to the sense that caring is the same as pleasing
others or effacing oneself. Thus, both moral ideals, justice and
care, basically have been deformed. Both have to be reconstructed
in different ways. That, it seems, is what's so forward-looking

about the subject of today's debate. How do we reform it? What is
the nature of the transformations?
I think two of my findings are helpful for this discussion. One
is the presence of both orientations in most people-probably in
all people. Everybody knows about inequality and thinks oppres-
sion is a moral problem, and everybody knows about attachment
and thinks that detachment is morally problematic, the turning
away from someone in need. The other useful finding is the "fo-
cus phenomenon": that people tend to focus on justice or care in
defining and resolving moral problems. All the men in our sample
except three focused on justice. Thus, men who knew about care
and detachment as morally problematic turned away from this
knowledge when describing an actual problem. I think a lot of
history demonstrates this. It may be a vicious cycle; forgetting has
been encouraged and celebrated in terms of stereotypes of
masculinity.
Among the women, the focus was divided. Some focused on
justice, some on care. In a sense, we saw that with Amy. I think of
these as "the women." Carrie, your reading of Amy is not exag-
gerated. It is very well supported by the text. At fifteen, Amy can
now see in both ways; she can see these two ways of thinking. How
could she not? Justice reasoning must correlate with educational
attainment in society. The problem is that if one voice is cele-
brated, Amy is going to let go of the other one, at least as an
articulated public voice. She will learn to speak in the voice which
everybody hears and understands. These two findings seem to be
in tension, but it is important not to simplify them.
Let me tell you two lawyers' responses to questions about
moral conflicts in legal practice. They're interesting. Watch how
these lawyers portray two ways of looking at a single image-the
image of the game. (This picks up on Carrie's way of saying:
"Look at this, does this not look like a football game?") The law-
yer who focuses on the justice orientation resolves the dilemmas
he faces by saying: "I have moral dilemmas all the time but I usu-
ally have no problems solving them." You would not have a prob-
lem solving them ifyou took the "algebraic" approach because
everyone would agree.
He says: "I usually resolve the dilemmas according to my in-
ternal morality. The more important, publicly, your office is, the
more important it is that you play by the rules." I want to focus

on this: the game imagery. "You play by the rules because society
hangs together by these rules. And, in my view, if you cheat on
them, even for a laudatory purpose, eventually you break down
the rules because it is impossible to draw fine lines."
Contrast this view with the view of a lawyer who focuses on
care: "I have to preside over these decisions and I try to make
them as non-disastrous as possible for the people who are most
vulnerable. The fewer games you play, the better." Same image,
turned around. We are really dealing with issues that are the very
basis of people's day-to-day well-being: people's feelings, people's
children, people's potential for growth. One should do everything
in one's power to protect vulnerability and avoid hurt.
Statement from the justice-oriented male lawyer: "Once you,
as an attorney, step out of the role of adversary, which is what you
do if you start helping the other side,"-we are talking now about
Hilary's dilemma-"then you are not being true to your role. You
are changing your function, and that destroys the system."
The care orientation, on the same issue: "I am dealing with a
legal system and dealing with something it does not know how to
deal with very well. I become very distressed because it is hard for
me to put together exactly what my role is supposed to be. You
are presiding over some pretty emotional moments in people's
lives and I never know whether I should say, 'Here is the law
book,' and not do anything, or try to give whatever kind of coun-
seling, whatever kind of support, one might provide for people
without costing them a fortune. I think people need something
like this."
Spiegelman: I would like to ask two questions. First, is "the
different voice" a "better voice"-are you saying that things
would be better if all people heard and acted on that voice? Sec-
ond, what happens when people start articulating those feelings
within the legal system? Does the legal system turn the feminine
voice into a masculine voice, or would the feminine voice trans-
form the legal system? To put it another way, what happens when
Jake negotiates with Amy?
Gilligan: Both are very good questions. "Isn't the 'different
voice' the better voice?" It is better than not representing it. To
think about issues of care and responsibility is much better than to
ignore them. To see detachment as morally problematic is better
than not to see it as problematic at all. There is no question in my

mind about that. "Is it a better voice than the voice that speaks
about inequality?" I do not think that is the right question. I do
not think highly of inequality. I think inequality is the condition
for oppression. I think inequality is the condition for violence. I
think that detachment also leads to violence. I say that if you in-
clude both voices you will transform the very nature of the con-
versation. The problems of detachment and attachment will be
seen in a different way. One can trace this empirically by looking
at male and female development over time. It tends to start from
different premises and have different emphases. Women come to
understand that the conventions of feminine care in this society
involve the silencing of women. "Whatever you want, I will do it
for you. I have no needs." That is neither a relationship, nor care,
nor attachment.
If you bring the two voices together, you transform your un-
derstanding of what attachment is. It's not these empty hollow so-
cial forms. "I have this wonderful relationship, family, and chil-
dren, yet I feel totally alone, isolated, out of touch with everybody
because I do everything for everybody else and I have no needs. I
have no life." Who wouldn't feel isolated and depressed in this
situation? The key to the way out for women is to say: "This is no
relationship." It's called "relationship" according to the conven-
tions of this society, but it isn't a real relationship. It doesn't come
out of females' life experiences-of girls' experiences with their
mothers and with their female friends.
This transforms the definition of equality. In terms of equal-
ity, you start to look at what has been the celebration of detach-
ment in the name of fairness, at what has allowed the equation of
"human" with "male." It's mind-boggling what has been sus-
tained under the name of "equality." My argument, therefore,
about better voice/different voice, is that you really are going to
have a new understanding of both attachment and equality.
They're both vitally important. Attachment and inequality will al-
ways be with us. They're built into human experience. The way
this society has constructed them has been a deformation of both
equality and attachment. The two have played into each other in a
sort of ongoing cycle, where equality is defined as "human is
male" (and women are invited in if they want) and care is defined
as "self-sacrifice." People then ask: "Why aren't you happy in
your relationships?" It evolves into our identity: self, care, attach-

ment, equality-all across the board. I really think that's precise.
That's why I think this is a forward-looking moment.
Menkel-Meadow: I would like to pick up on the second ques-
tion, the one that is always asked. "What happens when Amy ne-
gotiates with Jake?" Let me play "Amy" for that one. If Amy and
Jake were negotiating just alone, the two of them, not embedded
in the society, my hope would be that they could have the kind of
transformative conversation that Carol is talking about. Chances
are, at age fifteen, they will not be able to because of what Carol
just told us. Amy is beginning to realize that she has got to be
bilingual to exist in this world and that the male voice-or the
Jake voice-will predominate. My concern is that Amy's voice will
not be heard by Jake. If their negotiation doesn't work, they'll
have to then go back within the larger system-and in that case
Jake's voice will prevail. That's why the question of Amy and Jake
has to be looked at in its contextual complexity-as a sign of the
political environment in which it's located. That's why Amy's
voice needs to get stronger: so that Amy and Jake can have the
kind of conversation that will then transform the whole negotia-
tion dialogue.
Gilligan: I think the other point to add is that there is a differ-
ential-vulnerability theory. If Jake chooses not to listen to Amy,
he can win. Consider the way in which a high school girl answered
the question, "What's the worst thing that can happen in a rela-
tionship?": "That people are on different levels and don't commu-
nicate at all." She then elaborated: "If one person doesn't want to
listen to the other, they can block them out totally and achieve
their objective. They'll win. They simply won't listen." I think
that is where the power issue comes in. If you have power, you
can opt not to listen. And you do so with impunity. On the other
hand, the notion that you can go through the world not listening
to Amy's voice and still maintain a sense of psychic well-being is a
sham. The notion that men, in a society that silences women, live
in a state of contentment, security, and psychological well-being is
absurd. In my own work, I became attuned to the cost of not lis-
tening when I asked about moral conflicts in people's lives. I
heard it a lot from men who described how relationships fell apart
suddenly, in ways that were totally unexpected, totally unex-
plained. They had no sense that anything was wrong, because they
MITCHELL LECTURE
had not been listening.

Spiegelman: Is it "not listening," Carol, or is it just that the
words are different?
Gilligan: It's not listening. I think this is where the "power
trip" comes in. I think this was Kitty's point this morning. The
subservient individual is more likely to listen. In other words, if
you have an unequal power situation, the people with greater
power know less. Secretaries know more about their bosses than
bosses know about their secretaries. That's my point. That's
clearly true. On the other hand, if you think that you are going to
be the boss, you may never develop the skills to listen because you
think you will go through the world never having to listen. But
then you feel very isolated and lonely. In this society at this mo-
ment, it's not clear who has the edge on psychic well-being.
There is, however, a differential vulnerability. The vulnera-
bility for Amy is that no one will ever bother to listen to her, or to
figure out what she needs or to recognize that her way of talking
is not so weird. I wrote my book in part to amplify and explicate
this voice. No one had been listening to it. Everyone dismissed it
as naive, irrelevant, underdeveloped, sick, and so forth. But the
vulnerability on Jake's part is that at fifteen, he is attuned to and
listening to that other voice. At fifteen, both of these kids are bi-
lingual-although their respective "second languages" seem to be
different. Imagine them in an educational system that explores
the implications of this dialogue, representing both sides, moving
away from a simple "right" answer or an easy consensus. Jake no
longer would be so likely to say that anyone who disagreed with
him had the wrong set of priorities. I want to emphasize what
Jake was saying: "I am going to enter into the druggist's situation.
How would a man feel? He would feel sorrow and he would feel
anger if someone came into his store and took his property."
That's exactly the refusal of detachment. It's knowing "how a
man would feel if his wife was dying and he had to watch her
dying and then he had to deal with her dying." In this situation,
they lead Jake to the same conclusions so he does not have a prob-
lem. But we can imagine situations in which these two ways of
thinking would lead to opposite conclusions. Are we training our-
selves and our children to look at this conflict? The answer is no.
Marcus: We thought we'd invite a new person to join our con-
versation: Ellen DuBois, a professor of history at Buffalo. Her spe-
cialty is women's history. 'She has written several important works

on the history of women's suffrage and the women's movement at
the turn of the century. We felt very strongly that there should be
a historical dimension. All too often we talk about our exper-
iences in contemporary terms; the trained eyes and ears of histori-
ans are lost to us. The historian can suggest the patterns and iden-
tify the re-emergence of issues which may have been cast in a
slightly different form in the past.
I have asked Ellen to talk about two issues. First, does she
hear the themes of the past in this discourse? Second, does she
have any predictions for the future?
DuBois: This disarray of papers before me suggests the lack of
clarity of my thought at this moment. I think that there is an al-
most religious faith in the ability of history to make everything
coherent. I understand that my role here is to give a background
in the history of nineteenth-century feminism to two themes at
the core of today's presentations: the debate as to the similarity
versus the difference between the sexes; and the kind of sexual
politics that comes out of feminism. I'm going to try and do that.
But I'm going to leave it to other people to suggest the link be-
tween the two. I'm also going to try to put in historical perspec-
tive a third element, beyond the similarity/difference question
and the sexuality questions: the role of politics in establishing the
status of women. As an historian of the women's suffrage move-
ment, my understanding is that nineteenth-century feminism was
brought into existence as a social movement to effect the entry of
women as a class into the realms of political power. That was the
way to emancipation.
There has been a change in the emphasis of feminist thought.
In the last ten or fifteen years, modern feminist thought began by
identifying the problem as one of overemphasis in social, political,
and economic life on distinctions of gender; it defined the libera-
tion of women as the elimination of gender as a social structure.
This emphasis was followed by its "reverse": an increasing empha-
sis on discovering what women's true powers might be, thus, not
eliminating gender but winning for women the power to elaborate
and articulate gender freely.
From the late eighteenth century on, in the early decades of
feminism, there were two distinct arguments for women's emanci-
pation which sort of parallel these two modern approaches. One I
call the "egalitarian-feminist argument." This premises women's

emancipation on the belief that men and women basically have
the same human character, and that the denial to women of their
common humanity with men has kept them out of various privi-
leges and resources monopolized by men. The other position was
one which historians have called the "domestic-feminist position."
This argued for elevating women not on the basis of their com-
mon humanity with men, but rather on the basis of what distin-
guishes them from men. In other words, women needed rights be-
cause they were different from men, because men could not, in
fact, represent women. The domestic-feminist position also held
that the introduction of women into political and social areas from
which they had been excluded would change those areas because
women would inject them with different characteristics. Although
individual thinkers often drew on both positions, they remained
fairly distinct. Let me read, for instance, a quote from Elizabeth
Cady Stanton, who was the foremost American representative of
egalitarian feminism. She believed that the best future for women
lay in narrowing the distinction between them and men. In a de-
bate with Stanton in 1853, another feminist, Antoinette Brown
Blackwell, took the domestic-feminist position. Blackwell argued
that as soon as you insist on women being the same as men, then
inevitably they keep on being regarded as inferior versions of
men. She argued that it was far better for women to admit the
irreducible difference of sex and not try to compare the two cate-
gories. Stanton defended the egalitarian-feminist position:
Man eats and drinks and sleeps and so does woman. He runs and walks,
laughs and cries, feels joy and sorrow, pleasure and pain, and so does wo-
man. He loves, hates, is angry, sorry, impatient, unreasonable, tyrannical,
and so is woman. He is religious, penitent, prayerful, dependent, and so is
woman. He is ambitious, loves glory, fame, power, and so does woman. He
loves to think, reason, write, speak, debate, declaim, and so does woman. In
fact what has man ever done, that woman has not done also-what does he
like, that she does not like too? Are not our hopes and fears for time and
22
eternity the same?
Let me try to clarify one element in the thought of this great egal-
itarian feminist. I think that what Stanton was pushing for in ar-
guing that men and women are "the same" was to free us all to be
individuals and to be differentl By calling for the elimination of
22. Stanton, Rev. Sydney Smith v. Rev. Antoinette L. Brown, 3 THE UNA 69, 69 (1855).
the categorical difference of gender, she imagined a world of infi-

nite difference, not one of no difference. She imagined a world in
which people are no longer held to the two possibilities of mascu-
line and feminine but are open to an infinity of possibilities. This
seems to me to be a particularly important issue when it comes to
sexuality because sexual expression has the potential for infinite
individual variation.
Until about 1860 or 1870 the egalitarian position was advo-
cated by the most radical feminists. Its representatives not only
included Stanton but also Mary Wollstonecraft.23 The demands
that came out of egalitarian feminism focused on equality of
rights, especially in the public sphere: equality of education,
equality of suffrage, equality of political participation. Later, the
domestic-feminist position-I'd be happy to use any other term,
such as woman-centered-became ascendent in the Anglo-Ameri-
can feminist movement, and continued to dominate the women's
movement up to the victory of the vote. Indeed, the predominant
arguments for getting the vote after 1900 had to do with the dif-
ferent values that women would bring into the political arena.
Jane Addams argued that women had to be enfranchised because
they would do what she called "municipal housekeeping." She was
saying that women would bring to the political arena the same
kind of orderly sanitary values that they bring to their homes.
I want to point out a couple of the programmatic conse-
quences of that position. Let me say first that the ascendancy of
this woman-centered feminist approach has a lot to do with femi-
nism becoming a mass women's movement around the turn of the
century. The earlier egalitarian-feminist line helped to bring forth
feminism's most spectacular break-through insights. It challenged
the whole structure of what we call gender and what the nine-
teenth century called sexual spheres. But once feminism began to
be a mass women's movement, the distinction of sex which the
movement originally called into question now became its avenue
for affecting history. The way that feminism was going to affect
23. Wollstonecraft was born in London in 1759. A pioneer of the women's rights
movement, she published her first book, Thoughts on the Education of Daughters, in 1787. In
1792 her most noted work, A Vindication of the Rights of Women, was published. In it, she
proposed opening.the professions up to women. The underlying theme of all her work was
that the male-female relationship should be a "rational fellowship" rather than a relation-
ship of "slavish obedience." Wollstonecraft died in 1797, immediately after giving birth.
history was by becoming a mass movement and this involved in-

creasing the identity of women with their sex. Feminism increased
women's awareness of gender and may well have exaggerated the
differences between the sexes in some areas. The sexual program
that grew out of this late nineteenth and early twentieth century
woman-centered feminism bears certain similarities to the anti-
pornography feminist politics of today. I am a critic of both, in
part, because of the hindsight history allows us. The early twenti-
eth-century feminist movement concentrated on raising the age of
consent for girls from between four and eight where it was in the
nineteenth century, to sixteen or eighteen or twenty-one as it is
now. That victory was a very mixed bag. Age-of-consent laws are
the same as statutory-rape laws. Consent laws-a feminist pro-
gram-made it legally impossible for young women to consent to
sexual intercourse. On the one hand, these laws protect children
from sexual assault. On the other hand, they have resulted in an
increased number of young women going to jail for sex crimes. A
six-year old may not be able to consent but can the same be said
of an eighteen, a seventeen, a sixteen, a fifteen, or a fourteen-year
old?
The late nineteenth-century women's movement also began a
campaign against obscene literature. The Women's Christian
Temperance Union, which was the largest late-nineteenth century
feminist organization, had a department of obscene literature. It
gave political support to Anthony Comstock,24 the author of the
basic obscenity laws in the United States. The major impact of
Anthony Comstock on American women's history is that the laws
he developed explicitly prohibited the spread of contraceptive
knowledge and devices. Margaret Sanger2 5 was indicted under the
Comstock laws.
24. Anthony Comstock (1844-1915) was a New York postal inspector and a leading
member of the New York Society for the Suppression of Vice. In these capacities he was
able to initiate the successful prosecutions of 3,670 violators of the obscenity laws and de-
stroy 160 tons of "obscene" literature and pictures. He was also the author of several
books on vice, including Frauds Exposed (1880), Gambling Outrages (1887), Morals and Art
(1888), and Traps for the Young (1890).
25. Margaret Sanger was born in Corning, New York in 1883. For her efforts to re-
move legal barriers to dissemination of information about contraception, she is credited
with founding the birth control movement in the United States. Though she never went to
jail under an obscenity statute, she was indicted in 1914 for mailing pamphlets which advo-
cated birth control (her case was dismissed in 1916), and in 1917 she served 30 days in a
workhouse for operating a birth control clinic in Brooklyn.
This early-twentieth-century feminist movement also took a

position against divorce law reform on the ground that divorce
was something that men used against women. There was an argu-
ment to be made for its position, but it was an historically short-
sighted one. In fact, it was not true. In the long run freedom of
divorce benefited women at least as much as it benefited men.
I also want to talk about some other programs which flowed
from this late-nineteenth century woman-centered feminist polit-
ics, for instance, protective labor legislation. I really feel I have to
correct Kitty on this. Protective labor legislation, the labor legisla-
tion that dates from the early twentieth century and specifies that
women cannot work night work, cannot work certain jobs, cannot
work certain hours, cannot lift certain stuff, was a feminist
program.
MacKinnon: I did not say it was not.
DuBois: Well, you called it a male program.
MacKinnon: What I meant to suggest is that it comes out of
precisely what you are saying it comes out of. the affirmation of
differences, which produces special benefits, rules, protectionism,
for women.
DuBois: Right. I think you have a tautological definition of
male and female in there. What does it mean to call protective
labor legislation "male"? It was a program put forward by a move-
ment that by any historical measurement you would have to call
"feminist." It was put forward by progressive women pushing for
women's suffrage who saw that women's motherhood and their
role in the labor force were coming into conflict. The problem
wasn't that it was "male." It was that it took an historically back-
ward perspective on how to solve that problem.
At the turn of the century there was a kind of natural politi-
cal identity among women based on their common femaleness.
The organized women's movement believed that the female politi-
cal perspective was an obvious one. At the core of this was the
common conviction among feminists that women were naturally
more pacifistic than men. This was an illusion and a delusion
which the first world war exploded. As soon as the first world war
developed, the women's movement-like every other political
movement of the time-split right down the middle. I think this
helps to explain why the massive women's movement that won the
vote could go no further-because the premise of female unity on
MITCHELL LECTURE
which it had been won was historically exploded: the idea that
women by virtue of being women automatically had the same
politics.
I came here to talk about a similar movement from a focus on
obliteration of gender to an elaboration of gender in modern fem-
inist thought. Instead I want to say something else. I was struck by
something in both MacKinnon's and Gilligan's presentations. The
essence of what each had to say was reminiscent of the first revela-
tions of feminism a decade and a half ago. Catharine presented
this in her exposition of the rage that discovering women's abused
and degraded status initially produces. For me, that was the way
radical feminism appeared to me when I first found it in 1969.
Carol presented this in her scholarly indignation that women had
been in fact totally ignored by scholars and that the ignoring of
women distorted all subsequent intellectual discoveries. Both are
first premises of modern feminism. However, we are not now at
the beginning of feminism; we are right in the thick of it. In fact,
as this panel suggests, there are by this time many feminisms.
Women are no longer ignored in the political scene. Au contraire,
the issues that the women's movement has raised are at the very
center of this historical moment. I am talking about abortion, and
I am talking about the question of a female vice president. I could
never have imagined that these issues would have reached the
level of historical significance that they have with the rapidity that
they did.
This raises the question about where, in fact, historical
change in the condition of women is going to come from. In some
ways Carol Gilligan is too optimistic about change and Catharine
MacKinnon is too pessimistic about it.
MacKinnon: That's why I'm doing this work on pornography,
right?
DuBois: I think that I am more convinced that Catharine
MacKinnon is too pessimistic than I am that Carol Gilligan is too
optimistic. What Carol Gilligan is saying is that the introduction
of women and the recognition of them is going to change the
moral discourse. We have to face the existence of Sandra Day
O'Connor-I mean, there are women, and there are women. Do
not get me wrong: she is going to change the political discourse. I
just do not want it to change in the direction that she is going to
change it. I guess this leads to my second point: I see a tautology
in Catharine MacKinnon's insistence (which I certainly do not dis-

agree with and I do not think any substantial feminist would disa-
gree with) that the issue is subordination and domination. The
question is: What constitutes subordination and domination? Hers
is a circular definition. To be dominant is to be male and to be
subordinate is to be female. Who is a male? Anyone who is domi-
nant. What is dominance? Whatever males do. So it goes around
in circles. Consider "lesbian sadomasochism." If there's a woman
on top, she is a male-she functions as if she were a male. That
seems to me to be circular.
At one point MacKinnon talked about how male domination
is an almost metaphysically perfect system. It seems to me what she
presents is a metaphysically perfect system and therefore one that
is unreal. By definition, it defines women as having no power, and
if by definition women are those without power, then go home
and lock the door because there is no possibility for change. It
seems to me that history proves that is not the case. That, it seems
to me, is what Mary was trying to say when she said, "Look, we
are sitting here talking about gay and lesbian rights in a law
school." Something has happened.
The basic discovery of the discipline of women's history is
that women act in history: They create history and that includes
their own oppression as well as their own liberation. If they don't
create history, then there is no possibility for change in their
position.
Marcus: I would like to open up the conversation again and
ask the audience to participate.
Question from audience: Could you explain what you mean
when you say that women create their own oppression?
DuBois: Women are not just the objects of historical action
which only men make. I gave you some examples. An organized
women's movement was basically responsible for protective labor
legislation and for age-of-consent laws. Whatever the intent,
which I am not calling into question, the historical result was a
new kind of oppression of women. I think that when we act in
history we basically have very little control over the impact of our
actions. Women act in order to remedy those oppressions which
they experience, and as a result they sometimes contribute to the
creation of new forms of oppression. That is sort of the nature of
history. You remedy one inequality and sometimes as a result you
help to create a new form.

MacKinnon: I think that people who are powerless have par-
ticularly little control over the consequences of their own actions,
but that people seeking to act in history with a consciousness of
the past, together with what little power we have (if any), have a
choice. We can either say: "All right, we cannot do anything
about this because as a matter of fact nearly every attempt that
women have made in history to change our status has not done
so." Women in fact have fought against our status in the entire
history that we know about and in point of fact we are still
subordinate...
DuBois: But our status is not the same; for instance, we are
enfranchised now.
MacKinnon: Yes, but what I am saying is that the fact that
there are changes is not to me the crucial thing to look at, at this
point. You can look at all the modifications in the status of
women-and it really does mean something different to be a wo-
man now than it has meant in other times, just as it means a dif-
ferent thing to be a woman of a different race or class now or
sexual preference now. The varieties do matter. It means a differ-
ent thing to be a feudal slave than to be a wage slave, right?
There have been alterations in that and I am not saying there
have not. But if you look at instead whether women have ever not
been subordinate to men, putting aside those few examples (that
people like to make the most of, and which I myself am not con-
vinced by) that suggest either a female supremacist situation or
one of "relative" inequality, as I see it, if bottom is bottom then
look on the bottom, and there is where women will be.
I do not agree with the parallel being made here between the
anti-pornography legislation proposed by Andrea Dworkin and
me, and the four specific examples that were laid out, which come
out of what I take to be, and criticize as, the "differences" ap-
proach. I do not agree that what we are doing is like statutory
rape laws and raising the age of consent. I think that giving chil-
dren power to do something about people who abuse them might
be more like what we are doing; we're not having the state act as
"daddy." I don't agree that what we are doing is like the
W.C.T.U.'s department of obscene literature. However, I would
really like to see somebody look at what they were trying to do in
light of what we are trying to do, and see if there are some com-
monalities that have been obscured by historians looking to see if

what they and we are doing is "moralistic." I also do not agree
with the parallel to the protective labor legislation. All three of
those examples empower the state. We are looking to empower
women. We have the audacity to think that we might be able to
use the state to help do it. It is either going to do something real
for us or it is not. We can decide that the state is not an arena to
use; we can also decide that it is not an arena to use in this case.
Or, we can decide that there is nothing that we can do, because
really we're trying to turn straw into gold; you know, turn
powerlessness into power. If we are looking for an Archimedian
point, a place to stand outside the world of sex inequality to put a
lever to move it, I think our search is futile. There is no such
place for the status of women. People who are looking at women's
current situation and calling it "power" are looking for that, and
it is not there.
DuBois: I am just struck that although you see a kind of seam-
less historical unity in the oppression of women, so much so that
there is no significant change, you see absolutely no historical
unity in the efforts to combat that oppression.
MacKinnon: I do not agree with your characterization of my
position. I also think that "change/no-change" is a really sterile
way to construct the problem we face.
DuBois: I believe that I was accurately repeating what you
said. You said that if you look at the past of women, there has
been no change in women's status. I said that there has been
change: for instance women have become enfranchised. You see a
kind of endless historical background to women's oppression, but
not a single historical antecedent of our own efforts to change.
Comment from audience: This seems to be an example to me of
part of the problem in the history and the present-day develop-
ment of how women divide among themselves and therefore can-
not go forward in a position of strength and unity to progress and
indeed to come to power and change their world.
DuBois: I do think that women divide among themselves; that
is the inevitable consequence of empowering and moving us
ahead. We are different. We have different politics. There are
right-wing women and left-wing women; Republican women and
Democrat women and anarchist women.
Comment from audience: And feminist womenl
DuBois: And feminists-exactly. That's the dilemma. When

we get a voice, we don't all say the same thing. And then we have
to fight among ourselves to discover what position we will unify
behind; it is not automatic. And we have reached that point of
struggling in history.
MacKinnon: I do see some basis in the past for change, and I
see a basis throughout the society for it now. Women fight against
subordination. What I particularly see, though, is that when
women fight against sexual force through law, they are inter-
preted essentially as trying to engage the state in repression or to
get special protection by the use of state power. I feel a lot in
common with feminists of the past, and also with women who are
not identified as feminist, who have fought against sexual subordi-
nation. However, my standard for change is really rather major.
That is the reason that I do not see that past changes have been
all that significant. Consider rape: No more rape. That, to me,
would be a significant change, change dealing with the context of
sexual force. Rape has been a constant condition in that it is and
has been defacto legitimized and allowed. Granted, if lunatics were
to still commit rape on occasion even after this change, I would
still say there had been change. As it is now, rape can occur at any
time and nothing is done about it. We're walking targets for it.
Until this changes, I say we are in a subordinate circumstance.
Questionfrom audience: What do you think about the discovery
and elaboration of the women's voice as a different voice (as ar-
ticulated by Carol Gilligan in psychology) as a political develop-
ment? She seems to imply that we are going to start to talk to each
other differently now that we understand this voice, and that this
will force a change.
MacKinnon: I didn't think she predicted that that would hap-
pen. Rather, I thought she said that if the voice were listened to,
the discourse would be transformed. I am-it will shock you to
hear-ambivalent about it. On the one hand, I feel excited by the
strong and elegant sensitivity in the work. There is something
deeply feminist there: the impulse to listen to women. I also think
the data is right. I don't think the attributes she advanced are bio-
logical but I do think that accurate social regularities were
found-and for me gender is a social regularity. On the other
hand, what is infuriating about it (which is a very heavy thing to
say about a book that is so cool and graceful and gentle in its emo-
tional touch), and this is a political infuriation, is that it neglects

the explanatory level. Why do women become these people, more
than men, who represent these values? This is really very impor-
tant. For me, the answer is clear: the answer is the subordination
of women. That does not mean that I throw out those values.
Those are nice values; everyone should have them. I'm not saying
that taking these values seriously would not transform discourse,
which would be a good thing under any circumstance of gender.
She also has found the voice of the victim-yes, women are a vic-
timized group. The articulation of the voice of the victim is cru-
cial because laws about victimization typically are made by people
with power, and come from the perspective with power. I think
the interjection of that perspective has important possibilities.
What bothers me is identifying women with it. I'm not saying
that Carol does this expressly in her book. But I am troubled by
the possibility of women identifying with what is a positively val-
ued feminine stereotype. It is "the feminine." It is actually called
"the feminine" in the middle chapter of the book. Given existing
male dominance, those values amount to a set-up to be shafted. I
am particularly worried about the legal impact of this. Take what
Carrie said. If Jake and Amy converse, what happens? Well, we
heard if Jake does not listen to Amy, he wins. There is something
gendered about that. What happens if Amy doesn't listen to Jake?
She loses. You see what I mean? The reason I put it out like that
is because I think the power issues are crucial and unignorable. If
it is male dominance which has created people in these images,
then recognizing that really matters for the applications. So I think
the explanation part is crucial on its own, but also for the applica-
tions. Power is socially constructed such that if Jake simply
chooses not to listen to Amy, he wins; but if Amy simply chooses
not to listen to Jake, she loses. In other words, Jake still wins be-
cause that is the system. And I am trying to work out how to
change that system, not just how to make people be more fully
human within it.
Gilligan: Your definition of power is his definition.
MacKinnon: That is because the society is that way, it operates
on his definition, and I am trying to change it.
Gilligan: To have her definition come in?
MacKinnon: That would be part of it, but more to have a defi-
nition that she would articulate that she cannot now, because his
foot is on her throat.

Gilligan: She's saying it.
MacKinnon: I know, but she is articulating the feminine. And
you are calling it hers. That's what I find infuriating.
Gilligan: No, I am saying she is articulating a set of values
which are very positive.
MacKinnon: Right, and I am saying they are feminine. And
calling them hers is infuriating to me because we have never had
the power to develop what ours really would be.
Dunlap: I am speaking out of turn. I am also standing, which
I am told by some is a male thing to do. But I am still a
woman-standing.
I am not subordinate to any man! I find myself very often con-
testing efforts at my subordination-both standing and lying
down and sitting and in various other positions-but I am not
subordinate to any man! And I have been told by Kitty MacKin-
non that women have never not been subordinate to men. So I
stand here an exception and invite all other women here to be an
exception and stand.
Everyone who believes it is true that we have never not been
subordinate to men, remain seated. Everyone who believes that
you do not have to be subordinate to men, stand if you can.
Today we have been subordinated to a definition of who is
radical, who is feminist, what sex is good, and who gets to talk. I
think all those things are very subordinating and also very male. I
also think such things happen in these kinds of environments and
I'm not going to make a big deal out of it. I want to say something
more positive. I want to talk about soccer. The most priceless
thing I have done lately is play soccer with women. Very few of us
have ever played before; thank goodness we have a female coach
who did. We differ all the time about whether the purpose of the
team is to win or to get to play. I have come to be fully sure that
both are true and that something else is true. There is a woman, a
friend of one of the women on the team, who cannot play because
she is disabled. She cannot play-there is no equal opportunity
for her, indeed no opportunity for her. She said to us at the game
last week: "Just being out here with you, getting to watch you, lets
me play." Now, as a disabled person, she is subordinate to every-
one who gets to play soccer. And she has done something with
that subordination which has turned it into a kind of love that
gets her past that reality. I do not submit, by that example, that
her disability in its immutability is like gender, which I believe is
mutable in many ways, our self-definitions being part of it. What I
am trying to say is that the idea that any of us here, or any of you
there, should decide for all of us who is a good feminist, who is a
good radical, what sex is good, and who gets to talk is taking ad-
vantage of the rest of us. I am not going to take such advantage of
people.26
Questionfrom audience (to Gilligan): If instead of breaking your
subjects down into male and female, you had broken them into
rich and poor, white and black, children of employed and unem-
ployed parents, would you have found different things?
Gilligan: That is a terrific question. That is exactly my ques-
tion and that is what I am doing now. I started my work on ado-
lescents in a girls' school, of advantaged girls, and now I am work-
ing in the inner city so that I can answer your question. But let me
give you some preliminary information; let me tell you why I did
what I did and some preliminary answers that suggest it is not that
simple, that you cannot assimilate the discussion of gender into
the discussion of social inequality. There are elements and dimen-
sions to questions of gender that do not fit that model. Basically, I
am in disagreement with Kitty MacKinnon. Trying to make gen-
der fit the inequality model is the most traditional way to deal
with gender, and it will not work. Gender is not exactly like social
class. It is not simply a matter of dominance and subordination.
There is no way to envision gender disappearing as one envisions,
in utopian visions of society, class disappearing or race becoming a
difference that makes no difference. The fact that gender is a dif-
ference that one cannot envision disappearing is why it makes so
many people so angry. It does not fit their schemes of analysis. It
is always a thorn in their side.
Let me present one of my most interesting, intriguing, "find-
ings in process." I have black women in my studies. I did not ex-
plain that explicitly in my book; I realize that was a serious omis-
sion: since I said nothing, everybody assumed my subjects were all
white, which is a reasonable assumption. If you are not told the
gender of subjects of psychological research and you assume they
26. Catharine A. MacKinnon had to leave at this point, by pre-arrangement, to catch a

plane.
are male, you're probably right. If I had said to people that there
were black women in my studies, people would assume, because of
the way blacks have been portrayed in the social science literature,
that the black women exemplify the lower stages of the various
kinds of care that I wrote about in the middle chapters of my
book. (There I focused on how women are what Kitty calls "the
feminine"; I studied different ways that women conceptualize fem-
ininity-from oppressive ways to nonoppressive ways.) In fact, the
opposite is true. Without having any particular criterion, I just
picked women. I found that I was using the voices of black women
to represent the integration of justice and care. I can explain that
in my own terms by noting that black women are exactly in a posi-
tion to know most acutely about both inequality and attach-
ment-both experiences have been heightened for them in this
racist society. I was thus very intrigued that the voices I picked to
best illustrate the struggle to integrate justice and caring belong
to black women.
I then did a study of medical students. I found a group of
women within that study who seemed to be atypical of the rest of
the women in the strength of their justice focus. They were black
women. And these women were different from black women in
my other studies, so I didn't even have a uniform finding about
"black women vs. white women." I began to wonder: What was it
about the medical school context that was heightening this issue? I
then noticed that this group of black women, the medical stu-
dents, had been interviewed by a white male. I realized it would
certainly heighten all the elements of inequality, to have a white
man interviewing black female medical students-there is a whole
dominance issue right there. The strongest justice-focus women in
my study were the black female medical students. One might
think that the doubly oppressed groups should speak doubly
strongly about care. It is not so simple. Perhaps the victims of vio-
lence are the proponents of care. Still, the victims of violence,
most often male, are the perpetrators of violence.
It's a complicated set of problems. My own sense is that we
shouldn't reach for all the familiar categories of analysis which
have never been able to deal very well with these problems. I see
an opening now. The source of my optimism is that opening. I
don't think oppression will miraculously end and that things will
change, but I see at this moment an opening. I think this opening
is enlarged by the increasing presence of women in positions of

some influence and power-this discussion is an example. I think
there's a possibility for change. That is all.
In the next phase of my own work, working with adolescents
in the inner city, I hope to begin to look at the interplay between
social class and gender, between different cultures and gender. I
hope to begin to see, but I am a big skeptic. The social class litera-
ture indicates that there is a correlation between high moral de-
velopment and high social class. But ask yourself: If that's true,
how come the people in power are perpetrating inequality or
making wars?
Question from audience: I'd like to focus on pornography and,
in general, on the implications of the speakers' ideas about sexual-
ity. Why is this issue so important and so divisive within the
women's movement and between the women's movement and the
gay and lesbian activists in this country?
Menkel-Meadow: I'd like to answer that question in part be-
cause I find myself in the middle of this issue frequently. That is
(to use all the labels Mary alluded to), I always like to think of
myself as a radical feminist-until someone out-radicalizes me,
and then I find myself sitting on the liberal fence again. Let me
try to answer the question by saying that the problem is very com-
plicated. One reason that the tension develops around it is that in
the effort to unify, we keep seeking some basic principle that will
bring us all together. Every time we think we have found one of
those, we discover some of the exceptions to it and some people
attach themselves to the exceptions and we become very troubled
and very sad that we cannot get behind a particular principle. The
first time I heard Kitty talking about her notion that what unifies
us all as women is that we are oppressed, that we are oppressed by
the particular condition that men view us primarily and exclu-
sively as sexual objects, I thought: That has a tremendous ring of
truth to it. But the more I thought about it, the more I thought
that although I could get behind that principle, I could probably
formulate some other principles that would also attempt to unify
people.
I think that if you take a look at any male stereotypic state-
ment of who women are, it includes not only the sexual-object no-
tion but the mother notion also. We are also the mother of their
children and we are their mothers when they are children. There
has been a lot of important work in psychology about how men's

perception of women is influenced by the way in which they have
been mothered by women. I suspect there are several other peo-
ple out there in the audience who can pick other principles that
might explain the difference between men and women in efforts
to unify all women behind them.
The truth of the matter is, as Carol mentioned in her work,
all of these relationships are very complicated. Being viewed as a
sexual object may be the most important one, but I prefer to be
agnostic on that at the moment, in part because I think there are
other principles that may have just as much explanatory force.
The hard thing, the thing that tears us apart in meetings like this,
is that we keep seeking a reductionist explanation behind which
we can all unify. However, I think we are beginning to grasp the
human complexity of it all.
I am pleased by and I will support Kitty's efforts at trying to
get the pornography statute passed despite the fact that as a law-
yer I see a whole lot of first amendment problems with it. I think
it is an important field to be laboring in, though for me it is not
the only field. It is important that we have many other voices up
here trying to explore a lot of different fields.
I want to react to something Ellen said earlier as another ef-
fort to somehow reduce those variables that explain ourselves to
each other and to the outside world. Whenever we have these dis-
cussions, there is much talk about whether they are sufficiently po-
litical or not. At the risk of yet another redundancy in our argu-
ments, let me say that one of the powers of feminism is that the
political arena, as we commonly conceive of it, is not the only
place to be having these arguments and discussions. Talking about
women in psychology is important, as is talking about domestic
history, talking about women in architecture, looking at women in
medicine, women in law, women at home, and in quilting (to use
the image from this morning)-all of these things are different
aspects of life. What the feminist movement has done has been to
bring different spheres of the way we live into the discourse. That
makes it far more complicated, because then we cannot agree on
any one sphere as being the one that explains it all.
27
DuBois: I think it's a very hard question. Dorothy McCarrick
27. Lecturer in Law, State University of New York at Buffalo.

made an historical analogy with which I agree. The way that the
issue of protective labor legislation versus the ERA was unresolv-
able in 1920 and splintered the women's movement, has certain
analogies to the question of pornography in feminism today. Most
feminists I know are in the position you, Carrie, are; they kind of
sit on one seat and then they have to go over and sit on the other
one because they cannot take one side or the other.
I cannot say why pornography has become the brick wall up
against which feminism has come. One thing I would point out is
that it is a sexual issue. Much of the feelings people have about it
have to do with the fact that it is sexual. I actually think that there
is a kind of pornophobia; in some ways we are more afraid of por-
nography than we need to be. I want to read an article by Lisa
Duggan. She answers this question in this way:
Pornography is made to stand for all misogyny, all discrimination, all ex-
ploitation of women, in the view of the feminist anti-pornography campaign.
It not only causes but constitutes the subordination of women. The com-
modification and objectification of women's bodies is believed to reside more
centrally in pornography than in mainstream media. This society's cultural
violence against women is said to radiate from, rather than be reflected in,
pornography. The campaign against pornography is thus a symbolic substi-
tute for more diffuse but more necessary campaign against the myriad forms
of male domination in economic life and political life and sexual life. Por-
nography serves as a condensed metaphor for female degradation.28
Pornography is far easier to fight politically than other feminist

issues in the conservative climate of the Reagan years. I think
that's extremely important. I am not implying any motive, but the
political context of the pornography issue cannot be ignored. It is
an issue which, I believe the right wing has controlled. That can-
not just be ignored or considered incidental. While the issue of
pornography is more complicated than simply the fact that it is a
right-wing issue, we cannot ignore that it is a central tenet of the
right-wing program. I find it disturbing that at this time in history
we should focus on the issue of pornography instead of the issue
of, say, abortion, which is the issue that is going to be determined
politically and is directly related to the lives and deaths of women.
I don't know why pornography draws fire.
28. Duggan, Censorship in the Name of Feminism, Village Voice, Oct. 16, 1984, at 11
(one in a series of three articles in a symposium on feminism and the first amendment
entitled ForbiddenFantasies:A Special Issue on Pornography).
Dunlap: I am going to try to be very brief. Keeping a close

mind to human reality-the reality for women particularly-and
considering the statistics that Kitty MacKinnon presented this
morning about incest, child abuse, rape, sexual harassment, and
all of the sexist violence, I find the anti-pornography approach
very distracting, very diffusing. I work as a lawyer, among other
things, representing people in novel causes of action. More often
than not, I represent women. I represent, in a case that is as yet
unfiled and anonymous, a woman who is the victim of tremen-
dous, repeated, frequent, phenomenal-phenomenal in the sense
that she survived-sexual and physical victimization by her father.
I know that her anger is indispensable to her recovery. I also
know that her anger is insufficient-in the same way I know that
our anger about pornography, and all of our differences about it,
is very valuable yet insufficient to respond to the needs of that
client. Where are the attorneys in court representing the victims
in rape cases? There is a problem of priorities, there is a problem
of finitude of resources.
Here we have a ballot; let us vote on what things we are going
to put our bodies, monies, minds, and anything else we have to
offer, behind. I will not personally check on that ballot anti-por-
nography campaigns because I know how desperate the needs of
women who are survivors of various crimes of sexual violence
are-for attorneys in various stages, for psychologists, for ther-
apists, for scholars, for you, for all of us. For me it is a question of
priorities. I do take a position. I do not care if I am called liberal,
radical, or whatever. I have been called everything and it really
does not matter to me.
What I want (and this is not self-sacrificing-it's caring; that's
a crucial distinction) is to be able to make the difference that Kitty
MacKinnon also wants to be able to make. Let us end rape. I
know that that is not "just going to happen." I also think that if
we take on pornography as the image of rape, and we destroy it,
we will have destroyed, I suspect, nothing more than the image of
rape. I don't believe this as a sociological conclusion; I don't buy
the idea that pornography is a primary cause of sexist violence. I
do believe that it is very much reflective of it, and that it can lend
an atmosphere of permission of violence, sexist or otherwise. I
nevertheless don't buy that pornography is a primary cause of sex-
ist violence.
My problem is thus prioritizing. My response is to prioritize

boldly, whatever mistakes are involved. To go forward and not,
having said that, to put down what is being done by others. How-
ever, I do want to put down a part of it, and I want to be clear
about this. I have read, in these articles and elsewhere, that many
people ask: "What is so good about the first amendment? Who
needs it? This primacy of the first amendment is really male." But
wait a minute! When you say that, you're overlooking ninety-seven
percent of all the human rights movements-call it anti-nuke, call
it pro-labor, call it pro-victims of McCarthyism. There's a lot
more to expression than pornography. As soon as we cast out and
throw aside first amendment protections in favor of vanquishing
what I believe is primarily the image of sexist violence (and I am
not excusing poronography; it makes me sick), as soon as we toss
aside the right of expression in favor of that, we are going to lose.
Speaking concretely, the U.S. Supreme Court took an appeal two
weeks ago in a case called National Gay Task Force v. Oklahoma City
Board of Education. 9 The issue is whether Oklahoma can, in ef-
fect, ban anyone who supports gay rights from teaching in the
Oklahoma schools. But they have written it very cleverly. When
you read that statute, you think what it has to do with is public sex
acts for which people are criminalized and arrested. You think:
All they are doing is getting rid of any teacher who has that par-
ticular crime record. That passes muster with a lot of people. But
in fact what they are doing in that ordinance, and what they tried
to do with the Briggs Initiative in California," ° is to say: "Certain
kinds of communication about sex are unacceptable and we are
going to ban them." Does that sound familiar? There is a fright-
ening parallel here. There is a parallel at least as frightening as
the authors in the Village Voice article say. 3 ' The parallel is be-
29. 729 F.2d 1270 (10th Cir. 1984), affid mem. 105 S. Ct. 1858 (1985).
30. The Briggs Initiative was a referendum to prohibit school teachers from publicly
giving their views on homosexuality. Specifically, the initiative provided for the filing of
charges against teachers, teachers' aides, school administrators, or counselors either for
advocating, promoting, encouraging, or soliciting private or public homosexual activities in
a manner likely to come to the attention of other employees or students, or for publicly
and indiscreetly engaging in such actions. See N.Y. Times, Aug. 30, 1978, at 107 (supple-
mentary material). The referendum was defeated. Herben, Tax Limits Passed in Several
States, N.Y. Times, Nov. 8, 1978, at Al, col. 1, A19, col.3.
31. See generally Duggan, supra note 28; Hentoff, Is the First Amendment Dangerous to
Women?, Village Voice, Oct. 16, 1984, at 14; Goldstein, Pornography and Its Discontents,
Village Voice, Oct. 16, 1984, at 19.
tween saying, "The only kind of sex that is good is the kind that I
say is good, and my name is Kitty MacKinnon," and "The only
sex that is good is the kind that I say is good, and my name is
Jerry Falwell." I am sorry, but there is a terribly frightening par-
allel there. With all that I have in common with her that I will
never have in common with him, that parallel frightens me.
DuBois: Let me say one other thing about why pornography
becomes so central. At this point in history feminism and the op-
pression of women have an ambivalent relationship to the ques-
tion of sexuality: that we have had too much of it not under our
own control and not enough of it under our own control. Pornog-
raphy captures that. We have both been the victims-having sexu-
ality impressed on us against our will-and we have been deprived
of our own sexual expression. The debate over pornography gets
caught in that.
Questionfrom audience: I would like to go back to the central
proposals that were made by the speakers throughout the course
of the day. We seem to be heading in a somewhat anti-feminist
direction. My reasons, briefly, for feeling this way: First of all,
Carol Gilligan did not spend a lot of time elaborating on her as-
sertion that an androgynous ideal is not out of the question as a
long range goal of feminist strategies and reforms. Mary Dunlap
seems to have suggested that she would back the ideal of equality,
which even the softest feminist might agree is flawed by what
male domination has done to the contents of that notion. We are
told by Ellen DuBois that the whole notion of moralism can be
somewhat of a co-opting trap for feminism. I guess that I am
troubled by attempts, on a theoretical level, to characterize a
largely more powerful and exciting movement, attempts that have
led to the articulation of feminist theory. The tragedy is that such
attempts really could be total dead-ends for feminism. I do not see
androgyny as being an ideal that I am particularly interested in,
but until "feminist values" (whatever those are) have been looked
at a lot more carefully, I cannot back the ideal of equality. Nor
can I do so until I see, in more detail, just what that ideal can
produce for men rather than for women.
My real problem is that while everybody is happy to dump on
Catharine MacKinnon's campaign against pornography, at the
same time they ignore her very clearly stated position that the
state is now a tool of patriarchal oppression. They seem to be
holding her accountable for the problems that women experience

at the hands of the state and trashing her for attempting to get
around that. They are, in fact, misrepresenting her statement, so I
do not really expect a complete answer to that. I would, however,
like to raise the possibility that the trend in feminist thought is
very much an anti-feminist one-if one looks back to the litera-
ture of the late sixties and early seventies.
Menkel-Meadow: Would you help me by defining what you
mean by "anti-feminist" in that context?
Response from questioner: Setting up a set of tactics which are
more likely to place you in the hands of male hegemony than con-
tinuing the line of analysis that Catharine MacKinnnon, for exam-
ple, has tried to take. Trying to identify those sources of oppres-
sion and come up with specific tactics which deal with particular
kinds of problems instead of trying to sketch out theoretical
norms like equality or androgyny.
Gilligan: I just want to say one thing: I held up the androgyny
solution in using the pirate-and-the-neighbor game as the solution
that I rejected-the implication that we can have two games that
can fit happily alongside each other. When I gave the example,
using that as the shorthand illustration of the combination of the
games, it was not an illustration of androgyny. It was precisely the
opposite. It was an illustration of how to listen seriously and take
seriously women's experience. It implied a transformation, a
change, in both old games, in both the old masculine game and
the old feminine game. I then illustrated exactly what I meant be-
cause the old masculine game had said "equality" for (you can
correct me about how many years) a hundred years while sus-
taining inequality. The old feminine game had said "attachment
and care" while silencing women. I was really suggesting that the
androgyny model sustains both that definition of equality and that
definition of attachment or care, both of which I reject. It also
suggested that, in fact, if you include women's experience (my def-
inition of feminism is to see in women's experience human experi-
ence) if you take it seriously, attend to it, explore it, that would be
transformative.
Questionfrom audience: I guess that I did not hear the example
of what you described as being transformative.
Gilligan: You do not think that is a new notion of care-a
notion that is not destructive to women? Or a new notion of
equality that does not co-exist with, as Kitty said, fifty-nine cents
to the dollar? What does the word "equality" mean?
Comment from audience: Getting back to the point on androg-
yny: I interpreted the resolution which the children arrived at as
more a recognition that even at the age of four years, the young
woman in the scenario knew quite well that she would not be able
to influence the pirate's game and had decided instead to settle
for as much of her own space as possible. This was to simply say:
"Well, let's be neighbors."
Gilligan: That is very interesting and very illuminating be-
cause you assume there are two choices: either she dominates or
she is subordinate. I say that her solution is transformative be-
cause it creates a game that is neither the neighbor game nor the
pirate game but a new game-the pirate-neighbor game-which
is different from the one that either imagined. How it works out
in practice is one thing. But one sees this, as a matter of fact, in
studies of small children. They do not resort to aggression as their
first means of resolving conflict. Contrary to the image psycholo-
gists have created, they in fact play out solutions that are creative
and cooperative, like the solution of a pirate-neighbor game. She
says, basically: "Instead of my losing and your winning, let's in-
vent a new game." I identify that as the creative solution.
Comment from audience: I guess I would be interested in the
cultural content in the game of the four-year-old girl.
Gilligan: That's a very good question. If you observe the pi-
rate-neighbor game, is it a concealed form of domination and sub-
ordination or is it in fact a kind of creative adventure for both
kids?
DuBois: To return to I cannot see any purpose in calling any
position in the debate between different feminist positions "anti-
feminist." We often face clear and unambiguous anti-feminist op-
position. These anti-feminists are easy to pick out. We are also at
a point at which feminists have no political unity. We are at a cru-
cial point. But I cannot understand why in the world we should
call dissenting feminisms "anti-feminist." Do you mean to obscure
the difference between feminists who disagree on that position
and Phyllis Schlafly or Ronald Reagan?
Response from audience: No, but I do want to draw out connec-
tions between some of the more disparaging aspects of the analy-
sis. I think that there are connections which could become dis-
empowering to the women's movement. That is what concerns

me. We ourselves, by our own theorizing, by the structure of our
theorizing, might be too easily co-opted into reconstructing male
methods of analysis or male forms which could make us abandon
the kinds of positions that Catharine MacKinnon, for example,
has been arguing.
Menkel-Meadow: I do not think it is that simple. I think a lot of
what we are doing is really part of a much larger dialectical pro-
cess where we begin with a reform, be it liberal, radical, or in
some cases even conservative, and some of us unite behind it while
others do not. We then watch it played out like protective labor
legislation, which was a very good thing when it happened. The
same thing is true of a lot of the concrete issues that we are talk-
ing about.
I would like to respond to another part of your earlier ques-
tion, regarding the way I and others view the state. It is simplistic
to the point of being incorrect to say that we want to avoid using
the state at all costs to fight our battles. The use of the state in
fighting feminist battles has been a mixed bag. In that bag have
come some very good things. Feminists have fought very hard for
laws that protect battered women and a number of other things.
For those who have not read it, I recommmend Fran Olsen's arti-
cle in the HarvardLaw Review,32 in which she outlines beautifully
and exhaustively the mixed-bag nature of reforms that have oc-
curred through law and through the use of the state to try to ame-
liorate some of these problems. It would be incorrect for us all to
abandon the state, as it would be for us to totally embrace the
state. There are times that it helps us and times that it hurts us.
We are not going to find an answer today that will settle these
questions for ever and for always. We have to keep working.
When something turns out not to be helpful to us, we try to
change it.
Marcus: I think that is precisely one of the reasons for my
raising that question this morning and thank you for addressing it.
The extent to which the state can be used to further feminist
goals obviously is an issue that surfaces in the pornography de-
bate. I am sorry that Kitty had to leave early. In her Signs arti-
32. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV. L.
REV. 1497 (1983).
cle, 33 she identifies the state with male domination, and yet the
prescription is that feminists, who are concerned about images of
sexual violence, try to use the state in order to eliminate or
supress those images."
One theme which emerges in these conversations is anger.
What else are we besides our anger? Another theme which
emerges is frustration. We have no way of knowing in advance
whether the use of the state for a particular program over time
will not lead to a reform being turned on its head. Perhaps the
best example of that may be what has happened in the abortion
debate. To hear the major presidential and vice-presidential can-
didates in 1984 talking about issues which we all thought were
resolved in 1972 leaves one with the most extraordinary sense of
anger and frustration. What we have heard in this conversation,
the pitch of which rose at times, is a reflection of how complex we
perceive the issues to be and how emotionally engaged we are.
I hope this will inspire you to continue the conversation.
33. MacKinnon, supra note 12.

34. At the request of the Buffalo Law Review, MacKinnon responded to this statement.
In Signs, the state was analyzed as "male," not in its eternal essence (in the liberal mode),
but in the interests it embodies and expresses. The point of the analysis is, therefore, not
passively to contemplate the nature of the state, or to resignedly acquiesce in its operation
but actively to criticize it, in order to develop a strategy for change. Both the Signs analysis
and the pornography ordinances are parts of that theory and practice for change.

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Buffalo Law Review

Volume 34 Number 1 Article 4

Feminist Discourse, Moral Values, and the Law—A Conversation

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Feminist Discourse, Moral Values, and the

ELLEN C. DuBois,3 MARY C. DUNLAP, 4 CAROL J. GILLIGAN,'

Spiegelman: In my two years as chairperson of the lecture commit-

practitioner; when things get really tough in this type of forum

into account everything we have done. So we add the "violence-

more informed position on the "feminism" of Sandra Day

It is bitter but it is not embittering that the term "equality" shall

scribed to me that she got "fucked over" in court, the reaction

Just the fact that we have prioritized and gotten as far as we

ter." That is another response to the question of redistribution of

the categorizations in either direction. Categorizations are whip-

dominant mainstream legal and political position and discourse, is

on the so-called gender difference is, ultimately, to take a male

that. To be against the draft means going to jail, too; why

gle is to find men to be comparable with, when, because of sex

The fertility protection gambit is a way to protect women out of

of it. It criticizes the standards that set us up to be either the same

8. MacKinnon, Excerptsfrom MacKinnonlSchlafly Debate, L. & INEQUALITY: J. OF THEORY

in calling this picture the sex difference. Is it the sex difference to

inequality is the problem of the subordination of women and not

we get to talk about gender hierarchy. I felt it was very clearly

other words, it suggests that part of women's stake in gender is

equals, and support for autonomy."'

Here is where I had a concrete problem with Kitty's position

10. S. ORBACH & L. EICHENBAUM, UNDERSTANDING WoMEN: A FEMINIST PSYCHOANALYTIC

point" article 2) that, like heterosexuality, in relation to the crime

I agree emphatically with the latter part of what you said.

The other possibility is to say straightforwardly (in a sort of "thir-

line, except with pornography it is easier because you have the

about some of the legal implications of the issues on which I have

14. C. GILLIGAN, IN A DIFFERENT VOICE-PSYCHOLOGICAL THEORY AND WOMEN'S DEVEL-

a lot of examples in my book of how that construction was worked

I therefore began to look and notice instances of anom-

15. HANDBOOK OF ADOLESCENT PYSCHOLOGY 114 (J. Adelson ed. 1980).

He starts to consider the situation and the feelings that would be

necessity for Abraham's detachment from Isaac. The moral prob-

She locates herself in time, she defines herself as having a per-

Look at the criteria-it is unfair because it does not really help

are usually valued as ways of solving dilemmas, are now identified

implies a simple addition, a kind of separate-but-equal thing or an

we know about human development by studying men. All our def-

absolutely crucial)-defined a "moral" problem. In other words,

ferent set of moral implications. By virtue of making an attach-

be accounted for by a theory that equates morality with justice

experience has something to tell us about the way in which we

18. See C. GILLIGAN, supra note 14, at 29.

tem because what we see in Jake's description is pretty much how

19. See supra p.27.

ever, that it is no accident that that particular form of dispute res-

character in Carol's book, Hilary,2 ° very much. Hilary was a sub-

20. See C. GILLIGAN, supra note 14, at 134-35.

21. See Menkel-Meadow, Portiain a Different Voice: Speculations On A Women's Lawyering

sionmaker is a jury of lay people as opposed to a judge). Like me,

Gilligan: I would like to take a couple of the things that Car-

in different ways. That, it seems, is what's so forward-looking

more important it is that you play by the rules." I want to focus