Reflections on Our Wounded Identities in Law

Reflections on Our Wounded Identities in Law

Inspired strongly by Nietzsche’s thesis of the thwarted will to power and ressentiment, Wendy Brown claims in her book, States of Injury, that a variety of feminist projects, despite their good intention, reflect and reinforce inadvertently the sexualized and masculinist character of the states, politics, and cultures. The inscription of the gendered identities in legal and political discourses reaffirms the historical injuries constitutive of those identities. Influenced by postmodern feminism, Brown seeks a non-binary, non-oppositional alternative discourse for sharing power instead of being protected from the power or seeking revenge and punishment. The author’s suggestion to stay away from the identity politics and self-victimization seems timely and well-addressed especially when social conservatives sharply capture this aspect and label it as “victim feminism.” Then the question is, how should we translate the author’s recognition into legal reforms for gender equality? How do we at the same time avoid undermining the previous achievements in gender equality made by the efforts of liberal, radical, and socialist feminists? To discuss this issue, we may start by examining the area of feminist jurisprudence and looking into several Supreme Court cases, in which we can find the unfortunate side effects of relying on the state.

Law has been one of the most critical fields to which feminist theorists have paid a great deal of attention. Law’s relation to women and its role in advancing feminist agenda have been fiercely discussed and debated by many prominent feminists. Among them, Catharine MacKinnon is well known for her radical perspectives on the law. Assuming inequality rather than equality between individuals, MacKinnon argues that women are not equal to men due to the unequal power distribution. According to MacKinnon, since “law is male,” it will reinforce existing distributions of power “when it most closely adheres to its own highest ideal of fairness.”[1] Her critics, however, point out that her radical theories tend to over-privilege the power of law and such power would be reinforced “when it is targeted as the main site for feminist politics to raise women to the male standard.”[2] This criticism seems precisely in line with Brown’s theme in States of Injury. It is the male position that MacKinnon desires. The desire is the thwarted will to power, or ressentiment, in the words of Nietzsche. By articulating their grievances in terms of equal rights and confining their struggle to litigation and lobbying, according to Diane Polan, women are giving an approval to the basic social order and giving up the battle for more radical challenges to society.