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Civil Rights
University of Michigan School of Law
MacKinnon, Catharine A.

March 10, 2008
 
There is equality law in many places, but equality in few.
 
Class administration
Class is about present and possible relations between the sexes in society. Issues raised by race, class, and sexuality are also considered.
We look mainly at the 14th amendment and Title VII, which prohibits discrimination on the basis of race and sex. We also look at § 15 of the Canadian Charter of Rights and Freedoms.
We look at the reality of our subjects, not just the law.
Our experience of others’ experiences is part of our experience, e.g. a child who sees his mother beaten also has experience of that beating.
We can’t talk in class more than three times until everyone has talked once.
The exam has a large range of questions, from which we select two. They aren’t black letter questions; they focus on themes running throughout the course.
 
The law of race and racism is the core of equality law in the US and much of the world.
 
What is an equality question a question of?
Focus on the tension between the Aristotelian concept of equality and the Canadian approach, which centers on eliminating the disadvantage of historically subordinated groups. 
Where the Aristotelian approach centers on distinction, the Canadian approach centers on history, domination, and subordination.
 
About sex
People now use the word “gender” to refer to sex. This is incorrect.
Gender refers to masculinity and femininity, i.e. sex as it is defined by society. Almost all people are people of both genders.
Sex refers to biology.
The word “gender” has eaten the word “sex” because of politcally correctness.
Sex is something that is assigned to you at birth. There are biological differences, but they are exaggerated by society.
CM will use “race” and “ethnicity” in the same way she uses sex and gender. “Ethnicity” more properly means the social meaning of race.
There are biological differences between the sexes, but people are not discriminated against based on those differences. They are discriminated against based on characteristics ascribed to their sexes.
 
CM’s position is that inequality is a fact, and that it is not biologically driven.
 
Why is there sex inequality?
This course is organized around a series of linchpin theories. Something only works as a linchpin if it is critical to the various inequalities between the sexes.
E.g. if reproductive biology is the linchpin, then eliminating inequality in it will elimininate inequality generally.
Some linchpins include: biology, economics, education (consciousness), athletics (men are stronger than women on average), pregnancy, family (patriarchy), etc.
Nobody thinks that any of these are unimportant, but people tend to gravitate to one.
First we look at race and racism.
 
Abstract and substantive 
Abstract tends toward the universal and empty. Substantive tends toward

is also called “formal equality.”
 
The idea of the rule of law is that everyone is treated the same under the law.
Is there a disguised substance in this abstract rule?
If the more particular you get, the more substantive you get, what is an individual? Is it more substantive than a group?
CM thinks that the idea of the individual is the biggest abstraction out there.
An individual is seen without regard to group designations.
CM thinks that formal equality is almost mathematical. It’s like meeting in the middle, and it only works if both extremes are the same.
What Aristotle was really doing here was create a society that is equal from the outset, kind of like Rawls.
This assumes, then, that there is no existing hierarchy.
This is an artificial situation. It does not account for the existing social inequality that is present in real life.
People are being ahistorical if they use Aristotle in this way.
Remember that there are two parts to the Aristotelian model: likes alike and unalikes unalike. Usually the “unalikes” part gets covered up because people are usually treated worse because of their differences, not better.