Catherine MacKinnon’s work has featured on this blog before. For those of you who don’t know, MacKinnon is a famous (infamous?) feminist legal scholar. She has been particularly influential in campaigns against sexual harassment, for the recognition of rape as a crime against humanity, and (to a lesser extent) against pornography.
In her work on pornography, MacKinnon tries to argue that pornographic materials should not be categorised as legally protected forms of speech. In her effort to defend this point of view, she advances three interesting claims about the nature of pornographic speech. First, she argues that pornography silences women. Second, she argues that it subordinates women. And third, she argues that it falsely constructs women’s natures.
Powerful rhetorician and tireless campaigner though she may be, I must admit I have never found MacKinnon’s work on these matters to exhibit the kind of prosaic clarity and analytical precision I admire. It has thus been a welcome surprise to find that a number of philosophers have attempted to reconstruct and reconceive her arguments along more analytical lines. One of those philosophers, whose work I have found particularly useful, is Mary Kate McGowan.
In a previous series of blog posts, I covered McGowan’s attempt to reconstruct MacKinnon’s silencing/subordinating arguments. In this series, I want to look at another of her articles which reconstructs the false construction argument. The article in question is entitled “On Pornography: MacKinnon, Speech Acts, and “False” Construction”.
It will take me a couple of posts to cover the key arguments in this paper. To give a quick precis, McGowan’s argument is that the production and distribution of pornography can be viewed as a type of speech act — i.e. as a way of doing something with words or other symbolic forms of communication. And that as a type of speech act, pornography may create a defective representation of what women are (what their “nature” is), which affects how they are treated in the social sphere.
To understand this argument fully, we need to familiarise ourselves with some key concepts and ideas. The remainder of this post attempts to do just that. First, we’ll try to clarify what MacKinnon means by pornography and false construction. Second, we’ll deal with the paradox of false construction, i.e. how can a construction be false? And third, we’ll look at the distinction between two basic types of speech act: (i) the verdictive; and (ii) the exercitive. (The last two have been covered on the blog before, but a little repetition won’t hurt).
1. Mac-Pornography and False Construction
The term “pornography” covers a range of materials — written, photographic, cinematographic — with many different varieties available in each medium. Clearly, pornographic materials involve the depiction or representation of sexual acts, and are typically intended to provoke some kind of sexual response (at least in part).
One initial question that arises, then, is whether MacKinnon intends to impugn all forms and varieties of pornography. The answer, would seem to be “no”. In her 1980s campaign, MacKinnon and feminist author Andrea Dworkin, tried to create legal mechanisms for women to sue for the damage caused to them by pornography. They did this through a series of civil rights ordinances, which treated pornography as violation of women’s civil rights. Within these ordinances, “pornography” was defined in a restrictive fashion. The following is the definition taken from the model ordinance:
1. "Pornography" means the graphic sexually explicit subordination of women through pictures and/or words that also includes one or more of the following:
a. women are presented dehumanized as sexual objects, things or commodities; or
b. women are presented as sexual objects who enjoy humiliation or pain; or
c. women are presented as sexual objects experiencing sexual pleasure in rape, incest, or other sexual assault; or
d. women are presented as sexual objects tied up or cut up or mutilated or bruised or physically hurt; or
e. women are presented in postures or positions of sexual submission, servility, or display; or
f. women's body parts-including but not limited to vaginas, breasts, or buttocks-are exhibited such that women are reduced to those parts; or
g. women are presented being penetrated by objects or animals; or
h. women are presented in scenarios of degradation, humiliation, injury, torture, shown as filthy or inferior, bleeding, bruised or hurt in a context that makes these conditions sexual.2. The use of men, children, or transsexuals in the place of women in (a) of this definition is also pornography for purposes of this law.
3. "Person" shall include child or transsexual.
Although the list of conditions (a)-(h) includes things that are often typical of hardcore pornography, it seems obvious to me that not every sexually explicit or provocative novel/movie/image would fall foul of this definition. And if we assume this definition governs MacKinnon’s anti-porn arguments, it seems fair to say that those arguments do not in fact impugn everything we might call “pornographic”. Consequently, when discussing MacKinnon’s arguments we should bear in mind the restrictive class of materials they invoke. McGowan does this in her article by using the delightful neologism “Mac-Pornography”, which I shall abbreviate to “Mac-Porn”.
(Note: you might worry that the above definition is seriously question-begging with respect to some of MacKinnon’s claims. After all, she defines pornography as something that subordinates women when that is surely something she needs to prove. This is a bit of a problem alright, but charitably one can interpret the conditions (a)-(h) as specifying what is it for pornography to be subordinating. So it’s not necessarily question-begging)
We are concerned with whether or not Mac-Porn falsely constructs women’s natures. What on earth does that mean? This is a tricky question, one which we’ll explore in more depth throughout this series, but as a first pass we can note the obvious affinities between false construction and Marxist concepts of false consciousness and false necessity. I’m assuming these are deliberate given MacKinnon’s Marxist leanings.
Within Marxist theory, the material conditions of production are said to generate an overarching ideology that helps to sustain those conditions of production. Thus, in a capitalist economy, an economic and social ideology is generated which makes worker’s believe that the way in which profit is generated and prices are set is somehow a necessary or intrinsic property of the underlying material reality. The Marxist claim is then that these things are not truly necessary or intrinsic. Thus, the ideology being generated is “false”.
MacKinnon’s claim is that Mac-Porn creates and constructs women’s natures in a way that is false. More specifically, her claim is that:
The False-Construction Claim: Mac-Porn falsely constructs women’s nature, how women are seen, and how they are treated, such that it creates a social reality in which women are viewed as sexual objects to be dominated and brutalised.
We need to figure out how it is that pornography, qua speech, could bring this about. To do that, we first need to ask whether the whole notion of “false construction” makes sense.
2. Can a Construction be False?
Pause for moment and look at the false construction claim. Personally, I think it makes sense, when viewed in light of Marxist theory. Still, there is something odd about the language being used. When we say that something is constructed, we say that a particular activity makes it the case that it exists (“X is constructed” → “X is made to exist”). But surely one can’t falsely make it the case that something exists?
Take the most obvious case: We construct objects out of other materials. Thus, for example, we construct a house out of bricks, mortar, wood, roof tiles, windows and so forth. In so doing, we make it the case that the house exists. But then how could we say that we falsely construct the house? Although the proposition “there is now house over there” is capable of being true or false, the house itself is not. It does not carry a truth value; it either exists or it doesn’t. Admittedly, the construction may not be perfect. It may, in other words, fall short of our paradigm of housey-ness. But that still doesn’t mean that the constructed object bears a truth value.
Clearly, pornography does not construct women’s natures in the same way the builder constructs the house — in that sense the analogy breaks down — but the analogy is close enough to reveal the problem. If pornography makes it the case that women’s natures are such-and-such, in what sense can it do so falsely? To answer that, we need to clarify two things: (i) how it is that facts, particularly social facts, are constructed; and (ii) how such constructions might fail to be true (if they can indeed fail to be true).
A fact is a true proposition. In order to be true, a proposition must satisfy a number of truth condition. For example, the proposition: “There is pink unicorn at the bottom of the garden” is true when the following condition is met: there actually is a pink unicorn at the bottom of the garden. Facts can be constructed if we have the power to bring about the satisfaction of their truth conditions. This is true in the case of virtually all social facts. For example, the social fact that the speed limit outside my house is 30mph is a constructed fact. Certain recognised institutions declared the speed limit to be that, and in so declaring they satisfied the truth conditions for the proposition “the speed limit outside my house is 30mph”. In much the same way, the proposition “Jack is married to Jill” can be socially constructed fact when Jack and Jill are declared to be in that relationship by a certain institution. For those who wish to learn more, John Searle has written some useful books about the construction of social facts.
How could a socially constructed fact be false? Even in the case of the speed limit, it seems to difficult to say that the constructed fact could be false: if the speed limit is declared to be 30mph by the relevant authority then that, surely, is what it is. Others might report falsely on the speed limit — for instance they could tell you that the speed limit is 25mph — but since they don’t have the requisite authority to construct social facts this does not mean they falsely construct the speed limit.
McGowan seems to acknowledge the insuperable difficulty here. But she has a solution. Although one cannot falsely construct a social fact, one can defectively or improperly construct a social fact. Just like the builder can construct a bad or improper house, so too can a social institution defectively impose a status on a certain state of affairs. Indeed, this very notion of defectiveness is integral to speech act theory, which makes it an auspicious place to further our analysis of the false (or, rather, “defective”) construction claim.
3. Verdictive and Exercitive Speech Acts
It has long been known that speech plays an important role in the construction of social facts. By saying things like “I promise to sell you my car” or “I now pronounce you man and wife”, we don’t merely report facts, we actually perform actions. In both examples our declarations make it the case that certain propositions are true. Speech act theory tries to clarify exactly how this happens.
One of the key elements of speech act theory is that in order to successfully perform a speech act certain conditions of success must be satisfied. If they are not, the act will be defective in one or more respects. To explain, let’s consider two types of speech act: (i) the verdictive; and (ii) the exercitive.
A verdictive speech act is an authoritative judgment about some antecedent matter of fact or value. A classic example would be the call of a referee, linesman or umpire in a sporting contest. In football, for example, by raising their flag, the linesman can pass judgment on whether a player was offside or not. In doing so, they make a judgment about a purely factual state of affairs (was the player beyond the last defender before the ball was passed to them). But because they are a recognised authority within the game, their declaration doesn’t simply report the facts, it actually makes it the case that the player was or was not offside for the purposes of that game.
An exercitive speech act is the enactment of permissibility conditions in a certain social sphere. A classic example of this is rule-setting within clubs or sports. For example, suppose I am the president of a golf club and, being recognised to have the power to do so, I declare that the use of mobile phones will henceforth be banned from the members’ bar. Given my recognised authority, my declaration thereby makes it the case that the use of mobile phones is impermissible within the members’ bar.
In both cases, the successful performance of the speech act is dependent on a number of conditions. These include (non-exhaustively): recognition by the audience that the person performing them has the requisite authority, successful communication of the content of the speech act to the relevant audience and, in the case of the verdictive, accurate reporting on the antecedent facts or values. In this sense, the verdictive allows for the defective construction of social facts. As in, for example, the linesman who declares a player offside when they really weren’t. This declaration still constructs a fact for the purposes of the game, but the fact fails to track the antecedent truth.
What we have here are the ingredients for a plausible reconstruction of MacKinnon’s false construction argument. All we need to do is show that pornography is a kind of verdictive speech act that fails to track the antecedent truth. We’ll see whether this is possible the next post.