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Sexist implications of law’s fidelity to science and reason Nowlin, Christopher J. 1993

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SEXIST IMPLICATIONS OF LAW'S FIDELITYTO SCIENCE AND REASONbyChristopher Jon NowlinB.A., The University of Calgary, 1985M.A., Brock University, 1987L.L.B., The University of Ottawa, 1991A THESIS SUBMITTED IN PARTIAL FULFILLMENT OFTHE REQUIREMENTS FOR THE DEGREE OFMASTER OF LAWSinTHE FACULTY OF GRADUATE STUDIES(Faculty of Law)We accept this thesis as conformingto the required standardTHE UNIVERSITY OF BRITISH COLUMBIAApril 1993© Christopher Jon Nowlin, 1993In presenting this thesis in partial fulfilment of the requirements for an advanceddegree at the University of British Columbia, I agree that the Library shall make itfreely available for reference and study. I further agree that permission for extensivecopying of this thesis for scholarly purposes may be granted by the head of mydepartment or by his or her representatives. It is understood that copying orpublication of this thesis for financial gain shall not be allowed without my writtenpermission.(Signature) -BepeftmeRt of^LAWThe University of British ColumbiaVancouver, CanadaDate^*1 23, ricoDE-6 (2/88)11ABSTRACTThe central thesis concerns rationality, scientificity, andsexism in criminal law, and egalitarianism in constitutional law.It is proposed that sexism in criminal law results from therationalistic and scientific biases of criminal law practice anddiscourse.Rationality bears an historical, cultural, and epistemologicalassociation with masculinity. Psychoanaltyic theory and clinicalobservation reveals that (at least within patriarchal society) theprocess of childhood 'separation', whereby male childreneffectively begin to identify with their fathers and to distancethemselves emotionally from their mothers, entails a form ofrejection of the values of empathy, nurturance, caring, andattachment commonly associated with motherhood and femininity. Thesociological detachment of the father from the mother and the childbecomes synonymous with masculinity, and this kind of masculinedetachment is idealized and reflected in the privilege which ourculture pays to the categorical and epistemological divisiveness ofrationality. On the other hand, the emotional attachment which themother displays for her children and the father becomes synonymouswith irrationality or mere sensuality, and this dimension of humanlife is undervalued or perceived as something which must be tamedand controlled. This thesis proposes that criminal law attempts toi iiensure that female sexuality is always kept under control.Religion and science play comparable roles in the culturaldenigration of female sensuality to the extent that bothinstitutions pay greater respect to the creative powers of thehuman mind than to the procreative implications of the female body.Law is complicit in this hierarchical arrangement insofar as itpurports to derive its moral authority ultimately from the will ofthe heavenly father while at the same time attempting to avoid thesight of the earthly female body in any way but through ascientific lens.Criminal law practice follows traditional scientific forms offact-finding (e.g the empirical method) and it purports to arriveat objective truth through the adversarial method of litigation.Its standard of proof is "proof beyond a reasonable doubt" orCartesian certainty. Criminal law discourse purports to berational to the extent that its rhetorical legitimacy depends on aself-perceived internal, doctrinal logic. Moreover, criminal lawdiscourse privileges rationality insofar as it routinely employsnormative tests involving "reasonable persons" or "reasonableness".Criminal law also helps to preserve a sexist status quothrough the way it regulates indecency and pornography. Law hastended to treat pornography as a matter of morality, not as a formof sexual politics or as a misogynistic social practice. Andpornographic culpability becomes determined by privilegedscientific paradigms (e.g. causality) and scientific standards ofivproof (certainty).Another way in which law interprets female sexuality in ascientific way is its application of egalitarian doctrine toconstitutional issues involving sex discrimination. Here the lawtreats human sexuality in general as a mathematical problem, or asa matter of quantitative analysis. This categorical approach hastended to be phallocentric in the sense that it typically hasfocussed on the male sex organ as the proper reference fordefining, measuring, and determining sexual difference - andultimately sexual discrimination.Law is patriarchal by definition but our acculturatedassociation of masculinity and paternity with rationality may wellbe contingent. Law reform that would liberate women from maledomination depends therefore on the possibility of a reduction inlaws which purport to regulate human sexuality, and a culture-widerecognition of the distorting tendencies of scientific thinking andmethodology. The Supreme Court of Canada Butler decision may beseen as a legal catalyst toward the latter kind of recognition butmore is obviously needed, such as a greater feminine self-awarenessamong men and an increased presence of women and mothers intraditional political positions.TABLE OF CONTENTSABSTRACT^ iiACKNOWLEDGEMENT^ viINTRODUCTION 1CHAPTER 1 - FALSE DIFFERENTIATION AND EROTIC DOMINATION^12CHAPTER 2 - THE RATIONALITY OF LAW AND SCIENCE^ 34CHAPTER 3 - PHALLOCENTRISM AND EGALITARIANISM IN LAW^65CHAPTER 4 - LEGAL REASONING AND THE PORNOGRAPHIC IMAGINATION^91CONCLUSION^ 115BIBLIOGRAPHY^ 119ACKNOWLEDGMENTI would like to acknowledge the respective efforts of my twothesis supervisors. Professor J.C. Smith made it possible for meto explore an important theme by reference to unconventionalwisdom. Professor Susan Boyd reminded me that unconventionalwisdom can be understood as conventional wisdom, depending on thenature of the audience.vi1INTRnnUCTTnNThis thesis concerns the issue of sexual discrimination inCanadian criminal and constitutional law. In its broadest form itstates that legal egalitarianism is wrongheaded when it is appliedto issues of human sexuality. In its more precise form it attemptsto compare legal discourse with scientific discourse according tothe inherently rationalistic bias which each discourse shares.This bias, I will argue, prevents either discourse from being ableto appreciate female sexuality from a female point of view.Accordingly, it is sexist.The central problem which I pose is the possibility ofovercoming sexism in law, through law. Specifically, this paperwill focus on linguistic, doctrinal, and procedural issuesassociated with certain areas of criminal law, such as pornography,sexual assault, obscenity, and indecency. I will argue that thelanguage of these areas of criminal law, like the language of lawin general, is overtly scientific and typically patrophallic. Itis scientific insofar as it relies heavily on classic scientificdichotomies such as subject/object, cause/effect,similarity/difference, and mind/body, and because it employsscientific standards of proof, such as "proof beyond a reasonabledoubt", which amounts essentially to Cartesian certainty. It ispatrophallic (as opposed to matrophallic) to the extent that theuse of scientific language and method has not only renderedcriminal law an historically powerful discourse, but a discourse2and praxis which has tended to privilege male sexual interests.Borrowing insights from some modern and contemporarypsychoanalytic theorists, certain streams of feminist thought, andFriedrich Nietzsche's critique of ascetism in On the Genealogy ofMorals,' I will propose that current criminal laws pertaining tohuman sexuality are devised predominantly with the male sex drivein mind. In this respect I will postulate that the primary focusof these laws is the regulation of male desire. This primaryfocus, however, must be distinguished from what could properly becalled the primary effect of these laws, which is the regulation offemale sexuality, especially as this is expressed and experiencedthrough the female body. Thus, I will attempt to demonstrate that,whereas the letter of the criminal law relating to morals andsexual offences often purports to exhibit profound respect for thefemale anatomy, the female body, female autonomy, and the securityof women's lives in general, the practice or application of thisarea of law typically results in the denigration of women's bodies,the devaluation of female autonomy, and the diminution of women'sliberty.This above trend is consonant, I will argue, with an undueemphasis which our modern, post-Enlightenment, civilized societyplaces on science, especially scientific language and empiricaldata-gathering methods, as well as cognitive experience andrationality. The privilege which our culture attributes to1 Friedrich Nietzsche, On the Genealogy of Morals, in On theGenealogy of Morals and Ecce Homo, trans. Walter Kaufmann (NewYork: Random House Inc., 1967).3rationality underlies our political commitment to constitutionalequality and our many attempts to cure or to solve a great varietyof social problems through egalitarian analyses. Moreover, I willargue that this faith in reason has a moral corollary in theimplicit puritanism of modern legal thinking. As I will attempt todemonstrate, this legal puritanism functions on a cultural level asa kind of psychic analgesic or neurotic reaction to the biologicaldictates of the human body. That is to say, the very enterprise oflaw involves a significant degree of physiological sublimation ordisplacement among the members of society that law attempts toregulate, for law and order entail a redirection of sexual desiresand physiological impulses away from individual persons towardsconceptual abstractions or ideals, such as brotherly love, truth,justice, equality and decency. Like any narcotic or form ofsublimation, however, the ideals associated with science and lawmust inevitably succumb to the recurring demands of the human body.Unfortunately, when this has occurred throughout the modern Westernworld, women's bodily demands have been denigrated to meet thedemands of the male body.In the course of my argument I will rely heavily on certainscientific observations that lend support to the notion thatphysiological differences between men and women play a significantrole in shaping sexual, political, and social relations. 2 For2 Indeed, I will not pretend throughout my thesis to have thecapacity to subvert or to overcome scientific discourse. To theextent that I do not hold my thesis out as a work of fiction, or asa work of art, but rather as an exercise in scholasticism andresearch, I openly concede the 'scientific' constraints of my4example, I will take notice that men display distinctivebehavioural tendencies emanating from the production oftestosterone within their bodies, and that these tendencies bearstrongly upon their psychological, emotional and sexual life. Itis not particularly important to my thesis if all men admit to thisor not, or whether the so-called 'object' of male desire belongs tothe same or to the opposite sex. Indeed, it is central to mythesis to suggest that many men prefer to deny or to repress thesociological implications of their bodies, and certainly the merefact that someone either denies or admits the truth of anendeavour. Indeed, I accept my own (and any other academics')inability to transcend oppositional thought, and so my critique ofoppositional discourse in law is founded in oppositional terms. Irely heavily on the very oppositions, such as mind/body,subject/object, which form the 'subject' or 'object' of mycriticism.Moreover, I rely significantly on biological discoursethroughout this thesis, although I am fully aware that theexplanatory privilege which I attribute to this discourse mayengender criticism that I am somehow "essentialist". For what itis worth (and I am not prepared in this thesis to enter into aprotracted debate on the topic) the mere fact that my thesis reliesin large part on so-called "essentialist" or biological arguments,and less on "anti-essentialist" arguments, should not be seen asnecessarily problematic from a scholarly point of view.recognize some of the political implications of privileging certainessentialist insights, as will be made clear in the course of mythesis, but I am not prepared to abandon these insights for thesake of upholding a particular political ideal or appearing'politically correct'. Thus, for example, when my thesis addressesthe epistemological implications of motherhood and fatherhood Iinfer that some women have an essentially different epistemologicalperspective than men, based on my academic research into the natureof mothering and my personal, conversational experiences withwomen. And again, based on these textual and oral discursiveexperiences I construct a critique of scientific discourse incriminal law, but again, in doing so I do not pretend that I cansomehow supercede the epistemological constraints of thatdiscourse.5allegation certainly does not determine the truth of thatallegation.I will also postulate that some women, at least most pregnantwomen and mothers, form a distinctive psychological and emotionalattachment for their offspring or children, and that thisexperience translates into a kind of erotic and moral relationshipwith others that cannot be experienced by men. I will proposefurther that women and men are sufficiently distinct in terms oftheir respective physiologies and anatomies that heterosexuality isnecessarily political, and that epistemological inter-subjectivityas between the sexes is ultimately impossible except at the levelof metaphor or discourse.In Chapter 1 I will introduce and discuss the notion of "falsedifferentiation" as coined by Jessica Benjamin in "The Bonds ofLove: Rational Violence and Erotic Domination". 3 As we will see,false differentiation explains the way cognitive experience, viaits rational discourses, tends to objectify human experience andtherefore to diminish the importance of subjectivity in thatexperience. I will discuss Benjamin's concept of "falsedifferentiation" against a backdrop of Freudian psychoanalytictheory in order to provide a theoretical framework for analysingthe broader, sociological role of parental authority in early3 Jessica Benjamin, "The Bonds of Love: Rational Violence andErotic Domination" in H. Eisenstein and A. Jardine, eds., TheFuture of Difference (New Brunswick: Rutgers University Press,1985) 41 [hereinafter "Rational Violence and Erotic Domination"].See also Jessica Benjamin, The Bonds of Love: Psychoanalysis,Feminism, and the Problem of Domination (New York, N.Y.: PantheonBooks, 1988) [hereinafter The Bonds of Love].6childhood development. Whereas Freud saw the early development offemale and male sexuality in essentially hierarchical orinegalitarian terms, Benjamin argues that 'erotic domination' bymen over women is ultimately acculturated, and certainly nothistorically necessary. It is contingent upon the privilege whichWestern culture attributes to rationality and clarity at theexpense of contradiction or paradox. She recognizes that thecentral epistemological principle behind rationality is to separateand divide (for example, masculine subjects from feminine objects)but she argues for the possibility of inter-subjectivecommunication between the sexes based on her clinical observationsof early childhood development.In support of the argument that woman's subjectivity orwoman's point of view has been excluded from the historicaldiscourses which inform our understanding of human sexuality I willturn to Jacques Lacan's insight that the phallocentric nature ofdiscourse itself precludes man's ability to understand femalesexuality from a woman's point of view.' In this respect Iconsider Lacan's analysis of the phallocentricity of languagesimilar to Benjamin's analysis of rationality. Both thinkerssuggest that rational discourse circumscribes female sexualityaccording to male point of view. Lacan's analysis goes one stepbeyond Benjamin's for our purposes, however, because it directly' See Jacques Lacan, Le Seminaire livre XX: Encore (Editionsdu Seuil, 1975); Jacques Lacan, "The Signification of the Phallus",in Ecrits, trans. Alan Sheridan (New York, N.Y.: TavistockPublications Limited, 1977) 281.7links the language of law to the phallocentricity of discourse ingeneral. Indeed, Lacan and other contemporary psychoanalytictheorists that I will introduce in Chapter 1 attempt to explain howlaw and legal discourse necessarily reflect a historical pre-occupation with the male sex organ, as well as a patriarchal socialorder.In Chapter 2 I will attempt to connect the purportedrationality of criminal law discourse and method and the inherentrationality of scientific discourse and method in a way whichexplains the tendency of criminal law to 'falsely' differentiate inprecisely the way Benjamin imagines. For this purpose I will referto the work of Evelyn Fox Keller, which makes a connection betweenmasculinity and the historical privilege which Western society hasattributed to scientific discourse. This connection explains howwomen tend to be excluded from participation in traditionallyscientific endeavours. To the extent that I will argue that law isprecisely one such kind of scientific endeavour (and here I willrely on some work of Carol Smart), I will then attempt todemonstrate how women come to be excluded from participation inmany facets of law. Specifically, I will look at one area ofcriminal law as illustrative of the way in which women are not onlyexcluded from the societal self-protection which criminal lawpurports to afford, but how women themselves become psychologicallyand physically denigrated by the scientific methodologies andrationalist doctrines of criminal law. One of the issues thatarises with respect to the latter theme is the relation between8scientific methodology and moral puritanism. I will thereforeaddress the proposition that reliance on scientific methodgenerally, as a means of determining issues of human sexuality,tends to reflect a moral puritanism which is primarily concerned tocontrol, if not to tame, the sensual implications of the femalebody.In Chapter 3 I will address the issue of egalitarianism inconstitutional jurisprudence, as this has been developed in acontemporary Canadian criminal law context. As we will see,constitutional egalitarianism in Canada relies predominantly on themetaphorical opposition similarity/difference. I will propose thategalitarianism is essentially a mathematical metaphor and that thesimilarity/difference opposition is essentially scientific insofaras it ultimately entails quantitative analysis. To the extent thatcertain sociological problems associated with human sexualitycannot be resolved by mathematical means or quantitative analysis,I will argue that egalitarianism is an inappropriate conceptualtool for addressing these problems. Indeed, I will go further andsuggest, based on the analytic framework established in thepreceding chapters, that the application of egalitarian doctrine inmatters of human sexuality effectively entrenches the existingsocial hierarchy between men and women (that is, by rendering them'more or less' equal) and invariably leads to subtle forms ofpornography and possibly misogyny.One possible way of overcoming this tendency in law is todisplace the importance of equality as a jurisprudential tool in9favor of liberty or autonomy. One could attempt to dislocate theimportance which constitutional law places on the intellect (forclearly equality is an intellectual construct) and emphasizeinstead the physical nature of human being. Thus, to the extentthat there is nothing inherently scientific or rationalistic abouthuman physiology, an argument can be made that women may farebetter where courts address sexual issues from the point of view ofphysical inviolability, as opposed to equality. At least women'sbodies would not necessarily be measured here against male bodies -that is, as being more or less the same or different, and possiblyinferior.In Chapter 4 I will focus my attention on the way lawtraditionally has perceived female bodies and again, I will linkthis perception to law's marriage with science. I will argue thatthe scientific bent of law tends to objectify women physically, ormore figuratively, to decapitate or dismember women, and that ittherefore contributes to a culture-wide "pornographic imagination".This phenomenon has been exacerbated by Canadian anti-obscenity (oranti-pornography) law, I will argue, because of the strictscientific standard of proof (Cartesian certainty) that this lawgenerally requires. Until very recently Canadian law has beenunwilling to prohibit the publication of pornography withoutempirical evidence of a strict causal connection between physicalharm to women and children and pornographic publication. Sincethe Supreme Court of Canada has stepped back somewhat from itsfervent scientificity, however, I will contend that women stand a10better chance of overcoming the physical oppression of pornographyand of what Benjamin refers to as 'erotic domination'. One of thekey conceptual elements for discussion in this respect will be thefunction of representation or epistemological mediacy in scientificdiscourse and methodology, as opposed to the function ofpresentation or epistemological immediacy in non-scientificdiscourse. For women will not be able to transcend theirpornographic representation in male terms where the criminal lawcannot overcome its methodological and doctrinal predilictions forthe objectified image of women in society in favor of the non-objectified touch, smell, and sound of women.In the final analysis, in my academic and critical capacity Ihave tried to resist the temptation "to prefer the shiny new theoryto the fully cognized experience." 5 Although I will ground muchof my analysis of sexual equality litigation in modern andcontemporary psychoanalytic theory, one need not stray too far fromjudicial precedent to observe the patrophallic bias of much legaldiscourse. I will not pretend that that bias is something that canbe overcome easily. For women to make even modest gains withrespect to overcoming this male bias in law they will have to enterinto a dialogue with men, which means participating to some degreein that same bias. However, they must also be allowed theopportunity to introduce a distinctly female bias or female pointof view into legal discourse and legal proceedings. The onus is on5 Allan Bloom, The Closing of the American Mind (New York,N.Y.: Simon & Schuster Inc., 1987) at 254.11the court, however, to make an effort to recognize the inherentdignity of the female body and in some cases the maternalpossibilities associated with the female womb, genitalia, andbreasts By ascribing greater significance to the female anatomythe court may be able to offset its historical phallocentrism. Inthe end the courts and the male defendants of desire must embracehuman animality in general - that is, the bodily dictates of T. S.Eliot's "[b]irth, and copulation, and death" -and relinquish itsgrasp on the mind or the idea, for the body is ultimately whatgoverns human desire, the ultimate law of human relationships. Atleast reason suggests that a less formal or theoretical approach toresolving sexual issues through criminal law could indirectlybenefit men by relieving them of the fear and anxiety whichunderlies their repressive, phallocentric, Cartesian standard ofproof, and it might directly benefit women complainants andlitigants by ensuring not only that their needs are seen andunderstood - that is, visually and intellectually - but that theirdesires are also effectively felt and heard.'6 T.S. Eliot, Sweeney Agonistes: Fragments of an AristophanicMelodrama (London: Faber and Faber, 1932).' By emphasizing the merely logical implications of my thesishere I do not want to appear to have ignored the various kinds ofphysical and mental oppression that women have experienced as anintegral part of their broader, historical encounter with law. Aswill be made in the first chapter of my thesis, I attribute variouskinds and degrees of female oppression precisely to the broaderhistoric role of patriarchy within Western culture. But forprecisely this reason I consider it wrongheaded to criticize thelogic of my thesis by reference to our patriarchal past. The kindsof possibilities for law reform that I contemplate in this thesisare clearly dependent upon the plausibility of overcomingpatriarchy, and this would require a variety of social reforms,12CHAPTER 1 - FALSE DIFFERENTIATION AND EROTIC DOMINATIONLet us begin this chapter by briefly recalling some of thepioneer psychoanalytic observations of Sigmund Freud. Inparticular, let us draw our attention to a stage of infant andearly childhood psychological development which, since Freud, hascome to be known loosely as the Oedipal phase. For Freud, earlychildhood psychological and emotional development normally entailsa process of human "individuation" whereby male and female childrenacquire a genderized sense of "self". This differs according tothe early recognition among the two sexes of their unique sexualorgans. 8 The young male child, according to Freud, develops asuch as an increased presence of women in the law (as lawyers,judges, legislators, politicians), an effective, practical,culture-wide reevaluation of the relative values of science and artfor everyday living, and possibly some degree of economicrestructuring.8 The term "individuation" was coined in the context ofFreudian psychoanalytic theory by Margaret Mahler in Mahler,Margaret S., Fred Pine, and Anni Bergman, The Psychological Birthof the Human Infant (New York: Basic Books, 1975). It refers tothe process of psychic differentiation whereby young childrenacquire a sense of "self" according to two competing drives. Thetheory states basically that the young child is driven by early,painful experiences of "separation" from the mother, to return toa primal state of "oneness" or "narcissistic bliss" that psycho-analytic theory associates with pre-natal and neo-natal stages ofcognition. This pull toward a reunion with the mother must competesimultaneously, however, with a pull away from the mother, based onthe young child's desire to be autonomous. The dynamic interplaybetween both of these forces describes a process of differentiationor self-understanding whereby the "self" becomes definednegatively, as somehow other than or distinguished from the motherand the affects of her immediate environment. The self alsobecomes defined positively, as somehow autonomous and inherentlycomplete. Psychoanalytic theory describes the former mode ofdifferentiation as separation and the latter mode ofdifferentiation as individuation.13psychological fear of castration - a "castration complex" - basedon an early visual and sensual awareness of his own genitals, hisunderstanding of the castrating form of approbration which couldattend his personal manipulation of his genitals (for example,should he be detected masturbating), and his early observation offemale genitalia. 9 It is the absence of a penis as being somehowattached to or connected to the female pubic region that confirmsin the mind of the young male child the real possibility of his owncastration." Freud postulates that, as a result of this fear,there are two possible avenues of behaviour open to the male child,and these are conditioned by the Oedipus complex. The child caneither attempt to achieve omnipotence (literally, that is, topreserve the erotic and biological functions associated with hispenis) by replacing the erotic role of the father vis-a-vis themother in the family situation and thereby make himself theexclusive object of his mother's love, or he can replace the eroticrole of the mother vis-a-vis the father and thereby become theexclusive object of the father's love and affection." Eitherchoice, however, entails the loss of the child's penis."Freud, "The Dissolution of the Oedipus Complex", in Vol. 19of The Standard Edition to the Complete Works of Sigmund Freud, edJames Strachey (London: Hogarth Press, 1960-1974) 173 at 175-176[hereinafter Freud cited to Standard Edition unless otherwiseindicated].1° Freud, ibid. at 176." Freud, ibid. at 176.12 Figuratively speaking, at least, the male child eitherloses his penis inside the mother should he become her love-objectand thus her partner in sexual intercourse. Likewise, should the14According to Freud, in response to the threat of castration themale child normally tends to "identify" with his father, in thesense that he begins to emulate the authoritative and masculinebehaviour that he observes in his father - especially as regardshis father's behaviour toward his mother - and accordingly hedistances himself from the mother."This general observation by Freud has two significantimplications for our current discussion. First, the observationthat male children identify with their fathers and not with theirmothers as a routine part of psychological and behaviouraldevelopment (at least within a confined patriarchal setting)reveals that male processes of self-understanding and self-worthentail genderization. 14 That is to say, these processes involvemale child replace the mother as the father's love-object theerotic utility associated with the child's penis disappears.13 Freud, ibid. at 176. See also Freud, "The Ego and the Id",in Volume 19 of the Standard Edition, ibid. 12 at 32; and Freud,"Group Psychology and the Analysis of the Ego", in Vol. 18 of theStandard Edition, ibid. at 105.14 The issue of genderization must not be confused with theissue of sexuality or what is commonly referred to as sexualpreference or sexual orientation. Genderization refers to thetendency among both young male and female children to adopt eithera masculine archetypal figure (such as the father) or a femininearchetypal figure (such as the mother), respectively, as the objectof their ego-ideal. The "ego-ideal" is Freudian terminology forthe ideal object of a child's love and affection. It is acharacter (with genderized character traits) that children tend toidolize and to emulate: see S. Freud, "Group Psychology and theAnalysis of the Ego", ibid., and J.C. Smith, Psychoanalytic Rootsof Patriarchy (The Neurotic Foundations of Social Order) (New York:New York University Press, 1990) at 46-47, 103-105 [hereinafterNeurotic Foundations]. A child will likely adopt more than oneego-ideal as he or she matures, and to the extent that it maybecome difficult to identify a predominant gender or core genderidentity of any person at any given stage of his or her life, it is15the preference for an acculturated definition of masculinity(paternalistic) over an acculturated definition of femininity(maternalistic). Thus Freud says, relating the gradualidentification of the boy with the father to the gradualdissolution of the desire to unite erotically with the mother, that"the dissolution of the Oedipus complex would consolidate themasculinity in a boy's character."'Second, the tendency among male children to emulate and to'idealize"" the image of their fathers affects their own sense ofmorality. In effect, by adopting and accepting the behaviour ofpossible to observe "gender ambiguity" among some individuals. Fora discussion of gender ambiguity in males see R. Stoller,Presentations of Gender (New Haven, Conn.: Yale University Press,1985).The question of one's sexuality or sexual orientation is notnecessarily linked to the genderization process, except insofar asthe development of gender identity (masculine and feminine selves)is rooted in one's sexuality: see J.C. Smith, Neurotic Foundations,ibid. at 147. In other words, individuals acquire both feminineand masculine selves by virtue of the fact that they are sexualbeings, but their predominant gender or core gender identity doesnot depend on the fact of their being male or female. One can bea heterosexual male and adopt a feminine archetypal figure as thedominant object of his ego-ideal. We might refer to this person asan effeminate, heterosexual male. Likewise, one can be ahomosexual female and adopt a masculine archetypal figure as thedominant object of her ego-ideal. This woman might appear 'macho',in contrast to the effeminate, heterosexual male.15 Freud, "The Ego and the Id", ibid. at 32.16 explains how the decision by the young male toemulate and identify with the father requires the male child toovercome his pre-natal and infantile affection for his mother andinstead substitute the image of the father as the 'ideal' object ofhis love: see Freud, "The Ego and the Id", ibid. at 31-32; seealso Freud, "Group Psychology and the Analysis of the Ego", ibid.at 105, where he states that "[a] little boy will exhibit a specialinterest in his father; he would like to grow up like him and belike him, and take his place everywhere. We may simply say that hetakes his father as his ideal."16the father as 'ideal', Freud proposes that male children alsoincorporate their father's moral beliefs and sensibilities intotheir own behaviour and self-understanding. This is the naturalfunction of what Freud refers to as the 'super-ego'." Basically,the super-ego in Freudian psychoanalysis functions as the voice ofconscience or as "an unconscious sense of guilt" 18 which isacquired among all children in the early stages of childrearing.It is assumed, in this sense, that an essential function ofparenthood is to prohibit children from fulfilling certain desiresand wishes," and that the various forms of authority on whichparents rely for this purpose are historically and culturallydetermined morays, entrenched through the auspices of religion,education, literature, and law. For Freud, the natural consequenceof prohibiting children from freely acting upon their eroticimpulses involves their own psychological internalization ofacculturated moral imperatives, which then exhibits itselfoutwardly in various forms of repressive behaviour and instinctualsublimation. Chasseguet-Smirgel elaborates upon Freud's theory ofthe super-ego as the inner voice of conscience associated withone's sense of guilt, by referring to it as the "paternal law". 2°" See generally Freud, Part III of "The Ego and the Id",entitled "The Ego and the Super Ego", ibid. at 28.18 Freud, ibid. at 35." For example, in classic Freudian psychoanaltyic theory itis the father who intervenes between the male child and the objectof that child's love - namely, the mother - and in this sense thefather represents an obstacle to the child's incestuous desires.2° Chasseguet-Smirgel, "Feminine Sexuality: An Interview with17She states that[it] is important to consider that if we speak of "law"in terms of psychoanalysis, we refer to the postoedipalsuperego, which is based mainly on the internalization ofthe incest barrier. This is why it is also important toconsider that what comes directly from the mother ismainly a set range of rules."Of course, where the male child adopts the father-figure ashis 'ideal' it is precisely because the child prefers the authorityand image of dominance which he associates with the father'sbehaviour and the father's relatively superior position within thehousehold, to the perceived inferiority or submissiveness on thepart of the mother. This means that the male child in such asituation necessarily develops a paternalistic or patrophallicmoral sensibility. Freud would appear to recognize thisphenomenon, at least implicitly, when he states,Clearly the repression of the Oedipus complex was no easytask. The children's parents, and especially his father,were perceived as the obstacle to a realization of hisOedipus wishes; so his infantile ego fortified itself forthe carrying out of the repression by erecting this sameobstacle within itself. It borrowed strength to do this,so to speak, from the father, and this loan was anextremely momentous act. The super-ego retains thecharacter of the father, while the more powerful Oedipuscomplex was and the more rapidly it succumbed torepression (under the influence of authority, religiousteaching, schooling and reading), the stricter will bethe domination of the super-ego over the ego later on--inthe form of conscience or perhaps of an unconscious senseJanine Chasseguet-Smirgel" in M. Honey and J. Broughton, eds.,(1985) 72 The Psychoanalytic Review 527 at 543.21 Chasseguet-Smirgel, ibid.18of guilt. 22To the extent that the proper function of the super-egoappears to depend on the issue of "identification" and the processof genderization, the question remains as to how the super-egomight shape one's moral sensibility where the child chooses not toidentify with the father, but rather with the mother. Freudeventually recognized that young women did not "individuate"according to the same patterns as young men." This is because,for Freud, women are not burdened by the fear of castration whichaccompanies the male child's awareness of and fascination for hispenis. Rather, the early or infantile recognition among femalechildren that their genitalia are unlike that of male childrenleads them to infer, as Freud explains, "that at some earlier date[they] had possessed an equally large organ and had then lost it bycastration." 24 At this early stage of female psychic development22 Freud, "The Ego and the Id", supra, note 18 at 34-35.23 for example, Freud, "The Dissolution of the OedipusComplex", ibid. at 177-179; and Freud, "Some Psychical Consequencesof the Anatomical Distinction between the Sexes", in Vol. 19 of theStandard Edition, ibid. at 248.24 Freud, "The Dissolution of the Oedipus Complex", ibid. at178. Note that in "The Dissolution of the Oedipus Complex" Freudobserved that young women understood the absence of a penis to bea "ground for inferiority" (ibid. at 178). Freud has beencriticized in this respect, however, for modelling his analysis offemale psychology essentially in negative terms - that is, in termsof what women "don't have" or what they "lack": see Carol Gilligan,In a Different Voice (Cambridge, Mass.: Harvard University Press,1982) at 6-7. See also J.C. Smith, Neurotic Foundations, supra,note 14 at 100.Janine Chasseguet-Smirgel has modified Freudian psychoanalytictheory somewhat by postulating an "innate knowledge of genitality;that is, of the difference between the sexes" among both sexes,19then, castration is already an "accomplished fact" for women, and"the fear of castration being thus excluded in the little girl,"Freud says, "a powerful motive also drops out for the setting-up ofa super-ego and for the breaking-off of the infantile genitalorganization." 25 According to Freud, the moral sense acquired bythe female child is less complicated than that acquired by the malechild insofar as it is not conditioned upon a radical choicebetween feminine and masculine objects of the ego ideal.' Thisis what Freud means when he states that "[t]he girl's Oedipuscomplex is much simpler than that of the small bearer of the penis;in my experience, it seldom goes beyond the taking of her mother'splace and the adopting of a feminine attitude towards herfather."' As a result of this 'much simpler' kind of Oedipalthat places equal emphasis on the woman's genitalia as the male'sgenitalia in the psychic development of children, as well as anearly, omnipotent "maternal imago" which both male and femaleinfants both fear and revere. In Sexuality and Mind she writesthat "[t]he need to detach oneself from the primal omnipotentmother by denying her faculties, her organs and her specificallyfeminine features, and by investing in the father seems to be aneed both sexes share": J. Chasseguet-Smirgel, Sexuality and Mind:The Role of the Father and the Mother in the Psyche (New York: NewYork University Press, 1976) at 25.25 ^"The Dissolution of the Oedipal Complex", ibid. at178.26^Without going into detail on this issue (as it isproblematic to an extent which is beyond the scope of this thesis)Freud postulates that one of the psychological tendencies resultingfrom the female child's sense of "accomplished" castration is thatshe merely transforms the pre-existent desire to have a penis intoa wish to bear the father a child: see Freud, "The Dissolution ofthe Oedipus Complex", ibid. at 179.27 Freud, "The Dissolution of the Oedipus complex", ibid. at178. Again, Chasseguet-Smirgel displaces the importance that Freudplaces on the fear of castration in early childhood psychic20complex Freud observed that women tend to engage in different formsof instinctual sublimation than those observed among males."The psychoanalytic research of Nancy Chodorow is particularlyimportant as regards the issue of the different moral sensibilitieswhich derive from pre-Oedipal and Oedipal processes of self-development in favor of a deeper fear of engulfment (originatingprior to Freud's Oedipal phase) among both male and female childrengenerally. She argues that young girls at this pre-Oedipal stagedo not envy a penis so much as they figuratively construct andattach a penis to an omnipotent maternal figure because theresulting image is less frightening than that of a mother withouta penis. In her words, "one of the motives that leads to thecreation of an image of the phallic mother is that it is lessterrible and less dangerous than an engulfing mother. That is, theidea of being penetrated by a penis is less invading than that ofa deep and greedy womb. This is similar to the process of creatinga phobia. Instead of having a mother who is dangerous everywhere,in every part of her body in an unlimited way, the child focusesthe danger on a specific organ, the penis - an organ that can becastrated. I believe that the phallic mother is a defense againstan engulfing, 'without limits,' image of the mother": Interviewwith Chasseguet-Smirgel, "Feminine Sexuality", supra, note 20 at542.For her part, Helene Cixous denies that women undergo anythinglike an Oedipal complex at all. She argues that, to the extentthat the Oedipal complex is conditioned on the physical possessionof a penis and the attendant male "castration complex", thatneurotic responses to "engulfment anxiety" among females (such asthat suggested by Chasseguet-Smirgel) are qualitatively non-Oedipal: see, for example, H. Cixous, "Castration or Decapitation?"(Autumn 1981) 7:1 Signs: Journal of Women in Culture and Society 41at 45-46.28 See Freud, "The Dissolution of the Oedipus Complex", ibid.at 179, where he describes female "aim-inhibited trends" as being"of an affectionate kind". It is noteworthy in this respect thatsome contemporary psychoanalytic theorists contend that women areultimately less intensely neurotic than men: see, for example,Helene Cixous, "The Laugh of the Medusa", trans. K. Cohen and P.Cohen, in Patricia Bizzell and Bruce Herzberg, eds., The RhetoricalTradition: readings from classical times to the present (Boston:Bedford Books of St. Martins's Press, 1990) 1232. As well, J.C.Smith suggests that women's neurotic needs do not generally entailpathological forms of behaviour among women, whereas a correlationof this kind can be made in respect of men: Neurotic Foundations,supra, note 14 at 221.21understanding. 29 She interprets the tendency among male childrento identify with the father as entailing a kind of moralrepudiation of the mother, in the sense that the drive among malechildren to become independent of the mother requires that theyignore or disrespect her specific concerns and needs. In effect,Chodorow contends that the process of individuation among malechildren necessarily requires that they devalue their mothers''subjectivity' and in turn treat them as 'objects'. The moralitywhich the young male develops in turn relies on a pronouncedunderstanding of "difference" and detachment - that is, of thedifference between himself as independent and autonomous and themother as dependent and less than complete. On the other hand,because the young female child tends not to identify with thefather, but rather retains her original identification with themother, the above theory suggests that females do not acquire anoverly pronounced sense of "difference" as part of their broadermoral development. Young girls expect to be like their mothers,and hence their own drive for autonomy or independence dependsheavily on an understanding of "similarity" or assimilation, andattachment."29 See generally N. Chodorow, "Gender, Relation, andDifference in Psychoanalytic Perspective", in The Future ofDifference, supra, note 3; and N. Chodorow, Reproduction ofMothering: Psychoanalysis and the Sociology of Gender (Berkeley:University of California Press, 1978).3° See also Robin West, "Jurisprudence and Gender" (1988) 55U. Chi. L. R. 1. Invariably the problem arises as to the effectof parental role-reversal, shared parenting, or single parenting onthe genderization process and the psychological association ofcertain traditional roles with certain archetypal figures. The22question may be asked, for example, as to the likelihood orinevitability that a female child raised by a single mother willultimately "identify" with her mother as a servile and submissivematernal figure. Lynne Segal asks, "[do] all women carry out theirsocial roles exactly as they are meant to do? And, if they do, isit true that daughters inevitably follow in their footsteps?": seeL. Segal, Is the Future Female? (London, Eng.: Virago Press Ltd.,1987) at 149. Although I would concede from personal observationthat some women conduct their lives in ways which appear contraryto our cultural stereotype of femininity - of maternity, servility,solicitousness, or submissiveness - it is somewhat beyond the scopeof this thesis to argue that parental role-reversal or single-parenthood, or even homosexual parenthood, would in and of itselfhave a sufficient impact on the collective psyche of futuregenerations to undermine the historical link between paternalismand female subordination that Benjamin and Chodorow observe. Segalsuggests the possibility that women's servility and solicitousnessis not so much a function of female children adopting traditional'maternal' social roles and postures as it is a product of women'sgeneral historical, social underprivilege, and as it reflects thenature of mothering itself. She says that "[it] is well known thatthose with less social power and confidence are more likely todevelop a greater attentiveness, watchfulness, and desire to pleasein their relations with others", and that "by far the mostimportant factor in determining what is seen as women's distinctivesensibilities would seem to me to be the nature of motheringitself, rather than the fact that it is women who mother: L. Segal,ibid. at 148-49.I must say that I have difficulty with Segal's critique ofChodorow for two reasons. First, and I will touch upon this pointin Chapter 4 of this thesis, it is highly problematic to suggestthat women's political oppression and lack of 'confidence' can bedivorced from the political undervaluation of motherhood inpatriarchal society. Second, it is highly contentious to proposethat 'the nature of mothering itself' can be meaningfullydisassociated from 'the fact that it is women who mother'. Insupport of this point I will quote Allan Bloom as saying, "[the]peculiar attachment of mothers for their children existed, and insome degree still exists, whether it was the product of nature ornurture. That fathers should have exactly the same kind ofattachment is much less evident. We can insist on it, but ifnature does not cooperate, all our efforts will have been in vain.Biology forces women to take maternity leaves. Law can enjoin mento take paternity leaves, but it cannot make them have the desiredsentiments. Only the rankest ideologue could fail to see thedifference between the two kinds of leave, and the contrived andsomewhat ridiculous character of the latter. Law may prescribethat the male nipples be made equal to the female ones, but theystill will not give milk": A. Bloom, Closing of the American Mind,supra, note 5 at 130-31.23To the extent, however, that the archetypal images of mothersand motherhood which young children acquire and perceive involvematernal dependency and subordination to the will of the father,young girls will also develop an acculturated sense of inferiorityas part of their normal process of individuation. Jessica Benjaminexplains that most theories of psychological development reflectthe fact thatbecoming like the mother, as girls do, will probably meanthe sacrifice of independent subjectivity or selfhood.It will mean subordination to others and their needs. Tothe extent that she does individuate, the girl haslargely to identify with her father, with the maleposture of emphatic differences, for the mother is not anindependent figure. Generally, however, the femaleposture is the opposite of the male - merging at theexpense of individuality. The small girl's experience isoften that she develops continuity and sameness at theexpense of difference and independence. For her theinjunction is: I must be like she who serves and caresfor me. The temptation to be undifferentiated, todeemphasize boundaries, is reinforced for her as anappropriate form of subjectivity. She becomes all tooable to recognize the other's subjectivity, but--likemother--does not expect to be treated as an independentsubject herself. Women's own denial of theirsubjectivity corresponds to the perception of the mother.She becomes in her own mind object, instrument, earthmother. Thus she serves men as their Other, theircounterpart, the side of themselves they repress."Benjamin's observation is crucial for our purposes insofar asshe understands the dynamic interplay between mother-figures andfather-figures in the psychological development of male and femalechildren as leading ultimately to various forms of "rationalJessica Benjamin, "Rational Violence and EroticDomination", supra, note 3 at 44.24violence" exercised by men upon women. For Benjamin, the tendencyamong male children to identify with their father and to separatefrom their mother is "rational" to the extent that such a tendencyrelies on a cognitive or discursive awareness of "difference".Indeed, on a purely cognitive level, the ability to differentiatebetween objects of experience belongs to a rational capacity whichevery human being possesses to the extent that he or she can besaid to be conscious." Benjamin goes further, however, and arguesthat the development of rational faculties in human beingshistorically has entailed a moral component insofar as theobjectification of experience and the objectified world of that32 Perhaps the most important argument that can be made forthis proposition is located in Immanuel Kant's Critique of PureReason, trans. J. M. D. Mieklejohn (New York and London: TheColonial Press, 1900). In this work Kant divides human knowledgeor experience into at least two distinct modes, sensory andcognitive. Sensory knowledge originates in what Kant refers to asthe 'faculty of intuition'. This faculty operates chronologicallyprior to the faculty of understanding. It allows human beings toreceive external sensory stimuli and in turn to experience physicalsensations as spatial-temporally defined. Cognitive knowledge, onthe other hand, depends on the existence and dynamics of the'faculty of understanding'. This faculty contains a limitednumber of categories of pure reason, such as unity, plurality,totality, reality, negation, limitation, and cause and dependence(effect). According to Kant, these various categories interractwith one another logically and react empirically to the sensoryinput from the faculty of intuition. The effect of all of this isa form of human experience which is quantified, differentiated,enumerated - in short, objectified. In other words, the syntheticoperation of the categories of reason transforms the pre-cognitive,sensory awareness that we associate with undifferentiated physicalsensations (such as the feeling of pain resulting from placing ahand on a hot burner or a bare foot on a hot tarmac, or the feelingof nauseau resulting from the smell of decaying flesh) into anintellectual perception of objects. And it is this categoricalexperience of the world, or the cognitive perception of objectswhich ultimately, for Kant, constitutes the proper definition ofhuman consciousness.25experience has involved the denial and suppression of femalesubjectivity. Thus she claims thatDifferentiation which occurs without any appreciation ofthe mother's subjectivity is perfectly consonant with thedevelopment of rational faculties. In fact it seems toexpedite it. The individual is quite able cognitively todistinguish self from other. The person knows that he orshe is physically and mentally distinct and able toperform, socially, as if other persons were subjects.But at the deepest level of feeling there is not a sharpand clear sense, that vibrant aliveness, of knowing thatI am I and you are you. Rationally or cognitively, thedistinction is clear; emotionally and unconsciously theother person is simply experienced as the projection ofa mental image....This inability to experience others asreal, and concomitantly the self as real, is well knownto clinicians today. The feeling of unreality is aresult of one-sided or (as I think of it) "falsedifferentiation." Rationality as a substitute forrecognition threatens to destroy the sense of reality andselfhood it was supposed to create."For Benjamin, "one-sided" differentiation in the genderizationprocess of children is "false" in the sense that it is notinevitable. In this respect she takes issue with Freud's basicpostulate that the primary or underlying desire among children isto merge or reunite erotically with their mother. According toBenjamin, the primary emotional and psychological relationshipbetween a mother and her children is one of "mutual recognition".'Just as the young infant seeks self-recognition from its motherthrough the articulation of his or her desires and the acting outof various deeds (perhaps demanded by the mother), the mother seeks33 Benjamin, "Rational Violence and Erotic Domination", supra,note 3 at 46.34 Benjamin, The Bonds of Love, supra, note 3 at 21-23.26in turn to be recognized for her attention and attunement to thedemands and deeds of the child.According to Benjamin, it is crucial to acknowledge the"reciprocal attunement to one another's gestures"' - that is,between mother and child - if one expects to be able to overcomethe "false differentiation" and erotic domination that ultimatelydefine heterosexual practices between adults on a broader socialscale. As she says, "early experiences of mutual recognitionalready pre-figure the dynamics of erotic life"," and"[r]eciprocal attunement to one another's gestures pre-figuresadult erotic play"." In other words, there is nothing inherentlyhierarchical or oppressive about early, sensual, maternal relationsthat would explain the eventual acceptance of sexist and misogynistsocial practices among both adult men and women. The problem,therefore, according to Benjamin, consists in the privilege whichour Western culture has accorded to the father-figure in pre-figuring adult sexual relations, and by implication, "the denial ofrecognition" in our culture "of the original other, the mother whois reduced to an object.""We have already discussed how, according to Freud, theacculturated authoritarian and dominant figure of the father withinthe^immediate^family context^plays^a^significant^role^in' Benjamin, ibid. at 27.36 Benjamin, ibid. at 29." Benjamin, ibid. at 27.38 Benjamin, ibid. at 220.27determining not only the young child's choice of gender, but alsohis and her perceptions of the relative political and sexual statusof men and women generally. Benjamin does not appear to take issuewith Freud on this point but she resists the suggestion that,despite the burden of neurosis which the male must carry as aresult of his identification with the father, women remain somehow'inferior' to men in social terms. From a psychological andlogical point of view she observes the factual or real mutualdependency between men and women, declaring that"[e]ach gender plays a part in a polarized whole. Butneither attains true independence. For even the maleposture of attaining independence by denying the motheris a defensive stance: the overemphasis on boundariesbetween me and not-me means that selfhood is definednegatively as separateness from others.""Jacques Lacan has added another level of analysis toBenjamin's observation that one of the central driving forcesbehind child and adult sexual relations is the need for self-recognition. This level of inquiry is important for understandingthe nature of the tension or conflict between men and women thatappears to have persisted throughout the better part of humanhistory. For Lacan, the demand for recognition that an infant oryoung child exhibits in respect of its mother (or any 'other' forthat matter) necessarily remains unfulfilled to the extent that itmust be articulated. 4° The act of articulation, or the practice39 ^ibid. at 45.Jacques Lacan, Ecrits, supra, note 4 at 284-287.28of speech and writing, necessarily 'alienates' the subject of thedemand (the infant's pre-discursive sense of 'self') from themessage of the demand as interpreted by the listener or observer(the mother). The listener can only respond to the demand asarticulated in speech or writing, not as a need felt by the authoror orator. According to Lacan, this eternally recurring gap orresidual between what the child demands and the incompletesatisfaction of his or her needs constitutes desire.'"The significance of Lacanian desire for our purposes is thatit postulates the impossibility of mutual recognition or inter-subjective communication among the sexes except at the level ofdiscourse or metaphor.' It says that symbolic representation ofneeds precludes the possibility of recognizing the 'self' in the'other'. Indeed, despite Benjamin's optimism about the inter-subjective possibilities of reciprocal attunement, Lacan saysneither the mother's needs can be recognized through the behaviourof the child, nor can the child's needs be met through thebehaviour of the mother, so long as those needs are communicated in41 Lacan, ibid. at 286 and 311.42 See Helene Cixous's "Castration or Decapitation?", supra,note 27 at 46: She says here that "[the] phallus, in Lacanianparlance also called the 'transcendental signifier,' transcendentalprecisely as primary organizer of the structure of subjectivity, iswhat, for psychoanalysis, inscribes its effects, its effects ofcastration and resistance to castration and hence the veryorganization of language, as unconscious relations, and so it isthe phallus that is said to constitute the a priori condition ofall symbolic functioning. This has important implications as faras the body is concerned: the body is not sexed, does not recognizeitself as, say, female or male without having gone through thecastration complex."29speech (and at a later stage of cognitive development, inwriting)."Moreover, and more importantly, Lacan points out that thedominant symbols of communication throughout human history aredisproportionately centered around the male sex organ." Assuming,that is, that the meaning or referent of any particular historicaldiscourse can be traced to a pre-discursive need to articulateoneself or a conscious demand for recognition, Lacan is saying thatthe chosen mode of articulation has predominantly centered aroundthe symbolic role or figure of the male penis in male psychiclife." This would suggest that the various ways in which humanbeings have become accustomed to expressing their needs areprivileged or biased in favor of male sexual interests.According to J. C. Smith, the practice and institution of lawis precisely one such form of collective neurotic expression whichhas its roots in male sexuality (male sexual self-interest or" Lacan, supra, note 4 at 285-86." Lacan, ibid.45 Lynne Segal elaborates on this point in the followingterms; "[within] language, Lacan had affirmed the pre-eminent andessential role of the phallus (as symbolic of but from distinctfrom the biological organ, the penis) in the social construction ofsubjectivity: masculinity and femininity. Within patriarchalculture the child can only see itself represented through a sexualdifferentiation where the phallus is the privileged signifier, andthe symbol of the power and law of the father, of patriarchyitself. The phallus is the privileged signifier because it is onlywith reference to the phallus, the possession or lack of thephallus, that the subject can take up an identity as a sexed being.And it is only in taking up an identity as a sexed being that thechild can enter as a subject into language, into the symbolicorder": L. Segal, Is the Future Female?, supra, note 30 at 123.30desire)." Like Lacan, Professor Smith traces the origin anddevelopment of law to the will of the Father ("family, royal, orheavenly") 47 and the symbolic privilege which nearly three milleniaof human history and culture has afforded the male sex organ vis-a-vis the female reproductive organs." This vast temporal periodis marked by both an ideological and practical subordination ofwoman's interests to male sexual prerogatives. Beginning withreligion and the Heavenly father figure, and continuing throughkingship and the "divine right of kings" (or royal-father figures)until the present day common law (and secular father-figures),Smith observes how the exercise of the paternal will has alwaysconstituted law, and that this law has reflected the values ofpatriarchy which entails the proprietary and hence physical46 ^generally J. C. Smith, Neurotic Foundations, supra,note 14.47 Smith, ibid. at 280 and 282-287.48 The notion of a "symbol" within Lacanian discourse bearsa technical significance which I do not intend to employ for my ownpurposes. Lacan's notion of "symbol" relates to the practice amongvarious ancient tribes or kinships of giving gifts to men who wouldnewly introduce themselves to a particular kinship and engage inthe commerce or exchange of women with that kinship. The giving ofa gift was "symbolic" in the sense that the gift itself wastypically useless, and in the sense that the act of giving the giftentailed the male recipient's formal entry into the matrimoniallegal regime of the gift-giving kinship: see Lacan, ibid. at 61-65.For my part, unless otherwise specified, I will use the words"symbol" and "symbolic" in a fairly broad and non-technical sense.In effect I will treat symbols as hermeneutically vested signs,whether these are constituted by words and pictures, or imagescomposed from physical materials, or simple physical gestures. Tothe extent that any image, imprint, gesture, or structure has areferent or meaning according to some other image, imprint,gesture, or structure, it is symbolic on my terms.31dominion over women." According to Smith, the penis or the malephallic symbol is central to the continuation of patriarchalsociety insofar as the physiological and psychological implicationsof the male penis determine the exercise of the paternal will. Ashe says,The biologically and hormonally induced need of the humanmale for constant reoccuring sexual satisfaction, and thecapacity of the female to give or deny it creates theanalogue of a master-slave relationship in terms of thispower...The morality of patriarchy robs the female of thewill to power and turns a capacity to deny sexualsatisfaction into a duty to provide it."49 See Smith, Neurotic Foundations, supra, note 14 at 280-288.See also J. C. Smith, "The Sexuality of Politics: Psychoanalysis,Postmodernism, and Feminism" (Faculty of Law, University of BritishColumbia, 1992) [unpublished] at 7.Lacan also observes how law has served to entrench male,paternalistic authority within society through the practice ofassigning a male person's surname to newborn children. This occursin two stages. First, to the extent that there may well be anissue of paternity with respect to the birth of the child, the actof giving the child a man's name is equivalent to creating a"father" for that child. Second, by assigning a "father" to achild proprietal dominion over the child is removed from a womanand placed in the hands of a man. That is to say, whatever legalauthority a woman might be entitled to exercise over the child, byvirtue of the fact that she gave birth to him or her, issubsequently lost in favor of the legal authority that a manacquires by becoming a father: see Lacan, Ecrits, supra, note 4 at66-67. Mary O'Brien elaborates upon the patriarchal implicationsof the issue of paternity when she says, "[to] suggest that men ingeneral are indifferent to paternity is to make nonsense ofcenturies of strenuous masculine activity to negate the uncertaintyof fatherhood, activity of which the institution of marriage isonly the most obvious example": M. O'Brien, The Politics ofReproduction (Boston, Mass.: Routledge & Kegan Paul, 1981) at 49." J. C. Smith, "The Sexuality of Politics", ibid. at 6. Inanticipation of the criticism that Professor Smith's reference to"the biologically and hormonally induced need of the human male forconstant reoccuring sexual satisfaction" sounds "essentialist" -that is, that is relies on a view of men and women as somehowessentially or naturally different in certain respects (beyond thepurely visible anatomical differences) - it is important to notethat Professor Smith's observation appears to bear much scientific32Smith cites legal and religious texts from many traditions -Indian, Hindu, Buddhist, Judaeo-Christian and Islamic - as evidenceof the overwhelming implication of law in the sexual oppression ofwomen by men." For Smith, however, the law is not contingent inthis respect. To the extent that the law reflects the will of theFather, and the Father is defined as a man who exercises authorityover women,' Smith argues that the law must necessarily entail ahierarchical social ordering between the sexes. 53 In Chapter 4 ofthis essay we will observe how Smith relates legal discourse inparticular to the proliferation of pornography across NorthAmerican and Western European culture. For the moment, however,scrutiny. A recent article in The Economist states that "[it] isperverse to deny the connection between testosterone and innatemale aggressiveness": "Nature or Nurture? Old Chestnut, newthoughts" The Economist (December 26 1992 -January 8 1993) Vol.325, at 34.It is also important to note that the production oftestosterone in males does not in and of itself dictate whether menwill be homosexual or heterosexual, although this latterdistinction appears to be at least partially conditioned bybiology. The Economist article states that "[t]he brain of a fetusis altered by the child's genes, by its and its mother's hormonesand, after birth, by its learning. Many of the changes arepermanent; so far as the adult is concerned, they are all 'nature',though many are not genetic. For example, the human brain isfeminine unless acted upon by male hormones during two bursts--onein the womb and another at puberty. The hormone is nurture, in thesense that it can be altered by injections or drugs taken by themother. But it is nature in the sense that it is a product of thebody's biology": "Nature or Nurture?", ibid. at 36. See also C.Burr, "Homosexuality and Biology" The Atlantic (March 1993) 47.51 ^J. C. Smith, Neurotic Foundations, supra, note 14 at288-291; see also J. C. Smith, "The Sexuality of Politics", supra,note 49 at 6 and 8.52 See J. C. Smith, "The Sexuality of Politics", ibid. at 7.53 J. C. Smith, Neurotic Foundations, supra, note 14 at 291.33Smith's broader argument is relevant because it supports Benjamin'sobservation that, within the patriarchal family setting, women arebound to be treated as inferior to men. Benjamin blames thisengendered sense of female inferiority on the divisive tendenciesof rationality, at least insofar as this acquired form of knowledge(cognition) intrudes upon neo-natal and early infantile forms ofknowledge (recognition). Smith blames our acculturated disrespectfor women on the law, especially as its operation is profoundlyattached to the dictates of male desire. In the next chapter Iwill attempt to combine Smith's thesis with Benjamin's thesis bysuggesting that the language of law is intimately related thelanguage of rationality. This synthesis may enable us tounderstand in more detail the nature of law's relation to femalesubjugation.34CHAPTER 2 - THE RATIONALITY OF LAW AND SCIENCERational thought is interpretation according to a schemewhich we cannot escape.Friedrich Nietzsche, The Will to Power...a theory or a politics that cannot cope withcontradiction, that denies the irrational, that tries tosanitize the erotic, fantastic components of human lifecannot visualize an authentic end to domination but canonly vacate the field.Jessica Benjamin, The Bonds of LoveIn her essay, "The History of Mainstream Legal Thought",Elizabeth Mensch remarks that "[routinely], the justificatorylanguage of law parades as the unquestionable embodiment of Reasonand Universal Truth."" Certainly, the common law notion of ratiodecendi implies that the judicial decision-making process considersitself to be inherently rational, and to the extent that case lawcarries varying degrees of authority within the parameters of legaldiscourse and practice, the common law would appear to represent"the unquestionable embodiment of Reason." As for its claim toUniversal Truth, this is amplified through law's historicalElizabeth Mensch, "The History of Mainstream LegalThought", in the Revised Edition of The Politics of Law: AProgressive Critique, ed. David Kairys (New York, N. Y.: PantheonBooks, 1982) 13.35association with the logos and the will of the heavenly Father,"and reflected in the common law processes of litigation, wherebyopposing or adversarial claims to truth and knowledge are tried andtested in court with a view to discerning an ultimate, or singletruth. Indeed, it is not uncommon for a Crown prosecutor to bereminded in private or public that criminal proceedings against anaccused person are not about 'winning or losing' but rather aboutdiscerning the truth behind the Crown's accusation.In this chapter I will address both the issue of thetheological underpinnings of legal discourse and the issue of therationalistic pretences of legal methodology (at the level of bothcase-by-case decision-making and general litigation procedure).The former issue will lead us to a consideration of the broadermoral basis behind much legal discourse, which I will argue ishighly puritan and therefore denigrative of human sexuality. Thelatter will lead us to an appreciation of the way law entrenchesCartesian epistemology and thereby transforms disruptive, personaland social chaos into an objectified, coherent and orderly, butnonetheless distorted, view of human nature. I will address thesebroader implications of law's claim to rationality for humansexuality in the next chapter. For the moment, however, let mesimply concentrate on the issue of legal methodology and itstheoretical pretension to rationality and objectivity. I willfollow this discussion with an analysis of the moral overtones of' See J. C. Smith, "The Sexuality of Politics", supra, note49 at 7. He says here that "[the] will of the father is the law,and the proclamation of the will is a production of the mind."36law.In her work Feminism and the Power of Law" Carol Smartoutlines how the adversarial procedure of criminal law in theUnited Kingdom resembles the so-called scientific or empiricalmethod in practice, and how both practices become powerful based ontheir historical claims to objective truth. Beyond the moremundane points of comparison that I would suggest, such as theinitial formulation of a hypothesis or the accusation of guilt, andthe assessment of different kinds of data or evidence (oral,written, physical, circumstantial) according to various self-imposed standards (relevancy) and tests (reasonable person,community standards), Smart observes that legal method isintegrally related to "a binary system of logic"." She says that"the binary system of logic refers to the way in which we think inoppositional terms. For example active/passive, truth/lie,culture/nature, rationality/emotionality, man/woman." 56 For herpart Smart is particularly concerned about the way law has appliedcertain binary opposites to rape cases in a way that has tended torender woman's experience of sex personally and legally irrelevant.She notes in particular that the pair of opposites consent/non-consent have traditionally determined the guilt/innocence of an56 C. Smart, Feminism and the Power of Law (London and NewYork: Routledge, 1989)." Smart, ibid. at 33." Smart, ibid.37alleged rapist." This has proved detrimental to female victimsof sexual assault, she argues, because "the consent/non-consentdyad is completely irrelevant to women's experience of sex.""Smart explains that "[neither] begins to approach the complexity ofa woman's position when she is being sexually propositioned orabused." 61Smart's analysis in the above respect is particularly germaneto recent developments in Canadian sexual assault law reform. Withthe enactment of Bill C-49 the Parliament of Canada has made theissue of consent an essential element of sexual assault law. It isno longer merely a fact to be considered in assessing theculpability of an accused sexual assaulter. Although thisdevelopment does not explicitly address Smart's concern that theconsent/non-consent dichotomy is inappropriate in the context ofsexual assault, the Canadian Bill is somewhat novel in that itremoves the pre-existing defence of mistake of fact (as to whetheror not the complainant consented) where the accused "did not takereasonable steps, in the circumstances known to the accused at thetime, to ascertain that the complainant was consenting."" Itresponds partially to Smart's concern because it places an onus on" This is also true in Canadian criminal law, which makesconsent an essential element of sexual assault.6° Smart, supra, note 56 at 33." Smart, ibid." See the Criminal Code, R.S.C. 1985, c.C-46, s.273, as am."An Act to Amend the Criminal Code (sexual assault)", 1992, C.38,s.1.38persons seeking to engage in sexual activities with others to makea reasonable effort to ascertain whether they are agreeable or notin respect of those activities. It removes the onus on the victimto establish non-consent and places the onus on the accused toprove consent. This shift in onus may properly be seen as avictory for victims of sexual assault who feel doubly victimized bythe need at times to convince a court of law that their experiencewith respect to the consensual nature of the act in question issomehow more credible than that of the accused.Despite the apparent benefit of the sexual assault reform towomen" I suspect that the new law will continue to be problematicfor women not simply because it retains the binary consent/non-consent framework for determining sexual assault issues but becauseit erects a standard for criminal culpability around a notion of"reasonableness" that may not necessarily accord with preciselywhat Smart refers to as "women's experience of sex." Indeed, oneof the central conceptual dichotomies of scientific discourse isthat of subject/object. Smart omits express reference to thisdichotomy in her list of oppositional terms but it is clearlyrelevant both to scientific methodology and criminal procedure. AsI have already suggested, at least two of the hallmarks ofscientific discourse and methodology are its claim to objectivity -if not ultimately to objective truth - and its assumption of63 Although I would readily concede that women are not theonly victims of sexual assault I am nonetheless limiting myanalysis of the scientific implications of law to femalevictimization.39rationality. The use of standards (of measurement) and abstractformulas by the scientific community at large attests to its beliefthat scientific knowledge can be applied universally and sharedamong all rational beings. In this broad sense, science purportsto be objective and pretends to be rational.Likewise, law pretends to be objective through the logicalapplication of legal doctrine and legal standards or norms toparticular fact-situations. Moreover, law privileges objectivityto the extent that it uses so-called "objective" tests to a fargreater degree than "subjective" tests in the determination oflegal and factual issues. Certainly much of classic tort lawdoctrine such as "duty of care" and "reasonable foreseeability", aswell as contract law doctrine revolves around the notion of a"reasonable" or "ordinary person", and criminal law is becomingincreasingly preoccupied with objective modes of proof." And thefact that objectivity in these respects is synonymous withreasonableness further suggests that reasonableness or rationalitygenerals holds a privileged place in legal discourse, and indeed,in legal reasoning."" See, for example, the recent proposals by the Canadian BarAssociation and the House of Commons Standing Committee on Justiceand the Solicitor General concerning a recodification of thegeneral principles of Canadian criminal law.65 My point here is simply to question the fact thatreasonableness is never measured in law against a standard ofunreasonableness or a norm of irrationality. The law simply doesnot determine legal issues by reference to the question, what wouldthe unreasonable or irrational person do, although I readilyconcede that by implication and comparison to the "reasonableperson" people are often deemed to be unreasonable. The problemwith treating rationality as a valid legal norm is that irrational40The relevance of this broad comparison between legal methodand discourse and scientific method and discourse to the discussionat hand is that the privilege which both law and science attributeto objectivity reflects an acculturated form of genderization orsexism. As Evelyn Fox Keller writes,Science bears the imprint of its genderization notonly in the ways it is used but in the description ofreality it offers....Having divided the world into twoparts--the knower (mind) and the knowable (nature)--scientific ideology goes on to prescribe a very specificrelation between the two. It prescribes the interrationswhich can consummate this union, that is, which can leadto knowledge. Not only are mind and nature assignedgender, but in characterizing scientific and objectivethought as masculine, the very activity by which theknower can acquire knowledge is also genderized. Therelation specified between knower and known is one ofdistance and separation. It is that between a subjectand an object radically divided, which is to say, noworldly relation. Simply put, nature is objectified.Bacon's "chaste and lawful" marriage is consummatedthrough reason rather than feeling, through "observation"rather than "immediate" sensory experience. The modes ofintercourse are defined so as to ensure emotional andphysical inviolability for the subject. Concurrent withthe division of the world into subject and object is,accordingly, a division of the forms of knowledge into"subjective" and "objective". The scientific mind is setapart from what is to be known, that is, from nature, andits autonomy--and hence reciprocal autonomy of theobject--is guaranteed (or so it has been traditionallyassumed) by setting apart its modes of knowing from thosein which that dichotomy is threatened. In the process,the characterization of both the scientific mind and itsmodes of access to knowledge as masculine is indeedsignificant. Masculine here connotes, as it so oftendoes, autonomy, separation, and distance. It connotes aradical rejection of any commingling of subject andobject, which are, it now appears, quite consistentlybehaviour in certain legal contexts then becomes seen as abnormal,and as possibly deviant, if not undesirable. But I can imaginelegal contexts where legally defined irrational behaviour (perhapsinvolving different kinds of impassioned, political protest) couldbe desirable as a matter of improving societal health generally andespecially relations between men and women.41identified as male and female."Keller's argument regarding the genderization of science, andobjective and subjective forms of knowledge, relies upon the samekinds of observation that Jessica Benjamin makes in respect to hernotion of rationalized violence and erotic domination." Thecentral concern of both thinkers is that within a patriarchalculture early childhood emotional and cognitive maturation involvesradical processes of individuation and separation that result in acognitive dimunition of women. Relying on some basic Freudianpsychoanalysis, Keller's own analysis is instructive because itexplains how, prior to the process of individuation and separation,the epistemological bond between mother and child is undelineatedor undifferentiated." Insofar as the child lacks a sense of66 Evelyn Fox Keller, Reflections on Gender and Science (NewHaven and London: Yale University Press, 1985) at 79.67 See J. Benjamin, "Rational Violence and Erotic Domination",supra, note 3 at 46. See also C. MacKinnon, Toward A FeministTheory of the State (Cambridge, Mass.: Harvard University Press,1989) at 121-122. MacKinnon echoes Keller's view that scientificdiscourse has become the dominant discourse throughout history inher statement that the "male epistemological stance, whichcorresponds to the world it creates, is objectivity: the ostensiblynoninvolved stance, the view from a distance and from no particularperspective, apparently transparent to its reality....What isobjectively known corresponds to the world and can be verified bybeing pointed to (as science does) because the world itself iscontrolled from the same point of view."68 is important to note here that Mary O'Brien relies onthis observation to support a distinction between what might becalled 'masculine' and 'feminine' modes of knowledge: see M.O'Brien, The Politics of Reproduction, supra, note 49 at 149-150.For her, traditionally masculine modes of knowledge (for example,scientific forms of knowledge) involve an element of mediacy. Iwould argue that this element is evident wherever we use physicaltools or scientific instruments, or wherever we use intellectual42"self" apart from its purely sensual, reflexive and affectiverelationship with its mother, the mother figure constitutes "thefirst and most primitive subject". 69 However, Keller notes, atprecisely that stage where the child either decides to identifywith the father or mother, or to separate from the mother, themother becomes "the first object." 7° As we have already observed,at least the male child identifies with the father because heappears more powerful and independent than the mother, and evenwhere the female identifies with the mother, she is objectified asbeing somehow dependent and servile. For Keller, the privilege ofradical dualism as an epistemological model in patriarchal societyis reflected precisely in the figure and role of the father inearly childhood development. She states that, at least within thecontext of the so-called Oedipal stage, "[it] is the father whocomes to stand for individuation and differentiation"." Thus,Keller is ultimately proposing that, to the extent that scientificdiscourse is generally premissed on radical dichotomies ofsubject/object, cause/effect, and mind/body (or culture/nature),the infantile impression of the mother as non-dichotomized, actingin conjunction with the childhood association of the father withtools such as concepts, categorizations, and discourses, tounderstand the world around us. On the other hand, traditionallyfeminine modes of knowledge would appear to be immediate in thesense that they are either primarily sensual, or affective, orimmediately tactile.69 Keller, ibid. at 86.70 Keller, ibid.71 Keller, ibid.43separation and distantiation, has translated on a cultural levelinto a genderized epistemology.' Cognitive experience,rationality, and science become masculine by virtue of theirassociation with the father-figure, and non-cognitive experience,sensuality, and possibly irrationality become feminine by virtue oftheir association with the mother-figure."If Keller and Benjamin are correct in proposing that theprivilege which our society accords cognitive experience in general- that is, objective modes of knowing and seeing - tends to devaluenot only female subjectivity but maternity as well, then it would72 Keller, ibid. at 87." Again, the crux of genderization appears to lie in the rolethat feminine and masculine archetypes play in determining thecontents of the human unconscious. J. C. Smith defines thearchetypes of father and mother as "structural aspects ofinformation, which are stored in the unconscious but shapeinformation at the conscious level": Smith, Neurotic Foundations,supra, note 14 at 146. These archetypes affect individual andcollective psychic development, Professor Smith explains(paraphrasing the work of Erich Neumann), insofar as "theindividual psyche passes through archetypal phases or stages ofdevelopment which follow a pattern to be found in the evolution ofhuman consciousness": Smith, ibid. at 137. To the extent that onecan imagine the possibility of a radical shift in the structuralmaterial of the human unconsciousness (which would dependempirically on the transcendence of patriarchial culture) it ispossible to imagine a reversal of our patriarchal association ofcognitive or intellectual endeavour with masculinity and non-cognitive or sensual experience with femininity. This possibilityis important for some feminists who believe that the patriarchalstructure of the contents of the unconscious renders womenpowerless. See, for example, H. Cixous, "Castration orDecapitation?", supra, note 27 at 47. She observes here that ourmost prominent archetypal character or 'figure' of femininity isthe hysteric, in stark opposition to our acculturated masculinefather-figure the analyst, and she states that "without thehysteric, there's no father...without the hysteric, no master, noanalyst, no analysis! She's the unorganizable feminine construct,whose power of producing the other is a power that never returns toher."44seem important for women to question the tendency in law towardobjectivity- 74 So-called 'objective' determinations ofreasonableness, according to the logic of these two thinkers, willinvariably be tainted by patriarchal values and a denigration offemale sexuality. Indeed, without some kind of culture-wide sexualrevolution even a gender-neutral "reasonable person" will bepredominantly masculine or male-oriented, simply by virtue of ouracculturated association of rationality with masculinity. But Iwill address this concern in the next chapter. At this point Iwould like to turn my attention to the moral aspect of law'sradical dualism or epistemological bias in favor of the will of theFather (over the love of the Mother). Despite the slenderpossibility of overcoming a deep-rooted cultural prediliction forscientific solutions, the epistemological bias of radical dualismin law nevertheless carries with it moral overtones which serve toperpetuate and ensure the legalized subordination of women to men.In his On the Genealogy of Morals 75 Nietzsche stipulates thatrational thought or critical analysis under the guise of scienceplays a similar role in the perpetuation of hierarchical socialarrangements as the "ascetic ideal" of the priest. 76 Indeed,74 At least that is my concern with respect to various areasof criminal law, such as sexual assault and pornography, whichpertain directly to issues of female autonomy and liberty.m Friedrich Nietzsche, On the Genealogy of Morals, supra,note 1.76 Nietzsche discusses the ascetic ideal in the context of abroader discussion about the contemplative dispositions of priests,philosophers, artists, and scientists. He claims that "[the] threegreat slogans of the ascetic ideal are familiar: poverty, humility,45Nietzsche goes so far as too say that in the modern world scienceis "the latest and most noble form" of the ascetic ideal." Theproliferation of scientific discourse and activity throughout theand chastity": Nietzsche, ibid., at Section 8. For Nietzsche, thecontemplative manner of existence associated with the figure of thepriest specifically focusses on matters of "purity" and "impurity",and "health" and "sickness", which ultimately relate to matters ofhuman sensuality and sexuality: ibid., First Essay at Section 6.The "ascetic ideal" of the priest therefore becomes a kind ofreligious-moral interpretation or meaning of "life" as pure andpainless, asensual and atemporal, and godly and heavenly, which thepriest employs as a routine part of his professional vocation:ibid., Third Essay at Sections 10 and 11.Nietzsche is critical of the priestly vocation for manyreasons. One of these reasons is especially germane to my thesis.Nietzsche recognizes that throughout history there has always beenpolitical inequality between distinct socio-economic classes ofindividuals. The politically oppressed classes can be recognized,Nietzsche stipulates, by the general sense of discontentment thatthey share and by the resentment that they display toward thepolitically dominant classes. For Nietzsche, the 'evil' of thepriests consists in his ability to convince the discontents thatthey are personally responsible for their own sense ofdiscontentment and discomfiture. It is the priest, that is, thatmakes these people feel guilty in a religious-moral sense for theirown oppressive situation. The priest then exploits this sense ofguilt insofar as he prescribes various cures or activities for painand suffering which require a profound excitation of the senses(such as repentance, contrition, and redemption): Nietzsche, ibid.,Third Essay at Section 21. The inevitable result of such aprescription, according to Nietzsche, is never an improvement inphysiological and psychological health, but on the contrary, anincrease in the previous degree of sickliness. This is because,for Nietzsche, an excitation of the senses among the physicallyinhibited always entails an increased sense of guilt, whichNietzsche associates with ill health generally. In his words, "oneneed only ask psychiatrists what happens to patients who aremethodically subjected to the torments of repentance, states ofcontrition, and fits of redemption. One should also consulthistory: wherever the ascetic priest has prevailed with thistreatment, sickness has spread in depth and breadth withastonishing speed. What has always constituted its "success"? Ashattered nervous system added to any existing illness -- and thison the largest as on the smallest scale, in individuals as inmasses": Nietzsche, ibid, Third Essay at Section 21." Nietzsche, ibid., Third Essay at Section 23.46modern world becomes simply another sign of physiologicaldiscomfort and cultural discontentment. In this case Nietzschesuggests that the attempt to conceal one's physiologicaldispleasure through science is a deep-seated physiological reactionto the false sense of "petty pleasure" or happiness that we haveinherited from the protestant work ethic and Judaeo-Christianreligious doctrine. He saysscience today is a hiding place for every kind ofdiscontent, disbelief, gnawing worm, despectio sui, badconscience -- it is the unrest of the lack of ideals, thesuffering from the lack of any great love, the discontentin the face of involuntary contentment. 78In effect, Nietzsche views the scientist as being ultimatelyinhibited or "constrained" in the same way as the ascetic priestbecause both the scientist and the priest share a common faith ina "metaphysical value" or an "absolute value of truth".' Whereasthe priest posits the figure of God as that absolute value, thescientist dogmatically posits objective truth. Yet for Nietzscheboth forms of therapy must ultimately result in an increaseddegeneration or sickening of the very people for whom they werepurportedly intended to cure. This is because the very activity ofpositing a transcendental goal and pursuing an abstract idealinvolves a diminution of one's animality and a blunting of one'sinstincts, and for Nietzsche the act of taming human sensualitynecessarily entails physiological regress or decay.78 Nietzsche, ibid. Third Essay at Section 23.79 Nietzsche, ibid. Third Essay at Sections 24 and 25.47The relevance of Nietzsche's anti-scientific polemic (for ourpurposes) is that it furthers an explanation for the tendency oflaw to inflict puritanical values upon individuals whose behaviourappears to conflict with those values. We have already observedhow legal method and discourse, because of their emphasis onrationality and objectivity, reflects a cultural bias in favor ofa paternal will and a patriarchal social order. The mother ormaternal figure is physically subordinated to the intellectualdictates of the father within this patriarchal setting." Thismeans that the female body is socially devalued except at the levelof an abstraction, image or object. Thus her breasts, her womb,and her genitalia have no inherent value in a patriarchal societyexcept as a vessel for male pleasure and as a means for procreationor reproduction. The tendency of law therefore to enforcerationalistic and puritannical moral standards in court bears aspecial importance to women's lives because it is precisely real,live women's bodies and female sensual expression that thepaternal, 'ascetic' will sets over and against itself as the propermatter for regulation" - that is, as the radical 'other', as" J. C. Smith makes a similar observation when he states that"[by] placing concepts over conception (females conceive, but maleshave concepts), mind over body, culture over nature, and above all,man over woman, the male denies his true identity as a bipedprimate which has evolved a brain big enough to store and processinformation in unique ways. He views himself as god, hero, king,and patriarch. Women are devalued because their unique role in thereproductive process in devalued": Smith, Neurotic Foundations,supra, note 14 at 199.81 By referring to women's bodies as the proper matter forregulation within a patriarchal setting I am not suggesting thatthe common law has ever purported to restrict the physical liberty48'subjective', as contrary to itself, as offensive, and as possiblycriminal.Anna Clark has documented the course of rape trials throughouteighteenth and nineteenth century England in her Women's Silence,Men's Violence." In this work she reveals how the criminal lawat the time was able to exploit the Judae-Christian emphasis onfemale chastity in a way which entailed the effective regulation offemale physical liberty. For example, she states that"[magistrates], judges and journalists dealing with rape casesbegan to introduce the idea that rape emperilled women's safety inthe evening streets" so, "while men could travel freely,'respectable' women would be safe only at home."'" In turn, sheremarks, "[these] notions helped enforce the burgeoning bourgeoisideology of separate spheres: that women belonged in the domesticsphere of the home, nurturant but sheltered, while men braved thehurly-burly of the marketplace and the streets.""and expression of women in an obvious or explicit way. In terms ofthe black-letter of the law I am prepared to concede contrary;namely, that the common law has more or less purported to regulatethe conduct of men: see Smith, Neurotic Foundations, supra, note 14at 289. However, borrowing from some Canadian case law, as well asthe psychoanalytic observations and theories of Freud, Smith, andLacan, I will argue that the law is tacitly concerned to regulatefemale sexuality in a way that enables men to control their eroticneeds and sexual desires. Female sexuality becomes effectivelyregulated in this sense as a function of the purported regulationof male sexuality.82 Anna Clark, Women's Silence, Men's Violence (London and NewYork: Pandora, 1987).83 ^ibid. at 3.84 Clark, ibid.49Furthermore, Clark observes how the applicability of rape lawto male assailants in eighteenth century England was conditional onthe proprietary value which was attached to married women by virtueof the fact that, under a patriarchal legal regime, these womenwere the legal property of their husbands. She explains that,because rape law was effectively related to the institution ofmarriage, rape law became irrelevant in situations where a marriedwoman's chastity became sullied and the fidelity of the maritalrelationship became damaged (for example, should a woman be foundout to have engaged in extra-marital sexual intercourse, eitherwilfully or against her will). 85 If women wanted legal protectionfrom rape then they were encouraged not only to stay at home (toavoid the dangers of the public streets) but also to confine theirsexual behaviour to activities with their husbands. It is in thisway that British rape law had the effect of regulating femaleconduct, despite the fact that it was devised primarily to protectwomen from male conduct. Clark states further in this regard,the notion of female sexuality as a thing, or asproperty, encourages men to believe they have a right to'obtain' female sexuality: by paying for sex, as inprostitution or traditional marriage; by defrauding themas in seduction; or taking it by force, as in rape. Ifa woman did not behave in a chaste manner, she becamefair game to any man."In Feminism and the Power of Law Carol Smart further relates85 ^ibid. at 7.86 Clark, ibid.50the moral puritanism of Victorian England and the generalimportance of medical knowledge at that time to the discriminatoryapplication of British criminal laws against women. In referenceto a recent study by Judith Walkowitz concerning prostitution inVictorian England Smart states thatThe main contribution of this research for anunderstanding of law [is] that it provides a moreprofound understanding of how medical knowledge and legaldiscourse formed an alliance to regulate behaviours whichwere interpreted as injurious to public and individualhealth (moral and social). The significance of women'sbodies, and the reasons why female rather than malebodies became problematic are clearly linked to genderdomination, but also to the religious discourse of themoral crusades, superstition and medical knowledge aboutwoman's reproductive functions, the Victorian associationof sex with disgust and guilt, and the maintenance ofmale military morale."Perhaps one of the best Canadian examples of the chastemarriage between puritan morality and law, as reflected in thetendency of law to view human nature through a scientific lens, isillustrated in the case R. v. Jacob." Slightly over a year agoa 19-year-old female university student was arrested for walkingbare-breasted down a main street in the city of Guelph, Ontario.She was charged with committing an indecent act pursuant tos.171(1)(a) of the Criminal Code." Some of the circumstancessurrounding the offence were that Ms. Jacob was seen walking bare-87 C. Smart, supra, note 56 at 94 (my emphasis).88 R. v. Jacob (17 January 1992), Guelph, O.J. No. 165 (Ont.Court of Justice).89 Criminal Code, R.S.C. 1985 c.C-46, s.171(1)(a).51breasted from the hours of 5:00 PM and 7:00 PM by various residentsof Guelph, both male and female, young and old, that Ms. Jacobrefused to wear her shirt when requested to do so by various policeofficers, that young children pointed out Ms. Jacob's nudity totheir parents, that some young males retrieved binoculars for theoccasion while other, older males, made rude comments. Of course,it should also be noted that the outdoor temperature in Guelph onthe day in question was slightly higher than 30 degrees celsius.Ms. Jacob challenged the allegation of indecency on twogrounds. First, she testified at trial that her primary motivationfor walking bare-breasted on the day in question concerned theunusually high temperature. In his written judgment, Judge Payneparaphrased Ms. Jacob's testimony in the above respect as saying"that it was a hot day and that she felt that she would be coolerif she moved about the city without her shirt on"." Second, Ms.Jacob argued that she had a constitutional right to walk bare-breasted in public pursuant to section 15 of the Canadian Charterof Rights and Freedoms." In Judge Payne's words, Miss Jacobconceded that "since men were apparently allowed to [walk toplessin public], she felt that her equality before the law permitted herto do the same."" I will discuss this constitutional argument inthe next chapter.' R. v. Jacob, supra, note 88 at 2.91 Part I of the Constitution Act, 1982, being Schedule B ofthe Canada Act 1982 (U.K.), 1982, c.11 [hereinafter Charter].92 R. v. Jacob, ibid.52The Jacob case is crucial to our present discussion on atleast two levels. On the first level, as we will see, the judicialinterpretation of indecency as applied to the facts of Jacobreflect the same kind of "false differentiation" that we discussedin Chapter 1. Relying on this notion I will attempt to show howthe effect of the juristic objectification of women in this case isextremely deleterious to the lives of women and the health of oursociety as a whole. On the second level, the judicial analysis andcircumstantial evidence of the case discloses a remarkable societalfear of women and female sexuality, especially when it is presentednon-objectively as autonomous, independent, liberated and powerful.I will argue that this fear translates in political-legal terms toa highly patriarchal and indeed, misogynistic, society.To begin our discussion of "false differentiation" then, it isimportant to observe how Judge Payne's approach to the issue of theconstitutionality of s.171(1)(a) immediately relegates thesignificance of Ms. Jacob's personal desires in the circumstancesto the background of the judicial analysis. He places at theforeground of this analysis a discussion of "the community standardof tolerance" with respect to certain kinds of so-called indecentbehaviour. 93 In effect, Judge Payne quickly robs Ms. Jacob of her'subjectivity' and replaces that with an objective representation -namely, the image of Ms. Jacob's naked upper body, and morespecifically her breasts, as these are perceived by various membersof the public. Moreover, by ascribing little weight to Ms. Jacob's93 R. v. Jacob, ibid. at 2.53rationale for her behaviour in favor of an objective test such as"community standards" (and ultimately an overall objective approachinvolving community standards, statutory interpretation, and legalprecedent), Judge Payne effectively alienates Ms. Jacob from thevery community in which she otherwise participates, and which isnow relied upon to determine her criminal culpability."Judge Payne then proceeds to review various kinds of evidencepurporting to inform the local community standards test withrespect to issues of indecency and public nudity. He also reviewscase law concerning Criminal Code indecency provisions but fails toarrive at any kind of judicial consensus regarding a cogentmethodology or precise standard for determining the issue ofdecency in the case at bar. 95 Despite this failure he insists that94 In this respect my problem with the community standardstest for both obscenity and indecency is precisely that which theFraser Committee identified in the Report of the Special Committeeon Pornography and Prostitution (Ottawa, Ont.: Department ofJustice Working Paper, 1985), namely, that an objectivedetermination for intolerance (that is, for what might properly beconsidered a matter of personal aesthetics or 'subjective' taste)is inappropriate for deciding criminality: see also J. L. Lowman,M. A. Jackson, T. S. Palys, and S. Gavigan, eds., Regulating Sex(Burnaby, B.C.: School of Criminology, Simon Frazer University,1986) at 135." It is important to note here that in the course of hisanalysis Judge Payne cites two Canadian cases which expresslycontemplate the efficacy of a subjective approach to determiningissues of indecency and obsenity. First he cites the case of R. v.Hecker (1980), 58 C.C.C. (2d) 66 (Yukon Terr. Ct.). In this caseChief Judge Stuart appears torn between the theoretical need for anobjective approach to determining "community standards" and thepractical impossibility of approaching this same issue with anygenuine sense of objectivity. Thus, at page 68 of Hecker ChiefJudge Stuart concedes that "[i]n the absence of any evidence andeven in the face of evidence, the personal experiences of the Judgeunavoidably compose part of the mix producing the assessment ofgeneral community standards. The hypocrisy of depicting as54It is important...to consider the exposure of the femalebreasts in the context of definitions as enunciated byvarious levels of the court to determine whether the actconstitutes an indecent act within the meaning of theobjective this process of determining and applying communitystandards can be somewhat redressed by attending to the admonitionof Judge Kierans and the guide-lines recommended by Freedman J.A."The admonition of Judge Kierans concerns precisely theinevitable autobiographical bias which any judge must bring to bearon questions of "reasonableness", "objectivity", and "communitystandards": see the judgment of Kierans D.C.J. in Re Regina andProvincial News Co. Ltd. (1973), 18 C.C.C. (2d) 202 at 203-204,[1974] 5 W.W.R. 289 at 289-90 [hereinafter Provincial News Co. Ltd.cited to C.C.C.]. And the guidelines recommended by Freedman J.A.stipulate that "objective" standards of obscenity should reflectthe "general average of community thinking and feeling", and thatcommunity standards generally should be measured from acontemporary, Canadian point of view: see the dissenting judgmentof Freedman J.A. in R. v. Dominion News & Gifts (1962) Ltd., [1963]2 C.C.C. 103 at 116-17, 40 C.R. 109 at 126-27, 42 W.W.R. 65.The quoted dicta of Judge Kierans is especially remarkable forour purposes because it suggests the possibility that, in certaincircumstances, the only way for a judge to resolve the issue of"community standards" is to appeal to his or her "instincts": seeProvincial News Co. Ltd., ibid. at 204.The second case which Judge Payne cites with respect to theissue of indecency and the method for determing it is R. v. Bennett(1976), 29 C.C.C. (2d) 403. Justice Hutcheon says at page 403 ofthis case, "[d]epending upon the manner in which it is done and thecircumstances of place, time and setting, I am of the view that theact of removing all clothing and standing naked is capable ofconstituting an indecent act contrary to s.169 (now s.173), that isto say an act that could be said to be in extremely bad taste.Whether the conduct in a particular case is or is not indecent isa matter for the learned Judge who hears the evidence" (myemphasis).Both Hecker and Bennett are significant because they challengethe very basis of the highly cherished jurisprudential belief inobjective authority, and consequently they belie the hypocrisy ofjudges who purport to authorize or legitimate their determinationsby appealing to such objective standards. Indeed, by conceding theultimately subjective basis for determining matters of morality,these judges place themselves epistemologically in precisely thesame position as Ms. Jacob. That is, they place themselves beyondthe scope of "community standards" and rest their knowledge onpersonal experience or even, as we have seen, "instinct". The onlydifference between the judges' position and Ms. Jacob's position inthe immediate respect is that, in their public capacities asjudges, the judges' knowledge carries the weight of authority.55Criminal Code. 96Indeed, if only as a token gesture of judicial neutrality at thispoint the law zealously pursues 'objective' forms of authority, orthe gospel according to past Fathers.The case law informs Judge Payne that he is somewhat free tomould the community standards to his own personal experience.However, he does not put forward a definition of "indecency".Rather, he turns his attention to some clinical exhibits andproceeds to examine the essential nature and function of femalebreasts from a purely scientific point of view. It is fair to saythat at this stage of analysis Judge Payne is engaged in anotherform of objectification of women. Clearly, by attempting to derivea legal standard of indecency from a clinical analysis of femalephysiology, Judge Payne must momentarily exclude from considerationall non-physiological aspects of womanhood that could possibly helpto make that standard more intelligent or inclusive. Thus, hequotes various excerpts from popular medical books and treatisesand discovers among other things that female breasts serve a"primary" function in the production and delivery of milk to humaninfants" and that female breasts are accordingly equipped withnipples, which "are amply supplied with nerve endings and bloodvessels" and bear minute "oil glands" to lubricate and protect the96 R. v. Jacob, supra, note 88 at 8.56breast during breast-feeding;" that breasts are a "uniquelyfeminine" part of women; 98 and that female breast stimulation canbe the source of intense pleasure for women," which suggests tohim that "the female breast is a secondary sexual gland".For our purposes it is necessary to focus on this lastmentioned scientific discovery. For it is the overtly sexual orerotic aspect of female breasts that Judge Payne is ultimatelyconcerned to conceal from public view, and it is this same aspectthat Judge Payne effectively suppresses or demeans as part of thejustificatory rhetoric of his final decision. Yet I want to arguethat it is the precisely the erotic aspect of female breasts thatshould not be suppressed or considered secondary by the court inassessing the legality of certain kinds of human behaviour. To doso is to deny that human beings are primarily sexual and sensualbeings, and only secondarily rational beings, and this kind ofdenial produces various forms and scales of personal and societalpathology, as Nietzsche's critique of the "ascetic ideal" suggests.97 Bobbie Hasselbring, Sadja Greenwood, M.D., and MichaelCastleman, The Medical Self-Care Book of Women's Health [publisher,year, and page number not supplied in written judgment].98 Bobbie Hasselbring, Sadja Greenwood, M.D., and MichaelCastleman, The Medical Self-Care Book of Women's Health, ibid.99 See Judge Payne's references at pages 9 and 10 of hiswritten judgment to Hasselbring, Greenwood, and Castleman, ibid.;Dr. Alfred C. Kinsey et al., Sexual Behaviour in the Human Female,the Institute for Sex Research, Indiana University (Philadelphia:Saunders, 1953); and Every Woman's Health, The Complete Guide toBody and Mind, by 15 women doctors, ed. Henene MacLean, 4th ed.(New York: Prentice Hall, 1985).100 R. v. Jacob, supra, note 88 at 10.57Thus, Judge Payne quotes from the famous Kinsey report on SexualBehaviour in the Human Female as stating thatMales, and particularly American males, may findconsiderable psychological stimulation in touching andmanipulating the female breast. Many males are morearoused erotically by observing female breasts, or bytouching them, than they are by the sight of or manualcontacts with female genitalia. In actuality, manyfemales are not particularly stimulated by such breastmanipulations, but some of them are aroused. A femalemay even reach orgasm as a result of such contacts.'From this observation Judge Payne concludes that "the female breastconstitutes a very personal and responsive part of the femaleanatomy and is a part of the female body that is sexuallystimulating to men, both by sight and touch, and is not thereforea part of the body that ought to be flagrantly exposed to publicview.""This conclusion regarding the "sexually stimulating" nature ofthe female breast is pivotal to my thesis because it suggests twopossible justifications or rationales for Judge Payne's finaldecision to uphold Ms. Jacob's conviction. One of these revealsJudge Payne to be less concerned with precluding harm against womenthan precluding harm against men. The other suggests that JudgePayne is not ultimately concerned to protect either men or womenfrom physical harm, but rather to enforce a Victorian moral codewhich denigrates female sensuality but esteems an image of women asthe reproductive property of men.101 R. v. Jacob, ibid.; see Dr. Kinsey, Sexual Behaviour inthe Human Female, ibid.102 R. v. Jacob, ibid.58The problem is that Judge Payne seems to equivocate as regardsthe interest he is seeking to protect by denying Ms. Jacob theright to walk bare breasted in public. Is he attempting topreclude the possibility of a certain kind of sensual andpsychological stimulation (or harm) among men?" If so, why? Isit because men could not control their behaviour resulting fromsuch erotic stimulation?'" Or is Judge Payne not concerned toprotect male interests exclusively, but rather to protect broader"community" interests by delineating the scope of "decent"behaviour in general?" In the final analysis Judge Payne" This rationale is suggested by the dicta of Judge Stuartin R. v. Hecker, supra, note 95 at 68, cited with approval by JudgePayne in Jacob, ibid. at 7. Judge Stuart states that "The harmprevented in rendering illegal, indecent acts consisting ofphysical violence, is self-evident. The harm prevented inrendering illegal, indecent acts invoking psychological violence isless obvious, but often no less important."104 This argument is implicit in Judge Payne's subsequentreference to the history of Canadian assault legislation. In thiscontext he remarks that "the penalties were potentially more severe[where a man was charged with touching a woman's chest] and wasclear that the law was attempting to protect this part of thefemale anatomy from molestation": see R. v. Jacob, ibid. at 14.This argument is made explicit in the context of obscenitylitigation involving the sale of pornographyic videos in the recentcase R. v. Butler, [1992] 1 S.C.R. 452 (S.C.C.) at 485. In thiscase Justice Sopinka declared that "[the] courts must determine asbest they can what the community would tolerate others beingexposed to on the basis of the degree of harm that may flow fromsuch exposure. Harm in this context means that it predisposespersons to act in an anti-social manner as, for example, thephysical or mental mistreatment of women by men, or, what isperhaps debatable, the reverse."" This argument could be supported by reference to JudgePayne's subsequent review of American jurisprudence regarding"indecency" or "obscenity" legislation. In response to thequestion "[does] the statute protect legitimate governmentinterests?" Judge Payne confirms that in Canada, "protecting thepublic sensibilities in a legitimate government interest": see R.59appears to be primarily concerned with the broader communityinterest, yet the rationale he employs to secure this interest ishighly troublesome. I would argue that this predicament is almostpredictable, given the overtly scientific methodology which JudgePayne employs to render his decision. I would also contend thatJudge Payne's logic ultimately reflects a broader, societal fear oranxiety regarding human sensuality, or what might be callederotophobia. 1°6 Unfortunately, it also reflects a deeply-rootedpathology and an acutely invidious form of misogyny." Judgev. Jacob, ibid. at 16.106 For a general discussion of this concept see Sara Diamond,"Childhood's End: Some Comments on Pornography and the FraserCommittee", in Regulating Sex, supra, note 94 at 173.107 At this point in my own analysis it would appear fruitfulto refer to J.C. Smith's analysis of male sexual dependency andrepression in Neurotic Foundations, supra, note 14. Smith'streatment of this issue is significant because it lends thoughtful,theoretical support to some of the underlying concerns of JudgePayne regarding sexual or biological difference, and simultaneouslyprovides a possible explanation of the misogynistic result of JudgePayne's analysis. Professor Smith states that "[w]hile there islittle evidence of any difference between males and females in theintensity of the sexual response, there is persuasive evidence thatthere is a difference in triggering mechanisms between the twosexes. Females tend to become sexually excited more by tactilestimuli and thought processes, while males are more likely to bearoused by visual stimuli. The male proclivity for pictorialpornography would seem to support this conclusion....If nature hasprogrammed the male to be sexually excited by the sight of thecontours of the female breasts and buttocks, then it follows thatfemales are able to exercise a great deal more control over theirown sexual arousal, or absence of it, than males. Therefore, malesare frequently in the position of being involuntarily aroused, andat the same time are dependant on some other person or persons forsatisfaction of their sexual drive. It should not surprise us thatthis could result in frustration and both conscious and unconscioushostility against women, who both trigger the arousal and controlthe means of satisfaction. The biological imperatives ofreproduction function differently for males than for females. Theemotional and sexual attraction that the female holds for the male60Payne states thatThe essence of the matter here, as I see it, is thatanyone who thinks that the male breast and the femalebreast are the same thing is not living in the realworld. The female breast in its physiological componentsand its role in the sexual life of the female and malepartner, and in the nurturing of children places thispart of the anatomy, as far as I'm concerned, in thecommunity standard to be a part of the anatomy thatshould not be exposed gratuitously and continuously inpublic places and the rights of other members of thecommunity not to be presented with this spectacle andoffended by it ought to be recognized. 1"This statement is especially worrisome because Judge Payneappears to recognize on the one hand the inherent physiological anderotic value of the female breast, but on the other hand he viewsthe image of the female breast as somehow morally repugnant oroffensive. Suddenly, without explanation, the plain sight of awoman's bare breasts in the most mundane of contexts - an image ofbreasts, that is, unbound and unconstrained by a bra or t-shirt, inthe midst of usual pedestrian traffic on an sweltering summer day -is legally translated by Judge Payne not only into a form of"spectacle", but as an "offensive" form of spectacle, theperformance of which consists in a violation of some amorphous,vague and imaginary "right" among the local community. In thisrespect, Judge Payne's overly scientific confrontation with Ms.Jacob's upper body resembles that of Jonathan Swift's miniatureBrobdingnag adventurer, whose close, physical encounter with ahas resulted in a sense of dependency and bondage of the male tothe female which contributes to misogyny and gynophobia": Smith,Neurotic Foundations, supra, note 14 at 180-81.108 R. v. Jacob, supra, note 88 at 13 (my emphasis).61female breast (which appears magnified or gigantic from the pointof view of tiny Gulliver) causes a greater sense of "disgust" thanbeauty or wonder.' But Swift's encounter with science is bothan illuminating parody and a serious polemic. So how, in allseriousness, does the unmediated image of a woman's naked breastsin contemporary North American society become an illegal"spectacle"?'" The sight of women's naked breasts and genitalia" See Jonathan Swift, Gulliver's Travels (New York, N.Y.:The New American Library of World Literature, Inc., 1960) at 104."° In The Politics of Reproduction Mary O'Brien states that"[breasts] have been sometimes flaunted, sometimes flattened,understood as sensual tit-bits rather than purposeful instrumentsof nurture...Menstruation, ovulation, and pregnancy represent theintegrative potency of all women, which may terrify men, but thehistory of male supremacy is a great deal more than malepsychological response to ignorance, terror and envy of the womb":M. O'Brien, The Politics of Reproduction, supra, note 49 at 51.O'Brien suggests that some men's disapprobation and denigration ofwomen's reproductive organs is part of a logical or dialecticalresponse to the sense of 'alienation' that men feel from naturalprocesses of procreation. Beginning with the dissemination of themale seed into the female's uterus, O'Brien traces the alienationof that seed to the uncertainty among men as regards fatherhood orpaternity (thereby echoing Lacan), through the neurotic institutionof patriarchal legal regimes (thereby echoing J.C. Smith), andultimately culminating in the cultural overestimation of"intellectual creativity" at the expense of physical procreativityor female labour (thereby echoing Nietzsche's critique of thescientist or "theoretical man" in On the Geneology of Morals,supra): see O'Brien, ibid. at pp. 56-57, 75-76, 131-132.With respect to the issue of gynophobia specifically, O'Briensuggests a logical connection between the fact of femalemenstruation and male repulsion in the face of female genitalia.She says that "women's ability to bleed without injury is regardedas her own magic; quite a black magic, too, clearly contributing tothe occult threat which femininity poses to masculinity": O'Brien,ibid. at 151. Furthermore, she remarks that "[existentially],blood, which is the harbinger of new life for women, is theharbinger of violent death for men": O'Brien, ibid. at 151. Tothe extent that men (and women) can be observed to fear death,O'Brien explains, it is then natural for them to react to this fearby denigrating the factual importance of female blood and thesymbolic importance of the female womb and genitalia: O'Brien,62is certainly not outlawed in other public forms, such as strip barsand pornographic literature and movies, which are readily availableand accessable to the public across North America. And since whendoes the plain, uneroticized image of a woman's bare breasts - animage, that is, unadorned by fine lace or silk fabric, orunglamorized by special advertising techniques, such as air-brushing and artificial lighting - become "offensive" to the commonsense of morality or decency?Clearly our medicalized, sanitized, genderized "communitystandards" of decency, as well as our widely-tolerated misogyny,are not historical novelties. This level of acculturated sexismhas dominated the better course of recorded history. It can atleast be found wherever, as Jessica Benjamin and Evelyn Fox Kellersuggest, the process of human self-understanding depends upon aphysiological and psychological identification with the so-calledomnipotent 'father-figure', and a physiological and psychologicalseparation from the 'mother-figure'. Indeed, Judge Payne'sanalysis of the moral worth of the image of women's naked breastsibid. at 151.For his part, J. C. Smith links this fear or neuroticobsession with death, gynophobia, and the denigration of femalebreasts (matriarchal fertility symbols: see Smith, NeuroticFoundations, supra, note 14 at 265), among some males to anacculturated denial among human beings generally of their"animality". According to Smith, "animality" comprehends thebiological processes of birth, copulation, and death, and thepsychological denial or suppression of this animality means that"women are devalued because their unique role in the reproductiveprocess is devalued": Smith, Neurotic Foundations, ibid. at 199.Smith further explains that "[we] wish to devalue and denyreproduction with its entailment of enslavement to sexual desire,and its inevitable consequence--death": Smith, ibid.63is a perfect illustration of what Benjamin refers to as a"rationalized" form of "erotic domination". It is rationalized inmany ways, but most noticeably in the way that it differentiatesthe male breast from the female breast according to their relativeerotic aspects." For our purposes it is not the mere fact thatJudge Payne draws upon a classic binary opposition such assimilarity/difference that should be of concern. He is correct torecognize a visible difference and to appreciate that this visualdifference has important sociological implications." Whatshould be of concern here is the way Judge Payne uses the obviousphysical distinction to rationalize his decision to deny Ms. Jacob(and hence women in general) the freedom to bare her breasts in apublic setting. Although he purports to rely on the notion thatpublic exposure of female breasts is offensive to "publicsensibilities" in general, and that the protection of such"sensibilities" is a legitimate government interest, 113 JudgePayne cannot avoid determining the ultimate issue according to adistinctly male norm - namely, the penis. That is to say, JudgePayne assumes correctly that some males are likely to be aroused bythe sight of female breasts, and that the nature and conditions of" Even this proposition appears uncertain to Judge Payne inthe final analysis, for he ultimately decides to resolve theequality issue by extending the application of the indecencyprovision to male breasts, based on American expert testimony that"male and female breasts are physiological similar except forlactation capabilities": R. v. Jacob, supra, note 88 at 16-17.112 I will elaborate on this point in Chapter 4 of thisthesis.113 R. v. Jacob, supra, note 88 at 16.64this arousal may lead some men to commit violent acts againstwomen. And to the extent that Judge Payne seems concerned toprevent the commission of violent acts by some men (and perhapswomen) against women in this context it is important that he havethe greater physiological implications of man's (and in some caseswomen's) exposure to the image of women's breasts in mind.However, by implicitly drawing attention to the penis as theprimary locus of erotic stimulation among men, in such a way as toultimately deny women the liberty of baring their breasts forwhatever reason, Judge Payne effectively circumscribes women'sbodies according to a uniquely male, phallocentric norm.In the next chapter I will attempt to demonstrate how the kindof phallocentric logic that underlies the Jacob decision pervadesmuch of our criminal and constitutional jurisprudence in the areasof obscenity, pornography, and sexual assault. In particular Iwill argue that phallocentrism in law is generally conditioned ona combined evolutionary and acculturated tension between the sexesas reflected in the patriarchal structure of our society, and thatit is not therefore simply a contingent product of individual maleand female judges or lawyers."114 Obviously, however, the combined efforts of individualjudges and lawyers can be highly instrumental in relievingprecisely the kind of sexual tension which I am arguing is at stakein Jacob. On March 1, 1993, a female judge sitting at theProvicial Division of the Ontario Court of Justice acquitted fivewomen charged with performing an indecent act under s.171(1)(a) ofthe Criminal Code. The women were arrested for participatingbare-breasted at an outdoor political rally in Kitchener, Ontario,a year following Gwen Jacob's conviction. It is interesting forour purposes that the presiding Judge Katie McGowan appeared tobase her decision to acquit the women partially on 'expert65CHAPTER 3 - PHALLOCENTRISM AND EGALITARIANISM IN LAWAs was mentioned in the last chapter, part of Ms. Jacob'sdefence with respect to her indecency charge/conviction consistedof a constitutional challenge pursuant to section 15(1) of theCanadian Charter of Rights and Freedoms. 116 This challenge failedalthough the reasons for its defeat are not entirely clear fromJudge Payne's written judgment. One possible explanation is thatthe equality argument failed at that stage of analysis where JudgePayne decided to consider the governmental or state interest withrespect to the harm sought to be avoided through the enactment andenforcement of the Criminal Code provision in question." Heretestimony' relating to community standards of tolerance andpartially on evidence which emphasized the political (as opposed tomoral?) nature of the women's behaviour: see Kevin Griffin, "Top-free 'equality' applauded, panned" The Vancouver Sun (2 March 1993)A3. I am one who certainly applauds Judge McGowan's decision andher recognition of the political importance of the women'sbehaviour but, like Judy Rebick of the National Action Committee onthe Status of Women, I am disappointed that Judge McGowan relied onthe community standards test instead of engaging in a moreprotracted or critical inquiry into the historical "doublestandard" or discriminatory application of s.171(1)(a) within thecontext of public nudity: see Griffin, ibid.; and "Women look forend to 'double standard' on breasts in topless case" The VancouverSun (1 March 1993) A4. As Rebick has suggested, a critical inquiryby Judge McGowan as to why the indecency law has been targetedespecially at women, combined with the acquittal of the women inKitchener, could stand as a more powerful legal precedent than thatwhich is contained in Judge McGowan's judgment: see Griffin, ibid.115 Section 15(1) of the Charter reads: "Every individual isequal before and under the law and has the right to equalprotection and equal benefit of the law without discrimination and,in particular, without discrimination based on race, national orethnic origin, colour, religion, sex, age or mental or physicaldisability."116 R. v. Jacob, supra, note 88 at 14-17.66Judge Payne appeared to concede that a law which applied in certaincircumstances to women only, but not men, purely on the basis ofsex, could be considered prima facie unconstitutional. In thisrespect he considered various American cases addressing the issueof gender bias or "gender classification" with respect to publicnudity offences. These cases tend to support the notion that maleand female breasts are not entirely similar so legislators maylegitimately take into consideration specific differences forspecific purposes. On the basis of this consideration Judge Payneappears to conclude that, where a discriminatory application of thelaw constitutes a reasonable or "non-arbitrary" means of addressinga "legitimate governmental interest" (such as the "protection ofpublic sensibilities" in Jacob), the law in question cannevertheless be deemed constitutional.'117 R. v. Jacob, supra, note 88 at 16. In effect, Judge Payneappears to apply the classic Canadian "proportionality" test, asenunciated in R. v. Oakes (1986), 50 C.R. (3d) 1, 24 C.C.C. (3d)321 (S.C.C.), to the indecency provision in question. For ourpurposes, it is not necessary to elaborate on this test, except tosay that it only applies at that stage of analysis where the courthas found a law to be in violation of an existing Charter right orfreedom. Once a Charter violation is found the Court then proceedsto measure the "reasonableness" of the violation - that is, interms of its consistency with the articulated principles of freedomand democracy under section 1 of the Charter. This stage ofanalysis requires the Court to consider the legislative purpose ofthe impugned provision, and to determine whether that purpose issufficiently important from the point of view of the principles ofa "free and democratic society" to warrant overriding an otherwiseparticular constitutional right or freedom. If it is not then theprovision will be deemed unconstitutional. If it is, however, theCourt must then proceed to ask whether the means that thelegislature has chosen to effect its purpose bear any internal,'rational connection' or logical relationship to that purpose, andwhether, in the end, these means are 'proportional' to thatpurpose. The 'proportionality' aspect of the test requiresbasically that the chosen legislative means do not involve a67The problem with the above logic is that Judge Payneultimately concludes that s.171(1)(a) of the Criminal Code does notviolate section 15 of the Charter. Judge Payne's express referenceto the "reasonableness" of the gender bias in Jacob might lead oneto infer that he accepts the prima facie unconstitutionality ofs.171(1)(a) of the Criminal Code, but is prepared to justify theCharter violation according to section 1 of the Charter. Thisinference is problematic, however, because Judge Payne ultimatelyconcludes that s.171(1)(a) does not offend section 15 of theCharter."' This suggests an alternative explanation for JudgePayne's decision to uphold Ms. Jacob's conviction - namely, thatJudge Payne is not really interested in legitimating the genderbias with respect to s.171(1)(a) in the end, but rather to ensurethat women, as well as men, are not permitted to walk bare breastedin a public setting." However, this explanation is highlytroublesome in light of Judge Payne's concerted attention at anearlier stage of his analysis to the significant differencesbetween men and women's breasts. I have already quoted him asgreater degree of constitutional harm than the specific harm soughtto be avoided by the provision in question, and that theapplication of the provision in question impacts as minimally aspossible on the guaranteed right or freedom.118 R. v. Jacob, supra, note 88 at 17.119 I have already pointed out in Chapter 3 how Judge Payneseems to rely on American expert testimony in the end as a basisfor concluding that male breasts are similar to female breasts inall respects except for "lactation capabilities". It is thisconclusion that appears to enable Judge Payne to find ultimatelythat s.171(1)(a) of the Canadian Criminal Code does not necessarilyhave a discriminatory application, and can therefore be seen to beconsistent with s.15 of the Charter.68saying that "[the] essence of the matter here, as I see it, is thatanyone who thinks that the male breast and the female breast arethe same thing is not living in the real world."'Thus, the heart of the matter appears to consist in JudgePayne's attention to physiological difference - not similarity -and the implications of such difference for community morays andsocial order. As a conceptual device for resolving equalityissues, attention to difference is not entirely novel in Canadianjurisprudence. It is consistent with a recent trend among Canadianjudges to treat so-called 'similarly situated' persons alike and'differently situated' persons unlike (or differently) for thepurposes of section 15 analysis." For our purposes thesimilarity/difference approach to equality litigation is important120 R. v. Jacob, supra, note 88 at 13 (my emphasis).121 See, for example, the classic dicta of Her HonourableJustice McLachlin in Law Society of British Columbia v. Andrews,[1986] 2 B.C.L.R. (2d) 305 (C.A.) at 311. As per McLachlin, J.A.:"In my view, the essential meaning of the constitutionalrequirement of equal protection and equal benefit is that personswho are 'similarly situated be similarly treated' and, conversely,that persons who are 'differently situated be differentlytreated'." (footnotes omitted).It is noteworthy that since Madame Justice McLachlin (as sheis now) applied the similarity/difference model of equalityanalysis in Andrews the Supreme Court of Canada has departed fromthis type of equality analysis and has proposed a new test whichfocusses on the discriminatory impact of the law in question: seeAndrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143(S.C.C.). For my part I am not prepared to undertake an analysisof this Supreme Court of Canada decision and others following it,although I appreciate that these analyses could be peripherallyinstructive to my thesis. My ultimate concern with respect toconstitutional equality analysis is that egalitarian discourse ingeneral is founded on political assumptions and beliefs that arenot necessarily consonant with insights derived from otherhistorically prominent discourses.69because it provides a further example of the rationalistic bias oflaw generally. The difference approach to determining sexualequality issues is particularly troublesome because it reinforcesthe historically masculine epistemological bias in law which I haveargued in Chapters 1 and 2 ignores female sensuality and sexuality.Just as Carol Smart is concerned about the way particularoppositional terms or dyads such as consent/non-consent tend toignore certain facets of human experience, I am concerned about theway the similarity/difference dyad operates in law to distort theessential, political tension which exists between many men andwomen, and ultimately to denigrate female sexuality.The Jacob case clearly stands as one example of the wayphysiological differences between men and women can be applied inthe context of sexual equality analysis, in a manner which demeansthe full sensual expression of the female body. This tendency mayalso be observed in the recent Supreme Court of Canada case, R. v.Nguyen. 122 In this case the court was asked to determine theconstitutionality of a Canadian Criminal Code provision which madeit a criminal offence for a person in a position of trust orauthority in respect of a young person to touch, directly orindirectly, any part of the body of the young person for a sexualpurpose, or to invite a young person to behave similarly withrespect to any other person (including the person who so122 R. v. Nguyen (1990), 59 C.C.C. (3d) 161, [1990] 2 S.C.R.906, 79 C.R. (3d) 332 [hereinafter Nguyen cited to C.C.C.].70invites). 123 One of the constitutional arguments raised by thedefence was that s.146(1) of the Criminal Code violated the maleappellant's equality right pursuant to section 15(1) and section 28of the Charter because the scope of behaviour contemplated by thewording of the s.146(1) precluded the possibility of itsapplication to female persons. 124 Specifically, the appellantsargued that "only men may be charged under the provision" and "onlyfemales may be complainants." 125For her part, Madame Justice Wilson (as she was then)proclaimed that both equality provisions of the Charter did notpreclude the Parliament of Canada from enacting an offence that, asa matter of biological fact, can only be committed by one sex. 126In essence, she adopted the very same logic with respect to thesexual difference aspect of the argument that Judge Payne appliedin Jacob. This says that, given the particular purpose of anypiece of legislation, a legislature may be justified indifferentiating between the sexes on biological or physiologicalgrounds. As per Madame Justice Wilson, "there are certainbiological realities that one cannot ignore and that may123 See Criminal Code, R.S.C. 1970, c.C-34, s.146(1).124 Section 28 of the Charter reads, "Notwithstanding anythingin this Charter, the rights and freedoms referred to in it areguaranteed equally to male and female persons."125 As per Madame Justice Wilson, Nguyen, supra, note 122 at178.126 R. v. Nguyen, ibid. at 179, 180, and 182.71legitimately shape the definition of particular offences."' Theparticular biological difference that Madame Justice Wilson has inmind is the fact that men bear a penis and women do not. 129Although she appears to concede that this difference does notnecessarily preclude the possibility that women could touch a malechild for a sexual purpose or invite similar behaviour from a malechild, she nonetheless points out that the Criminal Codecontemplates only penile penetration of the human body as theproper basis for an offence under s.146(1). 129 To the extent thatwomen cannot penetrate men, therefore, in the same way that the lawimagines, Madame Justice Wilson agrees that the biologicaldifference in question is highly relevant to a determination of theconstitutional equality issue. In her words,given that only men may be the penetrators, it is absurdto suggest that the provision discriminates against malesbecause it does not include women in the category ofpotential offenders as it is to suggest that a provisionthat prohibits self-induced abortion is discriminatorybecause it does not include men among the potential classof offenders.127 Nguyen, ibid. at 179.128 As per Madame Justice Wilson at p.180 of Nguyen, ibid., "Ithink it clear that only males over a certain age are in factcapable of penetrating another person, at least in the sense of theterm penetration that the Code is concerned with."129 Madame Justice Wilson draws this conclusion at p.180 ofNguyen, ibid., by reference to the definition of sexual intercoursein s.3(6) of the Criminal Code. This section reads, "For thepurposes of this Act, sexual intercourse is complete uponpenetration to even the slightest degree, notwithstanding that seedis not emitted."13° Nguyen, ibid. at 180.72What is most important for our purposes about Madame JusticeWilson's analysis of s.146(1) is that it reveals the highlyheterosexist and phallocentric nature of criminal law relating tohuman sexuality. Indeed, notwithstanding the empirical likelihoodthat more men than women violate the kinds of trust or powerrelations envisioned by s.146(1), there are likely many peopleacross Canada who could imagine applications under s.146(1) whichwould involve not only non-penile acts of touching a young maleperson's body by a female person in authority, but also non-penileacts of touching a young person's body by a person in authority whobelongs to the same sex as the young person (whether both partiesare male or female). Clearly, most human beings of both sexespossess physiological attributes (such as hands, fingers, feet,toes, and tongues) which can be used to touch a person's body, andfor a sexual purpose. So on a purely theoretical level, if therationale behind s.146(1)(a) is not primarily concerned with thedissemination or alienation of the male seed, then it becomesdifficult to explain the law's exclusive focus on the male penis.Madame Justice Wilson's phallocentric approach to theconstitutional equality issue in Nguyen is troubling because itreflects precisely what Jessica Benjamin terms "falsedifferentiation". That is to say, implicit in her emphasis on theanatomical differences between men and women is a widely-held -indeed acculturated - prediliction to regard certain forms ofsexual penetration as belonging to the physiological prerogative of73the male sex organ. 131 And by failing to consider the penetrativepossibilities associated with the female body in toto (which is adirect result of focussing on the male penis as the central meansfor sexual touching) Madame Justice Wilson disregards an essential,real physiological aspect of women's lives - one which bears nonecessary relationship to their ability or desire to engage intraditional heterosexual courses of conduct.In the final analysis the phallocentrism of Madame JusticeWilson's equality analysis in Nguyen is not dissimilar from that ofJudge Payne in Jacob. The only difference between the biologicaldifference arguments in Nguyen and Jacob, at least for the purposes131 Zillah Eisenstein points out that this kind ofphallocentrism has posed serious impediments for women in theUnited States of America who have sought certain kinds of employeebenefits or disability insurance payments arising from the fact oftheir pregnancy. By treating the male possession of the phallus asthe norm in the context of equality analysis (such as the similarlysituated test), Eisenstein contends that American courts have beenable to treat pregnant women differently than non-pregnant men andwomen. More precisely, Eisenstein observes that American courtshave been able to avoid finding that laws which deny certainbenefits or entitlements to pregnant women but ceterus paribusprovide these benefits to men and non-pregnant women, arediscriminatory according to sex, by treating the fact of pregnancy(and hence interpreting the womb and women's genitalia and breasts)as sufficiently abnormal or inferior - and at any rate 'different'- to warrant differential treatment in the application of therelevant laws: see Z. Eisenstein, The Female Body and the Law(Berkeley and Los Angeles, Ca.: University of California Press,1988) at 66-67, 99-108.Eisenstein's concern is that differentiating men from women onthe basis of anatomical distinction alone is limited and tends tobe sexist in favor of men. Catharine MacKinnon would appear toshare this concern as it relates to issues of pregnancy and theworkplace. In her Sexual Harassment of Working Women she remarksthat "[differential] treatment by sex with respect to pregnancy isimpossible because no pregnant men exist to whom we can becompared": see C. MacKinnon, Sexual Harassment of Working Women(New Haven, Conn.: Yale University Press, 1979), p.111.74of equality analysis, is that the former explicitly draws the law'sattention to the penis and the latter implicitly draws the law'sattention to the penis. In any event, the full implications offemale sensuality and sexuality for women are relegated to themargins of the text and the image of the male penis becomes thedominant legal concern. But this situation is not necessary.There are legal possibilities for resolving sexual conflict beyondsimilarity/difference analysis, which tends to divide men fromwomen in a way which precludes mutual recognition between sexual'selves' and entrenches pre-existent images of women as inferiorand somehow dependent on male forms of authority and protection.One possibility is simply to displace the importance ofsimilarity/difference language in cases involving human sexuality,as the Supreme Court of Canada did in Andrews 132 and R. v.Turpin. 1" The other possibility is simply to reject egalitariandiscourse in such matters altogether and perhaps to replace it withanother discourse. I prefer the latter avenue for legal and socialreform. I have attempted to demonstrate how similarity/differenceanalysis is part of a broader rationalistic bias in law which,because of our acculturated genderization of reason and rationalityas masculine, tends naturally to obfuscate the full significance offemale sexuality and maternity in determining the shape of thesocial order. My primary concern in this respect is that132 See Andrews, supra, note 121.133 See R. v. Turpin (1987), 22 O.A.C. 261, 36 C.C.C. (3d)289, 60 C.R. (3d), aff'd but criticism of the similarly situatedtest in [1989] 1 S.C.R. 1296.75similarity/difference analysis necessarily categorizes andclassifies human experience along scientific or mathematical lines.Individuals and groups of individuals become comparable as 'more orless' the same, or they become distinguishable as 'more or less'different. Various units of measurement are employed to detectsimilarities and differences along various points of comparison.And based on the degrees of difference and similarity thatquantitative analysis discovers, scientific discourse is able totreat men and women as more or less equal. But human sexuality ishardly categorical and therefore it is not amenable to egalitarianinterpretation, despite what s.15 of the Charter suggests. Unlikeapples and oranges, which cannot be added or subtracted in terms oftheir specific composition but which can at least be compared orcontrasted in terms of their genetic composition (for example, asfruit in contrast to vegetables), sexual relations between humanbeings cannot be analyzed specifically or generically. This isbecause the nature of erotic attraction or desire among humanbeings is highly particular.'" It varies along all traditional"class" lines, including sex, age, colour, race, mental andphysical ability, and any other 'analogous' grounds that our courtsmight want to consider.As my limited analysis of legal egalitarianism has attemptedto show, therefore, the privileged ruler - the male sex organ - isnot necessarily the best measuring stick for resolving or134 See Sigmund Freud, Civilization and its Discontents trans.J. Strachey (New York: W. W. Norton & Company, Inc., 1961) at 58,64-65.76determining issues involving human sexuality. Formal equalitycannot effectively address the practical dynamics of humansexuality, nor can substantive equality begin to unravel theinvisible, intangible, personal sources of passion, conflict andantagonism that define erotic life in general. Friedrich Nietzschehas observed that"Equality", as a certain factual increase in similarity,which merely finds expression in the theory of "equalrights," is an essential feature of decline. Thecleavage between man and man, status and status, theplurality of types, the will to be oneself, to stand out--what I call the pathos of distance, that ischaracteristic of every strong age. The strength towithstand tension, the width of the tensions betweenextremes, becomes ever smaller today; finally, theextremes themselves become blurred to the point ofOn another occasion Nietzsche applies this general anti-egalitarianpolemic to the specific issue which I am addressing in thischapter, stating thatTo blunder over the fundamental problem of 'man andwoman', to deny here the most abysmal antagonism and thenecessity of an eternally hostile tension, perhaps todream here of equal rights, equal education, equal claimsand duties: this is a typical sign of shallow-mindedness,and a thinker who has proved himself to be shallow onthis dangerous point - shallow of instinct! - may beregarded as suspect in general, more, as betrayed, asfound out: he will probably be too 'short' for all thefundamental questions of life, those of life in the" F. Nietzsche, The Twilight of the Idols, Section 37, inThe Portable Nietzsche, ed. and trans. Walter Kaufmann, 2nd ed.(New York: The Viking Press, Inc., 1968) at p.540.77future too, incapable of any depth."'Nietzsche's insights are important for my purposes becausethey suggest the natural necessity or biological imperative of somedegree of sexual conflict between men and women, and at the sametime they suggest the inappropriateness of egalitarianism as amodel for alleviating that conflict with any effectiveness. I amnot prepared to accept the proposition that sexual relationsbetween individuals and among classes of individuals must be"eternally hostile", but I have tried to demonstrate thus far howsexual relations between human beings must invariably involve somelevel of "tension", "politics", and possibly "antagonism". We havealready observed in Chapter 1 that Professor Smith recognizessomething like Nietzsche's "most abysmal antagonism" between menand women and the necessity of an eternal tension between them,based on his understanding of certain physiological differencesbetween men and women. 1" Furthermore, we have seen how thisnatural tension has become hostile with the historical advent ofpatriarchal legal regimes. At least to the extent that, asProfessor Smith argues, women are legally controlled andpolitically oppressed by men although men are sexually dependent onwomen, based on the continual production and store of testosteronein males and the physical capacity of women to deny men sexual136 Nietzsche, Beyond Good and Evil, trans. R. J. Hollingdale(New York: Penguin Books, 1973), Section 238 at p.147.137 See Chapter 1, pp.31-32.78satisfaction, 1" it is not difficult to understand how the twosexes could come to resent one another over the course of historyin a profoundly hostile way. Thus, Professor Smith says, "[t]hepathological need of males to dominate females stems from a deep-seated unconscious hostility toward women which ranges from a mereresentment or fear of the feminine to hatred. An unconsciousmisogyny and gynophobia appears to be a part of the psyche of themale of the species." 39Given the significant role that extra-rational considerationssuch as the body and human instinct play in the determination ofsexual relations I therefore prefer to abandon bothsimilarity/difference analysis and egalitarian discourse as anadequate means of addressing the various kinds of physical andmental oppression that some women experience in patriarchalsociety. After all, the kinds of problems that the law purports toaddress through sexual assault, anti-pornography, obscenity and, aswe have seen, indecency legislation, ultimately concern violationsof physical integrity, sensual autonomy, and sexual liberty, notequality."'" Thus it would seem more fruitful in the present138 ^J. C. Smith, "The Sexuality of Politics", supra, note49 at 6.139 J.C. Smith, Neurotic Foundations, supra, note 14 at 172.140 Indeed, I am sufficiently presumptuous in the immediaterespect to assume that 'equality' is not necessarily what allfeminists desire in the long run. Rather, I assume that manyfeminists, classical and radical alike, are primarily interested inemancipating themselves from the legal, political, social, andrhetorical constraints of a male-dominated world, and onlysecondarily interested in the issue of whether this new-foundfreedom will require or entail some form of equality. In this79respect to direct the law's attention away from the intellectualpretensions associated with the male phallic measure and scientificthinking in general, and to turn it toward the physicalimplications of the female body.Both the image and the reality of the female body throughouthistory has had profound implications for the shape of society andthe development of law. Certain biological and social evolutionarytheories depend on the major role which the female body has playedin conditioning male behaviour. Sigmund Freud, for example, pointsout that when men and women became bi-peds, female breasts becameroutinely visible to males for the first time." This meant forFreud that male sexual interests began to rely primarily on therespect I take solace in Wendy Williams' observation that "[the]goal of the feminist legal movement that began in the earlyseventies is not and never was the integration of women into a maleworld any more than it has been to build a separate but betterplace for women. Rather, the goal has been to break down the legalbarriers that restricted each sex to its predefined role andcreated a hierarchy based on gender": W. Williams, "Equality'sRiddle: Pregnancy and the Equal Treatment/Special TreatmentDebate," (1984-85) 13 New York University Review of Law and SocialChange 325 at 331.Furthermore, I must add that if some kinds of feminism, eventhe most radical, are seeking a "sexual revolution" of sorts, thenI wholeheartedly embrace their battle. But this must be wagedunder "the banner of freedom" - freedom, that is, from "convention"and from "patriarchy" - not the banner of "equality": see Bloom,supra, note 5 at 98-100. For ultimately, the desire for equalitywill interfere with the goal of freedom: see, for example, J.C.Smith, Neurotic Foundations, supra, note 14 at 344-45. AllanBloom's paraphrase of Friedrich Nietzsche is particularly apt inthis regard. He says "[e]galitarianism means conformism, becauseit gives power to the sterile who can only make use of old values,other men's ready-made values, which are not alive and to whichtheir promoters are not committed. Egalitarianism is founded onreason, which denies creativity": A. Bloom, supra, note 5 at 201.141 S. Freud, Civilizations and Its Discontents, supra, note134 at 54.80visual perception of female breasts as a source of routine orconstant sexual arousal, and that sexual inclinations associatedwith olfactori stimuli emanating from the female pubic regiondimished. Prior to this moment of human evolution, Freudpostulates, male sexual interests were aroused only intermittentlyor periodically, in accordance with the female menstrual cycle.The shift from periodic male sexual excitement to constant malesexual excitement then had a significant affect on pre-existingsocial arrangements. 142 It meant that sexual gratification becamea much higher priority in the daily life or psychical economy ofmales than it was previously, 143 and it also meant that odoursemanating from or nearby the female genital region become morallyrepugnant to man.'"Freud argues that, in order to accommodate this newlyheightened sexual sensitivity, men sought to ensure that femaleswere always nearby or 'available' for sexual purposes. Hence thetraditional image of the patriarchal family developed from thismale sexual dependancy upon females. Freud elaborates as follows:142 Freud, ibid. at 54 (Author's footnote). See also J.C.Smith, Neurotic Foundations, supra, note 14 at 181; and J.C. Smith,"The Sexuality of Politics", supra, note 49 at 5-6.143 It is perhaps important to note that the advent of theerect posture among homo erectus did not effectively alter thelevel or constancy of sexual intensity among females. At leastaccording to classic evolutionary theory, the perpetuation of thespecies would require that the female be less sexually 'frustrated'than the male, both in terms of the frequency and intensity of hersexual desires: see J.C. Smith, "The Sexuality of Politics", supra,note 49 at 5.144 S. Freud, Civilization and Its Discontents, supra, note134 at 62-63.81One may suppose that the founding of families wasconnected with the fact that a moment came when the needfor genital satisfaction no longer made its appearancelike a guest who drops in suddenly, and, after hisdeparture, is heard of no more for a long time, butinstead took up its quarters as permanent lodger. Whenthis happened, the male acquired a motive for keeping thefemale, or, speaking more generally, his sexual objects,near him... ,145Moreover, the fact that a woman has a womb and breasts whichare capable of producing milk reinforces her symbolic primacy overmen within the context of early childhood processes of self-understanding and societal development in general. As ProfessorSmith says,The relationship of the mother to her child needs nomythic legitimization. The child comes from her womb andshe has nurtured it with her body. Men have no similarrelationship to children. The mere fact of fertilizationbears no comparison. The father's authority must beculturally created. The mother has a natural link to thechildren of her body for which there is no counterpartfor the male. In order for the father to have authorityover the children he must make them his own by owningtheir mother. She must become his wife. Thus, theownership of women is fundamental to all patriarchalhiearchical social "r146145 Freud, ibid. at 53.146 J.C. Smith, Neurotic Foundations, supra, note 14 at 288.See also J.C. Smith, "The Sexuality of Politics", supra, where hemakes the same point from an overtly biological point of view. Atpage 6 of this essay he writes, "The primary form of the specieshas meaning in and of itself--the being which reproduces. Thesurvival of the species, that is the perpetuation of the geneticcode, is the only consistent pattern to be found in life forms.The being which reproduces requires no legitimation--no definition--no word. Women and mothers are primary and therefore are 'real'.Maleness is secondary, and requires legitimation--definition--conceptualization."82Both J.C. Smith's and Sigmund Freud's observations support thenotion that the female body plays a crucial role in shaping sexualand societal relations between and among men and women.Unfortunately that role is hardly recognized in patriarchalsociety, except subconsciously or subliminally, and onlyconsciously as an inverted and objectified figure of male law anddominion. It is important, therefore, if women and their bodiesare to be emancipated from the objectifying and appropriatingtendencies of law, to find ways in which law can reflect thesymbolic primacy of women over men.Madame Justice Wilson suggested one way of subvertingphallocentrism and egalitarianism in favor of a legal recognitionof the inherent dignity of women and their bodies in Nguyen.Although she found that 5.146(1) of the Criminal Code constitutesa lawful violation of section 15 of the Charter, because itrecognizes pertinent anatomical differences between males andfemales, she ultimately found that s.146(1) constitutes an unlawfulviolation of section 7 of the Charter.' 47 This is because, in heropinion, the Charter right to "life, liberty, and security of theperson" encompasses a legal respect for the human mind and body intoto which transcends the kinds of arbitrary classifications anddistinctions associated with equality analysis. As she says,the government will not be able to justify aninfringement of s.7 under s.1 of the Charter on the basis147 Section 7 of the Charter reads, "Everyone has the right tolife, liberty and security of the person and the right not to bedeprived thereof except in accordance with the principles offundamental justice."83that because of an individual's sex he or she is notentitled to the same degree of Charter protection asother persons or tha because of his or her sex theCharter violation is less serious. The justification forthe infringement of a Charter right will have to belinked to considerations other than the sex of the partythat has established an infringement of his or herCharter right....There will, of course, be sex-relatedfactors that may legitimately enter into aproportionality analysis conducted under s.1 of theCharter. But such factors will have to be linked to thesex of persons other than the accused, e.g., the factthat the victim can become pregnant. 148In effect, Madame Justice Wilson displaces the significance ofcategorical similarities and differences among human beings wherethe issue of individual autonomy and freedom arises. Moreover, inthe instant case, she explicitly draws the public's attention tothe female body as a focal point for legal analysis. Indeed, shemomentarily transcends her earlier phallocentrism and pays explicitrespect to the female genitalia and womb as a proper area of legalconcern.Of course, Madame Justice Wilson was instrumental in bringingthe pregnant body to the forefront of judicial analysis in R. v.Morgentaler. 149 In this case she was faced with the task ofinterpreting section 7 of the Charter insofar as it was relevant tothe issue of women's ability to obtain a lawful abortion underexisting criminal law. One of the particular questions whichMadame Justice Wilson addressed in this context was whether section148 Nguyen, supra, note 122 at 182.1"9 Morgentaler, Smoling and Scott v. The Queen (1988), 62C.R. (3d) 1, 37 C.C.C. (3d) 449 [hereinafter Morgentaler cited toC.C.C.).847 of the Charter extended to women "the right of control over theirown bodies?"' She responded affirmatively, noting that "theright to 'security of the person' under s.7 of the Charter protectsboth the physical and psychological integrity of the individual",such that any law which places the decision-making power withrespect to the accessability of abortion outside of the individualpregnant woman necessarily constitutes "a direct interference" withthat woman's "physical 'person"' . 151Madame Justice Wilson's decision in the above respect isimportant insofar as it purports to recognize the inherent dignityof women's bodies. What is more significant for our purposes,however, is the fact that Madame Justice Wilson expressly pointsout the limits of phallocentrism and expressly links this to theobjectifying processes of cognition which we discussed in Chapter1. Thus, in reference to the physical and psychological "dilemma"that an unwanted pregnancy poses for women in general, MadameJustice Wilson declares,...It is probably impossible for a man to respond,even imaginatively, to such a dilemma not just because itis outside the realm of his personal experience (althoughthis is, of course, the case) but because he can relateMorgentaler, ibid. at 555.151 Morgentaler, ibid. at 556. Of course, Madame JusticeWilson also indicated in this context that at a certain stage ofpregnancy or fetal development the state may have a legal interestin protecting the fetus. Although this observation clearly placespolitical limits on the physical and psychological integrity thatMadame Justice Wilson attributes to women, it is interesting forour purposes that it is effectively the scientific breakdown offetal development and gestation into three periods (trimesters)that gives rhetorical validity to the limitation on women's bodilyfreedom that Madame Justice Wilson contemplates.85to it only by objectifying it, thereby eliminating thesubjective elements of the female psyche which are at theheart of the dilemma. 152The "subjective elements of the female psyche" are preciselythe kinds of "women's needs and aspirations" 153 which can never bedisassociated from the demands of their bodies, but which the lawhas traditionally concealed, excluded, and silenced throughrationalistic processes of objectification, assimilation, anddifferentiation. This is not to say that there are subjectiveelements of the male psyche that are intricately related to malephysiology but that are not explicitly recognized in law. On thecontrary, as we have seen in Chapter 1, the institution of law andpatriarchy is significantly conditioned on the neurotic dictates ofmale phallic desire. And it is precisely because of the neuroticnature of this desire that law tends to castrate women or, asProfessor Smith states, "[rob] the female of the will to power and[turn] a capacity to deny sexual satisfaction into a duty toprovide it. "154Madame Justice Wilson states that "women's needs andaspirations are only now being translated into protectedrights." 155 This statement acknowledging law's historicalpractice of "false differention" aptly echoes Jessica Benjamin's152 Morgentaler, ibid. at 555.153 Morgentaler, ibid. at 555.154 Smith, "The Sexuality of Politics", supra, note 49 at 6.155 Morgentaler, supra, note 149 at 555.86observation that[it] must be acknowledged that we have only just begun tothink about the mother as a subject in her own right,principally because of contemporary feminism, which madeus aware of the disastrous results for women of beingreduced to the mere extentions of a two-month-old. 56Clearly, a law which removes from women the decision-makingability with respect to pregnancy and reproduction is as equallycastrating to women as a law which denies women the freedom not toconceal their breasts if they prefer otherwise. Perhaps Ms. Jacobwould have fared better in court, therefore, if she challenged theCriminal Code indecency provision on the basis of s.7 of theCharter as interpreted by Madame Justice Wilson in Morgentaler. Inboth cases the argument would be that women are being denied asignificant degree of physical and mental autonomy and this kind ofoppression goes straight to the heart of section 7 of the Charter.Various feminist writers and thinkers have called intoquestion the ability of law to transcend its paternalism,phallocentrism and rationalism, and to recognize the female body asother than a mere symbol of maternity, irrationality, and possiblywantonness. In her feminist critique of law Zillah Eisenstein hassuggested that "[the] potential of woman's body to exist outsidephallocratic discourse is lost" already, so "it is impossible toexist completely outside this discourse".' And borrowing frominsights of contemporary psychoanalytic theory and practice, Jane156 Benjamin, Bonds of Love, supra, note 3 at 23.157 Eisenstein, supra, note 131 at 81.87Gallop has argued that any attempt by women to rewrite humanhistory from a distinctly female, if not heterosexual female,perspective" - in effect, to displace the story (will) of theFather by altering the terms of reference, for example, fromproduction to reproduction - must necessarily efface, veil, orcloud the very kinds of experiences that women claim to be uniqueto women. 159 She writes that n[t]he obligation to reproduce - thedaughter's [feminists'] obligation to reproduce the mother, themother's story - is a more difficult obstacle than even theFather's Law, an obstacle that necessarily intrudes even into thelovely, liberated space of women among themselves. If 160I would readily concede that the obstacle to women's libertyposed by the primacy of the male phallic symbol and reasonthroughout Western history and culture is theoreticallyinsurmountable. If, as Jessica Benjamin (and Immanuel Kant beforeher) has argued, cognitive experience is inherently rationalistic,then any argument which women and/or men advance in favor ofwomen's liberty will necessarily be conditioned by the categoriesof reason. Indeed, to the extent that it is impossible, asEisenstein suggests, for women to recognize and define themselves158^For Gallop, human history has been written from adistinctively male, homosexual point of view, only in the technicalsense that female sexuality has been effectively excluded from theepistemological ambit of the male, phallocentric, discursivetradition: see J. Gallop, The Daughter's Seduction: Feminism andPsychoanalysis (Ithaca, N.Y.: Cornell University Press, 1982).159 ^J. Gallop, ibid. at 74.160 Gallop, ibid. at 113.88outside of the masculine, rationalistic discourses of law,medicine, politics, and science, etc., it becomes questionablewhether the female body can ever be emancipated from theconstraints of phallocentrism. That is to say, it becomesquestionable whether the female body can ultimately acquire anykind of meaning unconditioned by the mediating tendencies ofrationality and objectivity (cognitive experience). As Carol Smartobserves, "behind the legal text is the presumption that it is thewritten form of a rational will. In other words, the text alwaysalready occupies a space inside rationality and objectivity.""For this reason Sue Gallop warns about placing too much emphasis onthe female body, figuratively and practically, as the finalsolution for overcoming the patriarchal nature of law. She statesthatIt is no answer, no sure-fire solution to have womenrather than men assume the position of power. Women arenot so essentially and immutably 'body' that they areeternally and dependably unrepresentable. In a certaindialectical moment, a certain here and now, theassumption of power by women may crack the impassive,neuter mask of power. But were women to assume power,the representation of power would inevitably alter so asto reassimilate the contradiction, to suture the chink.Perhaps the conflict is always between body - as theinadequate name of some uncommanded diversity of drivesand contradictions - and Power, between body and Law,between body and Phallus, even between body and Body.The second term in each pair is a finished, fixedrepresentation. The first that which falls short of thatrepresentation."161 C. Smart, "Law's Power, the Sexed Body, and FeministDiscourse", (1990) 17 Journal of Law and Society 194 at 197.162 Gallop, supra, note 158 at 120-121.89Notwithstanding Gallop's warning about the inevitable'representation of power' through discursive symbols and otheracculturated modes of communication it has been the purpose of thischapter - this 'here and now' - to emphasize the importance ofcracking the neuter mask of power called law. By redirecting thelaw's attention away from the mathematical constraints ofegalitarian analysis toward the inherent dignity of the femalebody, Madame Justice Wilson has demonstrated that the law can havea liberating impact on women's lives. In light of the historicalefforts of this woman 'in a position of power' I am at leastwilling to risk the possibility that a 'reassimilation of thecontradiction' could translate into a modest increase in femaleautonomy, and I would ultimately agree with Zillah Eisenstein that"much is to be lost if we give up trying to imagine the female bodyoutside discourse". 163In the next chapter I will attempt to apply some of theobservations of contemporary feminists such as Carol Smart, ZillahEisenstein, Jessica Benjamin, Sue Gallop, Madame Justice Wilson,and J. C. Smith to the problem of pornography in contemporary NorthAmerica. This problem, I will argue, goes straight to the heart ofwhat Gallop refers to as "the representation of power" and whatBenjamin refers to as "erotic domination". To the extent that lawhas played an important historical role in the preservation ofpornography throughout society it is worth attempting to look atlaw in order to gain a broader understanding of the implications of163 Z. Eisenstein, supra, note 131 at 81.90pornography for society. I will endeavour in particular to revealhow obscenity or anti-pornography law reflects a heterosexual,phallocentric, pornographic imagination, which cannot bedissociated from the primacy which our society places on intellect(or mind) over sensuality (or body).91CHAPTER 4 - LEGAL REASONING AND THE PORNOGRAPHIC IMAGINATIONAs we observed in Chapter 1, the fact that women throughouthistory have become victimized predominantly by the religiousorigins of the law is not a mere coincidence. J. C. Smith haspointed out that the law serves an inherently dual function when itcomes to the issue of male self-interest or domination. On the onehand, law reflects the monotheistic notion that the will of theheavenly father has dominion over the creatures of the earth andauthority over earthly desire. In metaphysical terms this meansthat the institution of law reflects a hierarchical ordering ofmind or logos over body or matter. In biological terms this meansthat law reflects a hierarchical ordering of reason or intellectover instinct or sensuality. In sociological terms this means thatlaw reflects a hierarchical relationship between, father, mother,and children, whereby the father exercises authority over both hiswife and his children.Moreover, law reflects the pornographic imagination of men,which tends to view women as somehow less than human - that is, assomehow lacking an independent will that we associate with humanagency. Susan Griffin argues that the culturally pervasivepornographic mind derives from humankind's "fear of bodilyknowledge, and a desire to silence eros. 54 ParaphrasingGriffin, Elizabeth Sheehy remarks that "[what] this imagination164 See the Prologue of S. Griffin, Pornography and Silence:Culture's Revenge Against Nature (New York: Harper and Row, 1981).92constructs is a world which is essentially false, but manageableand controllable."' We have seen how the 'false' image of womenas inferior or dependent is formed in the mind of both men andwomen at an early phase of childhood. This occurs as part of theprocess of genderization insofar as that process depends on theobjectifying tendencies of human cognition and the alienating ordistorting nature of language in general. And Professor Smith hasdescribed how man's historical endeavours to control and managewomen through law and politics derives from his sexual dependencyon women (at least as far as heterosexual males are concerned) andhis neurotic recognition that women naturally possess and controlthe means for sexual satisfaction.We have also seen in Chapter 2 how Nietzsche relates thehistorical intrusion of 'ascetic ideals' across Westerncivilization to a cultural prediliction for science and objectivityand a heightened sense of guilt among modern men and women inrespect of bodily and sexual matters. For Nietzsche, however, our165 E. Sheehy, "Canadian Judges and the Law of Rape: Shouldthe Charter Insulate Bias", (1989) 21:3 Ottawa Law Review 741 at756. It is important to note, of course, that Griffin intends thatthe pornographic mind constructs an image of women and femalesexuality which is controllable and manageable from the male pointof view. For Griffin, most pornographic imagery involving men andwomen constitutes a superficial reversal of the true nature ofhuman sexuality (or at least heterosexuality). Thus, for example,she recalls the stereotypical pornographic image of "a woman drivento the point of madness out of the desire to put a man's penis inher mouth", combined with the image of a heroic man who is able to"coolly grant or deny her frantic infant desire": S. Griffin, ibid.at 61. This combination of images, she observes, constitutes areversal of the overwhelming urge among infant children to suckletheir mother's breasts and the power of the mother to withhold herbreasts from the child.93acculturated puritanism and rationalism has had a disproportionallydeliterious effect on women's lives. Thus he says, on the subjectof "female chastity", that[there] is something quite amazing and monstrous aboutthe education of upper-class women. What could be moreparadoxical? All the world is agreed that they are to bebrought up as ignorant as possible of erotic matters, andthat one has to imbue their souls with a profound senseof shame in such matters until the merest suggestion ofsuch things triggers the most extreme impatience andflight. The "honor" of women really comes into play onlyhere: what else would one not forgive them? But herethey are supposed to remain ignorant even in theirhearts; they are supposed to have neither eyes nor ears,nor words, nor thoughts for this--their "evil"; and mereknowledge is considered evil. And then to be hurled, asby a gruesome lightning bolt, into reality and knowledge,by marriage--precisely by the man they love and esteemmost! To catch love and shame in a contradiction and tobe forced to experience at the same time delight,surrender, duty, pity, terror, and who knows what else,in the face of the unexpected neighborliness of god andbeast1 1136Nietzsche links the public and private oppression of womenhere to the historical friendship ("neighborliness") of religion("god") and male desire or sexual instinct ("beast"). In essence,Nietzsche describes an acculturated form of female castration whichis intimately linked to patriarchal social institutions such asmarriage. Women are portrayed here as devoid of their senses andtheir ability to communicate in respect of "erotic matters".Professor Smith elaborates on this picture from a psychoanalyticperspective as follows:Religion and pornography together constitute the166 Nietzsche, The Gay Science, trans. by Walter Kaufmann (NewYork: Random House Inc., 1974), Book Two, Section 71 at pp.127-128.94boundaries of Oedipal patriphallic sexuality, and it islaw which makes the link. The phallus, with itsstructure of mind-logos and body-penis dualism requiresthe law to mediate the polar tensions. The father andhis law is the midpoint between the penis and the logos.The father, being created in the image of God, is puremind or spirit trapped in the physical body with itspenis which drives him through desire. Thus the phallusis the logos--father--penis the structure of which isinstitutionally manifested in religion--law--pornography."According to Professor Smith, religion and pornography are twosides of the same coin in that, as aesthetic mediums and socialpractices, they tend to castrate women." That is to say, inimagery and deed they deny women the power of natural generationthat was once associated with the female breasts and reproductiveorgans. Instead, religion has made the heavenly father thecreative center of the universe and woman the mere handmaid to thatcreation. Likewise pornography tends to denigrate the creativepower associated with women's anatomy by representing women asmindless objects or body-parts of male dominion."167 J. C. Smith, "The Sexuality of Politics", supra, note 49at 7-8. Professor Smith explains here that "[the] logos, pure mindand spirit is opposed to the flesh and animal body which seducesthe mind through the pull of desire. The higher law denounces anddisparages sexual pleasure as it contaminates and defiles pure mindand brings the spirit down the level of the body."" J.C. Smith, ibid. at 8.169 This is suggested by Justice Gonthier's own analysis ofpornography in R. v. Butler, supra, note 104 at 513 and 517, wherehe refers to the "loss of humanity" associated with certainpornographic depictions of human sexuality.For my part I am willing to argue that not all forms ofpornography, and not all pornographic imagery is necessarilydenigrative of women and damaging to women's self-image. Inparticular, it is arguable that some lesbian pornographysymbolically presents a powerful, if not liberated view of women.I use the word 'liberated' loosely, in the sense that women's95To the extent that science bears a comparable function toreligion, in that both endeavours elevate the status of the mind,the spirit, or the will, and simultaneously disparage the pleasuresand pains of the body, it is plausible to replace Professor Smith's"religion - law - pornography" triad with a more secular version,such as "science - law - pornography". Catharine MacKinnonsuggests the feasibility of such a connection in her Toward AFeminist Theory of the State. She observes thatIn the Western philosophical tradition, method hassought authority: how to produce an account of knowledgewhich is certain, which ends speculation and precludesskepticism, which has power that no one else can aspowerfully contest....Its history is the history of anattempt to exert such power over reality as comes frommethodological hegemony over the means of knowing,validating only those ways of proceeding which advancethe project of producing what it regards as requisitecertainty. Objectivity has been its answer, itsstandard, its holy grail."'Although MacKinnon is not particularly interested in the abovestatement with legal method it is not difficult to recognize howsexual pleasure or pain as depicted in lesbian love-making is notnecessarily defined by reference to the image of the male penis,and likewise, women's sexual identity is not determined by thepresence of a dominant male figure. Moreover, by taking the imageof women's naked bodies outside of the context of male dominion andheterosexuality, women's bodily identity becomes effectivelyliberated from the constraints of patriarchal ideology, whichattempts to define female sexuality exclusively in terms ofpregnancy, family, and heterosexuality. I believe this is whatZillah Eisenstein means when she says "[some] forms of pornographyhave a positive effect in depicting sex as not necessarily tied topregnancy, marriage, or heterosexuality. Pornography can help tocreate a multiplicity of sexual imagery that enhances women'sequality by differentiating the female body from the mother'sbody": Z. Eisenstein, supra, note 126 at 173.170 C. MacKinnon, Toward A Feminist Theory of the State,supra, note 67 at 106-07.96legal reasoning, fact-finding, and evidentiary rules all interactto constitute "authority" so that, in the end, like the scientist's"account of knowledge which is certain", the judge's or jury'sfinding is equally certain, or at least in criminal lawdeterminative "beyond a reasonable doubt". And like scientificmethod, the adversarial process of criminal law and the manyobjective tests which are employed therein are devised ultimatelyto "end speculation" and to "preclude skepticism".The element of pornography involved in this marriage betweenlaw and science is introduced where the central means for empiricalverification becomes visual representation or, as MacKinnoncorrectly describes it, "visual objectification". She argues that"[pornography] connects the centrality of visual objectification toboth male sexual arousal and the male models of knowledge andverification, objectivity with objectification." 171 We havealready seen how Freud marks an evolutionary shift in patterns andintensity of male sexual desire to the advent of homo erectus andthe routine visibility of the contours of female breasts. WhatMacKinnon contributes to this observation is that opticalperception entails objectification, and that visual objectificationleads to anatomical fetishism and epistemological dismemberment.She says that "fixation on dismembered body parts (the breast man,171 C. MacKinnon, Toward A Feminist Theory of the State, ibid.at 138. See also MacKinnon's remark that "visual metaphors forknowing have been prioritized as a method of verification, givingvisual objectification, as in pornography, particular potency":MacKinnon, ibid. at 114-15 (endnotes omitted).97the leg man) evokes fetishism" 172 and recalls thereby thefetishized effect of the microscopic approach to "indecency" thatwe saw in Jacob.Anatomical fetishism is not in itself necessarily pornographicbut it becomes so when, as MacKinnon suggests, not only women'sbody parts become the object of male fetishes, but women'sperceived "sexual desirability" becomes fetishized. Thus shesays, referring to certain kinds of pornographic representation orthe kind of eroticism that attends scientific methodology, that[o]bjectification makes supremacist sexuality a materialreality of women's lives, not just a psychological,attitudinal, or ideological one. It obliterates themind/matter distinction that such a division is premisedupon. Like the value of a commodity, women's sexualdesirability is fetishized: it is made to appear aquality of the object itself, spontaneous and inherent,independent of the social relation that creates it,uncontrolled by the force that requires it.'For MacKinnon, objectification entails commodification anddimunition of human agency. It commodifies in a similar way tothat which Lacan explores in his discussion of the symbolicexchanges of early kinship societies (because it exploits womencommercially), and it alienates in precisely the way he understandsthe distorting tendencies of linguistic expression. That is tosay, one cannot be an object - of admiration, of desire, ofconsumption, of anything - and at the same time have their own172 C. MacKinnon, Towards A Feminist Theory of the State,ibid. at 110.173 C. MacKinnon, Toward a Feminist Theory of the State, ibid.at 123.98needs fulfilled through an other individual. Language, includingthe subject/object distinction, necessarily alienates the 'subject'who has needs from the satiation of his or her needs, and leavesthat subject with an ever-recurring 'desire'. The sexualobjectification of women operates therefore only at the level oflanguage, discourse, image, symbol, or representation, and to theextent that men (and/or women in some cases) can be said to desirewomen in the Lacanian sense, such desire can only be conditioned onan eroticized (and fetishized) image of women. Thus, MacKinnonappreciates thatPornography participates in its audience's eroticismbecause it creates an accessible sexual object, thepossession and consumption of which is male sexuality, tobe consumed and possessed as which is female sexuality.In this sense, sex in life is no less mediated that it isin art. Men have sex with their image of a woman.Escalating explicitness, "exceeding the bounds ofcandor," is the aesthetic of pornography not because thematerials depict objectified sex but because they createthe experience of a sexuality which is itselfobjectified. It is not that life and art imitate eachother; in sexuality, they are each other. 174Law has played a crucial role in the pornographicobjectification of female sexuality in two important respects. Thefirst of these has to do with the way law has traditionally definedand understood pornography. Pornography has typically beenregarded in law as involving some kind of representation, whetherliterary or pictorial, and this has been legislated as an offenceagainst morals or taste under the rubric "obscenity". The second174 MacKinnon, Toward A Feminist Theory of the State, ibid. at199.99has to do with the nature of scientific method itself. AsMacKinnon has already observed, the 'Western philosophicaltradition' has tended to aspire to "certainty" and to preclude thepossibility of "doubt". For MacKinnon, the paradigmatic Westernphilosopher in this sense is Rene Descartes, who relied heavily onthe notion of causality as the methodological and conceptual basisfor attaining his own epistemological certainty (methodologicaldoubt)." As we will see, the rhetorical privilege whichcriminal law has ascribed to "causality" and proof "beyond areasonable doubt" has possibly blinded the court to the harm towomen which is involved in the pornographic imagination.Professor Smith points out that North American anti-pornography legislation has been particularly instrumental inpreserving a male-governed, sexist status quo by categorizingcertain kinds of pornography in moralistic language, such as"obscenity"." He says that175 See generally, for example, Rene Descartes, Meditations onFirst Philosophy (with Selections from the Objections and Replies),trans. John Cottingham (Cambridge, Eng.: Cambridge UniversityPress, 1986); and Rene Descartes, Discourse on Method, trans. JohnVeitch (La Salle, Ill.: The Open Court Publishing Company, 1899).176 Likewise Catharine MacKinnon traces the origin of thelegal validation of pornography to American obscenity law: see C.MacKinnon, Toward A Feminist Theory of the State, supra, note 67 at200-01. She argues that by misconstruing the pictorial denigrationand physical subjugation of women as a matter of liberal morality -of public good versus private interest - rather than as aneffective form of political oppression of women by men, obscenitylaw has historically encouraged a certain degree of interpretativesubjectivity. Where the subjects who have been placed in charge ofinterpreting such matters of taste are predominantly male (as, forexample, is the case with American juristic history), MacKinnonsuggests that pornographic issues will be interpreted to suit maleinterests.100[r]ather than viewing [pornography] as wrong because itdenigrates women and perpetuates a false male stereotypeof the female, pornography is suppressed, to the degreethat it is suppressed at all, as "obscene". It iscategorized as obscenity because it has to do with sex.The repression of sexuality, particularly characteristicof the Judaeo-Christian tradition, is the product of thepsychic conflict between the sexual nature which is partof our animality, and our desire to be pure of mind, freeof the biological dictates of the body. 177Professor Smith's argument lends support to Andrea Dworkin'scontention that"[w]hat is at stake in obscenity law is always erection:under what conditions, in what circumstances, how, bywhom, by what materials men want it produced inthemselves. Men have made this public policy. Why theywant to regulate their own erections through law is aquestion of endless importance to feminists.... Argumentsamong men notwithstanding, high culture is phallocentric.It is also, using the civilized criteria ofjurisprudence, not infrequently obscene". '78Both Smith and Dworkin come extremely close in their critiqueof obscenity law to recognizing the role of Nietzsche's asceticpriest in the development of civilization or "high-culture". Theinstitution of anti-obscenity legislation throughout history hasenabled men in general to appear morally pure (from a Judaeo-It may be noteworthy that,publication and disseminationcriminal offence, it nonethelessoffence against morals: see s.163R.S.C. 1985, c.C-46.although Canadian law treats theof pornographic material as ainterprets the crime as one of an(8) of the Canadian Criminal Code,177 J.C. Smith, Neurotic Foundations, supra, note 14 at 203.178^A. Dworkin, "Against the Male Flood: Censorship,Pornography, and Equality," (1985) 8 Harvard Women's Law Journal 1at 8-9.101Christian perspective) and at the same time has provided them witha kind of sexual release valve. In the last respect the regulationof male erections has been necessary to ensure a semblance of malesexual control and order, one of the most significant costs ofcivilization. 179Recent Canadian criminal law has seen a modest transformationof this distinctly ascetic treatment of pornography according to aless moralistic understanding of "obscenity". In R. v. Butler18°the Supreme Court of Canada reviewed sociological and psychologicalevidence which tended to suggest a causal correlation between thepublication and dissemination of pornographic materials and adegree of risk of harm to women and children. In light of thisevidence the court saw fit to construe the standard test for"obscenity" 181 in the context of pornographic imagery in extra-moral terms. Speaking on behalf of the majority in Butler, theHonourable Justice Sopinka stated that,[a]mong other things, degrading or dehumanizing materialsplace women (and sometimes men) in positions ofsubordination, servile submission or humiliation....Thistype of material would, apparently, fail the community179 See Sigmund Freud's Civilization and Its Discontents,supra, note 134 at 51: "Sublimation of instinct is an especiallyconscpicuous feature of cultural development; it is what makes itpossible for higher psychical activities, scientific, artistic, orideological, to play such an important part in civilized life."180 R. v. Butler, supra, note 104.181 I have discussed the so-called "community standard oftolerance" in Chapter 2. Without going into an elaborate analysisof this test it is useful to note that it is the same test that isapplied in the context of "indecency" analysis as "obscenity"analysis.102standards test not because it offends against morals butbecause it is perceived by public opinion to be harmfulto society, particularly to women. While the accuracy ofthis perception is not susceptible of exact proof, thereis a substantial body of opinion that holds that theportrayal of persons being subjected to degrading ordehumanizing sexual treatment results in harm,particularly to women and therefore to society as awhole."Justice Sopinka's dicta is relevant to our purposes in twoimportant respects. First, one gets the distinct impression, basedon the abovementioned concern for the prevention of harm towomen,' that Justice Sopinka's decision to uphold theconstitutionality of the anti-pornography provision in question isnot founded in some readily identifiable, ascetic, form of self-interest. He does not appear to be in favor of the suppression ofcertain types of pornographic material as a matter of male classinterest, or as a form of physiological denial or inhibition, somuch as a matter of genuine respect for female autonomy. This viewof his logic is also supported by his comparison of the anti-pornography provision in question with Canadian anti-hate law.'"182 R. v. Butler, supra, note 104 at 479.183 Justice Sopinka also makes it clear at page 508 of Butler,ibid, that he is concerned with the prevention of violence againstwomen as opposed to the mere treatment or consolation of women whohave already been violently abused in society.184 See, for example, R. v. Butler, ibid. at 496 and 501.Although the final determination of the central legal issues inButler do not appear to hinge on this analogy it is nonethelessvery important for some of the theoretical analyses of pornographyat stake in this chapter. Specifically, some feminist writers havesuggested that the censorship of pornography effectively raises itsliterary, pictorial or graphic content to the status of politico-sexual truth: see, for example, Annette Kuhn, The Power of theImage (London, Eng.: Routledge & Kegan Paul, 1985). The argument103And, to the extent that he is prepared to criminalize publicmaterial which spreads a message of hatred against women, JusticeSopinka appears to be non-misogynistic, unlike Judge Payne inJacob.Second, to the extent that Justice Sopinka is prepared todetermine the issue of the community standard of tolerance withrespect to the meaning of "obscenity" and "undue exploitation",without conclusive data or exact proof that the dissemination andconsumption of pornographic materials causes misogynisticbehaviour, he temporarily displays a peculiarly non-scientificattitude toward judicial decision-making." Indeed, his non-positivistic determination is peculiar both in the sense that it ishistorically rare" and in the sense that it seems at odds withsays basically that, by legally curtailing access to pornographicpublication the public acquires the perception that pornographicliterature reflects some kind of forbidden 'truth' or carnalknowledge that must not be disclosed, for fear that it mightcorrupt or falsify the dominant puritan values of the day. If thisargument was to hold sway, then it would be difficult to advocatethe public suppression of pornography from both feminist andlibertarian perspectives. However, by comparing anti-pornographylegislation with anti-hate literature, Justice Sopinka is implyingthat the central 'evil' of pornography is not necessarily its claimto truth, however directly or indirectly that claim might beperceived by a consuming public, but rather the sentiment ofmisogyny that it purportedly fosters among its readership andgeneral audience. Censorship becomes justified on these terms notas a matter of the suppression of true or false expression, but asa means for preventing hateful attitudes and beliefs, and possiblyviolent acts, against women.185 What I am referring to here as Justice Sopinka's expressanti-scientific attitude is echoed by Justice Gonthier in the samecase: see R. v. Butler, ibid. at 524.186 Although rare, Justice Sopinka's approach to the issue ofthe rational connection between Parliament's decision tocriminalize certain kinds of pornography and the harm it is seeking104the general positivistic, scientific methodology of most judicialdeterminations over the course of common law history. At least tothe extent that it eschews the need for a strict causalrelationship in favor of securing obvious women's interests itrepresents a novel attempt at overcoming law's historicalphallocentrism. That is to say, insofar as it is preparedmomentarily to abandon or to displace one of Western civilization'smost powerful concepts," the Supreme Court of Canada makes ato prevent thereby is not entirely unprecedented. He cites thecase of Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1S.C.R. 927 at 994, as enabling judicial determinations oflegislative reasonableness between method and purpose (object),based on the amount of relevant evidence which is made available toParliament, and which informs its decision to legislate one way oranother with respect to a particular problem. Where the evidenceat hand tends ultimately to support a reasonable conclusion in themind of Parliament that a rational connection exists between theharm sought to be prevented by the legislation in question and thekind of activity or behaviour which the legislation in questionpurports to prohibit or regulate, the judiciary may rely on thatreasonable apprehension as sufficient authority for its owndeterminations as to legislative reasonableness." Without arguing the point in any detail it is important toappreciate how the notion of causality has played a crucial role inthe historical development of theology or religion (creationtheory) and science. In his An Enquiry Concerning HumanUnderstanding David Hume remarks that "[all] reasonings concerningmatter of fact seem to be founded on the relation of Cause andEffect": D. Hume, An Inquiry Concerning Human Understanding inDavid Hume, The Philosophical Works, Vol. 4, ed. by T. H. Green andT. H. Grose (GmbH., Darmstadt: Scientia Verlag Aalen, 1964) at 24.David Hume has criticized various kinds of arguments for theexistence of god precisely because they presume some kind ofultimate or original cause. Hume's response is simply to proposethat the world may not be caused, and that it may not, therefore,be an effect, but that it might simply be. Like Nietzsche, herejects the validity of any analogy or correspondence between theoperations of the human mind (including its propensity to view theworld causally) and the operations of the so-called 'natural'world. Referring to the 'natural' tendency of the intellect tomake causal inferences he remarks, "allowing that we were to takethe operations of one part of nature upon another for the105rare and voluntary sacrifice of its own power." It relinquishesits Cartesian desire for scientific certainty based on scientificmethodology and makes a decision clouded in reasonable doubt. Itembraces a mild form of Hurnean scepticism and, in accepting theinherently, physically harmful nature of some forms of pornography,it demonstrates an exceptional vulnerability - a preference, thatis, for epistemological immediacy (or tactile perception) overepistemological mediacy (or cognitive, intellectual, and visualperception). The importance of this gesture for feminist thinkingfoundation of our judgment concerning the origin of the whole(which never can be admitted), yet why select so minute, so weak,so bounded a principle as the reason and design of animals is foundto be upon this planet? What peculiar privilege has this littleagitation of the brain which we call thought, that we must thusmake it the model of the whole universe? Our partiality in our ownfavour does indeed present it on all occasions; but soundphilosophy ought carefully to guard against so natural an illusion:D. Hume, Dialogues Concerning Natural Religion, in Hume Selections,ed. Charles W. Hendel, Jr. (New York, N.Y.: Charles Scribner'sSons, 1927) at 308-309. See also F. Nietzsche, Beyond Good andEvil, supra, note 136 at 33 (Part I, Section 21).Science has been equally seduced by causal inference andcausal metaphor to the extent that it prefers to substituteanthropomorphic creation stories for the world, and indeed thecosmos, for non-anthropomorphic causal explanations, such as theBig Bang theory. But even on a more mundane, earthly level where,as Hume suggests, science endeavours to explain "extraordinaryphenomena, such as earthquakes, pestilence, and prodigies of anykind", he concedes that "philosophers, who carry their scrutiny alittle farther, immediately perceive, that, even in the mostfamiliar events, the energy of the cause is as unintelligible as inthe most unusual, and that we only learn by experience the frequentCONJUNCTION of objects, without being ever able to comprehendanything like CONNEXION between them": Hume, An Inquiry ConcerningHuman Understanding, ibid. at 58. The kinds of illusory "necessaryconnexions" which Hume addresses barely touch on the plethora ofcausal explanations upon which science routinely relies, fromgravitational pull in Newtonian physics to crimonogenics in socialscience theory.188 See Zillah Eisenstein, supra, note 131 at 28-29.106and politics cannot be understated." It opens the door, albeitslightly, for the introduction of a distinctly non-patrophallicperspective or attitude into law. As Catharine MacKinnon states,Feminism does not appropriate an existing method--suchas scientific method--and apply it to a different sphereof society to reveal its preexisting politicalaspect....As its own kind of social analysis, within yetoutside the male paradigm, as women's lives are, feministmethod has a distinctive theory of the relation betweenmethod and truth, the individual and her socialsurroundings, the presence and place of the natural andspiritual in culture and society, and social being andcausality itself [my emphasis]. Having been objectifiedas sexual beings while stigmatized as ruled by subjectivepassions, women reject the distinction between knowingsubject and known object--the division between subjectiveand objective postures--as the means to comprehend sociallife. Disaffected from objectivity, having been itsprey, but excluded from its world through relegation tosubjective inwardness, women's interest lies inoverthrowing the distinction itself. A feminism thatseeks only to affirm subjectivity as the equal ofobjectivity, or to create for itself a subject ratherthan an object status, seeks to overturn hierarchy while189 According to the contemporary French feminist philosopherJulia Kristeva it is crucial to the task of overcoming malesuppression and female oppression, or even restricting the socio-political influence of male-dominance to any degree, that the manyinstitutional powers of the patriarchal state (such as law,religion, education and their dominant discourses) recognize,introduce and effectively incorporate maternalistic values. Shepoints out that even paternalistic institutions exercise amaternalistic function in the end so that, for example, theepistemological totalitarianism of law (that is, its claim toobjectivity and certainty based on precedent and its acquiredauthority) must ultimately concede its own pretentiousness. In herwords, "[how] true it is also that these powers lean, in the end,on those modern totalities that are mothers who 'create' and whobecome 'responsible', bosses, officials. But, I think that, on theother hand, the maternal function can be an apprenticeship ofmodesty and of a permanent calling into question; and if a womanlives maternity and her artist's work thus, far from being atotalizing Mother-Goddess, she is rather a locus of vulnerability,of calling into question of oneself and of languages": J.Kristeva, "L'Autre du sexe", trans. by J. Gallop, in The Daughter'sSeduction, supra, note 158 at 122-123.107leaving difference, the difference hierarchy has created,intact . 190By steering the law's attention away from the strictmethodological dictates of Cartesian rationalism, such as cause andeffect and other binary or oppositional modes of analysis, towardthe harm that women and their bodies may suffer throughpornographic publication and distribution, Justice Sopinkamomentarily subverts the centrality of scientific paradigms infavor of women's uniquely non-scientific concerns - namely, theinviolability and integrity of their bodies.' The majoritydecision in Butler to determine the issue in this manner addressesone of the central problems that some feminists have identifiedwith modern approaches to pornography analysis. One feministscholar has noted,The...problem is that concentration [on] the 'effects' ofpornography at the behavioural level tends to deflectfeminist analysis away from other types of 'effects' atan ideological level such as ways in which pornographycontributes to the organization of the everyday viewingof women as a 'desirable commodity' to be enjoyed by men.The search for 'hard' empirical evidence operates tonarrow not only the definition of 'the problem' but alsothe theoretical framework and the range of possible190 C. MacKinnon, Toward a Feminist Theory of the State,supra, note 67 at 120-121.191^By referring to women's concern for their bodilyinviolability as "uniquely non-scientific" I am not suggesting thatwomen's concern in this respect and man's concern for bodilyintegrity are somehow different. I am merely suggesting thatanyone's concern with personal bodily autonomy is "uniquely non-scientific" in that it is not grounded in reason. That is, itcannot be explained away, especially in terms of cause and effect.108feminist strategies that might be employed.Despite what I consider to be a minor legal triumph for womenconcerned with the misogynistic implications of pornographicrepresentation there are some self-proclaimed feminists who wouldprefer to permit unqualified pornographic expression according tothe libertarian tenets of the Charter. Thelma McCormack, forexample, who is currently director of the Centre for FeministResearch at York University, rejects the political use of anti-pornography regulation among some women as further entrenchingwomen's imagined inferiority and dependency on a paternalisticstate. 193 While I have painted a picture of law and patriarchalsociety which gives Ms. McCormack every reason to distrust theeffectiveness of anti-pornography legislation (in terms of itsability to protect women from offences against their morals andtheir bodies) it is nonetheless unfortunate that she remains192 R. Eckersley, "Wither the feminist campaign? Anevaluation of feminist critiques of pornography", (1987) 15:2International Journal of the Sociology of Law 149 at 163. Seealso C. MacKinnon, Toward A Feminist Theory of the State, supra,note 67 at 123. MacKinnon makes a a similar, but more generalpoint here when she states "[women] have the opposite problem fromDescartes. The objective world is not a reflection of women'ssubjectivity, if indeed women--subjected, defined by subjectivism,and not having been permitted to be a subject--can be said topossess a subjectivity. Epistemologically speaking, women know themale world is out there because it hits them in the face. Nomatter how they think about it, try to think it out of existence orinto a different shape, it remains independently real, keepsforcing them into certain molds."193 T. McCormack, "Must We Censor Pornography? Civil Libertiesand Feminist Jurisprudence", in D. Schneiderman (ed.), Freedom ofExpression and the Charter (Toronto: Thomson, 1991) 180.109committed to the ideals of Cartesian certainty and scientificmethod." Her scientific comment in this respect belies herallegiance to our acculturated paternalism and it appears toovershadow her appreciation of the full sociological implicationsof pornographic expression. Speaking on the recent Butler decisionand the relevance of the anti-pornography provision in the CriminalCode to the formal guarantee of freedom of expression under theCanadian Charter, as well as the relevance of that same provisionto women's lives in general, she declared, "[f]ar from helping usto achieve equality or reduce inequality, the prohibition ofpornography infantilizes us."' By way of elaboration shemaintained thatThe prohibition of obscenity in the Criminal Codesatisfies the urge to get even but accomplishes nothingin the struggle for equality and reinforces thedependency of women on a patriarchal state.'This comment is at best confusing and at worst astonishing. It isconfusing because it assumes that women have a desire to 'get even'or to obtain equality which is not conditional somehow on theirself-image or self-portrait in a patriarchal state. If MacKinnonis right, women's real and intellectual sense of dependency on menis profoundly related to the submissive and denigrative image of194 See Clayton Ruby's "Fifth Column: Law and Society", in TheGlobe and Mail (1 December 1992) A20.195 Ruby, ibid.196 Ruby, ibid.110women which men observe in pornographic literature and magazines.Women's passivity, dependency, and infantilization (lack of agency,intellectual vaccuity) as portrayed in many forms of pornographyand lived as an acceptable form of social practice is a logicalproduct of patriarchy. Whether this form of social practice iscommon to matriarchal societies is arguable. However, referring toour patriarchal social order, MacKinnon states, "[i]n a feministperspective, pornography is the essence of a sexist social order,its quintessential social act." 197 So it is clearly problematicto speak, as Ms. McCormack does, as if gender equality could existalongside constitutionally protected pornographic expression orpublication. This proposition brings us to what is astonishingabout Ms. McCormack's comment - namely, that it appears to divorcethe issue of women's social or political 'infantilization' from theissue of pornographic publication. To the extent that thepornographic production and publication requires in many cases thephysical infantilization of women it is difficult to accept thenotion that women's dignity somehow depends on women giving menlegitimate political expression to such an infantile image ofwomen.' Indeed, according to MacKinnon, pornography is part of197 MacKinnon, Toward A Feminist Theory of the State, supra,note 67 at 204.198 This argument has been raised by some anti-censorshipfeminists who prefer to combat the social implications ofmisogynistic, pornographic film publication, for example, byencouraging private enterprise to publish or to screen so called"woman-positive, woman-produced" films: see L. Steele, "A CapitalIdea: Gendering in the Mass Media", in Women Against Censorship(Vancouver: Douglas & McIntyre, 1985) 58 at 75. Although thissuggestion adroitly addresses the libertarian, free-speech concern111a "process that gives sexuality its male supremacist meaning" and"is therefore the process through which gender inequality becomessocially real". 199 And in reference to the typical pornographicimage of woman as passive, receptive, and sexually availableMacKinnon states,The vulnerability of women's projected sexualavailability is victimization. The acting that women areallowed is asking to be acted upon. Play conforms toscripted roles, fantasy expresses ideology not exemptionfrom it, and admiration of physical beauty becomesobjectification... .The experience of the (overwhelmingly)male audiences who consume pornography is therefore notfantasy or simulation or catharsis but sexual reality:the level of reality on which sex itself largelyoperates. To understand this does not require noticingthat women in pornography are real women to whomsomething real is being done. It does not even requireinquiring into the systematic infliction of pornographicsexuality upon women, although it helps. The aestheticof pornography itself, the way it provides what those whoconsume it want, is itself the evidence. Pornographyturns a women into a thing to be acquired and used. 2()"at the heart of the Butler decision, for example, it nonethelessassumes that "woman-positive" films will entice a sufficientlybroad audience (male and female), and therefore engender asufficient societal impact to counter-act the deliteriousimplications of 'man-positive, women-negative' pornography.Ironically, one way in which "woman-positive" films could reach asufficiently wide audience to have the desired counter-effect (thatis, from a feminist point of view) would be to incorporate suchfilms in the core public education curricula. This is 'ironic', Isay, because it requires that anti-censorship feminists becomedependent on a paternalistic state in precisely the way that theyare critical of pro-censorship feminists.MacKinnon, Toward A Feminist Theory of the State, supra,note 67 at 198.200 MacKinnon, Toward A Feminist Theory of the State, supra,note 67 at 198-99 (footnotes omitted).112If one accepts MacKinnon's argument that pornographicpublication plays a significant role in ensuring sexual inequalityon a social scale then it is not difficult to conclude that Ms.McCormack is simply wrong to say that the prohibition of obscenityin the Canadian Criminal Code (and as interpreted in Butler)"accomplishes nothing in the struggle for equality and reinforcesthe dependency of women on a patriarchal state." 2°1 Although, asI have already suggested in Chapter 3, I am not sure that women orfeminists want any kind of equality with men (real, social,substantial or formal) as much as they want real independence frommale forms of political and social control, at least thefulfillment of the latter goal depends upon a transformation in theway men view women in all aspects of social life. And this lattergoal would not appear to be advanced by entrenching theconstitutional right to publish images of women as mindless objects201 I must note here that I am aware that, since Butler, ithas been primarily lesbian literature ranging from pornography,through romance novels, to academic treatises concerning lesbiansexuality, that has been the target of Canadian anti-obscenity lawenforcement agencies. I see this situation as clearly unfortunate,especially in light of my earlier suggestion that exclusivelylesbian pornography or erotica liberates women from a self-image orself-representation which is focussed on the male penis, and whichtypically involves male domination and violence. However, there isnothing inherently discriminatory about the Butler decision whichmandates the oppression of pro-lesbian literature (except perhapswhere that literature involves depictions of sadism, but then intheory the scope of the Butler decision applies equally todepictions of heterosexual sadism), and one can only make effortsto ensure that homophobic attitudes become absent from futurejudicial determinations involving the legality of homosexualliterature.113for the satisfaction of male prurient interests. 202It is probably safe to say that within the entire common lawsystem, scientific methodology and rationality provide the norm forjudicial determination. For nowhere in the common law traditiondoes a judge pretend to determine a legal issue irrationally, orwithout appeal to some culturally validated test (whethersubjective or objective) or normative system. Even JusticeSopinka's decision to overlook the inexactitude or uncertainty ofthe causal relationship between pornography and violence against"2 Admittedly, there are some female writers and producers ofpornography who see anti-pornography regulation as a restrictionnot only of women's freedom of expression but particularly women'sfreedom of sexual expression: see, for example, S. Tisdale, "TalkDirty to Me [:] A woman's taste for pornography", Harper's Magazine(February 1992) 37 at 44-45.Tisdale's argument is especially interesting for our purposesbecause it suggests that women's subjectivity - the kind thatMadame Justice Wilson discusses in Morgentaler and the kind that Ihave explored in the context of the Jacob case - depends uponwomen's ability to express themselves in ways that they deemimportant (for example, through erotica or pornography). I cannotdisagree with this argument, and it is certainly consistent with mygeneral critique of the sexual exclusivity of patriarchy - that is,that patriarchy is a social institution which is contingent uponthe denial to women of an effective historical and political voice.Nonetheless I retain my concern that the publicized message of muchheterosexual pornography and erotica (unlike the message conveyedby the behaviour of Ms. Jacob) is female inferiority and male-domination across various social strata. Where that message isvaried, for example, so that the male actor is portrayed, inProfessor Smith's words, as the "supplicant" for female sexualsatisfaction (Neurotic Foundations, supra, note 14 at 179) or the"consort" to the female (ibid. at 235, 261), it is conceivable thatpornographic publication would not have a deliterious impact oneither women's or men's lives. However, the central concern heremust be that whatever the act of sexual expression might be, thatit does not in and of itself promote hatred or sadism againsteither sex, and it should be careful in this respect not to over-evaluate or fetishize particular body parts to the point ofdiminishing or devaluating the personal needs and desires which areso intimately linked to the body.114women is ultimately grounded in an abundance of empirical data and"social science evidence" 2°3 which is carefully weighed andtested, sifted and selected, and then found to be reliable for thepurposes at hand. In this respect, Justice Sopinka's predilictionfor empirical evidence and objective analyses concerning questionsof obscenity is no different in the end than Judge Payne'sprediliction for scientific analyses of female 'anatomy' and'sexuality' as being somehow appropriate for determining issues ofindecency. Justice Sopinka makes a momentary grand gesture but inthe final analysis simply draws the magnifying glass further awayfrom the relevant subject (or object) matter.203 R. v. Butler, supra, note 104 at 502.115CONCLUSIONFollowing Evelyn Fox Keller's suggestion that the radicaldichotomy between subject and object describes "no worldlyrelation" , 204 it is perhaps time to accept scientific models ashaving limited application to issues of human sexuality. This isnot to suggest that certain scientific metaphors cannot bear areformative or pragmative function in law as well as in otherculturally dominant discourses. But one must continually askwhether rational distinctions are necessarily suited to thepractical demands of human freedom and autonomy and the irrationaldesires of the human anatomy? For my purposes I have taken thescientific discourses of psychoanalysis and biology very seriously.As I have already stated, as an academic it is difficult if notimpossible not to think and argue scientifically. But thislimitation does not necessarily pose a conceptual or methodologicalproblem for my thesis in the end. I believe that the discourses ofbiology and psychoanalysis, as well as those of certain kinds offeminism, can be applied in the legal arena in a way which canassist in the reduction of male violence against women in general.Indeed, these discourses enable one to interpret Judge Payne'spaternalistic approach to the issue of male violence against womenin Jacob as pathological, not simply as wrong or unfortunate. Theyalso help to understand the kind of community ethos portrayed204 Keller, Reflections on Gender and Science, supra, note 66at 79.116throughout his judgment as physiologically inhibited andpsychologically unhealthy, and possibly intellectually biased infavor of chauvinistic religious doctrines. At least they allow usto question the health and sanity of a legal regime whose self-proclaimed standards of moral taste and decency does not permitwomen to overcome the oppressive sensation of 30 degree celsiusweather by removing their shirts, but which simultaneouslyacquiesces in the private commodification and public representationof dismembered, mindless women.Although the dominant pairs of conceptual opposites which Ihave utilized are clearly steeped in scientific metaphor, they donot necessarily have to become the norm for judicial analysis. Ihave suggested that more respect could be paid by the courts tofemale physiology, and I have attempted to show how this can bedone within our preexisting legal conceptual framework. MadameJustice Wilson (as she was then) has done her part in this respectby subverting the importance of institutionalized equality inNguyen and by emphasizing the inviolability of women's bodies inMorgentaler. And the Honourable Justice Sopinka has done his partin rejecting the need for strict causality in Butler. By stressingthe need for a collective effort on the part of the judiciary torecognize the profound societal implications of the female body,however, I do not mean to say that less respect should be given tomale physiology. The historical problem of violence against womenand our acculturated misogyny does not depend on the balancing ofsome kind of bodily equation, although it will likely depend on the117practical "feminizability" of men in genera1, 2°5 and an increasedpresence of female judges, lawyers, and politicians and legislatorsthroughout our society. If and when this situation occurs, so thatwomen acquire an effective political voice, I would expect that thelaw might overcome its rhetorical concern for objectivity andinstead recognize the reformative potential of limited judicialdiscretion and unsuppressed personal expression. For it is withinthe context of this post-paternalistic, post-pornographic legalorder that I imagine the potential benefits to women and men of apronounced return to subjectivity in law. In this hypothetical,futuristic context there is at least no reason to fear that thelegitimate exercise of a male or female judge's personal desirewill entail the same degree of oppression that many women haveexperienced at the hands of an all-male legal institution. Evenhere, the crux of the matter will consist in the possibility formutual recognition between and across both sexes that sexualtension, frustration, and possibly antagonism - in short, sexualpolitics - is not necessarily amenable to law or order. For therole of criminal law in the present context is very limited. Itmust not attempt or purport to control human sexuality so much asit should encourage the free expression of it, short, of course, ofinvolving physical and psychological harm to non-consenting or non-willing individuals. By gradually unloading itself of its205 I have borrowed this expression from Ann Scales, whoemployed it in a Faculty Seminar entitled "The Iconography ofOppression", at the Faculty of Law, University of British ofColumbia, on March 4, 1993.118puritanical pretences and its scientific claims to objectivity thestrong arm of the criminal law may in turn acquire sufficientflexibility to meet the ever-fluctuating demands of an increasinglyvisible and tangible pluralistic society.119BIBLIOGRAPHYBenjamin, Jessica.^"The Bonds of Love: Rational Violence andErotic Domination." In The Future of Difference, eds. HesterEisenstein and Alice Jardine. New Brunswick: RutgersUniversity Press, 1985.Benjamin, Jessica. The Bonds of Love: Psychoanalysis, Feminism,and the Problem of Domination. New York: Pantheon Books,1988.Bloom, Allan. The Closing of the American Mind. New York: Simon& Schuster Inc., 1987.Chasseguet-Smirgel, Janine. "Feminine Sexuality: An Interview withJanine Chasseguet-Smirgel." 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