Un poquito de C. MacKinnon, de su Capítulo 8, Liberal State, en su Toward a Feminist Theory of the State (1989), para nuestro análisis de la Propiedad y las mujeres en el Estado liberal:
" the law sees and treats women the way men see and treat women. The liberal state coercively and authoritatively constitutes the social order in the interests of men as a gender—through its legitimating norms, forms, relation to society, and substantive policies. The state’s formal norms recapitulate the male point of view on the level of design. In Anglo-American jurisprudence, morals (value judgments) are deemed separable and separated from politics (power contests), and both from adjudication (interpretation). Courts, forums without predisposition among parties and with no interest of their own, reflect society back to itself resolved. Government of laws, not of men, limits partiality with written constraints and tempers force with reasonable rule-following.
At least since Langdell’s first case-book in 1871, this law has aspired to be a science of rules and a science with rules, a science of the immanent generalization subsuming the emergent particularity, of predication and control of social regularities and regulations, preferably codified. The formulaic tests
of doctrine
aspire to mechanism, classification to taxonomy, legislators to Linneaus. cognizing social conflicts as if collecting empirical data; But these demarcations between morals and politics, science and politics, the personality of the judge and the judicial role, bare coercion and the rule of law, Relatively seamlessly they promote the dominance of men as a social group through privileging the form of power—the perspective on social life—which feminist consciousness reveals as socially male. The separation of form from substance, process from policy, adjudication from legislation, judicial role from theory or practice, echoes and reechoes at each level of the regime its basic norm: objectivity.
Formally, the state is male in that objectivity is its norm. Objectivity is liberal legalism’s conception of itself. It legitimates itself by reflecting its view of society, a society it helps make by so seeing it, and calling that view, and that relation, rationality. Since rationality is measured by point-of-viewlessness, what counts as reason is that which corresponds to the way things are. Practical rationality, in this approach, means that which can be done without changing anything. In this framework, the task of legal interpretation becomes Objectivist epistemology is the law of law. It ensures that the law will most reinforce existing distributions of power when it most closely adheres to its ideal of fairness. Like the science it emulates, this epistemological stance cannot see the social specificity of reflexion as method or its choice to embrace that which it reflects. Such law not only reflects a society in which men rule women; it rules in a male way insofar as Law, as words in power, writes society in state form and writes the state onto society. The rule form, which unites scientific knowledge with state control in its conception of what law is, institutionalizes the objective stance as jurisprudence.
The state is male jurisprudentially, meaning that it adopts the standpoint of male power on the relation between law and society. This stance is especially vivid in constitutional adjudication, thought legitimate to the degree it is neutral on the policy content of legislation. The foundation for its neutrality is the pervasive assumption that conditions that pertain among men on the basis of gender apply to women as well—that is, the assumption that sex inequality does not really exist in society. The Constitution—the constituting document of this state society—with its interpretations assumes that society, absent government intervention, is free and equal; that its laws, in general, reflect that; and that government need and should right only what government has previously wronged. This posture is structural to a constitution of abstinence: for example, Congress shall make no law abridging the freedom of … speech.
Those who have freedoms like equality, liberty, privacy, and speech socially keep them legally, free of governmental intrusion. No one who does not already have them socially is granted them legally".
