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PHL271H1 Chapter Notes -Living Wage, Positive Liberty, Basic Norm

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Deirdre Flynn

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MacKinnon, ‚The Liberal State‛, p.257
General Thoughts:
- ‚MacKinnon sees the law as a potentially powerful medium of progressive change, one that has
historically not been in woman’s hands and has largely sided against women.‚
civil society: existing social order; you are constrained to your current position in society
Negative State: the view that government best promotes freedom when it stays out of existing social
arrangements (preserves negative freedom in that it does not limit any group)
Regarding Feminism:
- ‚Feminism has a theory of power but lacks a specific theory of state form‛2
- Marx says that changes within a political system only emancipate the individual in so far as any
changes are within the existing social order (revolution on this level was considered by him to be
‚partial, merely political revolution‛2
‚The Marxist theory of inequality has been its theory on politics‛2
This is significant because it implies that Marxism, since it does not have its own theory
on politics, believes that the only kind of politics that can exist are unjust systems
‚The state has a definite class character, is definitely capitalist or socialist, but
also has its own interests, which are to some degree independent of those of the
ruling class and even of the class structure.‛
Genius: ‚is the state essentially autonomous of class but partly
determined by it, or is it essentially determined by class but not
exclusively so?‛
- MacKinnon says that she has not found the law to be simply ‚bourgeois‛, meaning not simply
governed by those in power, however she says that she has found it to be ‚determinately driven
by interest‛
- Feminism has developed a ‚theory on social determination specific to sex‛ but it has not
confronted ‚the relationship between the state and society [...] it lacks jurisprudence, [...] a theory
of the substance of law, its relation to society, and the relationship between the two.‛4
Such a theory of jurisprudence would demonstrate how the law acts in a manner
that is gendered, resulting in ‚feminist practice oscillat[ing] between a liberal
theory of the state [...] and a left theory of the state‛
Liberal theory because it means that the state is ‚predispose to no substantive
outcome, or manipulable to any ends, thus available as a tool that is not fatally
twisted.‛ 4
Leftist theory because sometimes ‚the state becomes a tool of dominance and
repression, the law legitimating ideology‛4
The reason for the oscillation is because both ideologies present
something of value and a prohibiting flaw. Firstly, liberalism presents
the state as ‚a primary tool of women’s betterment and status
transformation‛ however it does not allow for the analysis or argument
that the state in and of itself is inherently male. The Marxist state on the
other hand recognises the structure as male however ‚women are left to
civil society‛, meaning that their pursuit of a just social and political (and
by extension legal) system is inherently fruitless.4
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