Objectivity is gender biased and enforces gender hierarches

Bender is not alone in her assessment of the purportedly neutral, dispassionate, objective legal standard. Other commentators have also critiqued legal objectivity, arguing that other legal standards are closely tied to “masculine” themes of dominance and subordination. In this essay, I do not propose to review neither all of these standards, nor all the debates against (and among) them. However, I will touch on one of the most prominent and influential critiques of legal objectivity, which has been offered by Catherine MacKinnon.68 MacKinnon’s work has a direct bearing on feminist critique of objectivity outside of law, tying the debate in law to that in other disciplines, including the question of objectivity in science.

MacKinnon draws a direct correlation between objectivity and objectification; she has argued that “to look at the world objectively is to objectify it.”69 To view something objectively is to view it as having by its nature certain characteristics.70 Frequently, the “natural” characteristics of the object that are foregrounded by the observer are those that are useful to the observer.71 The objective stance thus allows the observer to attribute to the object the attributes desired by the observer.72 Here, the objective trope of distance and of neutrality becomes important; the purported separation of objectifier and object allows the objectifier to assert detachment, and therefore impartiality, when observing the attributes of an object.73 The character attributed to the object is therefore asserted to be its innate and natural character rather than that projected by the observer.74

In MacKinnon’s view, objectivity therefore masks or hides the power of the observer: the power to assign certain attributes to the objects of his consideration.75 MacKinnon argues that this facade in turn allows objectivity to be used to perpetuate social conditions of hierarchy;76 the dominant social order can be characterized as “natural” rather than created.77 She is particularly concerned that an objective standpoint can be so used to create and perpetuate subordinate status for women.78 Objectivity thus fosters the view that the social differences between men and women are viewed as objectively natural or characteristic of the sexes, rather than socially constructed. Objectivity becomes a key trope in creating and enforcing gender.79

This critique of objectivity may be helpful in a number of respects to illuminate the relationship between several elements we have already encountered in thinking about legal standards: the move from objectivity to objectification, the role of distance and impartiality, and a commonality between objectivity in science and objectivity in law. But in thinking about patent standards, at some point it may perhaps be necessary to part company with MacKinnon’s line of argument. In all of her work, MacKinnon is primarily and famously concerned with the problem of sexual violence against women; she argues that a pervasive culture of objectification is the cultural antecedent that leads to rape and other forms of sexual assault.80 This concern colors her analysis at every juncture. MacKinnon appears to claim that all acts of domination entail a sexual aspect: “The act of control,” she says, “. . . is itself eroticized under male supremacy.”81 Objectification is a mechanism of control, and control or dominance is in her analysis always erotic.82 This stance may pose something of a problem in drawing upon MacKinnon to consider objective standards in patent law, as it implies that the material or, ultimately, financial control conferred by patent law’s objective standards part of the patriarchy’s overall culture of erotic dominance. Dominance of the material world from which the invention is drawn, of the materials or processes that comprise the invention, of licensors and users of the invention, is on MacKinnon’s analysis ultimately grounded in a standpoint of sexual subordination.83

This focus by MacKinnon on eroticization has been controversial84 and seems dubious the farther one gets from areas of law that deal directly with sexualized behaviors. Certainly it is not difficult to see how the theory applies to employment discrimination or to the law of rape. But it is problematic as a general theory of objectivity; the theory seems better suited to criminal law or family law than to intellectual property. One might well question the extent to which an objective standard in patent law implicates sexual domination of women—the assertion seems reminiscent of the Freudian penchant for seeing sexuality everywhere, and one is reminded of the admonition that “sometimes a cigar is just a cigar.”85 Similarly, it may be that sometimes subordination and discrimination are just subordination and discrimination, without necessarily being erotic subordination and discrimination.

But even setting aside this controversial dimension of MacKinnon’s views, her critique remains a powerful indictment of the objective stance, and with implications beyond legal objectivity. Under her analysis, any field that purports detachment, neutrality, or objectivity, is an endeavor where power relationships are being masked. The implication is that objectivity, as represented in such contexts, is impossible, leads to false or mistaken beliefs about the world, and indeed, constitutes a method of domination.86 For our purposes here, this would be true not only of objective legal standards, but also of the objective standards purported for scientific observation and experimentation; as MacKinnon asserts, “What is objectively known corresponds to the world and can be verified by being pointed to (as science does) because the world itself is controlled from the same point of view.”87 These same effects of objective standards have been explored by feminist scholars as well.