The place of the unconscious in critiques of systematic prejudice: Lessons from MacKinnon and Critical Race Theory

In this paper, I argue that so called “systematic critiques” of the liberal conception of law in Catherine MacKinnon and Critical Race Theory which have traditionally been seen to reject liberalism should really be understood as subjecting the liberal conception of law as impartial and just to an immanent critique. Critical Race Theory and MacKinnon both seek to unmask the seemingly neutral subject which authorizes law as in reality a hegemonic and oppressive subject. They also employ the tools of liberalism, demanding justice and equal protection under the law. I argue that the apparent contradiction of their demands can be understood by seeing the subject itself as combining these contradictions at the level of the relation between the unconscious and consciousness. The ego strives for rational self-organization while the unconscious contains sedimented socially transmitted prejudice. There is thus room within both for the struggle for freedom and justice espoused by liberalism at the conscious level as well as for the unconscious perpetuation of prejudice and domination. I conclude that MacKinnon’s work and that of CRT show that liberalism must not be abandoned as post-structuralism does, but that liberals is in fact aided by its critics.