MacKinnon points out that traditional equality is based on an Aristotelian notion of equality – the treatment of likes alike and unlikes unalike. She then argues that the Aristotelian notion of equality fails to recognize that the subordination of groups and the existing hierarchy in a society results in the perception of differences as natural. In MacKinnon’s view, the opposite of equality is a hierarchical social construct, not difference. Therefore, she argues for the dismantlement of group hierarchy and the promotion of equality of status for historically subordinated groups. She proposes equality jurisprudence that defines sex equality under the law as opposed to traditional notions of equality, which she views as abstract.
I agree in principle with MacKinnon’s substantive approach to the jurisprudence of sex equality under the law. However, I fundamentally disagree with her notion that the only way to promote equality of status for historically subordinated groups is to dismantle group hierarchy. If the existing hierarchy in society does, in fact, result in the perception of differences as natural, then MacKinnon and others who may agree with her ought to be able to demonstrate it within the existing group hierarchy. If they cannot demonstrate it, then they cannot reasonably expect to succeed in overturning common law. As a negative cannot be proven, it is up to MacKinnon and her followers to prove the claim they make against the current situation.