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562Notes to pages 416-42448. As in Habermas, The Theory of Communicative Action, trans. T. McCarthy, 2 vols.(Boston, 1984, 1987), 2:361-73; there I proposed a distinction between law asinstitution and law as medium-contrasting socially integrative norms with thelegal forms of the political system-which cannot be maintained. On this, see K.Tuori, "Discourse Ethics and the Legitimacy of Law," Ratio juris 2 (1989): 125-43.49. U. Preuss, "Verfassungstheoretische Uberlegungen zur normativenBegriindung des Wohlfahrtsstaates," in C. SachBe and H. T. Engelhardt, eds.,Sicherheit und Freiheit (Frankfurt am Main, 1990), pp. 125f.50. Bockenforde characterizes such a "democratic-function theory of basicrights" as follows: "Basic rights receive their meaning and their importance inprinciple as constituent factors of a free process . . . of democratic willformation."See his "Basic Rights: Theory and Interpretation," in BockenfOrde,State, Society, and Liberty, trans.]. A. Underwood (New York, 1991), p. 192.51. I. M. Young, justice and the Politics of Difference (Princeton, 1990), p. 25.52. Young, justice, p. 39.53. Young, justice, p. 76.54. In comparison with theories that highlight distribution, the focus of feministlegal theory on power has this advantage: in emphasizing the emancipatorymeaning of equal rights, one locates the normative core of the system of rightsin the autonomy both of the individual and of the associated citizens. To be sure,the feminist analysis of power sometimes has the tendency to stylize the sexes asmonolithic entities, similar to the way in which orthodox Marxism objectifiedsocial classes into macrosubjects. C. A. MacKinnon, Towards a Feminist Theory ofthe State (Cambridge, Mass., 1989), which is otherwise quite instructive, is notentirely free of this tendency.55. D. L. Rhode, justice and Gender (Cambridge, Mass., 1989), pp. 61f.56. On the history of feminism in America, see Rhode, justice and Gender, pt. 1.57. Rhode, justice and Gender, p. 126: "Those interrelated inequalities, coupledwith shifting marriage, employmentandfertilitypatterns, have contributed to anincreasing feminization of poverty. Although official classifications of povertyare an imperfect index of actual need, they can measure relative status. Womenof all ages are twice as likely as men to be poor, and women who are single parentsare five times as likely. Two thirds of all indigent adults are female, and two thirdsof the persistently poor live in female-headed households. Some 90 percent ofsingle-parent families are headed by women, and half of those families are underthe poverty line. Among minorities, the situation is worse; women head threequarters of all poor black families and over half of all Hispanic families."58. Rhode, justice and Gender, p. 82; emphasis added.59. Rhode, justice and Gender, pp. 97f.60. See MacKinnon, Towards a Feminist Theory of the State, p. 219: "Doctrinallyspeaking, two alternative paths to sex equality for women exist within the