Sex, Culture, and Justice: The Limits of Choice (17 page)

Fraser’s approach, though useful and insightful, needs a clearer statement of its prescriptive implications. In particular, the question of the appropriate response to difference has not been answered: do we affirm it, attempt to transcend and transform it, or some combination of the two?

Reconciling Differences

I have argued that it is necessary to take into account the contingent and socially formed nature of identity, and to recognize the significance of cultural or religious groups in the public sphere, without at the same time reifying group specificity or succumbing to demands for group (as opposed to individual) autonomy. Does this position mean that I am committed to cultural homogeneity? It might appear that I am, for if there is to be a single set of values imposed universally by the state, and if social conditions are a crucial determinant of individual prefer- ences and perceptions, the result will be a homogenous, unthinking, nonautonomously liberal mob.

There are several answers to this critique, some of which I have already dealt with. The first is to restate the earlier argument that even an imposed liberalism allows more room for autonomy than does any other imposed form of state. It is in the nature of liberalism that, even when it is imposed, there is still great room for diversity.
80
This is not because liberalism ought to confine its values to the political sphere and leave people unprotected from inequality and imposition in the private sphere. Rather, it is because the
substantive
liberal values of equality, freedom, and autonomy are themselves the conditions of di- versity. For insofar as individuals’ ability to choose their way of life is

1. Will Kymlicka, who criticizes some versions of liberalism for taking inadequate ac- count of multiculturalism, nevertheless argues that liberalism necessarily fosters diversity. Thus he writes that ‘‘diversity is the inevitable result of the rights and freedoms guaranteed to liberal citizens’’ (‘‘Western Political Theory and Ethnic Relations in Eastern Europe,’’ 18).
   

   genuinely guaranteed and not just formally allowed, it is likely that individuals will make different choices. The approach I have outlined, and which is developed throughout this book, prevents both the en- forced homogeneity of fundamentalism or communitarianism, and the enforced diversity of a political liberalism that allows groups effectively to imprison their members. It is true that some cultures will have to change in certain ways, and some cultures will die out without en- forced membership. These changes, however, are to be welcomed rather than regretted, and are certainly preferable to what could come of an absolute commitment to diversity at any cost.
   

   In any case, under my proposals individuals will still find them- selves brought up within distinct cultures, and will still have prereflex- ive commitments to those cultures. Cultural diversity will not be de- prived of this method of transmission. I argue only that, as individuals are inevitably (though not totally) formed by their cultures, and as indi- viduals will find exit from their cultures difficult for many reasons, there are limits to the kind of cultural practices that groups may legiti- mately engage in. These limits are imposed by justice. A group that contains members who did not enter by autonomous choice (in other words, a group in which children are born and raised) may not impose unjust norms.
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   No group may hinder its members’ ongoing autonomy by denying freedom of exit (though freedom of exit is not in itself sufficient to secure autonomy). These limits do not mean that groups may not develop and teach their own beliefs, art forms, social arrange- ments, cuisine, dress, or worship. Nothing in my approach precludes that which is appealing in Young’s evocative utopia of city life, where strangers with different ways of life intermingle and enter each other’s territory, savoring the change in atmosphere. A society in which the liberal state regulated all groups according to substantive ideals of jus- tice would still be one in which we could enjoy walking through differ- ent ethnic communities, eating different ethnic foods, and engaging with ‘‘a different crowd of people.’’
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   Nothing in my approach, in short, threatens the benefits of city life which Young identifies: social differ-
   

2. Groups that are composed entirely of adults who entered autonomously, and into which no children are brought, have greater leeway to follow hierarchical practices. However, such groups may not render people unable to leave for any reason over which the group has a degree of control: membership in a group must
   remain
   autonomous. This issue is dis- cussed at greater length in Part Two.
   

3. Young,
   Justice and the Politics of Difference
   , 239.
   

entiation without exclusion, variety, the eroticism of encountering dif- ferent cultures, and opportunities for public discussion and disagree- ment. We do need to respect and value difference, but we need to do so only as a tool for respecting and valuing individuals and their auton- omy and equality. We may and should respect individuals’ ability to choose and lead very different ways of life, without at the same time refusing to respect them as persons of equal intrinsic worth, whose capacity and need for choice continues.

Conclusions

We are now in a position to see how liberal normative values could be reconciled with insights about the limits of individual autonomy and theories of social construction. First, we need to recognize that individ- uals are strongly formed and constrained by their social circumstances, and that this constraint increases the need for liberation. Moreover, the difficulty involved in overcoming social influence means that individu- als cannot be expected to do so unaided: structural change is necessary, often in the form of state action.

Second, however, the idea of social construction suggests that indi- viduals can never be completely free from social influence: the radical autonomy which Fraser advocates is difficult if not impossible to achieve. As a result of this, and of the need to prevent the state from becoming overbearing, state action must focus on freeing individuals from
unjust
social influence: that which harms or disadvantages them. The overall goal is universal autonomy, but the state has a greater role to play in issues of injustice than it has to play in general influence.

Third, this goal of universal autonomy does not amount to the impo- sition of one way of life; rather, it precludes the imposition of any particular way of life. As such, it is compatible with diversity, and is likely to foster it. A wariness of grand narratives as counter to auton- omy or diversity should not lead to a wariness of the liberal grand narrative, for it is best suited to protection of these values. However, this does not mean, fourth, that there can be no criticism of cultural or individual narratives or ways of life. Normative criticism is an essential tool of justice.

The two problems that social construction might pose for my ap- proach can be answered as follows. The problem of the contradiction

between the universal status claimed for liberal values and the fact that liberalism is a particular, situated doctrine was answered with the claim that liberalism is particular in origin and universal in application. Although liberalism does not start from neutral premises or unprob- lematic consensus, it must apply to everybody, as a matter of consis- tency and of desirability. The problem of group difference was an- swered by the claim that, although difference can be and remains valuable, and although no one should be excluded simply for being different, still difference can run counter to justice. It will not always be to the benefit of disadvantaged groups to entrench group differ- ences; and even when it is, respect for group difference should not override respect for individuals.

PART TWO

liberalism
,
culture
,
and autonomy

4

all must have prizes
:

the liberal case for interference in cultural practices

When liberal theory uses consent as if it means freedom—to refer to some unburdened, open, and unforced selection—it often applies the term in situations that better demonstrate acquiescence in inequality and acceptance of what one has little realistic possibility of refusing. Calling inequality freedom promotes inequality.

—
catharine m
ac
kinnon
, ‘‘‘The Case’ Responds’’

If choices are constrained by injustice, their protection need not represent liberty at all.

—
cass sunstein
, ‘‘Neutrality in Constitutional Law’’

Liberals like choice. Human flourishing, they believe, is to some degree dependent on individuals’ ability to choose their ends and actions. More precisely, liberals often place choice at the heart of their concep- tion of
justice.
For John Rawls, a key function of justice is to enable individuals ‘‘to form, to revise and rationally to pursue’’
1
their concep- tion of the good. The role of choice thus understood is so crucial to Rawls’s theory of justice that its protective principle—the equal basic liberty principle—is given lexical priority.
2

Although liberals are clear that choice is crucial to justice and indi- vidual flourishing, they sometimes fail to note that an individual acting according to her own choices will not always flourish, that she will not always enjoy the freedom and equality crucial to justice. In this chapter and throughout Part Two, I build on the account of social construction developed in Part One and show that even outcomes that result from the choices of the individuals concerned may be unjust.

In this chapter I develop a specific and fairly narrow approach, in

1. John Rawls,
   Political Liberalism,
   19.
   

2. In Rawlsian terms, if principle X is lexically prior to principle Y, then principle Y must not be implemented in any way that would violate principle X. In other words, the require- ments of principle X take absolute precedence.
   

   which there are two conditions under which liberals should not rely on individuals’ choices as the determinant of justice. I call these condi- tions
   disadvantage
   and
   influence
   . Together, they express the idea that if an individual is encouraged to make choices that disadvantage her, then the ensuing inequality is unjust—particularly if the disadvantage is significant and enduring, and if the encouragement comes from those who make different choices and so end up better-off. Egalitarian liberals, I argue, should be particularly worried about such outcomes, and should revise and reduce the role of choice in determining what is just.
   

   My argument in this chapter has particular relevance to group-based outcomes. In Chapter 3, I discussed the role that group difference might play in developing a liberal normative theory that is sensitive to social construction. In this chapter I focus much of the discussion on Brian Barry’s
   Culture and Equality.
   In that work Barry defends the uni- versal validity of core liberal values and argues that the demands of cultural or religious groups within wider liberal societies must not take precedence over those values. Barry is one of the few, and certainly the most prominent, critics of multiculturalism in the name of universal egalitarian liberalism. However, he is reluctant to interfere with inter- nal group norms, even when they conflict with liberal principles of freedom and equality, if individuals are free to leave those groups and so could be said to have chosen to abide by those norms. I contend, however, that the fact of social construction means that it will often be misleading to describe adherence to internal group norms that treat members unequally as freely chosen in a way that excuses the outcome. As a result, many unequal internal norms of cultural and religious groups should be restricted by a liberal state.
   Contra
   Barry, liberals have to be fully committed to the value of autonomy, and so cannot consistently ignore significant and unequal restrictions on individuals’ opportunities to realize it. Liberals must prioritize individual autonomy over group autonomy, and so I develop suggestions for an institutional framework, which I call the equality tribunal, to take this prioritization into account. I then consider and ultimately reject Ayelet Shachar’s alternative feminist multiculturalist proposals for institutional reform.
   

   The Insufficiency of Free Choice
   

   In
   Culture and Equality,
   Barry considers group-based outcomes in rela- tion to what he calls the Dodo’s Dictum. Barry’s discussion of the
   

   Dodo’s Dictum is a rare example of Barry not being liberal enough— that is to say, ceding too much to cultural values and awarding too little to individual human flourishing. In general Barry is keen, and rightly so, to reiterate the liberal commitment to protecting individuals’ ability to defend themselves against state and social pressure to conform. In discussing the Dodo’s Dictum, however, he lowers the barriers against such pressure. The reason, I contend, is his unwillingness to take the phenomenon of social construction into account.
   

   First, what is the Dodo’s Dictum? Barry invokes the words of the dodo in
   Alice in Wonderland,
   who declares, ‘‘Everybody has won, and
   all
   must have prizes.’’
   3
   Barry likens this slogan to the belief of multicul- turalists such as Iris Marion Young that, in Barry’s words, ‘‘different ways of life pursued by different groups should have no effect on their collective success.’’
   4
   Barry profoundly disagrees with such a proposal. He cites the example of gender difference and states that while liberals might regret a situation in which women do not make the same choices as men once given the same rights, they need not suspect that any injustice lurks behind such an outcome. As Barry says, ‘‘What must be emphasized is that it is perfectly possible to believe that justice demands equal rights and opportunities for men and women while at the same time neither hoping nor expecting that this will result in the career choices of women tending to become statistically indistinguish- able from those of men.’’
   5
   

   It is indeed possible to believe that justice and equality do not re- quire identity of choices or outcomes. However, liberals ought to be interested in why there should be consistent discrepancies between the choices made by members of different groups. Consider Barry’s exam- ple of gendered career choices. He accepts that some such choices could be the result of discrimination in education or recruitment, and deplores such discrimination. Liberal action is, however, limited to the elimination of discrimination. As he puts it: ‘‘Suppose . . . that women were as highly qualified as men but disproportionately chose to devote their lives to activities incompatible with reaching the top of a large corporation. An egalitarian liberal could not then complain of injustice if, as a result, women were underrepresented in ‘top corporate jobs.’’’
   6
   The obvious example of an activity that might prevent women from
   

3. Lewis Carroll,
   Alice’s Adventures in Wonderland
   , 38.
   

4. Barry,
   Culture and Equality
   , 95. 5. Ibid., 92.