Read Sex, Culture, and Justice: The Limits of Choice Online
Authors: Clare Chambers
Tags: #Philosophy, #Political, #Political Science, #Political Ideologies, #Conservatism & Liberalism, #Social Science, #Anthropology, #Cultural, #Feminism & Feminist Theory, #Women's Studies, #Gender Studies
another in pursuit of their favored remedy ignores the fact that law tends to be invoked only over a
dispute,
so that satisfying one party necessarily fails to satisfy the other. In other words, if individuals may opt out of a group’s jurisdiction simply when a ruling goes against them (i.e., when they do not agree with the ruling), there will be a see- saw effect between jurisdictions as each individual rejects the jurisdic- tion which produces the ruling that disadvantages them. There will be no final solution and no real respect for the laws of either jurisdiction. On the other hand, if individuals may opt out only when a ruling is in some way unjust, for example, because it epitomizes inequality, that raises the question of why the unjust laws of groups are recognized in the first place and why they remain in place for other individuals.
Shachar might answer that the mechanism of
competition
inherent in her approach means that the unjust laws do not, over time, remain in place for other individuals. She states that ‘‘it is in the self-professed interest of the group and the state to vie for the support of their constit- uents’’
80
and argues that, because groups will not want to lose members who opt out in favor of state jurisdiction, they will have a strong incen- tive to modify or abandon any unjust or unequal laws.
81
The implica- tion is that groups want to increase or maintain their membership numbers as a top priority, and that group leaders value membership quantity over doctrinal purity. However, and this is a further problem with Shachar’s account, such an implication clearly ignores the fact that many groups, particularly the most fundamentalist and oppressive religious groups, value many or all of their practices over and above their membership numbers. Those groups would
not
wish to retain members who did not fully support certain tenets, and certainly would not wish to change those tenets so as to retain such members. Indeed, as Shachar’s own examples demonstrate, many groups maintain re- strictive kinship systems explicitly designed to limit the group’s mem- bership and safeguard its purity. Thus, while groups clearly do experi- ence some pressure to maintain membership, as was described in the case of Catholicism, this pressure will not always be the sole, or even the most important, consideration, and cannot be relied upon as the source of doctrinal liberalization.
Finally, the idea that the paradox of multicultural vulnerability will
80. Ibid.
,
118.
81. Ibid.
,
138–43.
be overcome by individuals opting out of a group’s jurisdiction looks very much like a reliance on the liberal safeguard of freedom of exit, and shares the problems of freedom of exit. Requiring an individual to ‘‘opt out’’ of a group in order to access her equal rights subjects her to a ‘‘wrenching decision’’ between her equal status and her way of life; demands that she consciously reason about, and reject strongly, her social conditioning and identity; estranges her from the group and por- trays her as a traitor;
82
makes no clear statement about the injustice of the group law; and leaves the unjust law intact for others.
Overall, in contrast with my approach, which gives no legal recogni- tion to group rules, Shachar’s approach gives recognition with one hand and takes it away with the other. The result is an unhappy me- dium. Groups are allowed jurisdiction over certain sub-matters, which they may use to implement unjust or unequal laws. However, they are subject to state interference on an ad hoc basis, in individual cases (rather than on the laws themselves) and on uncertain grounds (jus- tice? democracy? might?).
Choice and Autonomy—Culture and Equality
In this chapter, I have proposed the theory of the insufficiency of free choice. Put simply, the theory states that an unequal state of affairs cannot be justified simply by the observation that it came about as the result of the choices of those who are the least well off. In other words, free choice is insufficient to render a state of affairs normatively un- problematic in many cases. Choice cannot be always be a normative transformer. Instead, I suggested two factors that, if present, provide grounds for concluding that the state of affairs under consideration is unjust, and which ought to prompt state action to alleviate the inequal- ity and thus the injustice. These two factors, which vary in extent and thus in injustice from case to case, are disadvantage and influence. When either of them is present, we should be on the alert for possible injustice. When both are present, we should infer actual injustice. A liberal state ought to intervene to ameliorate the effects of either or both factors, inasmuch as is compatible with core liberal values.
82. Shachar criticizes an alternative approach for leaving individuals susceptible to being labeled traitors. See ibid.
,
85.
Liberals should be concerned about cases where the disadvantage and influence factors are present because they illustrate the limitations of individuals’ ability to escape contexts that limit, rather than enhance, their choices. Many of these limiting contexts are cultural. In particu- lar, some cultures seek to limit the opportunities open to their mem- bers along unequal lines, so that some are denied opportunities that are open to others. In such cases, a liberal state ought to intervene to attempt to reduce the inequality. The appropriate form of intervention may involve addressing either the disadvantage or the influence or both, according to the particularities of the case. Sometimes, an ap- proach similar to that of the employment tribunal will be appropriate, so that individuals can apply to have the rulings of their cultural author- ities overturned. If there is no support from within the culture for such change, there will be no need for state action once the tribunal has been set up until such time as a case is brought before it. However, in order to counteract the effects of the influence factor as much as possi- ble, a program of education or advertising will often be appropriate. Without such state intervention, the autonomy and fair equality of op- portunity that liberals prize cannot be realized. And, for egalitarian liberals,
all
must have prizes.
two orders of autonomy and political liberalism
:
breast implants versus female genital mutilation
Most of the women who seek breast enlargement or augmentation are truly small- breasted. They suffer embarrassment about their size, especially when dressed in summer wear and bathing suits (which are particularly difficult for small-breasted women to find in the right size) as well as during intimate situations. On the whole, small-breasted women don’t want to be large-breasted sex bombs, they just want to look ‘‘normal’’ and to be able to buy clothing easily. A smaller number seek breast enlargement after a large weight loss or when they’re through breast feeding, after which it’s common for breasts to lose volume and look droopy. . . . It’s rare that a woman isn’t a good candidate for augmentation.
—
randolph h
.
guthrie
,
The Truth about Breast Implants
A 1998 study showed 34% of American women were dissatisfied with their breasts.
—
martha grigg et al
.,
Information for Women about the Safety of Silicone Breast Implants
A woman’s chest, much more than a man’s, is
in question
in this society, up for judgment, and whatever the verdict, she has not escaped the condition of being problematic.
—
iris marion young
, ‘‘Breasted Experience’’
So far I have argued that a truly liberal project must take account of the two aspects of social construction: the ways in which
individuals
and their
preferences
are formed by social forces, and the fact that indi- viduals’
options
are constrained by social norms—some of which are harmful or epitomize inequality. As such, liberals must recognize that a simple formal framework of freedoms and resources is insufficient to secure genuine autonomy. In this chapter, I focus on the social con- struction of options and consider whether it is possible to be critically aware of this process while at the same time prioritizing autonomy. I extend my argument through analysis of the recent work of Martha Nussbaum. Nussbaum’s approach combines a commitment to political liberalism with a critique of harmful social norms and an awareness of
social construction, thus improving on the more standard Rawlsian approach.
Nussbaum improves on Barry’s approach and on Rawlsian political liberalism not only with her awareness of social construction, but also with her greater awareness and intolerance of gender inequality. As such, she argues that there are many reasons why individuals’ choices may not be the best route to justice, and recognizes that women all over the world suffer from injustice as the result of cultural or religious tradition with which they, in one sense, willingly comply. She is a firm believer in (some sorts of) autonomy and, like Barry, in the universal applicability of many liberal values, and thus advocates that the oppor- tunity for autonomy should be extended to all individuals regardless of their cultural membership. Nussbaum’s work thus appears at first glance to answer many questions concerning the compatibility of liber- alism, autonomy, and social construction. However, as I shall show, Nussbaum’s political liberalism prevents her from making good the promise of her work on social construction and the injustice of social norms. Much of what is valuable about the latter aspect of her work, moreover, undermines or directly contradicts her insistence on politi- cal liberalism. In general, political liberalism is peculiarly ill-equipped to deal with injustices resulting from culture and choice because it abandons significant areas of justice to determination by individual choice. Political liberalism is thus a problematic approach for femi- nists, and substantive egalitarians more generally. Instead, I suggest an alternative framework for dealing with culturally embedded injustices. I start by distinguishing two forms of autonomy: call them first- order and second-order autonomy.
1
First-order autonomy concerns the attitude one has to the rules and norms that are a part of life. A person is first-order autonomous if she critically examines rules and norms and follows only those that she endorses. Second-order autonomy con- cerns the way that one comes to lead a particular way of life
writ large,
My distinction between first- and second-order autonomy is not the same as Gerald Dworkin’s distinction between first- and second-order reflection. Dworkin argues that auton- omy is ‘‘a second-order capacity of persons to reflect critically upon their first-order prefer- ences, desires, wishes, and so forth and the capacity to accept or attempt to change these in the light of higher-order preferences and values’’ (
The Theory and Practice of Autonomy,
20). He therefore integrates various distinct phenomena into one unified concept, missing the ways in which an individual’s autonomy is nuanced and multifaceted.
My distinction also differs from Marilyn Friedman’s account of content-neutral autonomy versus substantive autonomy. See Chapter 7 for a discussion of Friedman’s approach.
what Rawls calls a comprehensive conception of the good. A person is second-order autonomous if she chooses or endorses the overall con- ception of the good that she follows. I contend that political liberals such as Nussbaum and Rawls believe that only second-order autonomy should be the concern of the liberal state. I challenge that prioritization of second-order autonomy on two grounds. First, I argue that Nuss- baum herself provides good reasons to be suspicious of the prioritiza- tion of second-order autonomy in her work on social construction—or as she calls it, the social formation of preferences.
2
Indeed, she sug- gests in this part of her work that opportunities for second-order auton- omy are limited. However, there is a tension between Nussbaum’s commitment to political liberalism and her concern to improve upon it: her political liberalism leads her to be wary of state intervention, and thus to prioritize individuals’ ability to adhere to even those prefer- ences which she has shown to be socially constructed and thus imper- fect guides to justice.
Second, I argue that some ways of life or specific choices within a life are sufficiently problematic, even when chosen autonomously, as to merit state intervention. I show that Nussbaum agrees with this position in the case of female genital mutilation (
fgm
), and that this agreement causes problems: either she must extend that judgment to many other cases and reject her politically liberal prioritization of sec- ond-order autonomy or, in maintaining her political liberalism, she must surrender her feminist critique of
fgm
and endorse a conserva- tive state neutrality. Overall, I propose an alternative approach for con- ceptualizing and responding to chosen yet harmful practices.
Two Orders of Autonomy
In order to make my argument I must first investigate the concept of autonomy in more detail. ‘‘Autonomy’’ has been used in a great many different ways by different philosophers,
3
and some distinctions are needed. For my purposes, it will be necessary to distinguish three con- cepts: negative freedom, and first- and second-order autonomy. The first concept, negative freedom, is familiar though contested. Its nu-
For example, see Martha Nussbaum
Sex and Social Justice,
especially chap. 10, and Nussbaum,
Women and Human Development.
See Dworkin,
Theory and Practice of Autonomy,
5–6, for some examples.
ances are not crucial in this context; the basic idea of negative freedom is a lack of interference from others or, to be more specific, a lack of coercion.
4
The second and third concepts are the two orders of auton- omy. Second-order autonomy applies to the manner in which an indi- vidual comes to have a particular way of life or comprehensive concep- tion of the good. One is second-order autonomous if one actively and willingly chooses one’s way of life free from compulsion or influence that would obscure that choice.
5
Thus Rawls’s defense of individuals’ moral power ‘‘to have . . . and rationally to pursue a conception of the good’’
6
can be thought of as a defense of second-order autonomy: individuals must be able to lead the way of life that they choose for themselves. First-order autonomy applies to one’s attitude to the rules and norms that are part of a way of life. One is first-order autonomous if one leads a daily life in which one questions rules and norms and actively chooses how to respond to them. One may be first-order auton- omous and follow rules, but only if one considers the rule and decides that it is a good rule to follow. One is first-order autonomous if one is governed by rules that one sets for oneself or endorses for oneself. In part, this idea is expressed in Rawls’s claim that individuals must also be able to ‘‘revise’’ their conception of the good.
7
This conception of autonomy has many followers, as Gerald Dworkin points out: ‘‘As a moral notion—shared by philosophers as divergent as Kant, Kierke- gaard, Nietzsche, Royce, Hare, and Popper—the argument is about the necessity or desirability of individuals choosing or willing or accepting their own moral code. We are all responsible for developing and critic- izing our moral principles, and individual conscience must take prece- dence over authority and tradition.’’
8
The distinction between first- order autonomy and negative liberty, though necessary for analytical clarity, can introduce confusion. Consider the question, for example, of whether life in a convent or the army is autonomous. Clearly, if it is chosen, army or convent life is compatible with second-order auton-
See, for example, Berlin, ‘‘Two Concepts of Liberty,’’ and Hayek,
The Constitution of Liberty.
Thomas E. Hill Jr. describes autonomy-threatening influence as that which threatens the rationality of a person’s choice: ‘‘Respecting individuals’ autonomy means granting them at least the
opportunity
to make their crucial life-affecting choices in a rational manner’’ (‘‘The Importance of Autonomy,’’ 134).
John Rawls,
Justice as Fairness,
19.
Ibid.
Dworkin,
Theory and Practice of Autonomy,
10–11.
omy. Equally clearly, such lives entail great constraints on negative lib- erty. The position regarding first-order autonomy, however, is ambigu- ous. Depending on the nun or soldier’s attitude to the rules of the institution, first-order autonomy may or may not be present. If she endorses all the rules following critical reflection on their value, then she will obey them with first-order autonomy, even though her liberty is constrained. However, on the reasonable assumption that the nun or soldier has to obey at least some rules which she finds problematic, both first-order autonomy and negative liberty are limited. This issue is important and will be returned to.
9
For now, though, assume that at least some of the rules of a convent or army are not endorsed by its members, so that the lack of negative freedom about which rules to obey leads to a lack of first-order autonomy.
There are four distinct logically possible ways of combining first- and second-order autonomy. First, a person might autonomously choose to live an autonomous life, therefore having both forms of au- tonomy. For example, she might be a philosopher who has decided to live a life in which she constantly questions rules and norms.
10
It should be fairly clear that liberals of all persuasions will have no nor- mative problem with such an individual. On the other hand, a person might have neither first- nor second-order autonomy, thereby leading a nonautonomous life that they have not autonomously chosen. An example might be an individual living under a fundamentalist religious dictatorship, such as Afghanistan under the Taliban. Such an individ- ual lacks second-order autonomy since she did not choose and cannot alter the government, its religion, or her residence in the country, and she lacks first-order autonomy since the regime explicitly prevents it. Liberals (again, of all persuasions) usually condemn such situations. However, they may be defended in certain circumstances, such as for justly convicted prisoners.
The more interesting cases are those in which only one order of autonomy is present. The third logically possible scenario is that a per- son could autonomously choose to live a nonautonomous life, such that she has second-order autonomy but not first. This is the category
One issue to be considered in more detail is whether a nun or soldier can have first- order autonomy if she adopts or endorses convent or army rules
without
engaging in prior critical evaluation of their worth.
In
Culture and Equality
Barry refers to such a life of constant Socratic questioning as ‘‘the ideal of autonomy.’’
on which I focus in this chapter. It includes freely chosen convent and army life. Finally, a person could live an autonomous life that she has not autonomously chosen, such that she has first-order autonomy but not second. An example of this case might be a child who has not chosen to attend a progressive school but who, once there, is required by the teachers to question rules and norms and to find out answers for herself. To give an adult example, we might think of men who are convicted of domestic violence and who are directed by the courts to attend anger management courses to help them control their behavior. It is more difficult to know what liberals might say about these two cases, particularly as the cases may be in direct conflict. If a liberal state wishes to prioritize second-order autonomy, it will allow convent life but may be wary of forcing criminals to attend classes (although crimi- nals may be thought to have forfeited any right to second-order auton- omy). On the other hand, if the state wishes to prioritize first-order autonomy, it may be very keen to use such classes but may also wish to discourage, regulate, or even prevent certain forms of convent life,
or at least certain practices within convents.
Consider the situation that combines second-order autonomy with a lack of first-order autonomy: the situation of the nun. There are several possible ways in which one could respond, normatively and philosophi- cally, to it. The first option is to say that a life as a nun is indeed a nonautonomous life in the first-order sense, but that its lack of auton- omy is unproblematic because nonautonomous lives are unproblem- atic (in certain conditions). This is the line of argument adopted by political liberals such as Martha Nussbaum. Nussbaum contrasts her political liberalism with the comprehensive liberalism of John Stuart Mill and Joseph Raz, arguing that they and not she hold that autonomy is a general good for all humans.
11
Nussbaum argues that her position, in contrast, allows people to live nonautonomous lives, for autonomy may be counter to their conception of the good, particularly if that conception is religious. Nussbaum’s argument on this point follows Rawls, who writes:
Full autonomy is achieved by citizens: it is a political and not an ethical value. By that I mean that it is realized in public life
Martha Nussbaum, ‘‘A Plea for Difficulty.’’ She argues similarly in Nussbaum, ‘‘Sex Equality, Entitlements, and the Capabilities Approach.’’ For the arguments of Mill and Raz, see John Stuart Mill,
On Liberty,
and Joseph Raz,
The Morality of Freedom.
by affirming the political principles of justice and enjoying the protections of the basic rights and liberties; it is also realized by participating in society’s public affairs and sharing in its collective self-determination over time. This full autonomy of political life must be distinguished from the ethical values of autonomy and individuality, which may apply to the whole of life, both social and individual, as expressed by the comprehen- sive liberalisms of Kant and Mill. Justice as fairness affirms this contrast: it affirms political autonomy for all but leaves the weight of ethical autonomy to be decided by citizens severally in light of their comprehensive doctrines.
12
Nussbaum agrees that, for political liberals, autonomy is a
political
value only. Second-order autonomy must be protected, but individuals must be free to use their second-order autonomy to alienate their first- order autonomy, for example by joining a convent. Nussbaum ex- presses this by saying that a political liberal ‘‘carefully refrains from asserting that non-autonomous lives are not worth leading, or even that autonomy is a key element in the best comprehensive view of human flourishing across the board; and she carefully protects the spaces within which Calvinists and other non-Milleans [who do not value au- tonomy] can plan lives according to their own lights.’’
13
It is important to note that Nussbaum is rejecting the universality of first-order and not second-order autonomy: her emphasis on protecting spaces for people to
plan
their lives according to
their own lights
shows that sec- ond-order autonomy remains a crucial universal goal. She stresses the universal value of second-order autonomy again when she states that political liberalism ‘‘agrees with comprehensive liberalism that a non- autonomous life should not be thrust upon someone by the luck of birth.’’
14
Nussbaum’s argument, then, is that political liberalism differs from comprehensive liberalism in preferring second-order autonomy to first-order autonomy when the two conflict, but that it agrees with com- prehensive liberalism in disliking cases when a nonautonomous life is thrust on someone by luck of birth and so has not been chosen autonomously. For a political liberal understood in Nussbaum’s terms,
Rawls,
Political Liberalism,
77–78; see also Rawls,
Justice as Fairness,
156.
Nussbaum, ‘‘Plea for Difficulty,’’ 110.
Ibid.
then, the crucial normative issue is not what kind of life a person lives in a first-order sense, but whether it has been chosen autonomously in a second-order sense.
15
If it has, then the absence of first-order auton- omy is no cause for (political) concern. If a way of life has not been chosen autonomously, then there is cause for concern. If Nussbaum is correct in her description of the two positions, the debate between comprehensive and political liberals is not a debate about the value of autonomy
per se,
but a debate about the (political) value of first- versus second-order autonomy.
16
For political liberals, then, the state should provide a basic frame- work of freedoms. Within that framework, justice is served by giving individuals considerable leeway to construct their own conceptions of the good. Nussbaum captures this principle with what she and Amar- tya Sen term the ‘‘capability approach’’: justice, and the governmental activity that promotes it, must focus on capabilities rather than on ac- tual functioning. This focus on capabilities is, in turn, justified by an appeal to reason and the ability of individuals to choose their own ways of life. As Nussbaum puts it: ‘‘For political purposes it is appropriate for us to shoot for capabilities, and those alone. Citizens must be left free to determine their course after that. The person with plenty of food may always choose to fast, but there is a great difference between fast- ing and starving, and it is this difference we wish to capture.’’
17
So, Nussbaum’s commitment to autonomy is expressed through the political sphere. Individuals must be able to engage in practical reason