Sex, Culture, and Justice: The Limits of Choice (25 page)

1. Ironically, in this respect Nussbaum’s approach is very similar to that of Raz in
   Moral- ity of Freedom
   (see, for example,
   Morality of Freedom,
   370).
   

2. Nussbaum argues that comprehensive liberalism is ironic in its treatment of auton- omy, but the irony disappears—or at least is shared by political liberalism—if we clarify which kind of autonomy the two are concerned with, as I have done in the following excerpt: ‘‘Political liberalism also does better along the dimension of respect for citizens; for— ironically, since [second-order] autonomy is what it is all about—comprehensive liberalism does not show very much respect for the [second-order autonomous] choices citizens may make to live [first-order] nonautonomously, as members of hierarchical religions or corporate bodies’’ (‘‘Plea for Difficulty,’’ 110). By omitting the qualifying label before the first instance of ‘‘autonomy’’—the kind that liberalism ‘‘is all about’’—Nussbaum implies that there is one overarching type of autonomy, so that anyone who rejects that kind of autonomy ‘‘ironically’’ rejects autonomy
   per se.
   However, comprehensive liberals could play the same trick and state that it is ironic that, since [first-order] autonomy is what it is all about, Nussbaum and politi- cal liberals do not show very much respect for people’s ability to live [first-order] autonomous lives, as they allow that crucial capability to be alienated through a simple [second-order autonomous] choice.
   

3. Nussbaum,
   Sex and Social Justice
   , 44.
   

   about their way of life, choosing which ways of life to pursue and which to reject. Under such conditions, individuals may choose even those ways of life which are of no apparent value, or which do not enable autonomy to flourish.
   18
   In fact, Nussbaum implies that the very fact of choice imputes some worth to a way of life, by strongly distinguishing fasting and starving. On one level, there is very little difference: both have the same physical effects and are fatal at their extreme. The main difference between them is that one is chosen and the other imposed, and it seems to be this which makes the normative difference for Nuss- baum. Choice becomes a normative transformer, rendering an out- come just by its mere presence. Nussbaum does not appeal to the rea- son for fasting, or imply that the difference lies in the value of some ways of life above others. Thus she makes no distinction between the anorexic, the suffragette on hunger strike, and the ‘‘breatharian’’ who has a spiritual belief in her ability to live on oxygen alone. All have chosen to fast. The state exhausts its duties by ensuring that all have the capability of eating, presumably by ensuring that no one is unable to find or afford food. The fact that we might reasonably judge starving to death as bad for individuals, or as counter to their autonomy, does not justify state intervention. We protect individuals’ autonomy by pro- tecting their ability to choose.
   

   If we retain Nussbaum’s political liberalism, it becomes crucial to identify the conditions under which an individual comes to lead a way of life. For, even if an individual has first-order autonomy, a political liberal might want to interfere if it could be shown that comprehensive liberal meddling had imposed that first-order autonomy. A political liberal would want to ensure that the individual could choose to alien-
   

4. Nussbaum sometimes implies that it may be compatible with justice for an individual to live a first-order nonautonomous life that has not been second-order autonomously cho- sen. As long as the society provides the opportunity for second-order autonomy, it may not matter if the individual does not (cannot?) take advantage of those conditions, because their culture or religion encourages them not to. Thus she states: ‘‘A nonautonomous life should not be thrust upon someone by the luck of birth. Nonetheless, [political liberalism] respects such lives, given a background of liberty and opportunity, as lives that reasonable fellow citizens may pursue’’ (‘‘Plea for Difficulty,’’ 110). It is unclear whether ‘‘such lives’’ that should be respected refers to the second-order nonautonomous lives ‘‘thrust upon someone by luck of birth’’ or the first-order ‘‘nonautonomous life.’’ Presumably it is the first-order nonautonomy that must be respected, or Nussbaum’s rejection of a life thrust upon someone would make no sense; however, her insistence on a ‘‘background’’ of liberty and opportunity rather than the exercise or use of liberty and opportunity undermines this interpretation and raises the question of what it is for a way of life to be ‘‘reasonable’’ if it has not been chosen second-order autonomously.
   

   ate her own autonomy.
   19
   On the other hand, and more important, a political liberal will excuse and protect a first-order nonautonomous life
   if and only if
   that life has been chosen autonomously. In order for Nussbaum’s distinction between comprehensive and political liberal- ism to hold, it must be the second-order autonomy status of a way of life which determines its susceptibility to or immunity from state intervention, and not the substantive first-order content. Thus the polit- ical liberal response to convent life is to say that a nun is nonautono- mous but that lives lacking in autonomy—to be precise, lacking first- order autonomy—are acceptable. Instead, it is second-order autonomy which is a crucial requirement of justice.
   

   The Social Formation of Preferences: Is Second-Order Autonomy Possible?
   

   For political liberals, individuals’ choices go a long way toward defining what is just. Nussbaum is very aware, on the other hand, that people’s choices are not immune from social influence. She argues, in a chapter that echoes many of the themes of the theories of social construction of Foucault, Bourdieu, and MacKinnon, that ‘‘cultural formations affect not just the theoretical explanation of desire but the very experience of desire, and of oneself as a desiring agent.’’
   20
   In other words, social interaction has a crucial role to play in forming our attitudes to the world, and indeed our own opinions of those attitudes. If we live within a gendered society, for example, we will experience the world and our own desires according to gendered norms. As a result, we cannot sim- ply take an individual’s preferences as given and fail to notice the ef- fects that they have on her. Instead, we can and should critically evalu- ate structures of choice and desire.
   21
   

5. It is interesting to note that the absence of second-order autonomy can be more or less pernicious. Second-order autonomy may be coercively denied, as in the case of Afghanistan under the Taliban or, to a lesser extent, the woman who is prevented from becoming a nun (lesser because, as one way of life is proscribed rather than prescribed, the opportunity to choose autonomously from a variety of options remains). Or, second-order autonomy may be absent because it has never been cultivated, as in the case of a woman in a Western society who simply follows trends and norms without thinking about them or questioning them. It would seem that Nussbaum does not wish to eliminate all forms of second-order autonomy, forcing the Western fashion-victim actively to rethink her way of life, but merely to eliminate the forced instances of second-order nonautonomy.
   

6. Nussbaum,
   Sex and Social Justice
   , 256.
   

21. Ibid., 64.

How might we make such an evaluation, according to Nussbaum? Throughout
Sex and Social Justice,
she refers to the work of Andrea Dworkin and Catharine MacKinnon. While she has reservations about their specific policy prescriptions and methods, Nussbaum is generally in agreement with their theoretical approach. In particular, Nussbaum is sympathetic to their thesis that heterosexual desire under conditions of patriarchy is characterized by the eroticization of male dominance and female submission.
22
For both theorists, patriarchy teaches us to find this power inequality arousing through a myriad of images, norms, and experiences. As a result, many women find themselves turned on by fantasies of submission, from rape at one end of the scale to the romantic hero sweeping them off their feet at the other. Even feminist women, or nonfeminist women who do not in any sense ap- prove of or desire rape in the real world, may find themselves aroused by images and fantasies with which they are uncomfortable. For exam- ple, in the following quotation ‘‘Gail’’ describes her discomfort with the fact that she sometimes fantasizes about a man who actually attempted to rape her when she was seventeen: ‘‘At times, even though I know it’s wrong or crazy, I have fantasies that he is trying to rape me—either in his car, my home, his home, or even in his own garage. I become awfully excited at these thoughts. . . . I don’t know why I have these sexual fantasies. At other times I envision rape scenes, and actually shudder and become nauseated at the idea or thought. So, at times I enjoy my fantasies, and at other times I become almost sick.’’
23
Not all our desires, then, withstand normative scrutiny, and not all our desires contribute equally to our flourishing. If society is constructed along sexist lines, we should expect those socially constructed fantasies to have recurring sexist elements.

Nussbaum devotes considerable space to the consideration of prefer- ence formation in
Women and Human Development.
She argues that individuals’ reports of their own welfare might be problematic for three main reasons. The first is what Nussbaum calls the ‘‘Argument from Adaptation,’’ and expresses the idea of adaptive preferences. Adaptive preferences are formed in response to the options available, so that individuals come to want only what they can have, or what it is deemed

1. See, for example, ibid., 77–78, which refers to Catharine MacKinnon,
   Feminism Un- modified,
   and Andrea Dworkin,
   Intercourse.
   

2. Nancy Friday,
   My Secret Garden,
   112–13. See also Sheila Jeffreys,
   Anticlimax,
   243.
   

   appropriate for them to have. This argument is comparable to that of Bourdieu, whose concepts of habitus and field highlight the way our embodied behavior adapts itself to the particular social contexts within which we live. Nussbaum’s second argument against the sovereignty of preferences is institutional. As she puts it, ‘‘People’s preferences are in many ways constructed by the laws and institutions under which they live. This being the case, we can hardly use preferences as a bed- rock in our deliberation about what laws and institutions we wish to construct.’’
   24
   This claim applies even more pertinently, of course, to cultures and religions: since individuals’ preferences are, in many ways, constructed by the cultures and religions under which they live, we can hardly use preferences as a bedrock for deciding whether a culture or religion is compatible with justice,
   contra
   Nussbaum’s argu- ments in ‘‘A Plea for Difficulty.’’ This argument is redolent of Fou- cault’s account of the process by which social norms become both in- ternalized and pleasure-endowed, such that we actively want to comply. Third, Nussbaum gives the ‘‘Argument from Intrinsic Worth.’’ This argument states that there are some things that are desirable in and of themselves, whether or not a person desires them. Examples include sanitation and nourishment: regardless of individuals’ attitudes toward them, they are intrinsically desirable. Someone who has become used to living in conditions of squalor may not express dissatisfaction, and yet we should aim to improve those conditions regardless.
   25
   Nuss- baum’s thought here is that we should not take a person’s lack of inter- est in goods such as nutrition as reason to deny them the
   capability
   for nutrition. Even if a person chooses not to eat (which, as we have seen, may be a choice based on principle or one based on adaptation to un- just circumstances), that choice does not mean that the state has no obligation to ensure that they are able to eat. Nutrition must still be provided, since preferences may be adaptive and since nutrition is intrinsically valuable in the sense of being required for most if not all ways of life (it is a primary good).
   26
   

   The argument from intrinsic worth reveals Nussbaum’s commit- ment to at least some universal values. Indeed, she devotes the first chapter of
   Women and Human Development
   to their defense. Although
   

3. Nussbaum,
   Women and Human Development,
   142–43. 25. Ibid., 144.
   

1. Nussbaum,
   Sex and Social Justice,
   45, where Nussbaum notes that we must keep func- tioning ‘‘always in view’’ but that still ‘‘we are not pushing individuals into the function.’’
   

   Nussbaum believes that individuals must be free to follow traditional ways of life, she is unsympathetic to charges that liberalism seeks to impose inappropriate Western ways of life on members of other cul- tures. Rather, she sees liberal values, properly construed, as the univer- sal standard by which cultures may be judged. As she argues: ‘‘Tradi- tional practices . . . are not worth preserving simply because they are there, or because they are old; to make a case for preserving them, we have to assess the contribution they make against the harm they do. And this requires a set of values that gives us a critical purchase on cultural particulars.’’
   27
   This means that, for Nussbaum, autonomous individuals are not confined to living out the meanings that social norms give to various roles and practices. In other words, individuals do not realize their second-order autonomy by submitting to the social formation of their preferences. As a result, individuals are not neces- sarily autonomous individuals before state intervention, and state inter- vention will not necessarily disrupt that autonomy. Individuals are not blank sheets on which the state simply scribbles, preventing them from filling in the space themselves. They are always already scribbled on. What is scribbled, rather than the simple fact of scribbling, thus be- comes crucial.
   

   Once we have noticed that preferences are socially influenced, how- ever, we can no longer maintain a position of political liberal noninter- vention in the name of second-order autonomy. If preferences can be socially formed, then autonomy cannot
   require
   state noninterference on the basis that individuals must be left to make their own choices free from influence. Liberal theories of justice rest on two basic values: freedom or autonomy (understood in either a first- or a second-order sense) and equality. Nussbaum’s political liberalism implies that the presence of second-order autonomy suffices to make a choice, or way of life, unproblematic from the standpoint of justice: such autonomy is a sufficient condition for justice. However, the social formation of preferences casts doubt on this position, in two ways. First, it suggests that people may be less autonomous than they appear, since their deci- sions are profoundly shaped by their social contexts. Second, if auton- omy is (always) limited, a choice or outcome cannot be rendered just by the mere fact of having been autonomously chosen. We cannot de- termine whether a situation or practice is just by asking, ‘‘Was it
   

2. Nussbaum,
   Women and Human Development
   , 51.