Sex, Culture, and Justice: The Limits of Choice (26 page)

brought about solely by the autonomous choice of the individual con- cerned?’’ for the answer will often (a Foucauldian account suggests always) be ‘‘no.’’ Instead, the manner of their formation becomes a matter of justice. We must ask, ‘‘Was the social influence that encour- aged the individual to make that choice, and is the choice itself, com- patible with justice?’’ Because Nussbaum denies that first-order auton- omy is relevant to justice, we must turn to the second liberal value of
equality.
If individuals are subject to influence that threatens their equality, then it is a requirement of justice that that influence be lim- ited where possible. This intervention will take place not in the name of autonomy alone but in the name of
justice,
as a combination of au- tonomy and equality. Autonomy functions as a premise to the argu- ment: given that preferences have already been socially influenced, then protecting autonomy cannot
simply
be a matter of allowing indi- viduals to follow their preferences, and preferences cannot determine the justice of a state of affairs. In order to distinguish between influ- ence that does and influence that does not threaten justice, we must consider whether individuals are encouraged to make choices that threaten their equality.

Second-Order Autonomy and Harmful Norms

So far, we have seen that Nussbaum, and political liberals in general, prioritize second-order autonomy over first. Put generally, the political liberal position is that while a first-order nonautonomous life must not be thrust upon someone, it may be autonomously chosen. But, as it stands, this position is too crude. It is too crude because people do not make choices in a vacuum. Instead, as I have argued throughout this book, they are influenced, sometimes very strongly, by the people, structures, and norms around them.

Both aspects of social construction arise here. First, social construc- tion may obscure or even prevent autonomous choice, so that people are never or rarely second-order autonomous. In Part One I argued that although social construction has a far deeper impact than most liberals recognize, it is nevertheless possible for individuals to theorize the need for change and, with assistance and concrete strategies, over- come oppressive norms.

Second, social construction affects the options that are available. So-

cial norms set out what may be chosen, and place conditions on what must be done in order to receive certain benefits. Moreover, social norms are sometimes harmful. If she is to follow a social norm, an individual may be required to harm herself. The harm may be physical, mental, or material. It may also be social—it may require the individual to lower her status relative to that of others. In other words, a social norm may reflect and perpetuate inequality. In some cases a norm may be both harmful and unequal, in that it may require some people but not others to harm themselves.

This second issue is the focus of the rest of this chapter. It should become clearer if we consider a set of four examples. Instead of an intersection between first- and second-order autonomy, consider an in- tersection between second-order autonomy and the harmfulness or otherwise of social norms. The following table represents possible an- swers to two questions. First, if an individual is following a social norm, does she do so with or without second-order autonomy? In other words, is she autonomously choosing to follow the social norm so as to acquire some benefit, or is she simply following the norm because she is coerced or it never occurs to her to do otherwise? Second, is the norm that she is following harmful? So as to simplify the example, assume that the individual in question knows whether or not the norm in question is harmful (this assumption will be interrogated later, par- ticularly in Chapter 6).

The norm is
not
harmful.

The norm
is
harmful.

The norm
is
part of a way of life chosen second-order autonomously.

The norm is
not
part of a way of life chosen second- order autonomously.

1. I am aware that there is a harmless social norm regulating access to some benefit. Because I have autonomously chosen the benefit, I choose to follow the norm. For example, David is a member of an Oxford college. There is a norm operating in the college that
   

   people take tea in the common room at a certain time. Those who attend tea reap the benefits of forming social and professional networks. David considers the norm and, because he wants to further his academic career, decides to follow it by attending tea regularly.
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2. I follow a harmless social norm regulating access to some bene- fit, but have not autonomously chosen to seek that benefit. For example, David’s colleague, Ben, also consciously attends tea so as to further his academic career. However, he has not autono- mously chosen to be an academic: his career is the result of fam- ily pressure, his fear at the thought of leaving Oxford, and the fact that he has never really considered any alternatives.
   

3. I am aware that there is a harmful social norm regulating access to some benefit. As I have autonomously chosen the benefit, I choose to follow the norm. For example, Rachel has autono- mously chosen to seek career success. She works in a nonsmok- ing office. She does not smoke, but her colleague and their mu- tual manager do. The colleague and the manager regularly go outside to smoke together, where they discuss business matters. As a result, the manager favors the colleague over Rachel. In order to gain the manager’s favor, and despite her dislike of smoking, Rachel decides to start smoking so that she can join the conversations in the smoking area and further her career.
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4. I follow a harmful social norm that regulates access to some ben- efit, but have not autonomously chosen to seek that benefit. For example, in China, footbinding was necessary for a girl to secure a good marriage from the middle of the fourteenth century until the very start of the twentieth century. However, girls and women whose feet had been bound were left ‘‘crippled and nearly house- bound.’’
   30
   Chun had her feet forcibly bound when she was a child. As a result, she was able to secure a good marriage, but suffered from severely limited mobility throughout her life. She made no autonomous choice to seek a life of marriage.
   

What are we to say about these examples? Which ought a liberal to endorse, and which ought she to criticize, or condemn as unjust? Most

1. This example is named after David Miller, who very helpfully suggested it to me.
   

2. This example is based on ‘‘The One Where Rachel Smokes,’’ episode 115 (1999) of the Warner Brothers sitcom
   Friends,
   in which the character of Rachel faces this dilemma.
   

3. Mackie, ‘‘Ending Footbinding and Infibulation,’’ 1000.
   

   liberals would condemn case 4, the case of Chun and footbinding. The very similar case of female genital mutilation is discussed at length later in the chapter.
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   Cases 1, 2, and 3 are more problematic, and high- light complexities with the political liberal prioritization of second- order autonomy. If second-order autonomy is crucial to justice for po- litical liberals, we might think that Ben, who has never made a choice to be an academic, is suffering from some sort of injustice. However, political liberals do not tend to be too worried about these sorts of cases because, I suggest, the life that Ben has ended up with allows him considerable first-order autonomy. Ben’s position is similar to the case I described in Chapter 4, in which an individual is subjected to the influence factor but advantaged as a result. While we might think that his life would go better if he exercised his second-order autonomy and reevaluated it, Ben does not seem to be a particularly needy victim of injustice worthy of state-provided remedy.
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   What of cases 1 and 3: David with his tea, and Rachel with her smok- ing? In both cases, Rachel and David are aware of the options that confront them, weigh up the costs and benefits of (non-)compliance with the norm, and choose to comply. But the costs that the norms impose are very different. Rachel will have to cultivate a taste for smok- ing, which she knows will harm her quite considerably. David’s tea, on the other hand, is certainly not harmful and has indeed been shown to have various health benefits. Does this difference, in and of itself, make a difference to the justice of the case?
   

   In the remainder of the chapter, I argue that it does. Specifically, I argue that, in certain circumstances, individuals who submit to harm- ful norms to reach some higher, second-order goal are suffering from
   

4. One complexity of the case, however, is whether Chun might be said to have second- order autonomy if, on reaching adulthood, she decides that she does want to be married. It is clear that this decision would not mean that footbinding served her first-order autonomy, for even if she does not regret the necessity of footbinding, she did not in fact choose to submit to the practice at the time. However, some theorists would argue that footbinding would serve her second-order autonomy if she subsequently adopts the goal of marriage. This is the basis of George Sher’s perfectionist refutation of the argument that ‘‘when govern- ments try to induce citizens to choose valuable activities, the resulting choices never
   are
   autonomous.’’ On the contrary, Sher argues: ‘‘Precisely
   by
   living the life he was nonrationally caused to prefer, C may become increasingly aware of the value-based reasons for living that way. He may come to appreciate W’s (potential) value ‘from the inside’’’ (
   Beyond Neutrality
   , 61; 63; emphasis in the original. See also Friedman,
   Autonomy, Gender, Politics
   , 25).
   

5. If state intervention were advocated, it might be in the area of adult education provi- sion. For a discussion of whether funding for adult education is required by justice, see Alexander Brown, ‘‘Access to Educational Opportunities—One-off or Lifelong?’’
   

   an injustice. Moreover, the liberal state ought to attempt to rectify that injustice.
   

   Perpetuating Inequality: Female Genital Mutilation and Breast Implants
   

   Generally, political liberals want to protect individuals’ second-order autonomy, even if it is used to choose things that are harmful to the choosing individual. Mill’s harm principle is perhaps the most famous example of such an approach (although Mill is not a political liberal). Sometimes, though, political liberals are willing to ban things for rea- sons of justice even when the injustice falls largely to those people who choose them. Female genital mutilation (
   fgm
   ) causes problems for Nussbaum. As a feminist (and a Westerner?)
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   she finds the practice abhorrent and argues that it should be banned. As a political liberal, she lacks the philosophical resources to justify such a ban. Her argu- ments against
   fgm
   are effective arguments against political liberal- ism’s prioritization of second-order autonomy.
   

   Nussbaum’s discussion of
   fgm
   gives many reasons for eradicating the practice. A consistent politically liberal approach to the issue would imply changing certain features of the practice, but leaving it optional for those adult women who wished to practice it. However, not all of the criticisms that Nussbaum makes of
   fgm
   would be eliminated by that approach. In other words,
   fgm
   reveals that Nussbaum wants to label some practices as unjust regardless of whether they have been chosen autonomously, undermining her claim that, for a political lib- eral, second-order autonomy is sufficient for justice. Such practices are unjust, instead, because they threaten either the equality or the well- being of the choosing individual or, by contributing to social norms, they threaten the equality of a wider group of individuals.
   

6. Western bias is often found in condemnations of human rights violations. For exam- ple, the UN has produced a fact sheet condemning ‘‘harmful traditional practices’’ performed on women, but discusses only non-Western practices. See Bronwyn Winter et al., ‘‘The UN Approach to Harmful Traditional Practices.’’ Germaine Greer argues that Western condem- nations of
   fgm
   are highly hypocritical in the light of Western practices such as episiotomy, where a woman’s vagina is routinely cut in preparation for childbirth, and the fact that ‘‘the American Academy of Pediatrics recommends that clitorises of more than three-eighths of a inch in length should be removed from baby girls before they are fifteen months old’’ (
   Whole Woman
   , 94).
   

Nussbaum argues that we should consider
fgm
as worse than, and more worthy of elimination than, Western beauty practices such as dieting and cosmetic surgery. She gives eight reasons for her view:
34

1. fgm
   is carried out by force.
   

2. fgm
   is carried out on children below the age of consent.
   

3. Women who undergo
   fgm
   are more likely than Western women to be uneducated and thus to lack the conditions for autonomous choice.
   

4. fgm
   is often carried out in conditions that are dangerous to health.
   

5. fgm
   is irreversible.
   

6. fgm
   causes lifelong health problems.
   

7. fgm
   causes the loss of a certain type of sexual functioning that many women (would) value highly.
   

8. fgm
   ‘‘is unambiguously linked to customs of male domina- tion.’’
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Only the first three objections to
fgm
are directly linked to the nature of the practice as unchosen. In other words, if second-order autonomy were the key factor in securing justice,
fgm
could be made acceptable if it were performed only on women above a certain age who gave their consent and who were given information about the risks involved and the particularity of the custom—the kind of information that is avail- able to women who undergo cosmetic surgery in Western countries.
36
We could also eliminate some of the dangers to health (objection 4) by the provision of appropriate clinical equipment and training. These alterations would render the practice unproblematic from a strictly po- litical liberal point of view (one which holds second-order autonomy as sufficient for justice, and which ignores the social formation of prefer- ences). Are they enough? What is the force of the remaining objec- tions?